DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim status
The examiner acknowledged the amendment made to the claims on 06/27/2025.
Claims 1, 3, 5, 7, 9, 11,12, 13, 14 and 15 are pending in the application. Claims 1, 9, 11 and 13 are currently amended. Claims 2, 4, 6, 8 and 10 are currently cancelled. Claims 3, 7 and 14-15 are previously presented. Claims 5 and 12 are withdrawn without traverse in response to the restriction requirement. Claims 1, 3, 7, 9, 11 and 13-15 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 3, 7, 9, 11 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Herrmann US Patent Application Publication No. 2018/0242622 A1 (hereinafter referred to as Herrmann) in view of Takayo JPH08238066 A (cited in an IDS filed 09/22/2022, English translation relied upon for reference, hereinafter referred to as Takayo).
Regarding claims 1, 3, 7, 9, 11 and 13-15, Herrmann teaches a method of producing a plant-based fermented milk (e.g., a cream-cheese like, in particular vegan food product, 0001), the method comprising providing a mixture containing a plant-based milk and a lipid (0018-0019; 0073; e.g., providing a pasty mass of comminuted nuts and/or seed, adding water and oil/fat to the pasty mass to obtain a pumpable mass); heating and mechanical processing the pumpable mass (0020); and subjecting the heated and mechanical processed pumpable mass to fermentation by a lactic acid bacteria (0071-0072). Lactococcus lactis ssp. lactis biovar. Diacetylactis is mentioned by Hermann in para. 0072, which is known to be able to produce diacetyl.
Further, Herrmann teaches that the cream-cheese like food product can be used as spread or as filling or recipe component of bakery products, or confectionary products or antipasti, or pasta, or as component of delicatessen salad, or sauces, or dressings, as use in ice cream or, in particular, purely for use as cheese substitute, especially cream cheese substitute (0092). Such a teaching from Herrmann renders claims 9, 11, 13, 14 and 15 obvious.
Hermann is silent regarding adding a protein hydrolysate containing at least 3% free amino acid to the mixture that contains the plant-based milk and the lipid.
Takayo teaches a method of producing a protein hydrolysate comprising hydrolyzing soybean milk in an aqueous system in the presence of an endoprotease or an exoprotease, wherein the protein hydrolysate comprises , inter alia, sugar, oligopeptide, and 30 wt% or less free amino acids (abstract; 0014), and such a protein hydrolysate can be used as a fermentation promoter for promoting fermentation of lactic acid bacteria, and can deliver an excellent flavor (0031). Further, Takayo teaches that an suitable amount of protein hydrolysate added to the fermentation medium is 0.003 wt.% or more (preferably 0.004-3%).
Both Herrmann and Takayo are directed to fermentation by a lactic acid bacteria. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Herrmann by including 0.003 wt.% or more (preferably 0.004-3%) of the protein hydrolysate containing 30 wt% or less free amino acids as disclosed by Takayo in the mixture of plant-based milk and lipid as disclosed by Herrmann for promoting fermentation of lactic acid bacteria, and can deliver an excellent flavor. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that incorporation of 0.003 wt.% of a protein hydrolysate containing 30 wt% or less free amino acids in a LAB fermentation medium could deliver the benefit of promoting LAB fermentation, and can deliver an excellent flavor to the product.
The free amino acid content by weight of the protein hydrolysate as disclosed by Takayo overlaps with the range as recited in claim 1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
On the dry matter weight of the protein hydrolysate by weight of mixture: Takayo teaches that an suitable amount of protein hydrolysate added to the fermentation medium is 0.003 wt.% or more (preferably 0.004-3%), and Herrmann teaches that the dry matter content of the pumpable mass is less than 80% ( or 60% or 40%) (0019), as such, dry matter weight of the protein hydrolysate by weight of the mixture of the plant-based milk and lipid is higher than 0.003% since the denominator is smaller. Therefore, the range of 0.1-2% as recited in claim 1 is merely an obvious variant of the prior art.
On the lipid content in the mixture of soy milk and a lipid as recited in claim 1: Herrmann teaches that the total oil content in the dry mass is between 20-80% or 30%-80% of the finished food product (0087; 0073), thus reasonably the total oil content by dry mass in the raw material is about the same range, given that the heating treatment, the mechanical processing and the fermentation do not result in a substantial dry matter loss, and the amount of protein hydrolysate added to the mixture is low. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I). Note that Table 4 example 9 of the instant specification is suggesting the lipid content refers to the total lipid content.
Response to Arguments
Applicant's arguments filed 06/27/2025 have been fully considered and the examiner’s response is shown below:
The 35 USC 112 rejection is withdrawn in view of the amendment made to claims 1, 9, 11 and 13.
Regarding the 35 USC rejection, applicant’s argument regarding Tsumura is moot, since Tsumura is not relied upon in the instant office action.
On page 8 of the Remarks, applicant asserts unexpected result associated with a lipid content of 58.53-80%, as shown in para. 0011 and 0014 of the as-filed specification.
Applicant’s assertion is considered. However, the examiner submits that none of para. 0011 and 0014 or anywhere in the instant specification has evidence showing the criticality associated with 58.53-80%. To this end, applicant’s attention is drawn to MPEP 716.01(c) II, which states that attorney arguments cannot take the place of evidence. Applicant’s attention is further drawn to MPEP 2145 I. which states that argument does not replace evidence where evidence is necessary.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791