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 11/18/2025.
Claims 1-8 and 10-34 are pending in the application. Claims 1 and 10-11 are currently amended. Claim 9 is newly cancelled. Rest of claims are previously presented. Claims 1-8 and 10-34 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 1-8, 10-13, 16-17, 19-28, and 30-33 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger US Patent Application Publication No. 2019/0216106 A1 (cited in the IDS submitted 03/17/2023, hereinafter referred to as Geistlinger) in view of Pandya US Patent Application Publication No. 2018/0271111 A1 (cited in the IDS submitted 03/17/2023, hereinafter referred to as Pandya), Gibson WO 2020/223700 A1 (cited in the IDS submitted 03/17/2023, hereinafter referred to as Gibson) and Wu US Patent Application Publication No. 2005/0208638 A1 (hereinafter referred to as Wu).
Regarding claims 1, 3, 4, 5, 8, 10 and 11, Geistlinger teaches a method of producing an edible composition (e.g., a food product, for example, a yogurt-like product or a cheese-like food 0053; 0017) comprising providing a casein composition that comprises only casein of non-animal origin (0061), mixing the casein composition with at least one other ingredient including non-animal protein (e.g., plant protein), water, lipid of non-animal origin, and carbohydrate that does not comprises lactose to obtain an LpCC (0092-0094; 0102-0104; 0136; 0072); adding at least one curdling agent (e.g., a lactic acid, 0109). Further, Geistlinger teaches that the food product is vegan (0054).
Further, Geistlinger teaches that the casein protein is alpha-S1-casein only and does not contain other types of casein such as kappa-casein (0061; claim 174).
Geistlinger teaches making a cheese with the recombinant casein protein but is silent regarding the step of processing the curd.
Pandya and Gibson in the same field of endeavor teaches that recombinant casein can be mixed with water, sugar and fat and the mixture formed can be used to make a cheese by traditional cheesemaking practice (Pandya, Fig 9; 0008; 0013; 0014; 0113; 0210-0211), or by acidified by an acid or a lactic acid bacterial, renneting with a rennet, and followed by maturation (Gibson, 0033; 0037-0042; 0163-0164; 0169).
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 Geistlinger by subjecting the LpCC of Geistlinger to a standard cheesemaking process so as to obtain a cheese. 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 a composition that comprises recombinant casein, water, fat and sugar can be used as starting material to make a cheese through standard cheesemaking practice.
Regarding the limitation that the liquid pre-curd composition (LpCC) is more concentrated than cow’s milk, Pandya teaches that the composition used for making cheese is more concentrated than cow milk (0210-0211 and Table 13, which shows that the dry matter is 14.44%, which is higher than that cow milk the dry matter of which is known to be ~13%). Therefore, one of ordinary skill in the art would have been motivated to manipulate the amount of dry matter in the LpCC so as to ensure it is suitable to make a cheese. Further, Wu in the same field of endeavor teaches that cheese can be produced by regular milk or concentrated milk (0027). Therefore, 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 the amount of water added to the LpCC of Geistlinger such that the dry matter of LpCC is higher than that of milk with reasonable expectation of success, for the reason that prior art has established that a cheese can be made from a substrate the dry matter content of which is higher than that of milk.
Regarding claims 2 and 13, Geistlinger teaches that a gelling agent (e.g., hydrocolloid) can be used to modulate the texture of the food product (0143), therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added a hydrocolloid at any stage of making the cheese (e.g., before curdling or after curdling) so as to modulate the texture of the cheese. Further Gibson teaches including xanthan gum in the liquid composition that comprises the casein protein and fat for securing a stable emulsion (0168). A xanthan gum is a known gelling agent.
Regarding claim 6, Geistlinger teaches lactic acid bacteria as well as peripheral bacterial such as Enterococcus (0109), the latter is an known ferment for maturation.
Further, Gibson teaches that a ferment for maturation is added together with the lactic acid bacteria (0169). 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 Geistlinger by including an aging and ripening microorganism in the curdling agent for the benefit of aiding in the ripening of the cheese.
Regarding claims 7, 16, 21, 25-26 and 30, Geistlinger teaches that the food product comprises 05-14% protein, 0-50% lipid and 2-95% water (0163; 0136; 0099). 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).
Further regarding the amount of protein as recited in claim 16, it is noted that the upper bound 14% as disclosed by Geistlinger is very close to the lower bound 15% as recited in claim 16 that one skilled in the art would have expected them to have the same properties, given that both prior art and the claimed invention are directed to cheese made by casein of non-animal origin. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Regarding claim 12, Geistlinger teaches including an emulsifier in the food product (0132; 0143). Gibson teaches including an emulsifier in the liquid composition that comprises the casein protein and fat for securing an stable emulsion (0168). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have included an emulsifier in the LpCC of Geistlinger for securing a stable emulsion.
Regarding claims 17, 22, 27-28 and 31, Geistlinger as recited above teaches an LpCC that comprises water, lipid and protein, but is silent regarding the amount of each in the LpCC. However, the amount of water, lipid and protein in the LpCC as the starting composition to make a cheese will determine the those in the finished cheese. To this end, Geistlinger teaches that the food product comprises 05-14% protein, 0-50% lipid and 2-95% water (0163; 0136; 0099). Therefore, one of ordinary skill in the art would have been motivated to manipulate the amounts of protein (e.g., recombinant casein and protein of non-animal origin), lipid and water so as to ensure that the final cheese obtained meets the water, lipid and protein ranges as stipulated by Geistlinger. As such, the protein, lipid and water contents as recited in claims 17, 22, 27-28 and 31 are merely obvious variants of the prior art.
Regarding claims 19-20, Geistlinger teaches lactic acid bacteria as well as peripheral bacterial such as Enterococcus (0109), the latter is an known ferment for maturation.
Further, Gibson teaches that a ferment for maturation is added together with the lactic acid bacteria (0169). 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 Geistlinger to include an aging and ripening microorganism in the curdling agent for the benefit of aiding in the ripening of the cheese.
Further, the limitations about salting and molding the curd and maturing the curd at a temperature allowing for the development of the ferment for maturation as recited in claims 19-20 would have been obvious over the prior art, given that Pandya as recited above teaches that recombinant casein can be mixed with water, sugar and fat and the mixture formed can be used to make a cheese by traditional cheesemaking practice (Pandya, Fig 9; 0008; 0013; 0014; 0113; 0210-0211).
Regarding claims 23 and 32, Geistlinger teaches that the food product comprises calcium (0124), and the amount of which is between 0.001-12% (0134). 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).
Regarding claims 24 and 33, Geistlinger teaches that the food product comprises calcium (0124), and the amount of which is between 0.001-12% (0134). Further, Gibson or Pandya teaches including calcium salt in the liquid composition that comprises recombinant casein (0162 of Gibson and Fig 9 of Pandya).
Further, the amount of calcium in the LpCC as the starting composition to make a cheese will determine the calcium in the cheese, therefore, one of ordinary skill in the art would have been motivated to manipulate the amount of calcium in the LpCC so as to ensure that the final cheese obtained has the calcium content as required by Geistlinger. As such, the calcium as recited in claim 24 or claim 32 is merely an obvious variant of the prior art.
Claims 14-15, 18 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger in view of Pandya, Gibson and Wu as applied to claims 1, 13, 16 and 25 above, and further in view of Schmitt WO 2018/196896 A1 (English translation relied upon for reference, hereinafter referred to as Schmitt).
Regarding claims 14-15, 18 and 29, Geistlinger teaches that a gelling agent (e.g., hydrocolloid) can be used to modulate the texture of the food product (0143), therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added a hydrocolloid at any stage of making the cheese (e.g., before curdling or after curdling) so as to modulate the texture of the cheese.
Cited arts are silent regarding the hydrocolloid being agar-agar or locust bean gum, or the amount of agar-agar in the LpCC as recited in claims 14-15, 18 and 29.
Schmitt teaches that a hydrocolloid such as agar-agar and locust bean gum can be added to a vegan food at an amount of 0.1-3% for improving the texture of the food (Abstract; 0018).
Both Geistlinger and Schmitt are directed to vegan food that comprises a hydrocolloid for modulating the texture. 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 Geistlinger by including 0.1-3% agar-agar or locust bean gum in the LpCC of Geistlinger with reasonable expectation of success, for the reason that prior art has established including agar-agar or locust bean gum at aforementioned amount in a vegan food could improve the texture of the food. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The amount of agar-agar as disclosed by prior art encompasses the range as recited in claims 18 and 29. 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).
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger in view of Pandya, Gibson and Wu as applied to claims 1 and 25 above, and further in view of Wiessel US Patent Application Publication No. 2016/0073650 A1 (hereinafter referred to as Wiessel).
Regarding claim 34, Geistlinger teaches that a gelling agent (e.g., hydrocolloid) can be used to modulate the texture of the food product (0143), therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added a hydrocolloid at any stage of making the cheese (e.g., before curdling or after curdling) so as to modulate the texture of the cheese.
Further, Wiessel in the same field of endeavor teaches adding a gelling agent (e.g., a hydrocolloid such as pectin) to a fermented dairy product such as a cheese so as to stabilize the protein and to smooth the texture in the fermented dairy product thus extending the shelf life of the fermented dairy product (0083; 0081; 0059; 0008).
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 Geistlinger by adding pectin to the curd so as to stabilize the protein, smooth out the texture, and to extend the shell life of the cheese. 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 the prior art has established that adding pectin to a curd could help to stabilize the protein, to smooth out the texture and to extend the shell life of the cheese.
Further, the limitations about molding and draining the curd would have been obvious, given that Pandya as recited above teaches that recombinant casein can be mixed with water, sugar and fat and the mixture formed can be used to make a cheese by traditional cheesemaking practice (Pandya, Fig 9; 0008; 0013; 0014; 0113; 0210-0211).
Response to Arguments
Applicant's arguments filed 11/18/2025 have been fully considered and the examiner’s response is shown below:
The 35 USC 102 rejection over Gibson is withdrawn in view of the amendment made to claim 1.
Regarding the 35 USC 103 rejection over Geistlinger in view of Pandya and Gibson, applicant argues on pages 9-10 of the Remarks that cited arts in combination fails to teach obtaining a cheese curd with a casein composition lacking kappa-casein, since kappa-casein is indispensable in cheesemaking particular in forming and stabilizing micelles, and in providing cleavage site for rennet to coagulate the micelles. To this end, applicant asserts that primary reference Geistlinger highlights the importance of micelles in providing the food product. Applicant further asserts that Gibson also emphasizes the importance of kappa-casein in forming micelles.
The arguments are considered but found unpersuasive. Applicant is reminded that the cheese product as disclosed by Geistlinger is not a traditional cheese as applicant has thought, rather, it is a cheese-like food that comprises other ingredients including non-animal proteins (see Geistlinger para. [0008; 0072]). To this end, applicant’s attention is respectfully drawn to para. [0083] of Geistlinger which explicitly discloses that the non-animal proteins have identical or similar properties as milk proteins, and examples of such properties include rennet cleavage site, syneresis properties of rennet gels produced, ability to form micelles, ability to form micelles of specific sizes, ability to form micelles of specific digestibility, ability to form micelles with specific stabilities at specific temperatures (e.g., refrigeration, ambient temperature, heat), ability to form micelles that have similar or superior emulsifying qualities as micelles comprised in milk and other dairy products, ability to form micelle aggregates ( e.g., in response to changes in pH, salt concentration, enzymes [ e.g., renin; "rennet coagulability"]), and ability to be encapsulated by micelles. Attention is further drawn to para. [0086] of Geistlinger which discloses that the non-animal proteins have similar or superior abilities to form micelles as caseins. In some embodiments, the non-animal proteins can form micelles without caseins.
As such, the aforementioned teaching combined with para.0061 and claim 174 of Geistlinger has clearly informed one of ordinary skill in the art that kappa-casein is not a must-have ingredient in the cheese-like food of Geistlinger. Applicant’s argument would have been more persuasive if Geistlinger’s food product were a traditional cheese that is devoid of non-animal protein.
Applicant argues on page 10 of the Remarks that the example of Geistlinger is directed to yogurt-like food as opposed to curd or cheese.
Applicant’s argument is considered. However, “applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967). In the instant case, the teaching of Geistlinger encompasses the embodiment of making a cheese curd with a casein composition that lacks kappa casein. See para. 14 and 23 of the OA issued 08/19/2025 for relevant paragraphs of Geistlinger.
Applicant asserts unexpected result on pages 11-12 of the Remarks. In particular, applicant asserts that Example 8 and 9 have demonstrates that a curd can be surprisingly obtained from casein composition that lacks kappa casein.
The assertion and the Examples 8-9 are considered. However, the examiner submits that the showing does not appear to be commensurate in scope with the claim, since the showing is about a LpCC composition that includes multiple specific ingredients (e.g., recombinant alpha- and beta- casein, calcium, coconut oil, glucose, agar-agar, etc.) in specific amounts, which is a lot broader than claim 1 which recites generically a non-animal casein (not kappa casein) and at least one other ingredient selected from water, calcium, lipid, and carbohydrate. Further, regarding the assertion that it is “surprising” to obtain a “curd” from a casein composition that lacks kappa casein (the examiner notes that applicant is using the term broader than the curd as in cheese curd), the phenomena of isoelectric precipitation (e.g., the curd as in Example 8-9) of an protein such as alpha- or beta- casein through acidification does not appear to be surprising to one of ordinary skill in the art. See, for example, Veedu, “Lactic acid-mediated isolation of alpha-, beta- and kappa-casein fractions by isoelectric precipitation coupled with cold extraction from defatted cow milk”, International Journal of Dairy Technology, 2019, 70, pages 1-10.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
Veedu, “Lactic acid-mediated isolation of alpha-, beta- and kappa-casein fractions by isoelectric precipitation coupled with cold extraction from defatted cow milk”, International Journal of Dairy Technology, 2019, 70, pages 1-10, which teaches acid-mediated isoelectric precipitation of alpha-, beta- and kappa- casein.
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.
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/CHANGQING LI/Primary Examiner, Art Unit 1791