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 .
The amendment filed 11/14/2025 has been entered. Claims 1-13 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 6, 8, 9, 10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US 4199608 A) in view of Smit-Boer (WO 2012080150 A1).
Regarding Claim 1, Gilmore teaches an imitation cream cheese (Abstract, Column 1, Line 29) comprising 1-5% protein such as soy protein (Column 6, Line 37), 1-4% stabilizing agent, and 8-15% lipid (which is a fat component) (Claim 25), which lie within the claimed ranges. Gilmore additionally teaches the addition of, e.g. 66% water (Claim 25) to a cream cheese composition, which lies within the claimed range.
Gilmore teaches that the stabilizing agent may be e.g. gums (Column 5, Lines 58-65), which are hydrocolloids. Gilmore teaches the addition of starches (Column 6, Lines 5-6) but does not address thermoreversible starches.
Smit-Boer teaches the use of amylomaltase treated starches to form thermoreversible gels (Page 5, Line 20). Smit-Boer teaches that these starches may be used in lieu of hydrocolloids or emulsifiers (Page 1, Lines 8-9). in the production of, e.g. spreadable cheese (Page 3, Line 25).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a thermoreversible starch, such as amylomaltase treated starch as taught by Smit-Boer, in the cheese spread of modified Gilmore to replace some amount of the hydrocolloid.
Note that Gilmore teaches that the stabilizing agent may be e.g. gums, which are hydrocolloids (Column 5, Lines 58-65) at 1-4% (Claim 25). The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Where the amount of stabilizing agent provided by Gilmore is 1-4% is sufficient to provide for both the stabilizer and thermoreversible starch of the claim, it would have been obvious to include an amount of stabilizer and thermoreversible starch falling within the claimed ranges (e.g. 1% stabilizer, such as a gum/hydrocolloid, and 1% thermoreversible starch, or 1% gum/hydrocolloid and 3% thermoreversible starch as in Claim 11)
Regarding Claim 6, Gilmore does not address whether the fat component has a solid fat component at specific temperatures as claimed.
However, Gilmore teaches the use of mixtures of coconut, palm, soybean, olive, and peanut oil (Column 4, Lines 26-33). Gilmore additionally teaches the use of the triglyceride form of these oils (Column 2, Lines 45-50), which are interpreted to have similar physical properties to the oils taught in the instant Specification at [0043]. Since Applicant teaches the use of these oils in the instant Specification at [0043], the product of Gilmore is interpreted to have the solid fat content at certain temperatures as claimed. Since both the applicant and prior art teach cream cheese products, as well as the use of the claimed oils and fats in the cream cheese product, it would have been obvious to have provided the fat having a solid fat content, as claimed, in order to provide a resultant cream cheese product with a texture characteristic of a standard cream cheese.
Regarding Claim 8, Gilmore teaches the use of soy protein (Column 6, Line 37).
Regarding Claim 9, Gilmore teaches the use of coconut oil (Column 4, Lines 26-33).
Regarding Claim 10, Gilmore teaches the use of guar gum (Column 5, Lines 60-61).
Regarding Claim 12, Gilmore teaches the use of 8-15% lipid (which is a fat component) (Claim 25), which touches the claimed range.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Smit-Boer, taken with evidentiary reference of Helmens (US 11622565 B2).
Regarding Claim 7, Gilmore in view of Smit-Boer teaches a thermoreversible starch as discussed above in regards to Claim 1.
Smit-Boer does not discuss the shear tolerance of the thermoreversible starch. However, Smit-Boer teaches that the thermoreversible starch, such as potato starch (Page 5, Line 24), is treated with amylomaltase (Page 2, Line 16). Given that the instant Specification teaches that enzymatically treated potato starches such as Etenia 457 (which is treated with amylomaltase, see evidentiary reference of Helmens, Column 12, Line 23) are shear tolerant, the thermoreversible, amylomaltase-treated starch of Smit-Boer is interpreted to meet the limitation of “shear tolerant”, as claimed.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Smit-Boer as applied to Claim 1, above, and further in view of Yu (“Correlation of Dynamic and Steady Flow Viscosities of Food Materials”, Applied Rheology, May/June 2001).
Regarding Claims 2 and 3, Gilmore teaches an imitation cream cheese as discussed above in regards to Claim 1, but does not discuss a complex viscosity of the product at a frequency of 10 rad/s and a temperature of 25 °C within the range of 300-1200 Pa·s at 25 °C, or 60-1000 Pa·s at 37 °C.
However, Yu teaches that for a conventional (dairy) cream cheese product, the complex viscosity at 10 rad/s and a temperature of 30 °C is approximately 1,000 Pa·s (Figure 5, SAOS data).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to include the claimed complex viscosity as one having ordinary skill would understand that the goal in formulating a plant-based cream cheese product is to closely mimic the properties of the conventional product, including the complex viscosity. Note that only a small difference in complex viscosity is expected between 25 °C and 30 °C.
Alternatively, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Regarding Claim 3, modified Gilmore does not address the complex viscosity at 37 °C of the cream cheese product. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to have the claimed elastic modulus, as one having ordinary skill would understand that the goal in formulating a plant-based cream cheese product is to closely mimic the properties of the conventional product, including the elastic modulus.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Smit-Boer as applied to Claim 1, above, and further in view of Bayarri (“Viscoelasticity and texture of spreadable cheeses with different fat contents at refrigeration and room temperatures”, DOI: 10.3168/jds.2012-5711, July 2012)
Regarding Claim 4 and 5, Gilmore teaches a cream cheese as discussed above in regards to Claim 1, but does not discuss the elastic modulus of the product.
Bayarri teaches that for a conventional (dairy) cream cheese product, the elastic modulus of cream cheese at 22 °C is approximately 8,000 Pa (Figure 3b). Note that the elastic modulus is reported in terms of stress rather than frequency. However, given that Applicant has claimed elastic modulus with no corresponding loss modulus, and absent teaching to the contrary, the Claim is interpreted to mean the elastic modulus of the cream cheese below the yield stress. Additionally, note that only a small difference in properties is expected between 22 °C and 25 °C as claimed, and since cream cheese would be expected to soften (or, have a lower elastic modulus) at higher temperatures, the product of Bayarri is expected to have elastic modulus properties at 25 °C which lie within the claimed range.
Bayarri does not address the elastic modulus at 37 °C. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to have the claimed elastic modulus, as one having ordinary skill would understand that the goal in formulating a plant-based cream cheese product is to closely mimic the properties of the conventional product, including the elastic modulus.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Smit-Boer as applied to Claim 1, above, and further in view of Helle (US 2016/0255860 A1, September 2016)
Regarding Claim 13, modified Gilmore teaches the plant-based cream cheese as discussed above in regards to Claim 1, above, but does not discuss the overrun.
Helle teaches that cream cheese [0021] may be aerated to 20-120% [0013]. Helle teaches that aerated dairy products are “well known all over the world” [0002].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the cream cheese of Gilmore to include an overrun amount as taught by Helle. One would have been motivated to make such a modification to create a product that mimics a product well known to consumers.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 4, 6-9, and 11-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-6 and 8-14 of copending application no. 17/837,632. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following features:
Claim #
Feature
Overlapping feature in 17/837,632
Claim # in 17/837,632
1
0.2-0.4% plant-based protein, .01-5 wt% hydrocolloid, 1-12% starch, 10-40% fat component
.02-8% protein , .01-5 wt% stabilizer, 1-12% starch-based thickening agent, 10-50 wt% fat
1, 12 (stabilizer = hydrocolloid)
2
Complex viscosity of 300-1200 Pa-S at 10 rad/S, 25 degC
Complex viscosity of 400-1200 Pa-S at 10 rad/S, 25 degC, Complex viscosity of 400-1150 Pa-S at 10 rad/S, 25 degC,
4, 5
4
Elastic modulus of 3,000-8,000 Pa at 25 degC
Elastic modulus of 4,000-8,000 Pa at 25 degC
6
6
Solid fat content of 50-90% at 10 degC and 15-45% at 20 degC
Solid fat content of 50-90% at 10 degC and 15-45% at 25 degC
1
7
Shear tolerant starch as thermoreversible starch
Shear tolerant starch as starch
8
8
Protein comprises faba bean, potato, chickpea, pea, or soy protein
Protein comprise faba bean (Claim 10) or faba, pea, or soy (Claim 9)
9, 10
9
Fat comprises coconut or sunflower oil
Fat comprises coconut or sunflower oil
11
11
Hydrocolloid is present at .01-1 wt%, starch is present at 3-10 wt%
Stabilizer is present at .01-1 wt%, starch is present at 3-10 wt%
13
12
Fat is present at 15-35 wt%
Fat is present at 15-35 wt%
14
Given the strong overlap between the copending claims and the present claims, it would have been obvious to, as well as within the skill level of, one of ordinary skill in the art to use composition which is both disclosed in the copending claims and encompassed within the scope of the present claims and thereby arrive at the present invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments filed 11/14/2025 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that Smit-Boer is directed to a spreadable gel (Page 5 of Remarks), lacking emulsifiers, that additionally does not include oils or fats. Applicant argues that the food system of Smit-Boer therefore differs from Gilmore, and one having ordinary skill would not be motivated to include the ingredients of Smit-Boer (namely, the thermoreversible starch) in the composition of Gilmore.
This argument is not convincing. First, while Smit-Boer does not explicitly teach the inclusion of oils and fats, Smit-Boer teaches foods that would be understood by one of ordinary skill to include oils and fats, e.g. cheese, cream, and butter spreads (Page 3, Line 25). Second, Smit-Boer teaches utilize thermoreversible starches to replace hydrocolloids and emulsifiers, as discussed above in regards to the Claims. The lack of hydrocolloids and emulsifiers in Smit-Boer therefore has no bearing on the motivation to replace the hydrocolloids/emulsifiers of Gilmore with the thermoreversible starches of Smit-Boer.
Applicant additionally notes that the application of Masucci in Claims 4 and 5 is unclear.
Examiner acknowledges that the rejection of Claims 4 and 5 does not rely upon Masucci, and thanks Applicant for noting the error. Note that the text of the rejection does not cite or rely upon Masucci, and the inclusion of Masucci in the rejection heading was therefore a typographical error.
Regarding double patenting rejections, Applicant argues that Application ‘632 recites 1-12% of a starch-based thickening agent, but does not specify a thermoreversible starch.
This argument is not convincing. Starch-based thickening agents encompass thermoreversible starches. Claim 1 of the pending application is therefore patentably indistinct from Claims 1-14 of the ‘632 application.
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.
/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791