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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 20 May 2026 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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 1-17 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Atapattu USPGPub 20220287320 and Whaley USPN 6093439.
Regarding claims 1, 4-11, 14 and 17, Atapattu teaches an analogue cheese composition comprising:
0-10 wt% crude plant protein [0037]
0-35 wt% starch [0035]
A fa/oil component [0043]
Acidulant and pH adjusters [0060-0064]
Fat/oil may be present in the composition in an amount of 0-35 wt%. [0043] Oil may be present in the composition in an amount of about 0.5-28 wt% with solid fat making up the remainder of the fat/oil present. [0044] Suitable oils include canola, corn, sunflower, olive, peanut and soybean. [0042] Suitable fats include coconut oil, palm oil and palm kernel oil. The proportions of fat and oil disclosed by Atapattu would provide ratios of solid/liquid that overlap or encompass the proportions of solid fat at the temperatures recited in claims 1 and 14.
Atapattu is silent regarding the pH of the cheese analogue but does recognize the necessity of adjusting the pH to be more acidic (which determines the solubility of the protein components) [0062] and the tangy and zesty flavor imparted by acidity [0061]. Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have optimized the pH of the cheese analogue of Atapattu depending on the firmness, acidity, tang and zest desired in the final product. The pH recited in claims 1 and 14 is therefore an obvious variant of the prior art.
Atapattu is silent regarding the proportions of hydrophobic starch, water managing starch and gelling starch recited in claims 1, 6-10 and 14.
Whaley teaches a starch composition useful as a gelling agent viscosifier and/or stabilizer in food products that can be used to replace at least a portion of the gelatin, gum and/or non-fat milk solids present in food products such as cheese without losing the organoleptic and structural properties of the product. (Col. 1, line 66-Col. 2, line 9, Col. 7, lines 18-27)
The composition of Whaley comprises:
Hydrophobic starch: 0-80 wt% stabilizing starch comprising octenyl succinic anhydride modified starch (Col. 5, line 65-Col. 6, line 21)
Water managing starch: 20-80 wt% hydrolyzed high-amylose starch (Col. 4, lines 1-36)
Gelling starch: 0-80 wt% waxy partially hydrolyzed dent corn starch that can gel (Col. 5, lines 14-18, 24-27,Col. 6, lines 40-46)
The starch composition of Whaley comprises the components of the claimed starches in relative proportions that overlap or encompass the relative proportions recited in claims 1, 6-10 and 14. The starches disclosed by Whaley include those derived from cereals, tubers, roots, legumes and fruits. (Col. 19-23) Given that ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted)” (MPEP 2144.06), it would have been obvious to one of ordinary skill in the art at the time the application was filed to have used a combination of starch sources for each of the three types of starch components disclosed by Whaley. Therefore, the disclosure of Whaley renders obvious the recitation of at least two water-managing starches in claim 14.
Atapattu and Whaley are both directed towards analogue cheese compositions comprising starch. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the starch composition of Whaley for the starch component in the cheese analogue of Atapattu to provide organoleptic and structural properties similar to cheese. The use of the starch composition of Whaley in a proportion of 0-35% of the composition of Atapattu would have yielded a cheese analogue having the starch components recited in proportions that overlap or encompass the proportions recited in claims 1, 6-10 and 14. The modification of Atapattu with Whaley would have produced a plant based cheese having proportions of protein that encompass the proportions recited in claims 1, 4, 5, 14 and 17 and proportions of fat that encompass the proportion recited in claim 11. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) Therefore, the modification of Atapattu with Whaley renders obvious the invention of claims 1, 4-11, 14 and 17.
Regarding claims 2, 3, 15 and 16, Atapattu discloses chickpea, fava, soy and pea protein. [0036]
Regarding claims 12 and 20, Atapattu teaches 0-5 wt% hydrocolloid additive such as guar gum, locust bean gum, konjac mannan, agar, alginates and carrageenan. [0074,0075]
Regarding claims 13 and 19, the cheese analogue of Atapattu may be shreds, slices or blocks. [0078]
Regarding claim 21, as discussed above with regard to claim 1, Atapattu modified with Whaley renders obvious the cheese composition recited in claim 21. While Atapattu does not explicitly disclose the properties of elastic modulus at specific temperatures as recited in claim 21, this limitation merely reflects the melting property of the claimed cheese. In other words, the claimed cheese is hard near the freezing point of water (i.e. 5°C) and soft when heated to 37°C (98.6°F), the temperature of the human body or a very hot summer day.
Atapattu teaches “An acidulant (acidic agent) can be incorporated to adjust the pH of the finished cheese to a desired level. In combination with emulsifying salts, the acidulants in the dry blend will help maintain the pH at the desired level. The titratable acidity and pH of the cheese can be controlled to help regulate the melt down characteristics of the finished cheese. Various acids can be employed at the end of the cooking process; examples of suitable acids include, but are not limited to, acetic acid, citric acid, fumaric acid, lactic acid, malic acid, phosphoric acid, tartaric acid adipic acid, hydrochloric acid, glucano delta lactone, lactobionic acid or Genlac C, the latter being a blend of water, citric acid, lactic acid, and acetic acid. Acid is typically added to adjust the pH of the finished cheese to a pH from about 4.8-6.5 is reached.”[0089]
Atapattu is concerned with the meltability of cheese and identifies a means of controlling such (emulsifiers and pH control) It would have been obvious to one of ordinary skill in the art at the time the application was filed to have optimized the melt characteristics (and by extension the elastic modulus at various temperatures) of the cheese of Atapattu by controlling the pH and emulsifier content. As such, the properties of elastic modulus recited in claim 21 are merely an obvious variant of the prior art.
Response to Arguments
Applicant's arguments filed 10/30/25 have been fully considered but they are not persuasive.
Applicant asserts on page 6-7 of the remarks that because Atapattu encompasses many embodiments, the embodiments relied on in the rejection would not have been selected. It is unclear what legal standard applicant is applying in making this argument. “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). Therefore, applicant’s assertions are not found persuasive.
Applicant asserts again on pages 7-8 of the remarks that the starch composition of Whaley is disclosed for dairy products and is therefore not relevant to plant based compositions. Dairy products and plant-based cheese analogues rely on the precipitation of proteins to form cheese and cheese-like compositions. As such, the composition of Whaley is clearly relevant to the disclosure of Atapattu. Applicant has failed to provide any argument or evidence to dispute the position in the previous action that Atapattu and Whaley are analogous because they are directed to precipitation of proteins to form cheese and cheese-like compositions and instead identifies several examples in Whaley that do not rebut the position taken by the examiner, therefore, these assertions are not found persuasive.
Applicant asserts on page 9 of the remarks that no articulated reason has been presented to demonstrate one of ordinary skill in the art would have been motivated to modify Atapattu with Whaley. This assertion fails to rebut the explicit motivation provided in the rejection, namely, to provide organoleptic and structural properties similar to cheese and is therefore not persuasive.
Applicant asserts on page 9 of the remarks that there would have been no reasonable expectation of success in modifying Atapattu with Whaley. It is unclear what basis applicant rests this proposition on given that the rejection relies on using the starch of Whaley as the starch component in Atapattu. The ingredients relied upon were well known in the art and would be clearly expected to provide the same hydrocolloid function in the composition of Atapattu that they provide in Whaley. Regarding the additional properties identified by applicant on page 9, it is unclear what legal standard applicant is applying in asserting that a reasonable expectation of success requires the prediction of every property observed by applicant.
Applicant asserts on page 10 of the remarks that the “functional behavior of starches in dairy versus plant protein and starch based systems is highly formulation dependent” but provides no evidence to support this assertion or identification of failures present in the formulation identified in the rejection. As such, applicant’s assertions are not found persuasive.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
The instantly pending claims merely reflect the addition or elimination of common ingredients with no new, unexpected and useful function not provided by the prior art.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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