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 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 1-20 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, 17 and 18, 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, 17 and 18 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, 17 and 18.
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]
Response to Arguments
Applicant's arguments filed 10/30/25 have been fully considered but they are not persuasive.
Applicant asserts on page 6 of the remarks that Atapattu fails to teach the claimed proportions of solid fat. However, applicant’s remarks ignore the teaching identified in the rejection that oil may be present in the composition of Atapattu in an amount of about 0.5-28 wt% with solid fat making up the remainder of the fat/oil present. [0044] According to how one of ordinary skill in the art would understand the terms solid fat and oil, the lipid component of Atapattu has the properties recited in the claims.
Applicant asserts on page 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 on page 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 asserts on page 8 of the remarks there is no motivation to modify Atapattu, however, this assertion fails to address the motivation provided in the rejection and therefore fails to rebut the merits of the rejection. Applicant’s assertion that there is no suggestion Whaley would be suitable in plant based cheese is not persuasive for the reasons stated above. Furthermore, given that the goal of Atapattu is to produce a cheese analogue, a starch composition that was known to provide suitable organoleptic properties in cheese logically recommends itself. Applicant asserts on page 8 of the remarks there is no reasonable expectation of success for the proposed modification, but provides not reasoning or evidence to support this assertion. Therefore it is not found persuasive.
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 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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/Michele L Jacobson/Primary Examiner, Art Unit 1793