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 .
Applicant's amendment filed on July 30, 2026 has been entered. Claims 1-19 are pending. Claims 1, 8 and 14 have been amended.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1-7 recite producing a traditional cheese using the contents of the five streams as a starting milk substrate followed by the steps of culturing, coagulating, separating and maturing. The instant specification does not appear to describe the steps of culturing, coagulating, separating and maturing. Therefore, these limitations are new matter.
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.
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 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over Aird et al. (EP 1385387 B1; April 8, 2002) in view of Barbano et al. (US Patent No. 8,628,810 B2; Jan. 14, 2014).
Regarding claim 1, Aird teaches a method of making natural cheese ([0051]), the method comprising obtaining raw milk ([0123]), obtaining concentrated acidified milk ([0124]), obtaining homogenized cream ([0072], [0123]-[125]), obtaining fresh cream ([0126]), obtaining water ([0124]), and adding all the products together to form a natural cheese product ([0128]-[0133], See additional Examples).
While the examiner recognizes that Aird fails to specifically teach that the cream is a homogenized cream, Aird teaches the use of a homogenizer to modify the milk streams and therefore renders obvious homogenized milk streams as stated above. Again, Aird teaches that the milk is modified depending on the desired characteristics of the final product.
While the examples in Aird teach that raw milk is obtained, wherein it is separated into making concentrated acidified skim milk and homogenized cream, Aird fails to specifically teach that raw milk is directly added with the other ingredients to make the cheese product in the examples provided. However, Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof ([0095]-[0096]). Therefore, it would have been obvious to further add raw whole milk during the combining step along with the concentrated acidified skim milk, cream, homogenized cream, and water depending on the desired taste, texture and nutrition of the final cheese product. Aird clearly teaches that more than one milk product, therefore the cream and raw milk, can be added as the second milk-based composition and therefore it would have been obvious to do so for the reasons stated above.
As stated in MPEP 2144.07: The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Further, as stated in MPEP 2144.06 ““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) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to the order of processing steps, Aird fails to specifically teach the order of creating the different ingredient streams, however, Aird teaches that all the ingredients are combined together to result in a natural cheese product, which is the same as the instant invention, and therefore, absent a showing otherwise, the order of creating the different ingredient streams is merely an obvious variant over the prior art.
As stated in MPEP 2144.04 IV C: Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Therefore, absent a showing that the order of creating the different streams results in a new of unexpected product, any order of performing the process steps in Aird is obvious as the streams are all combined together at the end of the process to result in a final product, which is the same as the instant invention.
With respect to the providing a vat and adding all the streams to the vat such that the contents of the streams in the vat is used as a starting milk substrate, Aird teaches that the combining of the different milk products, or streams, is carried out in a device capable of further processing the combined streams, or starting milk substrate, into a natural cheese product, wherein the device is any suitable apparatus known in the art to do such ([0086]). Therefore, it would have been obvious to one of ordinary skill in the art to use any suitable device for combining streams for use as a starting milk substrate.
Barbano further teaches a process of making natural cheese, wherein the starting milk product is added to a vat (col 6 line 10; col 7 lines 5-15), which is then processed into the natural cheese product.
As Barbano teaches that a vat is a known device in the art for holding starting milk products for making natural cheese, it would have been obvious to one of ordinary skill in the art to have the combining device in Aird be a vat. Doing so would provide the process of Aird with a known and suitable device for accumulating milk streams to provide a starting milk substrate in the vat.
With respect to the limitation “making traditional natural cheese using the contents of the five streams in the var as a starting milk substrate and then followed by the steps of culturing, coagulating, separating, and maturing”, as stated above, Aird teaches making a natural cheese, but fails to further teach the steps of culturing, coagulating, separating, and maturing.
Barbano discloses a method of making a natural cheese, wherein the method includes adding a starter culture to cheese milk and further includes the steps of culturing, coagulating, separating, and maturing (col 3 lines 35-60;col 5 line 35 – col 8 lines 5). Barbano teaches that starter cultures ripen and begin the cheese making process by helping sour the milk and convert lactose into lactic acid, wherein the steps of culturing, coagulating, separating, and maturing are required to make the final cheese product. Barbano further teaches that the starter cultures and the step of culturing have a beneficial effect on the eventual quality, taste and consistency of the cheese, wherein the amount of starter culture used forms a desirable cheese product (col 5 lines 45-55).
As Barbano teaches that the steps of culturing, coagulating, separating, and maturing are well known in the art of making natural cheese and are used depending on the type of cheese product to be made, wherein culturing effects the eventual quality, taste and consistency of the cheese, it would have been obvious to one of ordinary skill in the art to further perform the steps of culturing, coagulating, separating, and maturing in the process of Aird depending on the type of desired cheese product to be made. As Barbano teaches that culturing effect the quality, taste, and consistency of the cheese, performing the steps of culturing, coagulating, separating, and maturing to the accumulated cheese milk of Aird would further allow a desired cheese product to be made having desirable quality, taste and consistency.
Regarding claim 2, Aird teaches that the acidified milk has a pH of 5.9 ([0124]), thus falling within the claimed range of 5.5-6.5.
Regarding claim 3, as stated above, Aird teaches obtaining concentrated acidified milk. Aird teaches that the skim milk is concentrated by continuous ultrafiltration until a desired solids content, protein content, and/or calcium removal is achieved ([0081], [0124]).
While Aird fails to specifically teach that the milk is concentrated 3-5 fold, Aird teaches the process of concentrating and how one of ordinary skill would achieve a desired concentration. Therefore, it would have been obvious to one of ordinary skill in the art to perform continuous ultrafiltration on the acidified skim milk until a desired solids content, protein content, and/or calcium removal is achieved. One of ordinary skill would have been motivated to vary the processing conditions to result in a desired concentration depending on the nutritional profile of the final product.
Regarding claim 4, Aird teaches that the acidified milk is skim milk ([0123]-[0124]).
Regarding claims 5-6, Aird further teaches that the cream has a milk fat content of 35 to 80% ([0072], [0083], [0114], [0125]-[0126]), thus overlapping the claimed range of 20 to 50%. 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)
With respect to claim 6, and the milk fat content being lower than what is taught by Aird, Aird teaches that the milk fat content can be adjusted by separation and filtration processes. It would have been obvious to one of ordinary skill in the art to process the homogenized cream such that it has be desired milk fat content of 15-30%. It would have been obvious to one of ordinary skill in the art to process the homogenized cream of Aird to have a lower milk fat content if the fat content of the final product was desired to be lower in order to result in a lower fat natural cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claim 7, as stated above with respect to claim 1, Aird teaches that the different streams are combined in different amounts depending on the type of cheese to be made (See Examples). Aird teaches that the different types of cheeses, such as Colby cheese in Example 1, cheddar cheese in Example 2, and aerated semi-hard cheese in Example 5, all have the different types of ingredients, or “streams”, mixed in different amounts to achieve a desired texture depending on the type of cheese made.
Therefore, it would have been obvious to one of ordinary skill in the art to vary the amount of each stream added to make the cheese composition depending on the desired texture and taste of the final product. Aird clearly teaches that different amounts of fresh cream and concentrate acidified skim milk will result in different cheese type products, and therefore it is well within the ordinary skill in the art to determine the optimum amount of each ingredient, or stream.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Further, from In re Levin, 84 USPQ 232 p. 234:
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
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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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.
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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.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of the different streams in the claimed amounts as all continue to function predictably in making a natural cheese product, as expected.
Regarding claim 8, Aird teaches a method of making natural cheese ([0051]), the method comprising obtaining raw milk ([0123]), obtaining concentrated acidified milk ([0124]), obtaining homogenized cream ([0072], [0123]-[125]), obtaining fresh cream ([0126]), obtaining water ([0124]), and adding all the products together to form a natural cheese product ([0128]-[0133], See additional Examples).
While the examiner recognizes that Aird fails to specifically teach that the cream is a homogenized cream, Aird teaches the use of a homogenizer to modify the milk streams and therefore renders obvious homogenized milk streams as stated above. Again, Aird teaches that the milk is modified depending on the desired characteristics of the final product.
While the examples in Aird teach that raw milk is obtained, wherein it is separated into making concentrated acidified skim milk and homogenized cream, Aird fails to specifically teach that raw milk is directly added with the other ingredients to make the cheese product in the examples provided. However, Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof ([0095]-[0096]). Therefore, it would have been obvious to further add raw whole milk during the combining step along with the concentrated acidified skim milk, cream, homogenized cream, and water depending on the desired taste, texture and nutrition of the final cheese product. Aird clearly teaches that more than one milk product, therefore the cream and raw milk, can be added as the second milk-based composition and therefore it would have been obvious to do so for the reasons stated above.
As stated in MPEP 2144.07: The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Further, as stated in MPEP 2144.06 ““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) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to the order of processing steps, Aird fails to specifically teach the order of creating the different ingredient streams, however, Aird teaches that all the ingredients are combined together to result in a natural cheese product, which is the same as the instant invention, and therefore, absent a showing otherwise, the order of creating the different ingredient streams is merely an obvious variant over the prior art.
As stated in MPEP 2144.04 IV C: Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Therefore, absent a showing that the order of creating the different streams results in a new of unexpected product, any order of performing the process steps in Aird is obvious as the streams are all combined together at the end of the process to result in a final product, which is the same as the instant invention.
With respect to the providing a vat and adding all the streams to the vat such that the contents of the streams in the vat is used as a starting milk substrate, Aird teaches that the combining of the different milk products, or streams, is carried out in a device capable of further processing the combined streams, or starting milk substrate, into a natural cheese product, wherein the device is any suitable apparatus known in the art to do such ([0086]). Therefore, it would have been obvious to one of ordinary skill in the art to use any suitable device for combining streams for use as a starting milk substrate.
Barbano further teaches a process of making natural cheese, wherein the starting milk product is added to a vat (col 6 line 10; col 7 lines 5-15), which is then processed into the natural cheese product.
As Barbano teaches that a vat is a known device in the art for holding starting milk products for making natural cheese, it would have been obvious to one of ordinary skill in the art to have the combining device in Aird be a vat. Doing so would provide the process of Aird with a known and suitable device for accumulating milk streams to provide a starting milk substrate in the vat.
Regarding claim 9, Aird teaches that the acidified milk has a pH of 5.9 ([0124]), thus falling within the claimed range of 5.5-6.5.
Regarding claim 10, as stated above, Aird teaches obtaining concentrated acidified milk. Aird teaches that the skim milk is concentrated by continuous ultrafiltration until a desired solids content, protein content, and/or calcium removal is achieved ([0081], [0124]).
While Aird fails to specifically teach that the milk is concentrated 3-5 fold, Aird teaches the process of concentrating and how one of ordinary skill would achieve a desired concentration. Therefore, it would have been obvious to one of ordinary skill in the art to perform continuous ultrafiltration on the acidified skim milk until a desired solids content, protein content, and/or calcium removal is achieved. One of ordinary skill would have been motivated to vary the processing conditions to result in a desired concentration depending on the nutritional profile of the final product.
Regarding claim 11, Aird teaches that the acidified milk is skim milk ([0123]-[0124]).
Regarding claim 12-13, Aird further teaches that the cream has a milk fat content of 35 to 80% ([0072], [0083], [0114], [0125]-[0126]), thus overlapping the claimed range of 20 to 50%. 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)
With respect to claim 6, and the milk fat content being lower than what is taught by Aird, Aird teaches that the milk fat content can be adjusted by separation and filtration processes. It would have been obvious to one of ordinary skill in the art to process the homogenized cream such that it has be desired milk fat content of 15-30%. It would have been obvious to one of ordinary skill in the art to process the homogenized cream of Aird to have a lower milk fat content if the fat content of the final product was desired to be lower in order to result in a lower fat natural cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claims 14 and 17, Aird teaches a method of making natural cheese ([0051]) with specific texture and flavor attributes, the method comprising:
obtaining raw milk ([0123]),
obtaining concentrated acidified milk by adding an acidulant to skim milk to reduce the pH to 5.9 and concentrating the acidified milk ([0124]),
obtaining homogenized cream ([0072], [0123]-[125]),
obtaining fresh cream ([0126]),
obtaining water ([0124]), and
adding all the products together to form a natural cheese product ([0128]-[0133], See additional Examples).
As stated above, Aird teaches obtaining concentrated acidified milk. Aird teaches that the skim milk is concentrated by continuous ultrafiltration until a desired solids content, protein content, and/or calcium removal is achieved ([0081], [0124]).
While Aird fails to specifically teach that the milk is concentrated 3-5 fold, Aird teaches the process of concentrating and how one of ordinary skill would achieve a desired concentration. Therefore, it would have been obvious to one of ordinary skill in the art to perform continuous ultrafiltration on the acidified skim milk until a desired solids content, protein content, and/or calcium removal is achieved. One of ordinary skill would have been motivated to vary the processing conditions to result in a desired concentration depending on the nutritional profile of the final product.
Aird further teaches that the cream has a milk fat content of 35 to 80% ([0072], [0083], [0114], [0125]-[0126]), thus overlapping the claimed range of 35 to 45%. 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)
While the examiner recognizes that Aird fails to specifically teach that the cream is a homogenized cream, Aird teaches the use of a homogenizer to modify the milk streams and therefore renders obvious homogenized milk streams as stated above. Again, Aird teaches that the milk is modified depending on the desired characteristics of the final product.
With respect to the homogenized cream and the milk fat content being lower than what is taught by Aird, Aird teaches that the milk fat content can be adjusted by separation and filtration processes. It would have been obvious to one of ordinary skill in the art to process the homogenized cream such that it has be desired milk fat content of 20-25%. It would have been obvious to one of ordinary skill in the art to process the homogenized cream of Aird to have a lower milk fat content if the fat content of the final product was desired to be lower in order to result in a lower fat natural cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
While the examples in Aird teach that raw milk is obtained, wherein it is separated into making concentrated acidified skim milk and homogenized cream, Aird fails to specifically teach that raw milk is directly added with the other ingredients to make the cheese product in the examples provided. However, Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof ([0095]-[0096]). Therefore, it would have been obvious to further add raw whole milk during the combining step along with the concentrated acidified skim milk, cream, homogenized cream, and water depending on the desired taste, texture and nutrition of the final cheese product. Aird clearly teaches that more than one milk product, therefore the cream and raw milk, can be added as the second milk-based composition and therefore it would have been obvious to do so for the reasons stated above.
As stated in MPEP 2144.07: The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Further, as stated in MPEP 2144.06 ““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) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to the order of processing steps, Aird fails to specifically teach the order of creating the different ingredient streams, however, Aird teaches that all the ingredients are combined together to result in a natural cheese product, which is the same as the instant invention, and therefore, absent a showing otherwise, the order of creating the different ingredient streams is merely an obvious variant over the prior art.
As stated in MPEP 2144.04 IV C: Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Therefore, absent a showing that the order of creating the different streams results in a new of unexpected product, any order of performing the process steps in Aird is obvious as they streams are all combined together at the end of the process to result in a final product, which is the same as the instant invention.
With respect to the cheese being a natural cultured cheese, the examiner notes that Aird teaches accumulating the same streams as claimed to make a cheese. The instant method does not require any use of bacteria starter culture or fermentation step to produce the cultured cheese. Therefore, the limitation “from which to make natural cultured cheese” is merely intended use of the accumulated streams. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, the streams of Aird would be capable of making a cultured cheese product and would have been obvious to do so depending on the type of cheese product desired.
With respect to the providing a vat and adding all the streams to the vat such that the contents of the streams in the vat is used as a starting milk substrate, Aird teaches that the combining of the different milk products, or streams, is carried out in a device capable of further processing the combined streams, or starting milk substrate, into a natural cheese product, wherein the device is any suitable apparatus known in the art to do such ([0086]). Therefore, it would have been obvious to one of ordinary skill in the art to use any suitable device for combining streams for use as a starting milk substrate.
Barbano further teaches a process of making natural cheese, wherein the starting milk product is added to a vat (col 6 line 10; col 7 lines 5-15), which is then processed into the natural cheese product.
As Barbano teaches that a vat is a known device in the art for holding starting milk products for making natural cheese, it would have been obvious to one of ordinary skill in the art to have the combining device in Aird be a vat. Doing so would provide the process of Aird with a known and suitable device for accumulating milk streams to provide a starting milk substrate in the vat.
Regarding claims 15-16, as stated above, Aird teaches that the different streams are combined in different amounts depending on the type of cheese to be made (See Examples). Aird teaches that the different types of cheeses, such as Colby cheese in Example 1, cheddar cheese in Example 2, and aerated semi-hard cheese in Example 5, all have the different types of ingredients, or “streams”, mixed in different amounts to achieve a desired texture depending on the type of cheese made.
Therefore, it would have been obvious to one of ordinary skill in the art to vary the amount of each stream added to make the cheese composition depending on the desired texture and taste of the final product. Aird clearly teaches that different amounts of fresh cream and concentrate acidified skim milk will result in different cheese type products, and therefore it is well within the ordinary skill in the art to determine the optimum amount of each ingredient, or stream.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Further, from In re Levin, 84 USPQ 232 p. 234:
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
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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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.
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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.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of the different streams in the claimed amounts as all continue to function predictably in making a natural cheese product, as expected.
Regarding claim 18, Aird teaches in one example that the final natural cheese product can have a fat content of 23.3% fat ([0147]), thus falling within the claimed range of 20-30%.
Aird further teaches that the fat content can be adjusted to result in a desired final fat content, which is also dependent on the type of cheese being made as all the examples in Aird showing varying fat contents with each different type of cheese product. Therefore, it is well within the ordinary skill in the art to vary the amount of fat depending on the type of cheese product being made.
Regarding claim 19, Aird teaches in one example that the final natural cheese product can have a moisture content of 51.2 % (48.8% solids, [0223]), thus falling within the claimed range of 47-53%.
Aird further teaches that the moisture content can be adjusted by adding water or dehydrating to result in a desired final moisture content, which is also dependent on the type of cheese being made as all the examples in Aird showing varying moisture content with each different type of cheese product. Therefore, it is well within the ordinary skill in the art to vary the moisture depending on the type of cheese product being made.
Response to Declaration
The Declaration under 37 CFR 1.132 filed July 30, 2026 is insufficient to overcome the 103 rejection as set forth in the last Office action.
Applicant states on pages 3-4 that one of skill in the art would not consider the process of Aird to result in a natural cheese as Aird does not teach the steps of culturing, coagulating, separating, and maturing.
This is not found persuasive as the examiner recognizes that Aird fails to teach the steps of culturing, coagulating, separating, and maturing and relies upon Barbano to teach such steps. Barbano teaches that such steps are used depending on the specific type of cheese to be made. Aird clearly teaches making a “natural” cheese, and it further would have been obvious to perform the steps of culturing, coagulating, separating, and maturing on the product of Aird if a different type of natural cheese product was desired.
Applicant further states on pages 4-5 that the specific treatment of each stream, the blending ratios, and subsequent processing steps are what contributes to unique attributes, including texture, in the final cheese product.
This is not found persuasive as applicant has not provided any evidence to demonstrate that the specific treatment of each stream, the blending ratios, and subsequent processing steps are critical in producing a desired cheese product. The claims do not even recite any blending ratios or any specific attributes of the cheese to distinguish it over the prior art. As stated above in the rejection, Aird teaches that it is well known in the art to provide different streams and combine them to make a cheese, wherein the streams are selected depending on the desired characteristics of the final cheese product. Therefore, the inventive concept of combining multiple streams of milk is not new. The Declaration discusses the difference between uses multiple different streams versus one milk stream. However, the prior art, Aird teaches using multiple different streams. Applicant has not compared the closest prior art, Aird, to the instant invention to show that the process as taught by Aird would not render obvious the claimed method. Further, applicant has not claimed any specific blending ratios or unique attributes that would distinguish it over the prior art.
Applicant further states on page 5 that In re Kerkhoven does not render obvious the claimed method as a simple detergent system is much different than a complex natural cheese system.
This is not found persuasive as In re Kerkhoven is beling relied upon to show 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. Therefore, we are not comparing detergent vs cheese, but instead, the concept that two, or more, compositions useful for the same purpose can be combined. In the instant case, Aird teaches the use of multiple different milk type products to make a cheese, and therefore combining the multiple products to form a single product is prima facie obvious. Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof ([0095]-[0096]). Therefore, it would have been obvious to further add raw whole milk during the combining step along with the concentrated acidified skim milk, cream, homogenized cream, and water depending on the desired taste, texture and nutrition of the final cheese product.
Applicant states on page 6 that Aird does not teach the use of homogenized cream as an ingredient in the cheese, which when combined with the four other streams results in a natural cheese that exhibits melt functionality despite the expectation that melt should be reduced.
This is not found persuasive as Aird teaches the use of a homogenizer to modify the milk streams and therefore renders obvious homogenized milk streams as stated above. Again, Aird teaches that the milk is modified depending on the desired characteristics of the final product. While the examiner recognizes that Aird fails to specifically teach the addition of a homogenized cream, Aird suggests the use of a homogenization process and therefore it would have been obvious to use homogenized cream if desired. Aird already teaches the use of multiple different types of milk streams for making a natural cheese product, and therefore providing a homogenized cream stream is merely an obvious variant over the process of Aird, absent a showing otherwise. Applicant has not shown how homogenizing the cream before combining with the other four streams results in a difference over homogenizing the combined streams together and therefore this argument is not found convincing.
Finally, on page 7, applicant states that the treatment and timing of the claimed streams, the blending ratios, and order of processes both before and after fractionation all impact and alter functionality and therefore the claimed process is not obvious over the prior art.
This is not found persuasive as the claims only require creating streams. The claims do not disclose any treatment or timing of the streams or combining the streams. Further, the claims are silent with respect to any blending ratios. Therefore, applicant’s arguments are not commensurate in scope with the claims and this argument is not found persuasive.
The prior art clearly recognizes the use of multiple streams of milk. Is there a difference between the method of Aird, using 4 streams, versus the method of the instant invention, using 5 streams? Data supporting applicant’s arguments, comparing the closest prior art to the invention, showing that the specifically claimed streams results in a new or unexpected product over Aird would aid in advancing prosecution.
For the reasons stated above, the Declaration is not convincing to overcome the 103 rejection above.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection have been fully considered but were not found persuasive. Applicant reiterates the arguments made in the Declaration, which were not found persuasive as stated above, and repeated below.
Applicant ares that one of skill in the art would not consider the process of Aird to result in a natural cheese as Aird does not teach the steps of culturing, coagulating, separating, and maturing.
This is not found persuasive as the examiner recognizes that Aird fails to teach the steps of culturing, coagulating, separating, and maturing and relies upon Barbano to teach such steps. Barbano teaches that such steps are used depending on the specific type of cheese to be made. Aird clearly teaches making a “natural” cheese, and it further would have been obvious to perform the steps of culturing, coagulating, separating, and maturing on the product of Aird if a different type of natural cheese product was desired.
Applicant further argues that the specific treatment of each stream, the blending ratios, and subsequent processing steps are what contributes to unique attributes, including texture, in the final cheese product.
This is not found persuasive as applicant has not provided any evidence to demonstrate that the specific treatment of each stream, the blending ratios, and subsequent processing steps are critical in producing a desired cheese product. The claims do not even recite any blending ratios or any specific attributes of the cheese to distinguish it over the prior art. As stated above in the rejection, Aird teaches that it is well known in the art to provide different streams and combine them to make a cheese, wherein the streams are selected depending on the desired characteristics of the final cheese product. Therefore, the inventive concept of combining multiple streams of milk is not new. The Declaration discusses the difference between uses multiple different streams versus one milk stream. However, the prior art, Aird teaches using multiple different streams. Applicant has not compared the closest prior art, Aird, to the instant invention to show that the process as taught by Aird would not render obvious the claimed method. Further, applicant has not claimed any specific blending ratios or unique attributes that would distinguish it over the prior art.
Applicant further argues that In re Kerkhoven does not render obvious the claimed method as a simple detergent system is much different than a complex natural cheese system.
This is not found persuasive as In re Kerkhoven is beling relied upon to show 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. Therefore, we are not comparing detergent vs cheese, but instead, the concept that two, or more, compositions useful for the same purpose can be combined. In the instant case, Aird teaches the use of multiple different milk type products to make a cheese, and therefore combining the multiple products to form a single product is prima facie obvious. Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof ([0095]-[0096]). Therefore, it would have been obvious to further add raw whole milk during the combining step along with the concentrated acidified skim milk, cream, homogenized cream, and water depending on the desired taste, texture and nutrition of the final cheese product.
Applicant argues that Aird does not teach the use of homogenized cream as an ingredient in the cheese, which when combined with the four other streams results in a natural cheese that exhibits melt functionality despite the expectation that melt should be reduced.
This is not found persuasive as Aird teaches the use of a homogenizer to modify the milk streams and therefore renders obvious homogenized milk streams as stated above. Again, Aird teaches that the milk is modified depending on the desired characteristics of the final product. While the examiner recognizes that Aird fails to specifically teach the addition of a homogenized cream, Aird suggests the use of a homogenization process and therefore it would have been obvious to use homogenized cream if desired. Aird already teaches the use of multiple different types of milk streams for making a natural cheese product, and therefore providing a homogenized cream stream is merely an obvious variant over the process of Aird, absent a showing otherwise. Applicant has not shown how homogenizing the cream before combining with the other four streams results in a difference over homogenizing the combined streams together and therefore this argument is not found convincing.
Finally, applicant argues that the treatment and timing of the claimed streams, the blending ratios, and order of processes both before and after fractionation all impact and alter functionality and therefore the claimed process is not obvious over the prior art.
This is not found persuasive as the claims only require creating streams. The claims do not disclose any treatment or timing of the streams or combining the streams. Further, the claims are silent with respect to any blending ratios. Therefore, applicant’s arguments are not commensurate in scope with the claims and this argument is not found persuasive.
The prior art clearly recognizes the use of multiple streams of milk. Is there a difference between the method of Aird, using 4 streams, versus the method of the instant invention, using 5 streams? Data supporting applicant’s arguments, comparing the closest prior art to the invention, showing that the specifically claimed streams results in a new or unexpected product over Aird would aid in advancing prosecution.
For the reasons stated above, the 103 rejection is maintained.
Conclusion
No claims are allowed.
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 STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
