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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 17, 2026 has been entered. Claims 1-19 are pending. Claims 1, 7-8 and 14-16 have been amended.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 8 recite the limitation "the starting milk substrate" in the last line. There is insufficient antecedent basis for this limitation in the claim as there is no previous recitation of a milk substrate.
Claims 2-7 and 9-13 are included as they depend from rejected claims 1 and 8.
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 claims 1 and 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 claims 2 and 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 claims 3 and 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 claims 4 and 11, Aird teaches that the acidified milk is skim milk ([0123]-[0124]).
Regarding claims 5-6 and 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 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 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 Arguments
Applicant’s amendment has overcome the 112(a) 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 argues that the claims, as amended, add the claimed streams to a vat, while Aird teaches combining four steams in a mechanical shearing device. Applicant states that end product of Aird is a gelled-cheese-like product and not a natural cheese product.
This is not found persuasive as the different milk streams in Aird are combined ina device and further processed into a final end natural cheese product. The examiner is not relying upon Aird to teach that the end gelled product is then used to make a natural cheese product. Applicant is claiming an intermediate step in making cheese, whereas Aird discloses the intermediate step of combining the different streams and also the finals steps for making the end cheese product from the combination of the different milk streams.
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.
Applicant further argues that Aird does not teach all the required streams together in combination and that the specific individual streams are important for the final cheese product.
This is not found persuasive as Aird teaches 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 examples in Aird teach that raw milk is obtained, wherein it is separated into making concentrated acidified skim milk and homogenized cream, the examples fail 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.)”
Applicant further argues on pages 6-7 that Aird teaches away from the instant invention as the components of the final product are all added to and present in the emulsifying mixer, wherein the instant invention accumulates the milk from the defined streams and proceeds with a whey removal steps.
This is not found persuasive as applicant is again arguing features which are not claimed, such as the process of making the cheese after accumulating the different streams. The claims do not require any steps after accumulating the different streams. Aird renders obvious accumulating the claimed streams and therefore any steps after the accumulation is not relevant.
Regarding applicant’s arguments with respect to the Clayton Declaration, stating that the different streams are specifically selected to make a cheese with specific textural characteristics, the examiner notes that Aird teaches providing different streams and combining 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.
With respect to the four ingredients in Aird (A, B, C and C) in the examples, as stated above in the rejection, the examiner notes that the specific examples do not disclose all the claimed streams. However, the broader disclosure in 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 2123: “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)).
A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989).
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
With respect to applicant’s arguments on pages 8-9 regarding the addition of homogenized cream and raw milk, 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. 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]) and therefore it would have been obvious to one of ordinary skill in the art to 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.
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.
Again, applicant points to the Clayton Declaration to show that the specific streams result in a clean label cheese product, however, as stated above, 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.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791