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 after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 04/20/2026 has been entered.
Claim status
The examiner acknowledged the amendment made to the claims on 04/20/2026 and 03/25/2026. The claims filed 04/20/2026 are examined.
Claims 33-40, 42, 45-46, 48-49 and 55-56 are pending in the application. Claims 33, 40 and 42 are currently amended. Claims 41, 43-44, and 53-54 are newly cancelled. Claims 47 and 50-52 remain cancelled. Claims 34-39, 45-46, 48-49 and 55-56 are previously presented. Claims 33-40, 42, 45-46, 48-49 and 55-56 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 33-40, 42, 45-46, 48-49 and 55-56 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.
Claim 33 recites “a Grana type or Emmental type” cheese. The addition of the word "type" to an otherwise definite expression (e.g., Grana or Emmental cheese) extends the scope of the expression which renders it indefinite because it is unclear what "type" is intended to convey. Claims 55-56 are rejected for the same reason. Appropriate correction is required.
Claim 33 recites that the acidifying, thermotolerant Lactobacillus strain as added as a DVS culture in an amount of at least “5x1010 CFU/ 500 liter whey”. It is unclear what the “whey” is referring to. Is it the whey starter culture? If that is the case, does the unit of “liter” require that the whey stater culture is added to the milk as a liquid? Note that claim 40 recites that the whey starter culture is added to the milk as a DVS culture, which is solid form. Clarification is required.
Claims 34-40, 42, 45-46, 48-49 and 55-56 ultimately depend from claim 33 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 33, 36-37, 42, 45, 48-49 and 55-56 are rejected under 35 U.S.C. 103 as obvious over Rossetti, Grana Padano cheese whey starter: Microbial composition and strain distribution, International Journal of Food Microbiology, 2008, 127, pages 168-171 (cited in IDS, hereinafter referred to as Rossetti) in view of Hoier, Chapter 5, “The Production, Application and Action of Lactic Cheese Starter Cultures” in Technology of Cheesemaking, Wiley-Blackwell, 2010, pp. 166-192 (hereinafter referred to as Hoier).
Regarding claims 33, 36-37, 45, 48-49 and 55-56, Rossetti teaches a process for producing an Italian hard cheese such as Grana Padano and Parmigiano Reggiano cheese comprising: adding to milk a whey starter culture comprising Lactobacillus helveticus, Streptococcus thermophilus, Lactobacillus fermentum and an acidifying Lactobacillus strain (e.g., Lactobacillus delbrueckii subsp. lactis) to obtain a mixture, heating the mixture to a temperature of 50 to 55°C and maintaining the mixture at a temperature of 48-52 ºC (Abstract, page 168, para. under “Introduction”, left column and right column; Table 2). Lactobacillus delbrueckii subsp. lactis is known to be a thermophilic strain hence “thermotolerant .
The temperature of heating and maintaining the mixture as disclosed by Rossetti falls within or overlaps with the ranges recited in claims 33 and 48. 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). Further, the higher bound of 52 ºC as disclosed by Rossetti is very close to the lower bound of 53 ºC as recited in claim 49 that one skilled in the art would have expected them to have the same properties, given that both Rossetti and the claimed invention are directed to cooking the cheese curd so as to separate the whey. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Regarding the limitation about the acidifying Lactobacillus strain being Lactobacillus delbrueckii subsp. lactis strain DSM 32009, both Rossetti and the claimed invention disclose a method of preparing a cooked cheese comprising adding a starter culture comprising Lactobacillus delbrueckii subsp. lactis strain to cheese milk, wherein the mixture of the cheese milk and Lactobacillus delbrueckii subsp. lactis strain are heated and maintained at a temperature of 50-60 ºC to successfully make a cheese, demonstrating a reasonable probability that the Rossetti’s Lactobacillus delbrueckii subsp. lactis strain is either identical to or is sufficiently similar to the claimed Lactobacillus DSM 32009 - that whatever differences exist are not patentably significant. As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
The part of the whey starter culture as disclosed by Rossetti excluding Lactobacillus delbrueckii subsp. lactis strain reads on the whey starter culture as recited in claim 33.
Rossetti is silent regarding that the whey starter culture and/or the L. delbrueckii subsp. lactis strain is added as a DVS culture such as F-DVS and FD-DVS culture as recited in claims 33 and 40.
In the field of cheesemaking, Hoier teaches that historically, starter culture production was carried out in the dairy using liquid cultures either propagated by the dairy or supplied by local culture producers. In the early 1960s, commercial starter culture companies developed the production technology to freeze-dry liquid cultures and produce concentrated frozen starter cultures for the direct inoculation of 500–1000-L bulk starter tanks at the dairy. Today, commercial starter companies offer an extensive range of frozen and freeze-dried concentrated cultures for direct inoculation of the cheese vat, eliminating the need for use of bulk starters. These are known as direct vat set (DVS) or direct-to-vat inoculation (DVI) cultures (page 167, first para. under section 5.3; page 166, section 5.1).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rossetti by supplying the starter culture as frozen or freeze-dried DVS culture and adding the DVS culture directly to the milk for the reason that such a practice is known to be suitable in the art of cheesemaking, and has eliminated the need for use bulk starters.
Further, Rossetti teaches that the whey starter culture contains ~3 x108- 8x109 CFU/ml or 1.5 x 1014- 4 x1015 CFU/ 500 liter microbial (e.g., S. thermophilus, L. helveticus, L. delbrueckii subsp. lactis, and L. fermentum) counts, in which L. delbrueckii subsp. lactis accounts for 6-46% (Abstract; Table I; page 170, “Results and discussion”). As such, Rossetti teaches a CFU content of L. delbrueckii subsp. lactis by volume of the whey starter culture that meets the range as recited in claim 33.
Given that Rossetti in view of Hoier discloses an essentially same process of making Grana type cheese with a L. delbrueckii subsp. lactis strain that is either identical to or is sufficiently similar to the strain as recited in the claim, it logically follows that the process as disclosed by prior art would have achieved the same effect in acidification of milk by at least 0.4 pH units in a shorter time than a control process that does not include adding Lactobacillus delbrueckii subsp. lactis strain to the milk as disclosed in claim 33, hence an improved process where the acidification time is shortened. See In re Best as cited above.
Regarding claim 42, the limitation “the whey starter culture has been subjected to physical conditions comprising a temperature drop from around 48°C to around 39°C in 9 hours, a constant temperature of around 39°C for around 8 hours, and cooling and storing at around 16°C until it is added to the milk” recites how the whey starter is treated and step of which is not positively recited, and therefore is just a product-by-process description of the starter culture used in the method of claims 33 and 41. Given that Rossetti teaches that a whey starter culture comprising Lactobacillus delbrueckii subsp. lactis is successful in make a hard cheese, it does not appear the temperature treatment as disclosed in the claim has imparted a distinct feature to the strain from the prior art, therefore, prior art meets claim 42.
Claims 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Rossetti in view of Hoier as applied to claim 33 above, further in view of Parente, “Starter cultures: General Aspects” in Cheese Chemistry, Physics and Microbiology, Elsevier Academic Press, London (2004), pp. 123-147 (hereinafter referred to as Parente).
Regarding claims 34-35, Rossetti in view of Hoier teaches what has been recited above but is silent regarding adding one or more additional bacterial strains or cultures such as the genus Propionibacterium.
In the same field of endeavor, Parente teaches that in the cheesemaking, besides primary cultures (e.g., Lactococcus lactis, Leuconostoc sp., Lactobacillus helveticus, Streptococcus thermophilus, or Lactobacillus delbrueckii subsp. lactis), a secondary culture that is not functional in acid production can be used to produce organoleptic and biochemical changes in or on the cheese; examples are Propionibacterium freudenreichii, Brevibac-terium linens, Debaryomyces hansenii, etc., (page 123, left column, para. 1-2).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rossetti by including a secondary culture such as Propionibacterium freudenreichii in the starter culture for producing organoleptic and biochemical changes in or on the cheese.
Claims 38-39 are rejected under 35 U.S.C. 103 as being unpatentable over Rossetti in view of Hoier as applied to claim 33 above, further in view of Battistotti “Italian Cheese” in P.F. Fox, Cheese: Chemistry, Physics and Microbiology, 1999, volume 2, Aspen Publication, pages 221-243 (hereinafter referred to as Battistotti).
Regarding claims 38-39, Rossetti in view of Hoier teaches what has been recited above but is silent regarding adding one or more coagulants such as those listed in claim 39 to the milk.
In the same field of endeavor, Battistotti teaches that in making an Italian hard cheese such as Grana cheese, calf rennet can be used as a coagulant (page 228, Table III). It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rossetti by including the step of adding calf rennet to the milk for coagulating the milk protein and to form a cheese curd.
Claim 46 is rejected under 35 U.S.C. 103 as being unpatentable over Rossetti in view of Hoier as applied to claim 33, and further in view of Kringelum US Patent Application Publication No. 2003/0228680 (hereinafter referred to as Kringelum).
Regarding claim 46, Rossetti in view of Hoier teaches what has been recited above but is silent regarding that the acidifying Lactobacillus strain is added in a composition that further comprises one or more excipients such as polyhydroxy compounds, trehalose, and dimethyl sulfoxide (DMSO) as recited in claim 46.
Kringelum teaches adding an effective amount of at least a sugar alcohol compound that has metabolic activity stabilizing effect including glycerol, sucrose, trehalose, etc. to a liquid starter culture so as to help to retain the metabolic activity of the starter culture for extended time ([0015-0018]), and that the starter culture can be a lactic acid bacterial species in the dairy industry including cheese manufacturing ([0032; 0035]).
Both Rossetti and Kringelum are directed to lactic acid bacteria starter cultures for Cheesemaking. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rossetti by adding at least one sugar alcohol compound selected from the group consisting of glycerol, sucrose and trehalose to the whey starter so as to help to retain the metabolic activity of the starter culture.
Sucrose and glycerol read on “polyhydroxy compounds” recited in the claim, and where the claim requires the presence of a polyhydroxy compound or trehalose as the excipient, the glycerol, sucrose and trehalose as disclosed by Rossetti in view of Kringelum are considered to meet the claim.
Claims 33, 36-40, 42, 45 and 48-49 and 55-56 are rejected under 35 U.S.C. 103 as obvious over Battistotti “Italian Cheese” in P.F. Fox, Cheese: Chemistry, Physics and Microbiology, 1999, volume 2, Aspen Publication, pages 221-243 (hereinafter referred to as Battistotti) in view of Hoier, Chapter 5, “The Production, Application and Action of Lactic Cheese Starter Cultures” in Technology of Cheesemaking, Wiley-Blackwell, 2010, pp. 166-192 (hereinafter referred to as Hoier), and evidenced by Rossetti, Grana Padano cheese whey starter: Microbial composition and strain distribution, International Journal of Food Microbiology, 2008, 127, pages 168-171 (cited in IDS, hereinafter referred to as Rossetti).
Regarding claims 33, 36-40, 45, 48-49 and 55-56, Battistotti teaches a process for producing an Italian Grana-type cheese such as Parmigiano Reggiano cheese and Grana Padano cheese, the process comprising: adding to milk a natural whey starter culture comprising Lactobacillus helveticus, Lactobacillus fermentum and an acidifying Lactobacillus strain (e.g., Lactobacillus delbrueckii subsp. lactis) to obtain a mixture, heating the mixture to a cooking temperature of 54 to 55°C and maintaining the mixture at a temperature of 54-55 ºC for 10-12 min; additionally, Battistotti teaches adding calf rennet to the mixture (Table III and the para. under Table III on page 228).
The temperatures of heating and maintaining the mixture as disclosed by Battistotti fall within or overlaps with those recited in claims 33 and 48-49. 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).
Regarding the limitation about the acidifying Lactobacillus strain being Lactobacillus delbrueckii subsp. lactis strain DSM 32009, both Battistotti and the claimed invention disclose a method of preparing a Grana type cheese (e.g., Parmigiano Reggiano cheese and Grana Padano cheese) comprising adding a starter culture comprising Lactobacillus delbrueckii subsp. lactis strain to cheese milk, wherein the mixture of the cheese milk and Lactobacillus delbrueckii subsp. lactis strain are heated and maintained at a temperature of 45-65 ºC to successfully make a cheese, demonstrating a reasonable probability that the Battistotti’ s Lactobacillus delbrueckii subsp. lactis strain is either identical to or is sufficiently similar to the claimed Lactobacillus DSM 32009 - that whatever differences exist are not patentably significant. As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
The part of the whey starter culture as disclosed by Battistotti excluding Lactobacillus delbrueckii subsp. lactis strain reads on the whey starter culture as recited in claim 33.
Battistotti is silent regarding that the whey starter culture and/or the L. delbrueckii subsp. lactis strain is added as a DVS culture such as F-DVS and FD-DVS culture as recited in claims 33 and 40.
In the field of cheesemaking, Hoier teaches that historically, starter culture production was carried out in the dairy using liquid cultures either propagated by the dairy or supplied by local culture producers. In the early 1960s, commercial starter culture companies developed the production technology to freeze-dry liquid cultures and produce concentrated frozen starter cultures for the direct inoculation of 500–1000-L bulk starter tanks at the dairy. Today, commercial starter companies offer an extensive range of frozen and freeze-dried concentrated cultures for direct inoculation of the cheese vat, eliminating the need for use of bulk starters. These are known as direct vat set (DVS) or direct-to-vat inoculation (DVI) cultures (page 167, first para. under section 5.3; page 166, section 5.1).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Battistotti by supplying the starter culture as frozen or freeze-dried DVS culture and adding the DVS culture directly to the milk for the reason that such a practice is known to be suitable in the art of cheesemaking, and has eliminated the need for use bulk starters.
On the CFU content of L. delbrueckii subsp. lactis by the volume of the whey starter culture, Battistotti discloses that the CFU amount of thermophilic lactic bacteria including L. helveticus, L. delbrueckii subsp. lactis, and L. fermentum is about 0.8-1 x 109 CFU per ml of whey starter culture (the text under Table III). As evidenced by Rossetti, the whey starter culture from Grana cheesemaking contains ~3 x108- 8x109 CFU/ml or 1.5 x 1014- 4 x1015 CFU/ 500 liter microbial (e.g., S. thermophilus, L. helveticus, L. delbrueckii subsp. lactis, and L. fermentum) counts, in which L. delbrueckii subsp. lactis accounts for 6-46% (Abstract; Table I; page 170, “Results and discussion”). As such Battistotti teaches a CFU content of L. delbrueckii subsp. lactis by volume of the whey starter culture that meets the range as recited in claim 33.
Given that Battistotti in view of Hoier disclose an essentially same process of making cheese with a L. delbrueckii subsp. lactis strain that is either identical to or is sufficiently similar to the strain as recited in the claim, it logically follows that the process as disclosed by prior art would have achieved the same effect in acidification of milk by at least 0.4 pH units in a shorter time than a control process that does not include adding Lactobacillus delbrueckii subsp. lactis strain to the milk as disclosed in claim 33, hence an improved process where the acidification time is shortened. See In re Best as cited above.
Regarding claim 42, the limitation “the whey starter culture has been subjected to physical conditions comprising a temperature drop from around 48°C to around 39°C in 9 hours, a constant temperature of around 39°C for around 8 hours, and cooling and storing at around 16°C until it is added to the milk” recites how the whey starter is treated and step of which is not positively recited, and therefore is just a product-by-process description of the starter culture used in the method of claims 33 and 41. Given that Battistotti teaches a whey starter culture comprising Lactobacillus delbrueckii subsp. lactis is successful in make a hard cheese, and the whey starer culture is held for 24 hours at decreasing temperature from 50 °C to 35 °C (see the text under Table III, page 228), it does not appear the temperature treatment as disclosed in the claim has imparted a distinct feature to the strain from the prior art, therefore, prior art meets claim 42.
Claims 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Rossetti in view of Hoier as applied to claim 33 above, further in view of Parente, “Starter cultures: General Aspects” in Cheese Chemistry, Physics and Microbiology, Elsevier Academic Press, London (2004), pp. 123-147 (hereinafter referred to as Parente).
Regarding claims 34-35, Rossetti in view of Hoier teaches what has been recited above but is silent regarding adding one or more additional bacterial strains or cultures such as the genus Propionibacterium.
In the same field of endeavor, Parente teaches that in the cheesemaking, besides primary cultures (e.g., Lactococcus lactis, Leuconostoc sp., Lactobacillus helveticus, Streptococcus thermophilus, or Lactobacillus delbrueckii subsp. lactis), a secondary culture that is not functional in acid production can be used to produce organoleptic and biochemical changes in or on the cheese; examples are Propionibacterium freudenreichii, Brevibac-terium linens, Debaryomyces hansenii, etc., (page 123, left column, para. 1-2).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rossetti by including a secondary culture such as Propionibacterium freudenreichii in the starter culture for producing organoleptic and biochemical changes in or on the cheese.
Claim 46 is rejected under 35 U.S.C. 103 as being unpatentable over Battistotti as modified by Hoier as applied to claim 33 above, and further in view of Kringelum US Patent Application Publication No. 2003/0228680 (hereinafter referred to as Kringelum).
Regarding claim 46, Battistotti as modified by Hoier teaches what has been recited above but is silent regarding that the acidifying Lactobacillus strain is added in a composition that further comprises one or more excipients such as polyhydroxy compounds, trehalose, and dimethyl sulfoxide (DMSO) as recited in claim 46.
Kringelum teaches adding an effective amount of at least a sugar alcohol compound that has metabolic activity stabilizing effect including glycerol, sucrose, trehalose, etc. to a liquid starter culture so as to help to retain the metabolic activity of the starter culture for extended time ([0015-0018]), and that the starter culture can be a lactic acid bacterial species in the dairy industry including cheese manufacturing ([0032; 0035]).
Both Battistotti and Kringelum are directed to lactic acid bacteria starter cultures for cheesemaking. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Battistotti by adding at least one sugar alcohol compound selected from the group consisting of glycerol, sucrose and trehalose to the whey starter so as to help to retain the metabolic activity of the starter culture.
Sucrose and glycerol read on “polyhydroxy compounds” recited in the claim, and where the claim requires the presence of a polyhydroxy compound or trehalose as the excipient, the glycerol, sucrose and trehalose as disclosed by Battistotti in view of are considered to meet the claim.
Response to Arguments
Applicant's arguments filed 04/20/2026 have been fully considered but they are not persuasive.
Applicant argues on page 6 of the Remarks that Battistotti does not isolate the strains of the whey starter culture including Lactobacillus delbrueckii subsp. lactis strain or determines whether that strain is responsible for the desirable characteristics including shortening acidification time.
The arguments are presented previously to which the examiner has responded. See para. 39 and 41 of the office action issued 01/28/2026.
Applicant argues on para. that bridges pages 6 and 7 of the Remarks that the presently claimed method is based on the surprising finding that only one strain e.g., DSM 32009 was able to perform satisfactorily in the temperature profile used for the production of Grana Padano cheese.
The examiner notes that applicant is not consistent in reciting which strain of Lactobacillus delbrueckii subsp. lactis possesses the recited thermotolerant property thus being able to perform satisfactorily in making a cheese. For example, page 1, line 25-33 of the specification recites that only one isolate of the tested strain (e.g., DSM 32009) has the thermotolerant property, however, page 4 line 18-30 recites that a mutant or the variant of DSM 32009 also has the claimed thermotolerant property thus would reasonably perform equally satisfactorily. Applicant is invited to clarify the discrepancy.
Further, it is submitted that just depositing a lactic acid bacteria strain in DSMZ makes no guarantee that such a strain is novel. More importantly, where the office has made a reasonable determination that the prior art Lactobacillus delbrueckii subsp. lactis strains appear to be substantially similar to DSM 32009 thus would have the claimed property, the burden is properly shifted to the applicant to show that they are not (see page 4 of the PTAB decision issued 12/28/2022 for 15/552,398, which is the parent application of the instant application). Unfortunately, the examiner notes that applicant has not been able to show by evidence that DSM 32009 possesses different genetic properties or acidification properties from a Lactobacillus delbrueckii subsp. lactis strain that is used in the cheese factory.
Applicant argues on page 7 of the Remarks that a person of ordinary skill in the art knows that a F-DVS or FD- DVS is used to promote consistency in large-scale fermentation, such that the use of a F-DVS or FD-DVS culture indicates that the composition of the DVS culture is known. In contrast, Battistotti and Parente teach methods where the natural whey culture is not precisely known.
The arguments are considered but found unpersuasive. Using of F-DVS or FD- DVS in cheesemaking is known to one of ordinary skill in the art. See Hoier as cited in the instant office action. Further, it is unclear what applicant means by “Battistotti and Parente teach methods where the natural whey culture is not precisely known”. Does applicant mean that the composition of the natural whey culture as disclosed by prior art is not known? If that is the case, then the assertion is not accurate. At least the text under Table III of Battistotti and Table 1 of Rossetti have shown that the composition of the natural whey starter culture is identified.
Applicant argues on page 7 of the Remarks that a person of skill in the art would appreciate that the presently claimed method of making a Grana type or Emmental type cheese is a highly regulated method, specific to the DSM 32009 strain provided as a DVS culture at a particular amount and also using the particular, recited temperature profile of heating the mixture to a temperature in the range of 50 to 60 °C or maintaining the mixture at a temperature in the range of 50 to 60 °C and further which shortens the time to acidification. This method is neither taught nor suggested by Battistotti or Parente, either alone or in combination.
The argument is considered but found moot over the new ground of rejection over Rossetti (or Battistotti) in view of Hoier as set forth in the instant office action. See para. 13-21 and 36-44 of the instant office action for how the arts in combination meets each of the aforementioned features of the claimed method.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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