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 .
The Amendment filed Jan. 8, 2026 has been entered. Claims 1-4, 6-9, and 18-28 are pending. Claims 1, 9 and 20 have been amended. Claim 5 has been canceled.
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 1-4, 7-9, and 18-28 are rejected under 35 U.S.C. 103 as being unpatentable over McCormick et al (US 2020/0120947 A1; April 23, 2020) in view of Anastasiadis et al. (US 2016/0150800 A1; June 2, 2016).
Regarding claim 1, McCormick teaches a method of making a reduced carbohydrate (e.g. sugar) dairy product comprising:
Providing a fermented dairy material having sugars (e.g. yogurt),
Adding a volume of a dilution liquid to the fermented dairy material to form a slurry, and
Separating the slurry into a first washed fermented dairy material having reduced sugar and a first filtrate (Figure 3, [0036]-[[043]).
McCormick further teaches adding a fruit-based material in order to provide flavor ([0207]). McCormick teaches that the fruit-based material is added after the separating step, while the instant claims require the addition of the fruit-based material along with the addition of the dilution liquid before the separating step.
However, as the fruit-based material is added solely to provide flavor to the composition, it would have been obvious to add the fruit-based material to the fermented dairy material at any point in the processing method, including with the dilution liquid before the separating step. McCormick is directed towards producing a reduced sugar dairy product and therefore it would have been obvious to add the fruit material before the separating step in order to remove unwanted sugar such that the fruit material merely provides a flavor with no added sugar.
As stated in MPEP 2144.04: 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 new or unexpected results, changing the order of adding the fruit-based material in McCormick is merely an obvious variant especially as McCormick is directed towards providing a reduced sugar dairy product having a fruit flavor.
As stated above, McCormick teaches adding a volume of dilution liquid to the fermented dairy material to form a slurry and separating the slurry into a reduced sugar fermented dairy material and a filtrate.
McCormick, however, fails to teach performing a second wash by adding a second dilution liquid to the first washed fermented dairy material to form a second slurry and separating the second slurry into a second washed fermented dairy material and second filtrate.
Anastasiadis teaches a method for the production of multi-strained yogurt in order to obtain a final strained yogurt having desired physiochemical features, such as protein, fat, total solids. Anastasiadis teaches that the dairy material goes through multiple separation stages, from 2 to 8, until desired properties are reached (Abstract, [0028]-[0039]).
As Anastasiadis teaches that it is well known in the art to perform multiple separation stages, such as 8 separation stages, on a dairy product in order to achieve desired physiochemical features, it would have been obvious to one of ordinary skill in the art to perform multiple stages of the diluting and separating in McCormick in order to achieve desired results. Adding more dilution and separation stages in McCormick would yield the predictable result of further reducing the sugar in the fermented dairy product and would have been obvious depending on the desired physiochemical features as taught by Anastasiadis.
Regarding claim 2, McCormick teaches that the fermented dairy material is an animal-derived yogurt ([0070]-[0072]).
Regarding claim 3, McCormick teaches that the fruit-based material is a fruit juice or a fruit puree ([0214]).
Regarding claim 4, McCormick teaches diluting the fermented dairy material using volume of dilution liquid that is 25% of the volume of the fermented dairy material (e.g. 4 volumes fermented dairy material to 1 volume water, [0039]).
Regarding claim 7, McCormick teaches that the separating is performed by centrifugation ([0056]).
Regarding claim 8, McCormick teaches that the separating is performed by centrifugation or ultrafiltration (e.g. one or more filtration membranes, [0056]).
Regarding claim 9, as stated above with respect to claim 1, McCormick in view of Anastasiadis render obvious multiple dilution and separation steps.
McCormick further teaches that the reduced sugar dairy product contains at least 20% less sugars than the initial fermented dairy material ([0041]).
The examiner notes, that the additional dilution and separation steps would further reduce the amount of sugar after each separation step.
Regarding claim 18, as stated above with respect to claim 1, it would have been obvious to add the fruit-based material at any point in the method, including adding it to the dilution liquid as it would not change the final product, which is a fermented dairy product having a fruit flavor.
Regarding claim 19, McCormick further teaches that the reduced sugar dairy product contains at least 10% less sugars than the initial fermented dairy material ([0041]).
Regarding claim 20, McCormick teaches a method of making a reduced carbohydrate (e.g. sugar) dairy product comprising:
Providing a fermented dairy material having sugars (e.g. yogurt),
Performing a wash cycle by adding a volume of a dilution liquid to the fermented dairy material to form a slurry, and
Separating the slurry into a first washed fermented dairy material having reduced sugar and a first filtrate (Figure 3, [0036]-[[043]).
McCormick further teaches adding a fruit-based material in order to provide flavor ([0207]). McCormick teaches that the fruit-based material is added after the separating step, while the instant claims require the addition of the fruit-based material along with the addition of the dilution liquid before the separating step.
However, as the fruit-based material is added solely to provide flavor to the composition, it would have been obvious to add the fruit-based material to the fermented dairy material at any point in the processing method, including with the dilution liquid before the separating step. McCormick is directed towards producing a reduced sugar dairy product and therefore it would have been obvious to add the fruit material before the separating step in order to remove unwanted sugar such that the fruit material merely provides a flavor with no added sugar.
As stated in MPEP 2144.04: 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 new or unexpected results, changing the order of adding the fruit-based material in McCormick is merely an obvious variant especially as McCormick is directed towards providing a reduced sugar dairy product having a fruit flavor.
With respect to repeating the wash cycle one or more additional times, Anastasiadis teaches a method for the production of multi-strained yogurt in order to obtain a final strained yogurt having desired physiochemical features, such as protein, fat, total solids. Anastasiadis teaches that the dairy material goes through multiple separation stages, from 2 to 8, until desired properties are reached (Abstract, [0028]-[0039]).
As Anastasiadis teaches that it is well known in the art to perform multiple separation stages, such as 8 separation stages, on a dairy product in order to achieve desired physiochemical features, it would have been obvious to one of ordinary skill in the art to perform multiple wash cycles in McCormick in order to achieve desired results. Adding more wash cycles in McCormick would yield the predictable result of further reducing the sugar in the fermented dairy product and would have been obvious depending on the desired physiochemical features as taught by Anastasiadis.
Regarding claim 21, McCormick teaches that the fermented dairy material is an animal-derived yogurt ([0070]-[0072]).
McCormick teaches that the fruit-based material is a fruit juice or a fruit puree ([0214]).
Regarding claim 22, McCormick teaches that the fruit-based material can be 5-40% of the volume of the fermented dairy product ([0209]), thus falling within the claimed range of 5-50%.
Regarding claim 23, McCormick further teaches that the washed reduced sugar fermented dairy product contains at least 10% less sugars than the initial fermented dairy material ([0041]).
Regarding claim 24, McCormick teaches that the separation step removes acid from the washed fermented dairy product (See Figure 3) and therefore would necessarily contain less acid that the original fermented dairy material. With respect to the amount of organic acid reduced, it would have been obvious to one of ordinary skill in the art to wash the fermented dairy product until a desired amount of organic acid has been removed.
McCormick further teaches that the washed reduced sugar fermented dairy product contains at least 10% less carbohydrates than the initial fermented dairy material ([0041]).
Regarding claim 25, as stated above with respect to claim 24, McCormick teaches that the separation step removes acid from the washed fermented dairy product (See Figure 3) and therefore would necessarily contain less acid that the original fermented dairy material. With respect to the amount of organic acid being 1% by weight or less, it would have been obvious to one of ordinary skill in the art to wash the fermented dairy product until a desired amount of organic acid has been removed.
McCormick further teaches that the washed fermented dairy material has a weight ratio of protein to carbohydrates of at least 1.1:1 (See Examples; [0410] ratio is 5.9).
Regarding claim 26, McCormick teaches that the separating is performed by centrifugation ([0056]).
Regarding claim 27, McCormick further teaches combining the washed fermented dairy material with a prep to create a reduced sugar fruit-flavored fairy product ([0206]).
Regarding claim 28, McCormick teaches that the fermented dairy material is an animal-derived yogurt ([0070]-[0072]).
Claims 6 are rejected under 35 U.S.C. 103 as being unpatentable over McCormick et al (US 2020/0120947 A1; April 23, 2020) and Anastasiadis et al. (US 2016/0150800 A1; June 2, 2016) as applied to claim 1 above, and further in view of Kaschmieder et al. (US 2020/0383344 A1; Dec. 10, 2020).
Regarding claim 6, McCormick teaches the process as described above, wherein the separating step produces a first filtrate.
McCormick fails to teach that at least part of the first filtrate is recycled into part or all of the volume of dilution liquid.
Kaschmieder discloses a process for concentrating a fermented dairy product. Kaschmieder further teaches that the whey portion, or filtrate, is returned, or recycled, to part of the inlet before the separator (Abstract; [0006]-[0007]). Kaschmieder teaches that the recycling enables easier flow in the separator and decreases fouling inside the separator ([0007]).
It would have been obvious one of ordinary skill in the art to have the filtrate of McCormick be recycled to a beginning separation phase (e.g. part of a second dilution liquid) in order to enable easier flow of the fermented dairy product through the separation phase as taught by Kaschmieder.
Response to Arguments
Applicant’s amendments have overcome the 112 rejection and 103 rejection over McCormick alone from the previous Office Action and therefore they have been withdrawn.
Applicant arguments with respect to the 103 rejection over McCormick in view of Anastasiadis have been fully considered but were not found persuasive.
Applicant argues that it would not have been obvious to perform multiple wash cycles based on the teachings of McCormick and Anastasiadis. Applicant states that Anastasiadis does not dilute the yogurt prior to staining and therefore would be no relationship between the dilution and straining process of McCormick and the multi-step straining process of Anastasiadis.
This is not found persuasive as McCormick clearly teaches a dilution and separation method. Anastasiadis is being relied upon to show that it is well known in the art to process a yogurt composition using multiple filtering stages to result in a final product having desired properties. As McCormick already teaches a dilution method, and as Anastasiadis teaches that it is well known in the art to perform multiple separation stages, such as 8 separation stages, on a dairy product in order to achieve desired physiochemical features, it would have been obvious to one of ordinary skill in the art to perform multiple stages of the diluting and separating process in McCormick in order to achieve desired results. Adding more dilution and separation stages in McCormick would yield the predictable result of further reducing the sugar in the fermented dairy product and would have been obvious depending on the desired physiochemical features as taught by Anastasiadis.
While the examiner recognizes that Anastasiadis fails to teach diluting the yogurt, the examiner is not relying upon Anastasiadis for such teaching as it is well known in the art as taught by McCormick. Anastasiadis is being relied upon to show the benefit of multiple processing stages for achieving a final product having desired properties. Therefore, it would have been obvious to performed multiple processing stages in McCormick, wherein the processing stages include both dilution and separation.
Applicant further argues that it would not have been obvious to add the fruit-based material to the diary material prior to dilution and straining as it would result in expectedly lead to a reduction in the color and/or flavor.
This is not found persuasive as adding the fruit material prior to dilution and separation would predictably provide a dairy product with fruit added, which is the same if added at any point in the process. The claims do not require that the fruit material maintains its color and flavor and therefore this argument is not found persuasive.
Applicant’s arguments with respect to the 103 rejection over McCormick in view of Kaschmieder are not found persuasive for the same reasons as stated above.
Applicant’s arguments with respect to the Double Patenting rejection were found persuasive and therefore the rejection has been withdrawn.
For the reasons stated above, a 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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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791