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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 21, 2026 has been entered. Claims 20-39 are pending. Claims 1-4, 6-9 and 18-19 have been canceled. Claims 20-21 and 26 have been amended. Claims 29-39 are new.
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 20-28, 30-37 and 39 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 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]).
With respect to the wash cycle consisting essentially of the diluting and separating steps, the examiner notes that McCormick clearly teaches steps of diluting and separating. McCormick even teaches that they are performed sequentially, first diluting followed by separating ([0030]-[0031], [0039]-[0040]; See Figure 3). While the examiner recognizes that McCormick teaches additional embodiments that dilute before fermentation, thus resulting in a wash cycle including a fermenting step, these are merely alternative embodiments. McCormick teaches embodiments that include dilution and separation occurring sequentially on a fermented product and therefore the wash cycle of McCormick consists essentially of the dilution and separation steps as claimed.
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 to the fermented dairy material before performing a wash cycle.
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 before the wash cycle. McCormick is directed towards producing a reduced sugar dairy product and therefore it would have been obvious to add the fruit material to the fermented dairy material before the diluting and separating step in order to remove unwanted sugar so that the fruit material merely provides a flavor/texture 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.
Further, as stated in MPEP 2144.04 VI B: duplication is merely an obvious variant over the prior art absent new or unexpected results. Duplicating the wash cycle of McCormick (e.g. the dilution and separation steps) yield the predictably result of further removing sugar from the fermented dairy product which is expected and obvious.
Regarding claim 21, 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]).
Regarding claim 30, 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 to the fermented dairy material before performing a wash cycle.
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 before the wash cycle. McCormick is directed towards producing a reduced sugar dairy product and therefore it would have been obvious to add the fruit material to the fermented dairy material before the diluting and separating step in order to remove unwanted sugar so that the fruit material merely provides a flavor/texture 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.
Further, as stated in MPEP 2144.04 VI B: duplication is merely an obvious variant over the prior art absent new or unexpected results. Duplicating the wash cycle of McCormick (e.g. the dilution and separation steps) yield the predictably result of further removing sugar from the fermented dairy product which is expected and obvious.
McCormick further teaches that the washed reduced sugar fermented dairy product contains at least 10% less sugars than the initial fermented dairy material ([0041]).
With respect to the washed fruit-flavored fermented dairy material maintaining color and flavor, it would have been obvious to one of ordinary skill in the art to dilute and separated the product in a way so as to maintain flavor and color, where the separation step does not allow for any fruit material to be separated from the dairy material and only the liquid is separated. Additionally, depending on the type and size of the fruit material, one of ordinary skill in the art can easily perform a wash cycle so as to maintain the fruit color and flavor in the final product. This is merely routine experimentation that is obvious to one of ordinary skill in the art.
Regarding claim 31, McCormick teaches that the fruit-based material is a fruit juice or a fruit puree ([0214]).
Regarding claim 32, 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 33, 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 34, as stated above with respect to claim 33, 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 35, McCormick teaches that the separating is performed by centrifugation ([0056]).
Regarding claim 36, McCormick further teaches combining the washed fermented dairy material with a prep to create a reduced sugar fruit-flavored fairy product ([0206]).
Regarding claim 37, McCormick teaches that the fermented dairy material is an animal-derived yogurt ([0070]-[0072]).
Regarding claim 39, 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.
Claims 29 and 38 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 20 above, and further in view of Kaschmieder et al. (US 2020/0383344 A1; Dec. 10, 2020).
Regarding claims 29 and 38, 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 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 “wash cycles” in McCormick, wherein the wash cycles include both dilution and separation as such steps are critical steps in reducing the sugar content.
Applicant further argues that duplicating the steps of McCormick would not have led to multiple wash cycles as the dilution of McCormick is tied to a fermentation step, which is not considered part of the claimed wash cycle.
This is not found persuasive. The examiner notes that McCormick clearly teaches steps of diluting and separating. McCormick even teaches that they are performed sequentially, first diluting followed by separating ([0030]-[0031], [0039]-[0040]; See Figure 3). While the examiner recognizes that McCormick teaches additional embodiments that dilute before fermentation, thus resulting in a wash cycle including a fermenting step, these are merely alternative embodiments. McCormick teaches embodiments that include dilution and separation occurring sequentially on a fermented product and therefore the wash cycle of McCormick consists essentially of the dilution and separation steps as claimed. There would be no need to perform another fermentation step. The dilution and separation steps of McCormick are essential in reducing the sugar content on an already fermented dairy product. Therefore, as the dilution and separating steps of McCormick are performed after the fermentation step, wherein the dilution and separation aid in reducing sugar, it would have been obvious to repeat such steps, i.e. the dilution and separation, until a desired sugar content is reached.
The passages in McCormick applicant refers to on page 7 of the remarks are different embodiments to which the examiner is relying upon. McCormick teaches a “second embodiment” that ferments first, then dilutes and separates ([0246]). Therefore, the fermentation and dilution steps are not tied together and can be performed separately.
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.
With respect to the washed fruit-flavored fermented dairy material maintaining color and flavor, it would have been obvious to one of ordinary skill in the art to dilute and separated the product in a way so as to maintain flavor and color, where the separation step does not allow for any fruit material to be separated from the dairy material and only the liquid is separated. Additionally, depending on the type and size of the fruit material, one of ordinary skill in the art can easily perform a wash cycle so as to maintain the fruit color and flavor in the final product. For instance, if the fruit material is large pieces of fruit, diluting with water could not change the color or flavor and the separating step could be performed such that the fruit pieces are not separated from the dairy material, therefore providing a washed fruit-flavored fermented dairy material that maintains its color and flavor. This is merely routine experimentation that is well understood in the art.
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.
For the reasons stated above, a 103 rejection is maintained .
Conclusion
No claims are allowed.
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
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