DETAILED ACTION
Amendments made October 10, 2025 have been entered.
Claims 1-3, 6-10, and 21-26 are pending.
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 .
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.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 1-12 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made October 10, 2025.
Claims 22, 24, and 26 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 22, 24, and 26 recite “wherein the butter comprises a butterfat content higher than 80% w/w”. It is unclear as to if “the butter” refers to the provided butter to which protein is mixed, or to the protein enriched butter as both are encompassed by the term “the butter”.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The previous prior art rejections have been withdrawn in light of applicant’s amendments made October 10, 2025 which require a specific amount of protein in the enriched butter composition in independent claims 1, 23, and 25.
Claims 1, 2, 10, and 22-26 are rejected under 35 U.S.C. 103 as being unpatentable over Mackereth et al (WO 2011/122967) as evidenced by USDairy (“Butter: Nutrition Facts and Benefits” pages 1-3 https://www.usdairy.com/dairy-nutrition/products/butter printed January 2026).
Regarding claims 1, 23, and 25, Mackereth et al (Mackereth) teaches a process of making high density compositions comprising: forming a cohesive mixture of one or more lipid components selected from the group including butter and one or more protein powders (abstract, Figure 1, and paragraphs 7, 22, 24, 25, 60-61, and claims 2 and 15), thus encompassing the process of making protein enriched butter by adding protein to a butter and mixing.
Regarding the butter as comprising about 1-4% protein as recited in claim 1, or 2-3.8% protein as recited in claim 23, or 3-3.8% protein as recited in claim 25, Mackereth teaches the lipid component to protein is in a ratio of about 10:90 to 45:55 (claim 23), wherein no other components are required in the product (all), and thus, the teachings of Mackereth encompasses a product comprising about 10-45% butter and 55-90% protein component. As evidenced by USDairy butter contains about 0.6% protein (0.12 grams per 14 grams, pages 1-2) and thus the butter component of Mackereth contributes about 0.27-0.6% protein to the final product. Mackereth teaches that the protein powder comprises about 5-99% protein (paragraph 17 and claim 8), and thus the protein component contributes about 2.75-89.1% protein to the final product. Therefore, the final product as taught by Mackereth would encompass a butter with about 3.02-89.7% protein which overlaps the claimed ranges. For example, a composition as taught by Mackereth includes one with 3.02% protein comprising 45% butter (contributing 0.27% protein in the final composition) and 55% protein component with 5% protein (contributing 2.75% protein to the final product).
It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 2, Mackereth teaches the protein is a plant or animal protein (paragraph 56 and claim 5).
Regarding claim 10, Mackereth teaches the protein component comprises water (paragraph 16), and thus encompasses adding one or more additives to the butter and/or protein enriched butter.
Regarding claims 22, 24, and 26, as discussed above, the claimed limitations are unclear. Regardless, as evidenced by USdairy butter, which was taught by Mackereth was known to contain about 85.7% fat, i.e. butterfat (page 1, 12 grams fat per 14 grams) which encompasses the claimed range.
Claims 3, 9, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Mackereth et al (WO 2011/122967) as evidenced by USDairy (“Butter: Nutrition Facts and Benefits” pages 1-3 https://www.usdairy.com/dairy-nutrition/products/butter printed January 2026), further in view of Byland (Dairy Processing Handbook, Chapter 12 Butter and dairy spreads pages 263-278 2003).
As discussed above, Mackereth teaches a process of making high density compositions comprising: forming a cohesive mixture of one or more lipid components selected from the group including butter and one or more protein powders (abstract, Figure 1, and paragraphs 7, 22, 24, 25, 60-61, and claims 2 and 15), thus encompassing the process of making protein enriched butter by adding a protein component to a butter and mixing.
Regarding claim 21, although Mackereth teaches of butter, Mackereth is silent to providing butter as comprising: separating cream from raw milk, churning the cream to produce butter, and removing the buttermilk from the butter as recited in claim 21. Byland, a dairy processing handbook, teaches the butter making process comprises supplying separated cream from whole milk at the creamery, churning the cream to produce butter and buttermilk, and removing the buttermilk from the butter (pages 266 and 267). It would have been obvious for the butter taught by Mackereth to be obtained in a known manner, including obtaining cream from separation of raw dairy milk, churning the cream to produce butter and buttermilk, and removing the buttermilk from the butter as taught by Byland. To use known methods of obtaining the butter would have been obvious to one of ordinary skill in the art.
Regarding claim 3, although Mackereth teaches of butter, Mackereth is silent to the step of providing butter as further comprising pasteurizing the cream after the separating as recited in claim 3. Byland teaches that in processing butter it was known to pasteurize the cream after separation to destroy enzymes and microorganisms that would impair the keeping quality of the butter (page 266 last paragraph and page 267, page 268 “The raw material”, pages 268-269 “Pasteurization”, and Figure 12.2). Thus, it would have been obvious to pasteurize the cream at known points, including after separation, in order to destroy enzymes and microorganisms that would impair the keeping quality of the butter in view of Byland.
Regarding claim 9, as Mackereth teaches that the method comprises adding one or more protein powders, i.e. two protein powders (Figure 1), the teachings of Mackereth encompass the process as comprising adding one or more additives to the butter and/or protein enriched butter.
Claims 1, 2, 10, and 22-26 are rejected under 35 U.S.C. 103 as being unpatentable over Milano (US 2005/0079267) in view of Prakash et al (RU 2444900 machine translation), as evidenced by USDA (“Cheese, cream” pages 1-7 printed January 2026 https://fdc.nal.usda.gov/food-details/173418/nutrients) and USDairy (“Butter: Nutrition Facts and Benefits” pages 1-3 https://www.usdairy.com/dairy-nutrition/products/butter printed January 2026).
Regarding claims 1, 2, 23, and 25, Milano teaches a process of making enriched butter comprising mixing and thus providing and adding together, in any ratio butter and cream cheese to make up 60-100% of the composition (abstract, claim 2, and paragraph 6). As evidenced by USDA (page 1), cream cheese contains 6.15% protein, thus, the cream cheese would enhance the protein content of the butter with animal protein.
Regarding the butter as comprising about 1-4% protein as recited in claim 1, or 2-3.8% protein as recited in claim 23, or 3-3.8% protein as recited in claim 25, as the composition of Milano contains up to 100% of a cream cheese and butter mixture, the butter and cream cheese would each be included from greater than 0 and up to about 99%. As evidenced by USDA (page 1), cream cheese contains 6.15% protein; and as evidenced by USDairy butter contains about 0.6% protein (0.12 grams per 14 grams (pages 1-2).
Thus, the composition of Milano would encompass a butter with an overlapping protein content as claimed. For example, the teachings of Milano encompass a composition comprising 50% cream cheese, which as evidenced by USDA would contribute about 3.075% protein to the final product, and 50% butter, which as evidenced by USDairy would contribute about 0.3% protein to the final product, thus encompassing a product with about 3.375% protein. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 10, Milano teaches the composition as comprising 0-40% additives (abstract), and thus encompass adding additives, for example 0.1% additives to the butter and/or protein enriched butter. It is noted that in such a small amount, the calculations above would not be materially affected and would still fall within the claimed range.
Regarding claims 22, 24, and 26, as discussed above, the claimed limitations are unclear. Regardless, as evidenced by USdairy butter, which was taught by Mackereth was known to contain about 85.7% fat, i.e. butterfat (page 1, 12 grams fat per 14 grams) which encompasses the claimed range.
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Milano (US 2005/0079267) as evidenced by USDA (“Cheese, cream” pages 1-7 printed January 2026 https://fdc.nal.usda.gov/food-details/173418/nutrients) and USDairy (“Butter: Nutrition Facts and Benefits” pages 1-3 https://www.usdairy.com/dairy-nutrition/products/butter printed January 2026), further in view of Prakash et al (RU 2444900 machine translation), further in view of Prakash et al (RU 2444900 machine translation).
As discussed above, Milano teaches of forming a protein enriched butter, with an overlapping range of protein and comprising 0-40% additional ingredients (abstract, paragraph 6, and claim 2).
Milano is silent to the product as comprising whey protein concentrate as recited in claim 6, whey protein isolate as recited in claim 7, or the protein component as comprising 70-90% protein as recited in claim 8.
Prakash et al (Prakash) teaches a method of imparting an improved flavor profile to milk compositions, including butter, wherein a sweetener and sweet taste improving additive are added to the product (page 1, field of invention, page 2, Dairy Products paragraph 1, and page 4 Sweetener Compositions paragraph 1). Prakash teaches that suitable sweetening flavor enhancers include whey protein isolate 90% and/or whey protein concentrate 80% (page 12 paragraph 6). Also see page 43 second to last paragraph, page 48 paragraph 2, and page 51 paragraph 5.
Regarding the butter as comprising whey protein concentrate as recited in claim 6, whey protein isolate as recited in claim 7, or the protein component as comprising 70-90% protein as recited in claim 8, it would have been obvious for the 0-40% additional ingredient in the butter product of Milano to include a sweetener and taste improving additive, including whey protein isolate 90% and/or whey protein concentrate 80% in order to enhance the flavor of the butter in view of Prakash. It is noted that with the additional 0-40% protein component of Milano in view of Prakash, the claimed protein ranges are still achieved with the compositions of the prior art. For example, 1% cream cheese would contribute about 0.0615% protein, 3% whey protein concentrate or whey protein isolate would contribute about 2.4 or 2.7% protein respectively, and 96% butter would contribute about 0.576% protein. Thus, encompassing a product with about 3.0375-3.3375% protein.
It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claims 3, 9, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Milano (US 2005/0079267) as evidenced by USDA (“Cheese, cream” pages 1-7 printed January 2026 https://fdc.nal.usda.gov/food-details/173418/nutrients) and USDairy (“Butter: Nutrition Facts and Benefits” pages 1-3 https://www.usdairy.com/dairy-nutrition/products/butter printed January 2026), further in view of Prakash et al (RU 2444900 machine translation), further in view of Byland (Dairy Processing Handbook, Chapter 12 Butter and dairy spreads pages 263-278 2003).
As discussed above, Milano teaches of forming a protein enriched butter, with an overlapping range of protein and comprising 0-40% additional ingredients (abstract, paragraph 6, and claim 2).
Regarding claim 21, although Milano teaches of butter, Milano is silent to providing butter as comprising: separating cream from raw milk, churning the cream to produce butter, and removing the buttermilk from the butter as recited in claim 21. Byland, a dairy processing handbook, teaches the butter making process comprises supplying separated cream from whole milk at the creamery, churning the cream to produce butter and buttermilk, and removing the buttermilk from the butter (pages 266 and 267). It would have been obvious for the butter taught by Milano to be obtained in a known manner, including obtaining cream from separation of raw dairy milk, churning the cream to produce butter and buttermilk, and removing the buttermilk from the butter as taught by Byland. To use known methods of obtaining the butter would have been obvious to one of ordinary skill in the art.
Regarding claim 3, although Milano teaches of butter, Milano is silent to the step of providing butter as further comprising pasteurizing the cream after the separating as recited in claim 3. Byland teaches that in processing butter it was known to pasteurize the cream after separation to destroy enzymes and microorganisms that would impair the keeping quality of the butter (page 266 last paragraph and page 267, page 268 “The raw material”, pages 268-269 “Pasteurization”, and Figure 12.2). Thus, it would have been obvious to pasteurize the cream at known points, including after separation, in order to destroy enzymes and microorganisms that would impair the keeping quality of the butter in view of Byland.
Regarding claim 9, as Milano teaches that the butter may be salted (paragraph 8), the teachings of Milano would encompass adding one or more additives to the raw milk, cream, and/or butter before the protein has been added.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-3, 6-10, and 21-26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792