DETAILED ACTION
The present application is a divisional of US Application No. 15/756,080, now USP Patent No. 11/771,118.
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 .
Claim Objections
Applicant is advised that should claim 23 be found allowable, claim 28 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 15, 16 and 18-36 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.
Regarding claims 15, the recitation “wherein the cream cheese-like food product has, in an undisrupted state, a particle size distribution which is characterized by a particle size distribution, as measure in distilled water . . .” renders the claim indefinite. Similarly, regarding claim 19, the recitation “wherein the particle size distribution of the food in the undisrupted state” renders the claim indefinite.
First, it is not clear what defines an undisrupted state vs. a disrupted state of the cream cheese-like food product.
Second, it is not clear what particle or particles are defined. That is, is the particle size distribution of the comminuted nuts and/or seeds; or some other non-claimed component, for example fat? With respect to the prior art, the particle interpreted as from comminuted nuts or seeds.
Regarding claim 16, the recitation “wherein the texture property coarse-thick of the food product, determined by a descriptive sensory panel in accordance with DIN 10967 using a low-fat quark containing 20% by weight of fat in the dry mass as reference product, is greater than 2.5” renders the claim indefinite.
First, it is not clear what value on the “coarse-thick” attribute scale the quark represents. Is low-fat quark containing 20% by weight of fat represent a 2 on the scale? Secondly, it is not clear what characteristics are used to define the term “coarse-thick” and how many points are on the descriptive scale for “coarse-thick.” Does the scale go from 0-10?
Claim 18 recites the limitation "the oil and/or fat proportion” in line 4. There is insufficient antecedent basis for this limitation in the claim. Claim 15, from which claim 18 depends is directed to a composition comprising comminuted nuts and/or seeds and water. There is no oil and/or fat required in the composition of claim 15.
Regarding claims 18 and 32, the recitation “the oil and/or fat proportion of the food product are incorporated in microgel particles based on nuts and/or seeds” render the claims indefinite. It is not clear if the composition comprises microgel particles obtained from nuts and/or seeds or if the nuts and/or seeds of the food product act as microgel particles. Clarification is requested.
Claim 22 recites the limitation "the dry mass” in line 2. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 24, the recitation “A foodstuff comprising as a filling or additive, the food product as claimed in claim 15 as a pure foodstuff or as a recipe component, selected from a filling or additive in an industrially produced foodstuff” renders the claim indefinite. With respect to the prior art, a cream cheese-like food product can be considered a foodstuff.
Regarding claim 25, the recitation “wherein the food product consisting between 5% by weight and 50% by weight of a pasty mass comprising a content of nuts and/or seeds of at least 70% by weight. It is not clear if the pasty mass is in addition to the comminuted nuts and/or seeds required by claim or if the comminuted nuts and/or seeds are added to the food product in the form of a pasty mass comprising at least 70% by weight.
Claim 26 recites the limitation "the provided mass” in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. See the rejection of claim 25 under 35 U.S.C. 112 (b). Claim 25 requires a pasty mass but not a provided mass.
Regarding claim 29, the recitation of partially disrupted state” and “undisrupted state” render the claim indefinite. It is not clear what defines an undisrupted state vs. a disrupted state of the cream cheese-like food product.
Claims 19-21, 23, 27, 28, 30, 31 and 33-36 are rejected because they depend from a rejected base claim.
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.
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 15, 16, 19-31 and 33-36 are rejected under 35 U.S.C. 103 as being unpatentable over TofuTown.com (DE 20 2011 002097 U1- Google English translation).
Regarding claims 15, 19, 21, 22, 24, 29, 31 and 34-36, TofuTown.com disclose a plant-based, fresh cheese-like spread (i.e., cream cheese-like food product or foodstuff) comprising finely ground nuts (i.e., comminuted nuts) ([0008]).
TofuTown.com disclose the cheese-like spread is made by: (a) soaking the nuts in water; (b) finely grinding the soaked nuts to obtain a puree (i.e., comminuted nuts); (c) mixing the puree with water, heating and then cooling to 40°C; (d) adding a ripening culture, Acidophilus and Bulgaricus bacteria, and stirring into the heated and cooled pureed mixture; (e) fermenting the mixture with ripening culture for 10 hours; and (f) packaging and pasteurizing the product ([0008], claims 1-3).
TofuTown.com disclose the cheese-like spread comprising about 30-45% by weight nuts, about 55-70% by weight water, and about 1-2% by weight sea salt (i.e., NaCl)([0008]).
The reference is silent with respect to firmness and particle size.
Given TofuTown.com disclose a cheese-like spread comprising the components of the claimed cream cheese-like food product including the claimed amount of water, inherently the firmness of the cheese-like spread would fall within the broadly claimed range of 0.2 to 7.0 N and the particle size properties of the ground nuts (i.e., comminuted nuts) would fall with the claimed ranges.
Regarding claim 16, TofuTown.com disclose all of the claim limitations as set forth above. Given TofuTown.com disclose a cheese-like spread comprising ground nuts (i.e., comminuted nuts) and water as presently claimed, inherently the spread would exhibit a perceived “coarse-thick” score as presently claimed.
Regarding claim 20, TofuTown.com disclose all of the claim limitations as set forth above. TofuTown.com does not disclose a cheese-like spread comprising milk-based ingredients (see [0008]).
Regarding claims 23 and 28, TofuTown.com disclose all of the claim limitations as set forth above. Given TofuTown.com disclose a cheese-like spread comprising ground nuts (i.e., comminuted nuts) and water as presently claimed, inherently the spread would exhibit the claimed CIELAB color space Cartesian base coordinates, L*, a*, and b* in the claimed ranges.
Regarding claim 25, TofuTown.com disclose all of the claim limitations as set forth above. TofuTown.com disclose the cheese-like spread comprises from 30-45% by weight nuts. While TofuTown.com disclose soaking the nuts in water before finely grinding them to make a puree (i.e., a pasty mass), the reference is silent with respect to how much water is incorporated into the nut mixture when they are soaked. It would have been obvious to one of ordinary skill in the art to have soaked the nuts to incorporate as much water needed to make the nuts malleable and easy to grind, including wherein the final puree would have at least 70 % by weight nuts, with a reasonable expectation of success.
Regarding claim 26, TofuTown.com disclose all of the claim limitations as set forth above. TofuTown.com disclose finely grinding nuts (i.e., comminuting nuts) to make a puree for incorporation into the cheese-like spread. TofuTown.com does not disclose sugar.
Regarding claim 27, TofuTown.com disclose all of the claim limitations as set forth above. TofuTown.com disclose adjusting the dry matter content of the cheese-like spread to 33% by weight ([0008]).
Regarding claim 30, TofuTown.com disclose all of the claim limitations as set forth above. TofuTown.com disclose any type of nut can be used for the spread ([0008]). It would have been obvious to one of ordinary skill in the art to have used any type of nut, including almond, in the cheese-like spread of TofuTown.com, and arrive at the present invention with a reasonable expectation of success.
Regarding claim 33, TofuTown.com disclose all of the claim limitations as set forth above. The product of TofuTown.com is considered vegan because it is plant-based and comprises nuts, water and sea salt ([0001]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
- Hofmann et al. (“Lactic Fermentation of Ground Soybean for Use in Imitation Cream Cheese Products”, Journal of Food Science, Volume 50, (1985), pp. 325-329) disclose an imitation cream cheese product (i.e., cream cheese-like food product) comprising ground soybean (i.e. comminuted seed). Hofmann et al. disclose making the imitation cream cheese product by: (a) heating vegetable oil at 57°C and adding the ground soybean; (b) heating a mixture of water, nonfat dry milk, salts, emulsifiers and stabilizer to 43C to obtain a dispersion; (c) adding the heated oil and ground soybean mixture to the dispersion; (d) adding lactic acid to the mixture to obtain a product pH of 4.6 to 4.8; (e) homogenizing the pH adjusted composition in two states; and (f) pouring the homogenized mixture into containers and cooling (p. 326/Imitation cream cheese product). Hofmann et al. is silent with respect to water content.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759