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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 5, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-8, 10-13, 16
Withdrawn claims:
11-13
Previously canceled claims:
9, 14-15
Newly canceled claims:
None
Amended claims:
1
New claims:
None
Claims currently under consideration:
1-8, 10, 16
Currently rejected claims:
1-8, 10, 16
Allowed claims:
None
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.
Claims 1-4, 6-8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kizer (US 2019/0000112 A1) in view of Myllarinen (CN 111491522 A) and Sabbagh (US 2011/0171360 A1).
Regarding claim 1, Kizer teaches of dairy milk analogues ([0128]) including dairy yoghurt analogs made by the steps of:
(a) Obtaining a carbohydrate component and a protein component from a non-animal source ([0018]-[0020]), where suitable carbohydrates include sucrose, fructose, and glucose (i.e., fermentable sugars; [0099]) and that a non-animal source includes plants ([0076]) included in an amount of between 1% and 3% ([0097]), which falls within the claimed range of “0.5wt% to 3.4wt%”. Kizer also teaches mixing with an aqueous phase ([0021]), where the aqueous phase may be water (i.e., a hydrophilic liquid; [0118]);
(b) Heating the mixture ([0022]) where heating is performed at a temperature of greater than 80[Symbol font/0xB0]C to 120[Symbol font/0xB0]C ([0123]), which overlaps with the claimed range of “from 80[Symbol font/0xB0]C to 100[Symbol font/0xB0]C”;
(c) Emulsifying the mixture ([0023]) at a pressure of 35 bar to about 650 bar ([0123]), which overlaps with the claimed range of “above 50 bar”;
(d) Adding fermenting microorganisms (i.e., inoculating with a starter culture);
(e) fermenting until the fermentation mixture is acidified ([0025]-[0026]) wherein the yogurt was fermented to a pH of 4.4-4.5 ([0269], which falls within the claimed range of “3.0 to 5.0”; and
(f)Pasteurizing the dairy analog ([0125]).
Kizer also teaches an example of a yogurt that does not comprise dairy or soy ([0262], [0268]). Kizer also teaches that the dairy analog may have a shelf life of 3 or more months at room temperature ([0103]), which matches the claimed range of “3 or more months”. One of ordinary skill would recognize that room temperature falls within the disclosed range of “20[Symbol font/0xB0]C to 40[Symbol font/0xB0]C”.
Kizer also teaches that the carbohydrate component may include pectin. Although Kizer teaches that the pectin is added in initial mixing step, MPEP §2144.04(IV)(C) states “Selection of any order of mixing ingredients is prima facie obvious”, In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Thus, adding the pectin at a different point in the process is obvious.
Although Kizer teaches heating prior to emulsification (i.e., homogenization), MPEP §2144.04(IV)(C) states “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”, In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946). Therefore, one of ordinary skill would have found it obvious to perform the heating step prior to mixing.
Although Kizer does not explicitly disclose that the composition is free from thickeners other than pectin, Kizer teaches that the carbohydrate composition can be chosen from a list of ingredients including pectin ([0121]). Thus, one of ordinary skill would recognize that an embodiment of Kizer exists where pectin and no other thickening ingredients are used.
Kizer does not teach where the yogurt is a drinkable yogurt, where the first heat treatment is for a duration of 1 minute to 10 minutes, or that the pasteurization step is at a temperature from 75[Symbol font/0xB0]C to 120[Symbol font/0xB0]C for 3 seconds to 90 seconds.
Regarding where the yogurt is a drinkable yogurt and where the first heat treatment is for a duration of 1 minute to 10 minutes, Myllarinen teaches of a fermented drinkable yogurt ([0004]) produced with a thermal treatment performed at a temperature of 80[Symbol font/0xB0]C to 95[Symbol font/0xB0]C for a time of 1 minute to 15 minutes ([0117]), which overlaps with the claimed range of “1 minute to 10 minutes”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kizer to make a yogurt drink with the thermal treatment as taught by Myllarinen. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding the pasteurization temperature and time, Sabbagh teaches of a dairy analog composition (Abstract) that is subject to pasteurization at 155[Symbol font/0xB0]F to 270[Symbol font/0xB0]F (equivalent to 68.3[Symbol font/0xB0]C to 132.2[Symbol font/0xB0]C; which overlaps with the claimed range of “75[Symbol font/0xB0]C to 125[Symbol font/0xB0]C”) for 4 second to 25 seconds (which falls within the claimed range of “3 seconds to 90 seconds”)([0088]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pasteurization step of Kizer with the pasteurization process as taught by Sabbagh. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 2, Kizer teaches that the dairy analog comprises a carbohydrate such as sucrose, fructose, or glucose in an amount of at least 1% by weight of the carbohydrate ([0099]), which overlaps with the claimed range of “from 1wt% to 10wt%”.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 3, Kizer teaches that the protein can be legumes (i.e., a pulse; [0211]).
Regarding claim 4, Kizer teaches that the microorganism for fermenting can include Lactobacillus bulgaricus ([0150]), which is known to product lactic acid as evidenced by the instant specification (p. 4, l. 29- p. 5, l. 4).
Regarding claim 6, Kizer teaches that the carbohydrate can include pectin ([0121]) and that the carbohydrate can be added in an amount of at least 0.5 wt% ([0099]), which overlaps with the claimed range of “0.05wt% to 1.0wt%”.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 7, although Kizer teaches that the pectin is added in initial mixing step, MPEP §2144.04(IV)(C) states “Selection of any order of mixing ingredients is prima facie obvious”, In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Thus, adding the pectin at a different point in the process is obvious.
Regarding claim 8, although Kizer does not explicitly disclose that the composition is free from thickeners other than pectin, Kizer teaches that the carbohydrate composition can be chosen from a list of ingredients including pectin ([0121]). Thus, one of ordinary skill would recognize that an embodiment of Kizer exists where pectin and no other thickening ingredients are used.
Regarding claim 10, Kizer does not teach the density of the dairy analog.
However, in the same field of endeavor, Myllarinen teaches that the viscosity of the plant-based yogurt drink is typically between 50 mPas and 5000 mPas ([0112]), which falls within the claimed range of “at least 50 mPas”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kizer to produce a yogurt drink that has the same viscosity as that of Myllarinen. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Although the cited prior art does not teach that the viscosity is measured at 100 s-1 at 10[Symbol font/0xB0]C using a rheometer with plate-plate geometry (60 mm diameter) with 1 mm gap, this limitation is interpreted as merely the method of determining a property of the resulting product and not a requirement of performing the process as claimed. Therefore, the cited prior art meets the claim limitation.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Kizer (US 2019/0000112 A1) in view of Myllarinen (CN 111491522 A) and Sabbagh (US 2011/0171360 A1) as applied to claim 1 above, and further in view of Leite (Leite, Analy Machado de Oliveira, “Microbiological, technological and therapeutic properties of kefir: a natural probiotic beverage”, Brazilian Journal of Microbiology, Vol. 44, Issue 2, p. 341-349, published 2013 [accessed online July 2, 2025]).
Regarding claim 5, the cited prior art does not teach wherein the starter culture further comprises at least one yeast and/or at least one acetic acid producing bacteria.
However, in the same field of endeavor, Leite teaches of a fermented milk beverage produced by bacteria and yeast (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kizer with the addition of yeast to the starter culture for fermentation as taught by Leite. One of ordinary skill would have been motivated to make this modification because Leite teaches that kefir has scientifically illustrated health benefits (p. 348, col. 1, ¶ 1). Therefore, one of ordinary skill would want to make a dairy free version of kefir using the process of Kizer.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kizer (US 2019/0000112 A1) in view of Myllarinen (CN 111491522 A) and Sabbagh (US 2011/0171360 A1) as applied to claim 1 above, and further in view of Gudnason (US 4,391,830).
Regarding claim 16, the cited prior art does not teach wherein the pectin is a high methyoxyl pectin.
However, in the same field of endeavor, Gudnason teaches of adding high methoxyl pectin to a liquid yogurt (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add high methoxyl pectin as taught by Gudnason to the fermented dairy yogurt of Kizer. One of ordinary skill would have been motivated to make this modification because Gudnason teaches that adding high methoxyl pectin results in a substantially physically and microbiologically stable liquid yogurt (Abstract).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-4, 6-8, and 10 over Myllarinen, APFI, and Kizer; claim 5 over Myllarinen, APFI, Kizer, and Leite; and claim 16 over Myllarinen, APFI, Kizer, and Gudnason: Applicant's arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Myllarinen, APFI, and Kizer. However, upon further consideration, a new ground(s) of rejection is made in view of Kizer, Myllarinen, and Sabbagh. As described above, Kizer discloses embodiments that do not comprise any thickeners in addition to the pectin. Thus, Kizer in view of Myllarinen and Sabbagh render the claimed invention obvious.
The rejections of claims 1-8, 10, 16 have been maintained herein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 8:00a-4:00p, F 8:00a-1:00p ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
Prosecution Insights