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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 2, 2026 has been entered.
Claim 49 is new. Claims 25-43 and 49 are pending examination.
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 25-43 are rejected under 35 U.S.C. 103 as being unpatentable over Brown et al. (WO 2013/010037) in view of Holz-Schietinger et al. (WO 2014/110540).
Regarding claims 25-28, 30, 35, 37-39, 42 and 43, Brown et al. disclose a method of making a non-dairy cheese product and the resulting non-dairy cheese product, the method comprising the steps of: (a1) preparing a non-dairy milk (i.e., an emulsion comprising protein and fats from non-dairy sources, a homogenized emulsion) by decompounding nuts or plant seed in a solution comprising water (wherein decompounding takes place in a blender or continuous flow mill -i.e., homogenized -[0056], [0061]); or (a2) preparing a non-dairy milk using isolated proteins, enriched and purified from a plant or microbial source (i.e., protein isolates or concentrates), combined with one or more oils or fat isolated from plant sources (i.e., vegetable oil-[0045], [0071]) to make an emulsion; (b) pasteurizing the non-dairy milk (i.e., emulsion) by heating to a temperature of 164°F to 167°F for 16 seconds (i.e., about 73°C to about 75°C -[0070]); (c) acidifying the non-dairy milk by microbial fermentation (e.g., addition of lactic acid bacteria) or the addition of one or more organic acids ([0023], [0075]); (e) crosslinking the protein in the non-dairy milk (i.e., emulsion) by adding 0.1 to 20 units of transglutaminase per 1 ml of non-dairy milk and heating in a water bath at a temperature of about 65° to about 125° F (i.e., about 19° to about 52°C-[0084]-[0086]); (e) separating (i.e., draining) the whey from the curd ([0097]); (f) shaping non-dairy cheese by pressing cheese curds in a mold and pressing with a weight to expel additional whey ([0105]); and (g) removing the non-dairy cheese from the mold to obtain a shaped non-dairy cheese ([0163], [0178], [0206]).
Brown et al. does not specifically disclose setting the curd, in one piece, into a pressing mold. However, given Brown et al. disclose pressing cheese curds in a mold, since Brown does not require a step of cutting, it follows the cheese curds of Brown could be put into the mold in many pieces or as one mass.
While Brown et al. disclose pasteurizing the non-dairy milk by heating to a temperature of 164°F to 167°F for 16 seconds (i.e., about 73°C to about 75°C -[0070]), the reference does not teach a time of 30 seconds to 30 minutes. However, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP §2144.05 I). Here, prima facie, one skilled in the art would have expected the heating time of 16 seconds at about 73°C to about 75°C to result in a heated non-dairy milk exhibiting the same properties as the claimed heat treated emulsion in step (b) heated for 30 seconds.
While Brown et al. disclose a shaped non-dairy cheese product, the reference is silent with respect to a block shape. Here, the shape of the non-dairy cheese is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence the block shape of the claimed non-dairy cheese is important (see MPEP §2144.04 IV.B.).
Brown et al. is silent with respect to a cooling and hardening step.
Holz-Schietinger et al. teach a method of making a non-dairy cheese (Abstract). Holz-Schietinger et al. teach solidifying a non-dairy milk by subjecting the milk to crosslinking using transglutaminase and subjecting the mixture to a cool cycle (p. 9/L9-12). Holz-Schietinger et al. teach the solidification process allows the separation of the crosslinked proteins and associated fats into solid curds that can be separated from the “whey” or liquid remaining after curdling (p. 16/L18-21). Holz-Schietinger et al. disclose cooling to temperature of less than 30°C for 2-16 hours (p. 65/L20-25). While Holz-Schietinger et al. does not disclose the precisely claimed temperature range, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP §2144.05 I).
Brown et al. and Holz-Schietinger et al. are combinable because they are concerned with the same field of endeavor, namely non-dairy cheeses. It would have been obvious to one of ordinary skill in the art to have included a cooling step, as described by Holz-Schietinger et al. after the step of adding transglutaminase in the process of Brown et al. for the purpose further solidifying the curds and effectively separating the whey form the curds comprising protein and fat.
Regarding claim 29, modified Brown et al. disclose all of the claim limitations as set forth above. Brown et al. is silent with respect to the form of the protein, however, given Brown et al. disclose proteins isolated, enriched or purified from a plant and combining it with water, it would have been obvious to one of ordinary skill in the art to have used any form of the protein with a reasonable expectation of success.
Regarding claims 31 and 32, modified Brown et al. disclose all of the claim limitations as set forth above. Brown et al. disclose adding annatto, a natural vegetable dye, to the non-dairy milk to create a yellow cheddar color ([0175]). Brown et al. also disclose sugars can be added to the non-dairy milk (i.e., fermentable carbohydrates-[0073]-[0074]).
Regarding claim 33, modified Brown et al. disclose all of the claim limitations as set forth above. Brown et al. disclose the fat is from plant sources including canola, shea, coconut or sunflower ([0012], [0052], [0071]).
Regarding claim 34, modified Brown et al. disclose all of the claim limitations as set forth above. Given Brown et al. disclose coloring and fermentable carbohydrates (i.e., sugars), the requirements of claim 34 are satisfied.
Regarding claim 36, modified Brown et al. disclose all of the claim limitations as set forth above. Brown discloses acidifying the non-dairy milk by adding a starter culture to pasteurized (i.e., heat treated) non-dairy milk and incubating at a temperature of 90°F (i.e., 32.°C) for one hour and then increasing the temperature to 100°F (i.e., 37.78°C)([0197]-[0198]). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 40, modified Brown et al. disclose all of the claim limitations as set forth above. While Brown et al. disclose adding 0.1 to 20 units of transglutaminase per 1 ml of non-dairy milk, the reference is silent with respect to the amount of transglutaminase based on weight percent. Given Brown et al. disclose adding transglutaminase having a range of activity sufficient to produce non-dairy cheese curds, one of ordinary skill in the art could have adjusted, in routine processing, the amount of transglutaminase based on weight percentage depending on the activity of the transglutaminase with a reasonable expectation of obtaining non-dairy cheese curds from non-dairy milk.
Regarding claim 41, modified Brown et al. disclose all of the claim limitations as set forth above. Brown et al. disclose, after acidification, the pH of the non-dairy milk is less than 5.5 ([0023], claim 76). Brown et al. disclose coagulating for 12 hours at room temperature ([0158], [0173]).
While Brown et al. disclose coagulating for 12 hours, it would have been obvious to one of ordinary skill in the art to have adjusted, in routine processing, the coagulation time of Brown et al. to obtain the desired curd structure and final pH.
Regarding claim 49, modified Brown et al. disclose all of the claim limitations as set forth above. While Brown et al. disclose pressing cheese curds in a mold and pressing with a weight (i.e., pressure) to expel additional whey ([0105]), the reference is silent with respect to time and pressure.
However, absent evidence to the contrary, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusting, in routine processing, the time and pressure required to mold the cheese curds of Brown et al., to obtain a molded cheese with a desired level of expelled whey, shape and hardness.
Response to Arguments
Applicant's arguments filed June 2, 2026 have been fully considered but they are not persuasive.
Applicant submits “Brown does not teach or suggest at least the recitations of steps f. and g. Applicant argues the disclosure of Brown et al. does not teach or suggest “setting the solidified vegetable-based cheese curd in one pieces, without cutting the solidified vegetable-based cheese curd, into a pressing mold” or “pressing the solidified vegetable-based cheese curd in the pressing mold as the one piece to drain whey,” was recited in claim 25. Applicant find Brown’s instruction to “Cut curd into ½ inch dice pieces” does not teach or suggest setting the “solidified vegetable-based cheese curd” into the pressing mold “in one piece” and “without cutting.”
Brown et al. clearly disclose a process of making cheese replicas that might use elements of the traditional cheese making process, i.e., using one or more steps including cutting, draining, forming, pressing, waxing, gaining, scalding, smoking, salting or ripening ([0096]). Brown’s broad disclosure does not require that when steps of molding, draining or pressing are executed a step of cutting must happen. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments (MPEP §2123 I).
Applicant notes the specification states “pressing of the hole cheese mass or cheese curd without cutting the curd/mass during curd forming and in connection with the whey drainage preserves the continuous gel network in the curd throughout whey draining, resulting in a dense, elastic, smooth, cuttable structure that closely resembles the organoleptic textural properties of yellow dairy cheese.’
Here, it is not clear if the differences between a vegetable-based cheese made with a step of cutting versus one made without cutting is unexpected. That is, if the cheese curd is cut prior to molding one would expect the structure of the resulting mass to be “compromised” to some extent. There is no evidence on the record demonstrating the physical differences between vegetable-based cheese made with and without cutting.
Conclusion
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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