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 .
The amendment filed 2/12/2026 has been entered. Claims 37, 41-53, 57-62 pending. Claims 63-71 are withdrawn. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
Claim 61 is 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.
Claim 61 recites that the gel is a) pressed for 24 hours, b) rubbed with salt, or c) cut into particles prior to pressing. It is unclear how these further treatments are intended to be carried out, given that Claim 37, step g) recites a shorter duration than part a) of the claim and additionally requires that the gel is not cut prior to pressing (which is the opposite of what is recited in part c)).
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 37, 41-46, 49-53, 57-60 and 62 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger (US 2015/0305361 A1) in view of Bintis (“An Overview of the Cheesemaking Process”, DOI: 10.1002/9781119046165.ch0f).
Regarding Claim 37 and 62, Holz-Schietinger teaches a process for producing non-dairy gel [0013].
Regarding step a, Holz-Schietinger teaches the use of a non-dairy milk comprising isolated proteins [0101]. Absent evidence to the contrary, the non-dairy milk of Holz-Schietinger is interpreted to be made by a process comprising mixing water and protein isolate.
Regarding step b, Holz-Schietinger teaches that the non-dairy milk is an emulsion [0101] comprising proteins and fats. Note that an emulsion requires homogenization; the emulsion of Holz-Schietinger is therefore interpreted to have undergone homogenization, as claimed.
Regarding step c, the solution may be heat-treated at 164-167 °F, which is 73.3-75 °C, for 10-20 seconds, which lies within the claimed temperature and duration ranges [0099].
Regarding step d, Holz-Schietinger teaches lowering the pH of the non-dairy milk to a pH <6 [0147].
Regarding step e, Holz-Schietinger teaches treatment with transglutaminase [0213] to solidify [0204], and additionally teaches solidification at pH 3.5-5.5 [215].
Note that Holz-Schietinger teaches the combination of two more or more methods for solidifying [0219]. Additionally, note that where Holz-Schietinger teaches that different solidification procedures may be performed in various orders, depending on the desired outcome, it would have been obvious for one of ordinary skill to discover the optimum order of steps of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding step f, Holz-Schietinger teaches the cooling and storing of the gel for 2-16 hours at <30 °C prior to being “processed further by…pressing” [0214].
Regarding step g, Holz-Schietinger teaches a step of pressing the cheese product [0214] and does not discuss cutting. Holz-Schietinger does not teach the pressure of pressing or a duration.
Bintis teaches that the curds of cheese are pressed to reduce whey, and promote a more complete fusion of the curd particles. Bintis teaches that pressures applied range from 0.5-6 bar (Page 125, “Pressing”), which overlaps the claimed range.
Bintis does not address a specific duration of pressing. However, where Bintis speaks to the effects of pressing e.g. release of whey and a closed texture, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize pressures and times as claimed for the cheese of Holz-Schietinger. One would have been motivated to make such a modification since Bintis teaches that such pressures are typical for producing cheese, and Bintis provides motivation for optimizing the time of pressing.
Regarding Claim 41, Holz-Schietinger teaches the use of e.g. pea flour, which is a powder [0321].
Regarding Claim 42, Holz-Schietinger teaches that the proteins in the non-dairy milk are denatured through heating [0216] at a temperature of, e.g. 60-70 °C [0214]. Holz-Schietinger teaches that heat labile components, including fats, are added prior to a gelation step [0216]. It would therefore have been obvious to have utilized the step of heating before the step of emulsifying (or homogenizing) as claimed since the addition of oil is performed prior to emulsifying, and one having ordinary skill would avoid the unnecessary energy expenditure of heating oils during a protein denaturation step.
Regarding Claim 43, Holz-Schietinger teaches the use of polysaccharides [0140 and 0322], sugars [0021], flavorings [0124], colorings [0240], antioxidants [0038], and salt [0013] in the non-dairy milk. Note that it would have been obvious to have added the claimed components at any point in the process, including prior to homogenization.
Regarding Claim 44, note that Claim 44 does not positively recite a fermentable carbohydrate. Since the limitations of Claim 43 have been met, the limitations of Claim 44 have therefore also been met. With a view towards compact prosecution, Examiner notes that Holz-Schietinger teaches the addition of glucose, fructose, and maltose [0021].
Regarding Claim 45, note that Claim 45 does not positively recite a fat. Since the limitations of Claim 43 have been met, the limitations of Claim 45 have therefore also been met. With a view towards compact prosecution, Examiner notes that Holz-Schietinger teaches the addition of canola, coconut, shea, sunflower, and algae-derived lipids [0021].
Regarding Claim 46, note that Claim 46 does not positively recite a polysaccharide. Since the limitations of Claim 43 have been met, the limitations of Claim 46 have therefore also been met. With a view towards compact prosecution, Examiner notes that Holz-Schietinger teaches the addition of xanthan gum, carrageenan, pectin, and starch [0238].
Regarding Claims 49 and 50, Holz-Schietinger teaches that a heat treatment step may be carried out at 45-100 °C for 5-60 minutes [0214], which overlaps the claimed range and touches the claimed duration.
Regarding Claim 51, Holz-Schietinger teaches acidification via bacterial culture [0153], which is microbiologically.
Regarding Claim 52, Holz-Schietinger teaches incubation at 30 °C [0356], which touches the claimed range.
Regarding Claim 53, Holz-Schietinger teaches the addition of ascorbic acid [0138, Table A]. Note that Holz-Schietinger teaches that ascorbic acid is added to the media at the same time as bacteria, which additionally acidifies the milk [0153]. Holz-Schietinger therefore teaches the addition of ascorbic acid during an acidification step.
Regarding Claims 57 and 58, Holz-Schietinger teaches treatment with 0.1-10% of a transglutaminase enzyme [0205] at a temperature of 20-100 °C, which encompasses the claimed range of temperatures and overlaps the claimed range of amount of cross-linking enzyme.
Regarding Claims 59, Holz-Schietinger teaches that an enzymatic treatment may have a duration of 10 minutes-24 hours [0212]. Holz-Schietinger does not specifically address the pH during enzymatic treatment. However, Holz-Schietinger teaches that a typical plant protein coacervate has a pH of 3.5-5.5 [0215]. Therefore, absent evidence to the contrary, Holz-Schietinger is interpreted to teach enzymatic treatment at a pH as claimed.
Regarding Claim 60, Holz-Schietinger teaches that the gel may be cooled at less than 30 °C for 2-16 hours [0214], which encompasses the claimed temperature range and duration.
Claims 47-48 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger in view of Bintis as applied to Claim 37, above, in further view of Jacobson (US 2003/0017242).
Regarding Claim 47 and 48, Holz-Schietinger teaches homogenization [0214, 0287] but does not specifically address a temperature or pressure for homogenization.
Note that Holz-Schietinger teaches homogenization of a composition comprising vegetable proteins and oils.
Jacobson teaches an imitation cheese product comprising vegetable proteins and fats [0051-0052] which is homogenized at 2500 psi (172 bar) and 68 °C [0064], which lies within the claimed pressure and temperature ranges. Jacobson these conditions are preferred for manufacturing “the present invention” [0064] (that is, imitation cheese).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the homogenization conditions taught by Jacobson in the process of Holz-Schietinger. One would have been motivated to make such a modification since Holz-Schietinger and Jacobson teach similar products with similar ingredients, and Jacobson teaches that the homogenization conditions are preferred for manufacturing cheese-like products.
Response to Arguments
Applicant’s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that Holz-Schietinger does not teach or suggest the combination of features recited in steps, e, f, and g of amended Claim 37. Applicant argues that while Holz-Schietinger discloses enzymatic treatment of plant protein suspensions, Holz-Schietinger does not discuss “coagulating the acidified protein suspension to pH 4.5-5.9” and subsequent solidification “at a temperature of 4-6 °C for 8 to 12 hours”. Applicant additionally argues that cooling and storing of the gel is made in the context of general gel handling and enzymatic processing, and does not suggest the solidifying prior to pressing. Applicant additionally argues that Holz-Schietinger does not disclose pressing of a gel without cutting.
This argument is not convincing. First, Holz-Schietinger teaches the solidification of acidified plant protein suspensions at a pH of 3.5-5.5 [215]. Where Holz-Schietinger teaches that the enzyme treatment is performed on a milk (or liquid) phase [0213] and solidification produce a dense (or solid) phase [215, Lines 1-5], it would have been obvious to perform the enzyme treatment prior to the coagulation. Second, Holz-Schietinger teaches the cooling and storing of the gel for 2-16 hours at less than 30 °C prior to being “processed further by…pressing” [0214]. Note that Holz-Schietinger teaches the combination of two more or more methods for solidifying [0219]. It would have been obvious to have performed the process steps in any order according to procedures known in the art of cheese replicas. Third, Holz-Schietinger teaches that the gel is “drained through cheesecloth”, without discussion of cutting, prior to pressing [0214]. Note that prior art is available for all teachings and not only preferred embodiments. See MPEP 2123. Lastly, Applicant has not provided a comparative showing for criticality. No evidence is present that the specific sequences of steps as claimed, claimed pH range, the prolonged cold set, or the pressing of the uncut gel yields a different product than the product of the closest prior art.
Applicant additionally argues that the process of Claim 37 is not a rearrangement of known steps but produces a different functional result. Applicant argues that Holz-Schietinger does not teach or suggest a cold-set gel structure that is able to withstand high-pressure pressing without cutting.
This argument is not convincing. Where Holz-Schietinger teaches the process steps as claimed, the product of Holz-Schietinger is interpreted to have the same properties as the product yielded by the process of the claim. Additionally, note that Applicant has not claimed that the non-dairy protein gel have specific properties (e.g. a property of withstanding high pressure pressing). Additionally, Applicant has not provided evidence that the sequence of steps in the instant Claims produces a different product than the product of the prior art. The arguments of counsel cannot take the place of evidence in the record. See MPEP 716.01(c)II.
Applicant additionally argues that the claimed process conditions (a 4-6 °C window and a prolonged 8-12 hour coagulation) produce a fundamentally different gel structure.
This argument is not convincing. Applicant has not provided evidence of the criticality of claimed range(s) or evidence of the different gel structure.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure:
IDFA, “Pasteurization”, https://web.archive.org/web/20200718023542/https://www.idfa.org/pasteurization, July 2020
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.
/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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