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 .
Claim Rejections - 35 USC § 103
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.
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.
Claims 1-23 and 31-36 are rejected under 35 U.S.C. 103 as being unpatentable over EP 3213638 (BERGSMA) and EP2443935 (CLEENEWERCK).
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BERGSMA teaches a cheese composition with ingredients that overlap or fall within the claimed ranges - 20% to 30% by weight of a fat composition in the form of 25% oil ( [0026], Table 1, Table 2); from 1% to 45% by weight of a starch in the form of 17% starch ([0012], Table 2); from 0% to 15% by weight of non-animal protein in the form of 2% of potato protein ([0020], Table 1, Table 2); and from 35% to 65% by weight of water in the form of 55.8% water ( [0027], Table 1, Table 2);
wherein the combined weight percent of starch and non- animal protein in the composition does not exceed 45% (Table 1, Table 2, i.e., 19% in Table 2).
BERGSMA is silent as to the recited fatty acid residues/fragments for a cheese product.
However, CLEENEWERCK teaches fat compositions with a desirable fatty acid content for cheese compositions [0050]. The saturated fatty acid residues range from 20 to 70% [0030]. The fat compositions comprise 2-35 wt% of lauric acid residues (C12:0) (see Example where Table 1-8 support this range) and up to 33 wt% stearic acid residues (C18:0) ([0066]). The fat compositions provide good hardness and texture to the products, while being nutritionally better balanced and having a low effect on LDL cholesterol (see [0021]-[0026)).
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, one could produce a nutritionally better balanced cheese analogue with good hardness and texture.
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As noted above, BERGSMA teaches a cheese analog but is silent as to the recited fatty acid residues/fragments for a cheese product.
CLEENEWERCK teaches fat compositions with a desirable fatty acid content for cheese compositions [0050]. The saturated fatty acid residues range from 20 to 70% [0030]. The fat compositions provide good hardness and texture to the products, while being nutritionally better balanced and having a low effect on LDL cholesterol (see [0021]-[0026)).
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, as one could produce a nutritionally better balanced cheese analogue with good hardness and texture.
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BERGSMA teaches palm oil is optional (i.e., other oils can be used) [0023].
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As noted above, BERGSMA teaches a cheese analog but is silent as to the recited fatty acid residues/fragments for a cheese product.
CLEENEWERCK teaches fat compositions with a desirable fatty acid content for cheese compositions [0050]. It is preferred that the fat is non-hydrogenated [0048]
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As to claims 5-6, As noted above, BERGSMA teaches a cheese analog but is silent as to the recited fatty acid residues/fragments for a cheese product.
CLEENEWERCK teaches fat compositions with a desirable fatty acid content for cheese compositions [0050]. It is preferred that the fat is non-hydrogenated [0048]
CLEENEWERCK teaches a fat blend of C16 of 5.6% and 22.6% of C18 for a ratio of C18 to C16 of 4:1 [0019].
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, one could produce a nutritionally better balanced cheese analogue with good hardness and texture.
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CLEENEWERCK teaches a fat blend of C12 of 5.8% and 22.6% of C18 for a ratio C18 to C16 of 4:1.
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, one could produce a nutritionally better balanced cheese analogue with good hardness and texture.
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In [0033] of CLEENEWERCK, it is taught that that the SFC can be varied based on the desired firmness of the final product. Thus, it would have been obvious to vary the SFC based on the desired firmness.
BERGSMA is silent as to the recited fatty acid residues/fragments for a cheese product.
However, CLEENEWERCK teaches fat compositions with a desirable fatty acid content for cheese compositions [0050]. The saturated fatty acid residues range from 20 to 70% [0030]. The fat compositions comprise 2-35 wt% of lauric acid residues (C12:0) (see Example where Table 1-8 support this range) and up to 33 wt% stearic acid residues (C18:0) ([0066]). The fat compositions provide good hardness and texture to the products, while being nutritionally better balanced and having a low effect on LDL cholesterol (see [0021]-[0026)).
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, one could produce a nutritionally better balanced cheese analogue with good hardness and texture.
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As to claims 10-12, CLEENEWERK teaches in [0046] that interesterification, which may be either a complete randomization or only a partial interesterification, and which may be performed using a chemical or an enzymatic method, is that the interesterification may lead to a product with a firmer structure. Given the interesterification can be partial, it would have been obvious to one skilled in the stop the reaction prior to reaching equilibrium.
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, as interesterification may lead to a product with a firmer structure, while maintaining a well-balanced fatty acid or fatty acid residue profile with respect to its nutritional properties [0046].
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As to claims 13-17, CLEENEWERK teaches in [0041] that fat component A is a fat selected from the group consisting of shea butter, illipe butter, sal fat , enzymatically prepared StOSt-fat (St representing stearic acid), or fractions thereof, fat component B is a fat selected from the group consisting of palm kernel oil, coconut oil, babassu oil, and fractions thereof, and fat component C is a liquid oil selected from the group consisting of rapeseed oil, corn oil, soy oil, sunflower seed oil, high oleic sunflower seed oil, high oleic rapeseed oil, cotton seed oil, maize oil, olive oil, hazelnut oil, groundnut oil, a liquid oil rich in medium chain fatty acids (MCFA), and liquid fractions of palm oil or shea butter. It would have been obvious to add shea, coconut oil and sunflower oil based and their amounts based on their desired properties of the final product.
CLEENEWERK teaches in [0046] that interesterification, which may be either a complete randomization or only a partial interesterification, and which may be performed using a chemical or an enzymatic method, is that the interesterification may lead to a product with a firmer structure. Given the interesterification can be partial, it would have been obvious to one skilled in the stop the reaction prior to reaching equilibrium.
It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, as interesterification may lead to a product with a firmer structure, while maintaining a well-balanced fatty acid or fatty acid residue profile with respect to its nutritional properties [0046].
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As to claims 18-19, CLEENEWERK teaches in [0040] that the triglyceride composition and/or the edible product according to the present invention, the amount of the hard or semi-hard fat component is present in the range from 10-90 wt %, preferably from 25-70 wt %, more preferably from 35-65 wt % and the amount of the liquid oil component is present in the range from 10-90 wt %, preferably 30-75 wt %, more preferably 35-65 wt %, all ranges with respect to the weight of the triglyceride composition. The amounts of the hard or semi-hard fat component and liquid oil component may vary, mainly depending on the hardness of the hard or semi-hard fat component which is chosen. Thus, it would have been obvious to vary the CN46, CN 48, and St2M triglycerides based on the desired hardness.
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As to clams 20-21, BERGSMA teaches a cheese composition with tapioca starch ( [0026], [0063) Table 1, Table 2). The starch can be modified or non-modified [0009].
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As to claims 22-23 , BERGSMA teaches a cheese composition with protein such as potato protein [0013]. BERMGSMA is silent as to other proteins but CLEENEWERCK teaches the use of ingredients comprising milk proteins (i.e., milk powders) [0049]. The ingredients facilitate blending and improve structure.
It would have been obvious to the skilled person that by using the protein facilitate blending and improve structure.
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BERGSMA teaches a cheese composition with ingredients that overlap or fall within the claimed ranges from 1% to 45% by weight of a starch in the form of 17% starch ([0012], Table 2); from 0% to 15% by weight of non-animal protein in the form of 2% of potato protein ([0020], Table 1, Table 2); and from 35% to 65% by weight of water in the form of 55.8% water ( [0027], Table 1, Table 2). The combination of starch and protein would overlap that claimed. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, 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.
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BERGSMA teaches a cheese composition comprising starch used in the present invention is preferably present in a quantity of 10-24 wt.% of the total composition.([0012], Table 2); 0.5 – 8.0 protein ([0020], Table 1, Table 2); and from 35% to 65% by weight of water in the form of 55.8% water ( [0027], Table 1, Table 2). The starch and potato protein would overlap that claimed 10.5-32% (i.e., In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, 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.
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BERGSMA teaches a cheese composition comprising starch used in the present invention is preferably present in a quantity of 10-24 wt.% of the total composition.([0012], Table 2); 0.5 – 8.0 protein ([0020], Table 1, Table 2); and from 35% to 65% by weight of water in the form of 55.8% water ( [0027], Table 1, Table 2). The starch and potato protein would overlap that claimed 10.5-32% (i.e., In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, 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.
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In [0033] of CLEENEWERCK, it is taught that that the SFC can be varied based on the desired firmness of the final product. Thus, it would have been obvious to vary the SFC based on the desired firmness.
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As to claim 35, BERGSMA teaches a cheese composition with tapioca starch ( [0026], [0063) Table 1, Table 2). The starch can modified or non-modified [0009]. BERGSMA teaches the starch can range from 1% to 45% starch ([0012], Table 2.
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BERGSMA teaches a cheese ( [0027], Table 1, Table 2) and a food product comprising the cheese analog (Abstract).
Response to Arguments
Applicant's arguments filed 2/3/2026 have been fully considered but they are not persuasive.
The applicant argues that Bergsma and Cleenewerck are incompatible and, therefore, one of ordinary skill would not be motivated to combine the references. In particular, it is argued that Bergsma is directed to providing a cheese analogue that is capable of being shredded, and then melted, whereas Cleenewerck is directed to providing a food product that is nutritionally more balanced while showing good hardness and texture, wherein the food product is a confectionery composition, such as a cream or a soft cheese, which are typically consumed at refrigerator temperature.
However, this does not take the overall teachings of Cleenewerck into consideration. Cleenewerck plainly teaches at [0050] that the edible product may take any form considered suitable by the person skilled in the art, for example it may be a confectionery composition, in particular a cream, a coating, a tablet, a filling, a filled chocolate product, a non-emulsified spread, a culinary product, a dough or a baked product, a solid fat ingredient for food products, soft cheese, or any other edible product known to the person skilled in the art. Moreover, Cleenewerck teaches that the hardness is a result effective variable. This can be done by varying the amount of hard fat [0040] and even fatty acids [0043]. Additionally, Cleenewerck teaches that that such interesterification, which may be either a complete randomization or only a partial interesterification, and which may be performed using a chemical or an enzymatic method, is that the interesterification may lead to a product with a firmer structure, while maintaining a well-balanced fatty acid or fatty acid residue profile with respect to its nutritional properties.
It cannot be said that Cleenewerck teaches away from Bergsma. Moreover, It would have been obvious to the skilled person that by using the fat composition and fatty acids of CLEENEWERCK, one could produce a nutritionally better balanced cheese analogue [0033] with good hardness and texture [0040], [0043].
Conclusion
THIS ACTION IS MADE FINAL. 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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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