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 March 10, 2026 is acknowledged. Claims 1-12 and 15-19 are pending in the application. Claims 13, 14, and 20 have been cancelled.
Definitions and Claim Interpretation
During patent examination, the pending claims must be "given their broadest reasonable interpretation consistent with the specification." The Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005). Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification or the term has been given a special definition in the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the time of the invention. The ordinary and customary meaning of a term may be evidenced by a variety of sources, including the words of the claims themselves, the specification, drawings, and prior art. However, the best source for determining the meaning of a claim term is the specification - the greatest clarity is obtained when the specification serves as a glossary for the claim terms. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) (discussed below); Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1372, 69 USPQ2d 1857 (Fed. Cir. 2004).
It is noted that the meaning of the following terms and phrases presented in the claims are determined by the definitions and descriptions provided in the instant specification:
Ideal whey is whey which contains undenatured or “native” whey protein (P5, L25).
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 1, 2, 9-11, and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Wolfschoon-Pompo et al. EP 1698231 (hereinafter “Wolfschoon-Pompo”).
With respect to claim 1, Wolfschoon-Pompo teaches a process for producing a cream cheese (paragraph [0001]).
Regarding the recitation of “for manufacturing a cream cheese” in the preamble of claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method comprising:(i) providing cheese curds, (ii) providing a whey protein solution comprising ideal whey (whey which contains undenatured or “native” whey protein”-see P5, L5 of instant specification) , (iii) subjecting the whey protein solution to a cavitation treatment sufficient to heat the whey protein solution to a temperature of from 80°C to 90°C to provide a heat-treated whey protein solution, (iv) mixing the cheese curds and the heat-treated whey protein solution to form a mixture, and (v) subjecting the mixture to a texture-building heat-treatment to form the cream cheese, wherein the texture-building heat-treatment comprises heating the mixture to a temperature of from 65°C to 90°C with shearing for a period of at least 15 minutes in claim 1, Wolfschoon-Pompo teaches obtaining cheese curds (i), obtaining a whey protein solution comprising whey in a native state (ideal whey) (ii), subjecting the whey protein solution to cavitation at a temperature of 75 to 90⁰C which encompasses the presently claimed temperature range (iii), blending the heat treated whey protein solution with the cheese curds (iv), and heat treating the blend at a temperature of 68°C to 90°C for at least 15 minutes with shearing to form the cream cheese (v) (paragraphs [0006]-[0009], [0012], [0015], [0021], [0024], [0026], [0029], [0030], and [0033]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 2, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein after step (ii) and before step (iii):(a) the whey protein solution is subjected to ultrafiltration, and/or (b) the pH of the whey protein solution is adjusted to obtain a pH of from 4.5 to 5.1 by fermentation with lactic acid bacteria, or by addition of citric acid in claim 2, Wolfschoon-Pompo teaches ultrafiltering the whey protein solution and/or adjusting the pH of the whey protein solution to 4.7-4.9 with addition of citric acid to or lactic acid bacteria fermentation of the whey protein solution (paragraphs [0006], [0008], [0013], [0014], [0029], and [0030]).
With respect to claim 9, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the whey protein solution:(i) comprises from 15 to 30wt% solids; and/or (ii) has a pH of from 5.7 to 6.1 in claim 9, Wolfschoon-Pompo teaches the whey protein solution has a solids content of 22 to 23% (paragraphs [0029] and [0035]).
With respect to claim 10, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the ideal whey comprises from 10 to 100wt% of protein in the whey protein solution in claim 10, Wolfschoon-Pompo teaches the whey proteins used are in a native state (paragraphs [0012] and [0029]).
With respect to claim 11, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the whey protein solution is formed by mixing:20 to 40wt% acid whey comprising from 4 to 8wt% solids; 40 to 60wt% sweet whey comprising from 4 to 8wt% solids; and 10 to 30wt% concentrated sweet whey comprising from 20 to 40wt% solids in claim 11, Wolfschoon-Pompo teaches using 45% sweet whey, 35% acid whey, and 20% sweet whey protein concentrate with about 30% solids in the example (paragraph [0029]).
Wolfschoon-Pompo does not expressly disclose the solids content of the acid whey or the sweet whey. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the solids content of the acid whey and the sweet whey in the method of Wolfschoon-Pompo through routine experimentation with the expectation of successfully preparing an organoleptically desirable cream cheese product. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo teaches preparing a cream cheese with a low dry matter content and enhanced creamy texture and mouthfeel (paragraphs [0001] and [0005]) and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claim 15, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the heat- treated whey protein solution is added to the cheese curds in a weight ratio of heat-treated whey protein solution to cheese curds of from 1:19 to 2:3 (1:0.67) in claim 15, Wolfschoon-Pompo teaches the whey protein solution and cheese curds are blended in a weight ratio of about 1:2 (calculated from 30% whey protein solution : 68.86% cheese curds) and about 1:5 (calculated from 16.80% whey protein solution : 82.05% cheese curds) (paragraph [0035]).
With respect to claim 16, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of the method further comprising filling the cream cheese into packaging in claim 16, Wolfschoon-Pompo teaches the cream cheese is filled into a package (paragraph [0033]).
With respect to claim 17, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the step of mixing the cheese curds and the heat-treated whey protein solution to form a mixture further comprises addition of one or more further ingredients selected from the group consisting of salt, stabilizers, and gums in claim 17, Wolfschoon-Pompo teaches salt, stabilizers, and/or gums are added during blending of the whey protein solution and cheese curds (paragraphs [0024], [0033], and [0035]).
With respect to claim 18, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the method is a continuous process from subjecting the whey protein solution to a cavitation treatment to the formation of the cream cheese in claim 18, Wolfschoon-Pompo teaches the method is a continuous process from subjecting the whey protein solution to cavitation to the preparation of the cream cheese (paragraphs [0006]-[0009]).
With respect to claim 19, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the cream cheese comprises less than 33wt% total solids in claim 19, Wolfschoon-Pompo teaches the cream cheese has a total solids content of 27.53% (paragraph [0035]).
Claims 3-8 are rejected under 35 U.S.C. 103 as being unpatentable over Wolfschoon-Pompo et al. EP 1698231 (hereinafter “Wolfschoon-Pompo”) as applied to claim 1 above, and further in view of Demmer et al. EP 2649884 (hereinafter “Demmer”).
With respect to claim 3, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the cheese curds are obtained in a method comprising: providing a dairy liquid comprising cream, a micro-filtered milk concentrate, and milk; fermenting the dairy liquid to form the cheese curds and a sour whey; and separating the cheese curds from the sour whey by ultrafiltration in claim 3, Wolfschoon-Pompo does not expressly disclose this limitation.
Demmer teaches a process of producing cream cheese from cheese curds and a whey protein solution. Cheese curds are produced from a dairy blend comprising milk, cream, and retentate from microfiltration of skim milk. The dairy blend is subjected to fermentation, and the curds are separated from the sour whey by ultrafiltration (paragraphs [0002], [0050], [0051], [0054], [0055], [0060], [0061], and [0066]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Demmer, to select the steps of obtaining cheese curds in the method of Wolfschoon-Pompo with the expectation of successfully preparing an organoleptically desirable cream cheese. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo and Demmer similarly teach methods of preparing cream cheese with cheese curds and whey protein solution, Demmer teaches the combination of dairy components allows to better tailor, standardize, and control the composition and properties of the final cream cheese, including flavor and texture (paragraphs [0002] and [0019]), Wolfschoon-Pompo teaches preparing a cream cheese with enhanced creamy texture and mouthfeel (paragraphs [0001] and [0005]), and said combination would amount to the use of known process steps for their intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
With respect to claim 4, modified Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 3 as addressed above.
Regarding the recitation of wherein the dairy liquid is obtained by: separating milk into cream and skimmed milk, micro-filtering the skimmed milk to produce a micro-filtered milk concentrate as a retentate and ideal whey as a permeate, and mixing the cream and micro-filtered milk concentrate together with the milk to form the dairy liquid in claim 4, Wolfschoon-Pompo as modified by Demmer teaches this limitation since Demmer is relied upon for the teaching of the dairy liquid (dairy blend) as addressed above in claim 3, and Demmer teaches the dairy blend (dairy liquid) is obtained by separating milk into cream and skim milk, subjecting the skim milk to microfiltration to obtain skim milk microfiltration retentate and a skim milk microfiltration permeate comprising whey proteins (ideal whey), and mixing skim milk microfiltration retentate, cream, and milk (paragraphs [0014], [0040], [0049], [0050], [0063], and [0064]).
With respect to claim 5, modified Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 3 as addressed above.
Regarding the recitation of wherein the whey protein solution comprises sweet whey comprising ideal whey from micro-filtering a skimmed milk and, optionally, sweet ideal whey from a hard cheese-making process in claim 5, Wolfschoon-Pompo does not expressly disclose this limitation.
Demmer teaches a process of producing cream cheese from cheese curds and a whey protein solution. The whey protein solution comprises whey obtained from the permeate of microfiltered skim milk (paragraphs [0002], [0014], [0040], [0049], [0050], [0063], [0065], and [0066]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Demmer, to select sweet whey comprising ideal whey from microfiltered skimmed milk in the method of Wolfschoon-Pompo with the expectation of successfully preparing an organoleptically desirable cream cheese. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo and Demmer similarly teach methods of preparing cream cheese with cheese curds and whey protein solution, Demmer teaches the combination of dairy components allows to better tailor, standardize, and control the composition and properties of the final cream cheese, including flavor and texture (paragraphs [0002] and [0019]), Wolfschoon-Pompo teaches preparing a cream cheese with sweet whey comprising whey proteins in a native state and the prepared cream cheese has enhanced creamy texture and mouthfeel (paragraphs [0001], [0005], and [0012]), and said combination would amount to the use of a known process step for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
With respect to claim 6, modified Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 3 as addressed above.
Regarding the recitation of wherein the method further comprises concentrating at least a portion of the ideal whey via evaporation, reverse osmosis or nano-filtration, to form a concentrated ideal whey in claim 6, Wolfschoon-Pompo does not expressly disclose this limitation.
Demmer teaches a process of producing cream cheese from cheese curds and a whey protein solution. The whey protein solution is subjected to concentration via evaporation, reverse osmosis, or nanofiltration (paragraphs [0002], [0014], [0038], [0040], [0063], [0065], [0066], [0072], and [0073]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Demmer, to select evaporation, reverse osmosis, or nanofiltration as the concentration in step in the method of Wolfschoon-Pompo with the expectation of successfully preparing an organoleptically desirable cream cheese. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo and Demmer similarly teach methods of preparing cream cheese with cheese curds and whey protein solution, Demmer teaches the combination of dairy components allows to better tailor, standardize, and control the composition and properties of the final cream cheese, including flavor and texture (paragraphs [0002] and [0019]), Wolfschoon-Pompo teaches whey protein concentrate comprising whey protein in a native state may be used, the whey protein concentrate may be obtained by any conventional method, and the prepared cream cheese has enhanced creamy texture and mouthfeel (paragraphs [0001], [0005], and [0012]), and said combination would amount to the use of a known process step for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
With respect to claim 7, modified Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 3 as addressed above.
Regarding the recitation of wherein the whey protein solution comprises sour whey from fermenting the dairy liquid in claim 7, Wolfschoon-Pompo as modified by Demmer teaches this limitation since Demmer is relied upon for the teaching of fermenting the dairy liquid (dairy blend) as addressed above in claim 3, Demmer teaches the whey protein solution comprises whey from the fermented dairy blend (dairy liquid) (paragraphs [0014], [0049], [0050], [0051], [0054], [0057], [0058], [0065], and [0066]), and Wolfschoon-Pompo teaches acid whey may be used in the whey protein solution (paragraph [0012]).
With respect to claim 8, modified Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 7 as addressed above.
Regarding the recitation of wherein the whey protein solution is formed by mixing sour whey from fermenting the dairy liquid and sweet whey comprising ideal whey from micro-filtering a skimmed milk and, optionally, sweet whey from a hard cheese-making process, and wherein at least a portion of the sweet whey comprising ideal whey has been pre-concentrated to form a concentrated sweet whey in claim 8, Wolfschoon-Pompo as modified by Demmer teaches the whey protein solution comprises sour whey from fermenting the dairy liquid since Demmer is relied upon for the teaching of fermenting the dairy liquid (dairy blend) as addressed above in claims 3 and 7, Demmer teaches the whey protein solution comprises whey from the fermented dairy blend (dairy liquid) (paragraphs [0014], [0049], [0050], [0051], [0054], [0057], [0058], [0065], and [0066]), and Wolfschoon-Pompo teaches acid whey may be used in the whey protein solution (paragraph [0012]).
However, Wolfschoon-Pompo does not expressly disclose the whey protein solution also comprises sweet whey comprising ideal whey from micro-filtering a skimmed milk.
Demmer teaches a process of producing cream cheese from cheese curds and a whey protein solution. The whey protein solution comprises whey obtained from the fermented dairy blend (dairy liquid) as well as the permeate of microfiltered skim milk (paragraphs [0002], [0014], [0040], [0049], [0050], [0051], [0054], [0057], [0058], [0063], [0065], and [0066]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Demmer, to select sweet whey comprising ideal whey from microfiltered skimmed milk in the method of Wolfschoon-Pompo with the expectation of successfully preparing an organoleptically desirable cream cheese. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo and Demmer similarly teach methods of preparing cream cheese with cheese curds and whey protein solution, Demmer teaches the combination of dairy components allows to better tailor, standardize, and control the composition and properties of the final cream cheese, including flavor and texture (paragraphs [0002] and [0019]), Wolfschoon-Pompo teaches preparing a cream cheese with acid whey and sweet whey comprising whey proteins in a native state and the prepared cream cheese has enhanced creamy texture and mouthfeel (paragraphs [0001], [0005], and [0012]), and said combination would amount to the use of a known process step for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Wolfschoon-Pompo et al. EP 1698231 (hereinafter “Wolfschoon-Pompo”) as applied to claim 1 above, and further in view of Spiegel et al. US 20160088855 (hereinafter “Spiegel”).
With respect to claim 12, Wolfschoon-Pompo is relied upon for the teaching of the method according to claim 1 as addressed above.
Regarding the recitation of wherein the whey protein solution is formed by mixing: 20 to 40wt% acid whey comprising from 4 to 8wt% solids; 5 to 15 wt.% sweet rennet whey concentrate comprising from 20 to 40wt.% solids; 30 to 55 wt.% sweet ideal whey comprising from 4 to 6 wt.% solids; and 5 to 15 wt.% sweet ideal whey concentrate comprising 20 to 40 wt% solids in claim 12, Wolfschoon-Pompo teaches using 45% sweet ideal whey, 35% acid whey, and 20% sweet ideal whey protein concentrate with about 30% solids in the example (paragraphs [0012] and [0029]).
However, Wolfschoon-Pompo does not expressly disclose the whey protein solution comprises sweet rennet whey concentrate.
Spiegel teaches a method for the production of cream cheese. Whey concentrates, such as sweet rennet whey, may be used to prepare the cream cheese (paragraphs [0002], [0023], and [0028]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Spiegel, to select sweet rennet whey concentrate based in its suitability for its intended purpose in the method of Wolfschoon-Pompo with the expectation of successfully preparing an organoleptically desirable cream cheese. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo and Spiegel similarly teach methods of preparing cream cheese with whey protein, Spiegel teaches preparing a cream cheese with improved properties (paragraph [0002]), Wolfschoon-Pompo teaches preparing a cream cheese with sweet whey from cheese manufacturing, the whey may be concentrated, and the prepared cream cheese has enhanced creamy texture and mouthfeel (paragraphs [0001], [0005], [0012], and [0024]), and said combination would amount to the use of a known process element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Modified Wolfschoon-Pompo also does not expressly disclose the solids content of the acid whey, the sweet ideal whey, or the sweet rennet whey concentrate and the claimed quantities of sweet rennet whey concentrate and sweet ideal whey concentrate. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the solids content of the acid whey, the sweet ideal whey, and the sweet rennet whey as well as the quantities of the whey components in the method of modified Wolfschoon-Pompo through routine experimentation with the expectation of successfully preparing an organoleptically desirable cream cheese product. One of ordinary skill in the art would have been motivated to do so because Wolfschoon-Pompo teaches preparing a cream cheese with a low dry matter content and enhanced creamy texture and mouthfeel as well as blending the ingredients on a weight basis in order to achieve the desired levels in the end product (paragraphs [0001], [0005], and [0024]) and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Response to Arguments
Applicant’s remarks filed March 10, 2026 are acknowledged.
Due to the amendments to the claims, the 35 USC 112 rejection (P6) and the 35 USC 102 rejection of claims 1, 2, 9, 10, and 13-19 over Wolfschoon-Pompo in the previous Office Action have been withdrawn. However, a new ground of rejection (35 USC 103) over claims 1, 2, 9, 10, and 13-19 in view of Wolfschoon-Pompo has been made as addressed above.
Applicant’s arguments have been fully considered, but they are unpersuasive.
Applicant argues Wolfschoon-Pompo does not teach subjecting a whey protein solution to a cavitation treatment sufficient to heat the whey protein solution to a temperature of from 80°C to 90°C to provide a heat-treated whey protein solution as required by claim 1. The step (d) of homogenizing the blend at a temperature of 5 to about 75°C in Wolfschoon-Pompo does not fall within the scope of the cavitation step of claim 1. The skilled person would appreciate that homogenization and cavitation processes are distinct. The homogenizer is not acting as a cavitator and would not be capable of heating the mixture to at least 80°C by cavitation. Wolfschoon-Pompo only discloses a maximum temperature of 75°C during homogenization, which is below the lower limit of claim 1 during cavitation (80°C). This high level of cavitation required to heat the solution to from 80°C to 90°C is not disclosed in Wolfschoon-Pompo. The skilled person would not consider modifying Wolfschoon-Pompo to replace the homogenization step with cavitation or increase the temperature to a range of from 80°C to 90°C. Wolfschoon-Pompo also does not disclose step (v) of claim 1, where the mixture is subjected to a texture-building heat-treatment that comprises heating the mixture to a temperature of from 65°C to 90°C with shearing for a period of at least 15 minutes. Step (f) of homogenizing the product of (e) in a 2-stage high pressure homogenizer at a temperature of 68°C to 90°C does not fall within the scope of the claimed texture-building heat-treatment step. The claimed texture building step requires shearing for a period of at least 15 minutes. No such shearing is disclosed in Wolfschoon-Pompo. The claimed process results in a cream cheese that has the required viscosity and smooth texture. Accordingly, the skilled person would not have arrived at the process of claim 1 without the benefit of hindsight (P7-P13 and P15).
Examiner disagrees. The claimed invention is obvious in view of Wolfschoon-Pompo. Applicant is reminded that it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant appears to selectively attack certain portions of the reference while completely ignoring the explicit teachings relevant to the claimed invention. However, “Applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967).
As addressed above, Wolfschoon-Pompo teaches subjecting the whey protein solution to a cavitation treatment sufficient to heat the whey protein solution to a temperature of from 80°C to 90°C in claim 1 since Wolfschoon-Pompo teaches subjecting the whey protein solution to cavitation at a temperature of 75°C to 90°C which encompasses the presently claimed range (paragraphs [0006], [0008], [0015], [0021], and [0030]). A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. e.g., In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (CCPA 1976); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974). Although Wolfschoon-Pompo teaches utilizing a homogenizer, Wolfschoon-Pompo is not limited to this embodiment since the reference also teaches this heating step can be carried out in several different ways with various kinds of equipment and with agitation (paragraphs [0015]-[0017]). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983).
Additionally, Wolfschoon-Pompo teaches the texture-building heat treatment comprises heating the mixture to a temperature of from 65°C to 90°C with shearing for a period of at least 15 minutes since Wolfschoon-Pompo expressly discloses agitating the product (mixture) at a temperature of 68°C to 90°C, which falls within the claimed range, for at least 15 minutes (step g) (paragraphs [0006]-[0009], [0026], and [0033]). Thus, Wolfschoon-Pompo successfully teaches the claimed invention. Applicant is remined if a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc).
Further, the characteristics of a cream cheese with high viscosity and a creamy/smooth texture are indeed expected in view of Wolfschoon-Pompo since the reference teaches preparing a cream cheese with an enhanced creamy texture, mouthfeel, and viscosity (paragraphs [0005], [0010], and [0033]). Applicant is reminded that any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (differences in sedative and anticholinergic effects between prior art and claimed antidepressants were not unexpected). In other words, the unexpectedness must be sufficient “to secure the validity of the claims in suit.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1381 (Fed. Cir. 2005) and MPEP 716.02.
Applicant argues Demmer does not remedy the deficiencies of Wolfschoon-Pompo. Figure 6 of Demmer does not correspond to the cavitation step of claim 1. The claimed cavitation step is not taught or suggested in the process of Demmer. Spiegel is silent on a cavitation step and merely refers to homogenizing fermented milk blends that have previously been heated to a temperature of 70°C. Thus, the combination of Wolfschoon-Pompo and Spiegel fails to teach or suggest each and every limitation of claim 1 (P13-P16).
Examiner disagrees. As previously addressed, Wolfschoon-Pompo teaches every element of claim 1. Demmer is relied upon for the teachings of dependent claims 3-8, and Spiegel is relied upon for the teaching of dependent claim 12. While Demmer and Spiegel do not disclose all the features of the presently claimed invention, Demmer and Spiegel are used as teaching references, and therefore, it is not necessary for the secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Additionally, as stated in MPEP 2145 III., “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]I is not necessarily that the inventions of the references be physically combinable to render obvious the invention under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve the ability to combine their specific structures.”).
Conclusion
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.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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