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 Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-17, 21, 23-25, 30-31, 34
Withdrawn claims:
None
Previously canceled claims:
18-20, 22, 26-29, 32-33, 35-47
Newly canceled claims:
None
Amended claims:
None
New claims:
None
Claims currently under consideration:
1-17, 21, 23-25, 30-31, 34
Currently rejected claims:
1-17, 21, 23-25, 30-31, 34
Allowed claims:
None
Drawings
The drawings are objected to because Fig. 1 is illegible. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 7-9, and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]).
Regarding claim 1, Brander teaches a cheese analog product made with vegetable protein rather than dairy protein (Abstract) comprising:
Caseinate (which necessarily comprises at least one casein subunit) in the weight percent of 2 to 10% (Abstract), which falls within the claimed range of “about 0.1% to about 25%”;
Soy milk in the weight percent of 9 to 19% (Abstract), where soy milk comprises 35 to 48% protein (col. 2, line 20, Table). Therefore, the composition comprises 3.15% to 9.12% soy protein (i.e., a plant protein), which falls within the claimed range of “about 1% to about 28%”.
Vegetable oil (i.e., a non-dairy fat; col 1, lines 5-8);
Gelatin (col. 3, lines 46-50), where gelatin is a known stabilizer.
Evidence to support that caseinate necessarily comprises at least one casein subunit is provided by Cao. Cao teaches that caseinate is derived from casein (Abstract) and that casein comprises individual caseins including αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins (p. 1, col. 1, ¶ 1), which are all subunits of casein. Evidence to support that gelatin is a known stabilizer is provided by the instant specification. The instant specification discloses that stabilizers include gelatin [0033]).
Regarding claim 2, Brander teaches the composition comprising caseinate (Abstract), which necessarily comprises αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins. Evidence to support that caseinate comprises αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins is provided by Cao. Cao teaches that caseinate is derived from casein (Abstract) and that casein comprises individual caseins including αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins (p. 1, col. 1, ¶ 1).
Regarding claim 3, Brander teaches the composition comprises vegetable oil (i.e., a non-dairy fat) in an amount of preferably 18.0 [Symbol font/0xB1] 2 % (col. 3, Table lines 1-8), which falls within the claimed range of “about 15% to about 40% by weight”.
Regarding claim 4, Brander teaches that the composition comprises vegetable oil (Abstract) as claimed.
Regarding claim 7, Brander teaches that the composition comprises dairy whey (Abstract), which comprises lactic acid (i.e., an organic acid; col. 2, lines 50-60).
Regarding claim 8, Brander teaches that the composition comprises dairy whey (Abstract), which comprises lactic acid (col. 2, lines 50-60), and tetrasodium pyrophosphate (col. 3, lines 27-44).
Regarding claim 9, Brander teaches that the cheese analog has good melting and mouthfeel (col. 1, lines 65-68).
Regarding claims 13 and 14, Brander teaches that the composition uses a soy product as the primary source of protein (col. 2, lines 1-3).
Claim 30 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) and further evidenced by Boomsma (Boomsma, B., et al. “L-Lactic Acid – A Safe Antimicrobial for Home- and Personal Care Formulations”, SOFW Journal, Vol. 141, published October 2015 [accessed online October 31, 2025]).
Regarding claim 30, Brander teaches that the cheese analog comprises dairy whey (Abstract) and that dairy whey comprises lactic acid (col. 2, Table, lines 50-58), which necessarily acts as an antimicrobial. Evidence to support that lactic acid acts as an antimicrobial is provided by Boomsma. Boomsma teaches that lactic acid is an effective antimicrobial (Abstract).
Claim 34 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gautier (US 2020/0359665 A1) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]).
Regarding claim 34, Gautier teaches a cream substitute (Abstract) comprising:
Casein in an amount from 0.5% to 5.0% ([0105]), which falls within the claimed range of “about 0.1% to about 25%”. Casein necessarily comprises casein subunits;
A pulse protein (i.e., plant protein) in an amount of preferably 1% to 8% ([0012]), which falls within the claimed range of “about 1% to about 28%”;
A fat component comprising vegetable oils (i.e., plant-based; [0076]);
Additives such as stabilizers and sweeteners ([0079]).
Evidence to support that caseinate necessarily comprises at least one casein subunit is provided by Cao. Cao teaches that casein comprises individual caseins including αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins (p. 1, col. 1, ¶ 1), which are all subunits of casein.
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.
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 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) in view of Gamay (US 2006/0093723 A1).
Regarding claim 5, Brander does not teach wherein the at least one stabilizer comprises at least one of starch, at least one gum, at least one pectin, and/or a combination thereof.
However, in the same field of endeavor, Gamay teaches a cheese composition (Abstract) comprising starch ([0048]) and gums ([0050]).
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 composition of Brander with the addition of starch and gums as taught by Gamay. One of ordinary skill would have been motivated to make this modification because Gamay teaches that gums are a texture modifier ([0035]) and that starches are texture-enhancing agents ([0048]).
Regarding claim 6, Brander does not teach wherein the at least one starch is selected from the group consisting of potato starch, corn starch, tapioca starch, rice starch, plantain starch, and/or a combination thereof, and wherein the at least one gum is selected from the group consisting of xanthan gum, locus bean gum, guar gum, agar, konjac gum, gum acacia, gum arabic and a combination thereof.
However, in the same field of endeavor, Gamay teaches that the starch may be corn, potato, tapioca, or rice starch ([0049]) and that the gum may be xanthan gum or guar gum ([0050]).
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 composition of Brander with the addition of starch and gums as taught by Gamay. One of ordinary skill would have been motivated to make this modification because Gamay teaches that gums are a texture modifier ([0035]) and that starches are texture-enhancing agents ([0048]).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) in view of Strandholm (US 5,068,118).
Regarding claim 10, Brander does not teach the amount of α-casein.
However, in the same field of endeavor, Strandholm teaches of a simulated cheese product containing casein (Title) comprising α-s1- or α-s2 casein (col. 2, lines 56-62) used to replace 10 to 100% of the total protein in the composition, where the total amount of protein in the composition is about 8% to about 25% (col. 3, lines 1-5). Thus, the amount of α-s1- or α-s2 casein in the composition is about 0.8% to about 25%, which overlaps with the claimed range of “about 0.3% to about 2%”.
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 composition of Brander with the use of α-caseins in an amount taught by Strandholm. One of ordinary skill would have been motivated to make this modification because Strandholm teaches that the invention is used to control the cheese properties of texture, firmness, and meltability (col. 1, lines 10-15).
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) in view of Pandya (US 2017/0164632 A1).
Regarding claim 11, Brander does not teach the amount of β-casein.
However, in the same field of endeavor of products containing casein, Pandya teaches of dairy substitutes ([0002]) comprising 1.23% to 3.27% β-casein ([0012]), which overlaps with the claimed range of “about 0.3% to about 2% by weight”
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 composition of Brander with the use of β-casein in the amount taught by Pandya. 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 §2114.05 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 12, Brander does not teach the amount of [Symbol font/0x6B]-casein in the composition.
However, in the same field of endeavor, Pandya teaches of dairy substitutes ([0002]) comprising 0.27% to 0.75% [Symbol font/0x6B]-casein ([0012]), which overlaps with the claimed range of “about 0.3% to about 2% by weight”.
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 composition of Brander with the use of β-casein in the amount taught by Pandya. 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 §2114.05 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.
Claims 15-17, 21, 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Gautier (US 2020/0359665 A1) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]).
Regarding claim 15, Gautier teaches a yogurt product comprising (from p. 9, Table 9):
Pea protein isolate (i.e., a plant protein) in an amount of 4.12%, which falls within the claimed range of “about 1% to about 28% by weight”;
Sunflower oil (i.e., a non-dairy fat);
Pectin (i.e., a stabilizer); and
A yogurt culture.
Although the yogurt composition does not comprise casein subunits, Gautier teaches that the cream substitute of the present invention may comprise casein in an amount between 0.5% and 5.0% by weight ([0105]), which falls within the claimed range of “about 0.1% to about 25% by weight”. Casein necessarily comprises casein subunits, es evidenced by Cao. Cao teaches that that casein comprises individual caseins including αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins (p. 1, col. 1, ¶ 1), which are all subunits of casein.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to include casein in the yogurt composition of Gautier. 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 claim 16, Gautier teaches that the cream substitute may comprise casein, which necessarily comprises αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins. Evidence to support that casein comprises casein subunits is provided by Cao. Cao teaches that that casein comprises individual caseins including αs1-, αs2,- β-, and [Symbol font/0x6B]-caseins (p. 1, col. 1, ¶ 1), which are all subunits of casein.
Regarding claim 17, Gautier teaches sunflower oil (i.e., a non-dairy fat) in an amount of 1.70% (p. 9, Table 9), which falls within the claimed range of “about 1% to about 20%”.
Regarding claim 21, Gautier also teaches that the yogurt composition comprises lactic acid (i.e., an organic acid; p. 9, Table 9).
Regarding claim 23, although Gautier does not teach that the yogurt composition comprises an emulsifying salt selected from the claimed compounds, Gautier does teach of creams that comprise sodium hexametaphosphate (p. 10, Table 10).
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 yogurt composition of Gautier with the addition of sodium hexametaphosphate. 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 claim 24, although Gautier does not teach that the yogurt composition comprises at least one sugar or sweetener that is a mono- or disaccharide, or a combination thereof, Gautier does teach that the composition may be a mono- or disaccharide ([0077]).
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 yogurt composition of Gautier to have a mono- or disaccharide added. 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).
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Gautier (US 2020/0359665 A1) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) and further evidenced by Yasharoff (Yasharoff, Hannah. “Is Pineapple good for you? Nutritionists answer commonly-searched questions”, USA Today, Health and Wellness, published April 30, 2024 [accessed online October 31, 2025]).
Regarding claim 25, Gautier teaches the yogurt composition comprising pineapple fruit filling, which necessarily comprises a natural sugar (p. 9, Table 9). Evidence to support that pineapple necessarily comprises sugar is provided by Yasharoff. Yasharoff teaches pineapple comprises natural sugars (p. 2, ¶ 3-4).
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Brander (US 4,556,569) as evidenced by Cao (Cao, Feng, et al. “Insights on the structure of caseinate particles based on surfactants-induced dissociation”, Food Hydrocolloids, Vol. 104, article 105766, published February 12, 2020 [accessed online October 30, 2025]) and further evidenced by Boomsma (Boomsma, B., et al. “L-Lactic Acid – A Safe Antimicrobial for Home- and Personal Care Formulations”, SOFW Journal, Vol. 141, published October 2015 [accessed online October 31, 2025]) and further in view of Gamay (US 2006/0093723 A1).
Regarding claim 31, Brander does not teach the composition comprising nisin, lactobacillus microorganisms, or potassium sorbate.
However, in the same field of endeavor, Gamay teaches of a cheese spread comprising potassium sorbate ([0058]).
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 7:30a-5:00p, F 8:00a-12:00p.
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