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 examiner acknowledges the amendment made to the claims on 06/05/2026 and 02/26/2026. The claims filed 06/05/2026 are examined.
Claims 1, 3-7 and 9-12 are pending in the application. Claims 1, 4, 5, 7, 11 and 12 are currently amended. Claims 2 and 8 are currently cancelled. Claims 3, 6 and 9-10 are previously presented. Claims 1, 3-7 and 9-12 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claim 7 is objected to because of the following informalities: “ the material” should read “the material composition”. Appropriate correction is required.
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.
Claims 1, 3-7, 9 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger US Patent Application Publication No. 2015/0305361 A1 (cited in the IDS submitted 08/25/2023, hereinafter referred to as Holz-Schietinger).
Regarding claims 1 and 11, Holz-Schietinger teaches a method of producing a stretchable cheese alternative (e.g., cheese replica, see Abstract) (0023; 0033; 0083) comprising a step of treating a material composition (e.g., a non-dairy cheese source which is an emulsion) comprising plant protein (0093-0094) and starch such as corn starch, potato starch and a gum (0140; 0238) with a protease (0176). Holz-Schietinger teaches that the plant protein is a pea protein, chickpea protein and/or a lentil protein (0040).
Holz-Schietinger as recited above teaches that the non-dairy cheese source comprises a plant protein and starch but does not expressly teach the ratio of the two. The ratio of the two depends on the amount of the plant protein and the amount of the starch in the non-dairy cheese source. In the instant case, Holz-Schietinger teaches that the non-dairy cheese source is an emulsion comprising plant protein provided as a protein solution, and fat (0093; 0101), that the plant protein could account for 100% of the protein content of the protein solution (0101), and that the total protein content of the protein solution is about 0.1- 20% or more than 20% (w/v) (0101). Further, Holz-Schietinger teaches that sugar such as starch function to modify the flavor, melting characteristic and stretchability of the cheese replica (0083; 0140; 0238). Therefore, one of the ordinary skill in the art would have been motivated to manipulate the amount of starch in the non-dairy cheese source so as to ensure that the final cheese replica has desired flavor profile, melting characteristic and stretchability. As such, the ratio as recited in the claim is merely an obvious variant of the prior art.
Further regarding claim 11, Holz-Schietinger teaches that the stretchability of the cheese replica is modified by the protease, thus reading the preamble language about “ improving stretchability”.
Regarding claim 3-5, Holz-Schietinger teaches that the protease is bacterial-derived protease such as a protease derived from Bacillus licheniformis (0180).
Regarding claim 6, Holz-Schietinger as recited above teaches a protease but is silent regarding the protease activity unit. What Holz-Schietinger teaches is that the flavor profile and stretchability property of the cheese replica can be modulated by the protease through adjusting the amount of the protease (0083; 0177). Thus given that the enzyme activity unit will govern the amount of an enzyme that is used, one of ordinary skill in the art would have been motivated to choose a protease having a desired activity so as to ensure that the amount of protease is sufficient to improve the flavor profile and stretchability of the cheese replica. As such, the protease activity unit as recited in the claim is merely an obvious variant of the prior art.
Regarding claims 7 and 12 , Holz-Schietinger further teaches treating the material composition with a peptidase (0179).
Regarding claim 9, Holz-Schietinger teaches that the non-dairy cheese source is an emulsion comprising plant protein provided as a protein solution, and fat (0093; 0101), that the plant protein could account for 100% of the protein content of the protein solution (0101), that the total protein content of the protein solution is about 0.1- 20% or more than 20% (w/v) (0101), and that the emulsion is prepared by admixing the protein solution with the fat a ratio of 1:10 to 10:1 (w/w), therefore, assuming a density of ~ 1 g/ml for the protein solution, Holz-Schietinger teaches a plant protein concentration that at least overlaps with the range as recited in claim 9. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger teaches as applied to claim 1 above, and further in view of Grzanich US Patent Application Publication No. 2017/0172169 A1 (hereinafter referred to as Grzanich).
Regarding claim 10, Holz-Schietinger as recited above teaches that a corn starch or potato starch thus being silent regarding tapioca starch.
In the same field of endeavor, Grzanich teaches that corn starch, potato starch and tapioca starch is suitable starch used to make a cheese replica (e.g., a soy-based cheese) that comprises a plant protein, an oil and a microbial strain (0004; 0006).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Holz-Schietinger by substituting tapioca starch for corn starch or potato starch in the non-dairy cheese source of Holz-Schietinger with reasonable expectation of success, for the reason that prior art has established that all these three types of starch are art-recognized starch suitable for making a plant-based cheese and one of ordinary skill in the art would have been motivated to substitute one for another. Substituting equivalents known for the same purpose is prima facie obvious. See MPEP 2144.06 II. See also MPEP 2144.07. which states that the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination.
Response to Arguments
Applicant's arguments filed 02/26/2026 have been fully considered (note that there is no argument made in the Remarks filed 06/05/2026) and the examiner’s response is shown below:
The ODP type of rejection is withdrawn because the argument is persuasive.
The 35 USC 101 rejection of claims 11-12 are withdrawn in view of the amendment made to the claims.
The 35 USC 112(b) rejection of claims 2 and 5 are withdrawn in view of the cancellation of claim 2 and the amendment of claim 5.
The 35 USC 102 rejection of claims 1, 3-5, 7-8 and 11-12 are withdrawn in view of the amendment made to claims 1 and 11.
Regarding the 35 USC 103 rejection of previously presented claim 2 (or instant claim 1), applicant asserts unexpected result. In particular, applicant asserts that Table 3 of the instant specification has demonstrated that inventive Example 4-9 with a starch/protein ratio being in the range as claimed have unexpectedly exhibited improved stretchability over Examples 1-3 the starch/protein ratio of which is greater than 0.6.
The assertion is acknowledged. The examiner, after careful and thorough consideration, submitted that the showing is not sufficient to overcome the rejection of pending claims based upon the references as set forth in the last Office action because:
First, the showing is not commensurate in scope with the claim. For example, where the instant claims 1 and 11 recite a broad range of 0.1-0.6 (0.6 not included) for starch/protein ratio, the inventive Example 4-9 are only about samples the starch/protein ratio of 0.56 and 0.48. The two datapoints can hardly enable the broad range of 0.1-0.6, given that no trend can be ascertained form the showing.
Second, it is noted Example 1 or 3 with a starch/protein ratio of 2.8 or 0.84 respectively has a stretch length of 80 mm, which is actually superior to inventive Examples 5-9. Note that inventive Example 7 used a much high dosage of protease (e.g., Thermoase GL30) than Example 1 or Example 3. Similarly, Example 2 appears to be more stretchable than inventive Example 6-9. Further, the stretch length of Example 1 or 3 is almost as good as Inventive Example 4 (e.g., 2 mm difference). As such, judging from the stretch length of the samples, it is questionable whether the ratio of 0.1-0.6 is really critical in obtaining a more stretchable cheese alternative
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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