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 § 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.
Claims 36-50 are 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 pre-AIA the applicant regards as the invention.
Claim 36 recites the limitation “A method for preparing a food cream that is salty and spreadable, the food cream composed of” in lines 1-2 as well as the limitation “0.1% by weight to 5 % by weight of at least one additional supporting ingredient” in line 10. The words “composed of” may under certain circumstances be given, in patent law, a broader meaning than “consisting of” in view of In re Bertsch, 132 F.2d 1014, 1019-20, 56 USPQ 379, 384 (CCPA 1942) (MPEP § 2111.03.IV.). The phrase “at least one additional supporting ingredient” broadly encompasses the presence of any ingredient since any ingredient is capable of being provided as a “additional supporting” ingredient. It is unclear what the metes and bounds of Claim 36 are since the transitional phrase “composed of” is accompanied in the claims with the phrase “at least one additional supporting ingredient,” which broadly reads on any ingredient since the particular “at least one additional supporting ingredient” is not specified in Claim 36.
Claim 36 recites the limitation “0.1% by weight to 5% by weight of at least one additional supporting ingredient with salt not exceeding 2.5%” in lines 10-11. Applicant discloses salt to be a type of additional supporting ingredient (Specification, Page 5, line 32) (Specification, Page 6, lines 1-2). It is unclear if the claimed “at least one additional supporting ingredient” encompasses salt or if the claimed “at least one additional supporting ingredient” is different than salt due to applicant’s disclosure that salt is a type of additional supporting ingredient. If salt does in fact read on the claimed “at least one additional supporting ingredient,” it is unclear if the concentration of “0.1% by weight to 5% by weight of at least one additional supporting ingredient” includes “salt not exceeding 2.5%” or if the claimed weight of “at least one additional supporting ingredient” does not include “salt not exceeding 2.5%.”
Claim 36 recites the limitation “wherein the food cream is substantially free of added sugars” in lines 22-23. Claim 36 also recites “at least one dehydrated, dried, and/or freeze dried flavor component other than powdered milk” in lines 5-6 as well as the limitation “powdered milk or its derivatives” in lines 7-8 as well as the limitation “at least one emulsifier” in line 9. It is unclear if any sugars inherently present in the flavor component, the powdered milk or its derivatives, and/or the at least one emulsifier are allowed in the food cream by virtue of the phrase “substantially free of added sugars.” It is unclear if the entire food cream is substantially free of sugars or if the food cream can contain sugars naturally present in the flavor component, the powdered milk or its derivatives, and/or the at least one emulsifier.
Clarification is required.
Claims 37-50 are rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 36-38, 42-43, 45, and 48-50 are rejected under 35 U.S.C. 103 as being unpatentable over Arfsten et al. US 2014/0154394 in view of Kawamura et al. US 2013/0323390, Abboud et al. US 2004/0213884, Murray et al. US 2003/0129281, Eichelberger et al. US 2003/0211224, Silenzi et al. US 2008/0241345, Yoder “Easy Sugar Free Cream Cheese Frosting” < https://www.ohsweetmercy.com/easy-sugar-free-cream-cheese-frosting-low-carb/> (published December 21, 2020), and Carrel “Added sugar has no place in cream cheese!” <https://web.archive.org/web/20200930071952/https://jacquicarrel.co.uk/added-sugar-has-no-place-in-cream-cheese/> (archived September 30, 2020).
Regarding Claim 36, Arfsten et al. discloses a method for preparing a food cream that is salty (savory) (‘394, Paragraph [0092]) and spreadable (‘394, Paragraph [0068]). The food cream is composed of 37% by weight of at least one lipid component consisting of at least one solid fat and at least one oil (oil powder and soy oil) (25% solid fat + 8% oil powder + 4% soy oil = 37% solid fat + oil), 47% by weight of at least one dehydrated and/or dried flavor component (10% whey powder + 37% cheese powder), and 1.5% at least one additional supporting ingredient (1.4% flavor + 0.1% color = 1.5% at least one additional supporting ingredient), which falls inside the claimed concentration of 20% by weight to 50% by weight of at least one lipid component consisting of at least one solid fat and at least one oil and 5% by weight to 50% by weight of at least one dehydrated, dried, and/or freeze dried flavor component, and 0.1% by weight to 5% by weight of at least one additional supporting ingredient, respectively. The food cream also has a salt content in the range of 0-2% by weight of the filling composition (‘394, Paragraph [0070]), which falls within the claimed salt content not exceeding 2.5%, and the at least one oil being 12% with respect to a total weight of the food cream (8% oil powder + 4% soy oil = 12% oil), which overlaps the claimed salt quantity of the food cream note exceeding 2.5% and the at least one oil being less than or equal to 30% by weight with respect to a total weight of the food cream, respectively. Where the claimed concentration of at least one lipid component, at least one dehydrated, dried, and/or freeze dried flavor component, at least one additional supporting ingredient, salt, and at least one oil encompasses ranges disclosed by particular examples in the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, one of ordinary skill in the art would adjust the salt content of the cream cheese based upon the desired saltiness of the cream cheese by a particular consumer.
Arfsten et al. further discloses generically that the food cream is made of at least one filler of powdered milk and its derivatives (milk and/or whey proteins powder (‘394, Paragraphs [0047] and [0070]) and emulsifier (‘394, Paragraphs [0056] and [0070]). Although Arfsten et al. does not explicitly disclose the food cream having the claimed concentration of 20% by weight to 55% by weight of at least one filler consisting of powdered milk or its derivatives or 0.2% by weight to 3% by weight of at least one emulsifier, Kawamura et al. discloses cream cheese (‘390, Paragraph [0095]) having an emulsifier used in an amount of 0.01% by weight or more within a range not affecting the flavor (‘390, Paragraph [0098]). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of the at least one emulsifier of Arfsten et al. since Kawamura et al. teaches using a small amount of emulsifier in a cream cheese. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of the at least one filler of powdered milk or its derivatives and also adjust the concentration of the at least one emulsifier of Arfsten et al. since differences in the concentration of the at least one filler of powdered milk or its derivatives and the at least one emulsifier of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of the at least one filler of powdered milk or its derivatives and the at least one emulsifier of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claim 36, Kawamura et al. discloses the cream cheese (‘390, Paragraph [0095]) containing a powdered or paste like water activity reducing agent dissolved in a solvent usable for a food product wherein the concentration of the water activity reducing agent is not particularly limited and is adjusted by water addition and/or by heat depending on the type of food product to which the water activity reducing agent is added (‘390, Paragraph [0080]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water activity value of the food cream of Arfsten et al. since differences in the water activity value of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water activity value of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Kawamura et al. teaches that it was known and conventional to adjust the water activity value of cream cheese. Furthermore, Abboud et al. discloses a shelf stable shredded cheese comprising natural or process cheese, cheese powder, glycerin, and filler wherein the shelf stable shredded cheese has a water activity of less than about 0.5 (‘884, Paragraph [0008]) wherein the process or natural cheese includes cream cheese (‘884, Paragraph [0013]), which reads on the claimed water activity of lower than 0.5. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water activity value of the cream cheese of modified Arfsten et al. as taught by Abboud et al. since where the claimed water activity value ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Abboud et al. teaches that there was known utility in the food art to make a cream cheese with the claimed water activity value ranges.
Further regarding Claim 36, Arfsten et al. modified with Kawamura et al. and Abboud et al. is silent regarding the food cream having a viscosity as measured in accordance with ISO 2555:2018 between 11000 cP and 65000 cP.
Murray et al. discloses cream cheese (‘281, Paragraph [0023]) having a viscosity in the range of about 50000 to about 500000 cps (‘281, Paragraph [0030]), which overlaps the claimed viscosity of between 11000 cP and 65000 cP, wherein the viscosity is adjusted by varying the process conditions of temperature of the feed stocks and/or addition of viscosity modifiers (‘281, Paragraph [0023]).
Both modified Arfsten et al. and Murray et al. are directed towards the same field of endeavor of cream cheeses. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cream cheese of modified Arfsten et al. and adjust the viscosity of the cream cheese to the claimed viscosity levels as taught by Murray et al. since where the claimed cream cheese viscosity ranges are disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the viscosity of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such viscosity of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Murray et al. teaches that there was known utility in the food art to adjust the viscosity levels of cream cheese by varying temperature process conditions and/or addition of viscosity modifiers (‘281, Paragraph [0030]).
Further regarding Claim 36, Arfsten et al. modified with Kawamura et al., Abboud et al., and Murray et al. is silent regarding the food cream having a fineness as measured in accordance with ISO 1524:2020 between 10 µm and 100 µm.
Eichelberger et al. discloses a cream cheese (‘224, Paragraph [0049]) wherein the viscosity and fineness of a grind is reduced to improve texture and spreadability (‘224, Paragraph [0008]).
Both modified Arfsten et al. and Eichelberger et al. are directed towards the same field of endeavor of cream cheeses. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cream cheese of modified Arfsten et al. and adjust the fineness of the food cream to the claimed fineness levels since differences in the fineness of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such fineness of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the fineness of the cream cheese of modified Arfsten et al. based upon the desired texture and spreadability of the cream cheese as taught by Eichelberger et al. (‘224, Paragraph [0008]).
Further regarding Claim 36, Arfsten et al. discloses ingredients and mixing of the ingredients being carried out by conventional mixing and/or refining methods using standard industrial mixing apparatuses (‘394, Paragraphs [0078] and [0095]). However, Arfsten et al. modified with Kawamura et al., Abboud et al., Murray et al., and Eichelberger et al. is silent regarding the step of refining the ingredients being conducted at a first predetermined working temperature in a range of from 35°C to 50°C for a first predetermined working time of between 20 minutes and 140 minutes.
Silenzi et al. discloses a method of preparing a food cream (faux peanut butter) (‘345, Paragraph [0004]) wherein the food cream (faux peanut butter) is made of at least one lipid component consisting of at least one oil (‘345, Paragraph [0011]) wherein ingredients of the food cream are mixed to produce a paste that is refined (mixed and blended) for approximately 15 minutes to one hour at from about 100 to about 140 degrees Fahrenheit until it reaches a consistent blend (‘345, Paragraph [0015]), which converts to about 37.7°C to about 60°C, which overlaps the claims refining of ingredients at a predetermined working time between 20 minutes and 140 minutes and a first predetermined working temperature in a range of 35°C to 50°C, respectively.
Both modified Arfsten et al. and Silenzi et al. are directed towards the same field of endeavor of food cream emulsions comprising ingredients that are mixed together. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and refine/mix the ingredients at the claimed first predetermined working temperature and the claimed predetermined working time as taught by Silenzi et al. since where the claimed refining/mixing step of the first predetermined working temperature and the first predetermined working time overlaps the first predetermined working temperature and the first predetermined working time disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the refining/mixing first predetermined working temperature range and first predetermined working time range will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such first predetermined working temperature range and first predetermined working time range is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.). One of ordinary skill in the art at the time of the invention would modify the process of modified Arfsten et al. and adjust the refining/mixing step having varied first predetermined working temperature and first predetermined working time based upon the desired consistency of the food cream as taught by Silenzi et al. (‘345, Paragraph [0015]).
Further regarding Claim 36, Arfsten et al. does not disclose or suggest incorporating dried fruit into the cream cheese. However, Arfsten et al. modified with Kawamura et al., Abboud et al., Murray et al., Eichelberger et al., and Silenzi et al. is silent regarding the food cream being substantially free of added sugars.
Yoder discloses a sugar free cream cheese comprising cream cheese, butter, stevia extract sweetener, and vanilla extract (Yoder, Page 3) wherein the amount of sweetener is increased as needed until it’s as sweet as you like it (Yoder, Page 4). Carrel discloses added sugars causes problems including giving energy without containing nutrients, contributes to gut inflammation, fatty liver, and more, stores excess sugar as glycogen and fat, and the fructose part of sugar can only be processed by the liver (Carrel, Page 3) wherein cheese has natural sugar in the form of lactose (Carrel, Page 2).
Both modified Arfsten et al. and Yoder are directed towards the same field of endeavor of cream cheese. It would have been obvious to one of ordinary skill in the art at the time of the invention to replace the food composition containing sugar disclosed in Arfsten et al. and replace the added sugars with stevia extract sweetener as taught by Yoder since Carrel teaches that added sugars causes problems including giving energy without containing nutrients, contributes to gut inflammation, fatty liver, and more, stores excess sugar as glycogen and fat, and the fructose part of sugar can only be processed by the liver (Carrel, Page 3). The disclosure of replacing sugar with stevia extract sweetener indicates that the cream cheese has no added sugars.
Further regarding Claim 36, the limitations with respect to measurements in accordance with various ISO standards for the variables of viscosity, fineness, and water activity are limitations with respect to methods of measuring various parameters/variables. The claim does not specify the particular testing conditions of temperature and/or time with respect to any of the claimed ISO standards, which would influence the viscosity, fineness, and water activity values measured. Since the testing conditions of the various ISO standards are not specified, one of ordinary skill in the art would expect the food cream to be capable of falling within the claimed viscosity, fineness, and water activity levels based upon the testing conditions of each ISO standard.
Regarding Claim 37, Silenzi et al. discloses ingredients of the food cream are mixed to produce a paste that is refined (mixed and blended) for approximately 15 minutes to one hour at from about 100 to about 140 degrees Fahrenheit until it reaches a consistent blend (‘345, Paragraph [0015]), which converts to about 37.7°C to about 60°C, which overlaps the claimed refining of ingredients at a first predetermined working temperature that is in a range from 35°C to 45°C.
Both modified Arfsten et al. and Silenzi et al. are directed towards the same field of endeavor of food cream emulsions comprising ingredients that are mixed together. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and refine/mix the ingredients at the claimed first predetermined working temperature as taught by Silenzi et al. since where the claimed refining/mixing step of the first predetermined working temperature overlaps the first predetermined working temperature disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the refining/mixing first predetermined working temperature range a will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such first predetermined working temperature range is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.). One of ordinary skill in the art at the time of the invention would modify the process of modified Arfsten et al. and adjust the refining/mixing step having varied first predetermined working temperature based upon the desired consistency of the food cream as taught by Silenzi et al. (‘345, Paragraph [0015]).
Regarding Claim 38, Arfsten et al. discloses the at least one lipid component comprising providing at least one lipid component having at least one solid fat melted to be in liquid or semi-liquid form (solid fat added in molten state) and providing a semi-finished product consisting of dry ingredients in powder form (‘394, Paragraph [0095]). Arfsten et al. also discloses the powder form having a residual humidity of the semi-finished product of less than 0.5% after a spray drying step (‘394, Paragraph [0089]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and mix dry/powdered ingredients having the claimed residual humidity/moisture content since where the claimed residual humidity/moisture content of the semi-finished product of dry ingredients/powders overlaps the residual humidity/moisture content of the semi-finished product of dry ingredients/powder disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Regarding Claim 42, Arfsten et al. discloses a method for preparing a food cream that is salty (savory) (‘394, Paragraph [0092]) and spreadable (‘394, Paragraph [0068]). The food cream contains 37% by weight of at least one lipid component consisting of at least one solid fat and at least one oil (oil powder and soy oil) (25% solid fat + 8% oil powder + 4% soy oil = 37% solid fat + oil), which falls within the claimed concentration of at least one lipid component in a quantity of between 30% by weight to 40% by weight. Where the claimed concentration of at least one lipid component encompasses ranges disclosed by particular examples in the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Regarding Claim 43, Murray et al. discloses cream cheese (‘281, Paragraph [0023]) having a viscosity in the range of about 50000 to about 500000 cps (‘281, Paragraph [0030]), which overlaps the claimed viscosity of between 20000 cP and 55000 cP, wherein the viscosity is adjusted by varying the process conditions of temperature of the feed stocks and/or addition of viscosity modifiers (‘281, Paragraph [0023]). Both modified Arfsten et al. and Murray et al. are directed towards the same field of endeavor of cream cheeses. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cream cheese of modified Arfsten et al. and adjust the viscosity of the cream cheese to the claimed viscosity levels as taught by Murray et al. since where the claimed cream cheese viscosity ranges are disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the viscosity of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such viscosity of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Murray et al. teaches that there was known utility in the food art to adjust the viscosity levels of cream cheese by varying temperature process conditions and/or addition of viscosity modifiers (‘281, Paragraph [0030]).
Regarding Claim 45, Arfsten et al. discloses the at least one oil being in a quantity of 12% by weight with respect to the total weight of the food cream (8% oil powder + 4% soy oil = 12% oil) (‘394, Paragraph [0092]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cream cheese of Arfsten et al. to have oil in the claimed concentration of the food cream since where the claimed concentration of the at least one oil within the food cream encompasses ranges disclosed by particular examples in the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Regarding Claim 48, Arfsten et al. discloses the at least one flavor component being a freeze dried flavor component (‘394, Paragraph [0044]).
Regarding Claim 49, Arfsten et al. discloses the at least one flavor component being a cheese powder (freeze dried cheese powder) (‘394, Paragraphs [0044] and [0092]).
Regarding Claim 50, Arfsten et al. discloses the at least one filler being whey powder (‘394, Paragraph [0092]).
Claims 39-41 are rejected under 35 U.S.C. 103 as being unpatentable over Arfsten et al. US 2014/0154394 in view of Kawamura et al. US 2013/0323390, Abboud et al. US 2004/0213884, Murray et al. US 2003/0129281, Eichelberger et al. US 2003/0211224, Silenzi et al. US 2008/0241345, Yoder “Easy Sugar Free Cream Cheese Frosting” < https://www.ohsweetmercy.com/easy-sugar-free-cream-cheese-frosting-low-carb/> (published December 21, 2020), and Carrel “Added sugar has no place in cream cheese!” <https://web.archive.org/web/20200930071952/https://jacquicarrel.co.uk/added-sugar-has-no-place-in-cream-cheese/> (archived September 30, 2020) as applied to claim 36 above in further view of Simpson US 2013/0202741, Harris et al. US 2019/0008749, and Wu et al. US 2013/0123211.
Regarding Claim 39, Arfsten et al. modified with Kawamura et al., Abboud et al., Murray et al., Eichelberger et al., Silenzi et al., Yoder, and Carrel is silent regarding the semi-finished product being free of the at least one emulsifier and the refining step comprising first refining the ingredients of the at least one lipid component, the at least one dehydrated, dried, and/or freeze dried flavor component, and the at least one filler of powdered milk and its derivatives at a second predetermined working temperature for a second predetermined working time, adding the at least one emulsifier, second refining of the ingredients of the at least one lipid component, the at least one dehydrated, dried, and/or freeze dried flavor component, the at least one filler of powdered milk and its derivatives, and the at least one emulsifier at a third predetermined working temperature for a third predetermined working time wherein the second and third predetermined working temperatures are between 30°C and 55°C, the second predetermined working time being 20 minutes to 110 minutes and the third predetermined working time being 35 minutes to 85 minutes.
Simpson discloses a method of making a food product (‘741, Paragraph [0001]) comprising the steps of combining ingredients, e.g. dry ingredients and maintaining the ingredients at a particular temperature wherein the ingredients are added serially, i.e. one at a time, collectively, i.e. all ingredients are added substantially at once, or as a combination, i.e. certain subsets of ingredients are precombined and the combination is added serially with other ingredients or ingredient combinations wherein a dairy ingredient is added to mixer followed by ingredients of a fat mimicking system followed by flavors, colorants, and/or preservatives (‘741, Paragraph [0015]) wherein dairy ingredients include milk powders (‘741, Paragraph [0026]) and flavoring salts are used as various levels depending on the strength and the desired end product attributes (‘741, Paragraph [0030]).
Both modified Arfsten et al. and Simpson are directed towards the same field of endeavor of methods of making a food product comprising at least one step of mixing ingredients together. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and adjust the order in which the various ingredients are refined/mixed together as taught by Simpson since the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.).
Further regarding Claim 39, Arfsten et al. discloses a refining step (hydrolysis of proteins) (‘394, Paragraph [0049]). However, Arfsten et al. modified with Kawamura et al., Abboud et al., Murray et al., Eichelberger et al., Silenzi et al., Yoder, Carrel, and Simpson is silent regarding two separating refining steps of a first refining of a particular set of ingredients at a second predetermined working temperature for a second predetermined working time and a second refining of said particular set of ingredients with emulsifier added at a third predetermined working temperature for a third predetermined working time wherein the second and the third predetermined working temperatures are between 30°C and 55°C, the second predetermined working time being 20 minutes to 110 minutes and the third predetermined working time being 35 minutes to 85 minutes.
Harris et al. discloses a method of making a food cream (food spread) comprising cellulose particles (‘749, Paragraph [0228]) comprising a two step refining (hydrolysis method) (‘749, Paragraph [0162]). Wu et al. discloses a method of producing pectin comprising subjecting a citrus pectin solution to enzymatic hydrolysis under acidic conditions of pH 4.0 at a temperature of 45°C-65°C for 1 hour to 72 hours to obtain pectin hydrolysate (‘211, Paragraph [0014]), which overlaps the claimed second and third predetermined working temperatures between 30°C and 55°C and the second predetermined working time being 20 minutes to 110 minutes and the third predetermined working time being 35 minutes to 85 minutes.
Arfsten et al., Harris et al., and Wu et al. are all directed towards the same field of endeavor of methods of making food creams/spread comprising a refining step of hydrolysis. It is noted that the claims do not specify the exact nature of the broad “refining” term, which encompasses both mixing and hydrolysis. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. that teaches adding any subset of ingredients is prima facie obvious in view of Simpson and conduct two hydrolysis refining steps on the mixture of ingredients as taught by Harris et al. since the duplication of parts has no patentable significance unless a new and unexpected result is produced in view of In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP § 2144.04.VI.B.). Furthermore, it would have been obvious to one modify the process of Arfsten et al. that teaches refining/hydrolysis steps at the claimed second and third predetermined working temperatures and the claimed second and third predetermined working times as taught by Wu et al. since where the claimed working temperatures and times of the refining/hydrolysis steps overlaps working temperatures and times of the refining/hydrolysis steps disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Regarding Claim 40, Wu et al. discloses a method of producing pectin comprising subjecting a citrus pectin solution to enzymatic hydrolysis under acidic conditions of pH 4.0 at a temperature of 45°C-65°C for 1 hour to 72 hours to obtain pectin hydrolysate (‘211, Paragraph [0014]), which overlaps the claimed second and third predetermined working temperatures in a range of from 30°C to 45°C. It would have been obvious to one modify the process of Arfsten et al. that teaches refining/hydrolysis steps at the claimed second and third predetermined working temperatures as taught by Wu et al. since where the claimed working temperatures of the refining/hydrolysis steps overlaps working temperatures of the refining/hydrolysis steps disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Regarding Claim 41, Arfsten et al. discloses the solid fat being added in a molten state (‘394, Paragraph [0095]), which indicates that the at least one lipid component is provided in liquid or semiliquid form (melted) comprising melting the at least one lipid component at a maximum predetermined melting temperature for a predetermined melting time. Although Arfsten et al. does not explicitly teach the maximum predetermined melting temperature to be 50°C or the predetermined melting time to be between 60 minutes and 120 minutes, the conditions resulting in the melted at least one lipid component that is solid fat at ambient conditions are prima facie obvious. There is nothing materially distinguishable from Arfsten et al. that teaches melting the solid fat in the ingredient mixture since the predetermined melting temperature and predetermined melting time ultimately results in the same intermediate produce of at least one lipid component in liquid or semi-liquid molten form after melting.
Claims 44 and 46-47 are rejected under 35 U.S.C. 103 as being unpatentable over Arfsten et al. US 2014/0154394 in view of Kawamura et al. US 2013/0323390, Abboud et al. US 2004/0213884, Murray et al. US 2003/0129281, Eichelberger et al. US 2003/0211224, Silenzi et al. US 2008/0241345, Yoder “Easy Sugar Free Cream Cheese Frosting” < https://www.ohsweetmercy.com/easy-sugar-free-cream-cheese-frosting-low-carb/> (published December 21, 2020), and Carrel “Added sugar has no place in cream cheese!” <https://web.archive.org/web/20200930071952/https://jacquicarrel.co.uk/added-sugar-has-no-place-in-cream-cheese/> (archived September 30, 2020) as applied to claim 36 above in further view of Pompili Ferrari et al. US 2018/0295851.
Regarding Claim 44, Arfsten et al. discloses an example (Composition 5 of Table 2) wherein the at least one lipid component has a weight ratio between the at least one oil (16.5 oil powder + 6 sunflower oil = 22.5 oil) and the at least one solid fat (7.5 solid vegetable fat) of 75:25 (22.5/30:7.5/30) (‘394, Table 2) (‘394, Paragraph [0098]), which falls within the claimed weight ratio between the at least one oil and the at least one solid fat being between 60:40 and 95:5. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and incorporate the at least one lipid component at the claimed weight ratio between the at least one oil and the at least one solid fat since where the claimed weight ratio between the at least one oil and the at least one solid fat overlaps the weight ratio between the at least one oil and the at least one solid fat disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, Pompili Ferrari et al. discloses a food cream (‘851, Paragraph [0001]) made of at least one lipid component of at least one oil (olive oil) and at least one solid fat (cocoa butter) having a variable ratio between the oil (olive oil) and the solid fat (cocoa butter) (‘851, Paragraph [0037]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Arfsten et al. and adjust the weight ratio between the at least one oil and the at least one solid fat since differences in the weight ratio between the at least one oil and the at least one solid fat will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such weight ratio between the at least one oil and the at least one solid fat is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Pompili Ferrari et al. teaches that there was known utility in the food art to adjust the ratio between oil and solid fat in a food cream.
Regarding Claim 46, Arfsten et al. discloses the at least one solid fat being cocoa butter (‘394, Paragraphs [0072] and [0092]).
Regarding Claim 47, Arfsten et al. discloses the at least one oil being sunflower oil, olive oil, rapeseed oil, rice oil, corn oil, linseed oil, sesame oil, and/or peanut oil (‘394, Paragraph [0045]).
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant's arguments filed December 18, 2025 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Pages 7-8 of the Remarks that Arfsten mentions whey on different occasions as a protein providing substance that operates as an emulsifier (‘394, Paragraph [0041]). Applicant contends that whey is not known in the art as being a flavor component. Applicant points to a Wikipedia entry indicating that whey is used to produce whey cheeses such as ricotta, Norwegian brunost, and whey butter and many other products for human consumption and that there are disparate uses of whey as an additive to foods of very different flavors providing evidence that whey is not known in the art as being a flavor component. Applicant continues that Arfsten states that whey powder is used as a supplemental ingredient and not as a flavor component (‘394, Paragraph [0070]) and applicant contends that whey powder is “at least one supporting ingredient” or a milk derivative.
Examiner argues applicant does not attribute an explicit definition to the term “flavor component” in applicant’s specification. Any flavor broadly reads on the claimed “flavor component.” It is noted that Claim 36 has been amended to recite “5% by weight to 50% by weight of at least one dehydrated, dried, and/or freeze dried flavor component other than powdered milk.” Arfsten et al. discloses in the same example 37% cheese powder and 10% whey powder (‘394, Paragraph [0092]), which adds up to 47% total flavor powder, which reads on the claimed 5% by weight to 50% by weight of dehydrated and/or dried flavor component other than powdered milk. Easterday “Cheesemaking – what to do with all that whey?” <https://www.farmcurious.com/blogs/farmcurious/17599408-cheesemaking-what-to-do-with-all-that-whey#:~:text=Add%20a%20little%20to%20your,extra%20bonus%20to%20the%20protein.> (published April 1, 2020) discloses whey has a taste of an acidic tang (Easterday, Page 2), which contradicts applicant’s assertion that whey does not have a flavor. Cheese powder has the flavor/taste of cheese. Claim 36 does not specify the particular flavor of the claimed dehydrated, dried, and/or freeze dried flavor component other than powdered milk. Additionally, even if the whey powder is not a flavor component and is considered at least one supporting ingredient or a milk derivative, Arfsten et al. discloses the cream cheese containing 37% cheese powder (‘394, Paragraph [0092]), which also falls within the claimed concentration of 5% by weight to 50% by weight of at least one dehydrated, dried, and/or freeze dried flavor component other than powdered milk. Therefore, these arguments are not found persuasive.
Applicant argues on Page 8 of the Remarks that Example 3(i) of Arfsten includes 7% of starch, which is not present in Claim 36, and 0.5% of salt while Claim 36 recites that salt does not exceed 2.5%. Applicant continues that Paragraph [0070] of Arfsten which discloses a salt content of 0-2% does not apply to the recipe of Example 3(i) which discusses a different amount of salt and that Arfsten discloses a large number of food products to which its invention is applicable and those different percentages applies to food products other than Example 3(i).
Examiner argues that the 0.5% of salt disclosed in Example 3(i) of Arfsten does not exceed 2.5%. With respect to the presence of 7% starch in Example 3(i) of Arfsten, Examiner notes that applicant discloses starch to be an example of at least one additional supporting ingredient (Specification, Pages 5-6). Claim 36 recites the presence of at least one additional supporting ingredient. Although “at least one additional supporting ingredient” is not specified in the claim, applicant discloses starch to be a type of at least one supporting ingredient. Claim 36 does not preclude the presence of at least one additional supporting ingredient since at least one additional supporting ingredient in claimed generically. Additionally, Claim 36 also requires the presence of at least one emulsifier. Prabhasankar et al. US 2004/0191387 discloses cream cheese comprising a starch emulsifier composition (‘387, Paragraph [0019]). Starch has emulsifying properties in the food art as evidenced by Prabhasankar et al. Again, Claim 36 does not preclude the presence of multiple emulsifiers since at least one emulsifier is claimed generically. Additionally, Paragraph [0070] discloses generically that the salt content of the food products being 0-2% by weight (‘394, Paragraph [0070]). Example 3(i) in Paragraph [0092]) discloses a specific example of cream cheese having 0.5% salt, which falls within the generic 0-2% by weight of salt in generic food products. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.II.). Therefore, this argument is not found persuasive.
Applicant argues on Page 8 of the Remarks that Examiner justified quantities and percentages of various components different from those recited in the claims by stating such differences would not be critical and that each component amount provides a different flavor and nutritional value to a food composition and is relevant for distinguishing a food composition from other ones.
Examiner argues Arfsten et al. teaches overlapping ranges of the at least one lipid component, at least one additional supporting ingredient, salt, and at least one oil. Where the claimed concentration of at least one lipid component, at least one dehydrated, dried, and/or freeze dried flavor component, at least one additional supporting ingredient, salt, and at least one oil encompasses ranges disclosed by particular examples in the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, one of ordinary skill in the art would adjust the salt content of the cream cheese based upon the desired saltiness of the cream cheese by a particular consumer. Furthermore, although Arfsten et al. does not explicitly disclose the food cream having the claimed concentration of 20% by weight to 55% by weight of at least one filler consisting of powdered milk or its derivatives or 0.2% by weight to 3% by weight of at least one emulsifier, Kawamura et al. discloses cream cheese (‘390, Paragraph [0095]) having an emulsifier used in an amount of 0.01% by weight or more within a range not affecting the flavor (‘390, Paragraph [0098]). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of the at least one emulsifier of Arfsten et al. since Kawamura et al. teaches using a small amount of emulsifier in a cream cheese. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of the at least one filler of powdered milk or its derivatives and also adjust the concentration of the at least one emulsifier of Arfsten et al. since differences in the concentration of the at least one filler of powdered milk or its derivatives and the at least one emulsifier of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of the at least one filler of powdered milk or its derivatives and the at least one emulsifier of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Therefore, this argument is not found persuasive.
Applicant argues on Page 8-9 of the Remarks that Paragraphs [0047] and [0070] of Arfsten discloses powdered milk but a large number of possible food formulations are used and the one relevant for the present discussion is in Example 3(I) and contains no powdered milk. Applicant continues that Arfsten discloses an emulsifier at Paragraph [0056]) but the formulation disclosed in Example 3(i) contains no such emulsifier.
Examiner argues disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Arfsten et al. teaches a broader disclosure of incorporating an emulsifier into a food composition (‘394, Paragraph [0047]) of an emulsion (‘394, Paragraph [0056]) wherein the emulsifier is used in combination with cheese powder (‘394, Paragraph [0070]). Arfsten et al. also teaches a specific embodiment of a cream cheese having cheese powder (‘394, Paragraph [0092]). Arfsten et al. broadly teaches food compositions containing cheese powder in combination with emulsifiers. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.II.). Therefore, this argument is not found persuasive.
Applicant argues on Page 9 of the Remarks that Kawamura discloses a water containing chocolate which may include liquid food products that may be dissolved in dairy products such as cheese cream and contends it is unknown what the relevance of such disclosure would be considering that Paragraph [0094] of Kawamura discloses such liquid food products contain carbohydrates in trace amounts and are included in a water containing chocolate in trace amounts. Applicant continues that Kawamura discloses a water containing chocolate may include 0.01% or more of an emulsifier whereas Claim 36 recites a salty and spreadable food product rather than chocolate.
Examiner argues the claims do not specify any particular sweetness levels of the claimed food cream. Claim 36 recites the food cream to be substantially free of added sugars. The secondary references Yoder discloses a sugar free cream cheese comprising cream cheese, butter, stevia extract sweetener, and vanilla extract (Yoder, Page 3) wherein the amount of sweetener is increased as needed until it’s as sweet as you like it (Yoder, Page 4) and Carrel discloses added sugars causes problems including giving energy without containing nutrients, contributes to gut inflammation, fatty liver, and more, stores excess sugar as glycogen and fat, and the fructose part of sugar can only be processed by the liver (Carrel, Page 3) wherein cheese has natural sugar in the form of lactose (Carrel, Page 2). The claims do not preclude the presence of a food cream containing artificial sweeteners to increase the sweetness levels of the claimed food cream as taught by the secondary references Yoder and Carrel. Applicant argues limitations that are not commensurate in scope with the claimed invention. The primary reference of Arfsten et al. already discloses a salty and savory composition (‘394, Paragraph [0070]) that is a food cream (‘392, Paragraph [0092]) that is spreadable (‘392, Paragraph [0068]). The secondary reference Kawamura et al. discloses a food cream (‘390, Paragraphs [0095] and [0142]) that is salty (‘390, Paragraphs [0094] and [0099]) and used in an emulsion (‘390, Paragraph [0152]), which is spreadable. Kawamura et al. discloses the cream cheese (‘390, Paragraph [0095]) containing a powdered or paste like water activity reducing agent dissolved in a solvent usable for a food product wherein the concentration of the water activity reducing agent is not particularly limited and is adjusted by water addition and/or by heat depending on the type of food product to which the water activity reducing agent is added (‘390, Paragraph [0080]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water activity value of the food cream of Arfsten et al. since differences in the water activity value of the cream cheese will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water activity value of the cream cheese is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Kawamura et al. teaches that it was known and conventional to adjust the water activity value of cream cheese. Therefore, this argument is not found persuasive.
Applicant argues on Page 9 of the Remarks that Abboud discloses a shelf stable shredded cheese which is a solid type of cheese rather than a salty and spreadable food cream. Applicant contends that Abboud discloses a water activity level of less than 0.5 pertaining to the finished shredded cheese rather than its constituent elements and that the cream cheese has a different composition than the claimed food cream and that what is added to a cream cheese used as a component of a shelf stable shredded cheese is not applicable to the claimed food cream.
Examiner argues Abboud discloses the process being applicable to cream cheeses and other soft cheeses (‘884, Paragraph [0013]) containing an emulsifier (‘884, Paragraph [0017]). Claim 36 recites a generic food cream. Abboud also discloses the shelf stable shredded cheese comprising cheese powder and filler wherein the shelf stable shredded cheese has a water activity of less than about 0.5 (’884, Paragraph [0008]) and the shelf stable shredded cheese being derived from natural cheese (‘884, Paragraph [0013]), which is a type of food cream. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water activity value of the cream cheese of modified Arfsten et al. as taught by Abboud et al. since where the claimed water activity value ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Abboud et al. teaches that there was known utility in the food art to make a cream cheese with the claimed water activity value ranges. Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Easterday “Cheesemaking – what to do with all that whey?” <https://www.farmcurious.com/blogs/farmcurious/17599408-cheesemaking-what-to-do-with-all-that-whey#:~:text=Add%20a%20little%20to%20your,extra%20bonus%20to%20the%20protein.> (published April 1, 2020) discloses whey has a taste of an acidic tang (Easterday, Page 2).
Van Loo et al. US 5,660,872 discloses a reduced sugar food composition suitable for diabetics (‘872, Column 1, lines 26-41).
Han et al. US 6,416,797 discloses a method of making a wheyless cream cheese using transglutaminase without the need for stabilizers to obtain texture and/or body of the cream cheese wherein other ingredients are incorporated into the cream cheese such as calcium for calcium fortification, flavorings, sugar alcohols for sweetening, colorings,
Polyols “Presenting Polyols: A Sugar Alternative with Sweet Taste & Serious Benefits” <https://polyols.org/presenting-polyols-a-sugar-alternative-with-sweet-taste-serious-benefits/> (published September 10, 2019) discloses polyols are sugar free sweeteners that are not sugars or alcohol and can be used in foods as a low calorie sugar alternative especially useful as a sugar alternative for people with diabetes wherein products in which polyols have replaced sugar are labeled “sugar free” or “no sugar added” wherein sorbitol, lactitol, and maltitol are types of polyols.
Manera US 2010/0215819 discloses a method of manufacturing a processed cheese (‘819, Paragraph [0057]) comprising a mixture containing up to 5% of reworked cheese as a processing aid to facilitate creaming (‘819, Paragraph [0076]) wherein the mixture of ingredients contains at least one fat and/or one or more vegetable fat including coconut oil wherein the amount of animal and/or vegetable fat used depends on the desired fat content of the finished processed cheese (‘819, Paragraph [0077]) wherein the mixture also contains milk powder to enable adding protein constituents to the processed cheese (‘819, Paragraph [0078]).
Teresia. Nana’s Little Kitchen. “Sugar Free Cream Cheese Dip” <https://www.nanaslittlekitchen.com/sugar-free-cream-cheese-dip/> (published March 1, 2020) discloses a sugar free cream cheese dip comprising Truvia type sweetener (Teresia, Pages 10-11).
Maehashi. Recipe Tin Eats. “Smoked Salmon Dip.” <https://www.recipetineats.com/smoked-salmon-dip/> (published December 29, 2017) discloses a smoked salmon dip comprising 200 g smoked salmon and 200 g Philadelphia cream cheese (Maehashi, Pages 10-11).
Benjamin. Shutterbean. “Smoked Salmon Cream Cheese.” <https://www.shutterbean.com/2012/smoked-salmon-cream-cheese/> (published April 18, 2012) discloses smoked salmon cream cheese comprising 6 oz. cream cheese and 4 oz. smoked salmon (Benjamin, Page 5).
Van Quathem et al. US 2018/0023151 discloses freeze dried salmon skin (‘151, Paragraph [0088]).
Neri US 4,551,333 discloses a freeze dried salmon eggs
Popeil US 3,931,414 discloses a fish bait composition comprising pulverized freeze dried fish eggs combined with natural plant and animal binding materials.
Mojoman “Flavored cream cheese for bagels” <https://forums.egullet.org/topic/109566-flavored-cream-cheese-for-bagels/> (published November 6, 2007) discloses a flavored cream cheese wherein the proportion of ingredients can be adjusted wherein one example of the flavored cream cheese includes smoked salmon (mojoman, post by Sony on Page 2).
Irvin et al. US 2008/0299278 discloses a flavorant created by heating a combination of buttermilk and cream to make cream cheese (‘278, Paragraph [0001]) wherein the flavorant is a concentrated flavorant comprising about 10 percent to about 12 percent of the total cream cheese by weight (‘278, Paragraph [0009]) wherein the concentrated flavorant is not limited to cream cheese but may be used to impart flavors to a variety of dairy and non-dairy food products (‘278, Paragraph [0011]).
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792