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 .
Election/Restrictions
Applicant’s election without traverse of Group II, a method of preparing a dairy analogue food product in the reply filed on 11/06/2025 is acknowledged. Claims 6-10, 27-30 and 40-42 are cancelled from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected invention, there being no allowable generic or linking claim.
However, in response to the restriction requirement, applicant has introduced new claims 50-60 which includes claims drawn to compositions (e.g., cream cheese analogue), which has necessitated a second restriction requirement by the Office, as shown below:
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group II, claims 14-15 and 50, drawn to a method of preparing a dairy analogue food product.
Group V, claims 51-60, drawn to a dairy analogue food product.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Group II and V lack unity of invention because even though the inventions of these groups require the technical feature of a diary analogue food product comprising at least 2% coagulated beta-lactoglobulin and wherein beta-lactoglobulin constitutes at least 51% by weight of the total milk protein content of the dairy analogue food product, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of by Ryu SG 194676 A1 (hereinafter referred to as Ryu). Ryu teaches a diary analogue food product comprising at least 2% coagulated beta-lactoglobulin and wherein beta-lactoglobulin constitutes at least 51% by weight of the total milk protein content of the dairy analogue food product (see 35 USC 102 rejection below).
Further, the Office submits that Group V contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1.
The species are as follows:
Species I, cream cheese analogue; and
Species II, yogurt analogue.
Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which are written in dependent form or otherwise require all the limitations of an allowed generic claim. Currently, the following claim(s) are generic: claims 51, 52 and 60.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Species I and Species II lack unity of invention because the species do not share the same or corresponding technical feature. In particular, Species I has the special technical feature of a cream cheese analogue that comprises as much as 10 wt% beta-lactoglobulin, which is not present in Species II, and Species II has the special technical feature of a yogurt analogue that comprises at little as 2 wt% beta-lactoglobulin, which is not present in Species I.
During a telephone conversation with applicant’s representative Michele A. Kliem on 12/03/2025, a provisional election was made to prosecute the invention of Group II, claims 14-15 and 50. Affirmation of this election must be made by applicant in replying to this Office action. Claims 51-60 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Further, because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Claim status
The examiner acknowledged the amendment made to the claims on 11/06/2025.
Claims 14-15 and 50-60 are pending in the application. Claims 1-13 and 16-49 are cancelled. Claims 14-15 are previously presented. Claim 50 is newly presented. Claims 51-60 are newly presented but are provisionally withdrawn during a telephone conversation on 12/03/2025 . Claims 14-15 and 50 are hereby examined on the merits.
Claim Objections
Claim 14 is objected to because of the following informalities: “BLG” in line 2 should be written out with full name beta-lactoglobulin for the first occurrence. Appropriate correction is required.
Claim 50 is objected to because of the following informalities: “adding lactic acid bacteria to the dairy analogue food product and fermenting” should read “adding lactic acid bacteria to the composition of step (ii) or the composition of step (i) and fermenting”. Appropriate correction is required.
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.
Claim 15 is 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 15 depends from claim 14 and recites “wherein the resulted dairy analogue food product comprises from about 1.5 to about 8 wt% of BLG”. There is insufficient antecedent basis the limitation “the resulted dairy analogue food product” in the claim. It is further unclear whether “the resulted dairy analogue food product” of claim 15 is the dairy analogue food product that comprises at least about 2 wt% BLG as recited in the last clause of claim 14, and if that is the case, it is unclear why the dairy analogue food product of claim 15 comprises as little as 1.5 wt% BLG where claim 14 requires that the dairy analogue food product has at least 2 wt% BLG. If the two dairy analogue food products are not the same, is there an extra step performed on the dairy analogue that comprises at least 2 wt% BLG such that the amount of the BLG in the resulted diary is reduced? Clarification is required.
Claim Rejections - 35 USC § 102
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.
Claims 14-15 and 50 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ryu SG 194676 A1 (hereinafter referred to as Ryu).
Regarding claims 14-15 and 50, Ryu teaches a method of preparing a dairy analogue food product (e.g., an edible gel that comprises a high concentration of beta-lactoglobulin (BLG), 0008), the method comprising: pasteurizing a composition comprising a BLG protein (e.g., heating raw ingredients that comprises BLG at a temperature of 80-100 °C for 1 second to 5 min, 0010; 0036); cooling down the composition (0037); and acidifying the cooled composition by adding lactic acid bacteria to the cooled composition and fermenting to obtain the edible gel (0038). The BLG protein as disclosed by Ryu is necessarily coagulated because Ryu teaches the same step of acidifying BLG by lactic fermentation.
Additionally, Ryu teaches that BLG constitutes 70-100 wt% of the total protein of the raw ingredients (thus the proportion of BLG by the amount of milk protein in the raw ingredients is even higher), and that the raw ingredients comprises 2.5-8% BLG (0020; Table 1, Sample 1-3; Table 2, Sample 2-4 and 2-5). Given that there is no further separation or removal of the raw ingredients in the process of forming the edible gel (0054), it logically follows that BLG constitutes 70-100 wt% of the total protein of the edible gel, and that the edible gel comprises 2.5-8% BLG.
Further, since the disclosure of Ryu does not mention including coagulation minerals in the raw ingredients (0029-0035; Table 1; Table 2), the limitation about the composition being substantially devoid of coagulation minerals is met by Ryu.
Claims 14-15 and 50 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Geistlinger US Patent Application Publication No. 2019/0216106 A1 (hereinafter referred to as Geistlinger).
Regarding claims 14-15 and 50, Geistlinger teaches a method of preparing a food product such as a dairy analogue food product (e.g., a yogurt-like food product that comprises milk protein such as beta-lactoglobulin or BLG, 0008-0009; 0053), the method comprising: pasteurizing a composition comprising a native or recombinant BLG protein and a non-animal protein or hydrolysate thereof (0008; 0231; Example 1); cooling down the composition (0231; Example 1); and acidifying the cooled composition by adding lactic acid bacteria to the cooled composition and fermenting to obtain the yogurt-like food product (0227; 0232; Example 1). The BLG protein as disclosed by Geistlinger is necessarily coagulated because Geistlinger teaches the same step of acidifying BLG by lactic fermentation.
Additionally, Geistlinger teaches that the yogurt-like food product comprises only one milk protein such as BLG, and the amount of which is between 2-8 wt% (0008-0009; 0226), thus reading on the limitation that the BLG constitutes at least 51% of the total milk protein in the dairy analogue food product and that the dairy analogue food product comprises at least 2% BLG or 1.5-8% BLG as recited in claims 14 and 15.
Further, since the disclosure of Geistlinger does not mention including coagulation minerals in the composition that comprises BLG and non-animal protein or hydrolysate thereof to make the yogurt-like food product (Example 1), the limitation about the composition being substantially devoid of coagulation minerals is met by Geistlinger.
Conclusion
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