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 .
This action is in response to applicant’s submission dated July 9, 2026. Any objections and/or rejections made in previous actions and not repeated below are hereby withdrawn.
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 16 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 16 recites the broad recitation between 15 and 45%, and the claim also recites advantageously between 20 and 40% which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purposes of examination, the recitation of “advantageously between 20% and 40%” will be interpreted to be exemplary language and not considered an additional limitation.
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 1-10 and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. (US 2015/0305361 A1) in view of Boursier et al. (US 9,131,710 B2) and Bridges, Meagan (Moo-ove Over, Cow’s Milk: The Rise of Plant-Based Dairy Alternatives, Nutrition Issues in Gastroenterology).
With respect to Claim 1, Holz-Schietinger et al. teaches a method of producing a soft, ripened cheese replica, comprising the steps of providing a non-dairy milk, adding a culture of Geotrichum candidum, and acidifying the composition, which would result in a soft, ripened cheese replica. [0325-0326] Holz-Schietinger et al. also teaches a non-dairy milk [0011] that can comprise pea protein and one or more microbes. [0012] Additionally, Holz-Schietinger et al. teaches that the solid content of the non-dairy milk can be less than 50%, [0098] that the protein content can be 0.1-99% of the protein in the non-dairy milk, [0101] that the sugar is controlled in order to control the flavor, [0139] and the fat content can be controlled depending on the property of the cheese by using vegetable oils. [0113]
With respect to the limitation of “free of a coagulating or gelling enzyme”, Holz-Schietinger et al. teaches that some embodiments solidify the cheese replica through the act of heat denaturation [0214] and through forming a coacervate by using one or more plant proteins. [0215] Additionally, Holz-Schietinger et al. teaches that the proteins can comprise pea legumins and the resulting coacervate can be used as is. [0215]
Therefore, Holz-Schietinger et al. reads on the limitation of being free from a coagulating or gelling enzyme, and on a method of producing a soft cheese equivalent comprising the steps of providing a legume milk having, adding at least one acidifying ferment, and fermenting the legume milk, wherein the solids content is between 15-45% and the legume protein is between 25-75%, but is silent to the legume milk comprising, by dry weight, 25-75% fat, and 0-5% sugars.
Boursier et al. teaches a beverage comprising pea proteins as a replacement for dairy milk in nutritional and organoleptic properties. [Col. 4, Ln. 42-46] In a specific embodiment, Boursier et al. teaches a beverage comprising 14.8% solids, wherein the solids comprise, by dry weight, about 30.6% protein, 10.8% sunflower oil, and 0% sugar. [Example 1, Table 1] Bridges teaches a variety of publicly available dairy milk alternatives and their nutritional values. [Table 2] The pea milk example given comprises about 8% solids, wherein about 40% is protein, about 25% is fat, and about 30% sugar. [Table 2]
Holz-Schietinger et al., Boursier et al., and Bridges exist within the same field of endeavor in that they teach dairy alternative food compositions. Where Holz-Schietinger et al. teaches a plant-based cheese replica, Boursier et al. and Bridges teach a variety of plant-based milk that could be used in the invention taught by Holz-Schietinger et al. MPEP 2144.07 states, “The selection of a known material based on its suitability for its intended use supported a prima facie case of obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297”. Therefore, it would have been obvious to combine the inventions taught by the prior art made of record.
MPEP 2144.05 I states, “A range can be disclosed I multiple prior art references instead of a single prior art reference depending on the specific facts of the case”. In the instant case, it would have been obvious to modify the range of solids, protein, fat, and sugars in a dairy milk alternative based on knowledge in the field of functional equivalents. A range comprising the inventions of Holz-Schietinger et al., Bridges, and Boursier et al. would teach a milk alternative comprising from 8-50% solids, wherein, the protein is a legume protein and 30.6-40%, the fat is 10.8-25%, and the sugar is 0-30%, all ranges which overlap with the range recited in claim 1. MPEP 2144.05 I also states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Holz-Schietinger et al. in view of Boursier et al. and Bridges, to develop a method of producing a ripened, soft cheese replica comprising a legume milk fermented with an acidifying agent, wherein the legume milk comprises between 15-45% solids, of which 25-75% is pea protein, 25-75% is fat, and 0-5% is sugar, thereby rendering claim 1 obvious.
With respect to Claims 2-5, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. Additionally, Holz-Schietinger et al. teaches the use of Geotrichum candidum and a mesophilic starter during the acidification process, [0325] after which the composition is concentrated by the draining of the curd, [0326] and the ripening of the cheese replica on an aging rack. [0327] Therefore, Holz-Schietinger et al. in view of Boursier et al. and Bridges renders claims 2-5 obvious.
With respect to Claim 6, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. The references cited are silent to the degree of hydrolysis of the pea protein, but the instant specification discloses that, with respect to the legume protein, “the protein hydrolysis is not complete, that is to say, it does not result in a composition comprising only or substantially amino acids and small peptides (of 2 to 4 amino acids). The preferred hydrolysates comprise more than 50 %, more preferentially more than 60 %, even more preferentially more than 70 %, even more preferentially more than 80 %, and in particular more than 90% of proteins and polypeptides of more than 500 Da”, [0079] adding that “the legume protein or proteins have a protein content expressed by dry weight of at least 80%, preferably at least 85%”. [0081] Boursier et al. teaches that, with respect to the legume protein taught, “the protein hydrolysis is not complete, i.e. does not result in a composition comprising only or essentially amino acids and Small peptides (from 2 to 4 amino acids). Thus, the hydrolyzates according to the invention are not HPV compositions. The preferred hydrolyzates comprise more than 50%, 60%, 70%, 80% or 90% of proteins of more than 500 Da”, [Col. 8, Ln. 38-44] and that the total protein content is between 78-85%. [Col. 7, Ln. 4-11]
MPEP 2112 states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The pea protein composition taught by Boursier et al. teaches an identical protein composition to the one recited in the instant invention, and would therefore possess the same properties, such as degree of hydrolysis.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Holz-Schietinger et al. in view of Boursier et al. and Bridges to develop a method according to claim 1, wherein the degree of hydrolysis of the legume protein is less than 6, thereby rendering claim 6 obvious.
With respect to Claim 7, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. Additionally, Boursier et al. teaches that the pea protein composition has a total protein content of 85%. [Col. 17, Ln. 42-43] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Holz-Schietinger et al. in view of Boursier et al. and Bridges to develop a method according to claim 1, wherein the protein content of the pea protein is at least 80%, thereby rendering claim 7 obvious.
With respect to Claims 8 and 9, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. Additionally, Holz-Schietinger et al. teaches pea protein [0012] and liquid vegetable oils. [0113] Therefore, Holz-Schietinger et al. in view of Boursier et al. and Bridges renders claims 8 and 9 obvious.
With respect to Claim 10, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. The instant specification discloses that a texturing agent is understood to mean an additional polysaccharide or enzyme capable of gelling, such as transglutaminase, alginate, coagulating salts, etc. [0102-103] Holz-Schietinger et al. teaches that the cheese replica may be solidified using denaturation through acids [0217] or heat, [0193] without the mention of the use of texturing agents. Therefore, Holz-Schietinger et al. in view of Boursier et al. and Bridges renders claim 10 obvious.
With respect to Claims 14-15 and 20, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above, wherein the composition is a soft, ripened cheese replica, that does not include a coagulating salt. [0325-0326] and has a firmness of between about 1500-2750 g, or 14.715 to 26.95 N. [Fig. 2] Therefore, Holz-Schietinger et al. in view of Boursier et al. and Bridges renders claims 15-15 and 20 obvious.
With respect to Claims 16, 17, and 19, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above.
Additionally, MPEP 2144.05 I states, “A range can be disclosed I multiple prior art references instead of a single prior art reference depending on the specific facts of the case”. In the instant case, it would have been obvious to modify the range of solids, protein, fat, and sugars in a dairy milk alternative based on knowledge in the field of functional equivalents. A range comprising the inventions of Holz-Schietinger et al., Bridges, and Boursier et al. would teach a milk alternative comprising from 8-50% solids, wherein, the protein is a legume protein and 30.6-40%, and the sugar is 0-30%, all ranges which overlap with or lie within the ranges of solid content, legume protein, fat, and sugar recited in claims 16, 17, and 19 respectively. MPEP 2144.05 I also states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Holz-Schietinger et al. in view of Boursier et al. and Bridges to develop a method according to claim 1, wherein the ranges of solid content are between 15-45%, legume protein is between 30-60%, and sugar is between 0-3%, thereby rendering claims 16, 17, and 19
With respect to Claim 18, Holz-Schietinger et al. in view of Boursier et al. and Bridges teaches the invention recited in claim 1, as described above. Additionally, Holz-Schietinger et al. teaches modifying the fat content of the cream fraction of the non-dairy milk, up to 20 times greater than the skim fraction and up to 95% of the total fat. [0115] Holz-Schietinger et al. in view of Boursier et al. and Bridges does not explicitly teach a legume milk comprising between 35-65% fat.
Holz-Schietinger et al. teaches another embodiment of the invention, wherein the fat in the cheese replica ranges from 5-40%. [0287] The recitation of 35-65% fat in the legume milk is simply the results of routine experimentation. Additionally, Holz-Schietinger et al. provides motivation for controlling the amount of fat in the non-dairy milk, specifically with respect to the fat content in the cheese replicas. MPEP 2144.05 II, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. The range of fat taught by Holz-Schietinger et al. in view of Boursier et al. and Bridges is 10.8-25%, and it would have been obvious to modify that amount in order to control for the cheese replica properties.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Holz-Schietinger et al. in view of Boursier et al. and Bridges to have devised the invention recited in claim 1, wherein the fat content of the legume milk is between 35-65%, thereby rendering claim 18 obvious.
Claims 12-13 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. (US 2015/0305361 A1) in view of Bridges, Meagan (Moo-ove Over, Cow’s Milk: The Rise of Plant-Based Dairy Alternatives, Nutrition Issues in Gastroenterology).
With respect to Claims 12 and 13, Holz-Schietinger et al. teaches a non-dairy milk and cheese product [0011] that can comprise pea protein and one or more microbes. [0012] The microbes can include Penicillium camemberti [0015] and Geotrichum candidum, which would result in a soft, ripened cheese replica. [0325] Additionally, Holz-Schietinger et al. teaches that the solid content of the non-dairy milk can be less than 50%, [0098] that the protein content can be 0.1-99% of the protein in the non-dairy milk, [0101] that the sugar is controlled in order to control the flavor, [0139] and the fat content can be controlled depending on the property of the cheese by using vegetable oils. [0113] A soft, ripened cheese equivalent produced by the method taught by Holz-Schietinger et al. comprises about 50% curd and 50% whey, after which they are separated, [0326] and has a firmness of between about 1500-2750 g, or 14.715 to 26.95 N. [Fig. 2]
Holz-Schietinger et al. reads on a soft cheese equivalent comprising between 25-50% solids, wherein the legume protein derived from pea comprises between 25-75% with a firmness between 5 and 100 N, but is silent to 25-75% fat, by dry weight.
Bridges teaches a variety of publicly available dairy milk alternatives and their nutritional values/ [Table 2] The pea milk example given comprises about 8% solids, wherein about 40% is protein, about 25% is fat, and about 30% sugar. [Table 2]
Holz-Schietinger et al. and Bridges exist within the same field of endeavor in that they teach dairy alternative food compositions. Where Holz-Schietinger et al. teaches a plant-based cheese replica, Bridges teaches a variety of plant-based milk that could be used in the invention taught by Holz-Schietinger et al. MPEP 2144.07 states, “The selection of a known material based on its suitability for its intended use supported a prima facie case of obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297”. Therefore, it would have been obvious to combine the inventions taught by the prior art made of record.
The soft cheese equivalent produced by the combination of Holz-Schietinger in view of Bridges would have the solid content of the legume milk concentrated by about 50%, according to the method described above. MPEP 2144.05 I states, “A range can be disclosed I multiple prior art references instead of a single prior art reference depending on the specific facts of the case”. In the instant case, it would have been obvious to modify the range of solids, protein, fat, and sugars in a dairy milk alternative based on knowledge in the field of functional equivalents. A range comprising the inventions of Holz-Schietinger et al. and Bridges would teach a soft cheese equivalent with a final solids content of 12-75%, wherein, the protein is a legume protein and about 01-99% and the fat is about 38%, ranges which overlap with the range recited in claim 1. MPEP 2144.05 I also states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Holz-Schietinger et al. in view of Bridges, to develop a soft cheese equivalent with a final solids content of 25-50%, wherein, the protein is a legume protein and about 25-75% and the fat is about 25-75%, with a firmness of between 5 and 100 N, thereby rendering claims 12 and 13 obvious.
With respect to Claim 21, Holz-Schietinger et al. in view of Bridges teaches the invention recited in claim 12, as described above. Additionally, Holz-Schietinger et al. teaches that some embodiments solidify the cheese replica through the act of heat denaturation [0214] and through forming a coacervate by using one or more plant proteins. [0215] Additionally, Holz-Schietinger et al. teaches that the proteins can comprise pea legumins and the resulting coacervate can be used as is. [0215]
Therefore, Holz-Schietinger et al. in view of Bridges renders obvious the invention recited in claim 21.
Response to Arguments
Applicant's arguments filed July 9, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 6, Lines 19-21, that, “Examples 20, 21, and 24 are prepared from a nut milk ‘made from 55% almonds and 45% Macadamia,’ and, after culture addition and acidification, ‘transglutaminase’ is added and the formula is left ‘for the rest of the coagulation.’”, and continues on Lines 26-27, stating, “the closest soft-cheese embodiments in Holz-Schietinger rely on enzymatic crosslinking/coagulation in nut-milk systems”. Applicant concludes on Page 7, Lines 14-16, “At most, those passages, i.e. paragraphs [0193] and [0217], identify denaturation mechanisms among many unrelated structuring approaches. The Patent Office is reminded that soft cheese replicas are obtained from nut milk, not legume milk”.
Initially, applicant is directed to MPEP 2145 IV, which states, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”. Applicant exclusively considers the teaching of Holz-Schietinger et al. in the initial assertion with respect to the lack of a legume milk.
Additionally, applicant is directed to MPEP 2123 II, which states, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”. Applicant concedes that other mechanisms of solidification are taught in Holz-Schietinger et al., but asserts that the specific examples comprising transglutaminase teach away from the use of those methods of denaturation. Examiner disagrees, in that the teaching of Holz-Schietinger et al. provides a variety of solidification methods that do not rely on enzymes, and the teaching of some specific examples that rely on enzymes does not disqualify alternative embodiments that do not use enzymes. For these reasons, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 8, Line 1, that “Boursier nor Bridges remedy the deficiencies of Holz-Schietinger”, continuing on Lines 4-6, “Boursier is not directed to producing a fermented soft cheese equivalent, ripening, or an enzyme-free soft cheese equivalent” and on Lines 7-9, “Bridges, in turn, is only a nutritional and market review of plant-based milks, explaining that pea milk is a known legume-based beverage and reporting nutritional values for commercial pea milk products”.
Applicant is once again directed to MPEP 2145 IV, ““One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”. The references of Boursier et al. and Bridges are not relied upon to meet the limitation of a soft, ripened, enzyme-free cheese replica, but are both directed to the prevalence and nutritional content of legume milks and other dairy alternatives. It is necessary to consider the secondary references for the support they provide rather than consider them as how they apply to all the limitations of the instant claims.
Applicant concludes on Page 8, Lines 11-13, that, “Collectively, the cited documents do not teach producing a fermented soft cheese equivalent from the presently claimed legume milk composition, and they do not suggest doing so in the absence of a coagulating or gelling enzyme”.
Examiner respectfully disagrees, and points to the rejection of claim 1 above, as well as the responses to applicant’s assertions. Holz-Schietinger et al. teaches a variety of solidification techniques for cheeses and teaches the use of legume protein in the development of cheese replicas, and the secondary references teach legume-based milks and the nutritional ranges for them. The combination of the references renders obvious the limitations recited in claim 1, as described above.
For this reason and those enumerated above applicant’s assertions are found to be unpersuasive, and the rejections of claims 1-10, 12, and 13 are maintained and the rejections of claim 14-21 are added.
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 JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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, Nikki Dees can be reached at 571-270-3435. 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.
/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Prosecution Insights