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 1-13 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claim 1, the phrase "preferably ripened" in line 1 renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 1 recites the broad recitations “between 15% and 45%” on line 3, “from 25% to 75%” on line 7, “from 25 to 75%” on line 12, and “from 0 to 5%” on line 14, and the claim also recites “advantageously between 20 % and 40 %, preferentially between 25 % and 35 %” on line 4, “preferably from 30 % to 60 %, preferentially from 35 % to 55 %” on line 8, “preferably from 35 to 65 %, preferentially from 45 % to 60 %” on lines 12-13, and “preferably from 0 to 3 %, preferentially from 0.5 % to 2 %” on lines 14-15 which is the narrower statement of the range/limitation. The claim is 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.
Claim 6 recites the broad recitation “a degree of hydrolysis less than 6” on line 1, and the claim also recites “preferably ranging from 3.5 to 5.0” on lines 1-2 which is the narrower statement of the range. The claim is 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.
Claim 7 recites the broad recitation “protein content expressed by dry weight of at least 80%” on lines 2-3, and the claim also recites “preferably at least 85%” on line 3 which is the narrower statement of the range. The claim is 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.
Claim 11 recites the broad recitations “between 15% and 45%” on line 2, “from 25% to 75%” on line 4, “from 25 to 75%” on line 8, and “from 0 to 5%” on line 10, and the claim also recites “advantageously between 20 % and 40 %, preferentially between 25 % and 35 %” on lines 2-3, “preferably from 30 % to 60 %, preferentially from 35 % to 55 %” on line 4, “preferably from 35 to 65 %, preferentially from 45 % to 60 %” on lines 8-9, and “preferably from 0 to 3 %, preferentially from 0.5 % to 2 %” on lines 10-11 which is the narrower statement of the ranges. The claim is 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.
Claim 12 recites the broad recitations “from 25% to 75%” on line 2, “from 25 to 75%” on line 6, and “between 5 and 100N” on line 8, and the claim also recites “preferably from 30 % to 60 %, preferentially from 35 % to 55 %” on line 2, “preferably from 35 to 65 %, preferentially from 45 % to 60 %” on lines 6-7, and “preferably between 10 and 70 N, preferably between 15 and 35 N” on lines 8-9 which is the narrower statement of the ranges. The claim is 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.
Claim 13 recites the broad recitation “solids content comprised between 25 and 50 %” on line 2, and the claim also recites “preferably between 30 and 48 %, preferably between 35 and 45 %” on lines 2-3 which is the narrower statement of the range. The claim is 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 narrower limitations recited in the claims rejected above will be considered exemplary language and not further limiting of the claim.
With respect to Claim 11, the claim recites the limitation “A use of a liquid composition for preparing a soft cheese equivalent” but fails to recite any steps that would set forth a process for preparing said soft cheese. MPEP 2173.05(q) states, “Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b)”.
Claims 2-5 and 8-10 are included in the rejection as they depend from a rejected base claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
With respect to Claim 11, the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the instant claim is directed toward a use for a legume milk, and does not recite a process, machine, manufacture, or composition of matter.
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 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. [0325-326] 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] Holz-Schietinger et al. reads 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 Claim 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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Boursier et al. (US 9,131,710 B2) 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 Claim 11, 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]
Boursier et al., and Bridges exist within the same field of endeavor in that they teach dairy alternative food compositions. Boursier et al. teaches a composition of legume milk, and Bridges teaches a variety of plant-based milk that is well-known in the field of endeavor. 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 Bridges and Boursier et al. would teach a milk alternative comprising from 8-14.8% solids, which is close to 15%, and 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” and “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”.
With respect to the limitation, “for preparing a soft cheese equivalent” in line 1, MPEP 2112.02 states, “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”. For this reason, the recitation will not be considered as further limiting the claim.
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 Boursier et al. in view of Bridges, to use a liquid composition for preparing a soft cheese replica, wherein said liquid composition comprises between 15-45% solids, of which 25-75% is pea protein, 25-75% is fat, and 0-5% is sugar, thereby rendering claim 11 obvious.
Claims 12-13 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 Claim 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.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791