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 office action is in response to the application filed on January 18, 2024. The earliest effective filing date of the application is September 15, 2021.
Priority
The present application is a 371 National Stage Application of PCT/TR2022/050822 which has a filing date of August 4, 2022.
Status of Application
The amendment filed on July 6, 2026 with the Remarks has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3 – 13, 16, and 18 – 20
Withdrawn claims: 12 and 13
Amended claims: 1, 4 – 8, 10, 11, 16, and 18 – 20
Cancelled claims: 2, 14, 15, and 17
Claims currently under examination: 1, 3 – 11, 16, and 18 – 20
By not repeating the previously presented objection/rejection(s), it is sufficiently clear that said objection/rejection(s) are withdrawn.
Claim Objections
Claims 1, 4, and 5 are objected to because of the following informalities:
Claim 1 recites “where the hazelnut milk is pasteurized in a manner such that high value foods in hazelnut is destructed as a minimum level” which should be rewritten as “wherein the hazelnut milk is pasteurized in a manner such that the nutrients in hazelnut are destructed at a minimum level” to put the claim into proper English.
Claims 4 and 5 recite “pore dimensions of the milk cloth are at a maximum value…” which should be rewritten as “pore dimensions of the milk cloth have a maximum value…” to put the claim into proper English.
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.
Claims 4, 5, and 16 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.
Claims 4, 5, and 16 recite “pore dimensions” which renders the claim indefinite. It is unclear which specific dimension (width, height, diameter, circumference, etc.) is intended to be described by “pore dimensions”. For the purpose of examination, “pore dimensions” encompasses the micro rating of a milk cloth.
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.
Claims 1, 3 – 6, 9 – 11, 16, and 18 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Margolis et al. in view of Muehlbauer, Brown et al., IDRO, Free Your Fork, Natural Home Remedies, Zhang et al., Tori Avey, The Pioneer Woman, and Healthline.
(a) Margolis et al. (US 20190274324 A1 – IDS Filed on January 31, 2024);
(b) Muehlbauer (Choosing Plants for a Hazelnut Orchard in New Jersey. Rutgers New Jersey Experiment Station. (2021). Retrieved from: https://njaes.rutgers.edu/e368/);
(c) Brown et al. (2013010037 A1 – IDS Filed on January 31, 2024);
(d) IDRO (30-33-42-50-52-55-60-75 micron(µm) NMO Monofilament Nylon Mesh Filter Bags. IDRO Filter Workshop. (2020). Retrieved from: https://www.filterworkshop.com/products/30-33-42-50-52-55-60-75-micronm-nmo-monofilament-nylon-mesh-filter-bags);
(e) Free Your Fork (How to Make Hazelnut Milk. Free your Fork. (July 24, 2019). Retrieved from Wayback Machine Archive - https://web.archive.org/web/20190724041441/https://www.freeyourfork.com/how-to-make-hazelnut-milk/);
(f) Natural Home Remedies (Use CHICKPEAS as a STARTER to Make Thick Creamy Indian Dahi / Yogurt, 2020, Retrieved from: https://www.youtube.com/watch?v=POehRwRwetE – IDS Filed on January 31, 2024);
(g) Zhang et al. (CN 102613381 A – Clarivate Machine Translation);
(h) Tori Avey (How to soak and cook chickpeas. Tori Avey. (July 28, 2017). Retrieved from Wayback Machine Archive - https://web.archive.org/web/20170728192310/http://toriavey.com/how-to/2012/10/how-to-soak-and-cook-chickpeas);
(i) The Pioneer Woman (How to Make Yogurt – and Greek Yogurt! The Pioneer Woman (2017). Retrieved from: https://www.thepioneerwoman.com/food-cooking/cooking-tips-tutorials/a93141/how-to-make-yogurt-and-greek-yogurt/); and
(j) Healthline (Can You Freeze Yogurt? Healthline. (July 3, 2021). Retrieved from Wayback Machine Archive - https://web.archive.org/web/20210703203254/https://www.healthline.com/nutrition/can-you-freeze-yogurt).
Regarding claim 1, Margolis teaches a method of preparing a food product (i.e., a production method for hazelnut yoghurt – Abstract). Margolis teaches the food product does not require the addition of lactose (i.e., animal products – [0015]). Because the food product of Margolis does not comprise any animal products, it is necessarily absent of animal taste or odor. Margolis teaches the unexpected result that neither sucrose nor glucose is necessary for yogurt culture metabolism has major positive nutritional implications since it should now be possible to manufacture “sugar-free” plant-based yogurt ([0065]). Therefore, the yogurt of Margolis has a high nutrient value. Margolis teaches the method comprises:
i) Obtaining hazelnut milk from hazelnuts
Margolis teaches preparing hazelnut milk from hazelnuts (i.e., obtaining hazelnut milk from hazelnuts ([0023]).
Margolis does not teach the diameters of the hazelnut kernels.
Muehlbauer teaches certain hazelnut strains, such as the European hazelnut, naturally have a kernel diameter of 11 – 13 mm (p. 6, paragraph 3).
Margolis and Muehlbauer are combinable because they are concerned with the same field of endeavor, namely, hazelnut processing. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected European hazelnuts as the hazelnuts from which to make hazelnut milk, as taught by Muehlbauer, in the method of Margolis because Muehlbauer provides that it was known for European hazelnuts, which have a diameter of 11 – 13 mm, to be successfully used and published as a hazelnut at the time of filing, which means it was within the general skill of a worker in the art to select the European hazelnut in the method of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
The range of European hazelnut diameters, 11 – 13 mm, as disclosed by Muehlbauer, overlaps with the claimed range of 10 – 12 mm. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Margolis does not teach the method by which the hazelnut milk is made from hazelnuts.
Brown teaches a method of making cheese replicas (Abstract). Brown further teaches a method of making hazelnut milk for use in producing cheese replicas ([0052]; [0055]). Brown teaches the method of making hazelnut milk comprises:
- washing the hazelnuts prior to use to remove any contaminants on the surface which would make a non-dairy milk unsafe or unpalatable (i.e., applying pre-cleaning processes to obtain cleaned hazelnuts – [0057]),
- blanching, then submerging the hazelnuts in cold water at 5°C or 10 °C (i.e., adding the cleaned hazelnuts into water at a temperature between 5 and 15 °C, and waiting to obtain wet hazelnut particles – [0057]; [0058]),
- blending the hazelnuts by placing them in a blender (i.e., mixer device), adding clean, fresh water, then blending (i.e., taking the wet hazelnut particles, removed from water, into mixer, grinder, or stirrer devices and after adding water, fragmenting of the hazelnuts by means of the mixer, grinder, or stirrer devices – ([0061]),
- filtering the blended hazelnuts to remove the undesirable solids (i.e., passing the fragmented hazelnuts from filter and obtaining hazelnut milk – [0066]), and
- pasteurizing the hazelnut milk at 164 – 167 °F for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]).
Margolis and Brown are combinable because they are concerned with the same field of endeavor, namely, methods of making plant-based dairy product analogs. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized the method of making hazelnut milk of Brown in the method of Margolis because Brown provides that it was known for the above method of making hazelnut milk was used and published at the time of filing, which means it was within the general skill of a worker in the art to select the disclosed method of making hazelnut milk to produce the hazelnut milk for the method of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
While the modified method of Margolis does not teach separating galls and rotten portions from the hazelnuts during the washing step, one of ordinary skill in the art would have reasonably removed the galls and rotten portions of any hazelnuts during the washing step because galls and rotten portions are considered to be any contaminants on the surface which would make a non-dairy milk unsafe or unpalatable.
The modified method of Margolis is silent with respect to the hazelnut/water proportion being ½ and ¼ grams/ml by volume in the blending step.
Free Your Fork teaches blending 2 ½ c raw hazelnuts and 6 c water to produce hazelnut milk (p. 12, Ingredients). While Free Your Fork is silent with respect to the precise grams/mL of hazelnut/water in the resulting milk, assuming hazelnuts have the density of water, the resulting milk would comprise about 0.41grams hazelnut/mL.
Margolis and Free Your Fork are combinable because they are concerned with the same field of endeavor, namely, methods of making plant-based dairy product analogs. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized the proportions of hazelnuts to water for making hazelnut milk as taught by Free Your Fork in the method of Margolis because Free Your Fork provides that it was known for the above method of making hazelnut milk was used and published at the time of filing, which means it was within the general skill of a worker in the art to select the disclosed proportions of hazelnuts to water to produce the hazelnut milk for the method of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
The modified method of Margolis does not teach the hazelnut milk is filtered through a milk cloth.
IDRO teaches a monofilament mesh filter bag, which is useful for nut milk (i.e., it is a milk cloth- p. 2, 3. Applications).
Margolis and IDRO are combinable because they are concerned with the same field of endeavor, namely, processing nut milks. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have used the monofilament mesh filter bag (i.e., milk cloth), as taught by IDRO in the modified method of Margolis because the monofilament mesh filter bag (i.e., milk cloth) is known to be useful for filtering nut milks.
ii) Obtaining herbal ferments from chickpeas and obtaining yoghurt ferment
Margolis teaches providing a yogurt culture to ferment the hazelnut milk ([0016]). Margolis teaches after combining the hazelnut milk and yogurt culture, the fermentation was then carried out at a temperature of 105° F (40.5 °C) for the length of time necessary for the cultured mass to reach a pH of 4.6 (i.e., the yogurt ferment is added into the hazelnut milk brough to the fermenting temperature and yogurt ferment is obtained – [0059]).
Margolis does not teach the yogurt culture is boiled chickpea (i.e., herbal ferments from chickpeas).
Natural Home Remedies teaches chickpeas may be used as a yogurt starter (i.e., yogurt culture – Time Stamp 0:00 – 4:39).
Margolis and Natural Home Remedies are combinable because they are concerned with the same field of endeavor, namely, yogurt production. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected chickpeas as the effective amount of yogurt culture, as taught by Natural Home Remedies, in the method of Margolis because Natural Home Remedies provides that it was known for chickpeas to be successfully used and published as a yogurt starter (i.e., yogurt culture) at the time of filing, which means it was within the general skill of a worker in the art to select the chickpea as an effective amount of yogurt culture in the composition of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Margolis does not teach the method by which the chickpea starter is obtained.
Zhang teaches a chickpea fermentation method ([0001]). Zhang teaches the method comprises:
- soaking chickpeas in a nutrient liquid comprising water until the beans are fully expanded and their skin is soft ([0009]), then
- inoculating by lactic acid amine, microzyme and bacillus natto, and fermenting wherein the culture temperature is 35 to 42 degrees centigrade, and the fermentation time is 18 to 36h (i.e., a mixture comprising chickpea and water is incubated between 40 and 45 °C to obtain chickpea ferment – [0015]; [0016]).
Margolis and Zhang are combinable because they are concerned with the same field of endeavor, namely, fermenting plant-based materials. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized the method of making chickpea probiotic, as taught by Zhang in the method of Margolis because Zhang provides that it was known for the above method of making chickpea probiotic was used and published at the time of filing, which means it was within the general skill of a worker in the art to select the disclosed method of making chickpea probiotic to produce the probiotic chickpeas in the modified method of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
The modified method of Margolis does not teach the chickpeas are boiled instead of soaked.
Tori Avey teaches a quick soak method for chickpeas, which may replace soaking chickpeas overnight, comprising the steps of:
- Placing chickpeas into the bottom of a large pot and covering with water (p. 3, paragraph 3);
- Bringing the chickpeas to a boil and boiling for 5 minutes (p. 4, paragraph 1); then
- Removing the chickpeas from heat, then allowing the beans soak in the hot water for 1 hour (p. 4, paragraph 2).
Margolis and Tori Avey are combinable because they are concerned with the same field of endeavor, namely, processing plant-based materials. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized the method of quick soaking the chickpeas instead of soaking the chickpeas, as taught by Tori Avey in the modified method of Margolis because Tori Avey provides that it was known for the above method of soaking chickpeas was used and published at the time of filing, which means it was within the general skill of a worker in the art to select the disclosed method of soaking chickpeas to produce the soaked chickpeas in the modified method of Margolis, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
While the modified method of Margolis is silent regarding the volume of water boiled and the number of chickpeas boiled in the water, Tori Avey teaches the water must cover the chickpeas in order for them to quick soak (p. 3, paragraph 3). One of ordinary skill in the art would have reasonably expected 200 mL of water to cover 15 to 20 chickpeas. While the modified method of Margolis is silent with the number of chickpeas needed for the present method, MPEP § 2144.04.IV.A states “mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled”. In this case, the scaling of the number of chickpeas and the water which covers it for quick soaking does not make patentable the instant invention absent unexpected results. Therefore, the combination of 200 mL of water and 15 to 20 chickpeas is rendered obvious by Tori Avey.
The modified method of Margolis does not teach adding salt during the inoculation step (i.e., adding chickpeas into water, and obtaining mixture, wherein the mixture is incubated between 40 and 45 °C to obtain chickpea ferment).
Tori Avey teaches adding salt, if desired, about 1/4 teaspoon of salt per 2 quarts of water/2 cups of soaked beans, after soaking (p. 5, paragraph 2).
Therefore, while the modified method of Margolis does not teach adding salt during the inoculation (i.e., adding chickpeas into water, and obtaining mixture, wherein the mixture is incubated between 40 and 45 °C to obtain chickpea ferment), MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added salt, as taught by Tori Avey, during the inoculation (i.e., adding chickpeas into water, and obtaining mixture, wherein the mixture is incubated between 40 and 45 °C to obtain chickpea ferment).
While the modified method of Margolis does not teach adding the nutrient liquid comprising water to the chickpeas after boiling, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added the nutrient liquid to the chickpeas (i.e., adding the chickpeas into water and obtaining mixture) after boiling.
While the modified method of Margolis does not teach the hazelnut milk is brought to the fermentation temperature before mixing with the chickpeas, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have brought he hazelnut milk to the fermentation temperature of temperature of 105° F (40.5 °C) prior to combining with the chickpea yogurt starter.
The modified method of Margolis does not teach the proportion of chickpea ferment to hazelnut milk added to produce a yogurt.
The Pioneer Woman investigates what ratio of yogurt to milk produces the best yogurt results. The Pioneer Woman made a batch of yogurt with 1 tablespoon of yogurt per 2 cups of milk, and another batch with 2 tablespoons of yogurt (p. 12, paragraph 1). The Pioneer Woman teaches the yogurt made with only 1 tablespoon of yogurt was slightly more runny and milder (p. 12, paragraph 1). Therefore, the ratio of yogurt starter (i.e., chickpea ferment) to milk (i.e., hazelnut milk) has a predictable effect on the final yogurt texture and flavor, and as such, the ratio of yogurt starter (i.e., chickpea ferment) to milk (i.e., hazelnut milk) is a result-effective variable.
While modified method of Margolis does not teach the chickpea ferment/hazelnut milk proportion is a value between 0.01/1 and 0.05/1 mL/mL by volume, one of ordinary skill in the art would have adjusted the proportion of yogurt starter (i.e., chickpea ferment) to milk (i.e., hazelnut milk) during routine optimization to find the yogurt with the desired texture and flavor. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed chickpea ferment/hazelnut milk proportion, 0.01/1 and 0.05/1 mL/mL by volume, would thus be obvious.
iii) Obtaining the hazelnut yoghurts as a result of fermenting of the hazelnut milks, obtained in step i), by the chickpea ferments obtained in step ii)
Margolis teaches fermenting a mixture of hazelnut milk; yogurt cultures; and an effective amount of soluble fiber to obtain a yogurt (i.e., obtaining the hazelnut yoghurts as a result of fermenting of the hazelnut milks, obtained in step i), by the chickpea ferments obtained in step ii) – [0016]; [0023]; [0024]). Margolis teaches
- combining the hazelnut milk and yogurt culture (i.e., adding the yoghurt ferment, obtained in step ii), into the hazelnut milks obtained in step i), wherein during the adding process, the yoghurt ferment and the hazelnut milks have temperature values between 40 and 45°C – [0059]),
- carrying out a fermentation at a temperature of 105° F (40.5 °C) for the length of time necessary for the cultured mass to reach a pH of 4.6 (i.e., yoghurt fermenting process is realized, is waited at an incubation temperature, the temperature of the waiting process has temperature values between 40 and 45°C – [0059]).
While the modified method of Margolis does not teach adding hazelnut milk to the chickpea and hazelnut milk yogurt produced in step ii) above, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added more hazelnut milk to the yogurt produced by step ii) because Margolis provides combining hazelnut milk and yogurt culture produces more yogurt, and the duplication of steps is prima facie obvious absent unexpected results.
Margolis does not teach cooling the hazelnut yogurt at 4 °C.
Healthline teaches yogurt can be stored safely in the refrigerator in a closed container at 40°F (4°C) for 1–2 weeks (p. 2, paragraph 1).
Margolis and Healthline are combinable because they are concerned with the same field of endeavor, namely, handling yogurt. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to cool the yogurt of the modified method of Margolis to 4 °C for storage, as taught by Healthline because cooling the hazelnut yogurt to 4 °C for storage ensures it is safe to consume for 1 – 2 weeks.
While Margolis is silent with respect to whether the yogurt has a long shelf lifetime without deteriorating purity, taste, odor and color, Margolis teaches the yogurt has a nice and creamy texture, and pleasant taste ([0061]; [0076]). Given the term “long” is a subjective term, any shelf lifetime without deteriorating purity, taste, odor and color may be considered long. In this case, the fact that the yogurt of Margolis has a pleasant texture and taste indicates is has a long shelf lifetime without deteriorating purity, taste, odor, and color.
While Margolis does not explicitly state the hazelnut yogurt has a shelf life of at least 1.5 months, the instant specification states “the subject matter yoghurt, obtained by using the ferment obtained from chickpeas, has shelf lifetime of at least 1.5 months” (p. 7, lines 16 – 21). Therefore, because the modified method of Margolis produces a hazelnut yoghurt from chickpea ferment, as in the method of the instant application, the hazelnut yogurt of the modified method of Margolis inherently has a shelf lifetime of at least 1.5 months. MPEP § 2112.01.I 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. In this case, the hazelnut yogurt of the modified method of Margolis and the hazelnut yogurt of the instant invention are produced by substantially identical processes, therefore they inherently have the same properties, including their shelf lifetime. Furthermore, MPEP § 2112.I states “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer”. In this case, the fact that Margolis is silent with respect to the shelf lifetime of the hazelnut yogurt does not render novel the previously unappreciated precisely claimed shelf lifetime.
In summary, by applying the obvious modifications as described above to the method of Margolis, one of ordinary skill in the art would have arrived at the following method before the effective filing date of the instant invention:
A method of preparing a food product (i.e., a production method for hazelnut yoghurt – Abstract), wherein the food product does not require the addition of lactose (i.e., the hazelnut yoghurt does not comprise any animal products – [0015]), is absent of animal taste or odor, and has a high nutrient value and long shelf lifetime, and has a shelf lifetime of at least 1.5 months, wherein the method comprises:
i) Obtaining hazelnut milk from hazelnuts
- washing the hazelnuts with diameters between 10 and 12 mm prior to use to remove any contaminants on the surface which would make a non-dairy milk unsafe or unpalatable (i.e., applying pre-cleaning processes for providing separation of galls and rotten to obtain cleaned hazelnuts – [0057]),
- blanching, then submerging the hazelnuts in cold water at 5°C or 10 °C (i.e., adding the cleaned hazelnuts into water at a temperature between 5 and 15 °C, and waiting to obtain wet hazelnut particles – [0057]; [0058]),
- blending the hazelnuts by placing them in a blender (i.e., mixer device), adding clean, fresh water, then blending (i.e., taking the wet hazelnut particles, removed from water, into mixer, grinder, or stirrer devices and after adding water, fragmenting of the hazelnuts by means of the mixer, grinder, or stirrer devices, wherein the hazelnut/water proportion is configured to be ½ and ¼ grams/ml by volume – ([0061]),
- filtering the blended hazelnuts through a milk cloth to remove the undesirable solids (i.e., passing the fragmented hazelnuts from milk cloth and obtaining hazelnut milk – [0066]), and
- pasteurizing the hazelnut milk at 164 – 167 °F for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]),
ii) Obtaining herbal ferments from chickpeas and obtaining yoghurt ferment
- bringing 15 to 20 chickpeas to a boil in 200 mL of water, and boiling for 5 minutes, then removing the chickpeas from heat and allowing the beans soak in the hot water for 1 hour (i.e., boiling water with scale of at most 200 mL for the chickpeas between 15 and 20 in number and cooling),
- adding a nutrient liquid comprising water and salt to the chickpeas and inoculating a second time by lactic acid amine, microzyme and bacillus natto, then fermenting a second time wherein the culture temperature is 35 to 42 degrees centigrade, and the fermentation time is 18 to 36h (i.e., adding the chickpeas into water, adding salt and obtaining mixture, wherein the mixture is incubated at a temperature between 40 and 45ºC to obtain chickpea ferment),
- bringing the hazelnut milk, obtained in step i), to fermenting temperature, wherein the fermenting temperature is a temperature value between 40 and 45ºC,
- combining the hazelnut milk and yogurt culture in a proportion of 0.01/1 and 0.05/1 mL/mL by volume, then fermenting at a temperature of 105° F (40.5 °C) for the length of time necessary for the cultured mass to reach a pH of 4.6 (i.e., after the incubation process, the chickpea ferment is added into the hazelnut milk brought to the fermenting temperature and yoghurt ferment is obtained, wherein a chickpea ferment/hazelnut milk proportion is a value between 0.01/1 and 0.05/1 mL/mL by volume),
iii) Obtaining the hazelnut yoghurts as a result of fermenting of the hazelnut milks, obtained in step i), by the chickpea ferments obtained in step ii)
- combining the hazelnut milk and yogurt culture (i.e., adding the yoghurt ferment, obtained in step ii), into the hazelnut milks obtained in step i), wherein during the adding process, the yoghurt ferment and the hazelnut milks have temperature values between 40 and 45°C),
- carrying out a fermentation at a temperature of 105° F (40.5 °C) for the length of time necessary for the cultured mass to reach a pH of 4.6 (i.e., fermenting by incubating the yoghurt ferment and hazelnut milk at an incubation temperature between 40 and 45°C),
- cooling the hazelnut yogurt at 4 °C.
Regarding claim 3, Brown teaches the nuts or seeds can be hydrated, for example by immersion in water at a constant cool temperature for 24 hours ([0059]).
While the modified method of Margolis does not teach the hazelnuts are held in the post-blanching water at a temperature between 5 and 15 °C for 24 hours, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have held the hazelnuts in the post-blanching water at a temperature between 5 and 15 °C for 24 hours to hydrate the hazelnuts in water at a constant cool temperature.
Regarding claims 4 and 5, IDRO teaches the monofilament mesh filter bag (i.e., milk cloth) has a size of 30 microns (p. 1, Micro rating).
Regarding claim 6, Brown teaches pasteurizing the hazelnut milk at 164 – 167 °F (73.3 – 75 °C) for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]).
Regarding claim 9, the modified method of Margolis does not teach adding between 1 and 1.5 grams of salt during the chickpea incubation step.
Tori Avey teaches you may like more salt to taste, or none at all to keep them "au naturel” (p. 5, paragraph 2).
Therefore, while Tori Avey does not teach the precisely claimed amount of salt, one of ordinary skill in the art would have adjusted the amount of salt added during the secondary inoculation during routine optimization to find the chickpea ferment with the desired flavor. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed salt amount added during the chickpea incubation step, between 1 and 1.5 grams, would thus be obvious.
Regarding claim 10, Zhang teaches the fermentation time is 18 to 36h ([0016]).
Regarding claim 11, the modified method of Margolis does not teach the incubation of step iii) occurs for 12h.
The Pioneer Woman investigates how much faster yogurt would “set” if placed in a crockpot rather than just letting it sit on the counter. The Pioneer Woman teaches the jar in the crock pot began to set in about 4 hours, and was fully set in 6 hours (p. 11, paragraph 1). The Pioneer Woman teaches the jar on the counter took about 24-36 hours to fully set (p. 11, paragraph 1). The Pioneer Woman found that the yogurt made in the crockpot was thicker and more tart, so if you prefer a milder yogurt, you might consider a longer incubation time (p. 11, paragraph 2). Therefore, the fermentation time has a predictable effect on the final yogurt flavor, and as such, the yogurt fermentation time is a result-effective variable.
While the modified method of Margolis does not teach the incubation of step iii) occurs for at least 12h, one of ordinary skill in the art would have adjusted the incubation time in step iii) during routine optimization to find the yogurt with the desired flavor. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed incubation time in step iii), at least 12h, would thus be obvious.
Regarding claim 16, IDRO teaches the monofilament mesh filter bag (i.e., milk cloth) has a size of 30 microns (p. 1, Micro rating).
Regarding claim 18, Brown teaches pasteurizing the hazelnut milk at 164 – 167 °F (73.3 – 75 °C) for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]).
Regarding claim 19, Brown teaches pasteurizing the hazelnut milk at 164 – 167 °F (73.3 – 75 °C) for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]).
Regarding claim 20, Brown teaches pasteurizing the hazelnut milk at 164 – 167 °F (73.3 – 75 °C) for 16 seconds (i.e., applying thermal processes to the hazelnut milk separated from the filter – [0070]).
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Margolis et al. in view of Muehlbauer, Brown et al., IDRO, Free Your Fork, Natural Home Remedies, Zhang et al., Tori Avey, The Pioneer Woman, and Healthline, as applied to claim 1 above, and further in view of Andersen et al. (Thermal Treatment. In: Food Safety Management - A Practical Guide for the Food Industry (1st Edition). Elsevier. (2014)).
Regarding claim 7, the modified method of Margolis does not teach pasteurizing the hazelnut milk between 80 and 85 °C (i.e., the thermal process is realized at a fixed temperature between 80ºC and 85°C).
Andersen teaches the general objective of pasteurization is to extend product shelf-life by inactivating all non-spore-forming pathogenic bacteria and the majority of vegetative spoilage microorganisms, as well as inhibiting or stopping microbial and enzyme activity (p. 435, paragraph 3). Andersen teaches rapid, high or flash pasteurization uses pasteurization temperatures of about 85 to 90°C or more for a time only in the order of seconds (p. 435, paragraph 4). Andersen teaches typical temperature–time combinations can be 88°C (190°F) for 1 minute; 100°C for 12 seconds; 121°C for 2 seconds (p. 435, paragraph 4). Andersen teaches since heating applied to destroy microorganisms may also exert adverse effects on the quality of foods, in practice a minimum possible heat treatment is to be used that can guarantee destruction of pathogens and toxins and give the desired storage life, but also retain the characteristic organoleptic properties of food products (p. 437 paragraph 2). By adjusting the time and temperature of pasteurization, the degree of inactivation of heat-resistant pathogens is changed. Therefore, the time and temperature of pasteurization are result effective variables.
Therefore, while the modified method of Margolis does not teach the precisely claimed pasteurization (i.e., thermal process) temperature, one of ordinary skill in the art would have adjusted the pasteurization (i.e., thermal process) temperature during routine optimization to find the hazelnut milk with the desired degree of pathogen deactivation while maintaining quality. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed thermal process temperature of the hazelnut milk, 80 and 85 °C, would thus be obvious.
Regarding claim 8, the modified method of Margolis does not teach pasteurizing the hazelnut milk between 8 and 10 minutes (i.e., the thermal process is realized for duration between 8 and 10 minutes).
Andersen teaches the general objective of pasteurization is to extend product shelf-life by inactivating all non-spore-forming pathogenic bacteria and the majority of vegetative spoilage microorganisms, as well as inhibiting or stopping microbial and enzyme activity (p. 435, paragraph 3). Andersen teaches rapid, high or flash pasteurization uses pasteurization temperatures of about 85 to 90°C or more for a time only in the order of seconds (p. 435, paragraph 4). Andersen teaches typical temperature–time combinations can be 88°C (190°F) for 1 minute; 100°C for 12 seconds; 121°C for 2 seconds (p. 435, paragraph 4). Andersen teaches since heating applied to destroy microorganisms may also exert adverse effects on the quality of foods, in practice a minimum possible heat treatment is to be used that can guarantee destruction of pathogens and toxins and give the desired storage life, but also retain the characteristic organoleptic properties of food products (p. 437 paragraph 2). By adjusting the time and temperature of pasteurization, the degree of inactivation of heat-resistant pathogens is changed. Therefore, the time and temperature of pasteurization are result effective variables.
Therefore, while the modified method of Margolis does not teach the precisely claimed pasteurization (i.e., thermal process) time, one of ordinary skill in the art would have adjusted the pasteurization (i.e., thermal process) time during routine optimization to find the hazelnut milk with the desired degree of pathogen deactivation while maintaining quality. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed thermal process time of the hazelnut milk, 8 and 10 minutes, would thus be obvious.
In summary, the claims are merely recipes for making food, which do not amount to a novel invention because all the claimed ingredients were known in the prior art and one skilled in the art could have combined the ingredients as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
The prior art included each element claimed although not necessarily in a single reference, and one of ordinary skill in the art could have combined the elements as claimed by known methods of making nutritional foods, and in combination, each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Further, a predictable use of prior art elements according to their established functions to achieve a predictable result is prima facie obvious. See KSR Int'l Inc. v. Teleflex Inc., 127 S Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007).
Further, the claims are toward a formula/recipe for making a nutritional food composition that uses common ingredients, and does not amount to invention in the constantly developing art of preparing food because there is no specific showing that establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. It is long and commonly known that the object of for people of skill for cooking (e.g. cooks, chefs, and bakers) is to use or eliminate common ingredients to formulate food that is palatable. Such an act, the formulation or creation a food recipe, is not patentable because it does not make a scientific advancement in the field unless a new/novel reaction, coaction or cooperative relationship is made evident by such a creation. In other words, the act of making food or food recipes that taste good, even if the combination of the ingredients is not known or has not been done before, is not patentable subject just because it was done.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of this specific instant case.
At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function.
All the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. The prior art included each element claimed although not necessarily in a single reference, and one of ordinary skill in the art could have combined the elements as claimed by known (insert type of method i.e. etching) methods, and in combination, each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. Further, a predictable use of prior art elements according to their established functions to achieve a predictable result is prima facie obvious. See KSR Int'l Inc. v. Teleflex Inc., 127 S Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007).
Response to Arguments
Applicant's arguments filed July 6, 2026 have been fully considered but they are not persuasive.
Applicant argues claim 1, as amended, requires a result not taught, suggested, or rendered predictable by the applied prior art (p. 5, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case, the fact that the yogurt that arises from following the method of the instant invention inherently has a shelf life of at least 1.5 months does not make patentable the otherwise obvious method.
Applicant argues claim 1, as amended, requires, as a whole, a production method that yields a hazelnut yoghurt having a shelf lifetime of at least 1.5 months, which is not suggested by the references relied upon above (p. 6, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. As expounded upon in paragraph 56 above, the hazelnut yogurt of the modified method of Margolis inherently has a shelf lifetime of at least 1.5 months. See MPEP § 2112.01.I. The fact that Margolis is silent with respect to the shelf lifetime of the hazelnut yogurt does not render novel the previously unappreciated precisely claimed shelf lifetime. See MPEP § 2112.I.
Applicant argues the at least 1.5 month shelf lifetime is an unexpected result (p. 7, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. The results presented in the instant specification are not commensurate with the claims. In this case, the example provided in the specification is narrower than the precisely claimed invention in the following ways:
The raw hazelnuts have dimensions of 10 – 11 mm;
The hazelnuts are kept in cold water for 24 hours, wherein the water has a temperature of 10 °C;
The hazelnut and water mixture is whipped for 5 minutes;
The thermal process is conducted at 80 – 85 °C for 15 – 20 minutes;
1.5 grams of salt is added to the water;
The chickpea ferment is incubated for 12 hours at 43 °C;
15 mL of chickpea ferment is added to 500 mL of hazelnut milk;
The chickpea and hazelnut mixture is incubated for 12 hours at 43 °C; and
15 mL of yogurt ferment is added to 500 mL of hazelnut milk (Specification, p. 7 – 8, Example).
Because the examples in the specification are not commensurate with the claims, the evidence relied upon has not established that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance. See MPEP § 716.02(b).
Applicant argues Andersen does not teach the recited 1.5 month shelf lifetime of the hazelnut yoghurt (p. 7, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. Andersen is not relied upon to arrive at a hazelnut yoghurt production method that results in a yoghurt with a shelf lifetime of 1.5 months. Andersen teaches pasteurization techniques.
Applicant argues Margolis and Healthline teach away from the recited 1.5 month shelf lifetime of the hazelnut yoghurt (p. 8, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. MPEP § 2145(X)(D)(1) states “A prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness. However, the nature of the teaching is highly relevant and must be weighed in substance. A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.” In this case, neither Margolis nor Healthline does not outright disparage 1.5 month shelf lifetime of the hazelnut yoghurt. The fact that Margolis teaches the hazelnut yogurt may, in some embodiments, contain gums does not mean the hazelnut yogurt of Margolis must include a gum, and that not including a gum will cause poor shelf life (Claim 10). The disclosure of Healthline discusses yogurt generically, and not the specific yogurt produced by the precisely claimed method of the instant invention. Therefore, the entire disclosure of neither Margolis nor Healthline do not discourage one of ordinary skill of the art from arriving at the precisely claimed method of making hazelnut yogurt.
Applicant argues there is no rational basis to combine the cited references to arrive at the presently claimed invention (p. 9, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, one of ordinary skill in the art would have been motivated to combine each reference with the primary reference Margolis according to the rationales expounded upon above.
Applicant argues the combination of references was guided by Applicant’s own disclosure rather than by anything in the prior art (p. 10, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case, each reference relied upon to arrive at the instantly claimed invention provides a rationale to reach each limitation which was available to one of ordinary skill in the art prior to the effective filing date of the invention.
Conclusion
No claims are allowed.
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 LARK JULIA MORENO whose telephone number is (571)272-2337. The examiner can normally be reached 6:30 - 4:30 M - F.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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