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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 06/18/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. 112(b) rejections have been withdrawn; and (2) the 35 U.S.C. 102(a)(1) rejections of claims 1, 2, 4, and 5 over Holz-Schietinger et al. have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-6 and 10-15
Withdrawn claims: 7-9 and 16
Previously canceled claims: None
Newly cancelled claims: 2, 3, 5, and 6
Amended claims: 1, 4, 10, 13, and 15
New claims: None
Claims currently under consideration: 1, 4, and 10-15
Currently rejected claims: 1, 4, and 10-15
Allowed claims: None
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 10-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Holz-Schietinger et al. (U.S. 2015/0305361 A1).
Regarding claim 10, Holz-Schietinger et al. discloses a method for producing a cheese analogue ([0082]) comprising causing at least one protease to act on a mixture ([0176], [0179]) comprising fat/oil, protein ([0083]), and starch ([0234], [0238]) (such that the cheese analogue would comprise fat/oil, starch, and protein) and heating/stirring the mixture ([0322]).
As for claim 11, Holz-Schietinger et al. discloses the protease as being an exo-type protease or an endo-type protease (0179]).
As for claim 12, Holz-Schietinger et al. discloses the mixture as further comprising a polysaccharide thickener ([0238], [0322]).
Regarding claim 13, Holz-Schietinger et al. discloses a method for producing a cheese analogue ([0082]) comprising mixing ([0119], [0033]) fat/oil, protein ([0083]), starch ([0234], [0238]), and a protease ([0176], [0179]) by heating and stirring ([0214]), while causing the protease to act on the components in the mixture ([0176], [0179]), heating/stirring the mixture further ([0214]), and pouring the mixture into a mold and cooling to obtain a cheese analogue ([0243]), wherein the amount of fat/oil is 2.5 wt.% or more ([0214]) and the heating is for a period of 10 seconds – 20 minutes at 30-100°C ([0214]). Such temperatures anticipate the claimed temperature conditions (which overlap at 60°C and thus do not necessarily require two distinct heating steps) and are further considered to encompass conditions wherein the starch is gelatinized. The limitation that the method is “for suppressing…separation of oil in step (i)” is met by the indication that the mixture is homogenized ([0214]).
As for claim 14, Holz-Schietinger et al. discloses the protease as being an exo-type protease or an endo-type protease (0179]).
As for claim 15, Holz-Schietinger et al. discloses the mixture as further comprising a polysaccharide thickener ([0238], [0322]).
Claim Rejections - 35 USC § 103
Claims 1 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. (U.S. 2015/0305361 A1) in view of Yu et al. (U.S. 2018/0016563 A1).
Regarding claim 1, Holz-Schietinger et al. discloses a method for producing a cheese analogue ([0082]) comprising causing at least one protease to act on a mixture ([0176], [0179]) comprising fat/oil, protein ([0083]), and starch ([0234], [0238]), where the protease may be (3) an exo-type protease or (4) an endo-type protease ([0179]).
Holz-Schietinger et al. does not disclose the mixture as further comprising α-glucosidase.
However, Yu et al. discloses the incorporation of α-glucosidase ([0244]) into cheese ([0248]).
It would have been obvious to one having ordinary skill in the art to incorporate α-glucosidase into the cheese analogue product of Holz-Schietinger et al. First, Holz-Schietinger et al. discloses the inclusion of various enzymes “to help modulate the flavor, texture, and/or melting profile” ([0176]), which would prompt a skilled practitioner to consult a Yu et al. for such an enzyme. Since Yu et al. discloses the inclusion of α-glucosidase into cheese making processes in order to provide “benefits such as improved texture” ([0244], [0248]), a skilled practitioner would find the step of causing α-glucosidase to act on the mixture of Holz-Schietinger et al. for the purpose of improving texture to be obvious.
As for the claimed ratios, Holz-Schietinger et al. discloses the enzymes may be added in amounts ranging from 0.00001-5% ([0184]), where the proteases and the α-glucosidase may be added within such a range. Such concentrations encompass ratios that fall within the claimed ranges, thus rendering the claimed ranges obvious.
Regarding claim 4, Holz-Schietinger et al. discloses a method for producing a cheese analogue ([0082]) comprising causing at least one protease to act on a mixture ([0176], [0179]) comprising fat/oil, protein ([0083]), and starch ([0234], [0238]), where the protease may be (3) an exo-type protease or (4) an endo-type protease ([0179]), during production of the cheese analogue, wherein the method improves meltability and/or extensibility (i.e. stretchability) of a cheese analogue when heated ([0083], [0234]).
Holz-Schietinger et al. does not disclose the mixture as further comprising α-glucosidase.
However, Yu et al. discloses the incorporation of α-glucosidase ([0244]) into cheese ([0248]).
It would have been obvious to one having ordinary skill in the art to incorporate α-glucosidase into the cheese analogue product of Holz-Schietinger et al. First, Holz-Schietinger et al. discloses the inclusion of various enzymes “to help modulate the flavor, texture, and/or melting profile” ([0176]), which would prompt a skilled practitioner to consult a Yu et al. for such an enzyme. Since Yu et al. discloses the inclusion of α-glucosidase into cheese making processes in order to provide “benefits such as improved texture” ([0244], [0248]), a skilled practitioner would find the step of causing α-glucosidase to act on the mixture of Holz-Schietinger et al. for the purpose of improving texture to be obvious.
As for the claimed ratios, Holz-Schietinger et al. discloses the enzymes may be added in amounts ranging from 0.00001-5% ([0184]), where the proteases and the α-glucosidase may be added within such a range. Such concentrations encompass ratios that fall within the claimed ranges, thus rendering the claimed ranges obvious.
Response to Arguments
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1-6 and 10-15 based on amendments to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1, 2, 4, 5, and 10-15 over Holz-Schietinger et al.: Applicant has overcome the 35 U.S.C. § 102(a)(1) rejections of claims 1, 2, 4, and 5 based on amendments to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 102(a)(1) rejections have been withdrawn.
For claims 10-15, Applicant asserted that Holz-Schietinger et al. discloses only heating at paragraph [0322] but not heating and stirring (Applicant’s Remarks, p. 13, ¶5).
However, paragraph [0322] indicates that the compositions were mixed to form mixtures, which is considered adequate to anticipate a step of “stirring” absent any additional limitations regarding the nature of the stirring.
Applicant further asserted claims 10-15 should not be deemed obvious due to a showing of unexpected results (Applicant’s Remarks, p. 13, ¶8 – p. 14, ¶2).
Since the claim rejections under 35 U.S.C. § 102(a)(1) have been maintained, the argument is irrelevant. MPEP 2131.04.
Applicant next argued that claim 13 was amended to require time/temperature parameters for the heating steps (Applicant’s Remarks, p. 15, ¶1).
However, Holz-Schietinger et al. discloses homogenization ([0214]), and the claim has been broadened to only require suppression of oil separation during the mixing step (i). Claim 13 remains anticipated by Holz-Schietinger et al. as detailed in the claim rejection.
Applicant’s arguments have been fully considered but they are not persuasive.
The rejections of claims 10-15 have been maintained herein.
Claims 1 and 4 are newly rejected under 35 U.S.C. §103.
Claim Rejections - 35 U.S.C. § 103 of claims 3 and 6 over Holz-Schietinger et al. and Yu et al.: Applicant’s arguments have been fully considered but they are not persuasive.
To the extent the arguments are relevant to amended claims 1 and 4, Applicant argued that the newly claimed ratios are not disclosed in the references (Applicant’s Remarks, p. 15, ¶3).
The ratios were determined to be obvious in view of the disclosed concentration limitations in Holz-Schietinger et al. Further, claiming a ratio between concentrations of two components is of essentially no consequence absent any required amounts of components, since both enzymes may meet the claimed ratio limitation yet still be at infinitesimal concentrations that do not produce any appreciable effect.
Applicant then asserted unexpected results due to the combined use of protease and α-glucosidase compared to protease alone (Applicant’s Remarks, p. 15, ¶4).
However, MPEP 716.02(d) recites: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’” The present claims are substantially broader in scope than the asserted data (e.g. component concentrations, process conditions, fat/starch/protein types, and cheese analogue properties, such as meltability and extensibility upon heating, are not required), which renders the data insufficient for overcoming the prima facie showing of obviousness for claims 1 and 4.
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.
Claims 1, 4, and 10-15 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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