DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-20) in the reply filed on 3/9/2026 is acknowledged. Claims 21-33 are withdrawn from consideration and claims 1-20 are examined in this office letter.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Nurmi (US 20250143355), hereinafter Nurmi.
Regarding claim I, Nurmi (US 2025/0143355) teaches a plant-based cheese-style
composition (para 79 describes the product is "oat-based dispersion" which may be
"cheese analogues") comprising:
(a) an insoluble fiber comprising bamboo fiber, rice fiber, wheat fiber, oat fiber,
or combinations thereof (para 72 and 75 describes "oat fiber content of at least 5%"; and oat inherently has primarily insoluble fiber);
(b) one or more starches (para 2 describes "Oats typically contains 55-70%
starch" and para 105 describes the composition may have "2% starch");
(c) one or more oils (para 104 and 105 describes "coconut oil");
( d) a vegan cultured base (para 105 describes a base of “oat raw material", which
is a vegan base; and para 70 describes addition of "lactic acid bacteria strains, yeast, or
combinations thereof' for fermentation); and
(e) water (para 105).
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 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 2-20 are rejected under 35 U.S.C. 103 as being unpatentable over Nurmi as applied above to claim 1 in view of Tedesco (US 20180228176A1), hereinafter Tedesco and Taylor (US 20070259090 A), hereinafter Taylor.
Regarding claim 2, Nurmi teaches the composition of claim 1, wherein the insoluble fiber comprises fiber that is at least 5% (para 75 describes "oat fiber content of at least 5%"; and oat inherently has primarily insoluble fiber, which overlaps with "an amount ranging from about 1.5 wt.% to about 4.5 wt.% of the plant-based cheese-style composition" (as recited in claim 2). Nurmi teaches oat fiber and does not teach that the fiber is "bamboo" fiber. Tedesco teaches a similar plant-based cheese product further teaching that cheese substitutes are known to use bamboo fiber (para 14). Further inclusion of one or more fiber sources in food products at least for producing low-calorie foods including cheese and dairy free cheese was well-known before the effective filing date of the invention as taught by Taylor (see abstract, para 32 and 57). Thus, inclusion of any fiber, especially oat and/or bamboo fiber, either isolated or as part of an ingredient of food, (such as oats as taught by Nurmi) was known to be included in foods for reducing calories and promoting healthier lifestyle before the effective filing date of the invention. It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Nurmi so that the insoluble fiber is bamboo fiber. The ordinary artisan would have been motivated to modify Nurmi for at least the purpose of using an alternate well known insoluble fiber source, that may be
highly available in a geographical area and hence may be more economical, and
which has a more neutral taste.
Regarding claim 3, Nurmi teaches the composition of claim 2, comprises fiber (see Para 75 where oat raw material has at least 5% fiber) and Tedesco and Taylor as applied to claim 2 above, teach that using bamboo fiber as a fiber source was known in the art before effective filing date of the invention, especially in gourmet vegan foods and other similar plant-based cheese products (para 14). It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Nurmi so that the insoluble fiber is bamboo fiber. The ordinary artisan would have been motivated to modify Nurmi and in addition to the oat as a source of fiber, and also to include part of the fiber from bamboo. Regarding the amount of bamboo fiber “about 3 wt. % of the plant-based cheese-style composition”, it follows that Nurmi teaches oat based product where oat based fiber is part of the plant based cheese. Adding another source of cellulose/fiber, i.e., bamboo fiber, in an amount “about 3 wt. % of the plant-based cheese-style composition”, for at least the purpose of including an ingredient that helps in producing a low-calorie foods including cheese and dairy free cheese was well-known before the effective filing date of the invention as taught by Taylor (see abstract, para 32 and 57). Therefore, ordinary artisan would have been motivated to modify Nurmi and include an addition or an alternate well known insoluble fiber source, in an amount that reduces the caloric content of a food without altering the rheological characteristics adversely.
Based on the teaching of Tedesco and Taylor as applied above to claims 2-3, bamboo fiber is a function equivalent of oat fiber taught by Taylor, (para 32). It would have been obvious to one of ordinary skill in the art at the time the invention was made to substitute one art recognized functional equivalent (i.e. oat fiber or any other source of cellulose) for another (i.e. bamboo fiber) in the plant-based cheese-style composition of Nurmi, depending on which source of fiber was more easily available and affordable at the time the invention was made.
Regarding claim 4-6, Nurmi teaches that the particle size of an oat raw material, which has a particle size D50 of 50-250 μm, which can be further reduced to particle size D50 of 5-<50 μm, preferably 5-30 μm, (Para 11), which includes the particle size of fiber. Thus, the fiber as taught by Nurmi addresses the fiber size limitation of claim 4 (average fiber length ranging from about 30 μm to about 200 μm), claim 5 (average fiber length ranging from about 100 μm to about 120 μm) and claim 6 (average fiber length of about 115 μm).
Regarding claim 7-8, Nurmi teaches fiber length as claimed but is silent regarding fiber thickness “thickness ranging from about 1 μm to about 40 μm” (claim 7) or “thickness ranging from about 20 μm” (claim 8), however, cellulose fiber lengths vary and are specified by the mesh size that is able to pass a fixed percentage of the fiber (Taylor , para 32). Further, it is known that the greater the thickness of particles, fiber etc., the grittier the composition, so in order to make a smooth creamy composition, like a typical cheese, the fiber length as well as thickness needs to be reduced so that there is no residual gritty mouthfeel. Since Nurmi teaches wet milling particle and high shear homogenization thereof to produce a creamy product, and teaches of fiber in the commensurate in length ranges as claimed, it follows that the width dimension of the fiber taught by Nurmi would also need to be kept small to avoid creating a gritty textured product. Thus, using fibers having the thickness in claimed ranges would have been a matter of routine determination for one of ordinary skill in the art before the effective filing date of the invention. The ordinary artisan would have been motivated to modify Nurmi and include an addition fiber source having dimensions as claimed, at least to provide the desired texture and body to the plant based cheese product, while maintaining the desired creaminess and other rheological characteristics.
Regarding claim 9-11, Nurmi teaches inclusion of starch (Para 11 and 12, where oat starch is taught and para 52 where starch as added raw material is taught, and para 105 where starch mixture is added in an amount of 23% in a cheese like product) and in particular potato starch (Para 104 where 6% potato starch is added in a pudding like product). Since, Nurmi teaches addition of starches to foods, and in particular to cheese like product, in amounts overlapping the claimed ranges, therefore, it meets the limitations of addition of starch as recited in claims 9-11.
The composition of claim 1, wherein the one or more starches comprises one or more emulsifying starches, one or more viscosifying starches, or a combination thereof.
The recitation of ‘emulsifying starches and /or viscosifying starches’ is only a statement of the inherent properties of the ‘starch product’. 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 re Best, 195 USPQ 430, 433 (CCPA 1977) and MPEP 2112.01.
Regarding claims 12-13, Nurmi composition of claim 1, further comprising one or more gums or hydrocolloids (Para 52 and claim 14) but is silent regarding “gellan gum, Konjac gum, hydroxypropyl methylcellulose (HPMC), xanthan gum, or combinations thereof”. Tedesco teaches a similar plant-based cheese product further teaching that hydrocolloids like xanthan gum in cheese substitutes are known (para 11-12). Further inclusion of one or more hydrocolloids as thickeners or soluble fiber sources in food products at least for producing low-calorie foods including cheese and dairy free cheese in amounts in claimed ranges was well-known before the effective filing date of the invention as taught by Tedesco (see abstract, para 11, 12 and 14, para 147 where gum is added in 0.1-6% by weight). Thus, inclusion of any hydrocolloid , especially xanthan gum, either alone or in combination with other gums adds bulk and modifies viscosity of the cheese type product (such as general hydrocolloid as taught by para 52 and claim 14 of Nurmi) was known to be included in foods for at least add in bulk and reducing calories and promoting healthier lifestyle before the effective filing date of the invention. It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Nurmi so that the hydrocolloid is xanthan gum or another claimed gum. The ordinary artisan would have been motivated to modify Nurmi for at least the purpose of using a specific well known source of hydrocolloid, that may be easily available in a geographical area and hence may be more economical, and which has a more neutral taste.
Nurmi is silent regarding the specific proportions of gums as recited in claim 13 “gellan gum is present in an amount ranging from about 0.1 wt. % to about 0.3 wt. % of the plant-based cheese-style composition, Konjac gum is present in an amount ranging from about 0.1 wt. % to about 0.3 wt. % of the plant-based cheese-style composition, HPMC is present in an amount up to 0.5 wt. % of the plant-based cheese-style composition, xanthan gum is present in an amount up to 0.19 wt. % of the plant-based cheese-style composition, or a combination thereof”, the relative amounts of hydrocolloids, thickeners/ stabilizers/ gelling agents and/ or bulking agents added to foods like plant based cheese typically depend on the types of cheese or cheese based product being made, e.g., hard cheese need more structure than soft cheese products. Similarly, cheese based sauce product may need amount of hydrocolloids that differ from both hard and soft cheese. Tedesco teaches 0.1 to 6% locust bean gum (a hydrocolloid in para 147), which overlaps the claimed range for hydrocolloids in general. Further, the addition of other fibers or other ingredients like starches also affect the viscosity, texture and rheology of the plant based cheese product. Thus, choosing a specific hydrocolloid and/or adjusting the relative proportion of one or more hydrocolloids in a plant based cheese product would have been a matter of routine determination for one of ordinary skill in the art before the filing date of the invention. Determination of amounts of one or more hydrocolloids would be a matter of routine experimentation for one of ordinary skill to achieve desired cheese consistency without altering the rheological characteristics adversely. Therefore, ordinary artisan would have been motivated to modify Nurmi and include hydrocolloid/ gum source, in an amount that provides the desired rheology to the plant based cheese while also adding insoluble fiber and reducing the caloric content of a food.
Regarding claims 14-15, Nurmi teaches the composition of claim 1, wherein the one or more oils comprises coconut oil, sunflower oil, canola oil, or combinations thereof (para 52 where fats are taught104 and 105 where coconut oil is taught). Regarding the amount ranging from about 15 wt. % to about 23 wt. % of the plant-based cheese-style composition, as recited in claim 15, Nurmi para 104 teaches 3% for pudding and para 105 teaches 30% coconut oil for cheese type product where the range taught by Nurmi overlaps the claimed range.
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Regarding claim 16-17, Nurmi teaches the composition of claim 1, wherein the vegan cultured base comprises one or more bacterial strains comprising Streptococcus thermophilus, Lactobacillus delbrueckii subsp. bulgaricus, Lactobacillus delbrueckii subsp. lactis, Bifidobacterium lactis, Lactobacillus acidophilus, Lactobacillus paracasei, Lactobacillus casei, or combinations thereof (para 70 where lactic acid bacterial strains are taught). Nurmi is silent regarding specific bacteria but Lactobacillus acidophilus, Lactobacillus paracasei and Bifidobacterium lactis are commonly used to ferment milk or milk substitutes for making fermented foods and beverages like yogurt, cheese etc. as taught by para 56 of Tedesco, therefore the subject matter as claimed does not provide patentable distinction from the invention taught in para 70 of Nurmi.
Regarding the vegan cultured base of claim 17 (para 105 describes a base of" oat raw material", which is a vegan base, diluted to 20% dry matter for making a cheese like product, where the proportion of vegan cultured base is present in an amount ranging from about 15 wt. % to about 30 wt. % of the plant-based cheese-style composition, as claimed.
Regarding claim 18, Nurmi teaches the composition of claim 1, further comprising one or more flavoring agents, plant proteins, lecithins, preservatives, calcium-containing agents, coloring agents, pH-modifying agents, anti-caking agents, film formers, salts, sugars, or combinations thereof (oat based product contains protein [para 11], lactic acid producing bacteria of para 70 modifying pH, Proteins , fats, sugars and hydrocolloids listed in para 52 act as flavoring, film forming agents).
Regarding claim 19, Nurmi teaches composition of claim 1, with all the limitations of claim 1. The recitation of ‘the composition has increased chewiness and springiness properties and reduced stickiness properties as compared to a composition that does not comprise an insoluble fiber’ is only a statement of the inherent properties of the combination of fiber in general and insoluble fiber in particular that is taught by Nurmi (see claim 1 and claims 4-6) above. 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 re Best, 195 USPQ 430, 433 (CCPA 1977) and MPEP 2112.01.
Regarding claim 20, which depends from claim 1, and recites that “the composition has improved melt properties as compared to a composition that does not comprise one or more starches, one or more oils, and a vegan cultured base”. Nurmi teaches composition of claim 1, wherein the one or more starches, oils and culture base is taught. The recitation of ‘the composition has improved melt properties as compared to a composition that does not comprise one or more starches, one or more oils, and a vegan cultured base’ is only a statement of the inherent properties of the combination of ‘starches, one or more oils, and a vegan cultured base”. 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 re Best, 195 USPQ 430, 433 (CCPA 1977) and MPEP 2112.01.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791