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 .
The Amendment filed Dec. 22, 2025 has been entered. Claims 1-7 are pending. Claims 1-7 have been amended.
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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Aird et al. (EP 1385387 B1; April 8, 2002) in view of Barbano et al. (US Patent No. 8,628,810; Jan. 14, 2014).
Regarding claims 1-5 and 7, Aird teaches a method of accumulating cheese milk from which to make natural cheese ([0051]), the method comprising:
Creating a stream of concentrated acidified milk by adding an acidulant to milk to reduce the milk pH and ultra filtrating the acidified milk ([0123]-[0124]),
Creating a stream of mineral reduced milk by re-blending a portion of the concentrated acidified milk with a diluent ([0124]-[0125]),
Creating a stream of cream ([0126]),
Creating a stream of homogenized milk ([0072], [0123]-[0127]), and
Combining the streams to produce an accumulating cheese milk from which the natural cheese can be made ([0128]-[0132], See additional Examples).
While the examples in Aird teach that a stream of milk is created, Aird fails to specifically teach that homogenized milk is directly added with the other ingredients to make the cheese product in the examples provided. However, Aird teaches that different milk products are used as ingredients, wherein each type of milk product used contributes to the texture and taste of the cheese product. Aird further teaches that the second milk-based composition added during the combining step can be whole milk, fat enhanced milk and combinations thereof, wherein the products can be homogenized ([0072], [0095]-[0096]). Therefore, it would have been obvious to further add homogenized milk and/or raw milk during the combining step along with the concentrated acidified skim milk, re-blended acidified milk, and cream depending on the desired taste, texture and nutrition of the final cheese product. Aird clearly teaches that more than one milk product can be added as the second milk-based composition and therefore it would have been obvious to do so for the reasons stated above.
As stated in MPEP 2144.07: The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Further, as stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to the order of processing steps, Aird fails to specifically teach the order of creating the different ingredient streams, however, Aird teaches that all the ingredients are combined together to result in a natural cheese product, which is the same as the instant invention, and therefore, absent a showing otherwise, the order of creating the different ingredient streams is merely an obvious variant over the prior art.
As stated in MPEP 2144.04 IV C: Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Therefore, absent a showing that the order of creating the different streams results in a new of unexpected product, any order of performing the process steps in Aird is obvious as the streams are all combined together at the end of the process to result in a final product, which is the same as the instant invention.
With respect to claim 7, all the product streams in Aird as described above contain milk fat solids and therefore Aird renders obvious a method comprising adding acidified milk fat solids, adding non-acidified milk fat solids, adding homogenized milk fat solids, adding non-homogenized milk fat solids, and producing an accumulated cheese milk.
With respect to the limitation “producing natural cheese starting with the accumulated cheese milk and adding a starter culture”, as stated above, Aird teaches making a natural cheese, but fails to further teach adding a starter culture.
Barbano discloses a method of making a natural cheese, wherein the method includes adding a starter culture to cheese milk. Barbano teaches that starter cultures ripen and begin the cheese making process by helping sour the milk and convert lactose into lactic acid. Barbano further teaches that the starter cultures have a beneficial effect on the eventual quality, taste and consistency of the cheese, wherein the amount of starter culture used forms a desirable cheese product (col 5 lines 45-55).
As Barbano teaches that starter cultures are well known in the art of making natural cheese and are used depending on the type of cheese product to be made, wherein the starter culture effects the eventual quality, taste and consistency of the cheese, it would have been obvious to one of ordinary skill in the art to further add a starter culture to the process of Aird depending on the type of desired cheese product to be made. As Barbano teaches that starter cultures effect the quality, taste, and consistency of the cheese, adding a starter culture to the accumulated cheese milk of Aird would further allow a desired cheese product to be made having desirable quality, taste and consistency.
Regarding claim 6, Aird teaches a method of accumulating cheese milk from which to make natural cheese ([0051]), the method comprising:
Creating a first stream of concentrated acidified dairy liquid ([0123]-[0124]),
Creating a second stream of homogenized dairy liquid ([0124]-[0125]), and
Combining the streams to produce an accumulated cheese milk from which the natural cheese can be made ([0128]-[0132], See additional Examples).
With respect to the limitation “producing natural cheese starting with the accumulated cheese milk and adding a starter culture”, as stated above, Aird teaches making a natural cheese, but fails to further teach adding a starter culture.
Barbano discloses a method of making a natural cheese, wherein the method includes adding a starter culture to cheese milk. Barbano teaches that starter cultures ripen and begin the cheese making process by helping sour the milk and convert lactose into lactic acid. Barbano further teaches that the starter cultures have a beneficial effect on the eventual quality, taste and consistency of the cheese, wherein the amount of starter culture used forms a desirable cheese product (col 5 lines 45-55).
As Barbano teaches that starter cultures are well known in the art of making natural cheese and are used depending on the type of cheese product to be made, wherein the starter culture effects the eventual quality, taste and consistency of the cheese, it would have been obvious to one of ordinary skill in the art to further add a starter culture to the process of Aird depending on the type of desired cheese product to be made. As Barbano teaches that starter cultures effect the quality, taste, and consistency of the cheese, adding a starter culture to the accumulated cheese milk of Aird would further allow a desired cheese product to be made having desirable quality, taste and consistency.
Response to Arguments
Applicant’s amendment has overcome the 102 rejection over claim 6 and therefore it has been withdrawn.
Applicant’s arguments with respect to Aird not teaching adding a starter culture have been fully considered and are persuasive. However, upon further consideration, a new ground(s) of rejection is made in view of Barbano.
Barbano discloses a method of making a natural cheese, wherein the method includes adding a starter culture to cheese milk. Barbano teaches that starter cultures ripen and begin the cheese making process by helping sour the milk and convert lactose into lactic acid. Barbano further teaches that the starter cultures have a beneficial effect on the eventual quality, taste and consistency of the cheese, wherein the amount of starter culture used forms a desirable cheese product (col 5 lines 45-55).
As Barbano teaches that starter cultures are well known in the art of making natural cheese and are used depending on the type of cheese product to be made, wherein the starter culture effects the eventual quality, taste and consistency of the cheese, it would have been obvious to one of ordinary skill in the art to further add a starter culture to the process of Aird depending on the type of desired cheese product to be made. As Barbano teaches that starter cultures effect the quality, taste, and consistency of the cheese, adding a starter culture to the accumulated cheese milk of Aird would further allow a desired cheese product to be made having desirable quality, taste and consistency.
For the reasons stated above, a 103 rejection is maintained.
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.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791