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 claims
Claims listing of 3/28/24 includes claims 1-13, which are examined in the application.
Claim Rejections - 35 USC § 112 (second Paragraph)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 and 13 use parenthesis to recites the limitation " weight percent of the total composition” which is indefinite as it is unclear whether the parts recited inside the parenthesis are part of the invention or not. Correction is required.
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 1-2, 4-6, 8-10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A1), hereinafter D1.
Claim 1 composition D1 teaches vegan cheese product [title, abstract and para 15], which is a non-dairy cheese analogue composition comprising:
35 to 60 wt.% water (weight percent of the total composition) [Para 15 of D1 teaches water in 40-55 wt.% of the total weight of the composition];
0.1 to 10 wt.% fiber (weight percent of the total composition);) [Para 21 of D1 teaches dietary fiber as a functional additive in 1.0-5.0 wt.% of the total weight of the composition]
5 to 25 wt.% starch (weight percent of the total composition); [Para 15 of D1 teaches starch in 10-30 wt.% of the total weight of the composition]
0.1 to 7 wt.% plant protein (weight percent of the total composition) [Para 16 of D1 teaches vegetable protein, i.e., plant protein, in 0-3 wt.% of the total weight of the composition];
10 to 40 wt.% lipid (weight percent of the total composition) [Para 15 of D1 teaches oils and fats, i.e., lipids in 20-25 wt.% of the total weight of the composition]; and
0.05 to 2 wt.% gum (weight percent of the total composition), [Para 17 of D1 teaches thickener including xanthan gum in 0-1.0 wt.% of the total weight of the composition].
The composition as taught by D1, has water, fiber, plant protein, lipids and gum falling in the claimed range and starch content overlapping the claimed invention.
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 2, D1 teaches a non-dairy cheese analogue composition as claimed in claim 1, wherein the fiber is a dietary fiber [Para 21 and Table 1 of D1].
Regarding claim 4, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the gum is selected from the group consisting Xanthan Gum, Konjac Gum, k-Carrageenan, Locust Bean Gum, Guar Gum or-and combinations thereof [Para 17 and 37 of D1 where xanthan and carrageenan are taught].
Regarding claim 5, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the starch is selected from the group consisting of maize, waxy maize, high amylose maize, wheat, tapioca, rice, potato, cassava or-and combinations thereof [Para 15 of D1 taught starch sources include glutinous rice flour, tapioca flour, rice flour, and starch acetate].
Regarding claim 6, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the plant protein is selected from the group consisting of soy, pea, potato, corn, wheat, rice, barley, algae, hemp, oat, canola, fava or-and a combination thereof [Para 16 of D1 taught protein sources include pea protein, soy protein powder, peanut protein powder, sesame protein powder, and walnut protein powder].
Regarding claim 8 D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the lipid is a blend of coconut oil and a vegetable oil [Para 15 and Table 1 of D1].
Regarding claim 9, D1 teaches a non-dairy cheese A non-dairy cheese analogue composition according to claim 1, wherein the lipid is a blend of coconut oil and sunflower oil, rape seed oil, cotton seed oil, peanut oil, soya oil, olive oil, algal oil, safflower oil, corn oil, rice bran, oil, sesame oil, hazelnut oil, avocado oil, almond oil, walnut oil and canola oil [Para 15 and Table 1 of D1].
Regarding claim 10, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the non-dairy cheese analogue composition has a G' value between 50 to 5500 Pa at a temperature of 70°C, a constant shear strain 0.5%, and a constant frequency 1 Hz. D2 teaches the claimed limitation (e.g., see page 4 and 10 where the G’ or the storage modulus which is measure of elasticity of a product. As applied to claim 1 above, D1 teaches a vegan cheese or cheese analog composition where percentage of water, fiber, plant protein, lipids and gum falling in the claimed range and starch content overlaps the claimed range. Thus the vegan cheese composition of D1 is substantially similar to the instantly claimed cheese analog.
Regarding the measure of elasticity of the claimed vegan cheese/ cheese analog, vegan cheese by D1 is taught in para 56, 58 and table 4, but D1 does not teach measuring and describing G’ value as instantly claimed. Regarding the recitation of G' value between 50 to 5500 Pa at a temperature of 70°C, a constant shear strain 0.5%, and a constant frequency 1 Hz” it is noted that G’ value and conditions of measurement are only a statement of the inherent properties of the product. The compositions as claimed and as taught in prior art D1 products are identical or substantially identical in 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.
It is also noted that , applicant has described the product with parameters and equations (G' value between 50 to 5500 Pa at a temperature of 70°C, a constant shear strain 0.5%, and a constant frequency 1 Hz) which cannot be measured by the office for prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability purposes. Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different
Regarding claim 12, D1 teaches a non-dairy cheese A non-dairy cheese analogue composition according to claim 1, wherein the non-dairy cheese analogue composition further comprises 0.5 to 5 wt.% salt [Para 18 of D1].
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A1), hereinafter D1, as applied to claims 1-2, 4-6, 8-10 and 12 above, as evidenced by nutrition facts for coconut oil and Palm oil obtained from nutritionvalue.org
Regarding claim 7, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the lipid has a saturated fat content between 45 to 75% of the total fat [Para 15 and Table 1 of D1, where taught sources of lipid include coconut and palm oils both have saturated fats and D1 teaches examples where the combined proportion of saturated fats falls in the claimed range. For example table 1 compositions 1-4 and 6-7 all show fat component containing coconut and palm oils, determining (oil content X saturated fat percent) for each of the oils, to obtain total saturated fat content, followed by dividing the total saturated fat content with total fat content to determine the percent saturated fat in a composition. Evidentiary references show that typical coconut oil saturated fat range is 83 % by weight of saturated fats and typical palm oil saturated fat content is 49% by weight.
Taking the above guidance the saturated fat content based on the total compositions 4 or 7 is calculated as follows:
Coconut oil saturated fat content =(13X0.83)=10.79
Palm oil saturated fat content =(10X0.49)=4.90
Total saturated fat in compositions 4/7=10.79+4.90=15.69
Percent saturated fat in compositions 4/7=(15.69/23)X100=68.21%.
Similarly, compositions 1-2 and 6 the saturated fat content of those compositions ranges from 67-70%, which falls in the claimed range of 45-75% of the total fat. Thus, vegan cheese compositions 1-4 and 6-7 taught by D1, Table 1 teaches total saturated fat content falls in the claimed range.
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A1), hereinafter D1 as applied to claims 1-2, 4-6, 8-10 and 12 above, further in view of Ray et al. (WO2020089383 A1), hereinafter D2.
Regarding claim 3, D1 teaches a non-dairy cheese analogue composition according claim 1, with fiber but is silent regarding the source thereof . Claim 3 recites “wherein the fiber is selected from the group consisting of pea, citrus, psyllium, carrot, beetroot, pumpkin, wheat, oat, bamboo, tomato, potato, bell pepper, leek, ginger, onion, kale, parsnip, celery, cucumber, courgette, broccoli, kohlrabi, asparagus or-and combinations thereof”. D2 teaches dietary fiber from claimed sources (Page 4, para 2, especially lines 4-7). Thus, Inclusion of fiber from claimed sources foods was known in the art as taught by D2, Page 5 and specific utility in food such as cheese analogs. Since D1 recognized inclusion of fiber and fiber sources as claimed were to be used in foods including cheese analogs and providing unique nutritional qualities polysaccharide (Page 5 of D2). Therefore, it would have been obvious to one of ordinary skill before the effective filing date of the invention to include fiber sources as taught by D2. The ordinary artisan would have been motivated to modify D1 at least for the purpose of utilizing a known source of fiber that has low cost and ease of availability and is without offensive flavor notes.
Regarding claim 13 D1 teaches a method non-dairy cheese analogue, where the composition is the same as claim 1 and therefore the same citations have been provided. D1 teaches vegan cheese product [title, abstract and para 15], which is a non-dairy cheese analogue composition comprising:
35 to 60 wt.% water (weight percent of the total composition) [Para 15 of D1 teaches water in 40-55 wt.% of the total weight of the composition];
0.1 to 10 wt.% fiber (weight percent of the total composition);) [Para 21 of D1 teaches dietary fiber as a functional additive in 1.0-5.0 wt.% of the total weight of the composition]
5 to 25 wt.% starch (weight percent of the total composition); [Para 15 of D1 teaches starch in 10-30 wt.% of the total weight of the composition]
0.1 to 7 wt.% plant protein (weight percent of the total composition) [Para 16 of D1 teaches vegetable protein, i.e., plant protein, in 0-3 wt.% of the total weight of the composition];
10 to 40 wt.% lipid (weight percent of the total composition) [Para 15 of D1 teaches oils and fats, i.e., lipids in 20-25 wt.% of the total weight of the composition]; and
0.05 to 2 wt.% gum (weight percent of the total composition), [Para 17 of D1 teaches thickener including xanthan gum in 0-1.0 wt.% of the total weight of the composition].
The composition as taught by D1, has water, fiber, plant protein, lipids and gum falling in the claimed range and starch content overlapping the claimed invention.
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 the method steps of claim 13 it is noted that step a) mixing dry ingredients at room temperature
mixing dry ingredients at room temperature [para 43-44 of D1] where mixing dry ingredients is taught.
Para 43 of D1 does not discuss the mixing is done at room temperature, but room temperature is addressed in para 44 while referring to the fats “If the vegetable oils and fats are in a solid state because of a low room temperature, the vegetable oils and fats can be heated at a temperature not deteriorating the vegetable oils and fats, for example about 40-50° C., until the vegetable oils and fats is completely melted into a liquid state”. Para 44 suggests that processes may be carried at room temperatures unless there are special conditions requiring higher temperature, such as, the fat s and oils being of the type that are solid at room temperature. Further, mixing dry ingredients at room temperature is well known in the art at the time of the effective filing date of the invention as taught by D2, page 2, lines 23-24 where mixing dry ingredients at room temperature is taught. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include mixing dry ingredients at room temperature. The ordinary artisan would have been motivated to modify D1 at least for the purpose of using dry ingredients that can be easily mixed at room temperature without requiring additional specialized steps, such as, a heating step, thus simplifying the equipment and lowering additional cost due to such specialized steps.
D1 teaches adding water and mixing and adding lipid and further mixing [Para 45-46, 50], which addresses
b) adding lipid and further mix; and
c) adding water and further mix; and
d) heating the mixture from step c) to a temperature ranging from 70°C to 90°C [Para 50 where “emulsified aqueous solution of the starch and the vegetable oils and fats is continuously stirred, and the temperature of the heating mantle is slowly raised to 80-85° C”], i.e., heating in temperature range as claimed is taught, Also see Para 36 teaches raising temperature in the claimed range, and regarding mixing and heating to achieve “desired smooth, homogeneous texture” of the mixture, applicant is referred to Para 45-46 recite shear mixing, Para 49 of D1 also teaches “uniformly stirring” and Para 50 of D1 teaches “continuously stirred” to achieve a uniform mix, also see Para 31 where “ uniformly stirring is performed to emulsify the starch aqueous solution containing the vegetable oils and fats”, thus the uniform solution is taught by D1. Further, creating a “smooth, homogeneous texture” by continuously stirring, mixing is well known in the art at the time of the effective filing date of the invention as taught by D2, page 3, lines 1-3 where “followed by heating the emulsion to a temperature ranging from 70 °C to 90°C, until desired smooth, homogeneous texture is achieved” is taught. Based on teaching of D2 and desire to achieve a uniform consistent product, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to specify mixing to achieve a smooth, homogenous texture. The ordinary artisan would have been motivated to modify D1 at least for the purpose of achieving a finished vegan cheese product having a uniform flavor, texture, consistency and other organoleptic properties throughout the product.
Regarding step e) cooling down to obtain the non-dairy cheese analogue, reference is made to the Para 52-53 where the storing of cheese is taught at temperature as low as 30° C, which represents that the vegan cheese composition is cooled after being prepared at a higher temperature. Since the product being produced a vegan cheese or a cheese analog product, and storing at temperature below the temperature of making, will achieve cooling as claimed.
Further, specific recitation of “cooling down to obtain the non-dairy cheese analogue” is well known in the art at the time of the effective filing date of the invention as taught by D2, page 3, line 5 where “Cooling down” is taught. Based on teaching of D2, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to specify the step of cooling, however, storing at temperature below the temperature of making, will achieve cooling as claimed. The ordinary artisan would have been motivated to modify D1 and recite a step of cooling at least for the purpose of achieving a finished vegan cheese or cheese analog product that has texture, consistency and other organoleptic properties similar to typical cheese and is storable and consumable like its typical dairy cheese counterpart.
Regarding the order of steps, it is clear that the step a) is the first step as it recites “mixing dry ingredients at room temperature”, i.e., first mixing step and step d) comes after step c), but the order of steps b) and c) is not provided.
Regarding steps “b) adding lipid and further mix;” and “c) adding water and further mix;” both steps as recited include “further mix”, which is indicative that these steps occur after step a) but neither step b) nor step c) require them to be performed in any specific order. Thus, the order of steps taught by D1 meets the limitations of the process as claimed.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A 1), hereinafter D1 as applied to claims 1-2, 4-6, 8-10 and 12 above, further in view of Attapattu et al. (US 20140154388 A1), hereinafter D3 and Rybinski et al. (US 5244687), hereinafter D4.
Regarding claim 11, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the non-dairy cheese analogue composition but is silent regarding “further comprises 0.1 to 3 wt.% glycerin”. Glycerin / glycerol is routinely used as a humectant in foods in general and specifically in cheese analog compositions, as taught by D3 [ Para 97-99 , and claims 37-39], where glycerin is a humectant and a humectant can be present in a cheese analog composition in an amount ranging from 0-5%, which includes applicant’s claimed range of 0.1 to 3%. Similarly D4 [Column 4, last line to column 5, lines 1-5] teaches cheese analog product utilizing 0.1 to 1.0% as an ingredient where glycerin is a humectant and “also known to serve as a carrier or dispersing agent for minor lipophilic ingredients, such as flavors and colors”, where the proportion of glycerin taught by D4 falls in the claimed range. Thus cheese analog products comprising “glycerin” in an amount that falls in the claimed range of “0.1 to 3 wt.%” is well known in the art at the time of the effective filing date of the invention as taught by D3 [Para 97-99] and D4[ column 4, last line to column 5, line 5]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include 0.1 to 3 wt.% glycerin. The ordinary artisan would have been motivated to modify D1 at least for the purpose of including a humectant in a cheese analog composition (as taught by D3 and D4) and also to serve as a carrier or dispersing agent for minor lipophilic ingredients, such as flavors and colors as taught by D4.
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