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 4/7/20206 includes amended claims 1-10, 12-13 and new claims 15-22, which are examined in the application.
Rejection of claims 1-13 made under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for being indefinite for failing to particularly point out and distinctly claim the subject matter by including proportions in parenthesis has been withdrawn based on applicants amendments to claims dated 4/7/2026 .
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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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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, 15, 19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A1), hereinafter D1 in view of Attapattu et al. (US 20140154388 A1), hereinafter D3 and Rybinski et al. (US 5244687), hereinafter D4.
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 relative to weight of the non-dairy cheese analogue composition [Para 15 of D1 teaches water in 40-55 wt.% of the total weight of the composition];
0.1 to 10 wt.% fiber relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 1 new limitation wherein vegan cheese also comprises “0.1 to 3 wt.% glycerin”, D1 as applied above teaches a non-dairy cheese analogue composition according to claim 1, wherein the non-dairy cheese analogue composition with [Para 21 of D1 teaches additives in 1-5%] but D1 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. Both D3 and D4 are directed to cheese analog products, , i.e., are in the field of the inventor' s endeavor and are reasonably pertinent.
Thus, D1 teaches cheese analog products comprising additives in the range from 1-5% by weight of the product [para 21 of D1 where additives in 1-5% by weight are taught]. Adding “glycerin” as an additive in an amount that falls in the claimed range of “0.1 to 3 wt.%” were 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 glycerin as an additive 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.
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 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. 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 relative to the total weight of the non-dairy cheese analogue composition [Para 18, Table 1 of D1 where salt as flavoring agent is taught and % of flavorings in general 2-5% by weight and that of salt and table 1 compositions all comprise salt from 1.31% to 2.25% by weight of the composition, which is in 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 new claim 15 limitation wherein vegan cheese also comprises “0.1 to 1 wt.% glycerin”, D1 as applied above to claim 1 addresses the limitation of glycerin in view of D3 and D4. D4 teaches that glycerin can be included in an amount of 0.1 to 1.0%, [Column 4, last line to column 5, lines 1-5] which is the same range as recited in claim 15. Thus, addition of glycerin in cheese analog products in an amount in the claimed range was known before the effective filing date of the invention, as pointed in the rejection of claim 1 above. Hence the rejection of claim 1 applies to claim 15 as well.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include glycerin as an additive 0.1 to 1 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.
Regarding claim 19, D1 as applied above teaches, the non-dairy cheese analogue composition of claim 1, wherein the non-dairy cheese analogue composition does not contain any of egg yolk, lecithin, sunflower lecithin, sodium stearoyl lactylate, diacetyl tartaric ester of monoglyceride (DATEM), polyglycerol-polyricinoleate (PGPR), monoglyceride, or mono-diglyceride emulsifier [Abstract, para 0001, 0006, 0014 and specifically 0051 all teach that in the vegan cheese of D1 it is not necessary to use any emulsifier, like lecithin], which meets the limitation of claim 19.
Regarding new claim 21, regarding the limitation “non-dairy cheese analogue composition does not contain an emulsifying salt”, D1 teaches a non-dairy cheese analogue composition of claim 1, wherein “the composition of vegan cheese may comprise emulsifying salt in an amount of about 0.5-1.0 wt. % of the total weight of the vegan cheese” [Para 19 of D1], where the phrase “may comprise” clearly indicates that emulsifying salt is an optional ingredient and is not a required component in the non-dairy cheese analogue composition.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al (US 20210120834 A1), hereinafter D1, Attapattu et al. (US 20140154388 A1), hereinafter D3 and Rybinski et al. (US 5244687), hereinafter D4 as applied to claims 1-2, 4-6, 8, 10, 12, 15, 19 and 21 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 of total saturated fat content that falls in the claimed range.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al. (US 20210120834 A1), hereinafter D1, Attapattu et al. (US 20140154388 A1), hereinafter D3 and Rybinski et al. (US 5244687), hereinafter D4, as applied to claims 1-2, 4-6, 8, 10,12, 15, 19 and 21 above, further in view of Mizuno et al. (US20200093150 A1), hereinafter D5.
Regarding amended claim 9, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein the lipid is a coconut oil and another oil selected from the group consisting of sunflower oil, rape seed oil, cotton seed oil, peanut oil, soya oil, olive oil, algal oil, safflower oil, corn oil, rice bran, sesame oil, hazelnut oil, avocado oil, almond oil, walnut oil and canola oil [Para 15 and Table 1 of D1 where coconut oil and nut oil is taught]. D1 does not specify the vegetable oil sources and nut oil sources as recited in claim 9, however, vegetable based cheese-like products containing nut based fats and vegetable based fats/oils was known in the art before the effective filing of the application as is taught by D5 to Mizuno.
D5 teaches vegetable cheese like food product [abstract and title] and also teaches including “vegetable oils, for example, rapeseed oil, soybean oil, sunflower oil, cottonseed oil, peanut oil, rice bran oil, corn oil, safflower oil, olive oil, kapok oil, sesame oil, evening primrose oil, palm oil, shea butter, monkey butter, cocoa butter, coconut oil, palm kernel oil, and the like” [ para 81 of D5 where fats and oils that can be included in the vegetable cheese like food, which include a nut based oil (peanut oil) and vegetable oil sources sunflower oil, rape seed oil, cotton seed oil, soya oil, safflower oil, corn oil, rice bran oil etc.…. a single oil , a mixed oil]. D5 is pertinent as it teaches vegetable cheese like foods where the oil sources include coconut oil and other vegetable oils that can be included either separately or mixed and utilized in the vegetable cheese like products. Based on the teaching of D5, it would have been obvious to one of ordinary skill in the art before the effective filing of the invention to include any vegetable oils or nut oil sources as part of the fat/oil component in the non-dairy cheese analogue composition as taught by D5. The ordinary artisan would have been motivated to modify D1 and choose an additional oil source based at least on the melting point and solid fat content of the oil or fa added [Para 81 of D5]. One of ordinary skill before the filing of the application would have been further motivated to choose an oil or fat also based on ease of availability, cost and organoleptic properties of the added oil / fat in the food composition, to achieve a non-dairy cheese analog product having high consumer acceptability.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh, D1, Attapattu D3 and Rybinski D4, as applied to claims 1-2, 4-6, 8, 10, 12, 15, 19 and 21 above, further in view of further in view of Richardson (US 4089981), hereinafter D6.
Regarding amended claim 17, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein 0.1 to 10 wt.% fiber relative to weight of the non-dairy cheese analogue 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]. D1 does not specify the particle size of fiber from 5-1000µm as recited in claim 17, however, vegetable based cheese-like product containing dietary fiber having particle sizes in the claimed range was known in the art before the effective filing of the application as is taught by D6 to Richardson D6 which is directed to simulated foods including chasse (Column 2, lines 52-55).
D6 [Column 3, lines 48-55] teaches that the size of fiber, cellulose fibers should be simulated food product [abstract and title] and “where small particle size of fibers is accompanied with vegetables oils and gums” [ Column 4, lines 1-15]. D6 teaches that when “reduce the fibers down to sufficiently small size to provide adequate palatability, particle size which averages 20 to 40 microns or less in length provides satisfactory palatability and mouth feel to a majority of human subjects.” [Column 3, lines 45-55 of D6] and “the relatively small particle size of the cellulose fibers minimizes the gritty mouth feel of the insoluble cellulose, and also allows the cellulose fibers to be easily distributed within a water-gum-oil in gel suspension matrix.” [Column 4, lines 1-10]. The fiber size taught by D6 falls in the claimed range of 5-1000 microns as recited in claim 17. Thus, inclusion of fiber having desired particle size was known in the art at the time of the effective filing of the invention as taught by D6 and it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include fiber having particle size of 20-40 microns, which falls in the claimed size range in the simulated non-dairy cheese analogue composition. The ordinary artisan would have been motivated to modify D1 and choose a desired fiber size based at least because the relatively small particle size of the cellulose fibers minimizes the gritty mouth feel of the fiber, and also allows fibers to be easily distributed within the matrix [ as taught by D6, column 4, lines 1-5] at least to produce a non-dairy cheese analog having smooth non-gritty mouthfeel with consumer acceptability.
Claims 3, 13, 16, 20 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Hsieh et al. (US 20210120834 A1), hereinafter D1, Attapattu et al. (US 20140154388 A1), hereinafter D3 and Rybinski et al. (US 5244687), hereinafter D4, as applied to claims 1-2, 4-6, 8. 10, 12, 15, 19 and 21 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 relative to weight of the non-dairy cheese analogue composition [Para 15 of D1 teaches water in 40-55 wt.% of the total weight of the composition];
0.1 to 10 wt.% fiber relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 relative to weight of the non-dairy cheese analogue 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 13 new limitation wherein vegan cheese also comprises “0.1 to 3 wt.% glycerin”, D1 as applied above teaches a non-dairy cheese analogue composition according to claim 1, wherein the non-dairy cheese analogue composition with [Para 21 of D1 teaches additives in 1-5%] but D1 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. Both D3 and D4 are directed to cheese analog products, , i.e., are in the field of the inventor' s endeavor and are reasonably pertinent.
Thus, D1 teaches cheese analog products comprising additives in the range from 1-5% by weight of the product [para 21 of D1 where additives in 1-5% by weight are taught]. Adding “glycerin” as an additive in an amount that falls in the claimed range of “0.1 to 3 wt.%” were 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 glycerin as an additive 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.
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.
Further, to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results” Thus, claim 13 still stands rejected for above cited reasons of record.
Regarding new claim 16 limitation wherein vegan cheese also comprises “0.1 to 1 wt.% glycerin”, D1 as applied above to claim 13 addresses the limitation of glycerin in view of D3 and D4. D4 teaches that glycerin can be included in an amount of 0.1 to 1.0%, [Column 4, last line to column 5, lines 1-5] which is the same range as recited in claim 15. Thus, addition of glycerin in cheese analog products in an amount in the claimed range was known before the effective filing date of the invention, as pointed in the rejection of claim 13 above. Hence the rejection of claim 13 applies to claim 16 as well.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include glycerin as an additive 0.1 to 1 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.
Regarding claim 20, D1 as applied above teaches, the non-dairy cheese analogue composition of claim 13, wherein the non-dairy cheese analogue composition does not contain any of egg yolk, lecithin, sunflower lecithin, sodium stearoyl lactylate, diacetyl tartaric ester of monoglyceride (DATEM), polyglycerol-polyricinoleate (PGPR), monoglyceride, or mono-diglyceride emulsifier [Abstract, para 0001, 0006, 0014 and specifically 0051 all teach that in the vegan cheese of D1 it is not necessary to use any emulsifier, like lecithin], which meets the limitation of claim 20.
Regarding new claim 22, regarding the limitation “non-dairy cheese analogue composition does not contain an emulsifying salt”, D1 teaches a non-dairy cheese analogue composition of claim 1, wherein “the composition of vegan cheese may comprise emulsifying salt in an amount of about 0.5-1.0 wt. % of the total weight of the vegan cheese” [Para 19 of D1], where the phrase “may comprise” clearly indicates that emulsifying salt is an optional ingredient and is not a required component in the non-dairy cheese analogue composition.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Hsieh, hereinafter D1, Attapattu, hereinafter D3 and Rybinski, hereinafter D4, and, hereinafter D2 as applied to claim 13, 16, 20 and 22 above, further in view of Richardson (US 4089981), hereinafter D6.
Regarding amended claim 18, D1 teaches a non-dairy cheese analogue composition according to claim 1, wherein 0.1 to 10 wt.% fiber relative to weight of the non-dairy cheese analogue 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]. D1 does not specify the particle size of fiber from 5-1000µm as recited in claim 17, however, vegetable based cheese-like product containing dietary fiber having particle sizes in the claimed range was known in the art before the effective filing of the application as is taught by D6 to Richardson D6 which is directed to simulated foods including cheese (Column 2, lines 52-55).
D6 [Column 3, lines 48-55] teaches that the size of fiber, cellulose fibers should be simulated food product [abstract and title] and “where small particle size of fibers is accompanied with vegetables oils and gums” [ Column 4, lines 1-15]. D6 teaches that when “reduce the fibers down to sufficiently small size to provide adequate palatability, particle size which averages 20 to 40 microns or less in length provides satisfactory palatability and mouth feel to a majority of human subjects.” [Column 3, lines 45-55 of D6] and “the relatively small particle size of the cellulose fibers minimizes the gritty mouth feel of the insoluble cellulose, and also allows the cellulose fibers to be easily distributed within a water-gum-oil in gel suspension matrix.” [Column 4, lines 1-10]. The fiber size taught by D6 falls in the claimed range of 5-1000 microns as recited in claim 17. Thus, inclusion of fiber having desired particle size was known in the art at the time of the effective filing of the invention as taught by D6 and it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include fiber having particle size of 20-40 microns, which falls in the claimed size range in the simulated non-dairy cheese analogue composition. The ordinary artisan would have been motivated to modify D1 and choose a desired fiber size based at least because the relatively small particle size of the cellulose fibers minimizes the gritty mouth feel of the fiber, and also allows fibers to be easily distributed within the matrix [ as taught by D6, column 4, lines 1-5] at least to produce a non-dairy cheese analog having smooth non-gritty mouthfeel with consumer acceptability.
Response to Arguments
Applicant's arguments filed 4/07/2026 have been fully considered but are moot because applicant’s amendment to independent claims 1 and 13 and addition of new claims 15-22 argument resulted in the new ground of rejection which does not rely on the reference as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s argument on page 7 is regarding amended independent claims 1 and 13, not being obvious in view of applied art to D1 (Hsieh), D3 (Atapattu), and D4 (Rybinski) as the references do not teach the invention where “a non-dairy cheese analogue composition comprising 0.1 to 3 wt.% glycerin relative to the total weight of the non-dairy cheese analogue composition”. On page 8 of remarks, applicant supports the argument by “the specification discloses criticality of the claimed amount of glycerin. For example, the Examples in the specification show that, within example 11, it is shown that the melt score is improved by adding 0.3% glycerin compared to example 10 having no glycerin.”
Applicant’s argument is considered but is not found to be persuasive.
Firstly, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In the instant case, Glycerin / glycerol is routinely used 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. Both D3 and D4 are directed to cheese analog products, , i.e., are in the field of the inventor' s endeavor and are reasonably pertinent.
Thus, D1 teaches cheese analog products comprising additives in the range from 1-5% by weight of the product [para 21 of D1 where additives in 1-5% by weight are taught]. Adding “glycerin” as an additive in an amount that falls in the claimed range of “0.1 to 3 wt.%” were 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 glycerin as an additive 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.
In addition, applicant is reminded that in an obviousness rejection, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In the instant case, D1 in view of D3 and D4 as applied to claims 1 and 13, includes glycerin in the claimed range where glycerin is taught as a humectant. In response to Page 8 argument citing “the specification discloses criticality of the claimed amount of glycerin”, the recitation of glycerin improving melt score is only a statement of the properties imparted by glycerin in the claimed range in the product.
Since the product taught by modified D1 as applied to claims 1 and 13 is substantially identical in structure or composition to that of the claims 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.
Further, in response to applicant’s argument that the effect of improving meltability by inclusion of glycerin is novel and unexpected. However, something that is old does not become patentable upon the discovery of a new property. The claiming of a new use, new function or unknown property, which is inherently present in the prior art does not necessarily make the claim patent-able. MPEP 2112.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., glycerin improving melt score) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Further, at least for the product claim 1, citing an example of showing effect of 0.3% glycerin citing improved melt score under a given set of parameters does not provide support for the unexpected result of improved meltability for the entire range of 0.1-3% glycerin under all possible process conditions.
Applicant’s other remarks are directed to new claims 15-22 and new limitations, which have been addressed in rejection above.
Claims 1-10, 12-13, 15-22 are rejected for reasons of record.
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.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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