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 .
Specification
The disclosure is objected to because of the following informalities: The disclosure does not include a section titles, for example: “Brief description of the drawings”, as set forth below. Appropriate correction is required.
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 8 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As amended, claim 8 requires “the lipids is a blend of coconut oil and sunflower oil, rapeseed 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.” There is not support in the specification as originally filed to limit lipid to a blend that must require coconut oil, sunflower oil, rapeseed 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. The specification and the claims as original filed only require that the lipid be a blend of coconut oil and one of sunflower oil, rapeseed 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 or canola oil.
Claim Rejections - 35 USC § 103
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, 2, 4-7, 9 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Sanchez et al. (US 2010/0196575).
Regarding claims 1, 2 and 5, Sanchez et al. disclose a vegetable protein based substitute cheese comprising: (a) about 5% to 30% by weight of a soy protein material; (b) about 10% to 30% by weight vegetable oil; (c) about 0.1% to about 10% by weight of a hydrocolloid (e.g., cellulose a dietary fiber); (d) about 0.1% to about 5% by weight starch; (e) no more than 5% by weight whey protein; and (f) at least 50% by weight water ([0027], [0032], [0048], [0064], [0067], [0086]). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 4, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. disclose the source of starch can be waxy corn, potato, wheat, rice, amaranth or tapioca ([0085]).
Regarding claim 6, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. disclose the vegetable oil has a saturated fatty acid content of at least 50% ([0057]).
Regarding claim 7, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. disclose the vegetable oil coconut oil, palm oil, palm kernel oil, sunflower oil, safflower oil, corn oil, soybean oil, olive oil, canola oil and rapeseed oil ([0056]).
Regarding claim 9, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. is silent with respect to storage modulus (G’). Given Sanchez et al. disclose a substitute cheese substantially similar to the claimed composition, inherently the substitute cheese would exhibit a storage modulus (G’) in the broadly claimed range of between 50 to 4000 Pa at a temperature of 70°C , a constant strain 0.5% and a constant frequency 1 Hz.
Regarding claim 11, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. disclose the substitute cheese comprises 0.9% by weight salt (i.e. 1.85 g table salt in 200 g – [0098]/Example 2). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 12, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. is silent with respect to sodium content. In the case where the substitute cheese comprises 1.85 g of table salt per 200 g of cheese, the composition would comprise about 0.39 g of sodium per 100 g of cheese (i.e., about 394 mg/100 g wherein the proportion of Na in NaCl is 39.34%). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 13, Sanchez et al. disclose a method of making a vegetable protein based substitute cheese comprising: (a) about 5% to 30% by weight of a soy protein material; (b) about 10% to 30% by weight vegetable oil; (c) about 0.1% to about 10% by weight of a hydrocolloid (e.g., cellulose a dietary fiber); (d) about 0.1% to about 5% by weight starch; (e) no more than 5% by weight whey protein; and (f) at least 50% by weight water ([0027], [0032], [0048], [0064], [0067], [0086]). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05 I).
Sanchez et al. disclose the method comprises the steps of: (a) combining and mixing water at a temperature of 75°C , soy protein and hydrocolloid (i.e., fiber) for one minute; (b) adding vegetable oil and mixing at high speed for 2 minutes; (c) adding starch and mixing at high speed for one minute; (d) increasing the temperature of the mixture to 90°C; (e) cooling the mixture to room temperature; and (f) placing the cooled mixture into a mold to form a vegetable protein based substitute cheese ([0099]/Example 3).
While Sanchez et al. doses not disclose the claimed order of mixing, selection of any order of mixing ingredients is prima facie obvious in the absence of new or unexpected results (MPEP §2144.04 IVC).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Sanchez et al. (US 2010/0196575) as applied to claim 1, and further in view of Frazier et al. (US 2015/0335039).
Regarding claim 3, Sanchez et al. disclose all of the claim limitations as set forth above. While Sanchez et al. disclose a substitute cheese comprising cellulose (i.e., fiber), the reference is silent with respect to a fiber 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 and combinations thereof.
Frazier et al. teach a cheese substitute product comprising water, starch, fiber, fat, and non-casein protein ([0008]). Frazier et al. teach fiber including cellulose and oat fiber ([0060]-[0061]).
Sanchez et al. and Frazier et al. are combinable because they are concerned with the same field of endeavor, namely cheese substitute products. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used oat fiber as the fiber in the substitute cheese of Sanchez et al. because Frazier et al. teaches the interchangeability of using cellulose and oat fiber a fiber ingredient in cheese substitute products.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Sanchez et al. (US 2010/0196575) as applied to claim 1, and further in view of Atapattu et al. (US 2014/0154388).
Regarding claim 10, Sanchez et al. disclose all of the claim limitations as set forth above. Sanchez et al. is silent with respect to glycerin.
Atapattu et al. teach a cheese substitute comprising water, fat, starch, whey and 0% to 5% of a humectant wherein the humectant is glycerin ([0013]-[0100]).
Sanchez et al. and Atapattu et al. are combinable because they are concerned with the same field of endeavor, namely cheese substitute products. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have added a humectant in an amount of 0% to 5%, as taught by Atapattu et al., to the substitute cheese composition of Sanchez et al. in order to obtain a cheese product with improved shelf life.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759