DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Status of the Application
The status of the claims stands as follows:
Canceled claims: 15-24
Claims currently under consideration: 15-24
Currently rejected claims: 15-24
Allowed claims: None
Claim Objections
Claim 24 is objected to because of the following informalities: the claim contains two periods within the claim (after “64 s-1” and “apple and a mixture thereof”). MPEP 608.01(m) (“Each claim begins with a capital letter and ends with a period. Periods may not be used elsewhere in the claims except for abbreviations.”). Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 15 and 18-23 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Crepel et al. (U.S. 2006/0216372 A1) in view of Ur-Rehman et al. (U.S. 2010/0297294 A1), Ospina Martinez et al. (WO 2007/095969 A1), and Donay et al. (U.S. 3,128,190).
Regarding claim 15, Crepel et al. discloses a yogurt ([0006]) that would inherently have a shelf life, the yogurt comprising fat ([0092]); protein ([0092]); Lactobacillus delbrueckii subsp. bulgaricus ([0009]); 1x108 to 3x109 CFU/ml Streptococcus thermophilus (specifically, at least 107 CFU/g) ([0009]); and a pH not lower than 3.0 (specifically, between 4 and 5) ([0062]).
Crepel et al. does not disclose (i) the yogurt as being Greek-style, (ii) the fat content as being in the range 2 to 3.5%, (iii) the protein content as being in the range of 7-10%, (iv) the Lactobacillus delbrueckii subsp. bulgaricus as being at a concentration of from 1x105 to 3x106 CFU/ml, (v) a viscosity of 2500-6000 mPa/s as measured with a Rheomat RM 200 at a temperature of 10°C at a shear of 61 s-1, (vi) the bacteria concentrations as being within the claimed ranges for all of the shelf life, or (vii) the pH as being within the claimed range for 50 days after manufacture.
As for the yogurt being Greek-style, Ur-Rehman et al. discloses ultrafiltration of a yogurt product (i.e., a separation step) to increase the solids content of the yogurt in order to form a Greek-style yogurt ([0025]).
It would have been obvious to one having ordinary skill in the art to incorporate the separation step of Ur-Rehman et al. into the method of Crepel et al. in order to form a Greek-style yogurt. First, Crepel et al. indicates the starting dairy material may be concentrated milk ([0010]) as well as that the yogurt may contain added dairy raw materials including powdered milk, concentrated whey and/or casein ([0011], [0058]). Such modification of the starting material profile suggests to a skilled practitioner that concentrating the dry milk components improves aspects of the resultant yogurt product. A skilled practitioner would be motivated to consult Ur-Rehman et al. for additional instruction regarding the effects of concentration. Since Ur-Rehman et al. teaches that ultrafiltration after fermentation is useful “to increase the solids as required in certain types of yogurt such as Greek-style yogurt” ([0025]) and such concentration is comparable to the concentration steps disclosed in Crepel et al., a skilled practitioner would find the incorporation of a separation step (i.e., ultrafiltration) into the method of Crepel et al. after the fermenting step to be obvious in order to increase the solids content to produce a Greek-style yogurt.
As for the fat content, Crepel et al. discloses the starting dairy product may be milk, skimmed milk, or mixtures thereof ([0010]), where milk has a higher fat concentration than the claimed range of 2-3.5% fat and skimmed milk has a lower fat concentration. The formulation of a mixture of milk and skimmed milk would facilitate achieving a fat content falling between the fat content of each component individually. Since the fat contents of the respective components fall above and below the claimed fat concentration (and fermentation would not be expected to alter the fat concentration), the formation of a Greek-style yogurt having a fat content in the range of 2-3.5% would be obvious to a skilled practitioner.
As for the protein content, Crepel et al. discloses the yogurt as having a protein content of 4.23% by weight, though the reference does indicate additional protein may be added to the starting material ([0058]). Ur-Rehman et al. discloses a protein content of 6% by weight for a concentrated yogurt product ([0031]) that may be further concentrated. The claimed protein content of 7-10% is thus considered obvious, due to the instruction that protein may simply be added in Crepel et al. and the proximity of the disclosed protein content to the claimed range. MPEP 2144.05 I (“a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”).
As for the bacteria concentrations, Crepel et al. indicates that the product is fermented with Streptococcus thermophilus and Lactobacillus delbrueckii subsp. bulgaricus in an amount of at least 107 CFU/g ([0009]). Though Crepel et al. does not explicitly disclose the claimed concentration of L. delbrueckii subsp. bulgaricus, the concentration of the bacteria would clearly be based on a number of controllable factors that are well known in the art, including the inoculation concentration, fermentation conditions and storage conditions. Achieving a concentration between zero and the disclosed value of at least 107 CFU/mg would be well within the ordinary skill in the art and is thus considered obvious to a skilled practitioner. Further, since the bacterial concentrations are claimed in relation to volume (CFU/ml) as opposed to mass (CFU/mg), the reduction of a concentration could be easily achieved via modification of the product volume. The claimed range of from 1x105 to 3x106 CFU/ml L. delbrueckii subsp. bulgaricus is thus considered obvious. The claimed limitations of “a shelf life” and a period of “all the shelf life” are effectively any range deemed by a practitioner to be the shelf life of the product and do not appreciably limit the claim. The period is thus considered obvious to a skilled practitioner.
As for the viscosity, Ospina Martinez et al. discloses the viscosity for a stirred yogurt is optimally in the range of 300-3700 mPa/s (P2, L10-L12), and Crepel et al. indicates the yogurt product is a stirred yogurt (claim 7). Since Crepel et al. does not disclose a suitable viscosity for the yogurt product, a skilled practitioner would be motivated to consult Ospina Martinez et al. for clarification regarding a suitable viscosity. Since Ospina Martinez et al. discloses a viscosity in the range of 300-3700 mPa/s for a comparable yogurt product as that of Crepel et al., the claimed viscosity of from 2500 to 6000 mPa/s would be obvious to a skilled practitioner. Concentration of the product according to Ur-Rehman et al. in the formation of a Greek-style yogurt would increase the viscosity of a stirred yogurt but the claimed range of viscosities still extends substantially higher than that of Ospina Martinez et al., such that concentration of the yogurt product would not be expected to alter the viscosity to the point that it would exceed the claimed range.
As for the pH stability, Crepel et al. discloses the fermented product has an initial pH of between 4-5 ([0062]). Crepel et al. also indicates that the product is stored at a reduced temperature once the target acidity is achieved ([0063]), as well as that products, such as fruit, may be combined with the product ([0011]). A skilled practitioner would be motivated to ensure product stability for as long as possible and would aim to take measures to best achieve such a result. Accordingly, a practitioner would be motivated to consult Donay et al., which indicates that fruit combined with yogurt would typically result in bacteria continuing to ferment fruit were it simply mixed with yogurt (C1, L42-L55). Donay et al. suggests such a result may be overcome by specifically taking action to halt the fermentation (C3, L34-L36). In doing so, a skilled practitioner would expect that the pH of the yogurt would be stabilized indefinitely. Maintaining a pH achieved upon initial cessation of fermentation for an extended period would thus be obvious to a skilled practitioner. As such, maintaining the pH in a range of 3.9-4.4 for a period of 50 days after manufacture is considered obvious to a skilled practitioner.
As for claim 18, Crepel et al. discloses a conventional process wherein the white mass of yogurt is either “packaged directly, alone or after mixing with a fruit or aromatic preparation” ([0005]), which suggests that absent any mixing with fruit or aromatic preparation, the yogurt would comprise 100% white mass content. Crepel et al. then indicates that a flavored preparation may be added to the inventive yogurt product in an amount ranging from 10-18% (m/m) ([0075], [0077]), which suggests the white mass content would range from 82-90%. The claimed range of white mass content in the product of 75-99.99% by weight is thus considered obvious to a skilled practitioner.
As for claim 19, a skilled practitioner would recognize that the lactic acid bacteria culture content would increase as the fermentation time increased. Any particular bacterial concentration in terms of relative weight is thus a result-effective variable subject to optimization depending on the weight of bacterial culture necessary to achieve the necessary pH (Crepel et al., [0062]). As such, the claimed range of 0.001-0.5% by weight lactic acid bacteria culture content is considered obvious to a skilled practitioner. MPEP 2144.05 II.
As for claim 20, Crepel et al. discloses the dairy product as comprising a fruit preparation ([0034]-[0035]). Ur-Rehman et al. discloses the inclusion of cherry fruit flavoring ([0039]).
As for claims 21 and 22, Crepel et al. discloses a bimodal fat particle size distribution with smaller fat globules having a particle diameter between 0.05 and 3 µm and larger particles having a particle diameter between 10 and 140 µm ([0016]). Crepel et al. further discloses, though, that the small fat globules having between 0.05 and 3 µm are responsible for improved organoleptic perception of yogurt due to masking of acidity in the yogurt ([0033]). A skilled practitioner would thus be motivated to maximize content of the smaller fat globules relative to the larger fat globules in order to maximize the masking effect of the acidity in the yogurt. As such, fat globules with an average particle size in the range of 0.05-3 µm would be obvious to a skilled practitioner, which renders the claimed ranges of fat particles of from 0.05-10 µm (claim 21) and from 1-2.5 µm (claim 22) obvious to a skilled practitioner.
As for claim 23, Crepel et al. discloses the starting dairy product may be milk, skimmed milk, or mixtures thereof ([0010]), where milk has a higher fat concentration than the claimed range of 2-2.9% fat and skimmed milk has a lower fat concentration. The formulation of a mixture of milk and skimmed milk would facilitate achieving a fat content falling between the fat content of each component individually. Since the fat contents of the respective components fall above and below the claimed fat concentration (and fermentation would not be expected to alter the fat concentration), the formation of a Greek-style yogurt having a fat content in the range of 2-2.9% would be obvious to a skilled practitioner.
Claim 16 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Crepel et al. (U.S. 2006/0216372 A1) in view of Ur-Rehman et al. (U.S. 2010/0297294 A1), Ospina Martinez et al. (WO 2007/095969 A1), and Donay et al. (U.S. 3,128,190) as applied to claim 15 above, and further in view of De Vuyst et al. (U.S. 2003/0152665 A1).
Regarding claim 16, Crepel et al., Ur-Rehman et al., Ospina Martinez et al., and Donay et al. disclose the yogurt of claim 15. Crepel et al. further discloses the yogurt as comprising Lactobacillus delbrueckii subsp. bulgaricus and Streptococcus thermophilus ([0009]).
The cited prior art does not disclose the yogurt as comprising Lactobacillus rhamnosus.
However, De Vuyst et al. discloses a yogurt product ([0008]) that comprises Lactobacillus rhamnosus as starter culture ([0016]).
It would have been obvious to one having ordinary skill in the art to add Lactobacillus rhamnosus to the yogurt of Crepel et al. First, Crepel et al. discloses that the yogurt product may comprise lactic acid bacteria other than Lactobacillus delbrueckii subsp. bulgaricus and Streptococcus thermophilus ([0012]), which would prompt a skilled practitioner to consult De Vuyst et al. Since De Vuyst et al. discloses Lactobacillus rhamnosus as being a lactic acid bacterium suited for use as a starter culture in yogurt ([0016]), the inclusion of Lactobacillus rhamnosus in the yogurt of Crepel et al. would be obvious. As such, a yogurt that contains only Lactobacillus delbrueckii subsp. bulgaricus, Streptococcus thermophilus, and Lactobacillus rhamnosus as the sole lactic acid bacteria would be obvious to a skilled practitioner.
Claim 17 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Crepel et al. (U.S. 2006/0216372 A1) in view of Ur-Rehman et al. (U.S. 2010/0297294 A1), Ospina Martinez et al. (WO 2007/095969 A1), and Donay et al. (U.S. 3,128,190) as applied to claim 15 above, and further in view of Paquet et al. (U.S. 6,821,543 B1).
Regarding claim 17, Crepel et al., Ur-Rehman et al., Ospina Martinez et al., and Donay et al. disclose the yogurt of claim 15.
The cited prior art does not disclose the yogurt as having a dornic acidity not exceeding 146 one day after its manufacture and a dornic activity not exceeding 170 during a period of 50 days after its manufacture when measured according to the claimed protocol.
However, Paquet et al. discloses that “warm” flavors in fermented dairy products, such as yogurt, are incompatible with acidity resulting from lactic acid and teaches that reduction of dornic activity to about 20-80°D allowed for acceptable incorporation of “warm” flavors into the fermented dairy products (C1, L9-L48).
It would have been obvious to one having ordinary skill in the art produce yogurt according to Crepel et al. having a dornic acidity not exceeding 146 one day after its manufacture and a dornic activity not exceeding 170 during a period of 50 days after its manufacture when measured according to the claimed protocol. Crepel et al. indicates that the aim of the invention is incorporation of “hot” flavors into dairy products, such as yogurt ([0002]-[0008]). MPEP 2144.06 I indicates that the combination of equivalents known for the same purpose is prima facie obvious. Since Crepel et al. discloses an aim of adding hot/warm flavors to fermented dairy products, such as yogurt, which is addressed therein via a bimodal fat structure, and Pacquet et al. is likewise directed toward adding hot/warm flavors to yogurt via ensuring a low dornic activity, a skilled practitioner would be motivated to ensure the dornic activity of the product of Crepel et al. remained below 80 over the life span of the product. As such, producing a yogurt according to Crepel et al. having a dornic acidity not exceeding 146 one day after its manufacture and a dornic activity not exceeding 170 during a period of 50 days after its manufacture when measured according to the claimed protocol would be obvious to a skilled practitioner.
Claim 24 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Crepel et al. (U.S. 2006/0216372 A1) in view of Ur-Rehman et al. (U.S. 2010/0297294 A1), Ospina Martinez et al. (WO 2007/095969 A1), Donay et al. (U.S. 3,128,190), De Vuyst et al. (U.S. 2003/0152665 A1), and Paquet et al. (U.S. 6,821,543 B1).
Regarding claim 24, Crepel et al. discloses a yogurt ([0006]) that would inherently have a shelf life, the yogurt comprising fat ([0092]); protein ([0092]); Lactobacillus delbrueckii subsp. bulgaricus ([0009]); 1x108 to 3x109 CFU/ml Streptococcus thermophilus (specifically, at least 107 CFU/g) ([0009]); and a pH not lower than 3.0 (specifically, between 4 and 5) ([0062]). Regarding the white mass content, Crepel et al. discloses a conventional process wherein the white mass of yogurt is either “packaged directly, alone or after mixing with a fruit or aromatic preparation” ([0005]), which suggests that absent any mixing with fruit or aromatic preparation, the yogurt would comprise 100% white mass content. Crepel et al. then indicates that a flavored preparation may be added to the inventive yogurt product in an amount ranging from 10-18% (m/m) ([0075], [0077]), which suggests the white mass content would range from 82-90%. The claimed range of white mass content in the product of 75-99.99% by weight is thus considered obvious to a skilled practitioner. Crepel et al. further discloses the dairy product as comprising a fruit preparation ([0034]-[0035]).
Crepel et al. does not disclose (i) the yogurt as being Greek-style, (ii) the fat content as being in the range 2 to 3.5%, (iii) the protein content as being in the range of 7-10%, (iv) the Lactobacillus delbrueckii subsp. bulgaricus as being at a concentration of from 1x105 to 3x106 CFU/ml, (v) a viscosity of 2500-6000 mPa/s as measured with a Rheomat RM 200 at a temperature of 10°C at a shear of 61 s-1, (vi) the bacteria concentrations as being within the claimed ranges for all of the shelf life, (vii) the pH as being within the claimed range for 50 days after manufacture, (viii) the fruit preparation as being from among those claimed, (ix) the inclusion of Lactobacillus rhamnosus, (x) the claimed dornic activity, or (xi) the claimed fat globule size limitation.
As for the yogurt being Greek-style, Ur-Rehman et al. discloses ultrafiltration of a yogurt product (i.e., a separation step) to increase the solids content of the yogurt in order to form a Greek-style yogurt ([0025]). Ur-Rehman et al. also discloses the inclusion of cherry fruit flavoring ([0039]).
It would have been obvious to one having ordinary skill in the art to incorporate the separation step of Ur-Rehman et al. into the method of Crepel et al. in order to form a Greek-style yogurt. First, Crepel et al. indicates the starting dairy material may be concentrated milk ([0010]) as well as that the yogurt may contain added dairy raw materials including powdered milk, concentrated whey and/or casein ([0011], [0058]). Such modification of the starting material profile suggests to a skilled practitioner that concentrating the dry milk components improves aspects of the resultant yogurt product. A skilled practitioner would be motivated to consult Ur-Rehman et al. for additional instruction regarding the effects of concentration. Since Ur-Rehman et al. teaches that ultrafiltration after fermentation is useful “to increase the solids as required in certain types of yogurt such as Greek-style yogurt” ([0025]) and such concentration is comparable to the concentration steps disclosed in Crepel et al., a skilled practitioner would find the incorporation of a separation step (i.e., ultrafiltration) into the method of Crepel et al. after the fermenting step to be obvious in order to increase the solids content to produce a Greek-style yogurt.
As for the fruit flavoring, since Crepel et al. discloses the inclusion of fruit puree without detailing specific fruits ([0035]), a skilled practitioner would consult Ur-Rehman et al. for specific fruit components. The disclosure of cherry fruit flavoring in Ur-Rehman et al. renders the inclusion of such a flavor obvious.
As for the fat content, Crepel et al. discloses the starting dairy product may be milk, skimmed milk, or mixtures thereof ([0010]), where milk has a higher fat concentration than the claimed range of 2-3.5% fat and skimmed milk has a lower fat concentration. The formulation of a mixture of milk and skimmed milk would facilitate achieving a fat content falling between the fat content of each component individually. Since the fat contents of the respective components fall above and below the claimed fat concentration (and fermentation would not be expected to alter the fat concentration), the formation of a Greek-style yogurt having a fat content in the range of 2-3.5% would be obvious to a skilled practitioner.
As for the protein content, Crepel et al. discloses the yogurt as having a protein content of 4.23% by weight, though the reference does indicate additional protein may be added to the starting material ([0058]). Ur-Rehman et al. discloses a protein content of 6% by weight for a concentrated yogurt product ([0031]) that may be further concentrated. The claimed protein content of 7-10% is thus considered obvious, due to the instruction that protein may simply be added in Crepel et al. and the proximity of the disclosed protein content to the claimed range. MPEP 2144.05 I (“a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”).
As for the bacteria concentrations, Crepel et al. indicates that the product is fermented with Streptococcus thermophilus and Lactobacillus delbrueckii subsp. bulgaricus in an amount of at least 107 CFU/g ([0009]). Though Crepel et al. does not explicitly disclose the claimed concentration of L. delbrueckii subsp. bulgaricus, the concentration of the bacteria would clearly be based on a number of controllable factors that are well known in the art, including the inoculation concentration, fermentation conditions and storage conditions. Achieving a concentration between zero and the disclosed value of at least 107 CFU/mg would be well within the ordinary skill in the art and is thus considered obvious to a skilled practitioner. Further, since the bacterial concentrations are claimed in relation to volume (CFU/ml) as opposed to mass (CFU/mg), the reduction of a concentration could be easily achieved via modification of the product volume. The claimed range of from 1x105 to 3x106 CFU/ml L. delbrueckii subsp. bulgaricus is thus considered obvious. The claimed limitations of “a shelf life” and a period of “all the shelf life” are effectively any range deemed by a practitioner to be the shelf life of the product and do not appreciably limit the claim. The period is thus considered obvious to a skilled practitioner.
As for the viscosity, Ospina Martinez et al. discloses the viscosity for a stirred yogurt is optimally in the range of 300-3700 mPa/s (P2, L10-L12), and Crepel et al. indicates the yogurt product is a stirred yogurt (claim 7). Since Crepel et al. does not disclose a suitable viscosity for the yogurt product, a skilled practitioner would be motivated to consult Ospina Martinez et al. for clarification regarding a suitable viscosity. Since Ospina Martinez et al. discloses a viscosity in the range of 300-3700 mPa/s for a comparable yogurt product as that of Crepel et al., the claimed viscosity of from 2500 to 6000 mPa/s would be obvious to a skilled practitioner. Concentration of the product according to Ur-Rehman et al. in the formation of a Greek-style yogurt would increase the viscosity of a stirred yogurt but the claimed range of viscosities still extends substantially higher than that of Ospina Martinez et al., such that concentration of the yogurt product would not be expected to alter the viscosity to the point that it would exceed the claimed range.
As for the pH stability, Crepel et al. discloses the fermented product has an initial pH of between 4-5 ([0062]). Crepel et al. also indicates that the product is stored at a reduced temperature once the target acidity is achieved ([0063]), as well as that products, such as fruit, may be combined with the product ([0011]). A skilled practitioner would be motivated to ensure product stability for as long as possible and would aim to take measures to best achieve such a result. Accordingly, a practitioner would be motivated to consult Donay et al., which indicates that fruit combined with yogurt would typically result in bacteria continuing to ferment fruit were it simply mixed with yogurt (C1, L42-L55). Donay et al. suggests such a result may be overcome by specifically taking action to halt the fermentation (C3, L34-L36). In doing so, a skilled practitioner would expect that the pH of the yogurt would be stabilized indefinitely. Maintaining a pH achieved upon initial cessation of fermentation for an extended period would thus be obvious to a skilled practitioner. As such, maintaining the pH in a range of 3.9-4.4 for a period of 50 days after manufacture is considered obvious to a skilled practitioner.
As for the inclusion of Lactobacillus rhamnosus, De Vuyst et al. discloses a yogurt product ([0008]) that comprises Lactobacillus rhamnosus as starter culture ([0016]).
It would have been obvious to one having ordinary skill in the art to add Lactobacillus rhamnosus to the yogurt of Crepel et al. First, Crepel et al. discloses that the yogurt product may comprise lactic acid bacteria other than Lactobacillus delbrueckii subsp. bulgaricus and Streptococcus thermophilus ([0012]), which would prompt a skilled practitioner to consult De Vuyst et al. Since De Vuyst et al. discloses Lactobacillus rhamnosus as being a lactic acid bacterium suited for use as a starter culture in yogurt ([0016]), the inclusion of Lactobacillus rhamnosus in the yogurt of Crepel et al. would be obvious. As such, a yogurt that contains only Lactobacillus delbrueckii subsp. bulgaricus, Streptococcus thermophilus, and Lactobacillus rhamnosus as the sole lactic acid bacteria would be obvious to a skilled practitioner.
As for the claimed dornic activity, Paquet et al. discloses that “warm” flavors in fermented dairy products, such as yogurt, are incompatible with acidity resulting from lactic acid and teaches that reduction of dornic activity to about 20-80°D allowed for acceptable incorporation of “warm” flavors into the fermented dairy products (C1, L9-L48).
It would have been obvious to one having ordinary skill in the art produce yogurt according to Crepel et al. having a dornic acidity not exceeding 146 one day after its manufacture and a dornic activity not exceeding 170 during a period of 50 days after its manufacture when measured according to the claimed protocol. Crepel et al. indicates that the aim of the invention is incorporation of “hot” flavors into dairy products, such as yogurt ([0002]-[0008]). MPEP 2144.06 I indicates that the combination of equivalents known for the same purpose is prima facie obvious. Since Crepel et al. discloses an aim of adding hot/warm flavors to fermented dairy products, such as yogurt, which is addressed therein via a bimodal fat structure, and Pacquet et al. is likewise directed toward adding hot/warm flavors to yogurt via ensuring a low dornic activity, a skilled practitioner would be motivated to ensure the dornic activity of the product of Crepel et al. remained below 80 over the life span of the product. As such, producing a yogurt according to Crepel et al. having a dornic acidity not exceeding 146 one day after its manufacture and a dornic activity not exceeding 170 during a period of 50 days after its manufacture when measured according to the claimed protocol would be obvious to a skilled practitioner.
As for the claimed fat globule size, Crepel et al. discloses a bimodal fat particle size distribution with smaller fat globules having a particle diameter between 0.05 and 3 µm and larger particles having a particle diameter between 10 and 140 µm ([0016]). Crepel et al. further discloses, though, that the small fat globules having between 0.05 and 3 µm are responsible for improved organoleptic perception of yogurt due to masking of acidity in the yogurt ([0033]). A skilled practitioner would thus be motivated to maximize content of the smaller fat globules relative to the larger fat globules in order to maximize the masking effect of the acidity in the yogurt. As such, fat globules with an average particle size in the range of 0.05-3 µm would be obvious to a skilled practitioner, which renders the claimed range of fat particles of from 0.05-10 µm obvious to a skilled practitioner.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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