DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed July 23, 2025 has been entered. Claims 1, 5-6, 8-11, 13-18, and 20-30 are pending. Claims 1, 8, 16-18 and 30 have been amended. Claims 22-27 are withdrawn as being directed to a non-elected invention.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 8-11, 13, 16-17 and 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Cowell (Vegan Cauliflower Alfredo Sauce, Very Veganish, Oct. 2, 2016, Retrieved from Internet URL: https://veryveganish.com/vegan-no-oil-creamy-cauliflower-alfredo-suace/).
Regarding claims 1 and 29, Cowell discloses a vegan cheese consisting of cauliflower, garlic, plain plant-based milk, salt, pepper, and nutmeg (page 32 under Ingredients). Cowell additionally teaches that the vegan cheese comprises water as the cauliflower is boiled in water and pureed with the water. (See Step 1).
The garlic, salt, pepper and nutmeg in Cowell fall within the scope of the additional ingredients recited in claim 1.
Cowell further teaches that the plant-based milk can be oat milk (page 7) if a nut-free plant milk is desired.
Cowell teaches that the vegan cheese is substantially free from animal products.
Therefore, Cowell renders obvious a vegan cheese consisting of cauliflower puree, water, oat milk, spices and salt.
With respect to the amount of each ingredient, it would have been obvious to one of ordinary skill in the art to vary the amount of each ingredient depending on the desired taste and texture of the cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 214405: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Further, from In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of the claimed ingredients in the claimed amounts as they all continue to function predictably, as expected.
Regarding claims 8-11, the gum, the juice, the flavoring agent, and the coloring agent are all optional ingredients in claim 1 and therefore not required. The claims do not recite that the vegan cheese further comprises these ingredients and therefore Cowell meets the claimed limitation for the reasons stated above with respect to claim 1.
Regarding claim 13, Cowell does not teach using any genetically-modified organisms (GMO) or products made from them. Therefore, the vegan cheese of Cowell is considered to not contain any GMOs as a person having ordinary skill in the art would have had the choice to exclude them.
Regarding claim 16, Cowell discloses a food product comprising a vegan cheese, wherein the vegan cheese consists of cauliflower, garlic, plain plant-based milk, salt, pepper, and nutmeg (page 32 under Ingredients). Cowell additionally teaches that the vegan cheese comprises water as the cauliflower is boiled in water and pureed with the water. (See Step 1).
The garlic, salt, pepper and nutmeg in Cowell fall within the scope of the additional ingredients recited in claim 1.
Cowell further teaches that the plant-based milk can be oat milk (page 7) if a nut-free plant milk is desired.
Cowell teaches that the vegan cheese is substantially free from animal products.
Therefore, Cowell renders obvious a vegan cheese consisting of cauliflower puree, water, oat milk, spices and salt.
With respect to the amount of each ingredient, it would have been obvious to one of ordinary skill in the art to vary the amount of each ingredient depending on the desired taste and texture of the cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 214405: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Further, from In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of the claimed ingredients in the claimed amounts as they all continue to function predictably, as expected.
Regarding claim 17, Cowell teaches that the food product is pasta (page 15).
Regarding claim 28, Cowell teaches that the vegan cheese is free of enzymes (See Ingredient List).
Regarding claim 30, that examiner notes that starch, oil, gum, and spices are option ingredients in claim 1 and therefore not required. The claim does not recite that the vegan cheese consists of starch, wherein the starch comprises tapioca and modified corn starch. Nor does the claim require that the oil, gum, anticaking agent, and spices be present in the cheese. Therefore, the prior art is considered to meet the limitations of this claim for the same reasons as claim 1 as the ingredients in this claim are optional and not required.
Further, Cowell teaches that the vegan cheese includes spices such as salt, pepper, garlic and nutmeg, which could also be considered flavoring agents or coloring agents as they all provide flavor and color to the vegan cheese. Therefore, spices are not required.
Additionally, it would have been obvious to one of ordinary skill in the art to vary the spices in the vegan cheese of Cowell depending on the desired taste of the product. Tumeric and paprika are well known spices in the food industry and it would have been obvious for one of ordinary skill in the art to choose turmeric or paprika for their flavor/color attributes.
Claims 5-6 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Cowell (Vegan Cauliflower Alfredo Sauce, Very Veganish, Oct. 2, 2016, Retrieved from Internet URL: https://veryveganish.com/vegan-no-oil-creamy-cauliflower-alfredo-suace/) as applied to claim 1 above, and further in view of Aho (WO-2018115597-A1).
Regarding claim 5, Cowell teaches a vegan cheese as described above, but fails to teach that the cheese further consists of 10-50% by weight starch.
Aho teaches a vegan cheese product, wherein the product comprises conventional thickening agents, such as maize starch (page 9, See Examples).
It would have been obvious to one of ordinary skill in the art to further add starch to the cheese of Cowell depending on the desired thickness of the cheese. Aho teaches that the starch is a thickening agent and therefore would have been obvious to add if a thicker vegan cheese product was desired.
With respect to the claimed amounts, it would have been obvious to a person having ordinary skill in the art to optimize the amount of maize starch added to get the desired thickness of the vegan cheese. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 6, Cowell teaches a vegan cheese as described above, but fails to teach that the cheese further consists of 5-35% by weight plant/vegetable oil.
Aho further teaches that the vegan cheese comprises coconut oil in an amount of 0-7 wt%, thus overlapping the claimed range of 5-35 wt%. 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)
As Aho teaches that it is well known in the art to use plant/vegetable oil in a vegan cheese product, it would have been obvious to one of ordinary skill in the art to further add oil in a similar amount as taught by Aho to the cheese of Cowell depending on the desired flavor and texture, such as creaminess, attributes. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claims 14-15, Cowell teaches a vegan alfredo cheese as described above, but fails to specifically teach a mozzarella cheese analogue or a cheddar cheese analogue.
Aho further teaches a vegan cheese that can be a mozzarella cheese analogue [pg. 11, lines 24-25], or a solid, cheese-like product [Example 3].
As it is known in the art for a vegan cheese product to be a solid, cheese-like product, it would have been obvious to one of ordinary skill in the art formulate and process the product of Cowell such that it resembles a desired cheese product.
Varying the amount and types of ingredients, as well as the claimed process for producing the cheese will alter the texture and flavor attributes of the cheese. This is merely routine experimentation that is well within the ordinary skill in the art.
Claims 18, 20, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Cowell (Vegan Cauliflower Alfredo Sauce, Very Veganish, Oct. 2, 2016, Retrieved from Internet URL: https://veryveganish.com/vegan-no-oil-creamy-cauliflower-alfredo-suace/) in view of Homemade (“Homemade Vegan Pizza with Vegan Mozzarella”).
Regarding claims 18, 20, and 21, Cowell discloses a food product comprising a vegan cheese, wherein the vegan cheese consists of cauliflower, garlic, plain plant-based milk, salt, pepper, and nutmeg (page 32 under Ingredients). Cowell additionally teaches that the vegan cheese comprises water as the cauliflower is boiled in water and pureed with the water. (See Step 1).
The garlic, salt, pepper and nutmeg in Cowell fall within the scope of the additional ingredients recited in claim 1.
Cowell further teaches that the plant-based milk can be oat milk (page 7) if a nut-free plant milk is desired.
Cowell teaches that the vegan cheese is substantially free from animal products.
Therefore, Cowell renders obvious a vegan cheese consisting of cauliflower puree, water, oat milk, spices and salt.
With respect to the amount of each ingredient, it would have been obvious to one of ordinary skill in the art to vary the amount of each ingredient depending on the desired taste and texture of the cheese product. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 214405: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Further, from In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of the claimed ingredients in the claimed amounts as they all continue to function predictably, as expected.
While Cowell disclsoes a food product comprising the vegan cheese, Cowell fails to teach that the food product is a pizza comprising the vegan cheese.
Homemade teaches a food product that is a pizza, wherein the pizza futher comprises vegan cheese. Homemade teaches placing sauce, a vegan cheese, and garlic powder (flavoring agent) on dough. The pizza is then baked (cooked/heated) [pg 2, Bake Pizza]. Homemade states that the pizza is a vegan pizza so it is being considered to be substantially free from animal products.
As Homemade teaches that it is well known in the art for a pizza to comprise vegan cheese, it would have been obvious to one of ordinary skill in the art to apply the vegan cheese of Cowell to a pizza. It would have been obvious for a person having ordinary skill in the art to use the vegan cheese of Cowell on the pizza of Homemade as a way of increasing the amount of vegetables the consumer eats.
Response to Arguments
Applicant’s arguments with respect to the previous rejections under 103 have been fully considered and are persuasive. Applicant’s amendments have overcome the previously applied prior art. Therefore, the rejection has been withdrawn.
However, upon further consideration, a new grounds of rejection is made in view of Cowell, as Cowell teaches a vegan cheese consisting of the claimed ingredients. Applicant's amendment necessitated the new grounds of rejection presented in this Office action.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791