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 10/22/2025 has been entered. Claims 1, 3-21, 23-26 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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, 3-6, 8, 9, 11, 12-20, and 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Warwick (US 3900574) in view of Rodriguez (US 2017/0020156 A1).
Regarding Claim 1, Warwick teaches a method of providing a process cheese food (Column 1, Line 34) which is sliced and stacked (Column 2, Lines 9-15). The slices are in contact (Column 1, Lines 10-14).
Warwick does not teach admixing of a protein, fat, thickener, and gelling agent to produce the food.
Rodriguez teaches a vegan cheese product [0010]. The cheese product is made by admixing protein, fat, thickener e.g. [0049, Table 4], and gelling agent [e.g. 0058] (Figure 2A). Rodriguez teaches that the cheese product has the same texture and quality attributes as conventional cheese [0028] while providing a vegan product [0010].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the cheese of Rodriguez in the method of slicing and stacking taught by Warwick. One would have been motivated to make such a modification to create a sliced, stacked vegan cheese product.
Regarding Claim 3, Rodriguez teaches that the cheese has up to “about 42” moisture. The disclosed composition is so close in value to the claimed composition that there is an expectation is will provide an identical product. No material difference is expected between a composition comprising “about 42%” as taught by Rodriguez and 45.5% moisture as claimed. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
Regarding Claim 4 and 16, Warwick teaches a sliced cheese product but does not specifically discuss the protein content.
Rodriguez teaches a vegan cheese product comprising >4% protein such as pea protein (Page 2, Table 1). Rodriguez teaches that the cheese product has the same texture and quality attributes as conventional cheese [0028].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify Warwick to utilize the cheese of Rodriguez. One would have been motivated to make such a modification to formulate a vegan cheese in a sliced, stacked format that had similar qualities to conventional cheese.
Regarding Claim 5 and 17, Rodriguez teaches that the cheese contains “about 25%” plant-based fat such as safflower oil (Page 2, Table 1), which touches the claimed range.
Regarding Claim 6, 18, 19, and 24, Rodriguez teaches “about 15 to about 20” percent (Page 2, Table 2) tapioca starch as a thickener [0058], which lies within the claimed ranges of Claims 18 and 19.
Regarding Claim 8, Rodriguez teaches “about 15 to about 20” percent (Page 2, Table 2) tapioca starch as a thickener [0058], which lies within the claimed range.
Regarding Claim 9 and 20, Rodriguez teaches 1-8% of a hydrocolloid [0072]. Since Claim 20 recites a hydrocolloid as a gelling agent, the hydrocolloid of Rodriguez is interpreted to meet the limitation of a gelling agent of Claim 9.
The amount of hydrocolloid taught by Rodriguez lies within the claimed range.
Regarding Claim 11, Rodriguez teaches that the method of forming the cheese comprises heating to 80-90 °C [0108]. The cheese is formed via an emulsion mixture [0099] which comprises fat [0098] and a powder blend [0106]. The powder blend comprises protein, thickener, and gelling agent (Page 3, Table 5). Note that the method of Rodriguez comprises adding a powder blend to an emulsion and heating to 80-90 °C, which is a process to “form an emulsion”, as claimed.
Regarding Claim 12, Rodriguez teaches that the cheese is stored in a refrigerator [0134], which is interpreted to meet the limitation of cooling the food to a temperature of “less than 20 °C”.
Regarding Claim 13, Warwick teaches that the stack provides “easy release of individual slices”, which meets the limitation of “separable first and subsequent slices”. Additionally, note that a “stack” would be understood by one of ordinary skill to be contiguous slices.
Regarding Claims 14 and 15, Warwick teaches that the cheese slices are assembled into a “loaf” (Column 2, Line 49) with individual slices of “any desirable thickness” (Column 2, Line 53) but does not specifically address the number of slices in the loaf or the weight of each individual slice.
Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding Claim 25, Rodriguez teaches the use of potato starch (Page 3, Table 6).
Regarding Claim 26, Rodriguez teaches 1-8% of a hydrocolloid such as carrageenan [0072], 15-20% percent (Page 2, Table 2) tapioca starch as a thickener [0058], and greater than 15% of a fat [0085, Table 13].
Note that it would have obvious to have utilized K-carrageenan, since K-carrageenan is one of the known variants of carrageenan.
Claim 7 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Warwick in view of Rodriguez as applied to Claim 1, above, and further in view of Carpenter (US5807601A)
Regarding Claim 7, modified Warwick teaches a cheese product as discussed above in regards to Claim 1, and additionally teaches the use of a starch as discussed above in regards to Claim 6, and additionally teaches the use of a combination of starches such as tapioca and potato starch (Rodriguez at [0045], Table 2) but does not discuss the use of a modified starch.
Carpenter teaches an imitation cheese product (Column 2, Lines 66-67). Carpenter teaches that the imitation cheese product may comprise modified tapioca starch or modified potato starch (Column 3, Lines 24-28). Carpenter teaches that modified starches provide properties desirable in a cheese, such as viscosity and freeze/thaw stability, which are not present in native starches (Page 3, Lines 26-33).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize modified starches in the composition of Rodriguez. One would have been motivated to make such a modification since Carpenter teaches that modified starches provide desirable properties to a cheese product. Note that Carpenter teaches the use of modified starch in any cheese analogue (Column 2, Lines 66-67). The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Regarding Claim 10, modified Warwick teaches a cheese product as discussed above in regards to Claim 1. Rodriguez teaches the mixing [0106] of greater than 4% pea protein (Page 2, Table 1), 1-8% carrageenan [0072], and a vegetable oil [0084]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Rodriguez does not specifically teach 25% of a coconut oil as the vegetable oil. However, Rodriguez teaches the use of “any other suitable oil” [0084] as the fat in the composition, and additionally teaches a variety of vegetable oils may be added at greater than 15% w/w [0085]. It would therefore have been obvious to one having ordinary skill to have selected coconut oil as the fat in the composition, given that coconut oil is a commonly known vegetable fat used in food compositions, and additionally to have utilized greater than 15% w/w in the composition, given that Rodriguez teaches the use of several vegetable oils in an amount greater than 15% w/w.
Rodriguez teaches the use of a combination of starches such as tapioca and potato starch (Rodriguez at [0045], Table 2), but does not discuss the use of a modified starch.
Carpenter teaches an imitation cheese product (Column 2, Lines 66-67). Carpenter teaches that the imitation cheese product may comprise modified tapioca starch or modified potato starch (Column 3, Lines 24-28). Carpenter teaches that modified starches provide properties desirable in a cheese product, such as viscosity and freeze/thaw stability, which are not present in native starches (Page 3, Lines 26-33).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize modified starches in the composition of Rodriguez to replace some or all of the starch of Rodriguez. One would have been motivated to make such a modification since Carpenter teaches that modified starches provide desirable properties to a cheese product. Note that Carpenter teaches the use of modified starch in any cheese analogue (Column 2, Lines 66-67). Additionally, note that the amount of starch provided by Rodriguez (greater than 15%, [0055 of Rodriguez]) is sufficient to provide for the modified tapioca starch (7.5%), and modified potato starch (3%) of the Claim. It would have been obvious to have selected any amount of starch within the range taught by Rodriguez.
Claims 21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Warwick in view of Rodriguez as applied to Claim 1, above, and further in view of Han (https://foodadditives.net/preservatives/propionic-acid, April 2020)
Regarding Claims 21 and 23, modified Warwick teaches a sliced food as discussed above in regards to Claim 1, but does not discuss the addition of propionic acid. Warwick teaches that the food is cheese (Abstract).
Han teaches that propionic acid is used at .05 -0.25 wt% (Page 4, “Food”) to prevent mold growth in cheeses (Page 1, Paragraph 1). The amount of propionic acid taught by Han overlaps the claimed ranges.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize propionic acid in the cheese product of Warwick in the amounts as claimed. One would have been motivated to make such a modification since Warwick teaches cheese, and Han teaches that the claimed amounts are effective at inhibiting mold in cheese.
Response to Declaration
The declaration under 37 CFR 1.132 filed October 22, 2025, is insufficient to overcome the rejection of claims 1, 3-21, 23-26 based upon Warwick as set forth in the last Office action because: there is no comparison with other carrageenans in the examples to show that κ-carrageenan provides an unexpected result.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3-21, 23-26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 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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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791