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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Europe on June 8, 2022. It is noted, however, that applicant has not filed a certified copy of the European Application EP 22177813.7 as required by 37 CFR 1.55.
Claim Objections
The objections to claims 8-13 for failing to place an article before the noun have been withdrawn in light of applicant’s amendments made November 12, 2025.
Claim 8 is objected to because of the following informalities: Claim 8 recites “A method for producing the vegan food product containing..”. This should recite “A method for producing a vegan food product containing…” as the product was not previously recited.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 step h is unclear. It is unclear as to how step h can heat to a temperature of >60oC and ≤90oC, specifically at >60oC, while also being at a temperature higher than in steps d through g which have a lower limit of >60. It is suggested applicant amend to recite >61 oC. Similarly, claim 10 is unclear. It is unclear as to how step f can heat from ≥70oC and ≤80oC as recited in claim 10, while step h recited in claim 8, from which claim 10 depends can heat to a temperature of >60oC and ≤90oC, specifically to 60-70C and higher than the temperature in steps d through g. It is suggested applicant amend claim 10 to also recite, wherein heating step carried is at a temperature of >70 oC. and ≤100oC.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 8-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8-13 of copending Application No. 18/207,476 (‘476) (reference application) in view of Igoe and Hui (Dictionary of Food Ingredients 4th Edition Aspen Publishing 2001, page 137) and Carpenter et al (US 5,807,601).
Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a method of producing a vegan cheese product comprising: about 15-25% plant derived fat; about 15-35% starch; about 0.5-3% table salt; about 0.1-2% gelling agent; about 0.1-2% carbohydrates; about 0.1-6% plant proteins; about 0.1-1.5% flavorings, seasonings and/or colorings; about 0-5% further ingredients; and water in a quality sufficient to achieve 100%. Both claim the method comprising: a) heating water to a temperature of ≥30oC and ≤60oC; b) maintaining the temperature from step a and adding salt to the water while stirring; c) adding a gelling agent to the product of step b while stirring and maintaining the temperature from a; d) heating the product of step c to a temperature of ≥60oC and ≤90oC; e and f) adding a fat component, starch, non-starch carbohydrates, and plant proteins while stirring maintaining the temperature; g) heating the product of step f, i.e. the intermediate product containing fat, to a temperature of ≥60oC and ≤100oC while stirring; h) adding flavorings, seasonings, colorings and/or optional food ingredients; i) hot holding the composition of step h from 2-10 minutes while stirring; j) cooling to a temperature of ≥30oC and ≤50oC; k) adding starter cultures and/or rennet to the product of step j and filling or temporarily storing the product under sterile conditions before filling.
‘476 does not claim the starch as native starch as recited in claim 8; and claims a reverse order for steps e and f.
Regarding the starch as native starch as recited in claim 8, as taught by Igoe starches can be modified to alter their functional properties (page 137) and Carpenter et al (Carpenter) teaches native starch was suitable for making imitation cheese (abstract and column 3 lines 24-28). It would have been obvious to one of ordinary skill in the art for the starch as claimed by ‘476 to be native starch so that the starch would retain its native properties, such as paste formation during heating as taught by Igoe. Furthermore, as Carpenter teaches native starch was suitable when making imitation cheese, one of ordinary skill in the art would have a reasonable expectation of success.
Regarding a reverse order for steps e and f, to switch the order of performing process steps e and f 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”. In the instant case as no further processes, such as heating at a different temperature are performed until the fat is added, there does not appear to be a new or unexpected result with the order of addition of the starch, carbohydrates, proteins, and fat.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Prior Art
The claims as written appear free of prior art. The prior art does not teach or make obvious the claimed combination of method steps for producing a vegan cheese product.
The closest prior art, Carpenter et al (US 5,807,601) teaches producing an imitation cheese comprising: 0-30% fat from vegetable origin (column 5 lines 45-55); up to 30% native starch (column 3 lines 24-28 and column 4 lines 12-24); salt for preservation which is exemplified at 1.99% (column 6 lines 4-10 and 59); 0.5-5% hydrocolloids, which including gelling agents (column 5 lines 15-44); about 0.5-25% non-starch carbohydrates (column 5 lines 10-14); less than 2% proteins including soy protein, i.e. a plant protein, to aid in dispersion (column 4 lines 44-54); up to 2% colors and flavors (column 5 lines 59-62); and water (column 4 lines 34-43), which encompasses the claimed composition. As the cheese of Carpenter does not require any animal products (all), including less than 2% casein (abstract), which encompasses 0%, it would encompass a vegan food product as claimed. Carpenter teaches forming the food product by mixing together all ingredients, heating for a short time, and shaping (column 6 lines 22-24). Carpenter does not teach or suggest the combination of specific method steps as claimed. Nor is there any motivation within Carpenter, or found in the prior art to arrive at the claimed combination of method steps. Thus, the instant method claims are free of prior art.
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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792