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 .
Response to Election/Restrictions
Applicant’s election of Group I, Claims 1-12, in the reply filed 10/27/2025 is acknowledged. Because applicant did not distinctly and specifically point out the errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 18-24 are not elected and are withdrawn. Claims 13-17 are cancelled.
Status of Claims
Claims 1-12 are currently under examination and the subject matter of the present Office Action.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 is recites “preparing a mixture of a thickening agent selected from cornstarch, tapioca starch, and tapioca flour and cherry juice concentrate”, which makes it appear that the cherry juice concentrate is also a thickening agent option. For clarity, the Examiner recommends amending to “preparing a mixture of a cherry juice concentrate and a thickening agent selected from cornstarch, tapioca starch, and tapioca flour”, or something similar. Appropriate correction is required.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-4, 6, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Gilhooly, K. (Edible Fake Blood. GoodFood. Obtained on 11/17/2025 from URL:<https://www.bbcgoodfood.com/recipes/edible-fake-blood>, posted Oct. 23, 2020), hereinafter Gilhooly, in view of Ellimacs SFX Makeup (DIY Edible fake blood: 4 recipes. Posted on Feb. 24 2018. Obtained from URL:<https://www.youtube.com/watch?v=PiiMqe9arIk> on 11/17/2025), hereinafter Ellimacs, and Formosa News (Taiwan restaurants get in Halloween spirit with limited-edition meals and deals. Obtained on 11/17/2025 from URL:<https://www.youtube.com/watch?v=I5n9b5Q5Wck>, Posted on YouTube on Oct. 31, 2020), as evidenced by Seasoned Advice (How do different types of thickener actually thicken? Obtained from URL:<https://cooking.stackexchange.com/questions/20585/how-do-different-types-of-thickener-actually-thicken> on 11/17/2025, posted 01/18/2012).
Regarding Claim 1, Gilhooly teaches edible fake blood prepared by mixing corn flour with cherry juice, and mixing with glucose syrup, afterwhich the mixture is heated (p. 2, step 1). Different color food coloring are added and stirred to obtain a deep red-brown blood color (p. 2, step 2). As such, Gilhooly teaches the step of preparing the mixture of thickening agent and cherry juice. One would necessarily use a concentrate of the cherry juice depending on the desired color and taste. Regarding the nutritive sweetener, the instant specification does not define what a nutritive sweetener is, and as such, the term is given the acceptable definition in the field to be carbohydrates that provide energy for the body, and would therefore encompass glucose syrup.
Gilhooly teaches corn flour instead of cornstarch. Gilhooly does not expressly teach preparing an aqueous hibiscus solution, and adding cocoa powder.
Ellimacs is in the same field of endeavor and teaches 4 different fake blood recipes. One edible fake blood recipe comprises fruit punch, clear syrup, cornstarch, cocoa powder and food coloring (p. 1, recipe #3) . Another fake blood recipe comprises powdered sugar, cocoa powder, water, and red food coloring (p. 2, recipe #4). The entire video shows that the components were all mixed together at room temperature. Ellimacs compares the coloring and consistencies describing #2 as being pretty runny but has thickness and has dark red color, whereas #3 is very brown with red tone but the cocoa powder is not really mixed or dissolved (6m47s,6m55s, 7m22s, 7m36s ).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Ellimacs to Gilhooly and use cornstarch instead of corn flour. One would have been motivated to do so because Ellimacs has shown using plain flour and cornstarch as suitable thickeners in its edible fake blood recipes (1m7s, 4m28s). Furthermore, both cornstarch and corn flour are commonly used, and considered to be the same in some region, as evidenced by Seasoned advice (p. 1, last paragraph). The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to add cocoa powder and red-colored juice (fruit punch) according to Ellimacs to obtain the dark red color, brown with red to mimic, blood color and give a good flavor to the edible blood. One would still heat the solution to ensure that the components are dissolved and the solution thickens per the teaching of Gilhooly.
Regarding the hibiscus solution, Formosa News teaches using hibiscus tea in creating Halloween blood bag. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Formosa News and use hibiscus tea as a natural food coloring in the method of Gilhooly in lieu of other food coloring. Regarding the step of preparing a hibiscus solution and heating the solution, Formosa news renders the step obvious by teaching the use of hibiscus tea which necessarily requires an aqueous extract of hibiscus, and using heat for the extraction.
As such, all the references teach ingredients for making edible fake blood. Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
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 in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in 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. In 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. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding the order of steps, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to optimize the process to achieve a better homogeneity of the mixture. The Examiner notes that the Applicant does not disclose the criticality of the steps. The instant situation is amenable to the type of analysis set forth in Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious). Thus the claimed variation of steps would have been obvious to a skilled artisan. Unless Applicant demonstrates the criticality of the order of addition and that the prior art is not the same product as the instant application, changes in sequence of adding ingredients has been rendered to be prima facie obvious Note MPEP § 2144.04 [R-1] In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious).
Regarding Claims 2-3, Gilhooly teaches whisking well to combine ingredients, and stirring well between addition of components, which reads on the applying agitation step (Steps 1 and 2).
Regarding Claim 4, Gilhooly teaches heating gently when mixing the glucose syrup with the mixture of flour and juice (p. 2, steps 1 and 2), but does not expressly teach heating with cocoa powder. However, Ellimacs describes how the cocoa powder is not really mixed or dissolved when combined to the mixture at room temperature. As such, one would be motivated to mix cocoa powder under heating conditions which Gilhooly already teaches.
Regarding Claim 6, Gilhooly teaches that its recipe makes a thick, slow-running gel, but that more cherry juice or water may be added to obtain a thinner consistency (p. 2, Step 2).
Regarding Claim 12, Gilhooly relates that its edible fake blood will keep in a sealed jar in
the refrigerator for up to three weeks (p. 2, Step 2).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Gilhooly in view of Ellimacs and Formosa News, as applied to Claim 1 above, and in further view of HLAgro (Sugar Alternatives – The lowdown on Liquid Glucose & its substitutes. Obtained on 11/17/2025 from URL:<https://hlagro.com/blog/sugar-alternatives-the-lowdow-on-liquid-glucose-and-its-substitutes/>, Posted June 2, 2020).
Regarding Claim 5, Gilhooly is silent on the nutritive sweetener comprising brown rice syrup, honey, or agave. HLAgro cures the deficiency of Gilhooly by teaching that liquid glucose, also known as corn syrup, needs substitutes in recipes because they are not the healthiest ingredient, can be allergenic, and is not readily convenient (p. 2, last paragraph; p. 3, 1st paragraph). HLAgro teaches honey as a great substitute with some health benefits, and adds flavor; brown rice syrup to be a less calorific; and agave nectar as a substitute which has a mild flavor, which can be used in vegan cooking, with similar sweetness but thinner texture (p. 3, last paragraph; p. 4, 3rd and 4th paragraph).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of HLAgro with that of Gilhooly and replace the sugar syrup of Gilhooly with a substitute such as honey, brown rice syrup, or agave depending on factors such as health benefits, desired flavor, and texture etc.
Claims 7, and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Gilhooly in view of Ellimacs and Formosa News, as applied to Claim 1 above, and in further view of Seasoned Advice2 (How long do you cook a custard after you add cornstarch? Obtained on 11/18/2025 from URL:<https://cooking.stackexchange.com/questions/79220/how-long-do-you-cook-a-custard-after-you-add-cornstarch>, Posted 03/17/2017).
Gilhooly does not teach sifting the thickener and placing a container retaining the edible blood composition in an ice bath.
Regarding Claim 7, Seasoned Advice2 teaches making a slurry of cornstarch then adding the slurry to near-simmering solution containing sugar and flavors, and stirring constantly to uniformly disperse the starch before it gelatinizes (p. 1, bottom paragraph). Seasoned Advice2 teaches that this method of slurry being mixed in well allows fully cooking the starch and avoids chalky taste (p. 2, 1st paragraph). Seasoned Advice2 also teaches cooling quickly while stirring, and with the container partially immersed in an ice bath to prevent lump formation (p. 2, Step 4). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Seasoned Advice2 with that of Gilhooly and stir the cooling mixture in a container in an ice bath to prevent lump formation.
Regarding the sifting feature in Claims 9 and 10, Seasoned Advice2 teaches that the cornstarch/corn flour likes to clump (p. 1, last paragraph; p. 2, step 1). The reference also teaches using a sieve to catch stray clumps of starch (p. 2, 1st paragraph). As such, one would know to use the known technique of sifting the starch or a mixture containing starch to remove clumps.
Further regarding Claim 9, mixing the cornstarch would necessarily involve absorption of the liquid into the starch. One skilled in the art would know to optimize the time to let the water absorb into the cornstarch. An improvement in the art would have been obvious if “it is likely the product not of innovation but of ordinary skill and common sense.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Finding workable or optimal ranges is generally understood as within the capabilities of the ordinary artisan. See Pfizer Inc. v. Apotex Inc., 82 USPQ2d 1321 (Fed. Cir. 2007) (discovery of an optimum value of a variable in a known process is usually obvious.). The idea that optimizing an ordinary variable does not by itself constitute a patentable advance was also stated in In re Geisler, 43 USPQ2d 1362: “…“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). Only if the “results of optimizing a variable” are “unexpectedly good” can a patent be obtained for the claimed critical range. In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA 1977); see also In re Dillon , 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed.Cir. 1990) (in banc).” See MPEP 2144.
Regarding Claim 11, Gilhooly teaches mixing the components before heating. However, Gilhooly does not teach that boiling point is reached. Seasoned Advice2 teaches that if starch is used, the mixture has to be boiled to gelatinize and the components have to be added before simmering to avoid clumping (p. 1, last paragraph to p. 2, 1st paragraph).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Gilhooly in view of Ellimacs and Formosa News, as applied to Claim 1 above, and in further view of Sprinkle Bakes (Homemade Hibiscus Syrup. Posted Apr 2016. Obtained on 11/18/2025 from URL:< https://www.sprinklebakes.com/2016/04/homemade-hibiscus-syrup.html>).
Gilhooly does not teach the preparation of aqueous hibiscus solution.
Sprinkle Bakes teaches preparing a mixture of hibiscus flowers, sugar, water, lemon and vanilla bean to a boil, and steeping for 30 mins (p. 6, 1st paragraph; p. 9, Instructions). He mixture is strained through a fine sieve; strain again through a cheesecloth or tea towel to remove fine powdered hibiscus debris, then transferred to a measuring cup and into sterilized jars or bottles (p. 9, Instructions). Sprinkle Bakes describes how hibiscus is high in Vitamin C, with more antioxidants than green tea, and can lower blood pressure; Petals are steeped in boiling water to make a healthful tea (p. 8; 1st paragraph).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to make the aqueous hibiscus solution according to the method taught by Sprinkle Bakes to obtain a vibrant hibiscus mixture (Fig. in p. 6) for use in the method of making the edible fake blood of Gilhooly with reasonable expectation. The conclusion of obviousness is grounded on the rationale that some teaching, suggestion, or motivation in the prior art would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings and arrive at the claimed invention. See MPEP § 2143.01 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792