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 .
Remarks
This office action fully acknowledges Applicant’s remarks and amendments filed on 01 July 2026.
Claims 1 and 5 are pending.
Claims 2-4 and 6-8 are cancelled.
No claims are withdrawn.
No claims are newly added.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Food.com (“Fake Blood”, Food.com Recipes/Dessert, Submitted by Yashaqueen13, first indexed 27 October 2012 by Internet Archive.), hereinafter “Food.com”, in view of WIRED Magazine (Gonzalez, Robbie; “Water, Flour, Syrup, Dye: Mastering the Elements of Fake Blood”, WIRED, 31 October 2018.), hereinafter “WIRED”, BBC Food (Gilhooly, Katy; “Edible fake blood”, BBC Food: goodFOOD Middle East, first indexed 8 November 2020 by Internet Archive.), hereinafter “BBC Food”, and Lee et al. (US 2021/0396770 A1), hereinafter “Lee”.
Regarding Claim 1, Food.com teaches a mixture for use as artificial blood for reproducing an expectorated blood spatter, the mixture comprising maple syrup, water, and food coloring (See the “Ingredients” section listing “2 tablespoons maple syrup”, “1 teaspoon water”, and various amounts of red, yellow, and green food coloring. – Given its commensurate ingredients as in the instant claim, the fake blood of Food.com is fully capable of performing the intended use of reproducing an expectorated blood spatter. Limitations based on the intended use of a structure do not confer patentability if the prior art is capable of performing the same function – see MPEP 2111.02(II).),
wherein the food coloring comprises red and yellow colors (See the “Ingredients” section: “7 drops red food coloring”, “3 drops yellow food coloring”.),
wherein the artificial blood is edible (See the “Ingredients” section where each and every ingredient is an edible food, thus combining to make an edible food; and the introduction section discussing using Splenda instead of sugar for eating the fake blood as a diabetic. – Further, limitations based on the intended use of a structure do not confer patentability if the prior art is capable of performing the same function – see MPEP 2111.02(II). In this case, whether the artificial blood is to be eaten or not is immaterial, as the ingredients remain the same. – Further, the term “edible” is interpreted broadly herein as anything that can be eaten, including non-food items.),
as in Claim 1.
Further regarding Claim 1, Food.com does not specifically teach the artificial blood discussed above wherein the food coloring comprises blue-violet tar color, as in Claim 1.
However, BBC Food teaches a respective artificial blood using blue food coloring gel so as to achieve a “deep red-brown color” for most authentically simulating the color of genuine blood. Further, the artificial blood taught by BBC Food also utilizes red and yellow food coloring, wherein red and blue mixed together make a violet tar color. As such blue-violet color is provided through the mixing of colors in BBC Food, selecting a blue-violet tar color food dye in place of plain blue food dye would have been a predictable shade-selection variant obvious to one skilled in the art attempting to match realistic blood tones in view of BBC Food and would not differently affect the coloration of the artificial blood product compared to mixing red and blue to produce a violet color. The end-resulting color remains the same regardless of how it is pre-mixed as a commercial dye. Similarly, the selection of a “tar”-based dye would further not materially affect the end-resulting color as the color remains having its specific effect (absorption of light) regardless of its origin in coal tar. As such, the use of a tar-based dye is merely another predictable variant which would be obvious to use by one skilled in the art.
Further, the prior art of Lee teaches an artificial blood product utilizing a violet tar color ([0055]) demonstrating the interchangeability of pre-mixed food dyes in the coloring of the artificial blood which would thereby be obvious to one skilled in the art as a simple substitution. Herein, Applicant’s “blue-violet” color is interpreted as a particular shade of violet. However, Applicant’s instant disclosure does not specify a particular commercial dye code utilized for the blue-violet color. As such, the violet color of Lee is interpreted as equivalent to Applicant’s instant blue-violet color.
Thus, one of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify the artificial blood of Food.com wherein the food coloring comprises blue-violet tar color, such as suggested by BBC Food and Lee, so as to achieve a “deep red-brown color” for most authentically simulating the color of genuine blood.
Further regarding Claim 1, Food.com does not specifically teach the artificial blood discussed above wherein a mass ratio of the red, yellow and blue-violet tar colors is 4:1:1, as in Claim 1.
However, as the overall coloration of the final artificial blood product, a factor that affects its level of similarity/semblance to genuine blood, is a property that can be modified by adjusting the red/yellow/blue dye mass ratio (or blue-violet tar in place of blue as discussed above as an obvious simple substitution for plain blue), as seen through BBC Food (See the “Method” section Step 2: “...add a very small drop each of the blue and yellow food coloring gels and stir again...Continue adding little drops of food coloring, stirring well between each addition, until you reach your desired color.”), the precise red/yellow/blue dye mass ratio would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed red/yellow/blue dye mass ratio cannot be considered critical.
Thus, one of ordinary skill in the art would have found it obvious to optimize through routine experimentation the red/yellow/blue dye mass ratio to maximally obtain the desired properties of similarity/semblance to genuine blood (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). See also MPEP 2144 II, A.
Further regarding Claim 1, Food.com does not specifically teach the artificial blood discussed above comprising 50 mL of the maple syrup, 10 mL of the water, and 18 g of the food coloring, as in Claim 1.
However, Food.com discloses the general conditions of the claimed composition comprising maple syrup, water, and food coloring. Therein, it would have been obvious to one of ordinary skill in the art to optimize the respective amounts of maple syrup, water, and food coloring disclosed by Food.com in order to obtain artificial blood having a desired realistic appearance and flow behavior.
Food.com recognizes the amount of food coloring as particularly result effective by stating in step 2 to “Adjust color if needed...”, showing that the amount of food coloring affects the quality/realism of the artificial blood.
Similarly, the relative amounts of maple syrup and water are result-effective with respect to the viscosity of the artificial blood. A person of ordinary skill in the art would have understood that increasing the relative amount of water dilutes the syrup to produce a less viscous product, whereas increasing the amount of syrup produces a thicker, more viscous mixture, as the person of ordinary skill in the art would have readily recognized the significant viscosity difference between water and maple syrup, as is also seen through WIRED (See the “Real Blood's Thick—But Not Too Thick” section: “...few liquids match blood's particular non-Newtonian consistency. To approximate it, you'll need a mixture: Try starting with a cup of corn syrup and thinning it with water, mixing in a bit at a time til it reaches the texture you're going for. If you overshoot and your blood runs a little too freely, just add some syrup.”).
Because the disclosed composition is expressly intended to simulate blood, the skilled artisan would have had reason to adjust such syrup/water ratio until the mixture exhibited the desired blood-like viscosity and associated flow or spatter, and the amount of dye until the mixture exhibited the desired blood-like color (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Thus, the claimed specific quantities of 50 mL of the maple syrup, 10 mL of the water, and 18 g of the food coloring cannot be considered critical and represent no more than variables arrived at through routine, result-effective optimization, absent evidence that the specifically claimed quantities produce an unexpected result.
Regarding Claim 5, Food.com teaches a method of manufacturing artificial blood for reproducing an expectorated blood spatter, the method comprising:
making a maple syrup solution by mixing maple syrup and water (See the “Directions” section Step 1: “Mix maple syrup...and water in a small microwave safe bowl.”); and
mixing the maple syrup solution and food coloring (See the “Directions” section Step 2: “Add your food coloring...”.), wherein the food coloring comprises red and yellow colors (See the “Ingredients” section: “7 drops red food coloring”, “3 drops yellow food coloring”.),
wherein the artificial blood is edible (See the “Ingredients” section where each and every ingredient is an edible food, thus combining to make an edible food; and the introduction section discussing using Splenda instead of sugar for eating the fake blood as a diabetic. – Further, limitations based on the intended use of a structure do not confer patentability if the prior art is capable of performing the same function – see MPEP 2111.02(II). In this case, whether the artificial blood is to be eaten or not is immaterial, as the ingredients remain the same. – Further, the term “edible” is interpreted broadly herein as anything that can be eaten, including non-food items.),
as in Claim 5.
Further regarding Claim 5, Food.com does not specifically teach the method discussed above wherein the food coloring comprises blue-violet tar color, as in Claim 5.
However, BBC Food teaches a respective artificial blood using blue food coloring gel so as to achieve a “deep red-brown color” for most authentically simulating the color of genuine blood. Further, the artificial blood taught by BBC Food also utilizes red and yellow food coloring, wherein red and blue mixed together make a violet tar color. As such blue-violet color is provided through the mixing of colors in BBC Food, selecting a blue-violet tar color food dye in place of plain blue food dye would have been a predictable shade-selection variant obvious to one skilled in the art attempting to match realistic blood tones in view of BBC Food and would not differently affect the coloration of the artificial blood product compared to mixing red and blue to produce a violet color. The end-resulting color remains the same regardless of how it is pre-mixed as a commercial dye. Similarly, the selection of a “tar”-based dye would further not materially affect the end-resulting color as the color remains having its specific effect (absorption of light) regardless of its origin in coal tar. As such, the use of a tar-based dye is merely another predictable variant which would be obvious to use by one skilled in the art.
Further, the prior art of Lee teaches an artificial blood product utilizing a violet tar color ([0055]) demonstrating the interchangeability of pre-mixed food dyes in the coloring of the artificial blood which would thereby be obvious to one skilled in the art as a simple substitution. Herein, Applicant’s “blue-violet” color is interpreted as a particular shade of violet. However, Applicant’s instant disclosure does not specify a particular commercial dye code utilized for the blue-violet color. As such, the violet color of Lee is interpreted as equivalent to Applicant’s instant blue-violet color.
Thus, one of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to modify the method of Food.com wherein the food coloring comprises blue-violet tar color, such as suggested by BBC Food and Lee, so as to achieve a “deep red-brown color” for most authentically simulating the color of genuine blood.
Further regarding Claim 5, Food.com does not specifically teach the method discussed above wherein a mass ratio of the red, yellow and blue-violet tar colors is 4:1:1, as in Claim 5.
However, as the overall coloration of the final artificial blood product, a factor that affects its level of similarity/semblance to genuine blood, is a property that can be modified by adjusting the red/yellow/blue dye mass ratio (or blue-violet tar in place of blue as discussed above as an obvious simple substitution for plain blue), as seen through BBC Food (See the “Method” section Step 2: “...add a very small drop each of the blue and yellow food coloring gels and stir again...Continue adding little drops of food coloring, stirring well between each addition, until you reach your desired color.”), the precise red/yellow/blue dye mass ratio would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed red/yellow/blue dye mass ratio cannot be considered critical.
Thus, one of ordinary skill in the art would have found it obvious to optimize through routine experimentation the red/yellow/blue dye mass ratio to maximally obtain the desired properties of similarity/semblance to genuine blood (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Further regarding Claim 5, Food.com does not specifically teach the method discussed above comprising 50 mL of the maple syrup, 10 mL of the water, and 18 g of the food coloring, as in Claim 5.
However, Food.com discloses the general conditions of the claimed composition comprising maple syrup, water, and food coloring. Therein, it would have been obvious to one of ordinary skill in the art to optimize method with the respective amounts of maple syrup, water, and food coloring disclosed by Food.com in order to obtain artificial blood having a desired realistic appearance and flow behavior.
Food.com recognizes the amount of food coloring as particularly result effective by stating in step 2 to “Adjust color if needed...”, showing that the amount of food coloring affects the quality/realism of the artificial blood.
Similarly, the relative amounts of maple syrup and water are result-effective with respect to the viscosity of the artificial blood. A person of ordinary skill in the art would have understood that increasing the relative amount of water dilutes the syrup to produce a less viscous product, whereas increasing the amount of syrup produces a thicker, more viscous mixture, as the person of ordinary skill in the art would have readily recognized the significant viscosity difference between water and maple syrup, as is also seen through WIRED (See the “Real Blood's Thick—But Not Too Thick” section: “...few liquids match blood's particular non-Newtonian consistency. To approximate it, you'll need a mixture: Try starting with a cup of corn syrup and thinning it with water, mixing in a bit at a time til it reaches the texture you're going for. If you overshoot and your blood runs a little too freely, just add some syrup.”).
Because the disclosed composition is expressly intended to simulate blood, the skilled artisan would have had reason to adjust such syrup/water ratio until the mixture exhibited the desired blood-like viscosity and associated flow or spatter, and the amount of dye until the mixture exhibited the desired blood-like color (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Thus, the claimed specific quantities of 50 mL of the maple syrup, 10 mL of the water, and 18 g of the food coloring cannot be considered critical and represent no more than variables arrived at through routine, result-effective optimization, absent evidence that the specifically claimed quantities produce an unexpected result.
Response to Arguments
35 USC 112 Applicant’s amendments sufficiently overcome the rejection of Claim 1 as being indefinite under 35 USC 112(b) for reciting a parts listing lacking any structural or functional relationships among the listed parts. As such, the rejection of Claim 1 under 35 USC 112(b) is withdrawn herein.
35 USC 102
Applicant’s arguments are on the alleged grounds that incorporating the subject matter of Claims 2-4 into Claim 1, and that of Claims 6-8 into Claim 5, that the anticipation rejection utilizing food.com is thereby moot.
Examiner agrees, and the rejection of Claims 1 and 5 under 35 USC 102 is withdrawn herein; however, a new grounds of rejection of Claims 1 and 5 under 35 USC 103 is set forth herein as necessitated by Applicant’s amendments – see below.
35 USC 103
Applicant’s arguments are on the alleged grounds that Food.com does not disclose the required amounts/ratios of Claims 1 and 5, nor wherein the artificial blood is edible.
Applicant’s arguments are not persuasive because the specific amounts/ratios would have been obvious to optimize as the amount of food dye is expressly disclosed by Food.com as an optimizable variable in step 2 (“Add your food coloring and test. Adjust color if needed...”, and one of ordinary skill in the art would further find the syrup/water ratio obvious to optimize so as to achieve the desired blood-like viscosity, as is further supported by WIRED. As the object of each of the cited references is to produce a mixture to mimic the look and feel of blood, one of ordinary skill in the art would find it obvious to optimize the amount of dye and the syrup/water ratio so as to achieve a color and viscosity of the mixture resembling real blood.
Further, as the artificial blood of Food.com is made of edible ingredients, the combination of those ingredients results in an edible mixture. Food.com further discusses eating the fake blood in the introduction section. The edible recitation is further drawn to the intended use/process of eating the mixture which is not given particular weight. Additionally, while Applicant indicates that the “edible” recitation indicates an oral safety requirement, the term “edible” in the claims is interpreted broadly herein as encompassing anything capable of being eaten, regardless of safety as such a safety provision is not actually required by the claims.
Applicant further asserts that WIRED utilizes corn syrup instead of maple syrup, the two having different sugar compositions and thereby different viscosities, that WIRED does not teach the specific claimed amounts of water, syrup, and dye, and that one skilled in the art would not have found it obvious to choose maple syrup over corn syrup.
Applicant’s arguments are not persuasive because Food.com provides the aspect of a maple syrup, water, and dye mixture. WIRED is merely relied on for showing the syrup/water ratio is optimized to achieve a desired consistency as a result-effective variable. A person of ordinary skill in the art would have found it obvious to practice such optimization on the maple syrup/water mixture of Food.com without needing to specifically import the corn syrup of WIRED. Further, WIRED is not relied on for showing the specific amounts of maple syrup, water, and dye as these amounts would be optimized through routine experimentation by the skilled artisan as discussed above.
Regarding Applicant’s assertion that Lee is drawn to non-food grade ingredients, Lee is not relied on for providing those ingredients. Lee para. [0017] specifically describes the violet tar color relied on for the rejection as being a food tar color. As such, utilizing such color in Food.com as discussed by the rejection would not result in a non-food safe composition. Further, even if these ingredients in Lee rendered the mixture of Food.com as non-food safe, the mixture would remain edible as one is fully capable of consuming the mixture, the safety aspect not being required in the claims.
Regarding Applicant’s assertion that Food.com, BBCFood, and WIRED are not drawn to blood spatter analysis, see MPEP 2144(IV): “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Thus, the motivation to combine the fake blood references discussed above being merely for aesthetic purposes to better resemble real blood fully satisfy the requirements of 35 USC 103. Applicant’s specific intended use of the fake blood to address the problem of realistic blood spatter replication is not required of the prior art.
Thus, Examiner sets forth the rejection of Claims 1 and 5 under 35 USC 103 as unpatentable over Food.com in view of BBCFood, WIRED, and Lee, as discussed above in the body of the action, and as necessitated herein by Applicant’s amendments.
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.
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/B.J.K./Examiner, Art Unit 1798
/NEIL N TURK/Primary Examiner, Art Unit 1798
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