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 .
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.
Election/Restrictions
Claims 26-27 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention. Applicant's election with traverse of Group I, claims 1, 4-6, 8, 10-18, 20-23, and 25 in the reply filed on June 16, 2026, is acknowledged. The traversal is on the ground(s) that the previously cited prior art Andrew does not teach of the linking features amended into claim 1. This is not found persuasive because claim 1, and thus any linking features between the groups is encompassed over the prior art in view of the prior art rejection below.
The requirement is still deemed proper and is therefore made FINAL.
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 21-23 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.
Claims 21-23 recites “an equivalent composition”. It is unclear as to the metes and bounds of the term because it is unknown as to whom and how such an “equivalent” is determined. For example, it is unclear as to if the composition is equivariant in terms of nutrition, texture, taste, etc. It is suggested that the claims be amended to recite a composition which is the same, except for the exclusion of the sensory modifier.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4-6, 8, 12, 14, 15, 18, 20-23, and 25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Malowski (“Vegan Cheese Recipe” pages 1-7 www.diynatural.com/vegan-cheese-recipe/ April 15, 2021) and as evidenced by Barroso et al (“Stevia rebaudiana Bertoni cultivated in Portugal: A prospective study of its antioxidant potential in different conservation conditions” pages 49-55 June 24, 2016) and Internet Weights (unknown, pages 1-14 printed August 27, 2026). Note: The copy of Malowki supplied on the IDS only included one page, however, the citation was 7 pages. A full copy of the reference cited has been included herein and is cited on the 892 so that the full reference can be found in the file.
Malowski teaches of a vegan cheese composition, i.e. dairy substitute and diary free cheese (title) comprising: raw cashews which contain starch, a lipid composition, and plant-based protein; agar which is a hydrocolloid; and stevia leaf powder (Ingredients, page 3) which as evidenced by Barroso et al (Barroso; Table 2) comprises dicaffeoylquinic acids including 3-4-dicaffeoylqunic acid, 3-5-dicaffeoylqunic acid, 4,5-dicaffeoylqunic acid, and monocaffeoylquinic acids including chlorogenic acid, neochlorogenic acid, and cryptochlorogenic acid.
Regarding the composition as comprising between 0.001-1.0% of a sensory modifier comprising 20% one or more dicaffeoylquinic acids and salts thereof; and monocaffeoylquinic acids and salts thereof as recited in claim 1, the step of forming a premix, i.e. a sensory modifier comprising two or more ingredients is considered a product by process claim and thus is considered as it affects the final product. In the instant case, it would impart to the final product at least 0.002% one or more dicaffeoylquinic acids and salts thereof; and monocaffeoylquinic acids and salts thereof to the final product. It is noted that there is no upper range limited as the product is one comprising the named ingredients, and could contain additional components, such as coffee flavoring, that further contribute to the quantity of dicaffeoylquinic acids, monocaffeoylquinic acids, and salts thereof within the final product. Similarly, the limitation of 0.01-0.5% sensory modifier in the composition as recited in claim 2 would impart to the final product at least 0.002% one or more dicaffeoylquinic acids and salts thereof; a total of all dicaffeoylquinic acids and salts thereof in the sensory modifier as 25-75% as recited in claim 6 would impart at least 0.0025% dicaffeoylquinic acids and salts thereof to the final product; and the sensory modifier as comprising more than 80% of dicaffeoylquinic acids and salts thereof and monocaffeoylquinic acids and salts thereof as recited in claim 8 would impart at least 0.008% dicaffeoylquinic acids, monocaffeoylquinic acids, and salts thereof to the final product. When the compositional weight of the product of Malowski is calculated, the product of the prior art encompasses the product as claimed.
Malowski teaches the composition as about 605-623 grams comprising: 1 cup raw cashews (130 grams); ½ cup nutritional yeast (75 grams); 1/8 tsp stevia leaf powder (0.63 grams); 1 clove garlic (4-7 grams); juice from one lemon (30-45 grams); ½ tsp turmeric powder (about 2.4 grams); optionally ¼ tsp cayenne powder; ¼ tsp salt (1.5 grams); ¾ cup filtered water (177 grams); 1 tablespoon agar powder (7 grams); and ¾ cup filtered water (177 grams). Note the weights are approximations and are shown as evidenced by Internet Weights. Thus, the composition of Malowski comprises about 0.1% (0.63/623 to 0.63/605) stevia leaf powder. As evidenced by Barroso, Table 2, Stevia leaf powder contains about 11.9% of one or more monocaffeoylquinic acids and about 6.6% of one or more dicaffeoylquinic acids. Thus the composition of Malowski comprises about 0.0119% (0.1% stevia leaf powder in composition *11.9% monocaffeoylquinic acids in the powder) one or more monocaffeoylquinic acids and about 0.0066% (0.1% stevia leaf powder in composition *6.6% dicaffeoylquinic acids in the powder) one or more dicaffeoylquinic acids.
Regarding the composition as comprising 1-30% of the lipid composition as recited in claim 12, as discussed above, Malowski teaches the composition as about 605-623 grams comprising 1 cup raw cashews (130 grams) which contains fat, and thus is considered a lipid composition. Thus, the product of Malowski contains about 20.9% (130/623) to 21.5% (130/605) of the lipid composition.
Regarding the composition as comprising 1-20% starch as recited in claim 14, as discussed above, the product of Malowski contains about 20.9% (130/623) to 21.5% (130/605) of the raw cashews. As evidenced by Internet Weights, raw cashews contain 23.5% starch. Thus, the product of Malowski contains about 4.9% (20.9% *23.5%) to 5.1% (21.5%*23.5%) starch from cashews.
Regarding the composition as comprising a hydrocolloid selected from the group including cellulose as recited in claim 15, as Malowski teaches that the ingredients include plants, such as garlic and turmeric, and cellulose was a natural material in plants, the composition of Malowski would comprise cellulose.
Regarding the composition as comprising 15-80% of a plant based milk product as recited in claim 18, as Malowski teaches combining the first 9 ingredients until there are no lumps, wherein the first 9 ingredients including cashew and milk (page 3, Ingredients and Instructions), the first step of Malowski is considered to form a plant based milk product which is in an amount of 70% (421g first 9 ingredients/605g total ingredients). Alternatively, the plant-based milk can be considered the total weight of the cashew and water blended in step one (307g), which is about 51% of the product.
Regarding the composition as comprising 50-95% water and plant-based milk product as recited in claim 20, the plant-based milk can be considered the total weight of the cashew and water blended in step one (307g), in combination with the water of step 2 (177g) (page 3 Ingredients and Instruction), thus forming a product with a total of water and plant-based milk of about 80% (484g/605g).
Regarding claims 21-23, and the properties of the product claimed in comparison to an “equivalent composition” without the sensory modifier, as discussed above, the claimed limitations are unclear. Regardless, as the prior art teaches of a product composition which is the same as one with the sensory modifier as claimed, the product of the prior art would be expected to have the same product properties as claimed, especially when compared to a relative composition without said ingredients.
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.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Malowski (“Vegan Cheese Recipe” pages 1-7 www.diynatural.com/vegan-cheese-recipe/ April 15, 2021) and as evidenced by Barroso et al and Internet Weights, further in view of OHNO (US2020/0113201).
As discussed above, Malowski teaches of vegan cheese composition.
Malowski is silent to the composition as comprising a protein selected from the group including soy protein as recited in claim 10, or 0.5-20% of a plant-based protein isolate as recited in claim 11.
Ohno teaches of a cheese analog comprising about 0.5-2% soybean protein isolate (abstract and paragraph 28). Ohno teaches that soybean protein has gained attention as a healthy food product because it contains protein of good quality to the point of being called “meat grown from the field” (paragraph 4) and that soy protein isolate is a pure form of soybean protein (paragraph 43).
It would have been obvious for the cheese of Malowski to contain known ingredients for their known and intended functions in view of Ohno. For example, it would have been obvious for the cheese of Malowski to comprise 0.5-2% soy protein isolate for its pure form and known health benefits in view of Ohno.
Further, 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.
Claims 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Malowski (“Vegan Cheese Recipe” pages 1-7 www.diynatural.com/vegan-cheese-recipe/ April 15, 2021) and as evidenced by Barroso et al and Internet Weights, further in view of Sanchez et al (US 2010/0196575)
As discussed above, Malowski teaches of vegan cheese composition.
Malowski is silent to the composition as comprising a specific vegetable oil as recited in claim 13 and 0.1-10% hydrocolloid as recited in claim 16.
Sanchez et al (Sanchez) teaches of cheese analog comprising about 10-30% vegetable fat selected from the group including palm, coconut, and sunflower oil for mouthfeel; and 0.01-10% hydrocolloids for thickening and shaping (abstract and paragraphs 19, 56, 64, 65, and 67).
It would have been obvious for the cheese of Malowski to contain known ingredients for their known and intended functions in view of Sanchez. For example, it would have been obvious for the cheese of Malowski to comprise 10-30% fat including coconut, palm, sunflower, and canola oil for mouthfeel and 0.01-10% hydrocolloids for thickening in view of Sanchez.
Further, 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.
Claims 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Malowski (“Vegan Cheese Recipe” pages 1-7 www.diynatural.com/vegan-cheese-recipe/ April 15, 2021) and as evidenced by Barroso et al and Internet Weights, further in view of Schelle et al (US 2020/0323231)
As discussed above, Malowski teaches of vegan cheese composition.
Malowski is silent to the composition as comprising0.1-10.0% hydrocolloid as recited in claim 16 and 0.01-10.0% lecithin as recited in claim 17.
Schelle et al (Schelle) teaches non-dairy, vegan, cheese analogs (abstract and paragraphs 4 and 6) comprising about 0.01-1% emulsifier selected from the group including lecithin (paragraph 83); and hydrocolloids including xanthan and alginate to provide for thickening (paragraphs 78).
It would have been obvious for the vegan cheese of Malowski to contain known ingredients for their known and intended functions in view of Schelle. For example, it would have been obvious for the vegan cheese of Malowski to comprise 0.01-1% lecithin in order to provide for emulsification of the fat and water within the product, and it would have been obvious to include hydrocolloids within an amount in order to achieve the desired thickening in view of Schelle. Thus, the claimed ranges are considered obvious over the teachings of the prior art.
Further, 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.
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 1, 4, 6, 8, and 21-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of copending Application No. 18/570,050 (‘050) (reference application) as amended June 24, 2026. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a plant-based composition, which encompasses a dairy substitute composition comprising: a plant-based protein, a hydrocolloid, and at least 0.1% of a sensory modifier comprising at least 20% of one or more dicaffeoylquinic acids and salts thereof; and monocaffeoylquinic acids and salts thereof which overlaps the product and ranges recited in instant claims 1, 4, 6, and 8.
Regarding claims 21-23, and the properties of the product claimed in comparison to an “equivalent composition” without the sensory modifier, as discussed above, the claimed limitations are unclear. Regardless, as ‘050 claims a product composition which is the same as one with the sensory modifier as claimed, the product claimed by ‘050 would be expected to have the same product properties as claimed, especially when compared to a relative composition without said ingredients.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
Prosecution Insights