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 .
Election/Restrictions
Applicant's election with traverse of Group II, claims 14-19, in the reply filed on 08/03/2026 is acknowledged. The traversal is on the ground(s) that there would be no undue burden for the Examiner to examine all the claims together. This is not found persuasive. MPEP 808.02 provides,
“Where the inventions as claimed are shown to be independent or distinct under the criteria of MPEP § 806.05(c) - § 806.06, the examiner, in order to establish reasons for insisting upon restriction, must explain why there would be a serious search and/or examination burden on the examiner if restriction is not required. In order to demonstrate a serious search burden, the examiner must show by appropriate explanation one of the following:
(A) Separate classification thereof: This shows that each invention has attained recognition in the art as a separate subject for inventive effort, and also a separate field of search. Patents need not be cited to show separate classification.
(B) A separate status in the art when they are classifiable together: Even though they are classified together, each invention can be shown to have formed a separate subject for inventive effort when the examiner can show a recognition of separate inventive effort by inventors. Separate status in the art may be shown by citing patents which are evidence of such separate status, and also of a separate field of search.
(C) A different field of search: Where it is necessary to search for one of the inventions in a manner that is not likely to result in finding art pertinent to the other invention(s) (e.g., searching different classes/subclasses or electronic resources, or employing different search queries), a different field of search is shown, even though the two are classified together. The indicated different field of search must in fact be pertinent to the type of subject matter covered by the claims. Patents need not be cited to show different fields of search.
As established in the restriction requirement, the inventions have different classification and different search strategies would be required to search for each invention.
The requirement is still deemed proper and is therefore made FINAL.
Status of Claims
Claims 1-20 are pending. Claims 1-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 08/03/2026. Clams 14-19 are under examination.
Claim Objections
Claims 14-15 are objected to because of the following informalities:
At claim 14, the recitation “two or more of pea flour, starches, proteins, fibres, salts, hydrocolloids, or acids” should be “two or more of pea flour, starch, protein, fibre, salt, hydrocolloid, or acid”.
At claim 15, the recitation “starches, hydrocolloids, salts and acids” should be ““starch, hydrocolloid, salt and acid”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 14-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 14 is directed toward making vegan cheese analogue with the use of the following dry ingredients starches, proteins, fibres, salts, hydrocolloids and acids. A review of the specification shows that Applicant has possession of a vegan cheese analog made with a starch, fibre, salt, hydrocolloid, and acid. Not multiples of each of said dry ingredients. Appropriate correction is required.
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.
Claim 16 is 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 16, which depends on claim 14, requires “the blending” occurs for 10 minutes to 2 hours”. Claim 14 recites two blending steps. The first blending step is directed toward blending the dispersion pre-mix. The second blending step is directed toward blending the dispersion mix. Given that there are two blending steps, it is not readily apparent which of the two blending steps is being referred to with the recitation “the blending”. For the purpose of examination, it is interpreted to be one of the two blending steps.
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.
Claim(s) 14 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over School Night Vegan in view of Taylor Gleason Enterprises.
School Night Vegan. Grateable Vegan Cheese. Grateable Vegan Cheese (100% meltable) - School Night Vegan. Last updated 12/10/2022.
Taylor Gleason Enterprises. 4 Factors That Determine Successful Blending in Food Processing. https://web.archive.org/web/20230201091740/https://www.taylorgleason.com/blending-in-food-processing/. Published February 01, 2023.
School Night Vegan teaches a method of making vegan cheese. The method of School Night Vegan comprises:
Procuring dry ingredients comprising starch, salt, vegan lactic acid powder. [“Add the flavor bringers!” section and Step 5, page 11]. School Night Vegan does not teach mixing the procured dry ingredients into a homogenous mixture.
At the time the invention was made, it would have been obvious to one of ordinary skill in the art before the effective filing date would have readily recognized the option of mixing or not mixing the dry ingredients. One of ordinary skill in the art would have been motivated to mix the dry ingredients to provide a dry blend. One of ordinary skill in the art would have had a reasonable expectation of success because mixing of dry ingredients is routinely practiced in the art.
Additionally, Taylor Gleason Enterprises teaches that when it comes to food processing, blending is an essential step in creating a successful and consistent product, [Final Thoughts, page 5] and teaches that particle size can impact the final product. [#1 The Particle Size, page 2] Taylor Gleason Enterprises teaches the particles are too large, they will not be able to blend evenly and may result in an uneven or lumpy finished product. On the other hand, if the particles are too small, they will not be able to retain their shape and may turn into a powdery mess, unless your goal is to create very fine. Taylor Gleason Enterprises also teaches that density plays a role in how well the ingredients blend together. If one ingredient is much denser than another, it may sink to the bottom and become difficult to incorporate into the mixture. Furthermore, mixing involves creating a proper moisture content ratio; if certain dry materials become too wet, they may not bind together with other ingredients properly. In the instant case, Taylor Gleason Enterprises establishes that particle size and density is a result effective variable on the final product.
It would have been obvious to one of ordinary skill in the art before the effective filing date to have mixed the dry ingredients to ensure that a homogeneous mixture is obtained. One of ordinary skill in the art would have been motivated to do so to obtain a successful and consistent vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Taylor Gleason establishes that blending is routinely practiced in the art.
School Night Vegan added the combined dry ingredients to a blender. [Step 5, page 11] The blender contains water, along with cashews and other ingredients. In the instant case, water is an aqueous solution. After adding the combined dry ingredients and the aqueous solution, a paste is formed.
School Night Vega does not teach the reverse sequence of adding aqueous solution to the combined dry ingredients.
However, at the time the invention was made, it would have been obvious to one of ordinary skill in the art before the effective filing date to recognize the option of adding 1) the combined dry ingredient to the solution and 2) the solution to the combined dry ingredient. One of ordinary skill in the art would have been motivated to add the solution to the combined dry ingredient to provide a blend between the combined dry ingredients and aqueous solution; and doing so allows one of ordinary skill in the art to better monitor the viscosity of the combined dry ingredients when an aqueous solution is added. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because changes in sequence of steps is routinely practiced in the art.
This position is further supported by the following legal precedent, as provided in MPEP 2144.04(IV): 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.).
It should be noted that by adding the solution to the combined dry ingredients and blending, the following steps are accomplished: adding an aqueous solution to generate a viscous uniform paste; and adding more of the aqueous solution to the viscous uniform paste to generate a dispersion pre-mix.
It is noted that School Night Vegan completed all the above steps in the blender. That is, School Night Vegan did not first add the combined dry ingredients with the aqueous solutions of cashews and aqueous solution of carrageenan in a nonblender vessel, then, transfer it to a blender. School Night Vegan skipped addition of the combined dry ingredients with the aqueous solutions of cashews and aqueous solution of carrageenan in a nonblender vessel.
It would have been obvious for one of ordinary skill in the art before the effective filing date to recognize the process of School Night Vegan, completion of all the above steps in the blender, can be completed in a nonblender vessel. In the instant case, the nonblender vessel is a suitable vessel to use in place of a blender as it also allows for the intended purpose of mixing ingredients. One of ordinary skill in the art would have been motivated to do so to mix ingredients to make vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success because the selection of a known material based on it’s suitable for its intended use is routinely practiced in the art. This position is further supported by MPEP 2411.07, which notes "[t]he selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”
School Night Vegan teaches adding a heated solution of kappa carrageenan powder (another dry ingredient) in 150 ml boiling water to the paste that’s in the blender, and blend. [Step 6, page 11] It should be noted that by adding a heated solution of kappa carrageenan powder in 150 ml boiling water to the paste, the following steps are accomplished: heating the dispersion mix while blending the dispersion mix to generate heat processed material.
School Night Vegan then transferred the content of the blender to a saucepan, then to a tub. [Step 7, page 11] School Night Vegan also teaches leaving the content in the tub to cool at room temperature before transferring to a fridge. It should be noted that by transferring the content of the blender to a saucepan, then to a tub and leaving the content in the tub to cool at room temperature before transferring to a fridge, the following steps are accomplished: pouring the heat processed material into a mold and cooling the heat processed material to generate the vegan cheese analogue.
Regarding claim 19, School Night Vegan teaches the use of cashew, psyllium husk, agave syrup, nutritional yeast flakes, tapioca starch, fine sea salt, coconut oil, rice vinegar, miso paste, vegan lactic acid powder, kappa carrageenan powder and water to make the vegan cheese. Hence, the heat process material comprises cashew (fiber, protein and flavor) , psyllium husk (fiber and trace amount of protein), agave syrup (flavor), nutritional yeast flakes, coconut oil, rice vinegar (flavor), miso paste (flavor), kappa carrageenan powder and water. This is in addition to the dry ingredients that School Night Vegan procured, which include starch, salt, vegan lactic acid powder
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over School Night Vegan in view of Taylor Gleason Enterprises, in further view of Sauce Stache and Ye.
Sauce Stache. Incredibly REAL Vegan Mozzarella from Pea Milk – ONLY 4 INGREDIENTS. https://saucestache.com/incredibly-real-vegan-mozzarella-cheese/. Jul 16, 2020.
Ye. WO 2022/167134. August 11, 2022.
As noted above, School Night Vegan teaches vegan cheese using starch and lactic acid as dry ingredients. School Night also uses of cashew milk [Step 4, page 11] and does not teach the use of pea flour to make vegan cheese.
Sauce Stache teaches the use of pea milk, along with starch, and lactic acid to make vegan cheese. [Ingredients, page 3]
It would have been obvious to one of ordinary skill in the art before the effective filing date to use pea milk instead of cashew milk. One of ordinary skill in the art would have been motivated to do so to make vegan cheese that is free of cashew. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Sause Stache teaches that pea milk is a functional equivalent to cashew milk in making vegan cheese.
Regarding carrageenan, School Night Vegan teaches the dissolution of carrageenan (hydrocolloid) in water to create a solution of carrageenan and add it to the combined dry ingredients. [Step 6, page 11] That is, School Night Vegan does not teach the use of dry form of carrageenan.
Sauce Stache teaches the use of dry carrageenan (hydrocolloid) to make vegan cheese.
It would have been obvious to one of ordinary skill in the art before the effective filing date to use carrageenan in the form it was presented instead of dissolving it in solution. One of ordinary skill in the art would have been motivated to do so to make vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because changes in the sequence of adding ingredients are routinely practiced in the art. This position is further supported by MPEP 2144.04 IV(C), which states, 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.).
As noted above, Sause Stache teaches the use of pea milk. Sauce Stache does not teach the use of Pea flour.
Ye teaches the use of pea flour to make pea milk by adding water. [Example 1, Lines 9-12, page 14]
It would have been obvious for one of ordinary skill in the art before the effective filing to use pea flour as a functional alternative to pea milk. One of ordinary skill in the art would have been motivated to do so to make vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because changes in the sequence of adding ingredients are routinely practiced in the art. This position is further supported by MPEP 2144.04 IV(C), which states, 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.).
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over School Night Vegan in view of Taylor Gleasons, as applied to claim 14, in further view of Mix Fix Cook.
Mix Fix Cook. Gooey Vegan Mozzarella! https://mixfixcook.com/2019/05/17/gooey-vegan-mozzarella/. May 17, 2019.
School Night Vegan does not teach blending between 10 minutes and 2 hours. However, Taylor Gleasons teaches that processing time is a result effective variable. Taylor Gleason notes, “[i]f the processing time is too short, the ingredients will not have enough time to mix together properly and may not blend evenly. On the other hand, if the processing time is too long, the ingredients may overheat and break down, resulting in an uneven blend. The ideal processing time will depend on the type of ingredients being blended, as well as the type of food processor being used. For example, harder ingredients like nuts or seeds will require a longer processing time than softer ingredients like fruits or vegetables. Additionally, food processors with higher power levels will typically have shorter processing times than those with lower power levels. To ensure successful blending, it is important to experiment with different processing times and production line equipment until you find the sweet spot for your particular ingredients and food processor.”
Additionally, Mix Fix Cook teaches making vegan cheese by blending for 10 minutes. [Step 3, page 5]
It would have been obvious to one of ordinary skill in the art before the effective filing date to use a variety of blending time, including 10 minutes. One of ordinary skill in the art would have been motivated to do so to make a vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because blending time results effective variable.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over School Night Vegan in view of Taylor Gleasons, as applied to claim 14, in further view of Mix Fix Cook, as applied to claim 16, in further view of Thresher.
Thresher US Patent No. 6777016. August 17, 2004.
School Night Vegan is silent on the heating temperature.
Thresher teaches vegan cheese, which Thresher calls a pea flour cheese analogue. [Figure 1] Thresher teaches heating to a temperature that is sufficient to complete starch gelatinization and to denature the flour protein. [Lines 10-15, 25-30, column 3] Thresher teaches a temperature range of 55-65, about 60, 73-100, and about 85-90C. The temperature range taught by Thresher is within and overlaps with the claimed temperature range of 40-90C.
It would have been obvious for one of ordinary skill before the effective filing date to heat to a temperature that is sufficient to complete starch gelatinization and to denature the flour protein, which includes 55-65, about 60, 73-100, and about 85-90C. One of ordinary skill in the art would have been motivated to do so to make vegan cheese. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because adjustment of working conditions such as temperature is routinely practiced in the art.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over School Night Vegan in view of Taylor Gleasons, as applied to claim 14, in further view of Mix Fix Cook, as applied to claim 16, as evidenced by Sous-Vide.
Sous-Vide: The Art and Science of Sous-Vide Cooking. Thermomix TM5. https://web.archive.org/web/20210413132426/https://www.sousvidemagazine.com/products/thermomix-tm5/. April 13, 2021.
Regarding claim 18, School Night Vegan does not teach that the temperature is gradually increased as the blending occurs.
However, it is noted that Mix Fix Cook teaches the use of Thermomix blender, TM5. [Top of page 2] Mix Fix Cook has the setting at 10 mins/100C/speed 2. The blender cooks at constant temperatures, evidenced by Sous-Vide. In the instant case, the temperature gradually increased as the blending occurs.
Conclusion
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/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
