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 .
Status of the Application
The status of the claims stands as follows:
Claims currently under consideration: 1-12
Currently rejected claims: 1-12
Allowed claims: None
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 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, 2, 4, 6, 8, and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Connie (Connie’s RAWsome kitchen, “VEGAN RICE CHEESE – MELTABLE – CHEAP AND DELICIOUS Connie’s RAWsome kitchen,” YouTube, 10/3/2017, https://www.youtube.com/watch?v=FBs5rz69HKU, supplementary information provided by Applicant).
Regarding claim 1, Connie discloses a method for producing a hard cheese-like composition, the method comprising (i) mixing rice, oil/fat (coconut oil), and a fermented food that is miso (i.e., white miso), (ii) heating the mixture, and (iii) maintaining the mixture at refrigeration temperature until firm, whereby a hard cheese-like composition is obtained, where the composition comprises rice cake (i.e., steamed and kneaded rice, Specification, p. 8, line 30 – p. 9, line 14), oil/fat, and the fermented food, and wherein a mass ratio of the rice cake and fermented food is within the range of 1 to 20 (1 heaping cup of cooked rice : 1 heaping tablespoon of miso, where 1 cup = 16 tablespoons) (video and video description).
Connie does not explicitly disclose maintaining the mixture at a temperature of -5°C to 15°C for 1 to 7 days.
However, the instruction that the mixture is placed in a refrigerator until firm renders the claimed temperature and time ranges obvious, since (i) refrigeration temperatures typically range from about 2-6°C and (ii) a time frame of cooling until firm would encompass any period necessary to achieve the desired texture, including periods that extend beyond attaining the desired texture, since such food products are typically stored at refrigeration temperatures for several days.
As for claim 2, the requirement that “the rice is selected from the group consisting of glutinous rice, non-glutinous rice, and mixed rice thereof” is presumed to encompass all rice, such the rice disclosed in Connie would fall within the scope of the claimed requirement. Connie further discloses cooking over medium heat until thickened yet still pourable (video description). The temperature and heating time are thus considered result-effective variables subject to routine optimization, where a practitioner would readily determine a suitable heating time/temperature in order to achieve the necessary texture. MPEP 2144.05 II A (“differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical”). The claimed heating protocol of 80-120°C for 5 to 30 minutes is thus considered obvious.
As for claim 4, Connie discloses that the product is cooled until firm, and the product is shown being sliced with a knife, suggesting it has a hardness comparable to conventional cheese products. Since the claimed temperature range for the product of -5°C to 15°C includes temperatures at which the product would be frozen or not, a wide range of achievable hardness values may be attained. The claimed method also does not preclude performing any additional treatment steps or adding any additional ingredients that may alter the hardness. As such, manipulation of the hardness to any particular achievable value is considered obvious, especially a hardness that would be characteristic of a conventional cheese product. MPEP 2144.05 II. The claimed hardness of 400-6,000 g is thus considered obvious to a skilled practitioner.
As for claim 6, freezing food is extremely well known in the art as a preservation technique. Any period of freezing the food would be obvious. The claimed limitation requiring maintaining the mixture at a temperature of -5 to 0°C for 1 to 3 days would thus be obvious.
As for claim 8, Connie discloses the fermented food as being miso (video description).
As for claim 10, Connie discloses the recipe as comprising 1 heaping cup of cooked rice and 1 heaping tablespoon of miso (video and video description). The implied mass ratio between the two would thus be 16, where 1 cup = 16 tablespoons, which is adequate to deem the claimed range of mass ratios of 5 to 15 obvious, particularly given the variability imparted by describing the measured amounts as “heaping”. MPEP 2144.05 I (“a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”).
As for claim 11, Connie discloses the recipe as comprising 1 heaping cup of cooked rice and 1 heaping tablespoon of miso (video and video description). The implied mass ratio between the two would thus be 16, where 1 cup = 16 tablespoons, which is adequate to deem the claimed range of mass ratios of 5 to 15 obvious, particularly given the variability imparted by describing the measured amounts as “heaping”. MPEP 2144.05 I (“a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”).
As for claim 12, MPEP 2144.04 II A indicates that omission of an element and its function is obvious if the function of the element is not desired. Connie does not indicate the particular function of any of the disclosed ingredients, although the function of most ingredients would be easily discernable for a person having ordinary skill in the art. Omission of any of the ingredients would at least be obvious in order to establish the function of each respective ingredient, as well as to potentially exclude any undesired taste or textural attributes. As such, a composition that consisted of only certain among the disclosed ingredients would be obvious, including a composition that consisted of rice cake, oil/fat, and the fermented food. Storage of the composition at freezing temperatures around -5°C would ensure the composition retained a hard consistency as required.
Claims 3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Connie (Connie’s RAWsome kitchen, “VEGAN RICE CHEESE – MELTABLE – CHEAP AND DELICIOUS Connie’s RAWsome kitchen,” YouTube, 10/3/2017, https://www.youtube.com/watch?v=FBs5rz69HKU, supplementary information provided by Applicant) in view of Koyama (U.S. 3,937,844).
As for claim 3, Connie discloses the method of claim 1.
Connie does not specifically disclose initially fermenting a raw material with a fermenting bacterium to make the fermented food.
However, Koyama discloses that miso is made from soy beans or rice fermented by bacteria (C1, L18-L24).
It would have been obvious to one having ordinary skill in the art to first produce miso via fermenting a raw material with a fermenting bacterium to make the miso. Since Connie discloses miso without indicating its source, a skilled practitioner would be motivated to produce the component to the extent it was not otherwise available. Consultation of Koyama would show that miso may be obtained via fermentation with bacteria of soy beans or rice. As such, performing an initial process step of producing miso via fermenting a raw material with a fermenting bacterium to make the fermented food would be obvious to a skilled practitioner.
As for claim 7, Connie discloses the method of claim 1. Connie further discloses the inclusion of miso in the composition (video description).
Connie does not specifically disclose the fermented food as being from among the recited components.
However, Koyama discloses that miso is made from fermented rice (C1, L18-L21).
It would have been obvious to one having ordinary skill in the art to use fermented food that consisted of fermented rice. Since Connie discloses miso without indicating its composition, a skilled practitioner would be motivated to produce the component to the extent it was not otherwise available. Consultation of Koyama would show that miso may be obtained via fermentation with bacteria of rice. As such, producing miso that constituted fermented rice would be obvious to a skilled practitioner.
Claims 5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Connie (Connie’s RAWsome kitchen, “VEGAN RICE CHEESE – MELTABLE – CHEAP AND DELICIOUS Connie’s RAWsome kitchen,” YouTube, 10/3/2017, https://www.youtube.com/watch?v=FBs5rz69HKU, supplementary information provided by Applicant) in view of Rodriguez (U.S. 2017/0020156 A1).
As for claim 5, Connie discloses the method of claim 1.
Connie does not disclose mixing the oil/fat, water, and an emulsifier to form an emulsified oil/fat before step (a).
However, Rodriguez discloses a vegan cheese product ([0006]) wherein fat is incorporated in an emulsion in order to impart lower fat content ([0024]), where the emulsion is prepared by mixing the oil/fat, water, and an emulsifier before being mixed with other ingredients ([0026]).
It would have been obvious to one having ordinary skill in the art to produce the cheese product according to Connie wherein the oil/fat, water, and an emulsifier are mixed first before adding other ingredients. Since Connie discloses the mixture of almond milk (containing water) and coconut oil—two components that do not necessarily readily mix—a skilled practitioner would be motivated consult Rodriguez for further instruction regarding mixing water and oil/fat components in a vegan cheese product. Since Rodriguez discloses forming an emulsion by first mixing the oil/fat with water and an emulsifier ([0026]), which would be recognized by a skilled practitioner as additionally facilitating subsequent mixing with other ingredients, a person of ordinary skill in the art would find incorporating such steps into the process of Connie to be obvious. The claimed step of mixing oil/fat, water, and an emulsifier in order to form an emulsified oi/fat before step (a) would thus be obvious.
As for claim 9, Connie discloses the method of claim 1.
Connie does not disclose the oil/fat as being sunflower oil, rice oil, or palm oil.
However, Rodriguez discloses a vegan cheese product ([0006]) wherein the oil may be sunflower oil or palm oil ([0084]).
It would have been obvious to one having ordinary skill in the art to produce the cheese product according to Connie wherein the oil/fat is sunflower oil or palm oil. Connie discloses the inclusion of coconut oil but does not disclose any alternatives. MPEP 2144.06 I and II indicate that combination or substitution of known equivalents for the same purpose is prima facie obvious. Since Rodriguez discloses sunflower oil and palm oil in a comparable vegan cheese product, the incorporation of palm oil or sunflower oil into the product of Connie would be obvious.
Attention is additionally invited to In re Levin, 84 USPQ 232, and the cases cited therein, which are considered relevant to the fact situation of the present case. The court in Levin states:
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. Levin at 234.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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