DETAILED ACTION
Background
Claims 1-12 as filed with the instant application on December 27, 2024 have been examined. No amendments have been filed.
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 .
Information Disclosure Statement
Applicant is advised that the citing of an art reference in the international search report (ISR) and opinion, including those dated December 27, 2024 does not satisfy Applicants’ duty of disclosure under 37 CFR 1.56. Accordingly, unless the Office has cited a reference as art, it has not been made of record.
Claim Objections
Claims 2-5 and 7-10 are objected to because of the following informalities:
In claim 2, at lines 2-3 after “cherry tomatoes,” on line 2 make all of --ptpbpp
In claim 3, at lines 2-3 after “bell peppers,” on line 2 make all of --coggbcca
at line 3 after “sweet” correct the spelling of – potatoes--;
In claim 4, at line 2 after “root, black” make –pepper
at line 3 after “rosemary” make --p
at line 3 after “thyme,” spell out the abbreviation “M.”; and,
at lines 3-4 after “spicata,” on line 3 make -- acsm
In claim 5, at line 4 after “dressings comprising” make --a
at line 5 after “sauce and” make --c
In claim 7, at lines 2-3 after “cherry tomatoes,” on line 2 make all of --ptpbpp
In claim 8, at line 2 after “bell peppers,” on line 2 make all of --coggbcca
In claim 9, at line 2 after “rosemary” make --p
at the beginning of line 3 spell out the abbreviation “M.”; and,
at line 3 after “spicata,” make -- acsm
In claim 10, at line 4 after “dressings comprising” make --ac.
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.
Claims 1-12 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.
Regarding instant claims 1 and 6, each of the recited amount of a fruit source, the recited amount of a vegetable source and the recited amount of an herbs and spices source is indefinite for lacking a clear basis or denominator. Is the claimed amount of fruit, the % by weight (wt%) based on the weight of the plant-only cheese, or is it the wt% based on the weight of the flavoring replacement, or is it the total weight of solids, or some other total weight basis? The Office interprets the claimed wt% of a fruit source as being a wt% of the fruit source, based on the total weight of a flavoring replacement. Further, the Office interprets the claimed wt% of a vegetable source as being a wt% of the vegetable source, based on the total weight of a flavoring replacement. Still further, the Office interprets the claimed wt% of an herbs and spices source as being a wt% of the herbs and spices source, based on the total weight of a flavoring replacement.
Claims 2-5 and 7-12 are rejected as depending from a rejected base claim.
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.
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.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over US2021/0289805 to Hinnenkamp et al. (Hinnenkamp) in view of WO2017/014656 A1 to Radas et al (Radas).
The Office considers the claimed plant-only cheese flavoring replacement as comprising a cheese flavoring replacement, and considers the proportion of all of the claimed amounts of from 10 – 35% by weight of a fruit source, from 10 – 40% by weight of a vegetable source, and from 5 – 25% by weight of herbs and spices source as being amounts, based on the total weight of the flavoring replacement.
Regarding instant claims 1 and 3-4, Hinnenkamp at Example 2, [0058] and its accompanying table discloses a plant-only cheese comprising a flavoring replacement of 1.71 wt%, based on the total weight of the plant-only cheese of cauliflower (“vegetable source” in claim 1 and as in claim 3), 0.61 wt%, based on the total weight of the plant-only cheese of lemon juice (“fruit source” in claim 1), 0.51 wt%, based on the total weight of the plant-only cheese of a nutritional yeast, 0.14 wt%, based on the total weight of the plant-only cheese of a natural vegan flavor, and 0.04 wt%, based on the total weight of the plant-only cheese of combination of paprika and turmeric (“herb and spice source” in claim 1 as in claim 4). Further, Hinnenkamp at [0003]-[0006] discloses a vegan cheese (“plant-only cheese”) comprising plant milk, starches, plant oils, thickeners and stabilizers as well as the flavoring replacement. The Office considers the cheese flavoring replacement in Hinnenkamp as excluding the plant-only cheese itself. Accordingly, the flavoring replacement composition disclosed in Example 2 of Hinnenkamp comprises a total of (1.71 + 0.61 + 0.51 + 0.14 + 0.04 or) 3.01 weight parts. Accordingly, Example 2 of Hinnenkamp discloses a proportion of the recited materials, based on the total weight of a cheese flavoring replacement of 1.71/3.01 or 56.8 wt% of a vegetable source, 0.61/3.01 or 20.2 wt% of a fruit source and 0.04/3.01 or 1.32 wt% of an herbs and spices source.
Further, Hinnenkamp does not disclose an example of a plant-only cheese flavoring replacement wherein the amount of the vegetable source is 10 – 40 wt% and the amount herbs and spices source 5 – 25 wt%, both based on the total weight of a cheese flavoring replacement. However, Hinnenkamp at [0003] discloses cheese flavoring replacement compositions comprising, based on the total weight of the flavoring replacement, from about 0.1 to about 5 wt% of cauliflower, (at [0006]) comprising from about 0.1 to about 2 wt%, based on the total weight of the flavoring replacement of lemon juice, and from about 0.01 to about 0.1 wt% of a spice, including turmeric, ginger, rosemary and/or thyme (claim 4), wherein further flavoring replacements such as nutritional yeast are optional. Accordingly, based on the Example 2 amount of the flavoring replacement composition or a total of 3.01 weight parts, the disclosed about 0.1 to about 2 wt% of a vegetable source converts to about 0.1/3 X 100 wt% to about 2/3 X 100 wt% or from about 3.3 to about 66.6 wt% , based on the total weight of a flavoring replacement which the claimed 10 to 40 wt%, based on the total weight of a cheese flavoring replacement in claim 1 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Hinnenkamp would have found it obvious in view of Hinnenkamp to use the claimed amount of vegetable source because Hinnenkamp discloses the making of a desirable plant-only cheese comprising the claimed amount of the vegetable source.
Radas at Abstract discloses a method for making cheese chips, wherein the chips comprise cheese flavored with a flavoring replacement. At page 6, lines 15-26 Radas discloses a pizza flavoring comprising 0.1 to 20 wt% oregano and 0.1 to 20 wt% of basil, as well as from 2.25 to 27.6 wt% of paprika, all being herbs and spices sources and all amounts, based on the total weight of a flavoring replacement. Further, at Example 5 on page 11, lines 14-33 Radas discloses a flavoring comprising wine vinegar which the Office finds as sourced from grapes, yeast extract, 5 wt% of pepper extract and 10 wt% of dried garlic concentrate. The total amount of herbs and spices source in the Radas pizza flavoring is from 2.45 to about 67.6 wt% of the flavoring, within which range the claimed 10 to 40 wt%, based on the total weight of the flavoring replacement lies. See MPEP 2144.05.I. Further, the total amount of herbs and spices source in the Radas Example 5 flavoring replacement is 15 wt%. The ordinary skilled artisan would have found it obvious in view of Radas to use the claimed amount of any herbs and spices source in its flavoring replacement because Radas discloses that the claimed amounts of an herbs and spices source makes a desirable flavoring replacement.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Radas for Hinnenkamp to use the claimed amount of 10 to 40 wt%, based on the total weight of a flavoring replacement of its herbs and spices source including turmeric, ginger, rosemary and/or thyme. Both references disclose a flavoring for cheese comprising a vegetable source, a fruit source and an herbs and spices source. The ordinary skilled artisan in Hinnenkamp would have desired to include the claimed amount of one or more herb and spice sources to make a flavor concentrate, or to impart a bolder flavor or to broaden available flavor profiles for its flavoring replacement.
Regarding instant claim 5, Hinnenkamp at [0042] discloses foods comprising its cheese flavoring composition including cream cheese, crackers, chips, and a cheese bun or cheese roll (“bread”).
Claim 1, 5-6 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0030901 A1 to Durand et al. (Durand).
The Office considers the claimed plant-only cheese flavoring replacement as comprising a cheese flavoring replacement, and considers the proportion of all of the claimed amounts of from 10 – 35% by weight of a fruit source, from 10 – 40% by weight of a vegetable source, and from 5 – 25% by weight of herbs and spices source as being amounts, based on the total weight of the flavoring replacement.
Regarding instant claims 1, 5-6 and, Durand at [0032]-[0036] discloses a cream cheese (claims 5 and 10) and (at [0031] a method of mixing formulations (claim 6) to make the cream cheese (“plant-only cheese”), wherein the cream cheese comprises a source of vegetable fat, a source of starch, a source of vegetable dietary fibers and water including (at 0040]) crushed nuts. Further, at [0044] Durand discloses other raw materials and method of mixing other raw materials comprising up to 30 wt%, based on the total weight of the cheese of each of a vegetable puree or pieces (“vegetable source”), a fruit puree or pieces (“fruit source”) and herbs (“herbs and spices source”) to make a flavoring replacement for the plant-only cheese.
Further, the Office considers the flavoring replacement of Durand at [0044] to comprise each of from 0 to 100 wt%, based on the total weight of a flavoring replacement of a vegetable source within which range the claimed 10 – 40 wt%, based on the total weight of a flavoring replacement of a vegetable source in claim 1 and 6 lies, from 0 to 100 wt%, based on the total weight of a flavoring replacement of a fruit source within which range the claimed 10 –35 wt%, based on the total weight of a flavoring replacement of a fruit source in claims 1 and 6 lies [0058]; and from 0 to 100 wt%, based on the total weight of a flavoring replacement of a herbs and spices source within which range the claimed 5 - 25 wt%, based on the total weight of a flavoring replacement of a herbs and spices source in claims 1 and 6 lies. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Durand to include in its plant-only cheese flavoring replacement and method for making it the claimed amount of each of a vegetable source, a fruit source and a herbs and spices source in its flavoring replacement because Durand discloses that its plant-only cheese flavoring replacement desirably includes the claimed amount of such a vegetable source, fruit source and an herbs and spices source.
Further, Durand does not disclose an example mixing only a vegetable source, fruit source and a herbs and spices source at a temperature of between 60 degrees Celsius (°C) and 105 degrees °C for about 30 seconds to 1 minute to form the plant-only cheese flavoring replacement as in claim 6. However, at [0112]-[0113] Durand discloses thermally treating the cheese forming mixture with the flavoring replacement at between 75 and 90 °C for 1 to 10 minutes, which the claimed about 30 seconds to 1 minute overlaps. See MPEP 2144.05.I. The ordinary skilled artisan in Durand would have found it obvious to heat while mixing its mixture comprising a vegetable source, a fruit source and an herbs and spices source because Durand discloses that heating while mixing as claimed is desirable to functionalize the ingredients as at [0113].
Claims 2-4 and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0030901 A1 to Durand et al. (Durand) as applied to claims 1 and 6 above, and further in view of US2021/0289805 to Hinnenkamp et al. (Hinnenkamp).
As applied to claims 1 and 6, Durand at [0031]-[0036], [0040], [0044] and [0112]-[0113] discloses a cream cheese comprising a flavoring replacement and a method of mixing formulations comprising a plant-only cheese flavoring replacement comprising from 10 – 35% by weight of a fruit source, from 10 – 40% by weight of a vegetable source, and from 5 – 25% by weight of herbs and spices source as being amounts, based on the total weight of the flavoring replacement at a temperature of between 60 degrees °C and 105 degrees °C for about 30 seconds to 1 minute 6 to make the plant-only cheese flavoring replacement.
Durand does not disclose a flavoring replacement or method of making wherein the fruit source is selected from blueberries, strawberries, apricots, cherry tomatoes, Pineapple, Tamarillo, Plum, Barbados cherry, Pomelo, Peach or combinations thereof as in claims 2 and 7; further, Durand does not disclose a flavoring replacement or method of making, wherein the vegetable source is selected from bell peppers, Cabbage, Onions, Garlic, Green beans, Broccoli, Cauliflower, Celery, Asparagus, sweet potatoes or combinations thereof as in claims 3 and 8; and, Durand does not disclose a flavoring replacement or method of making a flavoring replacement wherein the fruit source is selected from blueberries, strawberries, apricots, cherry tomatoes, Pineapple, Tamarillo, Plum, Barbados cherry, Pomelo, Peach or combinations thereof as in claims 4 and 9.
Hinnenkamp discloses at [0003]-[0006] discloses a vegan cheese comprising a, based on the total weight of a cheese flavoring replacement comprising cauliflower as a vegetable source, lemon juice as a fruit source and an herbs and spices source selected from turmeric, ginger, pepper, rosemary and/or thyme (claims 4 and 9). Further, Hinnenkamp at [0006] discloses a flavoring replacement comprising, based on the total weight of a flavoring replacement, from about 0.1 to about 5 wt parts of cauliflower, from about 0.1 to about 2 wt parts, based on the total weight of the flavoring replacement of lemon juice, and from about 0.01 to about 0.1 wt parts of the spice. Further, at [0033] Hinnenkamp discloses juices as fruit sources including pineapple juice, strawberry juice, tomato juice, and cherry juice. It would have been obvious to include a cherry tomato fruit source as claimed in view of Hinnenkamp’s disclosure that tomato juice is desirable for a cheese flavoring replacement. Further, Hinnenkamp at [0010] discloses a cream cheese as a plant-only cheese.
The Office considers a disclosure of pepper, without more as referring to black pepper as claimed in claims 4 and 9.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Hinnenkamp for Durand to include a fruit source is from blueberries, strawberries, apricots, cherry tomatoes, Pineapple, Tamarillo, Plum, Barbados cherry, Pomelo, Peach or combinations thereof as in claims 2 and 7, to include a vegetable source selected from bell peppers, Cabbage, Onions, Garlic, Green beans, Broccoli, Cauliflower, Celery, Asparagus, sweet potatoes or combinations thereof as claimed in claim 3 and 8, and to include any of the claimed herbs and spices source selected from ginger root, turmeric root, black peppers, rosemary, Peppermint, coriander leaves, thyme, M. spicata or spearmint, Angelica, Caper, Sweet Marjoram or combinations thereof as in claims 4 and 9. Both references discloses cheese flavorings for a plant-only cream cheese comprising generally a fruit source, a vegetable source and an herbs and spices source. The ordinary skilled artisan in Durand would have desired to use any of the fruit, vegetable and herbs and spices source disclosed as desirable in Hinnenkamp as at [0006] and [0033] for flavoring its own desired plant-only cheese.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0030901 A1 to Durand et al. (Durand) as applied to claim 6 above, and further in view of US2022/0044768 A1 to Navon et al. (Navon).
As applied to claim 6, Durand at [0031]-[0036], [0040], [0044] and [0112]-[0113] discloses a method of mixing formulations while heating at a temperature of between 60 degrees °C and 105 degrees °C for about 30 seconds to 1 minute 6 comprising from 10 – 35% by weight of a fruit source, from 10 – 40% by weight of a vegetable source, and from 5 – 25% by weight of herbs and spices source as being amounts, based on the total weight of the flavoring replacement to make a plant-only cheese flavoring replacement.
Durand does not disclose a method wherein physical characterization data associated with ingredients of the plant-only cheese flavoring replacement system comprising the fruit source, the vegetable source, the herbs and spice source is stored in a database, and wherein a machine learning model determines a unique combination of ingredients based on the physical characterization data to prepare the plant-only cheese flavoring replacement system as in claim 11. Further, Durand does not disclose such a method wherein the physical characterization data of the ingredients comprise functional properties that comprise emulsification properties, stabilization properties, gelling properties, fat-replacement properties, Ayurvedic and/or other holistic properties, physicochemical properties that comprise pH, viscosity, moisture content, density, mechanical properties that comprise adhesive strength, tensile strength, shear resistance, chemical and/or molecular descriptor properties that comprise bio-active/bioavailability properties, molecular structure, phytonutrient properties, sensorial properties that comprise taste, smell, color, texture, mouth feel, and nutritional information that comprises macronutrient/micronutrient properties as in claim 12.
Notco at Abstract discloses methods of making food using a neural network method of generating food formulas (Title) and teaches generating a food product formula from a training set of data wherein the data include ingredients and their features (“physical characterization data associated with ingredients of the plant-only cheese flavoring replacement system comprising the fruit source, the vegetable source, the herbs and spice source is stored in a database” in claim 11). Notco discloses at [0002] machine learning by training a machine (see also 312, 314 and 316 in Fig. 3) to generate formations that mimic target food items (“wherein a machine learning model determines a unique combination of ingredients based on the physical characterization data to prepare the plant-only cheese flavoring replacement system” in claim 11). In addition, at [0038] Notco discloses a formula generator 114 coupled to a data repository 106 that includes an ingredients database 108 and a recipes database 110 including data which (at [0040]) includes chemical, nutritional and/or molecular features or information (“the physical characterization data of the ingredients comprise physicochemical properties that comprise pH, viscosity, moisture content, density” … and “chemical and/or molecular descriptor properties that comprise bio-active/bioavailability properties, molecular structure”… and “nutritional information” in claim 12). Still further, Notco at [0041] discloses recipes and sensorial properties such as taste, smell, color, texture, mouth feel.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Notco for Durand to store physical characterization data regarding both its plant-only cheese and its vegetable source, fruit source and herbs and spices sources and use a formula generator to train a machine to generate a unique combination of ingredients for making its flavoring replacement or flavor composition and to use the claimed physical characterization data to train the formula generator as in Notco to provide formulations for its flavoring replacement. Both references disclose making food product formulations to improve the flavor, taste and/or texture of a food product. The ordinary skilled artisan in Durand would have desired to use its knowledge of plant-only cheese and flavoring replacements therefore to supervise an machine learning model as in Notco to make new and improved flavoring replacement formulations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
