DETAILED ACTION
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
Receipt of the Response and Amendment after Non-Final Office Action filed 05/19/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment of the claims: the 35 U.S.C. §112(b) rejections of claims 16, 24, 30, 34, 39, 41, and 44-51 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 16, 24, 30, 34, 39, 41, 44-57
Withdrawn claims: None
Previously cancelled claims: 1-15, 17-23, 25-29, 31-33, 35-38, 40, 42-43
Newly cancelled claims: None
Amended claims: 16, 30, 39, 46-47, 49-50
New claims: 51-57
Claims currently under consideration: 16, 24, 30, 34, 39, 41, 44-57
Currently rejected claims: 16, 24, 30, 34, 39, 41, 44-57
Allowed claims: None
Claim Objections
Claim 56 is objected to because “about 40% by weigh” should be read as “about 40% by weight”. 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.
Claim 55 and 56 are rejected under 35 U.S.C. 112(b) 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 55 and 56 recite a total amount of fresh food in the product of about 73% to about 100% of the product, but do not recite units of measurement associated with the percentages (e.g., wt.%, vol.%). Therefore, the claims are indefinite. For the purpose of this examination, the percentages will be interpreted as weight percentages.
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 16, 24, 34, 41, 44, 48, 52, and 55 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eisner (WO 2016/202830; English translation relied on for citations).
Regarding claims 16, 24, 34, 52, and 55, Eisner teaches a method of producing a formed food product that is readily consumable by an end user (corresponding to fruit and vegetable snacks) (page 1, lines 21-23), wherein the food product consists of a mixture of cut pieces of a first type of fresh food (corresponding to fruits and vegetables in the form of pieces or slices); and a fruit puree (page 7, lines 38-40; page 8, lines 1-3). Since Eisner discloses fruit puree, Eisner teaches that the product contains a component of a second type of fresh food not previously dried/dehydrated, wherein the second type of fresh food is a paste and not in the form of a juice as required by present claims 16, 24, 34, and 52. Eisner teaches that the method comprises the steps of: cutting a fresh fruit or vegetable into distinct pieces to obtain a first amount of cut pieces of the first type of fresh food not previously dried (corresponding to the inherent step of preparing fruit or vegetable pieces or slices) (page 8, lines 1-3); processing the second amount of a second type of fresh food as a paste of the second type of fresh food (corresponding to comminution into a puree) (page 7, lines 38-40); and mixing a first mixture consisting of the first amount of cut pieces of the first type of fresh food not previously dried; and the second amount of the paste of the second type of fresh food not previously dried in order to form a first mixture (page 7, lines 38-40; page 8, lines 1-3). Eisner teaches that the method further comprises: drying the mixture at a temperature less than 80°C, such as 55°C; and then forming (corresponding to shaping and optional further post-drying) the first mixture to obtain the formed food product readily consumable by an end user (page 11, lines 20-22; page 12, lines 35-36). This disclosed heating temperature and time falls within the claimed temperature range recited in present claim 16.
Eisner discloses that cereals may be added to the formed food product (page 12, lines 42-44) and that the formed food product may be a cereal bar (corresponding to muesli bar) (page 12, lines 53-55). Therefore, Eisner discloses a formed food product consisting of cut pieces of a first type of fresh food; a component of a second type of fresh food not previously dried; and an additional ingredient in the form of cereal for taste and/or nutrition purposes as recited by present claims 16 and 24 (page 7, lines 38-40; page 8, lines 1-3)
Eisner teaches that the food product contains more than 80 wt.% of the second type of fresh food (page 8, lines 13-14); therefore, it teaches that the total amount of fresh food in the product is from an amount greater than 80 wt.% to an amount of 100 wt.%, which falls within the claimed concentration recited in present claim 55. Eisner teaches that the fresh food consists of fruits and/or vegetables in their natural state (corresponding to the first type of fresh food being a fruit or vegetable piece or slice and the second type of fresh food being pureed fruit) (page 8, lines 1-7) as recited by present claim 16. Since Eisner discloses a product consisting of the first and second types of fresh foods (corresponding to fruit and vegetable snacks) (page 1, lines 21-23); and discloses a product consisting of the first and second types of fresh food and at least one additional ingredient in the form of cereal (corresponding to muesli bar formed from fruit and vegetable snacks) (page 12, lines 42-44, 53-55), Eisner discloses products that are void of additives, flavorings, sweetening agents, preservatives, colorants, or any other ingredients not naturally part of the respective fruit or vegetable; and that the food product keeps the organoleptic properties of the fresh food as recited in present claims 16 and 24.
Regarding claim 41, Eisner teaches the invention as described above in claim 16, including the cut pieces of the first type of fresh food are sliced shaped (page 8, lines 1-3).
Regarding claim 44, Eisner teaches the invention as described above in claim 16, including the first and second types of fresh food are banana, mango, pineapple, papaya, blueberry, strawberry, pear, apricot, or cherry (page 6, lines 8-13).
Regarding claim 48, Eisner teaches the invention as described above in claim 16, including the product is not a food film (corresponding to the product being a cube) (page 13, lines 8-10).
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.
Claims 16, 30, 39, 45-47, 49-51, 53-54, and 56-57 are rejected under 35 U.S.C. 103 as being unpatentable over Rodgers (Rodgers, N., “Trader Joe’s Apple + Banana and Apple +Mango Fruit Bars”, 2014, What’s Good at Trader Joe’s?, https://www.whatsgoodattraderjoes.com/2014/07/trader-joes-apple-banana-and-apple.html; previously cited) in view of Diamante (Diamante et al., “Fruit Leathers: Method of Preparation and Effect of Different Conditions on Qualities”, 2014, International Journal of Food Science, vol. 2014, article ID: 139890; previously cited).
Regarding claims 16, 45, 51, 53, 54, and 57, Rodgers teaches a formed food product that is readily consumable by an end user in the form of a fruit bar as recited in present claim 45 (page 1, photo). Rodger teaches that the bar is made of a first type of fresh fruit and a second type of fresh fruit (corresponding to apples and mangoes or apples and banana); wherein one of the types of fresh fruit may be in the form of distinct pieces of a fresh fruit (corresponding to bits of fruit) and one of the types of fresh fruit may in the form of a liquid (corresponding to “syrupy goodness”) (page 2, 3rd paragraph; page 2, 2nd photo). Therefore, Rodgers discloses a fruit bar consisting of a first mixture of a first type of fresh fruit and a second type of fresh fruit, thereby rendering a formed food product containing 100 wt.% fresh food as recited by present claims 16 and 57 obvious. Rodgers also discloses the addition of chili to the fruit bar (page 2, 4th paragraph), thereby rendering a fruit bar consisting of a mixture of a first type of fresh fruit, a second type of fresh fruit, and an additional ingredient for taste and/or nutrition purposes as recited by present claim 16 obvious.
These disclosures render a method comprising the steps of: processing a fresh fruit to obtain a component of the second type of fresh food; mixing a first mixture consisting of a first mixture of a first type of fresh fruit and a second type of fresh fruit; and forming the first mixture to obtain the formed food product obvious. These disclosures also render the first and second types of fresh fruits being in their natural state as recited by present claims 16 and 57 obvious; and the formed food product consisting of the first mixture or the first mixture plus the additional ingredient so that the formed food product is free of additives, flavorings, sweetening agents, preservatives, colorants or any additional ingredients not naturally part of the respective fruits or additional ingredients as recited by present claims 16 and 57 obvious.
Rodgers does not teach that: the first and second types of fresh fruits are not previously dried; the distinct pieces of the first type of fresh fruit formed by cutting; the component of the second type of fresh fruit is a paste; the first mixture is heated to a temperature of about 35°C to about 121°C; that the first mixture is formed after heating; or that the product has a moisture content of about 13 wt.% to about 40 wt.%.
However, Diamante teaches a method of producing fruit bars (also known as fruit leathers) comprising the steps of: cutting or pulping fresh fruit; optionally adding other ingredients to form a mixture comprising fruit puree; pouring the mixture onto trays; and dehydrating the mixture (page 1, 1st column, 1st paragraph; page 2, column 1, 1st paragraph under section 2; page 2, Fig. 1) at a temperature of 30-80°C for up to 24 hours until a final moisture content of 12-20% has been reached (Abstract). The disclosed temperature falls within the range recited in the heating steps of present claims 16, 53, and 57. The disclosed moisture content falls within the range recited in present claims 54, 56, and 57. The disclosed heating time encompasses the range recited in the heating step of present claims 53 and 57. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I. Diamante also discloses cutting as a method of producing discrete pieces of fruit (corresponding to cutting fruit into halves, dices, pieces) (page 2, column 2, 2nd paragraph; page 7, 2nd paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the method of Rodgers by not previously drying the first and second types of fruits, forming the discrete pieces of the first type of fresh fruit by cutting, providing the second type of fresh food in the form of a paste, heating the first mixture of first and second types of fresh fruit to a temperature of 30-80°C, and forming a product after heating the mixture as taught by Diamante. Since Rodgers discloses that its fruit bar comprises discrete pieces of fruit and a liquid from fruit (page 2, 3rd paragraph; page 2, 2nd photo), but does not disclose a method of producing the discrete pieces of fruit or a specific liquid with which to form a fruit bar, a skilled practitioner would have been motivated to consult an additional reference such as Diamante in order to determine a suitable method of producing discrete fruit pieces and a suitable liquid for producing a fruit bar. In consulting Diamante, the practitioner would find that fresh fruit not previously dried and fruit paste are suitable for making food bars, thereby rendering the claimed first and second types of fresh fruit not previously dried as recited by present claims 16 and 57 obvious. Furthermore, from the combined teachings of Diamante and Rodgers, the practitioner would find that fruit pieces and fruit paste (corresponding to fruit puree) are both suitable ingredients for a fruit bar as recited, especially wherein “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. MPEP 2144.06.I.
In consulting Diamante, the practitioner would also find that the fruit mixture should be dried prior to shaping since drying allows the mixture to be solid enough to hold a shape; and Diamante discloses that drying the mixture is a typical step in producing fruit bars (page 1, column 1, 2nd paragraph – column 2, 1st paragraph). Therefore, heating the mixture to a temperature of 30-80°C prior to forming the product as recited by present claim 16 is rendered obvious. Furthermore, since the combination of Rodgers and Diamante discloses a method only comprising of the cutting, the obtaining, the mixing, the heating, and the forming processes recited by present claim 16, the prior art also renders a method consisting of these steps as recited by present claim 51 obvious.
Regarding claim 30, modified Rodgers discloses the invention as described above in claim 16, including the first and second types of fresh food may be the same type of fruits (corresponding to single fruit leathers) (Diamante, pages 3-4, Table 1).
Regarding claims 39 and 50, Rodgers discloses the invention as described above in claim 16, including the inclusion of chili onto the fruit bar (page 2, 4th paragraph). Therefore, the combination of Rodgers and Diamante discloses that the formed food product consists of the first mixture comprising the first and second types of fresh fruits; and the at least one additional ingredient in the form of chili (Rodgers, page 2, 3rd – 4th paragraphs; page 2, 2nd photo) as recited by present claims 39 and 50.
Regarding claims 46 and 47, modified Rodgers discloses the invention as described above in claim 16, including dehydrating a fruit mixture by heating the mixture in an open vessel (corresponding to tray); and evaporating water from a fruit mixture using a hot water bath (Diamante, page 6, column 1, 2nd paragraph). Since modified Rodgers discloses heating the mixture to dehydrate the mixture, modified Rodgers renders heating the mixed first mixture in an open vessel and heating the mixed first mixture in a hot water bath as recited in present claims 46 and 47 obvious.
Regarding claim 49, Rodgers discloses the invention as described above in claim 16, including that the formed food product consists of the first mixture comprising the first and second types of fresh fruits; and not the at least one additional ingredient (page 2, 3rd paragraph; page 2, 2nd photo).
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claims 16, 24, 30, 34, 39, 41, and 44-51: Applicant amended claim 16 to fully address the rejection; therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 16, 24, 30, 34, 39, 41, and 44-51 over Seasoned, Rodgers, and Diamante: Applicant’s arguments and amendments have been fully considered and the amendments are considered to overcome the rejections over the combination of Seasoned, Rodgers, and Diamante. However, upon further consideration, the claims are rejected either by Eisner or the combination of Rodgers and Diamante.
Applicant amended claim 16 to remove limitations that were not disclosed in the provisional application filed 01/15/2016. Applicant then argued that Seasoned did not qualify as a prior art reference as amended claim 16 now has a priority date of 01/15/2016 which precedes the priority date of Seasoned (Applicant’s Remarks, page 10, 2nd paragraph – page 11, 1st paragraph).
Claim 16 and dependent claims 30, 45-47, 49-51, and 54 recite features which were disclosed in the provisional application filed 01/15/2016. Therefore, these claims have a priority date of 01/15/2016. However, dependent claims 24, 34, 39, 41, 44, 48, 52-53, and 56 have features which were not disclosed in the provisional application filed 01/15/2016, but were disclosed in the international application filed 01/13/2017 (e.g., specific heating time of about 4 hours to about 20 hours; the second food is a paste; the additional ingredient is cinnamon or cereal). Therefore, these claims (and claim 16 when discussing these claims) have a priority date of 01/13/2017. However, Seasoned is no longer cited as prior art in the rejections of any of the present claims.
Applicant then argued that Seasoned fails to disclose a method for preparing a formed food product consisting of a mixture of cut pieces of a first type of fresh food and a paste of a second type of fresh food not previously dried as recited in new claim 57. Applicant argued that Seasoned does not mention fresh fruit not previously dried as its disclosures regarding not heating the fruit or smooshing fruit types together while wet are not the same thing as the fruit not being previously dried. Applicant argued that not previously drying the first and second types of fresh food is fundamental to the claimed method (Applicant’s Remarks, page 11, 2nd paragraph – page 12, 2nd paragraph).
However, Seasoned is no longer cited as prior art in the rejections of any of the present claims; therefore, Applicant’s arguments directed towards Seasoned are moot. In response to the assertion that not previously drying the first and second types of fresh food is fundamental to the claimed method, Examples 1-3 of the present specification provide samples comprising a combination of dehydrated fruit (i.e., fruit that has been previously dried) and a paste (i.e., Fruit 1 and Fruit 2 in the tables); and samples comprising a combination of fresh fruit and a paste (i.e., Fruit 3 in the tables). The specification does not allege unexpected results in any of the examples; or allege criticality for any feature recited in present claim 57. Mere conclusory statements of criticality in Applicant’s Remarks, unsupported by factual evidence, are of little probative value. The burden is on the Application to establish results are unexpected and significant and that those results are a consequence of a feature of the claimed invention in order to assert criticality of that feature. MPEP 716.02(b).I.
Applicant then argued that Rodgers does not disclose cutting as the method of obtaining its “bits of fruit” (Applicant’s Remarks, page 12, 3rd paragraph).
However, as described above in the rejection of new claim 57 over Rodgers and Diamante, Rodgers discloses that its fruit bar comprises discrete pieces of fruit (page 2, 3rd paragraph; page 2, 2nd photo), but does not disclose a method of producing the discrete pieces of fruit. Therefore, a skilled practitioner would have been motivated to consult an additional reference such as Diamante in order to determine a suitable method of producing discrete fruit pieces. In consulting Diamante, the practitioner would find Diamante discloses cutting as a method of producing discrete pieces of fruit (corresponding to cutting fruit into halves, dices, pieces) (page 2, column 2, 2nd paragraph; page 7, 2nd paragraph), thereby rendering the claimed cutting of the fruit to obtain discrete fruit pieces obvious and rendering Applicant’s arguments directed to such a feature unpersuasive.
Applicant then argued that Rodgers suggests adding an additional ingredient to an already formed bar while present claim 57 requires the additional ingredient be added to the first and second types of food during the mixing step of the claimed method instead of being added to an already formed bar (Applicant’s Remarks, page 12, 4th paragraph).
However, the Examiner points out that claim 57 recites that the formed food product consists of (1) a mixture of a first and a second type of fresh food; or (2) a mixture a first and a second type of fresh food and an additional ingredient. The rejection of new claim 57 is based on option (1) wherein the formed food product consists of a first and second type of fresh foods, which is specifically disclosed in Rodgers (page 1, photo; page 2, 1st photo). Therefore, Rodgers at least suggests a step of mixing two fruits, thereby rendering Applicant’s arguments directed to such a feature unpersuasive.
Applicant then argued that Rodgers does not disclose the specific claimed method steps as “bits of fruit bound together by their natural syrupy goodness” recited in Rodgers does not imply a mixture of a first type of fresh fruit embedded in a paste of a second type of fresh food as presently claimed. Applicant argued that the “syrupy goodness” recited in Rodgers may comprise both fruits (Applicant’s Remarks, page 12, 5th paragraph – page 13, 1st paragraph).
However, as described above in the rejection of claim 57 over Rodgers and Diamante, Rodgers discloses that its fruit bar comprises discrete pieces of fruit and a liquid from fruit (page 2, 3rd paragraph; page 2, 2nd photo), but does not disclose a method of producing the discrete pieces of fruit or a specific liquid with which to form a fruit bar. Therefore, a skilled practitioner would have been motivated to consult an additional reference such as Diamante in order to determine a suitable method of producing discrete fruit pieces and a suitable liquid for producing a fruit bar. In consulting Diamante, the practitioner would find that fresh fruit not previously dried and fruit paste (corresponding to fruit puree) are suitable for making food bars, thereby rendering a first type of fresh fruit embedded in a paste of a second type of fresh food obvious and rendering Applicant’s arguments directed to such a feature unpersuasive. Furthermore, from the combined teachings of Diamante and Rodgers, the practitioner would find that fruit pieces and fruit paste are both suitable ingredients for a fruit bar as recited, especially wherein “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. MPEP 2144.06.I.
Applicant then argued that Diamante discloses that traditional fruit leathers are prepared by mixing fruit puree and additives such as sugar, pectin, acid, and glucose syrup. Applicant argued that these additives would affect the water activity of the product, thereby requiring modification of the conditions required for obtaining the final product. For this reason, Applicant argued that the conditions disclosed by Diamante could not be applied to a fruit bar that is void of additives without the burden of further experimentation (Applicant’s Remarks, page 13, 2nd-3rd paragraphs).
However, Diamante disclose that its process is used whether additives are included in the product or not (corresponding to the optional inclusion of additional ingredients) (page 2, Fig. 1). The present claims do not mention water activity at all, and thus do not require the product to have any particular water activity. Therefore, there is no need to modify the method of Diamante to obtain a specific water activity; as such, Applicant’s arguments directed to modifying the method of Diamante to manipulate water activity are moot. Since Rodgers and Diamante have been shown to render the features of present claim 57 obvious and Applicant’s arguments have been shown to be moot or unpersuasive, the rejection of claim 57 stands as written herein. The rejections of claim 16 and its dependents stand as written herein.
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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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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