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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
Regarding claim 1, in line 1 delete “cut and frozen” since the body of the claim recites the respective steps. The limitation is therefore not necessary to be present in the preamble, and the language would better match “washing the vegetables” in line 4.
In line 5, after “materials which” delete “may” since the term does not significantly add to the limitation, and to place the claim in better form.
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 18, 20, 33-34 and 39 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 claim 18, the limitation “includes a substep of adding at least one pellet containing a precooked and frozen condiment configured to flavor said strips to said portions of strips” renders the claim indefinite since claim 17 recites the transitional phrase “consisting of” with respect to “the method” as a whole.
MPEP 2111.03 II. recites “The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931); Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948)” and “A claim which depends from a claim which "consists of" the recited elements or steps cannot add an element or step.” Accordingly, “the method” of claim 17 is limited only to the elements and steps recited therein. It is therefore unclear if the limitation of claim 18 is actually required by the method.
Regarding claims 20, 33-34, and 39, the respective claims each introduce elements and/or steps not recited in claim 17. The claims are rendered indefinite for the same reason stated for claim 18.
Further regarding claim 39, the antecedent basis of the recited steps is ambiguous since it is unclear if “verifying vegetables…” and “harvesting the vegetables…” are directed to the vegetables of claim 17 before the “washing” step, or to other vegetables unrelated to that of claim 17.
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 17 and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. (US 2016/0107780 A1) in view of Shim et al. (US 6,770,313 B2), Cheatsheet NPL, Spiralizer NPL, Ni (US 6,367,371 B1), and Cao (US 2011/0300260 A1).
Regarding claim 17, Carre et al. teaches a method for preparing frozen food packages (abstract), where the food includes cooked food, comprising a food assembly 16 including pieces 20 of vegetables and spices (figure 1; paragraph 19), combining the vegetables with a secondary food such as broth or sauce and freezing (paragraphs 20 and 25), packaging the combined vegetables and condiment in vacuum wrapped food trays using a suitable vacuum packaging device (paragraph 47), the wrapped trays construed to be a type of “packet”.
Regarding the limitations followed by the term “optionally”, the limitations are construed to be not required by the claimed method.
Carre et al. does not teach washing the harvested vegetables to eliminate any residues of earth or of other substances and materials which have accumulated during harvest. The limitation is given its broadest reasonable interpretation in view of the specification to mean the washing occurs until the surface of the vegetable is sufficiently clean of foreign materials as is understood in the art.
Shim et al. teaches a process preparing vegetables (abstract), comprising washing the vegetables in a rotary tumbler washer for 1-5 minutes removes pesticides to a point at which the pesticides cannot be detected (column 7 lines 11-30). The step also serves to wash the vegetables and eliminate any grit and foreign materials (column 4 lines 55-59; column 7 lines 1-2). The vegetables are “fresh” i.e., received recently after harvest (column 1 lines 14-20; column 6 lines 45-47).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to wash the vegetables of foreign residues since doing so is known for processing agricultural foods, since pesticides are recognized to be undesirable for consumption, to prevent contamination and for consumer safety, and to similarly eliminate other undesirable and inedible components present on the vegetable surface.
Carre et al. does not teach subjecting the vegetables to mechanical treatment to isolate components configured to be edible.
Cheatsheet NPL teaches vegetables can be used as a pasta substitute, since pasta isn’t always “the healthiest choice”, and also serves as a gluten-free option (pages 2). The reference further teaches carrots, where the skin is peeled and discarded (page 6 “directions”). The peeling is construed to be a type of “mechanical treatment to isolate components configured to be edible” as claimed.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to subject the vegetables to mechanical treatment since the reference already suggests sizing the food i.e., “pieces 20 of vegetables” (paragraph 19), in order to similarly remove undesired portions, since removing undesirable portions is commonly practiced in the art, and to enhance visual appeal (e.g. external portions can be scarred, bruised, or have some other defect).
Carre et al. does not teach cutting the vegetables into strips having the claimed width and thickness through the use of a cutting device to result in the claimed formats. It is noted the “long pasta format” recited in the preamble to construed to be the strips having the recited dimensions.
Cheatsheet NPL teaches mechanical treatment of vegetables in order to provide a healthier and gluten-free alternative to pasta as stated above.
Spiralizer NPL teaches a device for cutting vegetables into noodle-like shapes including “spaghetti like strands” and “long ribbons” i.e., tagliatelle or pappardelle format (page 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to cut the vegetables into strips having the claimed pasta format since the reference already suggests sizing the food as desired (paragraph 19), since the prior art acknowledges vegetables can be sized to resemble pasta as taught by Cheatsheet NPL, where the particular shape would have been a matter of preference based on factors such as type of pasta/dish being made, desired visual appeal, and texture.
It would have been similarly obvious to use the claimed dimensions since there is no evidence that the ranges are critical or yield unexpected results, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as type of pasta/dish being made, desired visual appeal, and texture.
Carre et al. does not teach steam-cooking the strips, air-drying the strips, and dividing the strips into portions corresponding to a preset quantity.
Ni teaches a method for producing a pre-cooked vegetable (column 1 lines 5-8), where the food is steam cooked (column 3 lines 58-61), air dried (column 4 lines 36-37 and 47-49), and packaged by dispensing a predetermined amount into the packaging (column 4 line 66 to 5 line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to steam cook and air dry the vegetable strips since the reference already teaches cooking the vegetables (paragraph 19) but does not specify how, and therefore to apply a known method of pre-cooking vegetables, to ensure the product is uniformly and sufficiently heated for optimal flavor and texture, and to obtain a desired moisture level for optimal texture and shelf life.
It would have been further obvious to divide the strips into portions corresponding to a preset quantity since Carre et al. already contemplates portioning the food (paragraph 28), since the process is commonly practiced in the food packaging art, and in order to ensure consistency between each package.
Carre et al. teaches the packaged product is shipped to stores or other establishments while frozen, and can also be displayed in a freezer (paragraph 34), but does not teach freezing the packaged portions to the claimed temperature range.
Cao teaches a method for making frozen food (abstract) including vegetables (paragraph 28), where the vegetables are sealed in a package and quick frozen (paragraph 32). The reference further teaches that a general process for preparing food includes quickly cooling and freezing to a temperature of -18 to -60oC, thereby forming fine and uniform ice crystals which facilitate preservation of texture and quality (paragraph 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to freeze the portioned vegetables to the claimed temperature range since the prior art acknowledges an overlapping temperature range for quick freezing, in order to control ice crystal formation for preserving texture and quality, since there is no evidence of criticality or unexpected results associated with the claimed feature, and therefore since the claimed values would have been used during the course of routine experimentation and optimization procedures due to the above stated factors.
Regarding the claimed method “consisting of” the recited steps, Carre et al. teaches a generic process for manufacturing cooked and frozen vegetables as stated above. The cited prior art teaches the claimed steps for preparing vegetables not disclosed by Carre et al., where one of ordinary skill would have been motivated to modify the process of Carre et al. based on the disclosed advantages. Additionally, Carre et al. does not particularly limit or otherwise require features not encompassed by claim 17. Applicant has not shown persuasive evidence that the particular combination of processing steps yields unexpected results. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to include only the features recited by claim 17 for the all the reasons stated above.
Further, the prior art recognizes substituting pasta with vegetables that have been treated to resemble various types of pasta as taught by Cheatsheet NPL. The modification applied above similarly substitutes the overall product of Carre et al. to be a pasta-like dish containing the respectively processed vegetables.
Regarding claim 33, it is unclear if the claimed limitation is actually present in the method as explained for the rejection under 35 USC 112(b) or second paragraph above. For the sake of examination however, the limitation is construed to be present.
Carre et al. teaches vegetables, and Cheatsheet NPL as applied to claim 17 above teaches the strips can be made from vegetables such as carrots.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. in view of Shim et al., Cheatsheet NPL, Spiralizer NPL, Ni, and Cao as applied to claim 17 above, and further in view of Nilsson et al. (US 6,183,789 B1).
Regarding claim 18, it is unclear if the claimed substep is actually present in the method as explained for the rejection under 35 USC 112(b) or second paragraph above. For the sake of examination however, the substep is construed to be present.
It is noted the term “condiment” is not defined by the specification, and is therefore given its broadest reasonable interpretation to include any edible substance known to impart flavor to foods.
Carre et al. teaches adding a precooked condiment (paragraph 20), but does not teach a substep of adding at least one pellet containing the precooked and frozen condiment configured to flavor said strips to said portions of strips.
Carre et al. teaches vacuum packaging the combined vegetables and condiment in vacuum wrapped food trays using a suitable vacuum packaging device (paragraph 47).
Nilsson et al. teaches a method for making a steamable pouch meal (abstract), including vegetables (column 3 lines 40-43), where sauce or liquid seasoning is added in the form of frozen pellets (column 3 lines 6-9; 17-20), the seasoning comprising herbs (plants) and oil (column 4 lines 4-7), and the sauce including cheese, tomato sauce (plants), and meat (column 4 lines 8-14).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. such that the packaging step includes a substep of adding at least one pellet containing a precooked and frozen condiment since the prior art acknowledges the process for flavoring packaged vegetables, since there is no evidence of criticality or unexpected results associated with the claimed feature, and therefore to combine prior art elements according to known methods to yield predictable results, to provide additional and/or a variety of flavorings to the vegetables as desired, and to provide a food product having a desired nutritional content.
Claims 20 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. in view of Shim et al., Cheatsheet NPL, Spiralizer NPL, Ni, Cao, and Nilsson et al. as applied to claim 18 above, and further in view of Bouraoui et al. (US 2008/0317920 A1).
Regarding claim 20, it is unclear if the claimed limitation is actually present in the method as explained for the rejection under 35 USC 112(b) or second paragraph above. For the sake of examination however, the limitation is construed to be present.
Carre et al. teaches inserting the packets into respective secondary packages comprising box-shaped bodies made of cardboard (paragraph 46), but does not teach arranging the secondary packaging on a pallet.
Bouraoui et al. teaches a process for making a packaged food product (abstract) comprising various forms of packaging, then palletizing, storage, distribution and consumption (paragraph 69).
It would been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. to arrange the packaging on a pallet since the prior art recognizes the process for manufacturing packaged foods, and to facilitate storage and distribution.
Regarding claim 34, it is unclear if the claimed limitation is actually present in the method as explained for the rejection under 35 USC 112(b) or second paragraph above. For the sake of examination however, the limitation is construed to be present.
The combination applied to claim 18 teaches sauce including cheese, tomato sauce (plants), and meat as taught by Nilsson et al. (column 4 lines 8-14).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Carre et al. such that the precooked and frozen condiment comprises the claimed components since the prior art acknowledges the process for flavoring packaged vegetables, since there is no evidence of criticality or unexpected results associated with the claimed feature, and therefore to combine prior art elements according to known methods to yield predictable results, to provide additional and/or a variety of flavorings to the vegetables as desired, and to provide a food product having a desired nutritional content.
Claim 39 is rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. in view of Shim et al., Cheatsheet NPL, Spiralizer NPL, Ni, and Cao as applied to claim 17 above, and further in view of Kleemola et al. (US 2005/0137803 A1) and Drunen et al. (US 6,572,915 B1),
Regarding claim 39, it is unclear if the claimed limitation is actually present in the method as explained for the rejection under 35 USC 112(b) or second paragraph above. For the sake of examination however, the limitation is construed to be present. Further, the limitation is construed to be directed to the vegetables subjected to the steps of claim 17.
Carre et al. does not teach verifying that said cultivated vegetables contain a residue of pesticides lower than a preset threshold of 0.01 mg/Kg and harvesting matured vegetables containing said residue of pesticides lower than the threshold.
Kleemola et al. teaches a method and system for determining factors related to agricultural produce (abstract; paragraphs 2-3), where sample data from produce such as oats are tested for pesticides and the results (unacceptably high residues) used to make a determination with respect to harvesting (paragraph 82).
Drunen et al. teaches that crops should be grown without the use of pesticides in order to prevent pesticide residue from passing to the consumer, where it is possible to completely remove all pesticide residue i.e., 0 mg/Kg (column 2 lines 3-10).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Carre et al. to verify a pesticide residue below a threshold value and harvest the matured vegetables when the residue is below the threshold since the prior art recognizes testing produce to determine pesticide content and determining harvesting procedures based on the results of said testing, where it is possible to cultivate produce without pesticides, since certain pesticides are understood to have negative effects in the body and therefore to maximize consumer safety, where it is desirable to minimize/eliminate pesticide residues from passing to the food and consumer, and therefore in order to ensure product and consumer safety by confirming the amount of pesticides present in the produce prior to harvesting. Further, it is well-known in the art to harvest produce that are “mature” in order to obtain a product having optimal/desired characteristics such as flavor, texture, and nutritional profile.
Response to Arguments
Applicant's request for reconsideration of the finality of the rejection of the last Office action (“consisting of” amendment; page 6 of the response filed 4/28/2026) is persuasive and, therefore, the finality of that action is withdrawn. Upon further review however, the feature is obvious in view of the cited prior art.
While the prior art does not explicitly teach a method “consisting of” the recited steps, the method appears to be a combination of processes commonly employed in the art and having well-understood effects on the food being prepared. Applicant has not shown evidence that the specific combination of steps recited by claim 17 obtains results other than those that would have been predicted by the prior art.
The amendment to claim 17 necessitated new grounds of rejection under 35 USC 112(b) or second paragraph.
Applicant argues the claimed method results in a food product requiring only extraction from a freezer and final heating by the consumer, where additional water is not required to be added. Applicant argues this is not possible by the process of Carre since moisture is retained in the strips that is then released when cooked, and the long pasta format advantageously provides a larger surface area than rice.
This is not persuasive since there is no evidence that requiring only extraction from a freezer and final heating by the consumer without additional water is unexpected by the prior art. The argued feature is well-known and commonly practiced for pre-prepared foods. Applicant has not shown data to support the argument that the claimed method results in a product that is any different from those known in the art. Regardless, Carre et al. teaches “the consumer is able to place package 10 while still frozen directly into a standard or microwave oven…and cook food assembly 16 within bag 12” (paragraph 35). Further, Carre is modified such that the food product is a vegetable pasta as stated for claim 17. Since the food product material appears to be the same as that of the claimed material, one of ordinary skill would have expected similar results during cooking.
Applicant argues Applicant’s claimed method does not add water due to the “consisting of” limitation, and instead the water naturally contained in the vegetable is released upon heating.
This is not persuasive since the claim language does not indicate to one of ordinary skill in the art that added water is excluded. The method recites “steam-cooking” and includes the optional step of “adding…at least one condiment”. One of ordinary skill would have expected steam-cooking to add at least some water. Likewise, the term “condiment” is not defined, and one of ordinary skill would expect certain condiments to include at least some water (e.g., sauces). While the method may be closed to discreet steps of adding only water, there is no indication that water cannot be added by means such as those stated above.
Regardless, the prior art combination teaches substituting pasta with vegetables that have been treated to simulate pasta. Further, Carre states the liquid 22A “may simply be water or a sauce” (paragraph 21). The “sauce” can be construed as a “condiment” as explained above.
Applicant argues Cheatsheet is silent on how to scale the method to industrial production of a frozen meal.
This is not persuasive since industrial scale manufacture of pre-cooked frozen items is well-known in the art, and Carre already suggests such a scale and packaged frozen precooked meals. While Cheatsheet may be directed to individual meals, there is no evidence of record to indicate that the concept of substituting pasta with vegetables cannot be scaled according to art-recognized methods.
Additionally, MPEP 2144.04 IV.A. states In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) ("mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled." 531 F.2d at 1053, 189 USPQ at 148.).
Applicant argues against various features of Shim, Ni, Spiralizer NPL, Cao, and Nilsson, and argues the references do not teach the claimed method of processing vegetables.
This is not persuasive since the combination of Carre and Cheatsheet NPL already renders obvious frozen vegetables that have been treated to resemble pasta. The cited references are relied on to teach known processing features such as washing, cutting using a particular device, using a frozen pellet as a condiment, and freezing at substantially reduced temperatures. The references also provide motivation to modify the process of Carre accordingly. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Regarding claim 39, the features of said claim are rendered obvious by Kleemola and Drunen (see also response to arguments in the prior Office Action).
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
The cited prior art teaches all the features of the claimed method, and provides motivation for modifying the process of Carre et al. as stated in the prior art rejection above. Applicant has not provided evidence to show that the claimed features are critical or yield unexpected results, nor persuasively shown that Carre et al. cannot be modified in the manner stated above.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant’s arguments against the dependent claims and their respective references are not persuasive for the same reasons stated above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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/BRYAN KIM/Examiner, Art Unit 1792
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