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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/26/2025 has been entered.
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.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. (US 2016/0107780 A1) in view of Kleemola et al. (US 2005/0137803 A1), Drunen et al. (US 6,572,915 B1), Shim et al. (US 6,770,313 B2), Cheatsheet NPL, Spiralizer NPL, Ni (US 6,367,371 B1), and Cao (US 2011/0300260 A1). Agronomy NPL is relied on as evidence.
The limitation “including” recited as the transitional phrase throughout the claims, unless otherwise stated, is interpreted to mean “comprising” since the disclosure does not appear to indicate the use of closed language.
The limitation “packaging machine” is given its broadest reasonable interpretation to mean any device known in the food art to package foods.
Regarding claim 17, Carre et al. teaches a method for preparing frozen food packages (abstract), 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”, and inserting the packets into respective secondary packages comprising box-shaped bodies made of cardboard (paragraph 46).
Carre et al. does not teach obtaining vegetables by an agronomic method including cultivating said vegetables and verifying that said cultivated vegetables contain a residue of pesticides lower than a preset threshold of 0.01 mg/Kg and subsequently harvesting said vegetables containing the said residue of pesticides lower than the threshold. The term “agronomic” is not defined by the specification, and is therefore interpreted to be directed to “agronomy”, defined as “a branch of agriculture dealing with field-crop production and soil management” by Agronomy NPL.
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 obtain vegetables by an agronomic method including harvesting produce which has been cultivated and verified to contain a pesticide residue below a threshold value 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.
Carre et al. does not teach washing the harvested vegetables to eliminate residues of earth or of substances and materials which have accumulated during harvest.
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). Since the pesticide removal step of Shim et al. is an extension of the field-crop production process, said step is construed to be included in an “agronomic method”.
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 wash the vegetables of foreign residues since doing so is known for processing agricultural foods, since the prior art has recognized that it is desirable to minimize/eliminate pesticides present within food products as stated above, where portions of the vegetables may include deviations from the measured results (e.g., an untested portion of the produce may have intentionally been exposed to pesticides), and therefore to provide further means for ensuring each and every vegetable used in the process does not contain pesticides, and to eliminate other undesirable and inedible components present on the vegetable (e.g. dirt, dust, other chemicals) which may have accumulated during harvest and transport.
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 at the time of the 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, to enhance visual appeal (e.g. external portions can be scarred, bruised, or have some other defect), and to obtain a product having desired flavor a texture.
Carre et al. does not teach cutting the washed and mechanically treated vegetables into strips having the claimed width and thickness, the strips having a long pasta format through the use of a cutting device that operates by executing a circular cutting action on the vegetable to create the strips, the pasta shape chosen from spaghetti, tagliatelle, and pappardelle.
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 (page 2).
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 cut the vegetables into strips having the claimed pasta shape as claimed 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 manufacturing preference, and since the prior art acknowledges devices which can execute circular cutting actions to form strips, and therefore to facilitate manufacture of said strips.
Regarding the claimed dimensions, it would have been similarly obvious to use the claimed values since there is no evidence that the dimensions 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 then air-drying the vegetable strips, and dividing the vegetable 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 at the time of the 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. does not teach flavoring the vegetable strips by adding at least one fresh and non-frozen condiment in liquid form to flavor said strips. Examiner notes 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.
Cheatsheet NPL further teaches the carrot strips are combined with olive oil and salt (page 6 “directions”), which would have necessarily flavored the strips.
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 flavor the strips by combining with a fresh and non-frozen condiment since the process of imparting flavor onto food products is well known and commonly practiced in the art, and therefore to combine prior art elements according to known methods to yield predictable results, and to impart a desired flavor profile based on factors such as the type of dish being made, consumer preferences, and dietary restrictions.
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 at the time of the 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 since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as those stated above, and to ensure the food is sufficiently frozen within a reasonable amount of time.
Claims 18, 20 and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. in view of Kleemola et al., Drunen et al., Shim et al., Cheatsheet NPL, Spiralizer NPL, Ni, and Cao as applied to claim 17 above, and further in view of Kress et al. (US 6,177,113 B1).
Regarding claim 18, Carre et al. does not teach checking for foreign objects inside the containers using a metal detector or an X-ray detector prior to freezing.
Kress et al. teaches a method for processing food product (abstract) comprising passing food product, after final packaging, through metal detection equipment or X-ray equipment, and discarding any container in which metal is detected (column 4 lines 17-30). The reference is analogous since it is directed to processing and packaging of food products and reasonably pertinent to the problem with which the inventor was concerned i.e., detection of foreign materials in the food (column 4 lines 9-16).
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 check for foreign objects using a metal or X-ray detector since doing so is known in the art, and to remove packages which contain metals to ensure product safety and quality.
Regarding claim 20, Carre et al. teaches vacuum packaging the combined vegetables and condiment in vacuum wrapped food trays using a suitable vacuum packaging device (paragraph 47).
Regarding claim 33, 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 34 is rejected under 35 U.S.C. 103 as being unpatentable over Carre et al. in view of Kleemola et al., Drunen et al., Shim et al., Cheatsheet NPL, Spiralizer NPL, Ni, Cao, and Kress et al as applied to claims 17-18 and 20 above, and further in view of Nilsson et al. (US 6,183,789 B1).
Regarding claim 34, the combination applied to claim 20 teaches adding a condiment in the form of a frozen pellet as stated for said claim.
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 at the time of the 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.
Response to Arguments
Applicant's arguments filed 11/26/2025 have been fully considered but they are not persuasive.
Applicant states that the prior Office Action references Applicant’s arguments from 4/11/2024, and requests the arguments from 12/19/2024 to be considered.
The prior Office Action erroneously recited the arguments were directed to the response filed 4/11/2024. The contents of the response to arguments (see items 49-57) were directed to the Applicant’s arguments filed 12/19/2024, and therefore said arguments have been considered. The responses to said arguments are incorporated herein by reference.
Applicant argues the proposed combination does not teach or disclose the steps of “obtain vegetables by an agronomic method…after first obtaining vegetables”, where Kleemola is not directed to vegetables or preparing cut and frozen edible food vegetables, and one of ordinary skill in the art would appreciate that methods relied upon to test pesticide residue in oats would not necessarily take into consideration or apply to cultivating, harvesting, and washing vegetables.
This is not persuasive since the reference is relied on to show that the prior art recognizes a method and system for determining pesticide factors related to agricultural produce, where the produce is tested for pesticides and the result of unacceptably high residues is used to make a determination with respect to harvesting. One of ordinary skill in the art would have reasonably expected that methods directed to agricultural produce can be transferred to a specific type of produce such as vegetables. It is noted that agricultural produce is necessarily “cultivated”.
Further, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Kleemola is in the field of inventor’s endeavor since it is directed to treatment of edible produce, and reasonably pertinent to the problem with which inventor was concerned since it teaches using measured pesticide levels to determine whether or not the produce should be harvested.
Applicant argues one of ordinary skill would not rely on Kleemola that relates to oats, where the claimed invention specifies that the harvest takes place when the vegetables have matured, after a verification of residues meet the set minimum amount, which ensures the food product provided is of “an extremely high quality with improved nutrition and safety for human consumption”.
This is not persuasive since the feature upon which applicant relies (i.e., “harvest takes place when the vegetables have matured) is not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). There is no recitation of the vegetables being harvested when “matured”, only that the vegetables are “[obtained] by an agronomic method including cultivating said vegetables and verifying that said cultivated vegetables contain a residue of pesticides lower than…0.01 mg/Kg.”
Further, there is no evidence of record to support the argument. See also MPEP 716.01(c) II. The features of the claimed method are all recognized by the prior art, and the cited references provide motivation to modify the process of Carre et al. as stated in the Office Action above. Absent evidence of unexpected results, one of ordinary skill in the art would have expected the product from the method of the prior art combination to exhibit the same features argued by applicant i.e., of “an extremely high quality with improved nutrition and safety for human consumption.”
Applicant argues Drunen teaches away from the claimed invention since the reference is directed to selectively extracting antioxidants and other useful natural products from agricultural waste and returning them to the food product. One of ordinary skill would not turn to Drunen as the method disclosed by the reference does not correspond to Applicant’s method steps.
This is not persuasive since the reference is relied on to show that crops can be grown without the use of pesticides, where reduction of pesticide residue is desired in order to minimize risk to the consumer. While the reference is not directed to treatment of vegetables per se, there is nothing in the reference that one skilled in the art would consider teach away from modifying the process of Carre et al. to similarly reduce pesticide residues below the claimed target value.
The combination applied to claim 17, including Kleemola and Drunen, therefore teaches and motivates one of ordinary skill in the art to cultivate vegetables and verify said vegetables contain a residue of pesticides below a threshold, harvesting the vegetables after verification, and washing the harvested vegetables (as taught by Shim et al.) as argued.
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.
Applicant argues conventional methods, such as those cited in the prior art rejection, risk pesticides entering into the vegetables to obtain functionality, where one of ordinary skill in the art would not rely on the combination to result in the claimed method, and a skilled artisan would not rely on the process of Drunen as the modification would render the combination inoperable for its intended purpose.
This is not persuasive since Applicant has not submitted evidence to support the argument that chemical systemic treatments are known to cause pesticides to enter inside the vegetables to obtain functionality, see also MPEP 716.01(c) I.-II. Further, the entire process of Drunen is not incorporated into the prior art combination, nor is Carre modified to include the argued features. Rather, Drunen is relied on to show that it is desirable to minimize pesticides in crops as stated above. Carre is only modified such that the vegetables are cultivated and harvested either without pesticides, or when pesticides are below a threshold level as taught by Kleemola.
Applicant argues external washing of vegetables is not an initial step in the claimed method, and requires a first step of “obtaining vegetables…0.01 mg/Kg,” where the edible food product of the claimed method is of an extremely high quality with improved nutrition and safety for human consumption, said feature not taught by any of the cited documents.
This is not persuasive for the same reasons stated above, particularly since there is no evidence of record to support Applicant’s argument. Furthermore, Shim is not relied on to teach the overall process. Rather, Carre teaches treating vegetables to form frozen food packages, where the “first step” of the process would have necessarily been “obtaining vegetables…” The prior art combination applied to claim 1 renders obvious the features of “agronomic method…cultivating said vegetables and verifying…pesticides lower than a preset threshold of 0.01 mg/Kg” for the reasons explained above and for the rejection of claim 17.
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).
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).
Applicant’s arguments against the dependent claims and their respective additional references are not persuasive for the same reasons stated above.
Conclusion
THIS ACTION IS MADE FINAL. 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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/BRYAN KIM/Examiner, Art Unit 1792