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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/1/2026 has been entered.
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, 20-22 and 34-35 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, in line 3 the limitation “wherein said cauliflower is chosen among white cauliflower…” renders the claim indefinite since the limitation is directed to a Markush grouping but it is unclear if the phrase “is chosen among” means a closed group of alternatives i.e., “consisting of” as required by MPEP 2117. Further, an open list of alternatives is indefinite since it is unclear what other alternatives are intended to be encompassed by the claim, see MPEP 2173.05(h). The rejection may be overcome by amending “chosen among” to instead recite “selected from the group consisting of”.
In lines 6-7, the limitation “parts which are edible” renders the claim indefinite since the distinction between “edible” and “inedible” is unclear. The specification describes “mechanical treatment” (page 4 lines 12-14), but the disclosure does not provide further detail for one of ordinary skill to determine which parts are considered “edible.” This is particularly since one of ordinary skill would expect essentially all parts of a harvested cauliflower to be “edible,” even parts that are not typically consumed. It is unclear which portion(s) of the cauliflower are encompassed by the term “edible.”
In the last line, the limitation “eliminating the presence of clumps or crumbs using a vibrating screen device” renders the claim indefinite since the antecedent basis for “clumps or crumbs” is unclear. Since the claim does not specify the steps are performed in the recited order, it is unclear if the limitation refers to the cauliflower before mechanical treatment, the cauliflower after mechanical treatment, the granules after cutting, the granules after air drying, the granules after sorting, or the granules after freezing. The rejection may be overcome by clarifying which portion of the method is referred to by the limitation in question.
Regarding claim 20, in line 3 the antecedent basis for “said granules” is ambiguous. It is unclear if the limitation refers to the granules after sorting, freezing, or vibrating as recited by claim 18.
In line 4, the limitation “any presence of foreign items inside said containers” renders the claim indefinite since it is unclear what material(s) are encompassed by “foreign items.” It is unclear what the term “foreign” is relative to, and if the term includes all materials other than the cauliflower granules or only specific materials (e.g., metal and plastic pieces).
Regarding claim 21, in line 3 the antecedent basis for “said granules” is ambiguous. It is unclear if the limitation refers to the granules after sorting, freezing, or vibrating as recited by claim 18.
In line 5, the limitation “any presence of foreign items inside said pouches” renders the claim indefinite for the same reasons stated for claim 20.
Claims 22 and 34-35 are rejected by virtue of their dependence on 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.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Cauliflower Rice NPL in view of Buhler et al. (US 5,192,565 A), Gillette (US 2014/0272042 A1), Risler et al. (US 4,946,693 A), Shim et al. (US 6,770,313 B2), Gogins et al. (US 4,647,462 A) and Moser et al. (US 7,449,206 B2).
Citations to Cauliflower Rice NPL are taken from the copy made of record 2/2/2023.
The limitation “cutting device” is given its broadest reasonable interpretation to mean any device known in the food processing art for cutting foods. The limitation “parts which are edible” is interpreted to mean any component which is retained for the process and intended to be consumed.
Regarding claim 18, Cauliflower Rice NPL teaches a method for preparing white cauliflower (page 1) comprising washing the cauliflower, roughly chopping the florets and stalks and discarding the stems and greens, construed to be a mechanical treatment to isolate edible parts (page 3 second paragraph), cutting the cauliflower into granules using a cutting device such as a food processor (pages 3-4), drying to remove excess moisture (page 5 bottom), and freezing (page 6).
Cauliflower Rice NPL does not teach the granules having a size between 30-60 mm3. However, the reference teaches chopping to a size resembling that of rice, without size reducing too much to prevent undesired changes to texture and consistency (page 4).
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 Cauliflower Rice NPL to use the claimed size in order to prevent mashing, since “ricing” cauliflower into small granules is acknowledged by the prior art, and therefore as a matter of manufacturing preference for the particular type of product, since there is no evidence of record indicating the feature is critical or yields 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 desired aesthetics and/or type of the final product, effects on processing steps such as softening, and desired texture/mouthfeel.
Cauliflower Rice NPL does not teach immersing the food in water and scalding with jets of hot water at a temperature between 75-85oC, where scalding occurs directly after immersing.
Buhler et al. teaches a method of heat-treating vegetables by blanching (abstract), comprising cutting cauliflower into pieces of 1-2 cm in size and then blanching for 2 minutes in water at 90oC (column 5 lines 35-38). While the cited embodiment recites 90oC, the reference discloses heat treatment can also be performed for 1-15 minutes at a temperature of 80-95oC, where duration is inversely correlated to temperature (column 2 lines 34-39), and a minimum amount of heating must be performed in order to ensure enzyme destruction and to maintain desired texture (column 2 lines 43-52).
Gillette et al. teaches systems and methods for packaging food products such as vegetables (abstract), where enzymes in the food are deactivated (blanching) by exposing the vegetables to heated water “in any suitable manner” including “a bath of heated water, a high-pressure processing technique employing water, and/or spraying the food product with heated water” (paragraph 19). The reference therefore suggests to one of ordinary skill in the art that blanching can be performed by a combination of immersion and spraying with hot water, construed to be “scalding with jets of hot water”. The reference further teaches heating to deactivate enzymes by raising the internal temperature of the vegetable to about 170oF/76.7oC (paragraph 20).
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 Cauliflower Rice NPL to immerse the granules in hot water and then spray the granules after the immersion step at the claimed temperature range since the prior art recognizes blanching cauliflower using hot water and a series of blanching steps using immersion and spraying jets for applying the hot water to the granules, in order to deactivate undesired enzymes, to facilitate removal of undesired substances (e.g., excess starch, dirt, pesticides) retained on the surface of the food, thereby ensuring product safety and quality, to facilitate uniform distribution of heat transfer to the granules, since applicant has not provided persuasive evidence to show criticality or unexpected results associated with the claimed feature, and since the claimed temperature values would have been used during the course of routine experimentation and optimization procedures due to factors such as degree/rate of enzyme inactivation and texture.
Regarding scalding being performed directly after immersing, the combination applied above teaches washing and applying hot water jets as claimed. While the prior art does not explicitly teach the step of applying the jets directly after immersing, there is no evidence of record to indicate that this feature is critical or yields unexpected results. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Cauliflower Rice NPL such that the scalding is performed directly after immersing as a matter of manufacturing preference, and/or to remove excess material such as starch, water, or preservatives while maintaining a sufficient temperature for blanching to take effect.
Cauliflower Rice NPL teaches drying the granules, but does not specify that the drying is by “air drying”.
Risler et al. teaches a method for preparing vegetables comprising washing and cutting into cubes of 3-10 mm (column 3 lines 31-34), blanching, and then drying in a continuous hot air drier to control moisture content (column 4 lines 4-9 and 17-24) and water activity for bacteriological stabilization (column 3 lines 1-2).
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 Cauliflower Rice NPL to air dry the granules since the process is recognized by the prior art as a method of drying cut vegetable granules, to facilitate drying thus increasing process efficiency, since there is no evidence of criticality or unexpected results associated with the claimed feature, and to control moisture content and water activity of the granules based on intended application, texture/mouthfeel, and/or preservation.
Cauliflower Rice NPL does not teach manual sorting of granules and the freezing temperature being -18 to -30oC.
Shim et al. teaches a process preparing vegetables (abstract) comprising washing the vegetables to remove dust, foreign materials, and pesticides adhering to the surfaces of the vegetables (column 4 lines 55-59) prior to cutting (column 5 lines 7-8), screening (manual sorting) vegetables which have good color, flavor, and are not damaged by insects (column 4 lines 47-48), and deep-freezing at temperature of less than -25oC (column 6 lines 15-16).
Gogins et al. teaches a frozen cauliflower product (abstract) comprising subjecting mechanically treated cauliflower to size reducing, washing, and blanching, then inspecting (manually sorting) followed by freezing (column 3 lines 25-36).
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 Cauliflower Rice NPL to similarly sort the vegetables and freeze to the claimed temperature range to similarly remove portions with undesirable characteristics, and to ensure prolonged preservation. Furthermore, screening after cutting would have been readily obvious since selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results, In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946), and in order to do a “final check” to ensure no undesirable portions are packaged.
Cauliflower Rice NPL does not teach using a vibrating screen device to eliminate the presence of clumps or crumbs. It is noted that the limitation does not require the “eliminating” step to be performed at any particular point in the claimed method, nor that the step is applied to the granules per se. Therefore, the “eliminating” step is construed to be performed at any point of the process e.g., vibrating the cauliflower prior to, during, and/or after washing.
Moser et al. teaches a method for processing vegetables (abstract) comprising vibrating screens and a flotation washer used to separate unwanted material, construed to be a type of “crumbs” (column 2 lines 58-60), where vibrating screens can also be used to dewater the vegetable (column 5 line 65 to column 6 line 2) and aid passage of material through the process (column 12 lines 19-23). Moser is analogous since it is directed to similarly treating vegetables, particularly blanching, freezing, and packaging (column 2 lines 61-67).
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 Cauliflower Rice NPL to use a vibrating screen in order to similarly separate unwanted materials (e.g., loose pieces of ice and/or any other contaminants that remain in the vegetable), and as a means for transporting the vegetable through the process. One of ordinary skill in the art would have reasonably expected vibrating the vegetable as taught by the prior art combination to similarly provide a de-clumping effect based on the intensity of the vibrations.
It would also have been obvious to one of ordinary skill in the art to apply the manufacturing features above to the process taught by Cauliflower Rice NPL since such features are known for manufacturing packaged vegetables, in order to automate the manufacturing process, see In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958), thereby increasing throughput and efficiency, and since the prior art already acknowledges pre-made packaged cauliflower is manufactured and commercially available “in the freezer section at many stores” as taught by Cauliflower NPL (page 7).
Claims 20-22 and 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Cauliflower Rice NPL in view of Buhler et al., Gillette, Risler et al., Shim et al., Gogins et al. and Moser et al. as applied to claim 18 above, and further in view of Pawlick (US 2009/0022858 A1) and Kress et al. (US 6,177,113 B1).
The limitation “packaging machine” (claim 20) is given its broadest reasonable interpretation to mean any device known in the food art to package foods. The limitation “a pouch insertion machine” (claim 21) is interpreted to mean any device known in the food art to place foods into a pouch.
Regarding claim 20, the combination applied to claim 18 teaches freezing, but does not specify a packaging machine and freezing prior to packaging.
Pawlick teaches a packaged food (abstract), including vegetables (paragraph 53), where the food can be quick frozen prior to being placed into the packaging in order to control moisture levels and quality, and to prevent the food from becoming soggy or dried out (paragraphs 79-80).
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 Cauliflower Rice NPL to package the granules by using a packaging machine since doing so is known and commonly practiced in the art, since Cauliflower Rice NPL already recites packaging (page 6), to automate a manual activity, for the advantages taught by Pawlick, to maximize efficiency and throughput of the manufacturing process i.e., minimize or eliminate manual labor, and selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.
Cauliflower Rice NPL does not teach checking for foreign objects inside the containers using a detection device. It is noted that “detection device” is given its broadest reasonable interpretation to mean any device known in the food art to detect any desired substance e.g., a metal detector or X-ray detector as recited by claims 34-35.
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 from which metal is detected (column 4 lines 17-30).
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 Cauliflower Rice NPL to check for foreign objects using a metal or X-ray detector since doing so is known in the art, and to remove packages containing metals and/or foreign objects in order to ensure consumer safety and product quality.
Regarding claim 21, the combination applied to claim 20 teaches using a packaging machine and checking for foreign items by using a metal detector. The same combination is applied to claim 21 and would have been obvious for the same reasons stated for claim 20.
Cauliflower Rice NPL does not teach vacuum packaging.
Pawlick further teaches the food is vacuum packed to remove oxygen which causes oxidation and/or degradation of the food, thereby increasing shelf life (paragraph 30), where the food is inserted into a pouch (paragraph 22).
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 Cauliflower Rice NPL to vacuum package the foods using a pouch insertion machine since doing so is known and commonly practiced in the art, since a vacuum packaging machine would have necessarily been required to perform the vacuum packaging step, to reduce oxidation and increase shelf life, to automate a manual activity, and to maximize efficiency and throughput of the manufacturing process.
Regarding claim 22, Cauliflower Rice NPL does not teach adding at least one pellet that contains a precooked and frozen seasoning to season the granules.
Pawlick further teaches adding sauce to the package, where the sauce can be in the form of frozen, precooked pellets (paragraphs 57-59).
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 Cauliflower Rice NPL to include the seasoning as claimed since the reference already teaches wanting to season the cauliflower (bottom of page 6 to top of page 7), since combining seasonings in the claimed form with vegetables in packaging is known, and to similarly provide additional flavor, aroma, moisture, or texture to the product.
Regarding claims 34-35, the combination applied to claims 20-21 above teaches a metal detector or x-ray detector. The same combination is applied to claims 34-35 and would have been obvious for the same reasons.
Response to Arguments
Applicant's arguments filed 6/1/2026 have been fully considered but they are not persuasive.
Applicant argues the prior art rejection is conclusory and unsupported and modifying Cauliflower Rice NPL would still result in a different product than that of the claims since the cauliflower was not previously immersed in hot water and scaled with jets of hot water prior to air drying. Applicant argues the evidence of record indicates unexpected results of sensory and quality characteristics associated with the claimed method, said results nonexistent with the proposed prior art combination.
This is not persuasive since each cited reference provides motivation for modification of Cauliflower Rice NPL. Buhler teaches blanching cauliflower granules for 1-15 minutes at a temperature of 80-95oC to ensure enzyme destruction and maintain desired texture. Gillette teaches blanching can be performed by a combination of heated water bath and heated water spray. Risler teaches vegetables are prepared by washing, cutting, blanching, and air drying to control moisture content. One of ordinary skill in the art would have been motivated to modify the process of Cauliflower Rice NPL to include said steps for the reasons stated for claim 1 above, particularly since Cauliflower Rice NPL does not recite or otherwise indicate that the process cannot include other steps. Further, the evidence of record is insufficient to establish criticality or unexpected results associated with the argued features as stated in the previous Office Action.
Applicant argues that 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 treating cauliflower granules with the steps and conditions claimed by Applicant, provides motivation to combine, and each step is recognized to contribute to characteristics of the final product.
Applicant argues that Examiner has not satisfied the requirement of ascertaining a level of ordinary skill, and that a reference is not considered as falling within inventor’s field of endeavor merely because both relate to the same generic industry.
This is not persuasive for the same reasons stated above. The cited references are not considered to be in the same field of endeavor simply because the references belong to “the same generic industry”. Rather, Moser is analogous since it explicitly teaches processing vegetable materials by blanching, freezing, and packaging (column 2 lines 61-67). Likewise, Buhler, Gillette, Risler and Shim are considered to be analogous prior art since each reference is directed to processing cauliflower and/or vegetable material for packaging and preservation. Since Cauliflower Rice NPL is already directed to preparing and preserving cauliflower granules, one of ordinary skill would have looked to the relevant prior art, such as those cited above, to further enhance quality and preservation.
Applicant’s arguments against the dependent claims are not persuasive for the same reason 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
