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 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), and Moser et al. (US 7,449,206 B2).
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 (pages 3-4), drying to remove excess moisture (page 5 bottom), and freezing (page 6).
Cauliflower Rice NPL does not specifically 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 (page 4 top).
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 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 in order 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 at the time of the 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 in order to control moisture content (column 4 lines 4-9 and 17-24).
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 to air dry the granules since the process is recognized by the prior art as a method of drying cut vegetable granules, in order to facilitate drying thus increasing process efficiency, since there is no evidence of criticality or unexpected results associated with the claimed feature, and in order to control moisture content 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).
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 to similarly sort the vegetables and freeze to the claimed temperature range in order to similarly ensure the product has ideal flavor, visual appeal, and safety e.g., no discoloration and/or damage, no rotting or other contamination, 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 in order 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., the vibrating the cauliflower prior to, during, 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 at the time of the 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., 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 at the time of the 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 at the time of the 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 at the time of the 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 in order 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 at the time of the 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 stated above.
Response to Amendment
The declaration under 37 CFR 1.132 and associated data filed 9/22/2025 are insufficient to overcome the rejection of claim 18 based upon 35 USC 103 as set forth in the last Office action because:
Applicant states in item 7 that the claimed method results in a food product that has unexpected results of optimal texture and aesthetics including greater crispness, structural firmness, and a more intact and consistent texture than that of Cauliflower Rice NPL. Applicant states in item 10 that cauliflower produced by Applicant’s claimed method (sample 1) exhibits significant differences from that of the standard industrial method (sample 2) and the method taught by Cauliflower Rice NPL (sample 3), citing the associated data in support. Applicant states in items 11-27 that sample 1 exhibits various sensory characteristics which are significantly different from that of samples 2 and 3 based on analysis. The results are obtained from an expert sensory panel (data page 1 “project description”) and in accordance with ISO 13299:2016.
Examiner acknowledges that the data shows a statistically significant difference between samples 1-3. However, it is unclear from the submitted information whether or not the data is commensurate in scope with the process of claim 1. Specifically, the declaration states at item 10 that sample 1 was produced and frozen “according to the method claimed in the instant patent application”. Claim 1 recites multiple ranges for different parameters i.e., a size of 30-60 mm3, immersing and scalding at 75-85oC, and freezing at -18 to -30oC. Neither the declaration nor the data indicate i) which parameters are considered to contribute to the results, ii) which value(s) were selected for each parameter, and iii) if the results are observed over the entirety of the respective ranges. Further, claim 1 recites the cauliflower is chosen among white, green, violet, yellow cauliflower and Romanesco broccoli. There is no indication in the declaration and data which type of cauliflower was used to obtain sample 1. It is unclear if the results are observed across all the claimed types of cauliflower. Furthermore, it is not immediately clear if the sample was obtained using the method of only claim 1, or the method of the dependent claims e.g., vacuum packaging.
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See also MPEP 716.02(d) II.
Further, the data shows at page 2 that sample 1 was produced and frozen “according to the method of PCT/IT2016/000060”. However, the claimed method of the PCT differs from that of the instant application. For example, claim 1 of the PCT does not require the scalding step to be performed “directly after the immersing step” as required by the instant application. Likewise, the PCT as a whole discloses a number of embodiments that are beyond the scope of claim 1 of the instant application, and it is unclear which of said embodiments are considered to be “the method of PCT…”. In view of the declaration stating at item 10 that sample 1 was obtained using the method “claimed in the instant patent application,” the declaration and data are contradictory with respect to the method for obtaining sample 1. One of ordinary skill in the art would not have been able to determine if the results were actually obtained from the method of the claimed invention.
Additionally, it appears that the statistical differences between samples 1-3 would have been expected. Each sample was prepared by different methods using different treatments and conditions. Sample 1 requires washing, heating to a temperature of no more than 85oC for an undisclosed time period, air drying, and freezing at the claimed temperature range. Sample 2 requires heating to a temperature above 90oC for at least 3 minutes. Sample 3 only requires freezing, and does not subject the cauliflower rice to heat and moisture. The effect of heating temperature, duration, and moisture content on organoleptic characteristics of a food product is understood in the art. One of ordinary skill in the art would have expected significant differences in said characteristics between cauliflower rice samples that have been subjected to different conditions and durations of heating, drying, freezing, etc.
Examiner acknowledges that Cauliflower rice NPL does not teach the same process as that of claim 1. However, the prior art rejection relies on Buhler to teach cauliflower pieces blanched for 1-15 minutes at a temperature of at least 80oC, Risler to teach air drying to control moisture content, and Shim to teach sorting and freezing at a temperature of less than -25oC. The submitted evidence does not establish criticality of the claimed ranges as stated above, and the differences between samples 1-3 would have been expected. Therefore, the submitted declaration and evidence is insufficient to establish non-obviousness.
Response to Arguments
The objection and rejections under 35 USC 112(b) raised in the previous Office Action are withdrawn in view of the instant amendments.
Applicant's arguments filed 9/22/2025 have been fully considered but they are not persuasive.
Applicant argues on page 5 that the advantages provided by Applicant’s claimed invention are not possible with the proposed prior art combination, where the claimed method results in a product that has distinctive sensory characteristics from that of Cauliflower Rice NPL on its own and as modified by the cited prior art. Applicant cites the declaration and data in support. Applicant argues on pages 5-6 that each of the recited steps combine to result in unexpected qualities not found in the cited prior art.
This is not persuasive since the submitted evidence only establishes a statistically significant difference between products obtained by alleged claim 1 (sample 1), the standard method (sample 2), and the method of Cauliflower Rice NPL (sample 3). There is no evidence that indicates a comparison was made with a sample obtained from the method of “Cauliflower Rice NPL…and as modified by Buhler, Gillette, Risler, Shim, and Moser” as argued. Regardless, the declaration and data are ineffective to overcome the rejection of record as explained in the response above. It is unclear if the data is commensurate in scope with the method of claim 1, and further unclear if the claimed ranges are critical. While Examiner acknowledges that the results of sample 1 are statistically significant with respect to the argued characteristics, the difference would have been expected since each sample was treated under different heating and processing conditions.
Applicant argues on page 7 that Cauliflower Rice NPL does not teach air drying granules and does not consider how to treat granules that are previously immersed in hot water and scaled with jets of hot water prior to being air dried, Applicant’s claimed method results in a product that is more optimal in taste, appearance, and texture than that of the prior art combination, Applicant’s claimed air drying step is not taught, and the method of the prior art would result in a different food product since the cauliflower was not previously immersed in hot water and scaled with jets of hot water prior to being air dried.
This is not persuasive since the rejection is based on a combination of the cited prior art. 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 in order 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 submitted data is insufficient for one of ordinary skill to determine if the results are observed over the entirety of claimed ranges, and it is unclear which value(s) within the respective ranges were used.
Additionally, the submitted data indicates that the sample obtained by alleged claim 1 has different characteristics than that of samples 2 and 3. However, the difference is to be expected since the samples were prepared using different methods. Applicant attributes the “superior” characteristics of sample 1 to the steps of claim 1. However, Buhler teaches blanching to inactivate enzymes and obtain a desired texture. Active enzymes are also understood to cause chemical changes in the food. Processing conditions such as heating temperature, duration, and moisture content are understood to affect characteristics of the final product. Thus, one of ordinary skill would have reasonably expected a difference in flavor and aroma between blanched and unblanched cauliflower rice, as well as the rice treated by the other claimed steps. The desired characteristics of taste, appearance, and texture would have been obtained through routine experimentation and optimization of the respective processing conditions.
Applicant argues on page 7 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 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 on page 8 that Moser is not in the same field of endeavor as applicant’s claimed invention, and is not reasonably pertinent to the problem to be solved i.e., low organoleptic quality level provided by conventional methods of preparing frozen cauliflower granules of 30 mm3 and 60 mm3.
Examiner’s position from the previous Office Action is maintained and reiterated herein. As previously stated, the reference is in the field of inventor’s endeavor since it is directed to processing food materials, particularly vegetable materials, and is reasonably pertinent to the particular problem with which the inventor was concerned since it discloses vegetable pre-treatment procedures using heated water. Moser teaches multiple types and series of blanching steps is known for treating vegetables, and further teaches blanching can be used for different purposes, such as enzyme inactivation, product cleansing, decreasing microbial load, and preheating the product before further processing (column 6 lines 37-46). Gillette teaches blanching can be performed by a combination of immersion and spraying as stated for claim 1. This suggests to one of ordinary skill that vegetables (including cauliflower granules) can be exposed to a series of different forms of hot water application for desired effects e.g., one to heat the bulk of the granules for enzyme inactivation and one to remove residual substances/microbials on the surface while preventing premature cooling. Applicant adopts a narrow interpretation of the test for analogous art. While Moser may not disclose frozen cauliflower rice granules per se, this feature is already taught by Cauliflower Rice NPL.
Applicant argues on page 8 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 argues on page 9 that Pawlick and Kress fail to remedy the deficiencies of the combination applied to claim 18, and fails to teach or disclose every element of claims 20-22 and 34-35.
This is not persuasive for the same reasons stated above. Pawlick teaches packaged vegetables (abstract; paragraph 53) which are quick frozen prior to packaging in order to control moisture levels and quality (paragraphs 79-80), and adding sauce in the form of frozen, precooked pellets (paragraphs 57-59). Kress teaches packaged food is subjected to metal or X-ray detection equipment and discarding any container from which metal is detected (column 4 lines 17-30). One of ordinary skill would have modified Cauliflower Rice NPL to include the claimed features for the reasons stated for the respective claims.
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