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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/15/26 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 24 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement due to the phrase “the pasta product has a pH greater than 6”. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Though the specification teaches pH of greater than 4.5 and/or pH of the blanching water being greater than 6. The specification and drawing are silent to “the pasta product has a pH greater than 6”. The specification and table 14 are silent to a pH of greater than 6 under the concentration and acid types of claim 1 from which claim 24 depends.
Claim 24 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement due to the phrase “the pasta product has a pH greater than 6”. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Though the specification teaches pH of greater than 4.5, the claimed “pH of greater than 6” encompasses pH up to and including pH of 14. The specification and drawing are silent to “the pasta product has a pH greater than 6”.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1, 5-19 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Cherian et al. (WO9909841) in view of Gum et al. (5817356).
Cherian teaches with respect to claim 1, a method of making a shelf stable pasta product comprising the steps of blanching a pasta in acidified water (pg. 3 lines 31-32), the acidified water comprising acid at concentration to achieve a pH of greater than 4.5 (pg. 3 line 34), draining the pasta (pg. 4 line 1 where drying is taken to encompass draining; alternatively pg. 4 line 13 relative removal for dipping), rinsing the pasta (pg. 4 lines 13-15), cooling the pasta (pg. 5 lines 31-32), packaging the pasta in a sealed container (pg. 4 lines 34-35, pg. 5 line 33) and thermal processing the sealed container containing the pasta (pg. 4 lines 35-36) and the pasta product does not have a pH < or equal about 4.5 (pg. 3 lines 35-36), and contains no added acidulants beyond the acids from the blanching step (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36), contains no added stabilizers (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36) and contains no added enzymes (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36).
Cherian teaches examples of food acceptable acids (pg. 3 lines 32-33) for blanching pasta and thus one of ordinary skill in the art would have been motivated to look to the art of known food acceptable acids.
Gum a same acidified pasta product (col. 1 lines 5-6). Gum teaches the acid is any suitable acid for use in food such as citric, fumaric, lactic or malic acid. The acid used must not impart to the pasta a taste which is incompatible with the other components of the product at the desired pH level. Malic acid, lactic acid or citric acid have been found to be particularly well suited for use in acidification of the pasta component (col. 3 lines 1-8).
Thus since Cherian teaches food acceptable acids to accomplish the desired final pH, and since Gum teaches in addition to the same acids listed for example by Cherian (pg. 3 line 32-33), the food grade acid for use further including the option of citric acid (col. 3 line 2 and 6). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute or choose citric acid as the acid which achieves the desired pH for its art recognized and applicants intended purpose of the cooked pasta having a pH of greater than 4.5 as taught by Cherian (pg. 3 lines 35-36) and since Gum teaches citric acid has been found to be particularly well suited for use in acidification of pasta (col. 3 lines 7-9).
Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta. Gum 3:6-8. Thus, a person of ordinary skill in the art would have had a strong motivation to select this particular food acceptable acid. KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.").
With respect to “citric acid as the only acidulant in the acidified water” and “no added acidulants beyond the citric acid”. Cherian teaches the examples of acids in the alternative, i.e. “or”. Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the acid used for acidifying water comprising a single acid for its art recognized purpose of achieving the desired pH of greater than 4.5 as taught by Cherian (pg. 3 lines 35-36) and since Gum teaches citric acid has been found to be particularly well suited for use in acidification of pasta (col. 3 lines 7-9).
Cherian teaches blanching in acidified water to achieve a predetermined product pH. Though silent to the claimed concentration of the acidulant, the concentration of the solute directly affects the final pH by dilution with water. Thus given a desired final pH relative a volume of water and since changing the concentration of the acid doesn’t change the finally desired pH. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach an acid concentration from about .05% w/w to .075 w/w, relative a variable volume of water and a variable amount of acid to achieve a finally desired constant, such as in the instant case achieving a pH merely limited by at least greater than 4.5.
In addition, since Cherian teaches the constant, i.e. pH greater than 4.5 as claimed due to acidified water, since Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta, it is not inventive to discover the optimum or workable ranges of acid concentration relative a volume of water by routine experimentation to achieve a same desired final pH as taught. Such as by adding volumes of acid at the claimed concentration to a defined volume of solution, i.e. water till the final constant as taught by the Cherian is achieved, i.e. an amount of acid at the claimed concentration added to the water to achieve a final desired pH of the pasta as taught.
"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages, such as in the instant case concentration of the acid from about .05% w/w to .075 w/w to achieve a same final pH by substitution of equivalents to achieve a same constant.
Wherein the pasta product contains no sauce or liquid (pg. 4 lines 34-35 no added sauce or liquid to the packaged product).
Wherein the pasta comprises a filled pasta (pg. 3 line 24).
Wherein the pasta comprises at least one of: Semolina pasta, Durum past, vegetable pasta, or combinations thereof (pg. 2 lines 16-20).
Wherein the pasta contains no egg white (pg. 2 line 35- pg. 3 lines 1-2 optional; alternatively pg. 2 line 30 dried yolk not egg white).
Wherein the blanching occurs for about 2.5 to about 25 minutes (pg. 3 lines 28-29).
With respect to claim 15, after the cooling step, coating the pasta with oil (pg. 5 lines 31-32).
With respect to claim 18, wherein the pasta is more resilient to thermal processing, wherein the more resilient is defined as at least one of: more resistant to clumping of the pasta, more resistant to excess starchiness of the pasta, more resistant to matting of the pasta, more resistant to discoloration of the pasta, more resistant to loss of texture of the pasta, compared to shelf-stable, ready-to-eat pasta packaged in brine and having a pH less than or equal to about 4.5 since Cherian teaches a same pasta cooked in acidified water to achieve a pH of greater than 4.5.
With respect to claim 9, though silent to the acidified water has a pH of about 4, Cherian teaches blanching in acidified water to achieve a predetermined product pH. Though silent to the pH of the acidified water, the pH of the acidified water is responsible for achieving the finally desired pH of the product. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach a pH of the acidified water of about 4 to achieve the art recognized and applicants intended purpose of attaining a final pH of the pasta product.
In addition, since Cherian teaches the constant, i.e. pH greater than 4.5 as claimed due to acidified water, since Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta, it is not inventive to discover the optimum or workable ranges of acidified water pH through routine experimentation to achieve a same desired final pH of the product as taught. Such as by adding volumes of acid at the claimed concentration to a defined volume of solution, i.e. water till the final constant as taught by the Cherian is achieved, i.e. an acidified water pH which produces a final product pH greater than 4.5 of the pasta as taught.
"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages, such as in the instant case a pH of the acidified water of about 4 to achieve a same final pH by substitution of equivalents to achieve a same constant.
With respect to claim 11, though silent to the blanching occurs at a temperature in a range of from about 180°F to about 200°F, since Cherian teaches a same blanching water for a same purpose. It would have been obvious to one of ordinary skill in the art at time the invention was filed to teach a temperature which achieves the desired blanching as taught by Cherian (pg. 3 lines 31-32).
Though silent to a second blanching using acidified water, since Cherian teaches a same blanching water for a same purpose. It would have been obvious to one of ordinary skill in the art at time the invention was filed to teach a second blanching which achieves the desired blanching as taught by Cherian (pg. 3 lines 31-32) since the mere scaling up or down of a prior art process capable of being scaled up, or down, if such were the case, would not establish patentability in a claim to an old process so scaled” (see MPEP 2144.04 IV (A)) thereby further ensuring blanching of the product by increasing the number of time the pasta undergoes such.
With respect to claim 13, Cherian teaches a cooling step (pg. 5 line 32), though silent to how the pasta is cooled. It would have been obvious to one of ordinary skill in the art at time the invention was filed to teach submerging the pasta in a cold water bath thus achieving the desired cooling of the pasta as taught by Cherian (pg. 5 lines 31-32)
Though silent to removing the pasta from the cold water bath and allowing excess water to drain off, since Cherian teaches removing the pasta from cooling for packaging. It would have been obvious to one of ordinary skill in the art at time the invention was filed to teach removing the pasta from cooling and allowing excess water to drain, as is notoriously known in the art thus achieving the packaging of the product without water (pg. 5 lines 31-32).
Though silent to the claimed type of energy source, since Cherian teaches a same thermal processing of the package after adding the pasta. It would have been obvious to one of ordinary skill in the art at time the invention was filed to substitute a known type of thermal energy technology which as are notoriously known in the art thus achieving the same taught thermal processing of the packaging of the pasta product (pg. 5 lines 33-35).
Though silent to the flushing the container prior to sealing as opposed to the after sealing, since Cherian teaches a same flushing a package with an inert gas (pg. 5 lines 33-34, lines 9-10). It would have been obvious to one of ordinary skill in the art at time the invention was filed to substitute prior to sealing relative the teachings of Cherian thus achieving the same taught modified atmosphere package (pg. 5 lines 3-35).
Though silent to freezing step prior to the packaging step to freeze the pasta. It would have been obvious to one of ordinary skill in the art at time the invention was filed to freeze the pasta in the instant the pasta is made and packaged at different locations and maintaining the organoleptic properties prior to packaging.
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case.
With respect to claim 19, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach a resting step of at least 7 days, since the pasta product as taught by Cherian has a shelf life of four weeks or longer.
Since Cherian teaches the pasta for consumption. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the pasta is consumed thus achieving the ultimate goal, i.e. eating.
With respect to claim 24, since Cherian teaches a same acidified pasta, since Cherian teaches pH which are preferable. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach a pH of the pasta greater than 6, such as in the instant case the acid used not imparting to the pasta a taste which is incompatible with the other components of the product at the desired pH level is not a controlling factor and since Gum teaches citric acid has been found to be particularly well suited for use in acidification of the pasta component (col. 3 lines 1-8).
Claims 22 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Cherian et al. (WO9909841) in view of Gum et al. (5817356) and Liggett et al. (4898744).
With respect to Independent claim 22, Cherian teaches a method of making a shelf stable pasta product, the method comprising:
blanching a pasta in acidified water (pg. 3 lines 31-32), the acidified water comprising acid at concentration to achieve a pH of greater than 4.5 (pg. 3 line 34),
draining the pasta (pg. 4 line 1 where drying is taken to encompass draining; alternatively pg. 4 line 13 relative removal for dipping),
rinsing the pasta (pg. 4 lines 13-15),
packaging the pasta in a sealed container (pg. 4 lines 34-35, pg. 5 line 33) and
thermal processing the sealed container containing the pasta (pg. 4 lines 35-36)
wherein the pasta product comprises flavoring (pg. 3 lines 4-6) with a pH from 5.38-5.85 (pg. 3 lines 35-36; as high as 5.5), and the pasta contains no added acidulants beyond the acids from the blanching step (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36), contains no added stabilizers (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36) and contains no added enzymes (pg. 2 lines 16-17 without additives; alternatively, relative the packaging step pg. 4 lines 34-36).
Cherian teaches examples of food acceptable acids (pg. 3 lines 32-33) for blanching pasta and thus one of ordinary skill in the art would have been motivated to look to the art of known food acceptable acids.
Gum a same acidified pasta product (col. 1 lines 5-6). Gum teaches the acid is any suitable acid for use in food such as citric, fumaric, lactic or malic acid. The acid used must not impart to the pasta a taste which is incompatible with the other components of the product at the desired pH level. Malic acid, lactic acid or citric acid have been found to be particularly well suited for use in acidification of the pasta component (col. 3 lines 1-8).
Thus since Cherian teaches food acceptable acids to accomplish the desired final pH, and since Gum teaches in addition to the same acids listed for example by Cherian (pg. 3 line 32-33), the food grade acid for use further including the option of citric acid (col. 3 line 2 and 6). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute or choose citric acid as the acid which achieves the desired pH for its art recognized and applicants intended purpose of the cooked pasta having a pH of greater than 4.5 as taught by Cherian (pg. 3 lines 35-36) and since Gum teaches citric acid has been found to be particularly well suited for use in acidification of pasta (col. 3 lines 7-9).
Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta. Gum 3:6-8. Thus, a person of ordinary skill in the art would have had a strong motivation to select this particular food acceptable acid. KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.").
With respect to “citric acid as the only acidulant in the acidified water” and “no added acidulants beyond the citric acid”. Cherian teaches the examples of acids in the alternative, i.e. “or”. Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the acid used for acidifying water comprising a single acid for its art recognized purpose of achieving the desired pH of greater than 4.5 as taught by Cherian (pg. 3 lines 35-36) and since Gum teaches citric acid has been found to be particularly well suited for use in acidification of pasta (col. 3 lines 7-9).
Cherian teaches blanching in acidified water to achieve a predetermined product pH. Though silent to the claimed concentration of the acidulant, the concentration of the solute directly affects the final pH by dilution with water. Thus given a desired final pH relative a volume of water and since changing the concentration of the acid doesn’t change the finally desired pH. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach an acid concentration from about .05% w/w to .075 w/w, relative a variable volume of water and a variable amount of acid to achieve a finally desired constant, such as in the instant case achieving a pH merely limited by at least greater than 4.5.
In addition, since Cherian teaches the constant, i.e. pH greater than 4.5 as claimed due to acidified water, since Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta, it is not inventive to discover the optimum or workable ranges of acid concentration relative a volume of water by routine experimentation to achieve a same desired final pH as taught. Such as by adding volumes of acid at the claimed concentration to a defined volume of solution, i.e. water till the final constant as taught by the Cherian is achieved, i.e. an amount of acid at the claimed concentration added to the water to achieve a final desired pH of the pasta as taught.
"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages, such as in the instant case concentration of the acid from about .05% w/w to .075 w/w to achieve a same final pH by substitution of equivalents to achieve a same constant.
Though silent to the acidified water has a pH of about 4, Cherian teaches blanching in acidified water to achieve a predetermined product pH. Though silent to the pH of the acidified water, the pH of the acidified water is responsible for achieving the finally desired pH of the product. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach a pH of the acidified water of about 4 to achieve the art recognized and applicants intended purpose of attaining a final pH of the pasta product.
In addition, since Cherian teaches the constant, i.e. pH greater than 4.5 as claimed due to acidified water, since Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta, it is not inventive to discover the optimum or workable ranges of acidified water pH through routine experimentation to achieve a same desired final pH of the product as taught. Such as by adding volumes of acid at the claimed concentration to a defined volume of solution, i.e. water till the final constant as taught by the Cherian is achieved, i.e. an acidified water pH which produces a final product pH greater than 4.5 of the pasta as taught.
"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages, such as in the instant case a pH of the acidified water of about 4 to achieve a same final pH by substitution of equivalents to achieve a same constant.
Cherian teaches the pasta product may further comprise flavorings if desired (pg. 3 lines 4-6) and thus one of ordinary skill in the art would have been motivated to look to the art of known pasta flavoring as taught by Liggett.
Thus since Cherian teaches the pasta product may further comprise flavorings if desired (pg. 3 lines 4-6) and since Liggett teaches if desired, vegetable materials such as spinach, carrot or tomato or flavors and concentrate of vegetable materials maybe added to the flour (col. 3 lines 49-52). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a type of flavoring as taught by Cherian such as vegetable material thus producing a flavored pasta product as taught by Cherian including flavored pasta dough such as a vegetable flavor to achieve a type of pasta such as in the instant case vegetable pasta. A person of ordinary skill in the art would have had a strong motivation to select this particular flavoring to achieve a desired flavored pasta. KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.").
With respect to claim 23, Cherian the pasta product comprises flavoring (pg. 3 lines 4-6) with a pH from 5.38-5.85 (pg. 3 lines 35-36; as high as 5.5).
Thus since Cherian teaches the pasta product may further comprise flavorings if desired (pg. 3 lines 4-6) and since Liggett teaches if desired, vegetable materials such as spinach, carrot or tomato or flavors and concentrate of vegetable materials maybe added to the flour (col. 3 lines 49-52). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a type of flavoring as taught by Cherian such as vegetable material thus producing a flavored pasta product as taught by Cherian including flavored pasta dough such as a vegetable flavor to achieve a type of pasta such as in the instant case vegetable pasta. A person of ordinary skill in the art would have had a strong motivation to select this particular flavoring to achieve a desired flavored pasta. KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.").
Response to Arguments
With respect to applicants urging Cherian is silent to the claimed concentration. Importantly, Cherian teaches a same claimed constant, i.e. final pH of the pasta. In addition, Cherian is not limited to a single acid. Importantly Cherian teaches examples of acids (pg. 3 lines 31-34) for its art recognized and applicants intended purpose of producing the final pasta product which does not have a pH less than or equal to about 4.5.
Though silent to the claimed concentration of the acidulant, the concentration of the solute directly affects the final pH by dilution with water and as noted by applicants specification identifying the acid concentration to achieve a final pH of the solution (par. 0149) which achieves the final product pH.
Thus given a desired final pH relative a volume of water and since changing the concentration of the acid doesn’t change the finally desired pH. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach an acid concentration from about .05% w/w to .075 w/w, relative a variable volume of water and a variable amount of acid to achieve a finally desired constant, such as in the instant case achieving a pH merely limited by at least greater than 4.5.
In addition, since Cherian teaches the constant, i.e. pH greater than 4.5 as claimed due to acidified water, since Gum teaches that citric acid is one such food acceptable acid that has "been found to be particularly well suited for use in acidification of" pasta, it is not inventive to discover the optimum or workable ranges of acid concentration relative a volume of water by routine experimentation to achieve a same desired final pH as taught. Such as by adding volumes of acid at the claimed concentration to a defined volume of solution, i.e. water till the final constant as taught by the Cherian is achieved, i.e. an amount of acid at the claimed concentration added to the water to achieve a final desired pH of the pasta as taught.
"The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages, such as in the instant case concentration of the acid from about .05% w/w to .075 w/w to achieve a same final pH by substitution of equivalents to achieve a same constant.
With respect to applicants urging directed to Gum. Gum is relied upon Gum for teaching a same acidified pasta product (col. 1 lines 5-6). Gum teaches the acid is any suitable acid for use in food such as citric, fumaric, lactic or malic acid. The acid used must not impart to the pasta a taste which is incompatible with the other components of the product at the desired pH level. Malic acid, lactic acid or citric acid have been found to be particularly well suited for use in acidification of the pasta component (col. 3 lines 1-8).
With respect to applicants urging of unexpected superior results as summarized by table 8. It is initially noted table 8 is not commensurate with the scope of the claims. Table 8 defines the concentration of citric acid at .1%, however the claims encompass the range of .05% to .075 w/w and thus table 8 is not definitive to unexpected results or criticality of the claimed range.
It is further noted, with respect to urgings directed to support of the contention of unexpected results with respect to Table 8. Table 8 does not define the concentration of GDL, distilled white vinegar or lemon juice. In addition, par. 0186 last 3 lines of the specification states “other acidulants such as (but not limited to) lemon juice concentrate and distilled white vinegar have also shown favorable results”. Gum teaches in addition to the same acids which have “been found to be particularly well suited for use in acidification of pasta” (col. 3 lines 6-8), citric acid is also known to “be particularly well suited for use in acidification of pasta” (col. 3 lines 6-8).
With respect to urgings directed to table 8 and the urging “minimized clumping, a brighter color and a better al dente texture”. The statements “minimized”, “a brighter color” and “better” texture are not evidenced by the specification and table by numerical data which defines the urged difference.
Importantly Table 8 and figures 13 and 14 relied upon are not “data”. Applicants urging of unexpected results specific to citric acid at Table 8, rely on terms of degree which the difference cannot be ascertained such as “seems to be”, “somewhat”, “could break apart”, “not as cleanly”, “looks less clumped”. In a first instance and as an example of the language of Table 8. Table 8 states with respect to .1% Citric acid, same day cutting. “Seems to be the only sample…”. “Seems to be” is not definitive. It is unclear if it is or if not. Table 8 states “just by shaking” or “when shaken” but the table and specification are silent to a standard of shaking.
Thus given Cherian teaches “food acceptable acids” for the art recognized purpose as claimed of achieving a pH of the pasta after blanching and since Gum teaches in addition to the same acids listed “for example” by Cherian (pg. 3 line 32-33), the food grade acid for use further including the option of citric acid (col. 3 line 2 and 6), where citric acid as taught by Gum has “been found to be particularly well suited for use in acidification of pasta” (col. 3 lines 6-8).
The selection of a known acid, such as in the instant case as taught by Gum, based on its suitability for its intended use supports a prima facie obviousness determination.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
5695801 directed to shelf stable pasta.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792
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