DETAILED ACTION
Background
The amendment dated September 17, 2025 (amendment) amending claims 1, 18, 26-27 and 31 and adding new claims 34-38 has been entered. Claims 1-6, 8-10, 17-18, 26-27, 31 and 34-38 as filed with the amendment stand pending and have been examined. Claims 7, 11-16, 19-25, 28-30 and 32-33 have been canceled. In view of the amendment, all outstanding claim objections have been withdrawn.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 17-18, 27 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller) and US 2010/0266743 A1 to Chen et al. (Chen), all of record.
Unless otherwise indicated, the Office reads weight and mass as interchangeable. All references to Lotzbeyer and Zeng refer to the Clarivate machine translations, copies of which have been provided in a prior Office action.
The Office interprets the term “generic serving” broadly to include any known shape for a serving or piece of meat or fish.
The Office interprets the term “selected fish or meat” to include any fish or meat processed because the art has selected such fish or meat; further, the Office interprets the term “introducing an additive into the paste to retain or acquire a required consistency and flow characteristic” to include any disclosed additive that gives a paste that sets into a desired shape; still further, the Office interprets “at least a portion of (a) mould to impart a shape and an exterior texture onto the paste” and “a shape…to resemble a non-texture modified portion of the selected fish or meat" to include any part of a mold or package which imparts any shape on a paste because a generic portion of fish or meat can have any shape.
Regarding instant claims 1-2, and 31, at Abstract Wong discloses food compositions and products for a dysphagic consumer (“texture modified food product”). Wong discloses at [0061] steaming to 100° C (“cooking”) a seasoned “selected” meat or fish molded texture modified food product including maize starch thickening agents as modified maize starch (“an additive”) and konjac. Further, Wong discloses a method comprising cooking meat or fish and cooling it, comminuting the cooled meat for 4-5 minutes in a high-speed blender into a paste comprising particles of the cooked fish or meat, mixing in thickening agents (“thickening the paste” and “introducing an additive”) to give a paste having a smooth consistency, and then packing into and setting in a food grade container which is (at [0017] and [0057]) a mould for packaging (“setting to form”) to form a shaped texture modified food product, followed by top sealing the package by disposing a second layer of packaging material over the mould, and then blast freezing it. The method disclosed at [0061] of Wong does not add water or liquid stock as in claim 2. The Office considers the Wong high-speed blending for minutes to be the same as the recited “comminuting without any added water or liquid stock” (claim 2).
Further regarding instant claims 1, 18 and 31, Wong at Abstract also discloses that its package forms the shape and can be of any desired shape. See Fig 3. Accordingly, the Office considers a “non-texture modified portion of the selected fish or meat” that is shaped and textured (claim 31) “to impart a shape and resembling that of a generic serving of the selected cooked fish or meat” as in claims 1(e) and 18 to include any shape, including a burger patty shape which is the same shape as the platelet packages in Wong at [0017] and Fig. 3. Further, the Office considers the claimed setting the paste in a mould comprises maintaining the mould at a temperature below 1 degree Celsius to set the paste in the mould and shape the texture modified food product to include the freezing disclosed in Wong at [0057]. Moreover, the mold in Wong at [0017] and Fig. 3. also provides a recess shaped and textured to impart the shape and texture resembling the generic serving of a selected fish or meat in claim 18.
Further regarding claims 1, 18 and 31, the Office considers the recited setting the paste in the mould to form a moulded texture, with at least a portion of the mould being shaped and textured to impart a shape resembling that of a generic serving to include the molding and molded container as at [0057] and Figure 3 of Wong.
Still further regarding instant claims 1 and 31, the Office considers the claimed process comprising (f) disposing a second layer of packaging material over the mould; (g) fusing the second layer of packaging material with the remainder of the package to form a pouch around the moulded texture modified food product; and (i) sealing the pouch around the moulded texture modified food product to form a sealed pouch as in claim 1, and the sealed pouch of claim 31 to include the method disclosed in Wong at Abstract, [0017], [0057] and Fig. 3
Still further regarding claim 31, each of the recited sealed pouch comprising first and second layers fused together and the recited comminuted paste of the claim is a product by process claim. The patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. The packaged product of Wong appears to be substantially the same thing as the claimed packaged texture modified food product.
Regarding claims 1 and 31, Wong does not disclose comminuting to form a paste comprising particles that consist of particles having a size of 5 microns to 40 microns in claim 1 or the paste formed (claim 31); and Wong does not disclose introducing an additive of a “xanthan gum content of between 0.1% -0.5% by weight of the paste” and an “agglomerated modified starch content of between 1.0 - 3.0% by weight by weight of the paste” in its texture modified food product or the product comprising the additive.
Further regarding claim 1 and regarding instant claim 27, Wong further does not disclose (d) lining its mould with a first layer of packaging material prior to introducing the paste therein and vacuum drawing the first layer of packaging material into the mould prior to receiving the paste in claim 1; further, Wong does not disclose (g) fusing the disposed second layer of packaging material with the first layer of packaging material to form the pouch around the texture modified food product as in claim 1; Wong does not disclose (h) evacuating air trapped around the texture modified food product within the pouch as in claim 1; and, finally, Wong does not disclose (j) pasteurizing the moulded texture modified food product to increase the useable shelf life thereof as in claim 1 or hot pasteurizing or cold pasteurizing a sealable pouch or sealed pouch to increase usable shelf life of the packaged product as in claim 27.
Yet still further regarding instant claim 31, Wong does not disclose a sealed pouch comprising first and second layers of packaging material that are fused together to form the sealed pouch.
Zeng at Abstract on page 1 discloses an efficient method for making chicken paste of black-bone chicken and paste therefrom comprising steaming (cooking) crushing, grinding (comminuting) and homogenizing, wherein a process comprising packaging disclosed on page 3 includes sealing the package and external disinfecting the package (“pasteurizing”). Further, at “invention contents” in the paragraph bridging pages 2 and 3, Zeng discloses a paste that better retains the inherent flavour and nutrient content of the chicken. In Example 1 at page 4, and at page 3, items b. and e., Zeng discloses forming a paste comprising grinding chicken and 3-5 wt% xanthan gum into particles that have a size of 10 microns or less.
Chen discloses at [0044] meat products comprising agglomerated starch including (at [0023]) modified starches from (at [0020]) potato starch, wherein the agglomerated starch facilitates water penetration to reduce lump formation.
Lotzbeyer discloses at the top of page 5 food compositions for use by persons suffering from dysphagia, such as at Example 2 at the bottom of page 10 to the top of page 11 food made from a puree of deboned chicken and xanthan gum (0.12 g in a mix of 210 g chicken, 40 g water and 50 g ice, or about 0.4 wt% xanthan gum, based on the weight of the paste) in a Blixer or high-speed bowl mixer/blender, wherein the mixture is molded to a desired shape and then frozen to form a shaped product. At page 4, 1st full paragraph, Lotzbeyer discloses a total starch content in its composition of 1 weight % (wt%) or more, the starch including potato starch. And at page 4, 2nd full paragraph, Lotzbeyer discloses a xanthan gum water binding effect.
Faller at Abstract discloses a lined flanged tray (“mould resembling a generic serving of a selected fish or meat”) having a continuous film or first layer of packaging material applied across the top surface of the tray. Vacuum is applied which serves to deform the film into the interior of the trays (drawing the first layer of packaging material into the mould) and then depositing food into the lined mold and laying second layer of packaging material and the second and first layer of packaging material are sealed (“fused” to form a “sealed pouch”).
Regarding the term “pasteurizing” in claim 1 and the pasteurized package in claim 31, the Office considers the claimed pasteurizing the texture modified food product to increase the useable shelf life thereof of to include the pasteurizing disclosed in Zeng at the Abstract on page 1.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Zeng for Wong to comminute its fish or meat to form a paste wherein the particles consist of particles having a size of 5-40 microns, to introduce into the paste a xanthan gum additive and to pasteurize the product package. Both references disclose methods of making meat paste by comminuting cooked meat and additives including thickeners and packaging the paste. The ordinary skilled artisan working in Wong would have desired to use a colloid mill as in Zeng to efficiently grind its cooked meat or fish and give a paste comprising particles that consist of particles having a size of 5-40 microns, to introduce the claimed amount of xanthan gum to thicken the paste as in Lotzbeyer more efficiently and to pasteurize its packaged mold to increase the shelf life of the food product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Lotzbeyer for Wong to include a xanthan gum in an amount of between 0.1% to 0.5% by weight and, in view of Lotzbeyer and Chen, to include an agglomerated modified potato starch of Chen in an amount of between 1.0 to 3.0% by weight. All references disclose starches added to modify the texture of food products. The ordinary skilled artisan reading Wong would have desired to include the claimed amount of an agglomerated modified potato starch as in Chen in the claimed amounts of starch from Lotzbeyer at page 4, 1st paragraph to reduce starch lumping and increase the binding efficiency of the starch during the heating in Wong with use of less starch. Further, the ordinary skilled artisan in Wong would have desired to include the claimed amount of xanthan gum as in Example 1 of Lotzbeyer to improve the shape retention and water binding of the paste of Wong.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Faller for Wong as modified by Zeng, Lotzbeyer and Chen to line its mould with a first layer of packaging material prior to introducing the paste therein and vacuum draw the first layer of packaging material into the mould prior to receiving the paste, and then, after setting the molded paste to dispose a second layer of packaging material over the mould after the paste has been received therein, to evacuate the air trapped around the texture modified food product between the first and second layer of packaging material, and then fuse the second layer with the first layer of packaging material thereby forming a sealable pouch around the moulded texture modified food product as in Faller. Each of Wong as modified by Zeng and Chen, Lotzbeyer and Faller discloses packaging a moldable food in a fluid form, wherein the food is shaped at least in part by molding and the package is sealed. The ordinary skilled artisan working in Wong would have desired to package the perishable material of and Wong as in Faller to make a more storage stable sealed pouch, including lining the mould of Wong with a first layer of packaging to make it easier to separate the solidified molded product from the mould as in Faller, and disposing a second layer of packaging material which can readily be fused to the first film in a single location to make a sealable package. Further, the ordinary skilled artisan in Wong would have desire to vacuum draw the first layer of packaging material into a mold as in Faller to make it easier to mold the Wong paste when added and then to evacuate the sealed pouch as in Faller to make a sealed package of a shaped food as in Wong.
Further regarding instant claims 1 and 31, the Office considers the texture modified food product as claimed and comprising a paste of from 0.1 to 0.5 wt% of xanthan gum and from 1.0 to 3.0 wt% of an agglomerated modified potato starch, based on the weight of the paste, and the texture modified food product of Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044] to be substantially the same thing. Accordingly, absent a clear showing as to how the properties of the texture modified food product of Wong as modified by Zeng, Lotzbeyer and Chen differ from those of the texture modified food product as claimed, the Office considers the texture modified food product of Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044] to have a xanthan gum content that minimizes bleeding of liquids from the moulded texture modified food product and an agglomerated modified potato starch content that increases the viscosity of the paste sufficient to retain the shape of the moulded texture modified food product through a heating process as claimed in claims 1 and 31. See MPEP 2112.01.I and II.
Regarding instant claim 3, the Office considers steaming of the meat in Wong at [0057] as including the claimed “plunging the fish or meat into boiling water for a predetermined time period”. This is particularly so as Wong at [0061] discloses cooking seasoned meat and draining liquid from cooked meat after cooking, wherein steaming without a bag or pouch would remove the liquid to be drained during cooking. The Office considers any time period to meet the claimed predetermined time period. Yet still further, the seasoned fish or meat of Wong retains the flavor of the fish or meat in the paste.
Regarding instant claims 4-5, the Office considers the Wong high-speed blending for 4-5 minutes at [0061] to comprise all of adding air into the paste, aerating the cooked fish or meat during comminuting and continuing the step of comminuting until the paste is an aerated paste that forms soft peaks. High-speed blending, such as in a high-speed blender would form an aerated phase in a paste as in claim 4 by whipping it. And the fish or meat and additive composition of Wong as modified by Zeng, Lotzbeyer and Chen appears to be substantially the same as the claimed paste, thereby enabling forming of soft peaks. Accordingly, absent a clear showing as to how the composition of the Wong as modified by Zeng, Lotzbeyer and Chen packaged fish or meat product differs from that of the product claimed, the Office considers the paste of Wong as modified by Zeng, Lotzbeyer and Chen to form an aerated phase as in claim 4 and soft peaks on comminuting as in claim 5. See MPEP 2112.01.I.
Regarding instant claim 17, the claimed setting the paste in a mould and shaping the texture modified food product comprising maintaining the mould at a temperature below 1 degree Celsius includes the Wong sealed package at [0061] wherein the texture modified food product is blast-frozen at around -18° C in the mold.
Claim 6 and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller) and US 2010/0266743 A1 to Chen et al. (Chen) as applied to claim 1 above, and further in view of US 5013568 to Lorier et al. (Lorier), of record.
As applied to claim 1, Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044] and Faller at Abstract discloses methods comprising providing cooked fish or meat, xanthan gum and agglomerated modified potato starch, comminuting the cooked fish or meat to form a paste so that it has particles that consist of particles of a size of 5-40 microns, and forming the paste into a texture modified food product in the shape or form of a portion of the fish or meat by setting the paste in a mould.
Regarding instant claim 6, Wong as modified by Zeng, Lotzbeyer, Chen and Faller does not disclose methods further comprising comminuting the cooked fish and made with a shear-blade cutter or a bowl cutter.
Lorier at Example II on col. 5, lines 28-31 discloses processing surimi or fish paste in a bowl chopper, which is the same thing as a bowl cutter. Lorier at col. 1, lines 18-19 discloses that surimi is a paste that is shaped after cooking.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Lorier for Wong as modified by Zeng, Lotzbeyer, Chen and Faller to use a bowl cutter to form a paste of its cooked meat or fish. All references disclose forming pastes of meat or fish that can be shaped. The ordinary skilled artisan viewing Lorier would have desired to comminute or form a paste of the cooked meat or fish using a bowl cutter as a high speed mixer with an open top into which one can add the additives used in Wong as modified by Zeng, Lotzbeyer, Chen and Faller.
Regarding claims 8-10, Wong as modified by Zeng, Lotzbeyer, Chen and Faller does not disclose methods further comprising assessing the consistency of the paste prior to setting the paste into the mould as in claim 8, further does not disclose assessing the consistency of the paste and adjusting the paste to increase the viscosity of the paste to meet a predetermined standard as in claim 9, and still further does not disclose further comminuting or aerating to adjust the viscosity of the paste as in claim 10.
The Office considers a predetermined standard viscosity to include any viscosity desired by a user for a moldable paste.
Lorier at Example II at col. 5, line 39-40 adds a protease inhibitor (macroglobulin) during chopping, then at col. 5, lines 43-56 measures the gel strength or consistency of the paste using a Brookfield viscometer. Further, Lorier discloses at col. 5, lines 60-68 incubating the paste over a time three different time intervals, and adding some of the inhibitor before each incubation interval. Lorier uses the bowl chopper to incorporate the inhibitor.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Lorier for Wong as modified by Zeng, Lotzbeyer, Chen and Faller to assess the consistency of its paste during its preparation and prior to molding, and, further, would have considered it obvious to add more additive starch or gelling agent to a paste lacking adequate thickness and thereby to adjust the paste to increase the viscosity of the paste to a desired thickness and to continue comminuting the paste to adjust the (thickness of the) paste after assessing the consistency of the paste. All of the references disclose high speed blending to form fish or meat pastes including blending in additives that impact the gel strength or viscosity of the paste using a high speed blending device. The ordinary skilled artisan viewing Lorier would desire to adjust the thickness or viscosity of the pastes in Wong as modified by Zeng, Lotzbeyer, Chen and Faller by adding more starch or gum and in so doing to “repeat” comminuting to incorporate the starch or gum. In addition, the ordinary skilled artisan viewing Lorier would desire to continue comminuting the paste to more thoroughly blend in the starch and gum into the paste of Wong as modified by Zeng, Lotzbeyer, Chen and Faller precisely to increase its effectiveness as a thickener or gelling agent.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller) and US 2010/0266743 A1 to Chen et al. (Chen) as applied to claim 1 above, and further in view of US 2006/0034979 A1 to Stenbeck et al. (Stenbeck), of record.
As applied to claim 1, Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044] and Faller at Abstract discloses methods comprising providing cooked fish or meat, xanthan gum and agglomerated modified potato starch, comminuting the cooked fish or meat to form a paste to have a particle size of 5-40 microns, and forming the paste into a texture modified food product in the shape or form of a portion of the fish or meat by setting the paste in a mould lined with a first layer of packaging material, and then fusing a second layer of packaging material over the mould containing the paste to form a sealed pouch around the food product.
Wong as modified by Zeng, Lotzbeyer, Chen and Faller does not disclose back-flushing the pouch with carbon dioxide and nitrogen to remove suspended oxygen from the moulded texture modified food product prior to sealing the pouch as in claim 26.
Stenbeck at [0057] discloses a packaged food product that is subjected to vacuum flushing with an inert gas such as nitrogen or carbon dioxide.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Stenbeck for Wong as modified by Zeng, Lotzbeyer, Chen and Faller to evacuate air from a pouch prior to sealing and in so doing to back-flush the pouch with carbon dioxide and nitrogen to remove suspended oxygen from the moulded texture modified food product prior to sealing the pouch. All references disclose articles that are packaged to keep them and that benefit from removing oxygen from the package to prevent oxidation. The ordinary skilled artisan viewing Stenbeck would have desired to put a protective gas such as carbon dioxide into the package of Wong as modified by Zeng Lotzbeyer, Chen and Faller and remove or evacuate the oxygen or air from the package.
Claims 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller) and US 2010/0266743 A1 to Chen et al. (Chen) as applied to claim 1 above, and further in view of US2018/0317536 A1 to Nakajima et al. (Nakajima) or JP2017104055 A to Fujii et al. (Fujii).
All references to Fujii, refer to the Clarivate machine translations, a copy of which is provided with this Office action.
As applied to claim 1, Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044] and Faller at Abstract discloses methods of providing cooked fish or meat, xanthan gum and agglomerated modified potato starch, comminuting the cooked fish or meat to form a paste to have a particle size of 5-40 microns, and forming the paste into a texture modified food product in the shape or form of a portion of the fish or meat by setting the paste in a mould.
Wong as modified by Zeng, Lotzbeyer, Chen and Faller does not disclose a method of dressing a texture modified food product comprising unpackaging the texture modified food product and applying a coating to a surface of the texture modified food product as in claim 34; and does not disclose a coating made from cooked potato, bread or rice pieces that are broken down into a powder as in claim 35. However, the Office considers the claimed unpackaging of a texture modified food product as necessary in the preparing or consuming of a texture modified food product as in Wong as modified by Zeng, Lotzbeyer, Chen and Faller.
Nakashima discloses at Abstract a protein containing food containing a as (at [0197]) a processed meat having a smooth, grittiness-free texture, without aggregation or roughness of the protein after sterilization. Nakashima discloses at [0201] a pulverized or minced meat product that includes (at [0207], part 2) breaded meat as deep fried meat, and (at [0207], part 3) breaded meat as restructured steak, which the Office interprets as akin to chicken fried steak. Further, at [0226] Wong discloses that processing includes freezing.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Nakashima for Wong as modified by Zeng, Lotzbeyer, Chen and Faller to bread its texture modified food product. Both Wong and Nakashima disclose processed meat products comprising minced meat and thickeners and having a smooth or soft texture. The ordinary skilled artisan in Wong would have desired to coat its frozen or previously frozen packaged texture modified food product as in Nakashima to make for a crispy outside.
Regarding instant claim 35, the Office considers the claimed coating made from cooked bread pieces that are broken down into a powder to include the breading of Nakashima at [0207].
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller), US 2010/0266743 A1 to Chen et al. (Chen) and US2018/0317536 A1 to Nakajima et al. (Nakajima) as applied to claim 35 above, and further in view of JP2017104055 A to Fujii et al. (Fujii).
As applied to claim 35, Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044], Faller at Abstract and Nakashima at Abstract, [0207] and [0226] discloses methods of providing cooked fish or meat, xanthan gum and agglomerated modified potato starch, comminuting the cooked fish or meat to form a paste to have a particle size of 5-40 microns, forming the paste into a texture modified food product in the shape or form of a portion of the fish or meat by setting the paste in a mould, followed by packaging, then unpackaging and applying a coating from a powder comprising broken down cooked bread pieces to the product.
Wong as modified by Zeng, Lotzbeyer, Chen, Faller and Nakashima does not disclose a method further comprising the step of spraying water onto the surface of the texture modified food product to soften the surface and facilitate adhesion of the coating to the texture modified food product to form a coated texture modified food product.
Fujii at Abstract on page 1 discloses methods of coating foods (ingredients) with bread crumbs, spraying a coating liquid thereon and freezing. At and page 3, 7th paragraph starting with “Here, in the present invention”, Fujii discloses “ingredient” foods as meat and fish. Further, at the 1st aspect at the bottom of page 2, Fujii discloses the breading followed by spraying with water and starch and freezing.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Fujii for Wong as modified by Zeng, Lotzbeyer, Chen, Faller and Nakashima to spray water onto the surface of its texture modified food product to soften the surface and facilitate adhesion of the coating to the texture modified food product. Wong, Fujii and Nakashima each disclose processed meat or fish products; and, further Fujii and Nakashima disclose bread crumb coated frozen meat or fish products. The ordinary skilled artisan in Wong as modified by Nakashima would have desired to spray water on its breaded coating surface as in Fujii to facilitate adhesion and to enable addition of seasoning.
Claims 37-38 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0325154 A1 to Wong et al. (Wong) in view of CN 105011191 A to Zeng et al. (Zeng), DE 102015003740A1 to Lotzbeyer et al. (Lotzbeyer), US 4200481 to Faller (Faller), US 2010/0266743 A1 to Chen et al. (Chen), US2018/0317536 A1 to Nakajima et al. (Nakajima) and JP2017104055 A to Fujii et al. (Fujii) as applied to claim 36 above, and further in view of “How to keep breading on the meat”, downloaded on November 17, 2025 from https://forums.egullet.org/topic/53598-how-to-keep-breading-on-the-meat/ (2004), (Breading).
As applied to claim 36, Wong at Abstract, [0017], [0057] and Fig. 3. as modified by Zeng at Example 1 at page 4, Lotzbeyer at Example 2 on pages 10-11 and Chen at [0020], [0023] and [0044], Faller at Abstract, Nakashima at Abstract, [0207] and [0226] and Fujii at Abstract and the bottom of page 2 discloses methods of providing cooked fish or meat, xanthan gum and agglomerated modified potato starch, comminuting the cooked fish or meat to form a paste to have a particle size of 5-40 microns, forming the paste into a texture modified food product in the shape or form of a portion of the fish or meat by setting the paste in a mould to include packaging, then unpackaging, applying a coating from a powder comprising broken down cooked bread pieces to the product and spraying water onto the coating to soften it and facilitate coating adhesion.
Wong as modified by Zeng, Lotzbeyer, Chen, Faller, Nakashima and Fujii does not disclose a time for allowing the wet coating to sit and does not disclose leaving the coated texture modified food product for at least an hour to allow the water to be absorbed into the coating as in claim 37; however, Fujii discloses freezing the coated product after spraying water on the coating. Further, it does not disclose the heating the coated texture modified food product to adhere the coating to the texture modified food product before consumption as in claim 38.
Breading at page 1, Suzanne F, in “First” discloses to make sure food is dry before frying “Third” discloses letting breaded food sit to dry before frying. Further, at page 3, Irodguy discloses letting breaded meats, including chicken and fish to sir in a walk in freezer overnight, or 1 to 2 hours in a refrigerator to prepare them for deep frying.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Breaded for Wong as modified by Zeng, Lotzbeyer, Chen, Faller, Nakashima and Fujii to spray water onto the surface of its texture modified food product to soften the surface and facilitate adhesion of the coating to the texture modified food product. Breaded, Wong, Fujii and Nakashima each disclose frozen processed meat or fish products; and Breaded, Fujii and Nakashima disclose bread crumb coated frozen meat or fish products. The ordinary skilled artisan in Wong as modified by Nakashima and Fujii would have desired to let its breaded coating sit for at least one hour to enable it to dry and enhance the adhesion of the breaded coating to the meat. In addition, the ordinary skilled artisan in Wong would have desired to fry (“heating”) its product as in Breaded and Fujii (claim 1) to prepare it for consumption and to further adhere the coating to the texture modified food product.
Response to Arguments
In view of the amendment dated September 17, 2025, the following rejections have been withdrawn as moot:
The rejections of claims 26-27 under 35 U.S.C. 112(b) as being indefinite in regard to their scope and dependency and regarding the term "sealable pouch”.
The positions taken in the remarks accompanying the amendment dated September 17, 2025 (Reply) have been fully considered but they are not found persuasive for the following reasons:
Regarding the positions taken in the Reply at pages 8 and 10-11 in regard to particle size, respectfully the position that Zeng is indefinite is not found persuasive. The position taken fails to read the art of Zeng properly for all it discloses. In fact, Zeng Example 1 at page 4, and also at page 3, items b. and e. discloses a gap size for the colloid mill; and, the Office reasonably interprets this as a cutoff particle size whereby virtually all of the product particle sizes in the paste have a size of 10 microns at a maximum. Moreover, the paste of Wong at [0061] and produced in a high-speed blender also has a particle size suitable for dysphagia patients. The facts underlying the assertions on pages 10-11 that the claimed particle size in the claimed method affords a shape retaining advantage on heating or that it retains liquids in a way that the art does not have not been established. Even if the alleged advantages appear or are disclosed the instant specification, an assertion of a result does not amount to evidence absent an actual showing of results on the record or its equivalent. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997). See MPEP 2145.
Regarding all assertions at pages 10-11, 13-14 of an alleged improvement in the recited method for making or texture modified food product, either that it retains liquids in a way that the art does not or that it affords a shape retaining advantage on heating
Regarding the positions taken in the Reply at page 11 that Zeng is incompatible with Wong because the composition of Zeng includes chicken bones, respectfully 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). In the present case, Zeng discloses routine use of a colloid mill as an effective way of producing a paste from meat and water or ice as in Wong. There is simply no requirement that the paste of Wong as modified by Zeng must also comprise chicken bones.
Regarding the positions taken in the Reply at pages 11-12 that Wong and Zeng do not provide the claimed amount of 0.1 to 0.5 wt% of xanthan gum, based on a total weight of the paste, respectfully the Office does not disagree; however, the rejection relies on Lotzbeyer at Example 1 at pages 10-11 for this feature. Further, the Abstract of Lotzbeyer discloses that the resulting product retains its shape well and Lotzbeyer at page 4, 2nd paragraph discloses the water binding ability of xanthan gum.
Regarding the positions taken in the Reply at page 12 that Chen does not disclose the claimed agglomerated modified potato starch, respectfully, Chen features agglomerates of various potato starch in its Examples at Tables 2 and 3. The Office considers the claimed agglomerated modified starch to include the disclosed agglomerated potato starch in Chen, this includes all of the agglomerates of oxidized potato starch sold as PerfectamylTM in Table 2 of Chen as well as agglomerates of the modified starch disclosed at [0023] of Chen, and agglomerates of a starch that has been modified in any other known way, chemically or physically such as a starch that is gelatinized, denatured or melted.
Regarding the positions taken in the Reply at pages 12-13 alleging that the art of Wong, Chen and Lotzbeyer do not disclose that claimed AMPS content of 1.0 to 3.0 wt% on the paste and that Lotzbeyer nowhere discloses the claimed amount of an agglomerated modified potato starch, respectfully the rejection relies on Lotzbeyer at page 4, 1st paragraph disclosing that its meat paste compositions include at least 1.0 wt%, based on the weight of the paste of potato starch. The Office considers it routine in the art of comminuted meat processing in view of Lotzbeyer to use the claimed amount of potato starch, which includes potato starch of any kind, in the claimed paste.
Regarding the positions taken in the Reply at pages 13-15 regarding a “paste that maintains the recognisable form of the original food”, the claims do not recite a “recognizable form” of any food, but rather a generic serving that has a shape and texture. Further, regarding the positions arguing a specific meaning of “generic serving”, respectfully the instant specification does not define the term “generic serving”; the Office interprets the claims broadly to include any common shape. Further, it is routine for the ordinary skilled artisan to mold a paste into any desired shape as in Fig. 3 of Wong. And, regarding the allegation that the product of the present invention is unexpectedly superior in shape retention citing “numerous scientific articles”, including a Wu et al. article and an article “Focus on puree” (IDDSI), published in (2020) and each disclosing patient preferences, respectfully the positions taken and the articles do not establish any connection between the molded products in the article or articles and any of the texture modified food product or the method claimed to show an improvement, or any connection to the products disclosed in the art to show any comparison. In short, the cited articles do not provide evidence that the claimed invention is unobvious over the art.
Regarding the positions taken in the Reply at pages 15-16 that the art of Faller does not disclose evacuating air trapped around a moulded texture modified food product, respectfully the positions argue a specific meaning of evacuating air as somehow requiring a vacuum. The Office respectfully disagrees and finds that “evacuating air from between the layers of the claimed pouch” includes the filling of the cavities with a fluid flush to the top and sealing a film over it as in Fig. 7 of Faller. The Office interprets the claims broadly to include the ordinary and customary meaning of a claim term, including any form of evacuating air disclosed in the art. See MPEP 2111.01.
Regarding the positions taken in the Reply at pages 16-17, that the art does not disclose pasteurization and that the recited (j) pasteurising does not include sterilization, respectfully the positions argue a specific meaning of the term “pasteurising” or “pasteurised”, while the instant specification does not define “pasteurising” or “pasteurised”. The Office interprets the claims broadly to include the ordinary and customary meaning of a claim term, including any form of pasteurization disclosed in the art. See MPEP 2111.01.
Regarding the positions taken in the Reply at the Summary pages 18-19, the positions repeat prior positions and are taken as a general allegation of patentability. See 37 CFR 1.111(b).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791