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 .
Declaration under 37 C.F.R. §1.132
The Declaration under 37 CFR 1.132 filed 9/16/25 is insufficient to overcome the rejections of record as set forth in the last Office action.
It is initially noted applicants Declaration is silent to providing evidence with respect to the definitive statement “the heat treated vegetables did not allow a supercooled state to be generated”.
In addition the provided Declaration is not commensurate with the scope of the claims which provides for a range of temperatures from 100C to 250C and a group of vegetables including cabbage, broccoli and onions as taught by Kosaka (par. 0019).
Thus with respect to the urgings “the heat treated vegetables did not allow a supercooled state to be generated”, the Declaration is directed to examples 1 and 2 of Kosaka. It is noted the examples are directed to a different kind of vegetable than relied upon with respect to Kosaka.
The provided Declaration does not provide comparative evidence commensurate with the scope of the claims. The Declaration does not provide results, commensurate with the scope of the claims which provide evidence that under the claimed conditions all vegetables claimed achieve a heat treated vegetables which did allow a supercooled state to be generated.
Applicant has not provided evidence or persuasive arguments that the heat treatment of Kosaka is not capable of allowing a supercooled state.
It is further noted Kosaka, as applicants specification teaches the heating process to prevent deterioration of texture after freezing and thawing (par. 0012).
It is noted that the declaration include(s) statements which amount to an affirmation that the claimed subject matter functions as it was intended to function. This is not relevant to the issue of nonobviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716.
Though silent to a heat treatment time of at least 180 seconds, Kosaka teaches heating temperature which are not lower than 100C (par. 0023). Kosaka further teaches heating temperatures of 200C relative a type of food and amount (par. 0023). Thus since the claims are silent to an amount, since the claims encompass 12 different vegetable types and since applicants specification at par 0082 of applicants pre-grant publication teaches “the temperature and time for applying the step of heat treatment vary, depending on factors such as the type, moisture level, size, shape and composition of the vegetable” to be frozen.
Thus since the type of food and amount would dictate heating time and since a lower temperature would require increased time to achieve the desired outcome. It would have been obvious to one of ordinary skill in the art at the time the invention was filed through routine experimentation to determine the heating time as taught by Kosaka (par. 0023 last 4 lines) with respect to a same temperature range as taught, such as in the instant case at least 180 seconds for its art recognized purpose achieving the simultaneous goal of Kosaka achieving vegetable foods which have been sterilized and in which peroxidase has been inactivated by a cooking treatment with the use of superheated steam, whereby a deterioration of texture is suppressed, more specifically, whereby a deterioration of texture, which is attributable to softening of the texture, enhanced water release caused by separation and flowing out of water in chewing, and change into the porous and sponge-like form, is suppressed after freezing and thawing as taught by Kosaka (par 0016).
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Disagreement as to the Examiner’s factual findings and reasoning for combining the references, without more, is insufficient to establish reversible error. Cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement. . . as to the existence of factual disputes do not amount to a developed argument.”).
The burden rests with applicant to establish testing that the comparisons are to the disclosure of the closest prior art, and supplied evidentiary showing is commensurate in scope with the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
The Declaration does not amount to persuasive evidence because applicant has not provided reliable data or experimental results sufficient to support those contentions that Kosaka is not capable of the claimed ability to generate a supercooled state due to steam heating at temperatures of at least 100C as taught by Kosaka. The Declaration does not provide comparative evidence distinguishing the heat treatment of Kosaka from that claimed.
Although applicant contends one of ordinary skill in the art would not expect Kosaka to be capable of this different result due to a same heating step, applicant does not provide an adequate explanation or direct us to reliable data or experimental results sufficient to support those contentions.
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.
Claims 1-2, 5, 10-11, 15 and 17-19 are 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 “subjecting vegetables or fruit to heat treatment under conditions of 100C to 250C for 180 to 600 seconds” “wherein the vegetables are selected from the group consisting of bean sprouts, onions, bell peppers, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, green onions, and ginger, and wherein the fruit is selected from the group consisting of apples, watermelons, pears, grapes, peaches, mangoes, citrus fruits, bananas, pineapples, and berries”. 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 of applicants pre-grant publication teaches at par. 0084 “the heat treatment conducted for “180 seconds or longer” and par. 0085 teaches heating of 100C to 250C” the specification and drawing are silent to conditions of “100C to 250C for 180 to 600 seconds”. The specification is silent to the claimed range of time requiring a minimum of 180 seconds. Though the examples teach the claimed temperature range, the examples are silent to the claimed temperature range defined by a time of 180 seconds to 600 seconds with respect to fruits and/or vegetables. More specifically, the specification is silent to a same heat treatment of “100C to 250C for 180 to 600 seconds” with respect to bean sprouts, onions, bell peppers, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, green onions, and ginger. The specification is silent to “100C to 250C for 180 to 600 seconds” wherein the fruit is apples, watermelons, pears, grapes, peaches, mangoes, citrus fruits, bananas, pineapples, and berries.
Claims 1-2, 5, 10-11, 15 and 17-19 are 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 “subjecting vegetables or fruit to heat treatment under conditions of 100C to 250C for 180 to 600 seconds”, with respect to a claimed definitive outcome, i.e. “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells, and a supercooled state is generated with the cells by the cooling step”. 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 par. 0134 of applicants pre-grant publication teaches results of table 1 to table 7, par. 0134 specifically teaches “in the case of 250° C., texture was lost on the contrary when heating was conducted for 100 seconds or longer, rating clearly decreases, and it has been suggested that moderate heating which is conducted in pretreatment of supercooling is effective for providing a supercooled frozen state for obtaining a good frozen state. However, when heating is excessively conducted, it has been clear that texture is lost while supercooling freezing occurs. It is thought to be because excessive heating damages tissues”. Thus the specification is silent to a same heat treatment of “100C to 250C for 180 to 600 seconds” with respect to bean sprouts, onions, bell peppers, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, green onions, and ginger. The specification is silent to “100C to 250C for 180 to 600 seconds” wherein the fruit is apples, watermelons, pears, grapes, peaches, mangoes, citrus fruits, bananas, pineapples, and berries which achieves the claimed definitive outcome, i.e. “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells, and a supercooled state is generated with the cells by the cooling step”.
Claims 1-2, 5, 10-11, 15 and 17-19 are 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 “subjecting vegetables or fruit to heat treatment under conditions of 100C to 250C for 180 to 600 seconds”, with respect to a claimed definitive outcome, i.e. “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells, and a supercooled state is generated with the cells by the cooling step”. 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. The specification is silent the claimed definitive outcome, with respect to the claimed extent of the range claimed temperature relative 180 seconds. Though the specification teaches the claimed 250C, and though the specification teaches the claimed 180 seconds, the specification is silent to teaching heating at 250C for a time of 180 seconds relative each of the claimed food types, i.e. bean sprouts, onions, bell peppers, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, green onions, and ginger and wherein the fruit is apples, watermelons, pears, grapes, peaches, mangoes, citrus fruits, bananas, pineapples, and berries. The specification is silent to teaching heating at 250C for a time of 180 seconds relative each of the claimed food types and achieving the claimed outcome “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells, and a supercooled state is generated with the cells by the cooling step”. Though par. 0134 of applicants pre-grant publication teaches results of table 1 to table 7, and heating times of 60 seconds, par. 0134 specifically teaches “in the case of 250° C., texture was lost on the contrary when heating was conducted for 100 seconds or longer, rating clearly decreases, and it has been suggested that moderate heating which is conducted in pretreatment of supercooling is effective for providing a supercooled frozen state for obtaining a good frozen state. However, when heating is excessively conducted, it has been clear that texture is lost while supercooling freezing occurs. It is thought to be because excessive heating damages tissues”. Thus the specification is silent to a same heat treatment of 250C for 180 seconds with respect to bean sprouts, onions, bell peppers, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, green onions, and ginger. The specification is silent to heat treatment at 250C for 180 seconds wherein the fruit is apples, watermelons, pears, grapes, peaches, mangoes, citrus fruits, bananas, pineapples, and berries which achieves the claimed definitive outcome, i.e. “heat treatment to the extent, i.e. 250C for 180 seconds, at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells, and a supercooled state is generated with the cells by the cooling step”.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 5, 10-11, 15 and 17-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The phrase “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells”, specifically with respect to “damaged” in claims 1 and 18 is rejected, as it is a relative term, which renders the claim indefinite. The phrase “damaged” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what is encompassed by the phrase “damaged”; it is unclear as to what degree of difference is encompassed by this phrase, if not “damaged” but moderately damaged. Applicants specification teaches at par. 0079 “cells are damaged” but “destruction of cell tissues does not occur”. In addition, par. 0105 teaches “cell tissues” are “not destroyed”, but “moderately receives damage”, where par. 0134 teaches in the instant of 250C for 100 seconds or longer, which encompasses applicants claimed range, is excessive, “because excessive heating damages tissues”. Thus in one instance the specification relies on a relative term to define heating relative the cells, i.e. “damaged moderately” yet at the same time teaches “excessive heating damages tissues”. It is unclear what extent is required, relative the claimed temperature and time, to achieve the claimed “damaged”. It is unclear what extent of “damaged” “allows a supercooled state to be generated”, it is unclear what amount of “damaged” does not allow a supercooled state to be generated.
The phrase “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells”, specifically with respect to “damaged” in claims 1 and 18 is rejected, as it is a relative term, which renders the claim indefinite. The phrase “damaged” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what is encompassed by the phrase “damaged”; it is unclear as to what degree of difference is encompassed by this phrase, if not “damaged”. Applicants pre-grant publication specification at par. 0075 states the heat treatment to the “extent at which cell tissues of the vegetable or fruit are not destroyed”. Applicants specification at par. 0078 states “the heat treatment of step (i) is not harsh so as to avoid destroying cell tissues of the vegetables or fruit, where par. 0079 teaches “a state where cells are damaged… destruction of cell tissues does not occur. Thus it is unclear what degree or extent is encompassed by the phrase “damaged” relative the teaching of the specification “cell tissues of the vegetable or fruit are not destroyed”. It is unclear what extent is required, relative the claimed temperature and time, to achieve the claimed “damaged” yet are not “destroyed”. It is unclear what extent of “damaged” “allows a supercooled state to be generated” but “cell tissues of the vegetable or fruit are not destroyed”, it is unclear what amount of “damaged” relative “cell tissues of the vegetable or fruit are not destroyed” does not allow a supercooled state to be generated.
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 1-2, 5, 10-11, 15 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Kosaka et al. (20040142088) in view of Asquith et al. (7169426).
Kosaka teaches a method for freezing vegetables (par. 0019) comprising;
(I) subjecting vegetables to heat treatment (par. 0013; par. 0050) under a condition of 100C to 250C (par. 0023 200C; par. 0050 100C) for a time which inactivates enzymes “while suppressing the tissue collapse” (par. 0012, 0013; par. 0023 2 min.; par. 0050 120 seconds/2min.);
(II) cooling the vegetables of step (1) (par. 0025 cooling; par. 0050) and
(III) freezing the vegetables of step (II) (par. 0025 freezing; par. 0050), wherein the heat treatment of step (i) is heat treatment to the extent at which cell tissues of the vegetables are damaged (par. 0012; damaged with respect to enzymes; part of vegetable) to allow a supercooled state to be generated within the cells (par. 0013 avoid tissue collapse responsible for deterioration of texture).
The heat treatment of step (I) is conducted by superheated steam heating (par. 0013, 0023).
It is noted the method is drawn to vegetables or fruit and in the instant case is taken with respect to vegetables.
The vegetables selected from the group consisting of bean sprouts, onions, bell peppers, paprikas, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, asparagus, potatoes, green onions, and ginger (par. 0019).
Though silent to a heat treatment time of at least 180 seconds, Kosaka teaches heating temperature which are not lower than 100C (par. 0023). Kosaka further teaches heating temperatures of 200C relative a type of food and amount (par. 0023). Thus since the claims are silent to an amount, since the claims encompass 12 different vegetable types and since applicants specification at par 0082 of applicants pre-grant publication teaches “the temperature and time for applying the step of heat treatment vary, depending on factors such as the type, moisture level, size, shape and composition of the vegetable” to be frozen.
Thus since the type of food and amount would dictate heating time and since a lower temperature would require increased time to achieve the desired outcome. It would have been obvious to one of ordinary skill in the art at the time the invention was filed through routine experimentation to determine the heating time as taught by Kosaka (par. 0023 last 4 lines) with respect to a same temperature range as taught, such as in the instant case at least 180 seconds for its art recognized purpose achieving the simultaneous goal of Kosaka achieving vegetable foods which have been sterilized and in which peroxidase has been inactivated by a cooking treatment with the use of superheated steam, whereby a deterioration of texture is suppressed, more specifically, whereby a deterioration of texture, which is attributable to softening of the texture, enhanced water release caused by separation and flowing out of water in chewing, and change into the porous and sponge-like form, is suppressed after freezing and thawing as taught by Kosaka (par 0016).
With respect to “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells” by the heat treatment of step (i). Since the claimed heating temperature of at least 100C is taught by Kosaka (par. 0023), since Kosaka teaches a steam heating, since the extent of the claimed “damaged to allow” is not defined and since Kosaka teaches the same claimed processing step of heating which produce cell walls that are less collapsed (par. 0039).
It would have been obvious to one of ordinary skill in the art at the time of the invention to “damage” cells sufficiently, due to heating but without destroying cells thus achieving a same desired product texture and appearance improvement by suppressing tissue damage due to ice crystals as taught by Kosaka and Asquith (col. 1 lines 59-64) which produce cell walls that are less collapsed (par. 0039).
The phrase the “heat treatment to the extent at which cells of the vegetables or fruit are damaged” is an outcome which is defined by the heat treatment. A heat treatment and its properties are inseparable. Therefore, if the prior art teaches the identical fruit or vegetable and a same heat treating relative a desired extent, the properties claimed are necessarily present such as in the instant case with respect to an undefined “damaged” or extent of “damaged”.
Kosaka teaches the advantage of the provided method relative frozen vegetables where the cooling and freezing steps are carried out in ordinary manners (par. 0025) and thus one of ordinary skill in the art would have been motivated to look to the art of methods of cooling and freezing vegetables as taught by Asquith and more specifically of freezing vegetables which achieve a same desired product texture and appearance improvement by suppressing tissue damage due to ice crystals as taught by Kosaka and Asquith (col. 1 lines 59-64).
Asquith teaches process steps for freezing vegetables including after a heat treatment step, cooling the vegetables by allowing the vegetables or fruit stand still under a condition of -5°C to -15°C (col. 3 lines 41-43), thereby allowing the vegetables or fruit to become in a supercooled state (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool), and subsequently releasing the supercooled state (col. 4 lines 8-10; relative less than -5 to -15C; core not maintained at under cool state) and freezing the vegetable of step II (col. 3 lines 4-5; step III)
Thus since Kosaka teaches the cooling and freezing steps are carried out in ordinary manners (par. 0025) since it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) and since Asquith teaches known manners of freezing which provide favorable vegetable properties when consumed after freezing (col. 4 lines 11-14). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to look to the art of cooling and freezing vegetables as taught by Asquith and taught cooling the vegetables by allowing the vegetables stand still under a condition encompassing -9°C to -15°C (col. 3 lines 36-47; col. 4 line 49 -10C; col. 4 line 50 -15.5C), thereby allowing the vegetables or fruit to become in a supercooled state which is generated within the cells by cooling step (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool), and subsequently releasing the supercooled state (col. 4 lines 8-10 core not maintained at under cool state; releasing relative subsequent freezing step) and freezing the vegetable of step II (col. 3 lines 4-5; step III) as taught by Asquith thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both and provide texture, appearance and thus product quality that was not previously possible in frozen vegetables as taught by Asquith (col. 2 lines 1-3).
Asquith teaches the supercooled state is released at a temperature higher than the temperature that vegetable stand still in step (ii) (col. 3 line 43-44; col. 4 lines 50-51 temperature above -15C to -30C; released relative above undercooled temperature less than -5C).
Thus since Kosaka teaches the cooling and freezing steps are carried out in ordinary manners (par. 0025) since it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) and since Asquith teaches known manners of cooling prior to freezing. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to look to the art of cooling and freezing vegetables as taught by Asquith and taught the supercooled state is released at -9°C or lower in step (ii) (col. 3 line 43-44; released relative core undercooled temperature -15C the vegetables is cooled by allowing the vegetables stand still under a condition -9°C to -15°C; col. 3 lines 43-43 relative range of -5 to about -15C) as taught by Asquith thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both thereby allowing the vegetables or fruit to become in a supercooled state which is generated within the cells by cooling step (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool).
Kosaka teaches wherein moisture on surfaces of the vegetables is removed after the heat treatment of step (I) (par. 0050 (dewatered”).
The heat treatment of step (I) is conducted by superheated steam heating (par. 0013, 0023)
With respect to claims 11 and 17, Asquith teaches the release of the supercooled state of step (II) naturally occurs without any externally applied vibration or physical stimulus (ice formation; col. 4 lines 8-10; col. 4 lines 65-67). Since Kosaka teaches it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) where the cooling and freezing are carried out in ordinary manners, since Asquith teaches method of cooling and freezing where the initiation of freezing occurs as a result of temperature and is silent to externally applied vibration. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the release of the supercooled state of step (II) naturally occurs without any externally applied vibration or physical stimulus as taught by Asquith (ice formation; col. 4 lines 8-10; col. 4 lines 65-67) since external applied vibration is not required to achieve the art recognized release of the supercooled state thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both.
The vegetables are selected from the group consisting of bean sprouts, onions, bell peppers, paprikas, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, asparagus, potatoes, green onions, and ginger (par. 0019).
With respect to claim 15, Asquith teaches cooling under a condition of -10C and/or -12.5C for 5 minutes or longer (col. 4 lines 49 and 50). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the cooling step being 5 min. or longer since rate of freezing is dependent on the size, shape and specific vegetable material thus providing an appropriate cooling rate to achieve a core temperature of less than -9C for a vegetable of a particular size and surface area as taught by Asquith (col. 4 lines 17-23).
With respect to claim 16, since Kosaka teaches the cooling and freezing steps are carried out in ordinary manners (par. 0025) since it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) and since Asquith teaches known manners of freezing. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to look to the art of cooling and freezing vegetables as taught by Asquith and taught cooling the vegetables by allowing the vegetables stand still under a condition of -5°C (col. 3 lines 36-47), thereby allowing the vegetables or fruit to become in a supercooled state (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool), and subsequently releasing the supercooled state (col. 4 lines 8-10; relative less than -5C; core not maintained at under cool state) and freezing the vegetable of step II (col. 3 lines 4-5; step III) as taught by Asquith thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both.
With respect to claim 18, Kosaka teaches a method for freezing vegetables comprising:
subjecting vegetables selected from the group consisting of bean sprouts, onions, bell peppers, paprikas, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, asparagus, potatoes, green onions, and ginger (par. 0019) to heat treatment under a condition of 100C to 250C (par. 0023 200C; par. 0050 100C) for a time which inactivates enzymes “while suppressing the tissue collapse” (par. 0012, 0013; par. 0023 2 min.; par. 0050 120 seconds/2min.).
(II) cooling the vegetables of step (1) (par. 0025; cooling) and
(III) freezing the vegetables of step (II) (par. 0025 freezing), wherein the heat treatment of step (i) is heat treatment to the extent at which cell tissues of the vegetables are damaged (par. 0012; damaged with respect to enzymes; part of vegetable) to allow a supercooled state to be generated within the cells (par. 0013 avoid tissue collapse responsible for deterioration of texture).
The heat treatment of step (I) is conducted by superheated steam heating (par. 0013, 0023).
It is noted the method is drawn to vegetables or fruit and in the instant case is taken with respect to vegetables from the group consisting of bean sprouts, onions, bell peppers, paprikas, carrots, radishes, spinach, cabbages, lettuces, broccolis, cauliflowers, asparagus, potatoes, green onions, and ginger (par. 0019).
Though silent to a heat treatment time of at least 180 seconds, Kosaka teaches heating temperature which are not lower than 100C (par. 0023). Kosaka further teaches heating temperatures of 200C relative a type of food and amount (par. 0023). Thus since the claims are silent to an amount, since the claims encompass 12 different vegetable types and since applicants specification at par 0082 of applicants pre-grant publication teaches “the temperature and time for applying the step of heat treatment vary, depending on factors such as the type, moisture level, size, shape and composition of the vegetable” to be frozen.
Thus since the type of food and amount would dictate heating time and since a lower temperature would require increased time to achieve the desired outcome. It would have been obvious to one of ordinary skill in the art at the time the invention was filed through routine experimentation to determine the heating time as taught by Kosaka (par. 0023 last 4 lines) with respect to a same temperature range as taught, such as in the instant case at least 180 seconds for its art recognized purpose achieving the simultaneous goal of Kosaka achieving vegetable foods which have been sterilized and in which peroxidase has been inactivated by a cooking treatment with the use of superheated steam, whereby a deterioration of texture is suppressed, more specifically, whereby a deterioration of texture, which is attributable to softening of the texture, enhanced water release caused by separation and flowing out of water in chewing, and change into the porous and sponge-like form, is suppressed after freezing and thawing as taught by Kosaka (par 0016).
With respect to “heat treatment to the extent at which cells of the vegetables or fruit are damaged to allow a supercooled state to be generated within the cells” by the heat treatment of step (i). Since the claimed heating temperature of at least 100C is taught by Kosaka (par. 0023), since Kosaka teaches a steam heating, since the extent of the claimed “damaged to allow” is not defined and since Kosaka teaches the same claimed processing step of heating which produce cell walls that are less collapsed (par. 0039).
It would have been obvious to one of ordinary skill in the art at the time of the invention to “damage” cells sufficiently, due to heating but without destroying cells thus achieving a same desired product texture and appearance improvement by suppressing tissue damage due to ice crystals as taught by Kosaka and Asquith (col. 1 lines 59-64) which produce cell walls that are less collapsed (par. 0039).
The phrase the “heat treatment to the extent at which cells of the vegetables or fruit are damaged” is an outcome which is defined by the heat treatment. A heat treatment and its properties are inseparable. Therefore, if the prior art teaches the identical fruit or vegetable and a same heat treating relative a desired extent, the properties claimed are necessarily present such as in the instant case with respect to an undefined “damaged” or extent of “damaged”.
Kosaka teaches the advantage of the provided method relative frozen vegetables where the cooling and freezing steps are carried out in ordinary manners (par. 0025) and thus one of ordinary skill in the art would have been motivated to look to the art of methods of cooling and freezing vegetables as taught by Asquith and more specifically of freezing vegetables which achieve a same desired product texture and appearance improvement by suppressing tissue damage due to ice crystals as taught by Kosaka and Asquith (col. 1 lines 59-64).
Asquith teaches process steps for freezing vegetables including after a heat treatment step, cooling the vegetables by allowing the vegetables or fruit stand still under a condition of -9°C to -15C (col. 3 lines 36-47) and more specifically a condition of -10C and/or -12.5C for 5 minutes or longer (col. 4 lines 49 and 50), thereby allowing the vegetables or fruit to become in a supercooled state (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool), and subsequently releasing the supercooled state (col. 4 lines 8-10; relative less than -5C i.e. -10C and/or -12.5C; alternatively core not maintained at under cool state; col. 4 line 49 i.e. continued cooling to freezing) and freezing the vegetable of step II (col. 3 lines 4-5; step III; col. 4 line 49)
Thus since Kosaka teaches the cooling and freezing steps are carried out in ordinary manners (par. 0025) since it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) and since Asquith teaches known manners of freezing which provide favorable vegetable properties when consumed after freezing (col. 4 lines 11-14). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to look to the art of cooling and freezing vegetables as taught by Asquith and taught cooling the vegetables by allowing the vegetables stand still under a condition of -9°C to -15°C (col. 3 lines 36-47), thereby allowing the vegetables or fruit to become in a supercooled state (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool) thereby allowing the vegetables or fruit to become in a supercooled state which is generated within the cells by cooling step (col. 4 line 6; state relative core, induce under cooling; col. 3 line 36; undercool), and subsequently releasing the supercooled state and freezing the vegetable of step II (col. 3 lines 4-5; step III) as taught by Asquith thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both and provide texture, appearance and thus product quality that was not previously possible in frozen vegetables as taught by Asquith (col. 2 lines 1-3).
With respect to claim 19, Asquith teaches the release of the supercooled state of step (II) naturally occurs without any externally applied vibration (ice formation; col. 4 lines 8-10; col. 4 lines 65-67). Since Kosaka teaches it is the heating method which suppress tissue collapse and a deterioration of the texture after freezing (par. 0013) where the cooling and freezing are carried out in ordinary manners, since Asquith teaches method of cooling and freezing where the initiation of freezing occurs as a result of temperature and is silent to externally applied vibration. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the release of the supercooled state of step (II) naturally occurs without any externally applied vibration as taught by Asquith (ice formation; col. 4 lines 8-10; col. 4 lines 65-67) since external applied vibration is not required to achieve the art recognized release of the supercooled state thus achieving the same desired frozen vegetable and more specifically a frozen vegetable without deterioration of texture as desired by both.
Response to Arguments
With respect to applicants urging directed to the 112 rejection and the claimed “damaged to allow”. Though applicant urges the phrase is definite in view of Kobayashi. Importantly the phrase and its definition are taken with respect to the specification. In the instant case the term “damaged” requires a specific effect, i.e. to allow a supercooled state to be generated within the cells. Thus in the instant case the phrase is not limited by a definitive extent or amount which achieves the effect. More specifically, applicants specification makes a distinction between “moderately damaged” and par. 0134 which teaches in the instant of 250C for 100 seconds or longer, which encompasses applicants claimed range, is excessive, “because excessive heating damages tissues”. Thus in one instance the specification relies on a relative term to define heating relative the cells, i.e. “damaged moderately” yet at the same time teaches “excessive heating damages tissues”. It is unclear what extent is required, relative the claimed temperature and time, to achieve the claimed “damaged”. It is unclear what extent of damaged” “allows a supercooled state to be generated”, it is unclear what amount of “damaged” does not allow a supercooled state to be generated.
In addition, applicants pre-grant publication specification at par. 0075 states the heat treatment to the “extent at which cell tissues of the vegetable or fruit are not destroyed”. Applicants specification at par. 0078 states “the heat treatment of step (i) is not harsh so as to avoid destroying cell tissues of the vegetables or fruit, where par. 0079 teaches “a state where cells are damaged… destruction of cell tissues does not occur. Thus it is unclear what degree or extent is encompassed by the phrase “damaged” relative the teaching of the specification “cell tissues of the vegetable or fruit are not destroyed”. It is unclear what extent is required, relative the claimed temperature and time, to achieve the claimed “damaged” yet are not “destroyed”. It is unclear what extent of “damaged” “allows a supercooled state to be generated” but “cell tissues of the vegetable or fruit are not destroyed”
With respect to applicants urging directed to Kosaka and the Declaration providing evidence of the distinction. It is initially noted applicants Declaration is silent to providing evidence with respect to the definitive statement “the heat treated vegetables did not allow a supercooled state to be generated”.
In addition the provided Declaration is not commensurate with the scope of the claims which provides for a range of temperatures from 100C to 250C and a group of vegetables including cabbage, broccoli and onions as taught by Kosaka (par. 0019).
Thus with respect to the urgings “the heat treated vegetables did not allow a supercooled state to be generated”, the Declaration is directed to examples 1 and 2 of Kosaka. It is noted the examples are directed to a different kind of vegetable than relied upon with respect to Kosaka.
The provided Declaration does not provide comparative evidence commensurate with the scope of the claims. The Declaration does not provide results, commensurate with the scope of the claims which provide evidence that under the claimed conditions all vegetables claimed achieve a heat treated vegetables which did allow a supercooled state to be generated.
Applicant has not provided evidence or persuasive arguments that the heat treatment of Kosaka is not capable of allowing a supercooled state.
It is further noted Kosaka, as applicants specification teaches the heating process to prevent deterioration of texture after freezing and thawing (par. 0012).
It is noted that the declaration include(s) statements which amount to an affirmation that the claimed subject matter functions as it was intended to function. This is not relevant to the issue of nonobviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716.
Though silent to a heat treatment time of at least 180 seconds, Kosaka teaches heating temperature which are not lower than 100C (par. 0023). Kosaka further teaches heating temperatures of 200C relative a type of food and amount (par. 0023). Thus since the claims are silent to an amount, since the claims encompass 12 different vegetable types and since applicants specification at par 0082 of applicants pre-grant publication teaches “the temperature and time for applying the step of heat treatment vary, depending on factors such as the type, moisture level, size, shape and composition of the vegetable” to be frozen.
Thus since the type of food and amount would dictate heating time and since a lower temperature would require increased time to achieve the desired outcome. It would have been obvious to one of ordinary skill in the art at the time the invention was filed through routine experimentation to determine the heating time as taught by Kosaka (par. 0023 last 4 lines) with respect to a same temperature range as taught, such as in the instant case at least 180 seconds for its art recognized purpose achieving the simultaneous goal of Kosaka achieving vegetable foods which have been sterilized and in which peroxidase has been inactivated by a cooking treatment with the use of superheated steam, whereby a deterioration of texture is suppressed, more specifically, whereby a deterioration of texture, which is attributable to softening of the texture, enhanced water release caused by separation and flowing out of water in chewing, and change into the porous and sponge-like form, is suppressed after freezing and thawing as taught by Kosaka (par 0016).
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Disagreement as to the Examiner’s factual findings and reasoning for combining the references, without more, is insufficient to establish reversible error. Cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement. . . as to the existence of factual disputes do not amount to a developed argument.”).
The burden rests with applicant to establish testing that the comparisons are to the disclosure of the closest prior art, and supplied evidentiary showing is commensurate in scope with the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
The Declaration does not amount to persuasive evidence because applicant has not provided reliable data or experimental results sufficient to support those contentions that Kosaka is not capable of the claimed ability to generate a supercooled state due to steam heating at temperatures of at least 100C as taught by Kosaka. The Declaration does not provide comparative evidence distinguishing the heat treatment of Kosaka from that claimed.
Although applicant contends one of ordinary skill in the art would not expect Kosaka to be capable of this different result due to a same heating step, applicant does not provide an adequate explanation or direct us to reliable data or experimental results sufficient to support those contentions.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN N LEFF whose telephone number is (571)272-6527. The examiner can normally be reached on M-F 8:30-5:00.
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/STEVEN N LEFF/ Primary Examiner, Art Unit 1792