DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/2/26 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 31 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement due to the phrase of Independent claim 31 “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” relative the claimed food product consisting of “taffy, nougat, caramel and combinations therof”. 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. 0032 “the food product may comprise taffy, marshmallow, nougat, caramel, jam, syrup, or any combination thereof” and at par. 0067 the claimed viscosity range. The specification and drawing are silent to the art recognized types i.e. “taffy, nougat, caramel and combinations therof” at the claimed viscosity. Importantly the claimed viscosity encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP. Taffy and nougat however are not art recognized as or at typical viscosities of 5000cP, i.e. liquid properties. Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The phrase “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” in claim 31 is used by the claim to mean “taffy, nougat, caramel and combinations thereof” while the art recognized claimed types do not have liquid properties, i.e. 5000cp. Thus “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” relative the claimed food product consisting of “taffy, nougat, caramel and combinations therof” is not supported because the specification does not clearly redefine the claimed food types from typical art recognized viscosities.
Claims 32-33 and 35-36 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 of Independent claim 32 “wherein the food product separates into an oil phase and a solid phase when stored at room temperature”. 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. 0026 “the food product is capable of separating into an oil phase and at least one additional phase” the specification and drawing are silent to the definitive i.e. “the food product separates into an oil phase and a solid phase when stored at room temperature” where applicants specification merely states “capable of separating”. In addition the specification is silent to separation resulting in “a solid phase” since the specification merely teaches separating into “at least one additional phase”. In addition the specification is silent to separation at room temperature and more specifically is silent to separation at room temperature into an oil phase and a solid phase.
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 31-33 and 35-36 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.
Claim 31 is rejected due to the phrase “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” relative the claimed food product consisting of “taffy, nougat, caramel and combinations therof”. Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The phrase “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” in claim 31 is used by the claim to mean “taffy, nougat, caramel and combinations thereof” while the art recognized claimed types do not have liquid properties, i.e. 5000cp. Thus “the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP” relative the claimed food product consisting of “taffy, nougat, caramel and combinations therof” is indefinite because the specification does not clearly redefine the claimed food types from typical art recognized viscosities.
Claim 32 is rejected due to the phrase “the food product separates into an oil phase and a solid phase when stored at room temperature” since it is unclear if the term “solid” is with respect to the particles themselves, i.e. peanuts, almonds, cashews, pecans, coconut or hazelnut, if the phrase is with respect to the broad food product absent separated oil, if the phrase is with respect to broadly a “solid phase” relative oil viscosity or with respect to something different altogether. It is further unclear if the phrase is with respect to properties of the food product itself, i.e. a result of the type of product itself irrespective of the container or if the phrase is with respect to an active step which occurs within the container and storage at room temperature, i.e. separates due to being sealed together with a propellant or with respect to something different altogether.
Claim Rejections - 35 USC § 103
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.
Claims 1-6, 9, 17-21, 24, 25 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Muller et al (DE 102015108900 with translation) in view of Herzog (Milwaukee Journal Sentinel) and/or Cream Cheese Spray Container (Packaging World).
Regarding claim 1, Muller teaches a containerization system for dispensing a foamed food product (Abstract “It is a spray sauce in the form of a spray foam from a thick to pasty sauce...The spray sauce is ready to serve in a packaging and dispensing unit") comprising:
a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (para [0014] "These are spray cans, which include a pressure vessel or pressure-resistant container, a dispensing valve and a nozzle": see Fig 1 that shows this container with a base and sidewall);
a propellant (para [0014] "When spraying by means of propellant gas..."), and
a food product composition comprising:
a food product of recipes that are known to a person skilled in the art (par. 0002) can be used practically unchanged (par. 0022), where the food product separates into an oil phase and at least one additional phase (par. 0002 relative oil in mixture, Oil separate at the top of the mayonnaise)
from about 25 wt. % to about 55 wt. % of a diluent comprising water and oil (par. 0024), where the diluent comprises from about 50 wt.% to about 99 wt.% of oil based on the total weight of the diluent (par. 0024)
an emulsifier (par. 0005 consistency desired)
wherein: the propellant and the food product composition are sealed within the single chamber of the container (para [0016] "in which the cold sauce and at least one propellant gas are, the Can content is under a pressure"), and at least a portion of the propellant is capable of settling above the food product composition when the container is in an unshaken and upright position (para [0017] "The individual gases are preferably selected from the group dinitrogen monoxide (N20), carbon dioxide (CO2), nitrogen (N2) or air "; it is understood these gases are less dense than food product, so they will settle above the food product when the container is unshaken and upright);
the oil phase does not leak from the nozzle of the container during storage of the system (relative upright; alternatively relative container; alternatively pressure vessel thus if pressure maintained no leak)
the food product composition is capable of forming a foamable food mixture with at least a portion of the propellant when the container is shaken (para [0014] “the propellant gas, or the gas phase in the container, partially in the submitted liquid phase, here the flowable sauce dissolves", it is understood that if the propellant dissolves in the food product that it will when shaken as well);
The foamable food mixture is capable of flowing toward the nozzle of the container upon inversion of the container (para [0014] "The sauce is in the can in flowable form.", see fig. 1 that shows the container upside down so the sauce flows to the nozzle) so that the foamable food mixture is dispensed from the nozzle when the nozzle is activated (para [0014] "The inventive method uses a can for the delivery of spray foam", it is understood that this will come from the nozzle, see Fig 1 that shows this) and
the foamable food mixture is capable of expanding in volume when it is dispensed from the nozzle, forming a foamed food product (para [0012] “This is ensured, among other things, by a moderate increase in volume.”). Muller teaches food products including dips (see claim 2).
Muller teaches the advantage of the container system is that classic recipes can be used practically unchanged (par. 0022) including sauces or dips used as sides to crackers and the like (par. 0002) including emulsifiers (par 0002) such as mayonnaise and thus one of ordinary skill in the art would have been motivated to look to the art of known spray container systems of thick to pasty cold sauces as taught by Muller.
Muller teaches a diluent and if necessary emulsifiers (par. 0002, 0005) as recipes that are known to a person skilled in the art (par. 0002) though silent to the food product composition comprising: from about 40 wt. % to about 55 wt. % of the food product and from about 25 wt. % to about 55 wt. % of a diluent and from about .25 wt. % to about 5 wt. % of an emulsifier.
Herzog (Milwaukee Journal Sentinel) teaches an aerosol cream cheese (see document).
Cream Cheese Spray Container (Packaging World) teaches a cream cheese spray (see document).
Since Muller does teach the container system for providing a foamed food product using classic recipes (par. 0022), since Muller teaches one of ordinary skill though perceived as two different recipes, i.e. food product types, the distinction between two different recipes is not limited by the taught “basic sauce” (par. 0013) to achieve the desired foamed food product upon dispensing and since Muller formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products (par. 0014)
It would have been obvious to one skilled in the art at the time the invention was filed to substitute one known type of sauces or dips used as sides to crackers and the like (par. 0002) with respect to the teaching of classic sauce recipes which can be used practically unchanged as further taught, such as in the instant case aerosol cream cheese as taught by Herzog and Packaging World, for its art recognized and applicants intended purpose providing a foamed food product upon dispensing as taught by Muller and since market forces provide the motivation to provide consumers with different cold sauces which foam as taught.
Though silent to the food product relative the recipe of ingredients being from about 40 wt.% to about 55 wt.%. It would have been obvious to one skilled in the art at the time the invention was filed to teach a desired recipe of ingredients which are known as a type of food product, such as in the instant case from about 40 wt.% to about 55 wt.%. cream cheese as taught by Herzog and Packaging World. Thus achieving the goal of Muller of different types of sauces or dips used as sides to crackers and the like (par. 0002), such as in the instant case aerosol cream cheese as taught by Herzog and Packaging World for its art recognized and applicants intended purpose providing a foamed food product upon dispensing from cans as taught by Muller.
Since Muller teaches foamed food products of a thick to pasty cold sauce (par. 0010), since Muller teaches use of known recipes and since the foamed food product should retain a same taste experience of the original sauce.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the recipe of ingredients being from about 40 wt.% to about 55 wt.% since new recipes or formulas for food which involve the addition or elimination of common ingredients, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Since Muller teachers the sauce in the can in flowable form (par. 0014), since the diluent, i.e. oil or water and their requisite amounts are food product specific, i.e. recipe as taught by Muller, since Muller teaches adjusting the consistency of the food product (para [0022], since Muller teaches the diluent comprising oil in an amount of 50% (par. 0024) and since Herzog and Packaging World teach known aerosol cream cheese.
Therefore, in view of Muller, it would have been obvious to one skilled in the art at the time the invention was filed to use a diluent to adjust the consistency and/or with respect to a known recipe specific to type, and in the above proportions through routine experimentation to achieve a desired food type, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since foamed food products and desired effects of the food composition after dispensing which are effected by product formulation such as in the instant case foamed food as taught by Muller and known cream cheese contained in a can as taught by Herzog and Packaging World.
Similarly, though silent to the amount of emulsifier, since the requisite amount and inclusion is food product specific of known recipe types as taught by Muller.
Since Muller teachers the sauce in the can in flowable form (par. 0014), since the diluent, i.e. oil or water and their requisite amounts are food product specific, i.e. recipe as taught by Muller, since Muller teaches adjusting the consistency of the food product (para [0022] and teaches formula adjustment of the aerosol food product (par. 0021).
Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to include an emulsifier in an amount of .25 wt.% to 5 wt. % both to adjust the consistency and/or with respect to a known recipe specific to type, and in the above proportions through routine experimentation to achieve a desired food type, such as canned cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation (pg. 3).
In addition, since the amounts claimed relative the food product are dependent on an unclaimed size of the container and an unclaimed viscosity of the food product relative an amount of propellant gas also in the container volume for achieving the desired result taught (par. 0012; 0021).
It would have been obvious to one skilled in the art to use the above proportions through routine experimentation to provide a desired type of food product and at formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products as taught by Mueller (par. 0014) and such as aerosol cream cheese as taught by Herzog and Packaging World
In addition, though silent to foamed cream cheese, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969).
Though Muller is silent to the viscosity of the spray product, Muller does teach adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted"). In addition the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality.
Thus since Muller teaches the food product in the can in flowable form (par. 0014), since Muller teaches the food product as a thick to pasty cold sauce (par. 0010) and since Herzog and Packaging world teaches aerosol cream cheese. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP since the viscosity is product dependent, since Muller teaches a same desired consistency encompassed by the range, i.e. thick to pasty, to achieve spray and thereby achieving the desired type of product and absorption of the gas for dispensing, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller desired effects of the food composition after dispensing which are effected by product formulation (par. 0012).
Regarding claim 2, Muller teaches the system of claim 1. Muller does not teach wherein the food product composition comprises from about 40 to about 50 wt. %, of a food product.
It would have been obvious to one skilled in the art at the time the invention was filed to teach a desired recipe of ingredients which are known as a type of food product, such as in the instant case from about 40 wt.% to about 55 wt.%. cream cheese as taught by Herzog and Packaging World. Thus achieving the goal of Muller of different types of sauces or dips used as sides to crackers and the like (par. 0002), such as in the instant case aerosol cream cheese as taught by Herzog and Packaging World for its art recognized and applicants intended purpose providing a foamed food product upon dispensing from cans as taught by Muller.
Since Muller teaches foamed food products of a thick to pasty cold sauce (par. 0010), since Muller teaches use of known recipes and since the foamed food product should retain a same taste experience of the original sauce.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the recipe of ingredients being from about 40 wt.% to about 55 wt.% since new recipes or formulas for food which involve the addition or elimination of common ingredients, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Since Muller teachers the sauce in the can in flowable form (par. 0014), since the diluent, i.e. oil or water and their requisite amounts are food product specific, i.e. recipe as taught by Muller, since Muller teaches adjusting the consistency of the food product (para [0022], since Muller teaches the diluent comprising oil in an amount of 50% (par. 0024) and since Herzog and Packaging World teach known aerosol cream cheese.
Therefore, in view of Muller, it would have been obvious to one skilled in the art at the time the invention was filed to use a diluent to adjust the consistency and/or with respect to a known recipe specific to type, and in the above proportions through routine experimentation to achieve a desired food type, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since foamed food products and desired effects of the food composition after dispensing which are effected by product formulation such as in the instant case foamed food as taught by Muller and known cream cheese contained in a can as taught by Herzog and Packaging World.
Regarding claim 3, Muller teaches the system of claim 1 wherein the food product composition comprises from about 25 wt. % to about 50 wt. % of the diluent.
Since Muller does teach oil in an amount of 50% (par. 0024) and since Muller teaches adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted and since Herzog and Packaging world teaches aerosol cream cheese. Therefore, in view of Berger it would have been obvious to one skilled in the art to use a diluent to adjust the consistency and in the above proportions through routine experimentation to achieve a desired food type, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since Berger teaches aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation (pg. 3).
Regarding claims 4-6, Muller teaches water and rapeseed oil (see paragraph [0024]). It would have been obvious to one skilled in the art to use these proportions through routine experimentation. Since Muller does teach adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted"), and since Herzog and Packaging world teaches aerosol cream cheese. Therefore, it would have been obvious to one skilled in the art to use a diluent to adjust the consistency and in the above proportions through routine experimentation to achieve a desired food type, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since Berger teaches aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation (pg. 3).
Regarding claim 9, Muller teach propellant gases including nitrous oxide, carbon dioxide, nitrogen or air (see paragraph [0017]).
Regarding claim 17, Muller teaches the food product composition further comprising a sugar (par. 0002, 0025-0027).
With respect to claim 18, the food product composition further comprising milk, a sweetener, preservative, flavorant, colorant, wetting agent, binder, stabilizer, rheology modifying agent, oil, or combinations thereof. (par. 0002, 0025-0027).
Regarding claim 19, the water activity would be no more than that expected from the components utilized. Furthermore, the water activity would be selected for increased shelf-life and relative the food product itself. It would have been obvious to one skilled in the art to teach the desired water activity which is a result of the desired final product desired through routine experimentation to achieve a desired food type, such as aerosol cream cheese as taught by Herzog and Packaging World and since the composition is dependent on the desired food product for spraying as taught by Muller.
Regarding claims 20 and 21, Muller teaches food products that are emulsions (par. 0005) and food products that are not emulsions (par. 0005).
Regarding claims 24, 25, and 29, Muller teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (see paragraphs [0018]-[0021]), such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller and since aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation and the desired type of product by absorption of the gas for dispensing as further taught by Muller.
Since Muller teaches the food product in the can in flowable form (par. 0014), since Muller teaches the food product as a thick to pasty cold sauce (par. 0010) and since Herzog and Packaging world teaches aerosol cream cheese. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 10,000 to about 200,000 cP since the viscosity is product dependent, since Muller teaches a same desired consistency encompassed by the range, i.e. thick to pasty, to achieve spray and thereby achieving the desired type of product and absorption of the gas for dispensing, such as aerosol cream cheese as taught by Herzog and Packaging World, since the composition is dependent on the desired food product for spraying as taught by Muller desired effects of the food composition after dispensing which are effected by product formulation (par. 0012).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the contents of the containerization system are storage stable for at least about 1 week when measured at a temperature of 25°C and an atmospheric pressure of 1 bar for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the dispensed foamed food product maintains a foam state for at least about 5 minutes for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results of stable foamed food as taught by Mueller.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Muller et al (DE 102015108900 with translation) in view of Bower (3366494).
Regarding claim 31, Muller teaches a containerization system for dispensing a foamed food product (Abstract “It is a spray sauce in the form of a spray foam from a thick to pasty sauce...The spray sauce is ready to serve in a packaging and dispensing unit") comprising:
a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (para [0014] "These are spray cans, which include a pressure vessel or pressure-resistant container, a dispensing valve and a nozzle": see Fig 1 that shows this container with a base and sidewall);
a propellant (para [0014] "When spraying by means of propellant gas..."), and
a food product composition comprising:
a food product of recipes that are known to a person skilled in the art (par. 0002) can be used practically unchanged (par. 0022), where the food product separates into an oil phase and at least one additional phase (par. 0002 relative oil in mixture, Oil separate at the top of the mayonnaise)
from about 25 wt. % to about 55 wt. % of a diluent comprising water and oil (par. 0024), where the diluent comprises from about 50 wt.% to about 99 wt.% of oil based on the total weight of the diluent (par. 0024)
an emulsifier (par. 0005 consistency desired)
wherein: the propellant and the food product composition are sealed within the single chamber of the container (para [0016] "in which the cold sauce and at least one propellant gas are, the Can content is under a pressure"), and at least a portion of the propellant is capable of settling above the food product composition when the container is in an unshaken and upright position (para [0017] "The individual gases are preferably selected from the group dinitrogen monoxide (N20), carbon dioxide (CO2), nitrogen (N2) or air "; it is understood these gases are less dense than food product, so they will settle above the food product when the container is unshaken and upright);
the oil phase does not leak from the nozzle of the container during storage of the system (relative upright; alternatively relative container; alternatively pressure vessel thus if pressure maintained no leak)
the food product composition is capable of forming a foamable food mixture with at least a portion of the propellant when the container is shaken (para [0014] “the propellant gas, or the gas phase in the container, partially in the submitted liquid phase, here the flowable sauce dissolves", it is understood that if the propellant dissolves in the food product that it will when shaken as well);
The foamable food mixture is capable of flowing toward the nozzle of the container upon inversion of the container (para [0014] "The sauce is in the can in flowable form.", see fig. 1 that shows the container upside down so the sauce flows to the nozzle) so that the foamable food mixture is dispensed from the nozzle when the nozzle is activated (para [0014] "The inventive method uses a can for the delivery of spray foam", it is understood that this will come from the nozzle, see Fig 1 that shows this) and
the foamable food mixture is capable of expanding in volume when it is dispensed from the nozzle, forming a foamed food product (para [0012] “This is ensured, among other things, by a moderate increase in volume.”). Muller teaches food products including dips (see claim 2).
Muller teaches aerosol foamed products and thus one of ordinary skill in the art would have been motivated to look to the art of aerosol foam food as taught by Bower.
Bower teaches a containerization system for dispensing a foamed food product (col. 1 lines 15-19) comprising: a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (col. 1 lines 52-55); a propellant (col. 1 lines 42-43); and
a food product composition comprising:
from about 30 wt. % to about 80 wt. % of a food product (col. 3 lines 13-14; relative emulsion amount 10-40%).
and from about 20 wt. % to about 70 wt. % of a diluent comprising water and oil (col. 3 lines 13-15)
Muller teaches the composition comprising sugar, in addition to teaching at par. 0026 the sugar being a syrup. Muller teaches the composition, depending on the desired composition comprising water and/or oil (par. 0002) including 50% oil in the composition (par. 0024)
Thus since the composition is dependent on the desired food product for spraying as taught by Muller comprising syrup, since Bower teaches aerosol food products and desired effects of the food composition after dispensing include aerosol whipped marshmallow which is an airy product or more broadly flavored toppings (col. 5 lines 60-63) thus providing motivation for other airy and/or flavored toppings.
Since the claimed foods are vastly different types and compositions thus the food product lacks criticality where the claimed composition ranges are the constant.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a desired flavored topping, such as in the instant case taffy, nougat, caramel, and combinations since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68) thus achieving the art recognized foamable food when dispensed and desired flavors which are not limited (col. 2 lines 22-23).
Though silent to the diluent in an amount of at least 20% with respect to the taught case taffy, nougat, caramel, and combinations, Bower teaches the diluent comprising oil and water in an amount up to 40%. Thus since Muller teaches the same diluent comprising oil and water as taught by Bower. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68).
In addition, "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case since Bower teaches the diluent comprising oil and water in an amount up to 40%. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68).
Alternatively, since the food product comprises water and since the food product water content would contribute to the overall percent of water in the total composition. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68).
It would have been obvious to one skilled in the art to use the above proportions relative a taffy, nougat, caramel, or combinations foamed product through routine experimentation to provide a desired type of food product and at formulation which prevent the food product to not leak to prevent mess and loss of product by stability and providing a foamed product as desired by both and since the composition is dependent on the desired food product for spraying as taught by Muller and since aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation.
Muller teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (see paragraphs [0018]-[0021]). Thus since the composition is dependent on the desired food product for spraying as taught by Muller and since Bower teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (col. 2 lines 14-15), since the composition is dependent on the desired food product for spraying as taught by and since aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation
Though Muller is silent to the viscosity of the spray product, Muller does teach adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted"). In addition the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality.
Thus since Muller teaches the food product in the can in flowable form (par. 0014), since Muller teaches the food product as a thick to pasty cold sauce (par. 0010). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 5000 to about 250,000 cP since the viscosity is product dependent, since Muller teaches a same desired consistency encompassed by the range, i.e. thick to pasty, to achieve spray and thereby achieving the desired type of product and absorption of the gas for dispensing, such as aerosol cream cheese as taught, since the composition is dependent on the desired food product for spraying as taught by Muller desired effects of the food composition after dispensing which are effected by product formulation (par. 0012).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the contents of the containerization system are storage stable for at least about 1 week when measured at a temperature of 25°C and an atmospheric pressure of 1 bar for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results.
Claims 1-6, 9, 17-20, 24-25, 29 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Bower et al. (3366494).
Bower teaches with respect to claim 1, a containerization system for dispensing a foamed food product (col. 1 lines 15-19) comprising:
a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (col. 1 lines 52-55);
a propellant (col. 1 lines 42-43); and
a food product composition comprising:
a variable amount of a food product (col. 3 lines 13-17) in a range of encompassing 40% (col. 1 lines 44-45) comprising cream cheese (col. 5 line 62) or sour cream (col. 5 line 62)
from about 25 wt. % to about 55 wt. % of a diluent (col. 1 line 41-42 edible fatty oil) and
from about 0.25 wt.% to about 5 wt.% of an emulsifier (col. 1 line 40)
the propellant and the food product composition are sealed (col. 3 lines 26-28) within the single chamber of the container (col. 1 lines 52-55).
The foamable food mixture is capable of expanding in volume when it is dispensed from the nozzle, forming a foamed food product (col. 2 lines 13-15; col. 3 lines 27-30)
In a first instant, since Bower teachers a same food product, i.e. cream cheese (col. 5 line 62) or sour cream (col. 5 line 62), Bower is taken to teach the food product composition prior to being sealed in the container is from about 5,000 to about 250,000 cP.
Though silent to the amount of from about 40 wt. % to about 55 wt. % of a food product, Bower does teach in addition to the food product the sealed container further comprises the same claimed propellant in an amount to sufficiently discharge the contents (col. 3 lines 27-30) including for example 7% (col. 4 lines 5-6).
Thus since Bower teaches cream cheese (col. 5 line 62) or sour cream (col. 5 line 62), since Bower teaches the food composition in an amount including 60% (col. 3 lines 13-15), since the addition of propellant to the container would reduce the overall weight percent of the contents of the claimed and taught container system. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the container system comprising a propellant, where the food composition includes an amount of from about 40 wt. % to about 55 wt. % thus achieving a same desired food product type which comprises the same claimed propellant in an amount to sufficiently discharge the contents (col. 3 lines 27-30) and forming foam stable food products as further taught.
Alternatively, since Bower teaches cream cheese (col. 5 line 62) or sour cream (col. 5 line 62), since Bower teaches the addition of flavors or additives depending on the particular food formulations (col. 2 lines 23-25), since Bower teaches the food composition in an amount including 60% (col. 3 lines 13-15), since the addition of flavor or additives as taught by Bower or with respect to claims 17 and 18, would reduce the overall weight percent of the contents of the claimed and taught food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach due to the addition of additives or flavors the food composition includes an amount of from about 40 wt. % to about 55 wt. % thus achieving a desired food product type of increased desirability and marketability due to the addition of flavors and additives.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach due to the addition of additives or flavors the food composition includes an amount of from about 40 wt. % to about 55 wt. % since new recipes or formulas for food which involve the addition or elimination of common ingredients, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Such as in the instant case to achieve a same cream cheese (col. 5 line 62) or sour cream (col. 5 line 62) food product.
Bower teaches the propellant and the food product composition are sealed (col. 3 lines 26-28) within the single chamber of the container (col. 1 lines 52-55). It is noted at least a portion of the propellant is capable of settling above the food product composition when the container is in an unshaken and upright position, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Bower teaches a same aerosol propellant which is a gas and would less dense than the emulsion thus settling above.
The food product composition is capable of forming a foamable food mixture (col. 1 lines 17). It is noted the capability of at least a portion of the propellant when the container is shaken is taken to teach such since the Bower teaches the dispensing of a foamed product and thus would so upon shaking. In addition, the capability as a result of shaking and the foamable food mixture is capable of flowing toward the nozzle of the container upon inversion of the container after the container is shaken so that the foamable food mixture is dispensed from the nozzle when the nozzle is activated as recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Bower teaches a same aerosol propellant for dispensing a foamed food and since Bower teaches the foamable food mixture is capable of expanding in volume when it is dispensed from the nozzle, forming a foamed food product (col. 5 line 65).
Bower teaches the food product including cream cheese (col. 5 line 62) or sour cream (col. 5 line 62).
Alternatively, Bower teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (col. 2 lines 14-15), since the composition is dependent on the desired food product for spraying as taught, since aerosol food products and desired effects of the food composition after dispensing are effected by product formulation and since the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 5,000 to about 250,000 cP thus achieving the desired type of product for dispensing, such as in the instant case cream cheese (col. 5 line 62) or sour cream (col. 5 line 62) as taught.
Claim 2, though silent to the amount of from about 40 wt. % to about 50 wt. % of a food product, Bower does teach in addition to the food product the sealed container further comprises the same claimed propellant in an amount to sufficiently discharge the contents (col. 3 lines 27-30) including for example 7% (col. 4 lines 5-6) and the addition of flavors or additives depending on the particular food formulations (col. 2 lines 23-25)
Thus since Bower teaches the food composition in an amount including 60% (col. 3 lines 13-15), since the addition of propellant to the container would reduce the overall weight percent of the contents of the claimed and taught container system since the addition of flavor or additives as taught by Bower would reduce the overall weight percent of the contents of the claimed and taught food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the container system comprising a propellant, where the food composition includes an amount of from about 40 wt. % to about 50 wt. % thus achieving a same desired food product type which comprises the same claimed propellant in an amount to sufficiently discharge the contents (col. 3 lines 27-30) and forming foam stable food products as further taught of increased desirability and marketability due to the addition of flavors and additives.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach due to the addition of additives or flavors the food composition includes an amount of from about 40 wt. % to about 50 wt. % since new recipes or formulas for food which involve the addition or elimination of common ingredients, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Claim 3, the food product composition comprises from about 25 wt. % to about 50 wt. % of the diluent (col. 1 lines 41).
Claim 4, wherein the diluent comprises water and oil (col. 1 line 40).
Claim 5, the oil is selected from the group consisting coconut oil (col. 2 lines 29).
Claim 6, wherein the diluent comprises from about 50 wt.% to about 99 wt.% of oil based on the total weight of the diluent (col. 3 lines 7-8).
Claim 9, wherein the propellant comprises nitrous oxide (col. 3 line 37).
Claim 17, the food product composition further comprises a sugar (col. 3 line 1).
Claim 18, the group consisting of milk, cream, a sweetener (col. 3 line 1), preservative, flavorant (col. 3 line 1), colorant, humectant, wetting agent, binder, stabilizer, rheology modifying agent, oil (col. 3 lines 5-6), or combinations thereof.
With respect to claim 19, though silent to the water activity since the water activity would be selected for increased shelf-life. It would have been obvious to one skilled in the art at the time the invention was filed to teach the desired water activity which is a result of the desired final product desired through routine experimentation to achieve a desired food type, since the composition is dependent on the desired food product for spraying and achieving the same desired foamed food product.
Claim 20, the food product composition is an emulsion (col. 3 lines 10-11).
Regarding claims 24, In a first instant, since Bower teachers a same food product, i.e. cream cheese (col. 5 line 62) or sour cream (col. 5 line 62), Bower is taken to teach the food product composition prior to being sealed in the container is from about 10,000 to about 200,000 cP.
Alternatively, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 10,000 to about 200,000 cP thus achieving the desired type of product for dispensing, such as in the instant case cream cheese (col. 5 line 62) or sour cream (col. 5 line 62) as taught.
With respect to claims 25 and 29, Bower teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (col. 2 lines 14-15), since the composition is dependent on the desired food product for spraying as taught by and since aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation and since Bower teaches a same food product.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the contents of the containerization system are storage stable for at least about 1 week when measured at a temperature of 25°C and an atmospheric pressure of 1 bar for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the dispensed foamed food product maintains a foam state for at least about 5 minutes for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results of stable foamed food as taught by Bower.
With respect to claim 31, a containerization system for dispensing a foamed food product (col. 1 lines 15-19) comprising:
a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (col. 1 lines 52-55);
a propellant (col. 1 lines 42-43); and
a food product composition comprising:
from about 30 wt. % to about 80 wt. % of a food product (col. 3 lines 13-15)
and from about 20 wt. % to about 70 wt. % of a diluent comprising water and oil (col. 3 lines 6-8, 13-15 relative 20-40%)
Bower further teaches the food product is not limited.
With respect to the claimed foods claimed. The claimed foods are vastly different types and compositions thus the food product lacks criticality where the claimed composition ranges are the constant.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a desired flavored topping, such as in the instant case taffy, nougat, caramel, and combinations since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68) thus providing alternative and additional formulations including confections such as taught by Bower with respect to marshmallow and since alternative foods for dispensing, capable of such, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Though silent to the diluent in an amount of at least 20%, Bower teaches the diluent comprising oil and water in an amount up to 40%. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68).
In addition, "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case since Bower teaches the diluent comprising oil and water in an amount up to 40%. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68).
Alternatively, since the food product comprises water and since the food product water content would contribute to the overall percent of water in the total composition. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach an amount of diluent encompassing 20-40% as taught by Bower since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68) and obtaining a desired food product.
Bower teaches the propellant and the food product composition are sealed (col. 3 lines 26-28) within the single chamber of the container (col. 1 lines 52-55). It is noted at least a portion of the propellant is capable of settling above the food product composition when the container is in an unshaken and upright position, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Bower teaches a same aerosol propellant which is a gas and would less dense than the emulsion thus settling above.
Bower teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (col. 2 lines 14-15), since the composition is dependent on the desired food product for spraying as taught, since aerosol food products and desired effects of the food composition after dispensing are effected by product formulation and since the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 5,000 to about 250,000 cP thus achieving the desired type of product for dispensing.
The food product composition is capable of forming a foamable food mixture (col. 1 lines 17). It is noted the capability of at least a portion of the propellant when the container is shaken is taken to teach such since the Bower teaches the dispensing of a foamed product and thus would so upon shaking. In addition, the capability as a result of shaking and the foamable food mixture is capable of flowing toward the nozzle of the container upon inversion of the container after the container is shaken so that the foamable food mixture is dispensed from the nozzle when the nozzle is activated as recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Bower teaches a same aerosol propellant for dispensing a foamed food.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the contents of the containerization system are storage stable for at least about 1 week when measured at a temperature of 25°C and an atmospheric pressure of 1 bar for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results.
Claims 32-33 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Muller et al (DE 102015108900 with translation) in view of Berger (A Guide to Packaging An Aerosol Food Product).
Regarding claim 32, Muller teaches a containerization system for dispensing a foamed food product (Abstract “It is a spray sauce in the form of a spray foam from a thick to pasty sauce...The spray sauce is ready to serve in a packaging and dispensing unit") comprising:
a single chamber pressure-resistant container comprising a base, a sidewall, and a nozzle (para [0014] "These are spray cans, which include a pressure vessel or pressure-resistant container, a dispensing valve and a nozzle": see Fig 1 that shows this container with a base and sidewall);
a propellant (para [0014] "When spraying by means of propellant gas..."), and
a food product composition comprising:
a food product of recipes that are known to a person skilled in the art (par. 0002) can be used practically unchanged (par. 0022), where the food product separates into an oil phase and at least one additional phase (par. 0002 relative oil in mixture, Oil separate at the top of the mayonnaise)
from about 25 wt. % to about 55 wt. % of a diluent comprising water and oil (par. 0024), where the diluent comprises from about 50 wt.% to about 99 wt.% of oil based on the total weight of the diluent (par. 0024)
an emulsifier (par. 0005 consistency desired)
wherein: the propellant and the food product composition are sealed within the single chamber of the container (para [0016] "in which the cold sauce and at least one propellant gas are, the Can content is under a pressure"), and at least a portion of the propellant is capable of settling above the food product composition when the container is in an unshaken and upright position (para [0017] "The individual gases are preferably selected from the group dinitrogen monoxide (N20), carbon dioxide (CO2), nitrogen (N2) or air "; it is understood these gases are less dense than food product, so they will settle above the food product when the container is unshaken and upright);
the oil phase does not leak from the nozzle of the container during storage of the system (relative upright; alternatively relative container; alternatively pressure vessel thus if pressure maintained no leak)
the food product composition is capable of forming a foamable food mixture with at least a portion of the propellant when the container is shaken (para [0014] “the propellant gas, or the gas phase in the container, partially in the submitted liquid phase, here the flowable sauce dissolves", it is understood that if the propellant dissolves in the food product that it will when shaken as well);
The foamable food mixture is capable of flowing toward the nozzle of the container upon inversion of the container (para [0014] "The sauce is in the can in flowable form.", see fig. 1 that shows the container upside down so the sauce flows to the nozzle) so that the foamable food mixture is dispensed from the nozzle when the nozzle is activated (para [0014] "The inventive method uses a can for the delivery of spray foam", it is understood that this will come from the nozzle, see Fig 1 that shows this) and
the foamable food mixture is capable of expanding in volume when it is dispensed from the nozzle, forming a foamed food product (para [0012] “This is ensured, among other things, by a moderate increase in volume.”). Muller teaches food products including dips (see claim 2).
Muller teaches the advantage of the container system is that classic recipes can be used practically unchanged (par. 0022) including sauces or dips used as sides to crackers and the like (par. 0002) and thus one of ordinary skill in the art would have been motivated to look to the art of known propellant packaging of foods as taught by Berger.
Berger (A Guide to Packaging An Aerosol Food Product) teaches the basics of packaging an aerosol food product including formula adjustment (see entire document) and known aerosol products including peanut butter (pg. 3 par. 1).
Since Muller does teach the container system for providing a foamed food product using classic recipes (par. 0022), since Muller teaches one of ordinary skill though perceived as two different recipes, i.e. food product types, the distinction between two different recipes is not limited by the taught “basic sauce” (par. 0013) to achieve the desired foamed food product upon dispensing and since Muller formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products (par. 0014)
It would have been obvious to one skilled in the art at the time the invention was filed to substitute one known type of sauces or dips used as sides to crackers and the like (par. 0002) with respect to the teaching of classic sauce recipes which can be used practically unchanged as further taught, such as in the instant case peanut butter as taught by Berger for its art recognized and applicants intended purpose providing a foamed food product upon dispensing as taught by Muller and since market forces provide the motivation to provide consumers with pursuit of convenient time saving products as taught by Berger (pg. 3 par. 1)
Though silent to the food product relative the recipe of ingredients being from about 40 wt.% to about 65 wt.%. It would have been obvious to one skilled in the art at the time the invention was filed to teach a desired recipe of ingredients which are known as a type of food product, such as in the instant case from about 40 wt.% to about 65 wt.%. peanut butter. Thus achieving the goal of Muller of different types of sauces or dips used as sides to crackers and the like (par. 0002), such as in the instant case peanut butter as taught by Berger for its art recognized and applicants intended purpose providing a foamed food product upon dispensing as taught by Muller and since market forces provide the motivation to provide consumers with pursuit of convenient time saving products as taught by Berger (pg. 3 par. 1).
In addition the claimed different types of food products, i.e. peanut butter, almond butter, cashew butter, pecan butter, coconut butter, hazelnut butter and further including “combination thereof” as claimed are vastly different food products both in composition, type, consistency and viscosity.
Thus since Muller teaches foamed food products of a thick to pasty cold sauce (par. 0010), since Muller teaches use of known recipes and since the foamed food product should retain a same taste experience of the original sauce.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the recipe of ingredients being from about 40 wt.% to about 65 wt.% since new recipes or formulas for food which involve the addition or elimination of common ingredients, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Since Muller teachers the sauce in the can in flowable form (par. 0014), since the diluent, i.e. oil or water and their requisite amounts are food product specific, i.e. recipe as taught by Muller, since Muller teaches adjusting the consistency of the food product (para [0022], since Muller teaches the diluent comprising oil in an amount of 50% (par. 0024) and since Berger teaches formula adjustment of the aerosol food product.
Therefore, in view of Berger it would have been obvious to one skilled in the art at the time the invention was filed to use a diluent to adjust the consistency and/or with respect to a known recipe specific to type, and in the above proportions through routine experimentation to achieve a desired food type, such as peanut butter, since the composition is dependent on the desired food product for spraying as taught by Muller and since Berger teaches aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation (pg. 3) including known peanut butter.
Similarly, though silent to the amount of emulsifier, since the requisite amount and inclusion is food product specific of known recipe types as taught by Muller.
Since Muller teachers the sauce in the can in flowable form (par. 0014), since the diluent, i.e. oil or water and their requisite amounts are food product specific, i.e. recipe as taught by Muller, since Muller teaches adjusting the consistency of the food product (para [0022] and since Berger teaches formula adjustment of the aerosol food product.
Therefore, in view of Berger it would have been obvious to one skilled in the art at the time the invention was filed to include an emulsifier in an amount of .25 wt.% to 5 wt. % both to adjust the consistency and/or with respect to a known recipe specific to type, and in the above proportions through routine experimentation to achieve a desired food type, such as peanut butter, since the composition is dependent on the desired food product for spraying as taught by Muller and since Berger teaches aerosol food products and desired effects of the food composition after dispensing which are effected by product formulation (pg. 3) including known peanut butter.
In addition, since the amounts claimed relative the food product are dependent on an unclaimed size of the container and an unclaimed viscosity of the food product relative an amount of propellant gas also in the container volume for achieving the desired result taught (par. 0021).
It would have been obvious to one skilled in the art to use the above proportions through routine experimentation to provide a desired type of food product and at formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products as taught by Mueller (par. 0014)
In addition, though silent to foamed peanut butter, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969).
Such as in the instant case since Muller does teach adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted"), since Berger teaches formula adjustment of the aerosol food product including peanut butter. Therefore, in view of Berger it would have been obvious to one skilled in the art to use a diluent to adjust the consistency and in the above proportions through routine experimentation to achieve a desired food type, since the composition is dependent on the desired food product for spraying as taught by Muller and since Berger teaches aerosol food products and desired effects of the food composition after dispensing which are affected by product formulation (pg. 3).
It would have been obvious to one skilled in the art to use the above proportions through routine experimentation to provide a desired type of food product and at formulations which prevent the food product to not leak to prevent mess and loss of product by stability testing as taught by Berger (pg. 3) and a food product of desired taste upon dispensing as taught by Muller.
It would have been obvious to one skilled in the art at the time of the invention to choose a container system which does not leak to prevent mess and loss of product by stability testing as taught by Berger (pg. 3).
It would have been obvious to one skilled in the art at the time the invention was filed to shake the can before dispensing to further mix the components as needed and provide the composition which flows freely as a result of shaking the can as taught by Berger (pg. 6) and achieving a foamed food as taught by Muller due to mixing by shaking to speed up absorption of the gas as further taught by Berger (pg. 31).
Muller teaches food products comprising solid particles, i.e. ground mustard seed (par. 0027). It would have been obvious to one skilled in the art at the time the invention was filed where the food product separates into an oil phase and a solid phase i.e. particles, such as with respect to peanut butter as taught Berger, when stored at room temperature since Muller teaches cold sauces and since the time of “when stored” is unlimited and thus would separate relative the peanut particles of a peanut butter.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the contents of the containerization system are storage stable for at least about 1 week when measured at a temperature of 25°C and an atmospheric pressure of 1 bar for its art recognized purpose of packaged foamed foods which are sold in aerosol containers with commercially successful results as desired by Muller.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Muller et al (DE 102015108900 with translation) in view of Berger (A Guide to Packaging An Aerosol Food Product) and Colavito (20110281011).
Muller teaches dispensing using a spray can, where the food dispensed is not limited. One of ordinary skill in the art would have been motivated to look to the art of foods provided by spray cans.
Colavito teaches the emulsified mixture being almond butter (par. 0038) which is packaged in an aerosolized can comprising a propellant (par. 0038).
Since Muller does teach the container system for providing a foamed food product using classic recipes (par. 0022), since Muller teaches one of ordinary skill though perceived as two different recipes, i.e. food product types, the distinction between two different recipes is not limited by the taught “basic sauce” (par. 0013) to achieve the desired foamed food product upon dispensing.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute the aerosol food product of Muller with an almond butter as taught by Colavito thus providing its art recognized advantage of an alternative for those who are lactose intolerant or who wish to avoid products containing soy or dairy as further taught by Colavito (par. 0041).
Response to Arguments
With respect to applicants urging directed to claim 1 and Muller. In addition to teaching milk products, importantly Muller further teaches the container system for providing a foamed food product using classic recipes (par. 0022), Muller teaches one of ordinary skill though perceived as two different recipes, i.e. food product types, the distinction between two different recipes is not limited by the taught “basic sauce” (par. 0013) to achieve the desired foamed food product upon dispensing. Muller formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products (par. 0014)
With respect to urging the prior art of Package World and Herzog. Both are specific to aerosol provided cream cheese for dispensing, i.e. known products dispensed under pressure.
It would have been obvious to one skilled in the art at the time the invention was filed to substitute one known type of sauces or dips used as sides to crackers and the like (par. 0002) with respect to the teaching of classic sauce recipes which can be used practically unchanged as further taught, such as in the instant case aerosol cream cheese as taught by Herzog and Packaging World, for its art recognized and applicants intended purpose providing a foamed food product upon dispensing as taught by Muller and since market forces provide the motivation to provide consumers with different cold sauces which foam as taught.
With respect to applicants urging to the Declaration and the secondary references, importantly Muller teaches the container system which produces a foam. Though urged Packaging World and Herzog are silent to being capable of producing a foam. Importantly Muller states the increase in volume “set by a person skilled in the art by suitable coordinating the pressure, the amount of propellant gas and the selection of the propellant gas (in conjunction with the amount of sauce and container size).
In addition though urged the secondary reference states aerosol, importantly Muller specifically teaches can which produce “the foam” are sometimes called aerosol cans (par. 0014).
With respect to the 103 rejection and applicants urging Muller is limited in scope to specific sauces, importantly Muller provides the sauce types as examples of “new spray sauce” in the form of a spray foam made from “thick to pasty sauce” (par. 0022). Muller teaches recipes known of basic ingredients including mayonnaise (par. 0002).
Though Muller is silent to a specific claimed type, importantly Muller is not limited by the recipe and more specifically teaches components of the composition including milk products and/or water, oil. Muller teaches non-liquid emulsion products and if necessary emulsifiers (par. 0002, 0005).
Muller recognizes the desire to achieve the claimed end product but for applicants specific food type. Importantly Berger teaches how and why to achieve a same desired foamed food product comprising gas. Muller further teaches, relative a specific food type, adjusting the consistency of the food product (para [0022] "The required consistency can be easily adjusted").
With respect to applicants urging of the piston pack of Ready fresh. The secondary references are not relied upon with respect to the containerization. Muller positively teaches the foamed food product dispensing system and components as claimed.
In addition, Muller specifically teaches at par. 0012, a person of ordinary skill in the art by suitably coordinating the pressure, the amount of propellant gas and the selection of propellant gas, all which are current unclaimed, in conjunction with the amount of sauce and container size, which are further unclaimed, allows the food product to be expelled and a foam is generated (par. 0014) which increases in volume (par. 0019).
Applicants “food mixture is capable of expanding in volume when it is dispensed from the nozzle” which is the intent and provided teachings of Muller.
Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Muller teaches foamed products which are known recipes it is the Office opinion that the pressure, gas and nozzle as taught by Muller would be capable of performing the intended use, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
With respect to applicants urging to the difference in aerosol and foamed food products. Importantly Muller specifically teaches can which produce “the foam” are sometimes called aerosol cans (par. 0014).
With respect to applicants urging directed to the claimed viscosity and the teachings of Bower.
With resepect to claim 1, Bower teaches the food product including cream cheese (col. 5 line 62) or sour cream (col. 5 line 62).
Alternatively, it is importantly noted the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality
Bower teaches the person of skill in the art can select the propellant gas mixture in such a way that the desired effect is reliably achieved, wherein the pressure and the amount of propellant gas must be coordinated with one another in such a way that the foam increases in volume and the foam has desired consistency (col. 2 lines 14-15), since the composition is dependent on the desired food product for spraying as taught, since aerosol food products and desired effects of the food composition after dispensing are effected by product formulation and since the claimed range encompasses viscosities typical of molasses, i.e. 5000cP to peanut butter, i.e. 250000cP thus lacking criticality. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the viscosity of the food product composition prior to being sealed in the container is from about 5,000 to about 250,000 cP thus achieving the desired type of product for dispensing, such as in the instant case cream cheese (col. 5 line 62) or sour cream (col. 5 line 62) as taught.
With respect to claim 31 and applicants urging of Bower teaching different food formulation. The claimed foods of claim 31 are vastly different types and compositions thus the food product lacks criticality where the claimed composition ranges are the constant.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a desired flavored topping, such as in the instant case taffy, nougat, caramel, and combinations since using equivalent amounts in every case obtained a same foamed product (col. 5 lines 64-68) thus providing alternative and additional formulations including confections such as taught by Bower with respect to marshmallow and since alternative foods for dispensing, capable of such, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In addition it is noted applicants claimed viscosity is relative the food product before being sealed i.e. a food type of known recipe as taught by Muller.
Importantly Muller teaches the foamed food product and a can for delivery of spray foam. More specifically with respect to applicants urgings directed to “aerosol can” and though applicant urges such containers do not necessarily foam, importantly Berger teaches “the propellant may server many functions” including “foaming the product” (pg. 4). Muller teaches a same claimed propellant and foamed food product.
Importantly Muller further teaches the container system for providing a foamed food product using classic recipes (par. 0022), Muller teaches one of ordinary skill though perceived as two different recipes, i.e. food product types, the distinction between two different recipes is not limited by the taught “basic sauce” (par. 0013) to achieve the desired foamed food product upon dispensing. Muller formulations including the amount of propellant gas thus achieving the art recognized spray can under pressure that allows the contents to both expel and froth (par. 0016) for providing foamed food products (par. 0014)
It would have been obvious to one skilled in the art at the time the invention was filed to substitute one known type of sauces or dips used as sides to crackers and the like (par. 0002) with respect to the teaching of classic sauce recipes which can be used practically unchanged as further taught.
In addition, though applicant urges no reasonable expectation of success, Muller and Bower both teach the purpose and intent to achieve the desired end product. Applicant has not by proper showing, distinguished the capability of the container for food products under pressure which foam would not given different food.
With respect to claim 32, with respect to applicants urging of Berger. Muller teaches foamed products comprising water and/or oil as presently claimed and the teachings of Berger it is the Office opinion that the combination would be capable of performing the intended use, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
With respect to applicants urging the cited Berger document would experience significant oil separation and leakage. It is initially noted applicants claim 32 specifically requires the urged detriment, “the food product separates into an oil phase and a solid phase when stored at room temperature”.
However and more importantly, in addition to the teachings of Muller, Berger specifically recognizes routine experimentation to determine if the formulation is affected by pressure and testing the product to insure compatibility of the product and package (par. 3).
Colavito teaches the emulsified mixture being almond butter (par. 0038) which is packaged in an aerosolized can comprising a propellant (par. 0038). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute the aerosol food product of Muller with an almond butter as taught by Colavito thus providing its art recognized advantage of an alternative for those who are lactose intolerant or who wish to avoid products containing soy or dairy as further taught by Colavito (par. 0041).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792