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 .
The amendment filed June 26, 2025 is acknowledged. Claims 1 and 3-15 are pending in the application. Claim 2 has been cancelled.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 4, and 6-15 are rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2006111220 (hereinafter “Achterkamp”) in view of Lobee et al. WO 2010046038 (hereinafter “Lobee”)
With respect to claim 1, Achterkamp teaches a shaped composition for various applications (for preparing a bouillon, broth, soup, sauce, gravy, roux) (P8, L2-4 & 7-8).
Regarding the limitation of comprising: a) 1-70 wt.%, by weight of the composition, of an edible salt selected from sodium chloride, potassium chloride and combinations thereof; b) 1-30 wt.%, by weight of the composition, of savoury taste giving ingredients selected from glutamate, 5'-ribonucleotides, sucrose, glucose, fructose, lactic acid, citric acid and combinations thereof; c) 0 to 10 wt.%, by weight of the composition, of polar liquid; and d) 1 to 20 wt.%, by weight of the composition, of fat component as recited in claim 1, Achterkamp teaches the composition comprises (% by weight on total composition): 2-70% salt (sodium and/or potassium chloride) (component a), 10-95% taste-enhancers (such as glutamate, citric acid, sugar, etc.) (component b), optionally moisture (up to 15%) (component c), and 3-40% fat (component d) (P1, L20-22 and 25; P3, L10-16; P5, L33; P8, L7-17; and P16, Table 5). The ranges of Achterkamp overlap with the presently claimed ranges. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the limitation of comprising e) 0.2-1.44 wt.%, by weight of the composition, of hardness and shape retaining structuring agent, the structuring agent comprising particles of puffed maize endosperm, wherein at least 80 wt.% of the particles of the puffed maize endosperm have an average particle size of less than 3.0 mm, Achterkamp teaches the composition comprises 0-20% flour or an alternative starch source (P1, L25-26; and P8, L14).
However, Achterkamp does not expressly disclose the flour or alternative starch source includes particles of puffed maize endosperm.
Lobee teaches a puffed popcorn starch containing powder (particles of puffed maize endosperm). More than 90 weight % of the powder has a particle size smaller than 1 mm. The powder may be used in food products such as dry soup mixes, instant drinks, and soups. The powder also has superior functionalities, such as absorbing liquids (fats and oils) in the food product (P2, 5-6 and L29-32; P3, L5-7, 27-30, and 32-35; P5, L22-24 and 30-32; P6, L3-7; and P8, L25-32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Lobee, to select the puffed popcorn starch containing powder (particles of puffed maize endosperm) as the flour or alternative starch source in the composition of Achterkamp based in its suitability for its intended purpose with the expectation of successfully preparing a shaped composition for various applications (for preparing a bouillon, broth, soup, sauce, gravy, roux). One of ordinary skill in the art would have been motivated to do so because Achterkamp and Lobee similarly teach dry soup mixes comprising flour and fat, Lobee teaches the particles of puffed maize endosperm has novel and superior functionalities, i.e. an excellent loading capacity for non-aqueous liquid components like oil (oil retention) and the powder can be used as a carrier material for the non-aqueous liquid components (oil) to protect, store, stabilize, and/or control the release property of the non-aqueous liquid component (P3, L5-7 and 27-30; and P8, L6-10), Achterkamp teaches the flour or alternative starch source may be from corn (P1, L25-26 and P5, L33-34); and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Regarding the limitation of wherein the combination of a) and b) constitutes at least 40 wt.% of the composition as recited in claim 1, modified Achterkamp teaches this limitation since Achterkamp teaches the composition comprises (% by weight on total composition): 2-70% salt (sodium and/or potassium chloride) (component a), 10-95% taste-enhancers (component b) (P1, L25; P5, L33; P3, L10-16; and P8, L10-13), and the ranges of Achterkamp overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the limitation of the shaped savoury composition is a pressed article that has a total weight, a pressed volume, and a hardness in a range of 50 to 500 N, and relative to a corresponding pressed article of a shaped savoury composition containing starch as the structuring agent and having a relative total weight and a relative pressed volume, the total weight is less than the relative total weight while the pressed volume and the relative pressed volume are equivalent as recited in claim 1, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the composition would naturally arrive at these features since the claimed characteristics are a function of the ingredients present and their respective quantities which have been shown to be obvious in view of Achterkamp and Lobee as demonstrated above, and Achterkamp teaches the composition is not required to be rock-hard, i.e., they can still be crumbled between the fingers (P2, L20-25; and P3, L5-6). Additionally, the functional language is not considered to confer patentability to the claim.
With respect to claim 3, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the shaped composition comprises at least 50 wt% by weight of the composition of an edible salt as recited in claim 3, modified Achterkamp teaches this limitation since Achterkamp teaches the composition comprises 2-70% by weight of salt and overlaps with the presently claimed range (P8, L10). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 4, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the fat component is selected from the group consisting of sunflower oil, soybean oil, rapeseed oil, cottonseed oil, maize oil, olive oil, palm oil, palm kernel oil, coconut oil, fractions of these oils and combinations thereof as recited in claim 4, modified Achterkamp teaches this limitation since Achterkamp teaches liquid vegetable fat and palm fat can be used (P12, Table 1; and P15, Table 4).
With respect to claim 6, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the particles of puffed maize endosperm are present in an amount of 0.41-1.44 wt.%, by weight of the composition as recited in claim 6, modified Achterkamp teaches this limitation since Achterkamp as modified by Lobee is relied upon for the teaching of the particles of puffed maize endosperm as addressed above in claim 1, and Achterkamp teaches the composition comprises 0-20% of flour or alternative to starch and encompasses the presently claimed range (P1, L25-26; and P8, L14). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 7, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein at least 80 wt.% of the particles of the puffed maize endosperm have an average particle size of less than 2.0 mm as recited in claim 7, modified Achterkamp teaches this limitation since Achterkamp as modified by Lobee is relied upon for the teaching of the particles of puffed maize endosperm as addressed above in claim 1, and Lobee teaches puffed maize endosperm powder with more than 90 weight % of the powder having a particle size smaller than 1 mm (P3, L5-7 & 32-35).
With respect to claim 8, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the combination of the edible salt, the savoury taste giving ingredient, and the particles of puffed maize endosperm constitute at least 60 wt.% of the savoury composition as recited in claim 8, modified Achterkamp teaches this limitation since Achterkamp teaches the composition comprises (% by weight on total composition): 2-70% salt (sodium and/or potassium chloride) (component a), 10-95% taste-enhancers (component b), and 0-20% flour or an alternative starch source (component e) (P1, L25-26; P3, L10-16; P5, L33; and P8, L10-14), and the ranges of Achterkamp overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 9, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the shaped composition has a cubic, cuboid, or cylindrical shape as recited in claim 9, modified Achterkamp teaches this limitation since Achterkamp teaches the composition is provided in the form of cubes or briquettes (P2, L19-22; and P6, L31-34).
With respect to claim 10, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the composition comprises: a) 35-50 wt.%, by weight of the composition, of an edible salt selected from sodium chloride, potassium chloride and combinations thereof; b) 5-20 wt.%, by weight of the composition, of savoury taste giving ingredients selected from glutamate, 5'-ribonucleotides, sucrose, glucose, fructose, lactic acid, citric acid and combinations thereof; c) 0.3 to 3 wt.%, by weight of the composition, of water; d) 4 to 10 wt.%, by weight of the composition, of fat component as recited n claim 10, modified Achterkamp teaches this limitation since Achterkamp teaches the composition comprises (% by weight on total composition): 2-70% salt (sodium and/or potassium chloride) (component a), 10-95% taste-enhancers (such as glutamate, citric acid, sugar, etc.) (component b), optionally moisture (up to 15%) (component c), and 3-40% fat (component d) (P1, L20-22 and 25; P3, L10-16; P5, L33; P8, L7-17; and P16, Table 5). The ranges of Achterkamp overlap with the presently claimed ranges. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the limitation of wherein the composition comprises e) 0.2-1.44 wt.%, by weight of the composition, of particles of puffed maize endosperm as recited n claim 10, modified Achterkamp teaches this limitation since Achterkamp as modified by Lobee is relied upon for the teaching of the particles of puffed maize endosperm as addressed above in claim 1, and Achterkamp teaches the composition comprises 0-20% of flour or alternative to starch and encompasses the presently claimed range (P1, L25-26; and P8, L14). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the limitation of wherein the combination of a) and e) constitutes at least 75 wt.% of the composition as recited in claim 10, modified Achterkamp teaches this limitation since Achterkamp as modified by Lobee is relied upon for the teaching of the particles of puffed maize endosperm as addressed above in claim 1, and Achterkamp teaches the composition comprises (% by weight on total composition): 2-70% salt (sodium and/or potassium chloride) (component a), 10-95% taste-enhancers (such as glutamate, citric acid, sugar, etc.) (component b), optionally moisture (up to 15%) (component c), 3-40% fat (component d), and 0-20% of flour or alternative to starch (component e) (P1, L20-22 and 25-26; P3, L10-16; P5, L33; P8, L7-17; and P16, Table 5). The ranges of Achterkamp overlap with the presently claimed ranges. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 11, Achterkamp teaches a process of preparing the savoury composition (P3, L17-19). Additionally, Achterkamp as modified by Lobee is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the limitation of said method comprising: providing particles of puffed maize endosperm, wherein at least 80 wt.% of said particles have an average particle size of less than 3.00 mm, optionally in combination with oil; admixing edible ingredients, and compressing the mixture into a pressed savoury composition as recited in claim 11, modified Achterkamp teaches this limitation since Achterkamp as modified by Lobee is relied upon for the teaching of the particles of puffed maize endosperm as addressed above in claim 1, and Achterkamp teaches mixing the ingredients and shaping the mixture by compressing (P3, L17-19)
With respect to claim 12, modified Achterkamp is relied upon for the teaching of the method of claim 11.
Regarding the limitation of wherein the method does not comprise addition of a starch component selected from native starch, pregelatinised starch, maltodextrin, modified starch and combinations thereof, or wherein the starch component is added in an amount of not more than 2% by weight of the final savoury composition and not more than 50% by weight of the particles of puffed maize endosperm as recited in claim 12, modified Achterkamp teaches this limitation since Achterkamp teaches using flour or an alternative starch source in the composition, and maltodextrin is optional (P1, L25-26; and P8, L14 and 16).
With respect to claim 13, modified Achterkamp is relied upon for the teaching of the method of claim 11.
Regarding the limitation of wherein the shaped savoury composition is packaged into a unit dose having a weight in the range of 1 to 50 grams as recited in claim 13, modified Achterkamp teaches this limitation since Achterkamp teaches the composition may have a minimum weight per article of at least 0.5 g, and the composition may be packaged (P2, L15-19). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 14, Achterkamp in view of Lobee teaches a bouillon, soup, sauce, or gravy comprising the shaped savory composition according to claim 1 since Achterkamp as modified by Lobee is relied upon for the teaching of the shaped savoury composition as addressed above in claim 1, and Achterkamp teaches a shaped composition for various applications (for preparing a bouillon, broth, soup, sauce, gravy, roux by dissolving in food, a dish, or an aqueous liquid) (P8, L2-4 and 7-8; and P11, L27-29).
With respect to claim 15, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the pressed article has a dissolution time in water in a range of 11.7 to 19.4 seconds as recited in claim 15, this limitation is a characteristic of the claimed savoury composition. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the composition would naturally display the claimed characteristic of having a dissolution time in water in a range of 11.7 to 19.4 seconds since the dissolution time is a function of the ingredients present and their respective quantities which have been shown to be obvious in view of Achterkamp and Lobee as demonstrated above in claim 1, and Achterkamp teaches the composition is not rock-hard, which usually also means that it takes undesirably long to dissolve (P2, L22-24).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2006111220 (hereinafter “Achterkamp”) in view of Lobee et al. WO 2010046038 (hereinafter “Lobee”) as applied to claim 1 above, and in further view of Arnaudov et al. WO 2017186514 (hereinafter “Arnaudov”).
With respect to claim 5, modified Achterkamp is relied upon for the teaching of the composition of claim 1.
Regarding the limitation of wherein the fat component has a solid fat component (N20) of less than 10% as recited in claim 5, modified Achterkamp does not expressly disclose this limitation.
Arnaudov teaches a shaped savoury composition that can be used in the preparation of bouillons, soups, sauces, and gravies. The composition comprises an edible salt (sodium chloride and/or potassium chloride), one or more particulate ingredients (sugars, glutamate, and/or flour), liquid fat, and polar fluid. The fat has a solid fat content (N20) of less than 20% (P1, L5-14; P2, L4-6 &16-19; and P12, L27-29).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Arnaudov, to select fat with a solid fat content (N20) of less than 10% in the composition of modified Achterkamp with the expectation of successfully preparing a shaped composition for various applications (for preparing a bouillon, broth, soup, sauce, gravy, roux). One of ordinary skill in the art would have been motivated to do so because Achterkamp and Arnaudov similarly teach shaped savoury compositions comprising similar ingredients including liquid fat, Arnaudov teaches the composition retains its shape at high temperatures since the fat does not melt (P7, L9-12), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Response to Arguments
Applicant’s remarks filed June 26, 2025 are acknowledged.
Due to the amendments to the claims as well as the persuasiveness of Applicant’s arguments, the 35 USC 112 rejection in the previous Office Action has been withdrawn (P5-P6).
Applicant’s arguments with respect to the prior art have been fully considered, but they are unpersuasive.
Applicant argues even though Achterkamp provides that its composition(s) may (or may not) contain an amount of starch or flour, there is no indication or suggestion anywhere in the disclosure that such starch or flour is provided as a structuring agent of any kind, let alone one that is a hardness and shape retaining structuring agent, or how the starch or flour interacts with the other component(s) of the composition. Achterkamp is wholly silent with respect to any hardness value or range(s) of values of its solid concentrate article. Lobee does not cure the deficiencies of Achterkamp. Like Achterkamp, Lobee does not offer any discussion or hint that its puffed popcorn starch containing powder is a hardness and shape retaining structuring agent, or how the starch interacts with the other component(s) of the composition, apart from absorbing and retaining one or more non-aqueous liquid components. Lobee is silent as to any hardness of its puffed popcorn starch containing powder. Even assuming, arguendo, that the ordinary skilled artisan had consulted Lobee if and when seeking to modify Achterkamp, he/she still would not have been directed to arrive at the shaped savoury composition set forth in the amended claim 1. This is at least because neither reference teaches or reasonably suggests a shaped savoury composition, which comprises a hardness and shape retaining structuring agent comprising particles of puffed maize endosperm, in the form of a pressed article that has a total weight, a pressed volume, and a hardness in a range of 50 to 500 N, and relative to a corresponding pressed article of a shaped savoury composition containing starch as the structuring agent and having a relative total weight and a relative total volume, the total weight is less than the relative total weight while the volume and the relative volume are equivalent (P6-P9).
Applicant also argues the reasoning of the Examiner recreating a hypothetical composition based on the combination of Achterkamp and Lobee in line with the claimed shaped savoury composition and then determining that a claimed property (hardness) would naturally flow from the hypothetical composition is a legal error, as established in Ex Parte Vigano (Appeal No. 2010- 007666, March 13, 2012). Inherent features or characteristics cannot be attributed to a hypothetical composition that is not disclosed as such in the cited prior art references. Importantly, neither the hardness, nor a reduction in the total weight of the composition without impact to the hardness or volume of the composition, is taught or suggested in either Achterkamp or Lobee. Arnaudov does not disclose or suggest a shaped savoury composition in the form of a pressed article that has a total weight, a pressed volume, and a hardness in a range of 50 to 500 N, and relative to a corresponding pressed article of a shaped savoury composition containing starch as the structuring agent and having a relative total weight and a relative total volume, the total weight is less than the relative total weight while the volume and the relative volume are equivalent. As a consequence, Arnaudov cannot be applied to remedy the aforementioned deficiencies of Achterkamp and Lobee to arrive at the shaped savoury composition set forth in amended claim 1. It is, therefore, respectfully submitted that the disclosures in Achterkamp, Lobee, and Arnaudov, whether taken individually or in combination, would not have rendered the shaped savoury composition set forth in amended claim 1 obvious for at least the reasons discussed herein (P9-P10).
Examiner disagrees. Modified Achterkamp successfully teaches the claimed invention. Applicant is reminded that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
As previously addressed, Achterkamp teaches claimed components a-d (P1, L20-22 and 25; P3, L10-16; P5, L33; P8, L7-17; and P16, Table 5). Achterkamp also teaches the composition comprises 0-20% flour or an alternative starch source (P1, L25-26; and P8, L14) but does not expressly disclose a hardness and shape retaining structuring agent comprising particles of puffed maize endosperm. However, Lobee is relied upon for this teaching (P2, 5-6 and L29-32; P3, L5-7, 27-30, and 32-35; P5, L22-24 and 30-32; P6, L3-7; and P8, L25-32). One of ordinary skill in the art would have been motivated to select the puffed popcorn starch containing powder (particles of puffed maize endosperm) of Lobee as the flour or alternative starch source in the composition of Achterkamp based in its suitability for its intended purpose with the expectation of successfully preparing a shaped composition for various applications (for preparing a bouillon, broth, soup, sauce, gravy, roux) because Achterkamp and Lobee similarly teach dry soup mixes comprising flour and fat, Lobee teaches the particles of puffed maize endosperm has novel and superior functionalities, i.e. an excellent loading capacity for non-aqueous liquid components like oil (oil retention) and the powder can be used as a carrier material for the non-aqueous liquid components (oil) to protect, store, stabilize, and/or control the release property of the non-aqueous liquid component (P3, L5-7 and 27-30; and P8, L6-10), Achterkamp teaches the flour or alternative starch source may be from corn (P1, L25-26 and P5, L33-34); and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to the limitation of the shaped savoury composition is a pressed article that has a total weight, a pressed volume, and a hardness in a range of 50 to 500 N, and relative to a corresponding pressed article of a shaped savoury composition containing starch as the structuring agent and having a relative total weight and a relative pressed volume, the total weight is less than the relative total weight while the pressed volume and the relative pressed volume are equivalent in claim 1, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the composition would naturally arrive at these features since the claimed characteristics are a function of the ingredients present and their respective quantities which have been shown to be obvious in view of Achterkamp and Lobee as demonstrated above, and Achterkamp teaches the composition is not required to be rock-hard, i.e., they can still be crumbled between the fingers (P2, L20-25; and P3, L5-6). Additionally, the functional language is not considered to confer patentability to the claim.
It is also noted that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979) (Claims were directed to grooved carbon disc brakes wherein the grooves were provided to vent steam or vapor during a braking action. A prior art reference taught noncarbon disc brakes which were grooved for the purpose of cooling the faces of the braking members and eliminating dust. The court held the prior art references when combined would overcome the problems of dust and overheating solved by the prior art and would inherently overcome the steam or vapor cause of the problem relied upon for patentability by applicants. Granting a patent on the discovery of an unknown but inherent function (here venting steam or vapor) "would remove from the public that which is in the public domain by virtue of its inclusion in, or obviousness from, the prior art." 596 F.2d at 1022, 201 USPQ at 661.); In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991) (Appellant argued that the presence of DEHP as the plasticizer in a blood collection bag unexpectedly suppressed hemolysis and therefore rebutted any prima facie showing of obviousness, however the closest prior art utilizing a DEHP plasticized blood collection bag inherently achieved same result, although this fact was unknown in the prior art.).
Further, note that while Lobee and Arnaudov, which is relied upon for the teaching of dependent claim 5, do not disclose all the features of the presently claimed invention, these references are used as teaching references, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793