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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/16/2025 has been entered.
Election/Restrictions
Newly Submitted claims 45-47 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Invention I: Claims 25, 29-44 are directed to a method for producing a chip
Invention II: Claims 45-47 are directed to an apparatus that is a cyclonic blade.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case the apparatus as claimed can be used to practice another and materially different process such as mixing of non-food items.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: the inventions are independent, have separate classifications and they require a different field of search, since the apparatus is not limited to use as claimed in the method (See MPEP 808.02).
Since Applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly claims 45-47 have been withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP 821.03.
Claim Objections
Claim 30 is objected to because of the following informalities:
Claim 30 recites “the foams in the molds” in line 11 and should be changed to “the foam in each of the molds”.
Claim 30 recites “the foam in the mold” in line 12 and should be changed to “the foam in each of the molds”.
Appropriate correction is required.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: The specification does not specifically recite that the non-pineapple fruit is blueberry, while it is disclosed in the provisional specification, it should be added to the specification of the nonprovisional.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 38 and 42-44 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. 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding new claim 38, new claim 38 recites “wherein a width of each of the teeth is less than the second height” however this is not specifically recited in the specification or provisional applications, and is not readily clear from the images in the provisional application. Therefore, the claim raises an issue of new matter.
Regarding new claim 42, new claim 42 recites “wherein propeller comprises three equally spaced apart and identically shaped vanes”. However, while the propeller comprising three vanes is supported by the images in the provisional application, “three equally spaced apart and identically shaped vanes” is not explicitly recited in the specification or provisional applications and not readily clear from the images in the provisional application. Therefore, the claim raises an issue of new matter.
Regarding new claim 43, new claim 43 recites “the vanes each include a leading edge and a trailing edge and a pitch angle therebetween that cooperate to create air flow that draws the cut and whipped pineapple pieces and the blueberry pieces upward away from the blade disc”. The specification and provisional applications do not specifically recite the vanes each include a leading edge and a trailing edge and a pitch angle therebetween that cooperate to create air flow that draws the cut and whipped pineapple pieces and the blueberry pieces upward away from the blade disc. Therefore, the claim raises an issue of new matter.
Regarding new claim 44, new claim 44 recites “the propeller height corresponding with an axial distance from a top of the leading edges to a bottom of the trailing edges”. However, this is not specifically recited in the specification or provisional applications and therefore raises an issue of new matter. It is noted that the since it is not disclosed in either the specification or provisional applications, and while the provisional does include an image, the image does not specify what edges are leading and trailing edges of a vane.
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 34-44 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.
Regarding claim 34, claim 34 recites “the blade” in line 6. It is unclear what blade “the blade” is referring to, the cyclonic blade or the blade disc or something else.
Regarding claim 35, claim 35 recites “a first plurality of the teeth” and “a second plurality of the teeth”. It is unclear if each instance of “the teeth” is referring to the “plurality of teeth” in claim 34, since the claim does not recite “a first plurality of teeth of the plurality of teeth” and “a second plurality of teeth of the plurality of teeth”.
Regarding claim 36, claim 36 recites “each of the teeth” it is unclear which teeth “each of the teeth” is referring to.
Regarding claim 37, claim 37 recites “each of the teeth”, it is unclear which teeth “each of the teeth” is referring to.
Regarding claim 38, claim 38 recites “each of the teeth”, it is unclear which teeth “each of the teeth” is referring to.
Regarding claim 44, claim 44 recites “the disc blade” in line 2. There is insufficient antecedent basis for this limitation in the claim. it is noted that the claims recite “the blade disc”.
Claims 39-43 are rejected by virtue of their dependence on a rejected base claim.
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.
Claims 25 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Zobrist US 2012/0114798 in view of Eisner US 2018/0160708 in view of Slate in view of Osborne et al. US 3,266,559 in view of Niils et al. US 2016/0255867 in view of The Health Site in view of Crawley EP 2545832A1.
Regarding claim 25, Zobrist discloses a method for making a chip (aerated dried fruit piece) comprising mixing fruit until forming a foam and dehydrating the foam until becoming crispy chips (aerated dried fruit piece) ([0004]- [0006], [0012], [0035]-[0036], [0050]- [0054]). The aerated dried fruit pieces can be considered crispy chips because Zobrist teaches that the dried product pieces should have hardness ([0014], [0015]) and discloses in general that aerated dried products can have a pleasing crunchy texture ([0001]). Therefore, it is obvious that the aerated dried fruit pieces of Zobrist are crispy. Zobrist teaches that the fruit used in the method can be pineapple and blueberry ([0056]). Zobrist discloses pouring the foam into molds prior to dehydrating (‘798, [0041], [0057]).
Claim 25 differs from Zobrist in the recitation that 60-70% of the pineapple is specifically mixed with 30-40% blueberry.
Eisner teaches mixing multiple types of fruits and adding vegetables for forming a dried product and adjusting the proportion of the different fruits based on desired taste (‘708, [0057], [0061], [0042]). Eisner teaches that pineapple and blueberry can be combined ([0050]). While Eisner does not give specific amounts of pineapple and blueberry, Eisner teaches providing banana and pineapple in a ratio of 1:3 (i.e., 25% banana (1part banana/4 parts total) and 75% pineapple (3 parts pineapple/4parts total) ([0110]). The amounts are merely close to the claimed range (MPEP 2144.05). Thus, Eisner recognizes that such amounts of pineapple and non-pineapple fruit are desired and would produce a product having a desired taste.
It would have been obvious to one of ordinary skill in the art to modify Zobrist such that 75% of the pineapple is specifically mixed with 25% blueberry merely close to the claimed range (MPEP 2144.05)) as suggested by Eisner in order to provide the chip (aerated dried piece) with a desired taste.
Claim 25 differs from Zobrist in view of Eisner in specifically reciting that the mixing is performed with cyclonic action.
However, Zobrist discloses that the mixing can be carried out using a blender and Slate discloses that a common blender uses cyclonic action to mix ingredients and that the cyclonic action forces liquids up the sides of the cup and then down to the blades (Slate Pg. 6, last paragraph). Slate thus recognizes a known technique for blending ingredients includes mixing ingredients using cyclonic action. It would have been obvious to one of ordinary skill in the art to modify Zobrist in view of Eisner such that the method comprises mixing the pineapple and the non-pineapple fruit with a cyclonic action as suggested by Slate, because Zobrist discloses that the mixing can be carried out using a blender and Slate discloses that a common blender uses cyclonic action to mix ingredients. It has been held that “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness.
Claim 25 differs from Zobrist in view of Eisner in view of Slate in specifically reciting that the step of mixing until forming a foam, is specifically performed until forming a foam having a density by volume at least 40% more than the pineapple pieces and the blueberry pieces prior to mixing.
It is noted that Zobrist teaches mixing until forming a foam of a desired texture (‘798, [0006]). Osborne discloses a method of drying fruit and vegetable pureed materials in a foamed state (col. 1, lines 11-12, 39-45, col. 7, lines 65-70). Osborne discloses that foam density influences the drying rate of the product, the color of the resultant product, the bulkiness of the final product (col. 7, lines 31-70). Absent a showing of criticality with respect to the particular foam density (a result effective variable as recognized by Osborne), it would have been obvious to one of ordinary skill in the art to adjust the density of the foam through routine experimentation to values including those presently claimed based on the desired drying rate of the product, the color of the resultant product and the bulkiness of the final product. It has been held that discovering the optimum value of a result effective variable involves only routine skill in the art (MPEP 2144.05).
Claim 25 differs from Zobrist in view of Eisner in view of Slate in view of Osborne in the recitation that each mold includes no more than a depth of 15 mm of foam.
However, Eisner suggests adjusting the size of the product based on the intended use of the product and suggests that the product can be no more than 15mm thick prior to final drying (‘708, [0097], [0098], [0125], claim 41).
It would have been obvious to one of ordinary skill in the art to modify the depth of the foam in the molds of Zobrist in view of Eisner in view of Slate in view of Osborne such that the depth of the foam is no more than 15mm, since Eisner recognizes this was a suitable depth for a fruit mixture to be prior to dehydration to form fruit chips and since Zobrist does not limit the particular depth of the foam in the molds.
Further regarding claims 25, claim 25 differs from Zobrist in view of Eisner in view of Slate in view of Osborne in the recitation that the step of dehydrating the foam is carried out at 135 °F for 12 hours until a depth of the foam in the molds reduces by at least 50% and that the dehydration process maintains a structure of the foam such that the foam is prevented from deflating and liquefying while simultaneously being dehydrated.
Niils discloses pureeing fruit, dosing small portions of the puree on a drying plate and drying the puree in hot air at 50-80 °C (122°F – 176 °F) for 8-12 hours to produce chips ([0006]).
Niils, Zobrist, Eisner are all directed to methods for producing dried and crispy pieces from blended fruit, and therefore are all directed to producing similar products using similar methods.
Since Zobrist broadly teaches that the blended fruit is dried using a drying process and does not limit the particular drying process, and since Niils teaches a known process for drying blended fruit to produce a dried crispy fruit piece, it would have been obvious to one of ordinary skill in the art to utilize the teachings of known drying processes for producing similar products, such as the teachings of Niils. Therefore, it would have been obvious to one of ordinary skill in the art to modify Zobrist in view of Eisner in view of Slate in view of Osborne such that the step of dehydrating the foam is carried out at 135 °F for 12 hours as taught by Niils, thereby substituting one known method for dehydrating blended fruit, for another known method of dehydrating blended fruit to obtain the predictable result of producing a dehydrated blended fruit product (MPEP 2141.III.B).
Since the process made obvious by Zobrist in view of Eisner in view of Slate in view of Osborne in view of Niils teaches performing the active process steps as claimed, it is expected that the dehydration process maintains a structure of the foam such that the foam is prevented from deflating and liquefying while simultaneously being dehydrated, that the depth of the foam in the molds has reduced by at least 50% and the crispy chips fracture or form surface cracks when bent or chewed and create audible or acoustical cracking sound when bent or chewed. “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties are presumed to be inherent” (MPEP 2112.01.I).
Regarding claim 25, claim 25 differs from Zobrist in view of Eisner in view of Slate in view of Osborne in view of Niils in the recitation that the blending process includes at least a first stage and a second stage, the first stage including mixing the pineapple without the non-pineapple fruit and/or vegetable until the pineapple has at least 40% greater density by volume than prior to mixing, the second stage including mixing the pineapple with the non-pineapple fruit and/or vegetable until the non-pineapple fruit and/or vegetable has at least 40% greater density by volume than prior to mixing. However, as discussed above, Zobrist in view of Eisner in view of Slate in view of Osborne make obvious blending the pineapple and the non-pineapple fruit until becoming a foam, the foam having at least 40% greater density by volume than the pineapple and the non-pineapple fruit and selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP 2144.04.C).
Further regarding claim 25, claim 25 differs from Zobrist in view of Eisner in view of Slate in view of Osborne in view of Niils in the recitation that the pineapple specifically includes approximately 20% core and 80% non-core and 0% skin.
However, Eisner as discussed above teaches pineapple as a preferred material for forming a dried fruit chip and also discloses that the fruit utilized can be the entire fruit ([0012], [0013], [0014]), thus making the use of the entirety of the pineapple would necessarily include using the core and non-core of the pineapple. Eisner teaches removing the skin from the pineapple and therefore is seen to suggest that pineapple skin can be 0% of the product (‘708, [0125]).
It would have been obvious to one of ordinary skill in the art to modify the method of Zobrist in view of Eisner in view of Slate in view of Osborne in view of Niils such that the pineapple comprises both pineapple core and non-core, since Eisner recognizes that the entirety of pineapple which would include the core is a suitable material for forming dried fruit chips and since it has been held that the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07).
The Health Site discloses that the core of the pineapple is hard, less juicy and slightly bitter as compared to the juicy slice (Pg. 2). Given that Eisner as discussed above teaches utilizing the entirety of a fruit, and utilizing a fruit such as a pineapple, Eisner suggests utilizing both non-core and core portions of a pineapple and The Health Site discloses that the core and non-core of the pineapple have different tastes, one of ordinary skill in the art would have been motivated to adjust the amount of non-core and core of the pineapple based on desired taste of the product. “[G]enerally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” (MPEP 2144.II.A, B).
Claim 25 differs from the cited prior art above in the recitation that the blending process includes generating the cyclonic action with rotation of a cyclonic blade, the cyclonic blade having a lower portion with a blade and an upper portion with a propeller, the blade including a plurality of teeth to cut up and whip the pineapple pieces and the blueberry pieces, the propeller drawing the cut and whipped pineapple pieces and the blueberry pieces upward away from the blade once emulsification takes hold to limit deflation of the foam.
As discussed above, Slate discloses that a common blender uses cyclonic action to mix ingredients and that the cyclonic action forces liquids up the sides of the cup and then down to the blades (Slate Pg. 6). Slate thus recognizes a known technique for blending ingredients includes mixing ingredients using cyclonic action.
Crawley discloses that the blending process includes generating the cyclonic action with rotation of a cyclonic blade (when the motor rotates the cutter assembly a vortex is created) ([0010]), the cyclonic blade having a lower portion with a blade (23, Fig. 4) and an upper portion with a propeller (21, Fig.4), the blade (23) including a plurality of teeth (23 is serrated) ([0025]) to cut up and whip fruit ([0024]-[0025]). The propeller drawing the cut and whipped fruit upward away from the blade once emulsification takes hold (when motor rotates the cutter assembly which includes propeller (21) a vortex is created which pulls liquid and solids up in the blender) ([0026]). Regarding the propeller drawing the cut and whipped fruit upward away from the blade once emulsification takes hold for the purpose of limiting deflation of the foam, since the cut and whipped fruit is pull upward and away from the blade, and therefore teaches the active method step, it is expected that the action of drawing the cut and whipped fruit away from the blade would limit deflation of the foam (MPEP 2112.01.I).
It would have been obvious to one of ordinary skill in the art to modify Modified Zobrist such that the blending process includes generating the cyclonic action with rotation of a cyclonic blade, the cyclonic blade having a lower portion with a blade and an upper portion with a propeller, the blade including a plurality of teeth to cut up and whip the pineapple pieces and the blueberry pieces, the propeller drawing the cut and whipped pineapple pieces and the blueberry pieces upward away from the blade once emulsification takes hold to limit deflation of the foam as suggested by Slate and Crawley, since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claim 29, claim 29 differs from Modified Zobrist in the recitation that the mixing stages carried out in the times claimed, however, one of ordinary skill in the art would have been motivated to vary the mixing time based on desired texture.
Claim 30-33 are rejected under 35 U.S.C. 103 as being unpatentable over Zobrist US 2012/0114798 in view of Eisner US 2018/0160708 in view of Slate in view of Osborne et al. US 3,266,559 in view of Niils et al. US 2016/0255867 in view of The Health Site.
Regarding claims 30-33, claims 30-33 are rejected for the same reasons given above as for claim 25.
Allowable Subject Matter
Regarding claim 34, Zobrist US 2012/0114798, Eisner US 2018/0160708, Slate, Osborne et al. US 3,266,559, Niils et al. US 2016/0255867, The Health Site and Crawley EP 2545832A1 fails to teach claim 34, wherein the blending process includes generating the cyclonic action with rotation of a cyclonic blade, the cyclonic blade having a lower portion with a blade disc and an upper portion with a propeller, the blade disc including a plurality of teeth to cut up and whip the pineapple pieces and the blueberry pieces, the propeller drawing the cut and whipped pineapple pieces and the blueberry pieces upward away from the blade once emulsification takes hold to limit deflation of the foam.
The additional closest prior art of record Kawakita JP S6359341A discloses a mixing device having a blade disc with a plurality of teeth (first impeller 1 is constituted of plate 3 having plate shaped vanes 8) and a propeller (second impeller is formed of three vanes 9). However, Kawakita does not disclose using the mixing device for blending food or fruit in the manner as claimed by applicant therefore Kawakita does not provide sufficient motivation to combine the teaching of Kawakita with Zobrist US 2012/0114798, Eisner US 2018/0160708, Slate, Osborne et al. US 3,266,559, Niils et al. US 2016/0255867, The Health Site and Crawley EP 2545832A1.
It is noted that claim 34 raises a 112b issue as discussed above, as allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but have not been found persuasive.
In response to Applicant’s arguments on pg. 7 that the rejection inappropriately attempts to combine the teachings of 7 references in a manner that would change the principle of operation of some references and render some references inoperable, it is noted that no specific arguments have been presented regarding what specific reference is inoperable or has the principle of operation changed, therefore this argument has not been found convincing.
In response to Applicant’s argument regarding the criticality of amounts of pineapple and blueberry, the specification does not provide evidence that the amounts of pineapple and blueberry are critical (See MPEP 716.01(c),I,II).
In response to Applicant’s argument regarding the mixing with cyclonic action, it is noted that Crawley EP 2545832 teaches mixing with cyclonic action since Crawley discloses that when the motor rotates the cutter assembly a vortex is created ([0010]).
In response to Applicant’s argument regarding the density being critical, it is noted that evidence has not been provided that it is critical. (See MPEP 716.01(c),I,II). It is also noted that Osborne discloses that foam density influences the drying rate of the product, the color of the resultant product, the bulkiness of the final product (col. 7, lines 31-70), thus suggesting to one having ordinary skill in the art that the density would also have been a result effective variable that can control the product properties.
In response to Applicant’s argument regarding the timing of the blending being critical, this argument has not been found persuasive, because the specification recites “the timing of the additional blends may be beneficial”, the specification does not recite that the multiple stage blending is critical or provide evidence that it is critical. (See MPEP 716.01(c),I,II).
In response to Applicant’s argument that the Crawley reference does not teach any propeller, that draws mixed material upward and away from the blade in the manner of the presently claimed invention, this argument has not been found persuasive, 21 of Crawley can be interpreted as a propeller. As discussed in the Office action Crawley teaches that the propeller draws the cut and whipped fruit upward away from the blade once emulsification takes hold (when motor rotates the cutter assembly which includes propeller (21) a vortex is created which pulls liquid and solids up in the blender) ([0026]). Regarding the propeller drawing the cut and whipped fruit upward away from the blade once emulsification takes hold for the purpose of limiting deflation of the foam, since the cut and whipped fruit is pull upward and away from the blade, and therefore teaches the active method step, it is expected that the action of drawing the cut and whipped fruit away from the blade would limit deflation of the foam (MPEP 2112.01.I).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792