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 .
Claim Objections
Claims 27-28 and 59-60 are objected to because of the following informalities:
Regarding claim 27, in line 4 after “time” delete “period within the” for consistency with the respective amendment to claim 26.
Regarding claim 28, in line 3 delete “period” for consistency with the respective amendment to claim 26.
Regarding claim 59, in the last line of the claim amend “1170” to recite “1,170” to place the claim in better form.
Regarding claim 60, in line 3 delete “period” for consistency with the respective amendment to claim 59.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 26-27, 31, 58-59 and 62-63 are rejected under 35 U.S.C. 103 as being unpatentable over Fisher (US 2,674,536) in view of Shaw et al. (US 9,850,056 B2), Kratochvil et al. (US 2007/0237867 A1), Shabbycreek NPL (made of record 6/11/2024), and Heat Transfer NPL.
Regarding claim 26, Fisher teaches a tray container in which food is frozen, held, transported and reheated (column 1 lines 1-3; column 2 lines 32-33), where precooked food items 5-7 and juice or gravy 8 are placed into the tray and sealed by cover 3 made of “thin and preferably light metal foil” (figure 6; column 2 lines 32-42 and 45-54; column 3 lines 1-2). The food items include protein such as the poultry drum stick 7 (figures 3 and 6). The juice or gravy 8 is construed to be a type of sauce. The cover 3 is construed to be flexible film. The sauce 8 is disposed together with the meal component 7 such that there is no structure between the two (figures 3 and 6). The components, including sauce 8, are placed into the tray prior to freezing (column 2 lines 50-55). The tray and its contents are frozen and eventually reheated by any type of heating unit, using any desired cooking temperature, to a desired serving temperature (column 3 lines 2-4 and 11-15).
Fisher does not teach the tray having a single cavity and an upper peripheral flange around the single cavity to define a single opening.
Shaw et al. teaches an ovenable package for a food product (abstract), the package comprising a tray 10 having a single cavity 13 for holding a food product and an upper peripheral flange 14 around the single cavity to define a single opening (figures 1-2; column 4 lines 22-24), where the food product can be a pre-prepared meal (column 4 lines 26-27).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the tray of Fisher to have a single cavity and an upper peripheral flange around the single cavity to define a single opening since the reference teaches the tray can have “any desired number of compartments” (column 2 lines 40-41), since the prior art recognizes the claimed structure for ovenable food products, since there is no evidence of criticality or unexpected results associated with the claimed structure, and to combine prior art elements according to known methods to yield predictable results, see MPEP 2143 I.(A).
Fisher does not teach the film is a polymer film forming a hermetic seal between the film and the upper flange of the tray.
Shaw et al. teaches that it is known to attach the lidding film to the rim of the tray but the failure rate of said package type is relatively high, causing issues such as spoilage of the contents, and the film can shred when a user tries to remove the film from the tray (column 1 lines 30-39). The package of Shaw et al. comprises a flexible polymer film 20 attached to the flange 14 (column 4 lines 16-19 and 33-35) which ensures an airtight seal 15 until the film is first opened, thereby protecting the contents of the tray from the environment (column 5 lines 40-43), provides evidence of tampering (column 6 lines 34-35), and allows the package to be opened prior to heating (column 6 line 64-66).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Fisher to include a flexible polymer film forming a hermetic seal since the reference already contemplates a cover but does not specify a hermetic seal, since the prior art acknowledges that polymer films can be sealed to the tray, and for the advantages taught by Shaw et al.
Regarding the limitation “the sauce component comprises one or more of…”, the limitation is construed to recite alternatives. For the sake of examination, the limitation “moisture content…about 55% to about 95%” is chosen. Fisher does not teach the moisture content of the sauce.
Kratochvil et al. teaches a microwavable steamer food pack (abstract) comprising sauce, where the sauce can have a water content between 33-87% (paragraph 3). The food component 22 and sauce component 34 are both received within a single cavity of a tray (figure 1).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Fisher such that the sauce has the claimed moisture content since there is no indication that the range is critical or yields unexpected results, and the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as type of food included with the sauce, type of sauce itself, moisture content of the overall food product, nutritional content, flavor, and texture/mouthfeel.
Fisher does not specify that the sauce is in fluid form in the tray prior to freezing.
Shabbycreek NPL teaches frozen meals in different containers (page 1 figure), the meal components including e.g., lasagna made by adding noodles (meal component as a starch component) and marinara sauce (sauce component) to a tray, where the marinara is in fluid form when added to the tray (page 2 “easy lasagna recipe”). The reference also teaches other meal and sauce components such as shredded chicken breast and cheddar soup in a separate tray (page 3 “broccoli cheddar chicken pasta bake recipe”).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Fisher such that the sauce is added as a fluid prior to freezing since the reference already suggests the juice or gravy can be placed in the tray in contact with the food, since the prior art acknowledges this feature is known for packaging frozen food products, since there is no evidence of criticality or unexpected results associated with the claimed feature, and to allow the sauce to cover the food prior to freezing, wherein the sauce will naturally cover the food when reheated, thereby enhancing convenience for the consumer.
Fisher does not teach 3-6 servings of the meal component.
Shabbycreek NPL further teaches the meal component can make multiple meals (page 2; “easy lasagna recipe”), discloses the prepared meals are meant to feed a family (pages 1 and 5), and does not particularly limit the number of servings (see whole document).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the meal component of Fisher to have 3-6 servings in order to provide a sufficient amount of the meal component for multiple consumers such as a family, since there is no evidence of criticality or unexpected results associated with the claimed feature, to provide convenience such that a user does not need to open multiple packages of the same component, and since food packages comprising multiple servings are known in the art.
Fisher does not teach one or more of the total solids content, viscosity, and moisture content of the sauce in combination with a configuration and/or formulation of the meal component and sauce provide a heating efficiency so that the meal component and sauce component reach at least 165oF when heated from frozen in a conventional oven for a heating time period of about 20-40 minutes and a temperature of about 400-450oF without stirring the components. The claim recites alternatives. For the sake of examination, the limitations “moisture content of the sauce” and “configuration…of the meal component and sauce” are chosen. It is noted that the limitation “heat efficiency” is interpreted in view of the specification to be a combination of features that reduce and/or increase the heating time and/or heating temperature required to achieve a desired final temperature (paragraphs 124 and 134-137).
The combination of Fisher and Kratochvil above teaches the sauce can have a water content between 33-87%.
Heat Transfer NPL teaches the rate of heat transfer Q is modeled based on conduction equations 2-4, 2-5 and convention equation 2-9 (pages 1 and 4), where the rate depends on factors such as cross-section area, thickness, temperature difference, thermal conductivity, convective heat transfer coefficient, and surface area (pages 2 and 4). Based on the above equations, one of ordinary skill would have been able to approximate the temperature increase of the meal and sauce components over a given duration at a given oven temperature.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen meal of Fisher such that the moisture content of the sauce in combination with a configuration and/or formulation of the meal and sauce components provides a heating efficiency so the first and second components reach at least 165oF when heated from frozen in a conventional oven over the claimed heating time and temperature ranges since the reference teaches the meal component is frozen and then reheated to a desired temperature using any heating method at a desired cooking temperature (column 3 lines 2-4 and 11-15), since the combination applied above teaches the same features as the claimed invention, since the heating characteristics can be modeled by known equations, for user convenience by allowing the meal and sauce components to simultaneously and predictably reach a desired temperature, thereby eliminating the need to heat the components separately or multiple times at different temperatures, since there is no evidence of criticality or unexpected results associated with the claimed values, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as the type of food, size and shape of the package, known heat transfer parameters, the desired degree/rate of cooking, and desired flavor/texture of the food.
Regarding “without stirring the meal component and sauce component”, there is no evidence of record to indicate that the claimed feature yields unexpected results. Further, one of ordinary skill would have reasonably expected a temperature equilibrium to be obtained between the meal and sauce components over the duration of heating. Absence evidence to the contrary, one of ordinary skill would similarly expect the frozen meal of the prior art combination to obtain the claimed temperature without stirring.
Regarding claim 27, Fisher does not teach the meal and sauce components are configured and/or formulated to reach at least 167oF when heated from frozen at the claimed temperature and duration.
However, the combination applied to claim 26 renders obvious a temperature of 165oF as stated above. A temperature of 167oF would have been obvious for the same reasons, particularly since there is no evidence of criticality or unexpected results associated with the claimed feature, and since one of ordinary skill in the art would have been able to predict the final temperature based on the heat transfer equations stated above.
Regarding claim 31, the claim recites alternatives. For the sake of examination, the limitation directed to the “starch” component is chosen.
Fisher does not teach the starch content in an amount of about 0.5 wt% to 2.5 wt% based on the weight of the sauce.
Kratochvil et al. further teaches the sauce can be made by adding starch in amounts of e.g., 0.5-2 wt%, to form a gel from the sauce (paragraphs 30-31).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sauce of Fisher to include the claimed amount of starch since the prior art recognizes sauces can include starch as a gelling agent, since there is no evidence of record that the claimed values of starch are critical or yield unexpected results, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as the type of sauce, desired heat transfer properties such as thermal conductivity and convective heat transfer coefficient, and desired mouthfeel or consistency.
Regarding claim 58, the limitation “greater than 0 wt% to 100 wt%” is interpreted to mean that the food absorbs at least some of the sauce, in an amount up to 100 wt% of the sauce. The combination applied to claim 26 teaches disposing the meal component and sauce component together into the tray, where the sauce component is disposed in liquid form to cover the meal component.
While the combination does not explicitly teach the sauce component has been absorbed by the meal component prior to freezing, absent evidence to the contrary, one of ordinary skill in the art would have reasonably expected at least some of the sauce to have been absorbed by the meal component as it is disposed onto said meal component. This is particularly the case since most foods, including foods such as pasta, are understood to include at least some cracks, crevasses, pores, etc. that can entrap the sauce as it covers said foods.
Regarding claim 59, the combination applied to claim 26 teaches a multi-serving frozen meal as stated for said claim. The same combination is applied to claim 59 and would have been obvious for the same reasons.
Regarding the tray being aluminum, Fisher teaches the tray is made from aluminum (column 2 lines 35-36).
Regarding the sauce component having “one or more of a viscosity, total solids content, and moisture content selected to improve the heating efficiency of the meal component”, the limitation is interpreted to mean reducing heating time and/or temperature needed to achieve a desired temperature (paragraph 124) as stated for claim 26.
Fisher teaches the meal component comprises juice or gravy, Kratochvil et al. teaches a sauce having a moisture content overlapping the claimed range, and Heat Transfer NPL indicates to one of ordinary skill that the rate of heat transfer can be controlled by adjusting various parameters as stated for claim 26.
Therefore, one of ordinary skill in the art would have reasonably expected that the meal and sauce components of the prior art combination would similarly improve the heating efficiency as claimed.
Regarding the limitation of heating without removal of the flexible polymer film from the tray, the combination applied to claim 26 teaches a flexible polymer film sealed to the tray.
Fisher teaches the frozen meal is heated while the cover 3 is retained on the tray to prevent moisture from escaping (column 3 lines 17-22).
Fisher does not teach the combination of the meal and sauce components having a mass of 90-1,170 grams.
However, the combination applied to claim 26 teaches multiple servings and the heat transfer being defined in part by the properties of the material. One of ordinary skill in the art would have been able to determine the appropriate amount of meal and sauce components required to achieve a desired final temperature within a given time period at a given heating temperature.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen meal of Fisher such that the meal and sauce components have a mass in the claimed range since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the values would have been used during the course of routine experimentation and optimization due to factors such as desired rate of heat transfer and duration of heating required to obtain the desired final temperature.
Regarding claim 62, the claim is rendered obvious for the same reasons stated for claim 31 above.
Regarding claim 63, the claim is rendered for the same reasons stated for claim 27 above.
Claims 28 and 60 are rejected under 35 U.S.C. 103 as being unpatentable over Fisher in view of Shaw et al., Kratochvil et al., Shabbycreek NPL, and Heat Transfer NPL as applied to claims 26 and 59 above, and further in view of Pawlick et al. (US 2019/0283952 A1).
Regarding claim 28, the combination applied to claim 26 does not teach the seal strength enables the seal to break to form a vent after about 60-90% of the heating period.
Pawlick et al. teaches a food packaging (abstract) comprising a tray 224 and a meal component in the tray (figure 21; paragraph 133), the meal component including a food component and a sauce component disposed within the tray (paragraph 115), a flexible film forming a seal between the film and tray (figures 46-47; paragraphs 180-181). The seal includes portion 806 which comprises sufficient sealing strength so as to maintain a complete seal for a period of time, thereby enabling pressure cooking of the food component, but which will vent at a given time, temperature or internal pressure so as to provide for further vented cooking (paragraph 184).
While Pawlick et al. does not specifically recite the seal breaks after about 60-99% of the heating period, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sealing strength of the combination applied to claim 26 to break after the claimed percentage of heating time since Fisher already contemplates a cover attached to the tray but does not specify the particulars of said cover and attachment, since the prior art acknowledges sealing films to trays such that the seal breaks after a desired cooking time to continue with vented cooking, and therefore to combine prior art elements according to known methods to yield predictable results, since there does not appear to be any criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as optimal cooking conditions (temperature, duration, pressure) for a particular type of food, desired texture/mouthfeel, and moisture level.
Regarding claim 60, the combination applied to claim 59 does not teach the recited features.
However, the combination applied to claim 28 renders the claim obvious, and claim 60 is rendered obvious for the same reasons.
Claims 30 and 61 are rejected under 35 U.S.C. 103 as being unpatentable over Fisher in view of Shaw et al., Kratochvil et al., Shabbycreek NPL, and Heat Transfer NPL as applied to claims 26 and 59 above, and further in view of Su et al. (US 2013/0153577 A1).
Regarding claim 30, the claim recites alternatives. For the sake of examination, the limitation directed to the “protein” component is chosen.
Fisher teaches the food comprises a protein component and a sauce, and Kratochvil et al. teaches the sauce can have a water content between 33-87% (paragraph 3) as stated for claim 26. However, the combination does not specify the protein and sauce together comprise a moisture content of 55-80%.
Su et al. teaches a steam-venting food package (abstract) comprising a food product including sauce, and states that the components of the product should have enough moisture to ensure sufficient steam generation throughout the cooking process, thereby avoiding undesired effects such as excessive hotspots or film scorching or burn-through (paragraph 76).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Fisher such that the components together have the claimed moisture content to prevent hot spots or burning as taught by Su et al., since there does not appear to be any criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as optimal cooking conditions (sufficient steam generation) for a particular type of food, desired texture/mouthfeel, and moisture level.
Regarding claim 61, the claim is rendered obvious for the same reasons stated for claim 30 above.
Response to Arguments
The amendments to claims 26 and 59 necessitated new grounds of rejection. Specifically, the limitations of the tray “having an upper peripheral flange around the single cavity to define a single opening of the single cavity”, the flexible film being polymer and sealed to the upper peripheral flange of the tray, the “configuration and/or formulation” and “heating efficiency” being based on both the meal component and the sauce component, and “without stirring the meal component and sauce component” have not been previously considered and change the scope of the claim. Likewise, the limitations of “without removal of the…film from the tray” and “the combination of the meal component…about 1170 grams” have not been previously considered.
Applicant’s arguments on pages 7-8 against Stevenson and Fisher as modified by Stevenson have been considered but the amendments overcome the teachings of said reference. Further, amending the preamble to recite “multi-serving frozen meal” and removing “modular meal component” changes the scope of the claim.
Stevenson is no longer relied upon. Shaw et al. is relied on to teach the structural features of the tray, lid, and seal. Heat Transfer NPL is relied on to teach that the rate of heat transfer can be modeled by known equations, where one of ordinary skill would have been able to configure and/or formulate the meal and sauce components to obtain a desired temperature over a given heating time and temperature.
Further, Fisher does not particularly limit the number of compartments as stated for claim 26, where the prior art recognizes food in a single cavity package that is to be heated by a conventional oven as taught by Shaw et al.
Applicant argues on pages 8-9 that Kratochvil teaches the sauce is gelled to remain solid or semi-solid and that it is desirable for the sauce to remain separate from the food components, and therefore does not teach the claimed configuration of sauce and meal component within the tray prior to freezing. Applicant argues there is no reasonable expectation of success that a moisture content of Kratochvil’s separately placed sauce would be suitable for a frozen meal where the sauce is disposed together with another food component in the same cavity of a single tray.
This is not persuasive since Kratochvil is not relied on to teach the sauce itself, but instead that the claimed moisture content is known for sauces in frozen packaged foods. Fisher already teaches combining the meal component with the sauce component in the tray such that there is no structure between the two (figures 3 and 6). Shabbycreek NPL teaches that making the frozen meal comprises adding liquid sauce to the food prior to freezing (pages 2-3). Thus, Fisher is not modified to include the sauce of Kratochvil as argued.
Further, one of ordinary skill in the art would have been able to predict the heating characteristics of the combined meal and sauce components based on known heat transfer equations. Applicant has not shown evidence to indicate that the claimed features are critical and yield unexpected results. While the cited prior art does not explicitly teach the meal and sauce components providing the heating efficiency and above argued features, one of ordinary skill in the art would have been capable of determining the appropriate parameters necessary to obtain said features. For example, the composition of the meal and sauce components can be adjusted to obtain a desired overall thermal conductivity and convective heat transfer coefficient, or the configuration of the components can be adjusted to obtain a desired surface area for heat transfer. The known heat transfer parameters can be optimized in order to control the temperature of the overall meal in a predictable manner.
Applicant argues on page 10 that Fisher describes a tray for an airplane, where it is known that such trays are configured to feed a single person, and therefore one of ordinary skill in the art would not be motivated to modify the tray to provide multiple servings.
This is not persuasive since using the tray in an airplane is a preferred method of using the tray, see MPEP 2123. The claims are directed to a product, where the tray of Fisher is capable of being used in situations other than airplanes (e.g., on ships), where providing multiple portions would be economically advantageous by minimizing weight and packaging material. Regardless, the reference does not teach away or otherwise indicate that the tray cannot be scaled to hold multiple servings. There is no evidence of record to indicate that the claimed number of servings is critical or yields results other than those predicted by the prior art. One of ordinary skill would have been capable of, and motivated to modify the tray of Fisher to comprise multiple servings based on a desired application. See also MPEP 2144.04 IV.A.
Regarding Applicant’s arguments on pages 10-12 directed to the “flexible polymer film forming a hermetic seal” and “without removal of the flexible polymer film”, the amendments necessitated new grounds of rejection.
Stevenson is no longer relied upon as stated above. Shaw et al. is now relied on to teach the flexible polymer film. Further, Fisher teaches heating the tray without removing the film (column 3 lines 17-22).
Applicant’s argument against the dependent claims is not persuasive for the same reasons stated above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRYAN KIM/Examiner, Art Unit 1792