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 .
DETAILED ACTION
Response to Amendment
As a result of the amendments to the claims, the objections over Claims 2 and 5 have been withdrawn.
Also, the 112(b) rejection over Claim 10 has been withdrawn.
All rejections not repeated in this Office Action have been withdrawn.
Claims 1-11, 20-21 are currently pending in this Office Action.
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.
Claim(s) 1-11, 20-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. (US 2012/0115964 A1- cited in IDS filed 16 Nov 2021) in view of Farhat et al. (WO 2006/065136 A1- cited in IDS filed 16 Nov 2021), Kanda et al. (JP 2018198541 A-see machine generated translations- previously cited), Kawamura et al. (JP 3974021 B2- previously cited) and evidenced by Hatchard (What is Xanthan Gum? Benefits, Risks, Uses, and Substitutions- previously cited) and by Daskalakis (Xanthan Gum, Phexcom – previously cited) and Hatchard (What is Xanthan Gum? Benefits, Risks, Uses, and Substitutions- previously cited).
For purpose of applying prior art, the recitation of “xanthan gum” in the prior art will be construed as “native xanthan gum” absent explicit recitation that the xanthan gum has been chemically modified. See Appeal Brief filed 6/25/2024 which confirms that “native” xanthan gum is “fairly common and is typically referred to simply as xanthan gum” (Page 5, second paragraph).
Regarding Claims 1 and 21, Foster discloses a process for preparing a soup product (paragraph 39) comprising:
Preparing a mixture of soup ingredients (paragraph 39), native xanthan gum (paragraph 5),
particulate xanthan gum (paragraph 17) and water (paragraph 23) to form a suspension, wherein the particulate xanthan gum was formed by formed by extruding a mixture containing between 20 and 60 wt.% water and at least 10% of xanthan gum by weight of dry matter at a temperature of at least 60°C to form a resulting extrudate, drying the resulting extrudate, and converting the resulting extrudate into a particulate composition prior, during or after the drying to form the particulate xanthan gum (See paragraph 12 which incorporates WO 2006/065136 ‘Farhat et al.’ where the process of making a particulate xanthan gum is seen on page 4, line 29 to page 5, line 3 of Farhat), and wherein the native xanthan gum is present in an amount of 0.2 wt% to about 10% wt% (paragraph 19) and particulate gum is present in an amount of 6wt% to about 25wt%, thereby being present in a ratio ranging between 1.67:1 (10wt% native to 6 wt% particulate) to 1:125 (0.2wt% xanthan to 25 wt% particulate), which encompasses the claimed range.
Foster is silent to reciting wherein the native xanthan gum is comprised of a 1,4 linked D-glucose backbone with trisaccharide side chains on alternating anhydroglucose units, heating the mixture while providing a viscosity sufficient to maintain a dispersion of the soup ingredients and the particulate xanthan gum in the suspension; injecting the suspension into a container and closing the container; and retorting the suspension in the closed container while maintaining the viscosity sufficient to maintain the dispersion of the soup ingredients and the particulate xanthan gum in the suspension, thereby producing the soup product.
As to the Xanthan gum, Daskalakis is provided as evidentiary reference to show that xanthan gum has a structure formula with a polymer backbone consisting of four D-glucose units linked at the 1 and 4 positions, with trisaccharide side chains on alternating anhydroglucose units (see section 5 Structural Formula, page 691). Therefore, since Foster is also directed to native xanthan gum, the xanthan gum of Foster is construed to be comprised of a 1,4 linked D-glucose backbone with trisaccharide side chains on alternating anhydroglucose units.
As to the steps of heating the mixture, injecting the suspension into a container and retorting the suspension, Kanda is relied on to teach preparing a soup product comprising:
preparing a mixture of soup ingredients (consommé, potage, miso soup, page 2, second paragraph), xanthan gum (page 2, second paragraph) and water (water system, page 2, first paragraph) to form a suspension; heating the mixture (sterilization treatment, page 3, sixth paragraph); injecting the suspension into a container and closing the container (Packaging means filling liquid containers and solid foods into containers and sealing them, page 4, sixth paragraph); and retorting the suspension in the closed container (retort sterilizer, page 4, sixth paragraph). Since Kanda is also directed to a thickened soup product comprising xanthan gum as a thickener (see page 2, last paragraph), it is construed that the product of Kanda results in a viscosity that maintains dispersion of the soup ingredients in the suspension. Since both Foster and Kanda are directed to soup products using a composition comprising xanthan gum as thickeners, it would have been obvious to one of ordinary skill in the art to employ similar methods of packaging soup products as taught by Kanda to safely package thickened soup products for commercial purposes. As to the limitation of maintaining a viscosity sufficient to maintain the dispersion of the soupe ingredients and the particulate xanthan gum in the suspension during the retorting step, since the combination discloses the composition of the soup product comprising native xanthan gum, particulate xanthan gum, and water that is within the claimed ratio, the composition of Foster is construed to also maintain a viscosity sufficient to maintain the dispersion of the soup ingredients and the particulate xanthan gum in the suspension during a retorting step. 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, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
As to the limitation of using a mixer at a sheer rate, Kawamura is relied on to teach a method of making a soup product (vegetable pudding) comprising xanthan gum (paragraph 22) using a mixer to incorporate the ingredients to thereby form a fluid mixture (see paragraph 16). The mixing can be performed using a mixer, propeller stirrer, an ejector or a shear pump.
Therefore, since both Foster and Kawamura are directed to forming a liquid mixture comprising xanthan gum, it would have been obvious to one of ordinary skill in the art to use a shear pump to mix the ingredients. A shear pump is construed to be a mixer with a sheer rate.
Regarding Claim 2, Kanda further teaches heating the mixture in a kettle with steam injection (steam injection sterilizer, page 3, sixth paragraph). Since Kanda is also directed to providing a soup having thickening effects provided by xanthan gum, it is construed that Kanda also heats with steam to a viscosity sufficient to maintain the dispersion of soup ingredients and the xanthan gum in the suspension.
Regarding Claims 3 and 4, the claimed ratio is construed to be encompassed by Foster. Note that 15:85 equates to 1:5.67. Therefore, both 1:5 and 15:85 are within the prior art range of 1.67:1 (10wt% native to 6 wt% particulate) to 1:125 (0.2wt% xanthan to 25 wt% particulate).
Regarding Claim 5, Kanda further teaches wherein injecting the suspension into the closed container comprises introducing the suspension through an opening in the container and subsequently closing the opening in the container (Packaging means filling liquid containers and solid foods into containers and sealing them, page 4, sixth paragraph).
Regarding Claim 6, while Foster is directed to a soup product (paragraph 39), Foster is silent to specifically reciting a concentrated broth having a flavor of chicken, meat, fish, herb, fruit or vegetables. Kanda further teaches wherein the soup ingredients include a concentrated broth having a flavor of meat (demiglace, page 2, second paragraph). Since both Foster and Kanda are directed to thickened soup products, It would have been obvious to one of ordinary skill in the art to comprise a concentrate broth having a flavor of meat based on flavor preference.
Regarding Claim 7, for reasons similar to the rejection of Claim 6, Kanda further teaches wherein the soup ingredients include dairy products forming a cream-based product (cream sauce, page 2, third paragraph).
Regarding Claim 8, Foster is directed to a composition devoice of starch-containing thickeners because Claim 1 of Foster, at minimum, only requires xanthan gum, and a swellable particulate which can be xanthan particulate (paragraph 17). Note that Foster optionally comprises starch in the alternative to xanthan particulate (see claims 6 and 7).
Regarding Claim 9, Kanda further teaches wherein the container is fabricated from metal, and the container has a shape selected from the group consisting of a pouch, a tray, and a cup (page 4, seventh paragraph).
Regarding Claim 10, Kanda further teaches wherein retorting the soup product in the closed container comprises heating the suspension in the closed container at a temperature greater than or equal to 125 degrees Celsius for a period of at least 10 minutes (95°C-1.5 minutes or more, Page 4, sixth paragraph).
Regarding Claim 11, the combination is silent to the specific gluten content of the soup product; however, the combination also teaches a soup product using only xanthan gum as a thickener which, as evidenced by Hatchard, provides zero net carb and is a keto-friendly substitute over starch thickeners. Therefore, the soup taught by the prior art would also have approximately 0 weight percent of gluten derived from the thickener. Any gluten content as a result of the soup ingredient would have been an obvious matter of flavor choice.
Regarding Claim 20, Farhat et al, which has been incorporated into the Foster reference (see paragraph 12 of Foster), further teaches wherein the particulate composition is a consequence of the presence of intermolecular linkages acting to maintain the particulate structure (see Col. 4, ln. 47-61).
Response to Arguments
Applicant’s remarks in the response filed 26 June 2025 has been considered, but is found not persuasive over the prior art.
The Examiner agrees that the amendments discussed during the interview would overcome the rejections under 112(b) and the objections as evidenced by the current Office Action (see above). The Examiner notes that no agreement was reached with regards to the prior art.
Applicant argues on the basis that Kanda is directed to varying the viscosity of the liquid food during sterilization such that the viscosity is as small as possible. However, the argument is not persuasive because Kanda is simply relied on teach a process of performing a step of packaging and retorting. Since Foster discloses the claimed soup product ingredients such as a suspension of native xanthan gum and particulate xanthan gum within the claimed ratio, the composition of Foster is construed to have similar physical properties and is expected to maintain a viscosity sufficient to maintain the dispersion of the soupe ingredients and the particulate xanthan gum in the suspension during the retorting step. 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, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). For these reasons, the prior art has been maintained.
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 THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792