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As a result of the amendments to the claim, all rejections have been withdrawn due to cancellation of the claims.
Claims 39-67 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.
Claims 39-40, 43, 45, 47, 49, 59-60, 62 is/are rejected under 35 U.S.C. 103 as being unpatentable over Leah (Sous Vide Egg Bites – Copycat Starbucks Recipe) in view of Spyrou (Costco Has Their Own Version of Egg Bites, And They’re Super Cheap), Timmons et al. (US 4,889,741), Hildebrand (US D215271), Gildersleeve et al. (US 2020/0196646), and Belser et al. (WO 2012/049233).
Regarding Claims 1, 59, 60, Leah discloses a process for preparing a food product, the process comprising:
blending a raw egg mixture (crack eggs into a blender, step 1 of instructions, page 8);
applying a coating of oil to a base of a cavity (Spray four 1 cup glass bowls with cooking spray, step 3 of instructions, page 8);
depositing the blended, raw egg mixture into the cavity (Pour ½ cup of egg mixture into each bowl, step 4 of instructions, page 8);
baking, in an oven, the blended raw egg mixture disposed in the cavity (Bake at 350 degrees…step 7 of instruction, page 8), wherein at least at one point during the step of heat treating, the formed tray reaches a temperature of about 300°F to about 330°F (Bake at 350 degrees…step 7 of instruction, page 8), cooling, via a cooling device (refrigerate), the baked egg products (step 8 of instruction, page 8).
Leah is silent to wherein the egg mixture is deposited to a formed tray having two discrete cavities with an upper peripheral flange having a flat surface, wherein the base is disposed a distance below the upper peripheral flange and the formed tray is comprised of crystallized polyethylene terephthalate (CPET), wherein the formed tray includes a lateral wall extending between and connecting a top portion of the two discrete cavities, and hermetically sealing the cooled two discrete baked egg products in the formed tray under vacuum to provide a modified atmosphere package, wherein a flexible film is sealed to the flat surface of the upper peripheral flange by applying heat and pressure.
Hildebrand is relied on to teach a formed tray having two distinct cavities, an upper peripheral flange having a flat upper surface extending around both of the two discrete cavities, wherein the base Is disposed a distance below the upper peripheral flange and wherein a lateral wall extends between and connect a top portion of the two discrete cavities (see Fig. 1-2- also meets the limitation of Claim 60). Timmons is also relied on to provide a showing of depositing raw egg material into a tray comprising cavities, cooking the raw egg material, and then sealing the egg within the tray it was cooked in (see Fig. 1, and Col. 2, Ln. 44-61). Timmons identifies the package as a “cook-in-package” (Col. 2, Ln. 60) which reduces processing time and thus facilitates the automated process (Col. 2, Ln. 35-40). Spyrou is also relied on to teach similar egg products packaged within trays having a cavity with a base disposed a distance below an upper peripheral flange (see Image on page 3 where the “Egg Bites” are placed in a cavity with a flange), and a flexible film sealed to the upper peripheral flange flat surface (see image below).
In view of the teachings of Spyrou and Timmons, it would have been obvious to one of ordinary skill in the art to modify the package of Leah so that the egg mixture can be heated and packaged and sealed within the same tray that has a peripheral flange having a flat surface so that it is capable of being cooked within and sealed to facilitate the distribution process. The particular configuration of the package would have been an obvious matter of design choice. Since both Hildebrand and Spyrou are directed to formed trays having two distinct products stored therein, it would have been obvious to one of ordinary skill in the art to store the baked egg product of Leah within the tray of Hildebrand based on product choice.
As to the limitation of hermetically sealing under vacuum to provide a modified atmosphere package, Gildersleeve is relied on to teach egg products being packaged after a cooking process (see abstract) in vacuum sealed packages. Gildersleeve also discloses processing the cooling step in a clean room (as per claim 59, see paragraph 20) and gas flushing the package with nitrogen or nitrogen and carbon dioxide mixture (paragraph 39), thus providing a “modified atmosphere packaging”. Therefore, since Spyrou is directed to a hermetically sealed package, it would have been obvious to one of ordinary skill in the art to provide vacuum sealing to form a modified atmosphere package to further extend the shelf-life of the product. Also, it would have been obvious to one of ordinary skill in the art to provide a clean room having filtered air to prevent contamination of the baked food products.
As to the limitation of the formed traying being comprised of CPET material, it is noted that Timmons is generic to materials that are capable of “withstanding the cooking process without undesirable chemical or physical changes (see Col. 6, Ln. 15-24). Additionally, the product material should be heat sealable (see Col. 6, Ln. 25-27). Therefore, Belser is relied on to teach an ovenable material made from CPET (Page 12, last paragraph) which is capable of being heated up to 500°F (Page 7, second and third paragraph). Belser utilizes CPET to cook/bake food materials such as appetizers, entrees, and dessert items (see Abstract).
Therefore, since the prior art identifies CPET as a suitable material for withstanding up to 500°F, it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06).
Regarding Claim 40, Hildebrand further teaches wherein a first cavity of the two discrete cavities defines a first annular exterior side surface extending below the upper peripheral flange and a second cavity of the two discrete cavities defines a second annular exterior side surface extending below the upper peripheral flange (see Fig. 2).
Regarding Claim 43, Leah further teaches wherein the tray is not heated beyond about 410°F during the baking step (Leah bakes at 350°F, see step 7 of Instructions, page 8).
Regarding Claim 45, Spyrou further teaches a formed tray comprising a flexible film sealed to the package comprising information regarding the contents of the baked egg product which constitutes as a label. Spyrou also recites “Ready in 60 seconds” which provides information regarding the reheating instruction of the product stored therein. Spyrou does not specifically provide specific instructions for re-heating the baked egg products. However, since the label of Spyrou already contains indicia to convey certain information to the consumer, it would have been obvious to one of ordinary skill in the art to include re-heating instructions based on design choice.
Regarding Claim 47, Gildersleeve is further relied on to teach a step of gas flushing the formed tray with nitrogen thereby forming the modified atmosphere (paragraph 39).
Regarding Claim 49, Belser, which was relied on to modify the container to an oven-safe material, is further relied on to teach a material having a thickness of about 0.0001 to about 0.075 inches (page 13, fourth paragraph), which encompasses the claimed range. Therefore, since Belser is directed to cooking a food product within a CPET material, it would have been obvious to one of ordinary skill in the art to use known material thickness to sufficiently cook and handle food product within a cooking oven.
Regarding Claim 62, Leah does not disclose a step of freezing.
Claim 41 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 39, further in view of Angstrom (How to Control Humidity in Your Cleanroom).
Regarding Claim 41, since Gildersleeve provides a room having a cooler, a positive air pressure and an air filtration system (paragraph 20), it is construed that the clean room of Gildersleeve would have been effective to reduce at least a portion of condensation formed on the formed tray, compared to a packaging process performed in a room without a cooler, positive air pressure and air filtration system. In any case, Angstrom indicates that condensation is a matter of humidity level, where it is recognized that bacterial growth, condensation, water absorption, corrosion, and photolithographic degradation can occur due to high humidity level. Therefore, since the combination is directed to food packaging in clean room, it would have been obvious to one of ordinary skill in the art to control the humidity level of the clean room to reduce bacterial growth, condensation, and metal corrosion.
Claims 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claims 39, further in view of Chatterton et al. (WO 2016/148699 A1).
Regarding Claims 42, the combination is silent to wherein the upper peripheral flange includes one or more curvatures at corners thereof and extends downwardly to define a downturned edge of the upper peripheral flange. Chatterton is relied on to teach a formed tray comprising a peripheral flange (upper horizontal flange 101) comprising one or more curvatures at corners thereof and extends downwardly (see 101, 102 of Fig. 2) to define a downturned edge. This in part allows the tray to be endowed with improved rigidity and resistance to deformation and bending (see abstract). Therefore, since the combination is also directed to a form tray having a peripheral flange, it would have been obvious to one of ordinary skill in the art to further comprise a downturn edge for the purpose of imparting additional structural rigidity to the formed tray.
Claims 44 and 46 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 39, further in view of Van Erp et al. (US 2021/0307367).
Regarding Claims 44 and 46, the combination is silent to wherein the step of baking the raw egg mixture in the formed tray occurs in a continuous feed oven with at least two different baking zones having different temperatures. Van Erp is further relied on to teach a two chamber/zone spiral cooking oven having additional heating means for different purposes such as pasteurization, microwave, and impingement (paragraph 90). In this case, the impingement zone with high air temperature helps increase the browning on the surface of the product (paragraph 144). Therefore, since Leah desires some degree of browning, it would have been obvious to one of ordinary skill in the art to incorporate a second zone having an impingement browner to provide high heat to the surface for the purpose of browning. The zones of Van Erp are construed to have different temperatures (paragraph 144 recites an impingement zone having “high air temperature”). The modification of Van Erp is construed to meet the limitation of employing an impingement browner as required by Claim 46.
Claim 48 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 39, further in view Nambu et al. (US 2017/0355500).
Regarding Claim 48, while Spyrou shows a thermoplastic film sealed to the tray having a peripheral flange, the combination is silent to wherein the step of sealing the baked egg products further comprises sealing a polyethylene-based multi-layer structure to the flange of the formed tray and wherein the polyethylene-based multi-layer structure further comprising an ethylene-vinyl alcohol copolymer (EVOH) layer. Nambu is relied on to teach known heat-sealable multilayer film for food packaging, comprising polyethylene and EVOH (see paragraph 60) and where EVOH is a known gas barrier layer (paragraph 21).
Therefore, since the combination is directed to hermetically sealed vacuum sealing packages, it would have been obvious to one of ordinary skill in the art to use known film materials such as polyethylene based multilayer material comprising EVOH as the film cover to suitably seal the food product within the tray and where the thermoplastic sealing film can provide gas barrier properties to the packaged food.
Claims 50-54, 56-57 is/are rejected under 35 U.S.C. 103 as being unpatentable over Leah (Sous Vide Egg Bites – Copycat Starbucks Recipe) in view of Spyrou (Costco Has Their Own Version of Egg Bites, And They’re Super Cheap), Timmons et al. (US 4,889,741), Hildebrand (US D215271), Gildersleeve et al. (US 2020/0196646), Belser et al. (WO 2012/049233) and Van Erp et al. (US 2021/0307367).
Regarding Claims 50 and 51, the claim is rejected for reasons discussed in Claims 39 and 44 with respect to the Van Erp reference. Since the Belser reference is also directed to subjecting CPET materials to heat, and the prior art combination discloses similar thermal treatments, there is a reasonable expectation that the formed tray of the prior art would be substantially free from warpage and contamination.
Regarding Claim 52, Van Erp further teaches wherein the oven is a continuous feed oven (paragraph 10).
Regarding Claim 53, Spyrou further teaches a formed tray comprising a flexible film sealed to the package comprising information regarding the contents of the baked egg product which constitutes as a label. Spyrou also recites “Ready in 60 seconds” which provides information regarding the reheating instruction of the product stored therein. Spyrou does not specifically provide specific instructions for re-heating the baked egg products. However, since the label of Spyrou already contains indicia to convey certain information to the consumer, it would have been obvious to one of ordinary skill in the art to include re-heating instructions based on design choice.
Regarding Claim 54, Leah further teaches wherein the baking step is controlled to create a browned cand crisped top portion (see image on page 6).
Regarding Claim 56, Leah further teaches wherein the tray is not heated beyond about 410°F during the baking step (Leah bakes at 350°F, see step 7 of Instructions, page 8).
Regarding Claim 57, Belser, which was relied on to modify the container to an oven-safe material, is further relied on to teach a material having a thickness of about 0.0001 to about 0.075 inches (page 13, fourth paragraph), which encompasses the claimed range. Therefore, since Belser is directed to cooking a food product within a CPET material, it would have been obvious to one of ordinary skill in the art to use known material thickness to sufficiently cook and handle food product within a cooking oven.
Claim 55 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 50, further in view of Chatterton et al. (WO 2016/148699 A1).
Regarding Claim 55, the combination is silent to wherein the upper peripheral flange includes one or more curvatures at corners thereof and extends downwardly to define a downturned edge of the upper peripheral flange. Chatterton is relied on to teach a formed tray comprising a peripheral flange (upper horizontal flange 101) comprising one or more curvatures at corners thereof and extends downwardly (see 101, 102 of Fig. 2) to define a downturned edge. This in part allows the tray to be endowed with improved rigidity and resistance to deformation and bending (see abstract). Therefore, since the combination is also directed to a form tray having a peripheral flange, it would have been obvious to one of ordinary skill in the art to further comprise a downturn edge for the purpose of imparting additional structural rigidity to the formed tray.
Claim 58 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 50, further in view of Angstrom (How to Control Humidity in Your Cleanroom).
Regarding Claim 58, since Gildersleeve provides a clean room having a cooler, a positive air pressure and an air filtration system (paragraph 20), it is construed that the clean room of Gildersleeve would have been effective to reduce at least a portion of condensation formed on the formed tray, compared to a packaging process performed in a room without a cooler, positive air pressure and air filtration system. In any case, Angstrom indicates that condensation is a matter of humidity level, where it is recognized that bacterial growth, condensation, water absorption, corrosion, and photolithographic degradation can occur due to high humidity level. Therefore, since the combination is directed to food packaging in clean room, it would have been obvious to one of ordinary skill in the art to control the humidity level of the clean room to reduce bacterial growth, condensation, and metal corrosion.
Claim 61 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 60, further in view of Mathews et al. (US 2014/0272038).
Regarding Claim 61, the combination is silent to wherein the step of cooling includes cooling the two discrete baked egg products within the formed tray until the two discrete baked egg products have a temperature of about 35°F to about 42°F. However, Leah discloses a step of refrigerating, which is reasonable to expect a range of temperature overlapping with 35°F to 42°F. In any case, Mathews is relied on to teach an egg-based food product that involves a process of packaging a cooked food product into a container that permits heating and cooling of its contents (see paragraph 43), wherein the cooked food product, if not consumed immediately, is cooled typically to a temperature of 33°F to 40°F, i.e. refrigeration temperatures. Since Mathews is also directed to packaging of a cooked egg-based food product, it would have been obvious to use similar cooling techniques prior to packaging, such as cooling down to refrigeration temperatures, for the purpose of extending the shelf-life of the egg-based food product. Since Gildersleeve also performs a cooling process within a clean room kept at refrigeration temperatures (40°F, paragraph 20), it would have been obvious to one of ordinary skill in the art to similarly allow the cooked egg-based product within a clean room for the purpose of maintaining sanitary operations.
Claims 63-64 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claims 59, further in of view of Chatterton et al. (WO 2016/148699 A1).
Regarding Claim 63, the combination do not specifically recite controlling the depositing step and the baking step to prevent contamination or deformation of the upper peripheral flange. However, since the prior art is directed to a formed tray having a flexible film sealed to the upper peripheral flange (see Spyrou), and is directed to CPET material undergoing heat treatment (see Belser), it would have been obvious to one of ordinary skill in the art to provide a proper surface to properly seal the flexible seal onto the upper peripheral flange. In any case, Chatterton is relied on to teach a formed tray comprising a peripheral flange (upper horizontal flange 101) comprising one or more curvatures at corners thereof and extends downwardly (see 101, 102 of Fig. 2) to define a downturned edge. This in part allows the tray to be endowed with improved rigidity and resistance to deformation and bending (see abstract). Therefore, since the combination is also directed to a form tray having a peripheral flange, it would have been obvious to one of ordinary skill in the art to further comprise a downturn edge for the purpose of imparting additional structural rigidity to the formed tray, thereby reducing deformation of the upper peripheral flange.
Regarding Claim 64, Leah further teaches wherein the tray is not heated beyond about 410°F during the baking step (Leah bakes at 350°F, see step 7 of Instructions, page 8).
Claims 65-67 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claims 39, further in of view of Van Erp et al. (US 2021/0307367) and Chatterton et al. (WO 2016/148699 A1).
Regarding Claims 65 and 66, the combination is silent to wherein the step of baking the raw egg mixture in the formed tray occurs in a continuous feed oven with at least two different baking zones having different temperatures. Van Erp is further relied on to teach a two chamber/zone spiral cooking oven having additional heating means for different purposes such as pasteurization, microwave, and impingement (paragraph 90). In this case, the impingement zone with high air temperature helps increase the browning on the surface of the product (paragraph 144). Therefore, since Leah desires some degree of browning, it would have been obvious to one of ordinary skill in the art to incorporate a second zone having an impingement browner to provide high heat to the surface for the purpose of browning. The zones of Van Erp are construed to have different temperatures (paragraph 144 recites an impingement zone having “high air temperature”). As to the limitation of preventing contamination or deformation of the upper peripheral flange, since the prior art is directed to a formed tray having a flexible film sealed to the upper peripheral flange (see Spyrou), and is directed to CPET material undergoing heat treatment (see Belser), it would have been obvious to one of ordinary skill in the art to provide a proper surface to properly seal the flexible seal onto the upper peripheral flange. In any case, Chatterton is relied on to teach a formed tray comprising a peripheral flange (upper horizontal flange 101) comprising one or more curvatures at corners thereof and extends downwardly (see 101, 102 of Fig. 2) to define a downturned edge (also meets the limitation of Claim 66). This in part allows the tray to be endowed with improved rigidity and resistance to deformation and bending (see abstract). Therefore, since the combination is also directed to a form tray having a peripheral flange, it would have been obvious to one of ordinary skill in the art to further comprise a downturn edge for the purpose of imparting additional structural rigidity to the formed tray, thereby reducing deformation of the upper peripheral flange.
Regarding Claim 67, Leah further teaches wherein the tray is not heated beyond about 410°F during the baking step (Leah bakes at 350°F, see step 7 of Instructions, page 8). Belser, which was relied on to modify the container to an oven-safe material, is further relied on to teach a material having a thickness of about 0.0001 to about 0.075 inches (page 13, fourth paragraph), which encompasses the claimed range. Therefore, since Belser is directed to cooking a food product within a CPET material, it would have been obvious to one of ordinary skill in the art to use known material thickness to sufficiently cook and handle food product within a cooking oven.
Response to Arguments
Applicant’s argument in the response filed 12 Sep 2024 has been considered, but is rendered moot in view of the new grounds of rejections necessitated by amendment.
That is, all arguments directed to the limitation of a formed tray comprising two discrete cavities are rendered moot in view of the new grounds of rejection with respect to Hildebrand.
Applicant argues on the basis that the prior art do not teach a package that contains the food product, cooks the food product within its package, and seals the package after the cooking process (page 11-13). In sum, Applicant indicates that Timmons, which was relied on to teach a process of preparing food in which the food product is both cooked and packaged hermetically is not sufficient to meet the claimed limitation because Timmons does not teach baking an egg product at baking temperatures. However, the argument is not persuasive because Belser discloses a step of subjecting CPET materials to baking temperatures up to 500°F which is well above the claimed range (page 7, second and third paragraph). Therefore, one of ordinary skill in the art would reasonably expect that a formed tray made of CPET materials can withstand baking temperatures and would be enabled to employ a process of baking eggs within the formed tray as suggested by the prior art combination. It is noted that Timmons is merely relied on to teach the concept of cooking egg within its final packaging prior to sealing, and that the thermal conditions of Timmons is not being imported over to the Leah reference. One of ordinary skill in the art would not be taught away from using Timmons based on Timmon’s heating process because the packaging materials would have been routinely determined based on the heating requirements of the food product being packaged. In this case, Belser has been provided to show known plastic materials capable of withstanding the temperatures required by Leah.
Applicant also argues on the bases that the prior art do not discloses a cooling step prior to hermetically sealing the formed tray to limit the condensation formed on the upper peripheral flange (page 14-17 of the remarks). In sum, Applicant argues that the Mathews reference does not sufficiently meet the claimed limitations because Mathew is directed to a package that is heated after it has been sealed, and that there is no step of cooling prior to sealing. The argument is not persuasive because Mathews is simply relied on to teach known cooling temperatures for a baked egg-based product. The steps of cooling after baking is taught by Leah. Gildersleeve also provides a cooling step after a pasteurization step (see step 88 and 90, Fig. 4), prior to a sealing step (step 70). It is also noted that Applicant’s arguments appear to be directed to modifying the Timmons reference; however, as discussed above, the rejection relies on a combination of references with respect to the Leah reference, and that there are no combinations made in which Mathews is modifying the Timmons reference. Timmons is merely relied on to teach the concept of cooking egg within its final packaging prior to sealing, and that the thermal conditions of Timmons is not being imported over to the Leah reference.
As to Claim 50 (page 18 of the remarks), Applicant argues that one of ordinary skill in the art would not modify Leah with the Van Erp reference since Leah already purports to brown the egg product using a single temperature in a single baking zone. However, the argument is not persuasive because the modification of the baking methods would have been obvious based on substitution of equivalents known for the same purpose (MPEP 2144.06). Since both Leah and Van Erp are directed to different baking methods known for achieving a browning effect on food product, there is a prima facie case of obviousness. In response to Applicant’s argument that the references do not control the baking to keep the upper peripheral flange free from warpage and contamination, the argument is found not persuasive because there is no evidence to suggest that warping will necessarily occur in the prior art. Furthermore, it has been known to subject CPET materials to temperatures above the claimed range as taught by Belser. Therefore, since Applicant’s formed tray is free of warping, there is a reasonable expectation that the prior art container will also be free of warping since it is of the same material and within the required temperature conditions.
As to Claim 59, Applicant argues that the prior art is silent to a clean room; however, the limitation has been addressed by the Gildersleeve reference as presented in the rejection 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.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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