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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/7/26 was filed after the mailing date of the Office action mailed on 3/25/26. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Terminal Disclaimer
A terminal disclaimer was filed and accepted on 7/7/25 in application 17/597,370, as such the terminal portion of any patent granted on this application would extend beyond the expiration date of any patent granted on Application Number 17597370.
Response to Amendment
The amendment filed on 6/17/26 has been entered. Claims 1-19 are pending in this U.S. Patent Application with claims 1-2 and 11-19 being examined on their merits, and claims 3-10 being previously withdrawn. Claim 1 was amended in step (b) to delete the manner in which a density of the gas in the gas dense zone is obtained as a single method of “(ii) or by an elevation of the pressure,” and to delete element (iii) of “(iii) or by the combination of these two methods (i) and (ii)” and inclusion of these deleted features (combination of methods) of previous element (iii) into element (ii). The claim now have elements (i) and (ii) in relation to the formation of a zone dense in gas molecules, wherein a density of the gas in the zone being obtained:
either by the gas flow generated by the evaporation of a cryogenic fluid (as previously presented);
or by the combination of an elevation of the pressure and the gas flow generated by the evaporation of the cryogenic fluid.
Further, claim 1 was amended to overcome the 35 U.S.C. 112(b) rejection stated in the last Office action by deleting the terms “small, very” in relation to the porous particles of coffee
Claim 12 has been also amended to recite “wherein the density of the gas in the zone is obtained by the combination of an elevation of the pressure and the gas flow generated by the evaporation of the cryogenic fluid”, instead of “wherein the density of the gas in the zone is obtained by an elevation of the pressure” (as previously presented).
Claim Objections
Applicant is advised that should claim 12 be found allowable, claim 13 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-2, 12, 14, 16 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Desjardins-Lavisse et al. [US 20100055285 A1], hereinafter Desjardins-Lavisse, in view of Spencer et al. [US 6337098 B1], hereinafter Spencer, and Hudak et al. [EP 0037810 B1], hereinafter Hudak.
Regarding claim 1, Desjardins-Lavisse teach a method of preparing a coffee product, comprising:
obtaining said product in the form of deep-frozen granules, particles or beads having a high dissolved gas content from a liquid, semi-liquid or paste-like matrix (which may be from a coffee product, equivalent to providing a coffee preparation in the form of a liquid, semi-liquid, or pasty matrix as claimed) [0014, 0032-0034, 0041];
a matrix gasification step that comprises the incorporation of gas at a pressure higher than 2 bars (equivalent to dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules obtained by an elevation of the pressure) [0013, 0015]; and
cryogenizing the gas-rich matrix to obtain frozen granules, particles, or beads as claimed [0016, 0017, 0022]. The gas is added under elevated pressure enabling substantial quantities of gas to be dissolved and trapped in the matrix on deep-freezing (cryogenic step) [0003-0004] (as disclosed on par.0030 of the instant specification, “Cryogenics under pressure makes it possible to obtain frozen non-porous products containing a large quantity of dissolved gas.”). The method according to the invention can be applied to food products, notably beverages such as coffee [0032].
In regards to the formation of a non-porous intermediate products of step c), Desjardins-Lavisse teach the gasification of the liquid at elevated pressure (pressure higher than 2 bars) and rapid freezing the gasified liquid using a cryogenic fluid [Abstract and 0013-0016]. Desjardins-Lavisse teach the invention does not consist of an expansion, but in the simple creation of an equilibrium of a food-grade matrix and a pressurized gas (as disclosed on par.0045 and Fig.8, step c, “The arrows represent the gas that is applied to the surface of the product in step b., which remains in equilibrium in step c. and which escapes in step e.”). Desjardins-Lavisse further teach that the release of the gas occurs at the moment when the temperature is restored and not in the installation during deep- freezing. The method carries out the gasification of a matrix and its rapid deep-freezing in series, such that particles, granules or beads are produced which contain the dissolved gas. These particles, granules or beads are stable during storage in the frozen state and enable foams or bubbles to be produced from the final product as it is returned to a positive temperature [Desjardins-Lavisse, 0018]. Therefore, Desjardins-Lavisse teach producing a frozen non-porous intermediate product with dissolved gas that is maintained as claimed.
While Desjardins-Lavisse does teach a matrix gasification step that comprises the incorporation of gas at a pressure higher than 2 bars, dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules obtained by an elevation of the pressure, Desjardins-Lavisse does not explicitly teaches the dissolving of an inert gas in the matrix being obtained by:
the gas flow generated by the evaporation of a cryogenic fluid.
Spencer teaches a method of improving the aroma and/or the flavor of coffee which includes a step of injecting a gas or a gas mixture into coffee in a closed space and/or into the closed space (injecting a gas in a closed space is equivalent to dissolving a gas by an elevation of the pressure as claimed) [Spencer, col.3, lines 17-21]. Spencer teaches that a gas or a gas mixture may be introduced into a substrate by vaporization of a cryogenic liquid (equivalent to dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid as claimed) [Spencer, col.4, lines 57-59].
Regarding the method used for dissolving gas in a substrate, the MPEP states:
MPEP 2143 I. B. Simple substitution of one known element for another to obtain predictable results. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art.
MPEP 2143 I. D. Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results. The rationale to support a conclusion that the claim would have been obvious is that a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art. One of ordinary skill in the art would have been capable of applying this known technique to a known device (method, or product) that was ready for improvement and the results would have been predictable to one of ordinary skill in the art.
MPEP 2144.06 II. Substituting equivalents known for the same purpose.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified Desjardins-Lavisse method of dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules obtained by an elevation of the pressure, with the method of dissolving an inert gas in the matrix by the evaporation of a cryogenic fluid in Spencer, because the substitution of art recognized equivalents as shown by Spencer is within the level of ordinary skill in the art. In addition, the substitution of one method of dissolving gas for another is likely to be obvious when it does no more than yield predictable results.
Modified Desjardins-Lavisse teaches the methods and concepts discussed above, but does not teach:
directly without a prior cooling step, lyophilizing the frozen non-porous granules, particles, or beads with a release of the dissolved gas which allows the formation of porous particles of coffee; and
obtaining the lyophilized coffee in powder form, wherein spherical particles represent at least 25% of the powder.
Hudak teaches a method of preparing a lyophilized coffee [Hudak, col.14, l.10], wherein said coffee is directly lyophilized (freeze-dried under vacuum [Hudak, col.6, l.20-21]) immediately after a cryogenization step (equivalent to lyophilizing directly without a prior cooling step) [Hudak, col.4, l.14-45], where the moisture content of the cryogenized or shock frozen particles of concentrated coffee extract which is in the form of minute ice crystals is sublimed from the particles to yield solid coffee granules with the microporous structure of the invention, and where moisture removal is accomplished completely by sublimation (no liquid water present) to produce the desirable pore structure [Hudak, col.4, l.46-54], (“lyophilization under partial vacuum, resulting in the sublimation of the water contained in the product and the release of the gas trapped therein, causing the creation of a microporous structure in the solid product beads”, as disclosed on page 11, lines 31-34 of the instant Specification). In other words, Hudak teaches cryogenizing the coffee and then immediately sublimation of the water (in ice form) present in the coffee by lyophilization (freeze-drying under vacuum) causing the creation of a microporous structure in the solid coffee beads.
In regards to the limitation of step e) “spherical particles represent at least 25% of the powder”, the examiner notes that given that the claims are directed to a method of preparing a lyophilized coffee, and the process of preparing a lyophilized coffee based on the disclosure in Desjardins-Lavisse combined with the teachings in Hudak is the same to that in the instant claims, it is the examiner's position that the cryogenized under pressure and directly lyophilized coffee particles made by the method of Desjardins-Lavisse in view of Hudak is expected that the method would provide spherical coffee particles, wherein said spherical particles represent at least 25% of the powder.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a step of directly lyophilize a cryogenized coffee product as taught by Hudak, in the method of Desjardins-Lavisse, because Hudak teaches that this would produce coffee granules with a desirable pore structure [Hudak, col.4, l.54], having a unique porosity which provides these granules with the capability of sorbing and retaining roasted and ground coffee aromatics and controllably releasing these aromatic volatiles [Hudak, col.1, l.5-10].
Regarding claim 2, Desjardins-Lavisse teach the gas incorporated (dissolved) into the matrix may be nitrogen [Desjardins-Lavisse, 0004, 0021 and claim 2].
Regarding claim 11, modified Desjardins-Lavisse teaches the methods and concepts discussed above in claim 1 rejection, and as also discussed above in claim 1 rejection, modified Desjardins-Lavisse in view of Spencer teach a method of improving the aroma and/or the flavor of coffee which includes a step of dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules, a density of the gas in the zone being obtained by vaporization of a cryogenic liquid (equivalent to dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid as claimed) [Spencer, col.4, lines 57-59].
Regarding claims 12-13, Desjardins-Lavisse teach the incorporation of gas at a pressure higher than 2 bars (equivalent to dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules obtained by an elevation of the pressure as claimed) [Desjardins-Lavisse, Abstract, 0013 and 0015], and modified Desjardins-Lavisse in view of Spencer teach that a gas or a gas mixture may be introduced into a substrate by evaporation of a cryogenic liquid as explained in claim 11 above, but do not explicitly recite combining different gasification techniques or methods.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the gasification methods as claimed into the invention of Desjardins-Lavisse, since Desjardins-Lavisse already disclose gasification by an increase in pressure and Spencer disclose both gasification by elevation of the pressure (injecting a gas into a closed space) and gasification by evaporation of a cryogenic fluid, and since the claimed combination of methods for dissolving gases in a substrate would have been used during the course of normal experimentation and optimization procedures due to factors such as the type of substrate being gasified, ratios of the various ingredients and/or the desired amount of gas introduced in the intermediate and/or final compositions.
Furthermore, MPEP 2144.06 I. states:
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It would have been obvious to a person having ordinary skill in the art at the time of the invention to dissolve a gas in a substrate by the method of evaporation of cryogenic fluid as taught by Spencer in combination with a method of dissolving a gas in a substrate by an elevation of pressure as taught by Desjardins-Lavisse, since Spencer teaches that both methods of adding gas to a liquid substrate are known alternatives to the gasification method taught by Desjardins-Lavisse. Further, one would have a reasonable expectation of success by combining both gasification methods as Spencer teaches that both methods are known and equivalent methods for dissolving gas in liquids. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) and MPEP 2143 I. A. and 2144.06 I.
Regarding claim 14, Desjardins-Lavisse disclose the gasified and cryogenized particles may be spheres [Desjardins-Lavisse, 0017].
Regarding claim 16, Desjardins-Lavisse teach the resulting beads or particles are compacted particles so that the release of the gas occurs at the moment when the temperature is restored and not in the installation during deep-freezing [Desjardins-Lavisse, 0018].
Regarding claim 19, Desjardins-Lavisse teach the method of the invention may be used for the preparation of foods [Desjardins-Lavisse, 0032-0038] but does not explicitly recites using the lyophilized coffee for the preparation of drinks, food, or cosmetic preparations.
Hudak teaches a step of using the lyophilized porous coffee for the preparation of drinks [Hudak, col.5, l.46-51].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a step of using the lyophilized porous coffee for the preparation of drinks as taught by Hudak, in the method of Desjardins-Lavisse, because Hudak teaches that this would produce coffee beverages with desired flavor effects upon reconstitution with water [Hudak, col.5, l.46-51].
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Desjardins-Lavisse [US 20100055285 A1], in view of Spencer [US 6337098 B1], and Hudak [EP 0037810 B1], as applied to claim 1 above, and further in view of Robinson [US 20150175716 A1] and evidenced by Welsh et al. [WO 2017186876 A1], hereinafter Welsh.
Regarding claim 15, modified Desjardins-Lavisse teach the gasified, cryogenized and lyophilized coffee product discussed in claim 1 above, and further disclose that the resulting particles, granules and/or beads can have a varied size range but do not explicitly recites the particles having a particle size less than 30 microns when measured by optical microscopy.
Robinson teach compositions and methods for atmospheric spray freeze drying [Title]. The Atmospheric Spray Freeze Drying (ASFD) process is a process in which a liquid solution or suspension of a powder forming ingredient is sprayed as mist of fine droplets. This method can produce a spray freeze-dried powder having particles with a desired size range and characteristics [0051]. The method may produce dry porous particles often approximately the same size and shape as the original frozen droplets with median diameter of about 1 micron or less. However, there can be considerable variation based on the nature, type, and size of the nozzle that is used [0105].
Regarding the size being measured by optical microscopy, Robinson disclose using scanning electron microscope photos (SEM images) of the powder to determine physical properties such as shape (spherical) of the powder produced by the invention [0125]. And the evidentiary reference of Welsh disclose that observation of SEM images may be used to measure size [Welsh, p.18, lines 31-35].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Desjardins-Lavisse to incorporate the teachings of Robinson and provide a method that produces a dry powder where particles are as small as 1 micron or less as taught by Spencer, because Spencer teach that this would provide a spray freeze dried powder with a desired size range and characteristics [Robinson, 0051] that does not require additional grinding [Robinson, 0008].
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Desjardins-Lavisse [US 20100055285 A1], in view of Spencer [US 6337098 B1], and Hudak [EP 0037810 B1], as applied to claim 1 above, and further in view of Einstman [GB 2074007 A].
Regarding claim 17, modified Desjardins-Lavisse teach the methods and concepts explained in the rejection of claim 1 above, but does not explicitly teach mixing different types of lyophilized coffees.
Einstman teach dry soluble coffee product having added thereto aromatized particles or granules of a microporous structured soluble coffee product having a small nominal pore radius and one or more fractions of a microporous structured soluble coffee product having a larger nominal pore radius and/or a conventional soluble coffee powder [Einstman, Abstract]. The disclosure teach combining, adding or mixing an aromatized and unaromatized coffee material having different pore diameters, where the coffee material may be a freeze-dried or spray-dried soluble coffee product [Einstman, p.1, lines 48-54].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Desjardins-Lavisse to incorporate the teachings of Einstman and provide a method that combines different types of lyophilized coffee materials as taught by Einstman, because Einstman teach that combining different types of lyophilized coffees would provide a spray freeze dried coffee product having better initial jar aroma quality/intensity than any single aromatized microporous structured soluble coffee and better in-use aroma stability [Einstman, p.1, lines 54-56].
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Desjardins-Lavisse [US 20100055285 A1], in view of Spencer [US 6337098 B1], and Hudak [EP 0037810 B1], as applied to claim 1 above, and further in view of Bisperink et al. [US 20040096562 A1], hereinafter Bisperink.
Regarding claim 18, modified Desjardins-Lavisse teach the methods and concepts explained in the rejection of claim 1 above, but does not explicitly teach mixing the lyophilized coffee with at least one other ingredient, chosen from among milk, chocolate, chicory, flavors, and carrier molecules.
Bisperink teach a powdered soluble foaming ingredient comprising an entrapped gas [Bisperink, 0007]. One aspect of the invention provides a soluble beverage powder, the soluble beverage powder comprising a soluble coffee powder and a soluble creamer ingredient or creamer powder [0017]. The invention also provides a soluble freeze-dried coffee powder mixed with a soluble creamer powder (mixing lyophilized coffee with at least one other ingredient/flavor as claimed), and if desired may be also combined with chicory [0040].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Desjardins-Lavisse to incorporate the teachings of Bisperink and provide a method that combines lyophilized coffee with different flavors as taught by Bisperink, because Bisperink disclose that combining lyophilized coffee with different flavors would provide a variety of flavors and applications in which the freeze dried composition may be used as desired [Bisperink, 0040]. Furthermore, MPEP 2144.06 I. states: "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-2 and 11-19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In pages 6, last paragraph and page 7, Applicant argues that Desjardins-Lavisse and Hudak fail to teach gasification methods such as (i) either by the gas flow generated by the evaporation of a cryogenic fluid (ii) or by the combination of an elevation of the pressure and the gas flow generated by the evaporation of the cryogenic fluid. The rejection has been amended in view of Applicant amendments to claim 1. Claim 1 is now rejected over Desjardins-Lavisse [US 20100055285 A1], in view of Spencer [US 6337098 B1], and Hudak [EP 0037810 B1], where Spencer teaches injecting a gas or a gas mixture into coffee in a closed space and/or into the closed space (equivalent to dissolving a gas by an elevation of the pressure) [Spencer, col.3, lines 17-21], and further teaches that a gas may be introduced into a substrate by vaporization of a cryogenic liquid (equivalent to dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid) [Spencer, col.4, lines 57-59]. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to dissolve an inert gas in the matrix by passing the matrix through a zone dense in gas molecules, a density of the gas in the zone being obtained either by the gas flow generated by the evaporation of a cryogenic fluid as taught by Spencer, or by the combination of an elevation of the pressure and the gas flow generated by the evaporation of the cryogenic fluid, because Desjardins-Lavisse already teaches a matrix gasification step that comprises dissolving an inert gas in the matrix by passing the matrix through a zone dense in gas molecules obtained by an elevation of the pressure [0013, 0015], and Spencer teaches both dissolving a gas by an elevation of the pressure [Spencer, col.3, lines 17-21], and dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid [Spencer, col.4, lines 57-59], and the idea of combining equivalents known for the same purpose flows logically from their having been individually taught in the prior art. (MPEP 2144.06 I.).
In page 8, paragraphs 2-3, Applicant urges that Hudak’s freeze-drying step leads to sublimation of moisture in frozen particles, and not to release of a dissolved gas, and that Hudak's porosity results from sublimation of water from ice crystals in frozen coffee extract and not from the release of the dissolved gas during the lyophilizing step. This argument is not persuasive because as explained above, Desjardins-Lavisse is relied upon for teaching producing a frozen non-porous intermediate product with dissolved gas that is maintained by providing a matrix gasification step, and cryogenizing the gas-rich matrix to obtain frozen granules, particles, or beads. Spencer is relied upon for teaching that a gas or a gas mixture may be introduced into a substrate by vaporization of a cryogenic liquid (dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid), and Hudak is relied upon for the teaching of lyophilizing directly without a prior cooling step. Therefore, by providing frozen non-porous coffee granules, particles, or beads that have been subjected to a gasification step as taught by Desjardins-Lavisse, wherein the gasification step comprise dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid as taught by Spencer, and further lyophilizing directly without a prior cooling step said frozen non-porous coffee granules, particles, or beads, would have caused the release of the dissolved gas in the frozen non-porous coffee granules, allowing the formation of porous particles of coffee, and obtaining the lyophilized coffee in powder form. Particularly since Desjardins-Lavisse already teaches creation of an equilibrium of a food-grade matrix and a pressurized gas (as disclosed on par.0045 and Fig.8, step c, “The arrows represent the gas that is applied to the surface of the product in step b., which remains in equilibrium in step c. and which escapes in step e.”), and that the release of the gas occurs at the moment when the temperature is restored and not in the installation during deep- freezing. And because Hudak teaches that when coffee is directly lyophilized immediately after a cryogenization step, yield solid coffee granules with a microporous structure, where moisture removal is accomplished completely by sublimation to produce the desirable pore structure, which is similarly disclosed by Applicant in page 11, lines 31-34 of the instant Specification (“lyophilization under partial vacuum, resulting in the sublimation of the water contained in the product and the release of the gas trapped therein, causing the creation of a microporous structure in the solid product beads”).
In page 8, paragraphs 4-5, and page 9, paragraph 1, Applicant argues the Examiner’s position in page 6 of the last Office action stating that the claimed method and the method of Desjardins-Lavisse in view of Hudak are allegedly the same, the resulting powder would be expected to include spherical particles representing at least 25% of the powder. The argument is based on the premise that Desjardins-Lavisse teaches pressure-based gasification followed by rapid freezing using a cryogenic fluid, while Hudak teaches sublimation of water from frozen coffee extract to produce microporosity, and neither reference teaches or suggests dissolving an inert gas in the matrix using a gas flow generated by evaporation of a cryogenic fluid, or directly lyophilizing frozen non-porous granules, particles, or beads with release of the dissolved gas to form porous particles of coffee. This argument is not persuasive because as explained above, the reference of Spencer teaches that a gas or a gas mixture may be introduced into a substrate by vaporization of a cryogenic liquid (equivalent to dissolution of a gas in the matrix generated by the evaporation of a cryogenic fluid as claimed) [Spencer, col.4, lines 57-59], and further teaches that dissolution of a gas into a matrix may also be performed by injecting a gas or a gas mixture into coffee in a closed space and/or into the closed space (injecting a gas in a closed space is equivalent to dissolving a gas by an elevation of the pressure as claimed) [Spencer, col.3, lines 17-21], which is also already taught by Desjardins-Lavisse. Lastly, Hudak explicitly teaches a method of preparing a lyophilized coffee by direct lyophilization (freeze-dried under vacuum [Hudak, col.6, l.20-21]) of the coffee matrix immediately after a cryogenization step [Hudak, col.4, l.14-45], where the moisture content of the cryogenized frozen particles of concentrated coffee extract which is in the form of minute ice crystals is sublimed from the particles to yield solid coffee granules with a microporous structure, where moisture removal is accomplished completely by sublimation (no liquid water present) to produce the desirable pore structure [Hudak, col.4, l.46-54], which is similarly disclosed by Applicant on page 11, lines 31-34 of the instant Specification (“lyophilization under partial vacuum, resulting in the sublimation of the water contained in the product and the release of the gas trapped therein, causing the creation of a microporous structure in the solid product beads”). Therefore, it would have been obvious to an ordinarily skilled artisan that a method in which all (100%) cryogenized frozen particles of concentrated coffee extract having dissolved gas in equilibrium state are subjected to direct lyophilization immediately after cryogenization would yield lyophilized coffee particles where all (100%) lyophilized coffee spherical particles represent at least 25% of the coffee powder. Moreover, it would have been obvious to one of ordinary skill in the art to select the amount or percent of spherical particles of the powder based on the desired amount of coffee foam to be formed in the final reconstituted coffee, as some consumers prefer more foam than others, and/or the type of coffee beverage being prepared (i.e., cappuccino coffee beverages requires more foam than other coffee beverages).
In page 9, paragraphs 2-5, and page 10, paragraph 1, Applicant argues that while Spencer teaches a method of improving the aroma and/or the flavor of coffee which includes a step of injecting a gas or a gas mixture into coffee in a closed space, and that a gas or a gas mixture may be introduced into a substrate by vaporization of a cryogenic liquid, Spencer fails to teach all the elements of claim 1 of a method of preparing lyophilized coffee in which an inert gas is dissolved in a liquid, semi-liquid, or pasty coffee matrix by passing the matrix through a zone dense in gas molecules, followed by cryogenizing the gas-rich matrix at a pressure allowing the dissolved gas to be maintained to obtain frozen non-porous granules, particles, or beads, and then directly lyophilizing the frozen non-porous granules, particles, or beads with release of the dissolved gas to form porous particles of coffee.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In page 10, paragraphs 2-3, Applicant argues that the cited combination of references does not provide a reasoned basis for modifying Desjardins-Lavisse in the manner recited in claim 1.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). That is, one of ordinary skill in the art interested in making coffee powder comprising porous coffee spherical particles would immediately envisage the modification of Desjardins-Lavisse method of preparing a coffee product comprising a matrix gasification step, and cryogenizing the gas-rich matrix to obtain frozen granules, particles, or beads, with the teaching of Spencer of a gasification method by the gas flow generated by the evaporation of a cryogenic fluid, and the teachings of Hudak of directly lyophilization after a cryogenization step of the coffee material, with reasonable expectation of success, as the references disclose these methods are suitable for coffee products and individually teach all the claimed process steps.
With regards to claims 15 and 17-18, Applicant arguments are that as newly amended claim 1 is allowable, claims 15 and 17-18 are also allowable because they depend from claim 1. The Examiner notes that the rejection of claim 1 has been modified above in view of Applicant’s amendment to claim 1, and for the reasons given above the rejections for dependent claims 15 and 17-18 are maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Laudano [FR2524267A1].
Laudano teaches a method of preparing a lyophilized coffee, comprising cryogenizing a coffee matrix with a cryogenic fluid, then lyophilizing the cryogenized coffee matrix to obtain the lyophilized coffee particles [Laudano, Title, Abstract, p.3, last paragraph].
Lee [KR20190071382A].
Lee teaches a method of preparing a lyophilized food product [Lee, Abstract], where the food product includes plant derived material such as fruits or vegetables [Lee, 0009], the method comprising cryogenizing a food matrix with a cryogenic fluid, then lyophilizing the cryogenized food matrix to obtain the lyophilized food particles [Lee, 0016] with a large number of micropores [Lee, 0012, 0041].
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 LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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