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 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 1-2, 4-6, 9-12 and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Baskar et al. (US 2009/0297671 A1) in view of Loehn et al. (US 2009/0304878 A1) and Bauman et al. (US 2006/0013925 A1).
Regarding claim 1, Baskar et al. teaches a method for making a fruit or vegetable product (abstract) comprising infusing a whole or sliced fruit or vegetable with infusible molecules such as fructooligosaccharides (paragraphs 12, 16 and 24-25), and puffing the whole or sliced fruit or vegetable by holding under vacuum at an elevated temperature such as 230oF (110oC) depending on the type of food, while the whole or sliced fruit or vegetable is at least partially submerged or covered with an oil (paragraph 31).
Baskar et al. does not teach holding the vacuum at a gauge pressure of about 300-600 mmHg.
Loehn et al. teaches a method of vacuum frying fruits and vegetables (abstract; claim 1-2), where the vacuum conditions (pressures) affect the amount of fatty and oily frying substance that is taken up by the product, and therefore the texture, aroma, and flavor (paragraph 8). The reference also teaches some vegetables “whose texture is less frying temperature dependent in the first stage” can be subjected to frying at a temperature of 90-190oC under a reduced pressure of 25-700 mbar i.e., about 17.6-525 mmHg (paragraph 10; claim 2). Therefore, the reference suggests to one of ordinary skill in the art that pressure and temperature of vacuum frying are result effective variables that achieve recognized results of flavor, texture, and aroma changes in the product.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to hold the vacuum at the claimed temperature and pressure values since the prior art recognizes adjusting such values for vacuum frying of vegetables affects sensory characteristics, since Baskar et al., while disclosing a preference for 20-40 Torr, does not exclude the use of other vacuum pressures (see whole document), since there is no evidence of criticality or unexpected results associated with the claimed ranges, 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 vegetable or fruit, and desired flavor, texture/mouthfeel, aroma, and nutritional profile.
Baskar et al. does not teach at least partially pre-drying the whole or sliced fruit or vegetable, and drying the whole or sliced fruit or vegetable under vacuum to a moisture content of about 0.5% to about 3% to form the product.
Bauman et al. teaches a method for preparing an expanded, vacuum puffed, dried fruit product (abstract) comprising infusing the fruit with a solution at step 30 and partially air drying the infused fruit to a moisture content of 35-50% at step 70 to form the infused fruit (figure 1; paragraph 15). The infused fruit is then expanded in a vacuum dryer at step 120, followed by vacuum drying to a desired water activity level (figure 2; paragraph 16).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to pre-dry the whole or sliced fruit or vegetable and dry the whole or sliced fruit or vegetable under vacuum to a moisture content of about 0.5 to about 3% since the reference already teaches a desired final moisture content of less than 2% (paragraph 13), and further suggests removal of excess infusion solution before vacuum frying (paragraph 30), in order to control water activity which is known to facilitate preservation, since the prior art has acknowledged vacuum infusion and puffing steps can both be followed by drying to obtain a product having desired characteristics, and since there is no evidence of criticality or unexpected results associated with the claimed features, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to the factors stated above.
Regarding claim 2, Baskar et al. teaches the fruit can be sliced prior to infusion (paragraph 21).
Regarding claim 4, Baskar et al. teaches the infusible molecule can be an oligosaccharide (paragraph 12).
Regarding claim 5, Baskar et al. teaches the whole or sliced fruit or vegetable is one type of fruit or vegetable (paragraph 16), and the infusible molecule can be from another type of fruit or vegetable, such as corn or wheat-based dextrins (paragraph 12).
Regarding claim 6, Baskar et al. does not teach pre-drying the whole or sliced fruit or vegetable at a temperature of about 20-140oC.
Bauman et al. further teaches infused fruit can be partially dried at 76oC prior to puffing (paragraph 18).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to pre-dry the fruit at the claimed temperature for the same reasons stated for claim 1, since there is no evidence indicating criticality or unexpected results associated with the claimed values, and since the values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, and drying rate.
Regarding claim 9, Baskar et al. teaches the puffing occurs in a vacuum fryer at a temperature of about 230oF, or about 110oC (paragraph 31).
Regarding claim 10, Baskar et al. teaches the claimed temperature as stated for claim 9.
Regarding claim 11, the limitation “under vacuum at about 300 mmHg to about 760 mmHg is interpreted in light of the specification to mean the amount of vacuum pulled from atmospheric (page 16-20), or gauge pressure. That is, the limitation is interpreted to mean that a vacuum of 300-760 mmHg (gauge) is pulled from the atmosphere of the vacuum fryer such that the absolute pressure in the fryer is about 0-460 mmHg (760 mmHg-atmospheric – 300 mmHggauge- and 760 mmHg-atmospheric – 760 mmHggauge-).
Baskar et al. teaches vacuum frying occurs at a pressure of 10-40 torrabsolute (paragraph 31), corresponding to a degree of vacuum pulled at a value between 720-750 mmHg. Additionally, the reference teaches the pressure in the vacuum chamber can be varied based on the type of food, where the pressure can range from about 200-600 torr, or mmHg (paragraph 29).
Regarding claim 12, Baskar et al. does not teach a cranberry.
Bauman et al. teaches the fruit to be infused and puffed can be cranberries (paragraph 15).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to use a cranberry since the reference already teaches berry fruits and does not limit the particular type of fruit used (paragraph 16), since the prior art has acknowledged cranberries can be infused and puffed, and therefore to combine prior art elements according to known methods to yield predictable results, and since there is no evidence of record of criticality or unexpected results, and therefore as a matter of manufacturing preference.
Regarding claim 58, Baskar et al. does not teach the vegetable product as a porosity of about 0.4-0.8%, a bulk density of about 0.1-0.4g/cc, and an apparent density of about 0.2-0.7 g/cc.
Baskar et al. teaches that the infused fruit or vegetable pieces are vacuum fried, where the combination applied to claim 1 appears to teach the same process as the claimed process. Since vacuum frying is generally understood to cause pore formation within the product, and since Baskar et al. wants a “crispy” and “chip-like” product (paragraphs 6 and 31), one of ordinary skill in the art would have reasonably expected a similar degree of porosity within the product of the prior art combination.
Bauman et al. further teaches a dried infused fruit that is vacuum puffed and expanded, which has a bulk density of from 0.08 to 0.3 in order to produce a product that is light, crisp, and has a buoyant density that allows it to float in the liquid portion of a bowl of ready-to-eat cereal (paragraphs 9 and 11).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. such that the product has the claimed porosity, bulk density, and apparent density values since the prior art acknowledges the process of vacuum frying causes expansion and formation of pores within a product, since the bulk density is known and desirable for vacuum puffed and dried infused fruit, where the claimed parameter values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired texture/mouthfeel and characteristics when combined with another food e.g., buoyancy in cereal milk.
Claims 3, 27 and 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Baskar et al. in view of Loehn et al. and Bauman et al. as applied to claims 1-2, 4-6 and 9-12 above, and further in view of Ghaedian et al. (US 6,440,483 B1).
Regarding claim 3, Baskar et al. does not teach extracting juice from the whole or sliced fruit or vegetable prior to infusing.
Ghaedian et al. teaches a method for producing a fruit product (abstract), where the fruit juice is extracted prior to infusion (column 4 lines 1-3 and 17-18).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to extract the juice prior to infusing in order to modify the contents of the fruit as desired, i.e. replacing the existing juice with a desired juice of the infusion solution, to adjust the moisture content, flavor, aroma, and/or texture as desired, to use the juice in a different process, thereby minimizing waste, and to combine prior art elements according to known methods to yield predictable results in making fruit-based snack foods.
Regarding claim 27, the combination applied to claim 1 teaches a method for producing a fruit or vegetable product as stated for said claim. The same combination is applied to claim 27 and would have been obvious for the same reasons. The difference between claims 1 and 27 is that the latter further recites extracting juice from the whole or sliced fruit or vegetable prior to infusing, and the infusion solution comprising a fractionated juice.
Regarding the extracting limitation, the combination applied to claim 3 teaches extracting juice prior to infusing. The same combination is applied to claim 27 and would have been obvious for the same reasons.
Regarding the fractionated juice, Baskar et al. teaches the infusion solution includes corn or wheat-based soluble fibers (paragraph 12), and can further include corn or rice syrup (paragraph 23). Examiner notes the limitation “fractionated juice” is note defined by the specification, and is therefore given its broadest reasonable interpretation in view of the specification to mean any component sourced from a fruit or vegetable and in a liquid state. The infusion solution of Baskar et al. is therefore construed to read on the claimed limitation.
Regarding claim 55, the combination applied to claims 1 and 27 teaches vacuum frying at the temperatures and reduced pressures as stated for said claims. The same combination is applied to claim 55, and the claimed values would have been obvious for the same reasons.
Regarding claim 56, Baskar et al. does not teach pre-drying the whole or sliced fruit or vegetable at a temperature of about 20-140oC.
However, the combination applied to claim 6 above teaches the claimed pre-drying temperature. The same combination is applied to claim 56 and would have been obvious for the same reasons.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Baskar et al. in view of Loehn et al. and Bauman et al. as applied to claim 1 above, and further in view of Lena (US 2006/0083828 A1).
Regarding claim 20, Baskar et al. does not specify the type of oil used.
Lena teaches a method of dehydrating edible vegetable foods, including crisping and puffing (abstract), comprising frying the dehydrated food in an oil blend having 80/20 olive/canola oil (paragraph 20).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to use a plant oil such as those taught by Lena since the prior art acknowledges said oils can be used for frying plant foods, where the claimed types of oil are known and commonly used for frying foods in general, and therefore to combine prior art elements according to known methods to yield predictable results, and as a matter of manufacturing preference or desired flavor, texture/mouthfeel, aroma or nutritional content.
Claims 54 and 57 are rejected under 35 U.S.C. 103 as being unpatentable over Baskar et al. in view of Loehn et al. and Bauman et al. as applied to claims 1 and 27 above, and further in view of Sijbring (US 3,687,679).
Regarding claims 54 and 57, the combination applied to claims 1 and 27 does not teach lifting a basket containing the puffed whole or sliced fruit or vegetable out of the oil.
Sijbring teaches a method for vacuum frying foods in oil (abstract), where the product can be immersed in an oil bath within a vacuum tank using a basket, where the basket with the fried product is lifted from the oil bath after completion of frying in order to allow excess oil to drip off for some time (column 4 lines 62-68).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Baskar et al. to use a basket, and to remove the basket from oil after completion of the vacuum frying since the structure and process are acknowledged by the prior art, since Baskar et al. already suggests draining the fruit or vegetable after vacuum frying (paragraph 31), and therefore to facilitate handling of the food within the vacuum fryer and to allow excess oil to be removed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6, 9-12, 20 and 27 (particularly claim 1) are rejected on the ground of nonstatutory double patenting as being unpatentable over claim claims 1-52 (particularly claims 1 and 12-13) of U.S. Patent No. 10,485,254 B2 in view of Baskar et al. and Bauman et al.
The ‘254 patent recites a method for producing a fruit or vegetable product consisting essentially of infusing a whole or sliced fruit or vegetable with an infusible molecule, pre-drying the whole or sliced fruit or vegetable, and puffing the fruit or vegetable under vacuum at a temperature above 70oC (claim 1). The fruit or vegetable is vacuum fried at a pressure of about 0.1 mmHg to about 600 mmHg at a temperature of 70-100oC (claim 12). The fruit or vegetable product has a moisture content of about 1-7% (claim 13).
The ’254 patent does not teach the puffing is performed while the whole or sliced fruit or vegetable is at least partially submerged or covered with an oil and drying under vacuum to a moisture content of about 0.5% to about 3%.
Baskar et al. teaches a method for making a fruit or vegetable product having a moisture content of less than 2% by weight (abstract) comprising infusing a whole or sliced fruit or vegetable with infusible molecules such as fructooligosaccharides (paragraphs 12, 16 and 24-25), and puffing the whole or sliced fruit or vegetable under vacuum at a temperature above 70oC while the whole or sliced fruit or vegetable is at least partially submerged or covered with an oil (paragraph 31).
Bauman et al. teaches a method for preparing an expanded, vacuum puffed, dried fruit product (abstract) comprising infusing the fruit with a solution at step 30 and partially air drying the infused fruit to a moisture content of 35-50% at step 70 to form the infused fruit (figure 1; paragraph 15). The infused fruit is then expanded in a vacuum dryer at step 120, followed by vacuum drying to a desired water activity level (figure 2; paragraph 16).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the ‘254 patent to vacuum fry the fruit or vegetable product (thereby at least partially submerging or covering with oil) during puffing and to dry the whole or sliced fruit or vegetable under vacuum to a moisture content of about 0.5 to about 3% since both vacuum frying and the process of the ‘254 patent have been shown to be used for puffing fruit or vegetable products, and therefore as a substitution of art recognized equivalents suitable for the same purpose, see MPEP 2144.06 II., in order to obtain better control of processing parameters such as moisture content and water activity, since the prior art has acknowledged vacuum infusion and puffing steps can both be followed by drying to obtain a product having desired characteristics, and since there is no evidence of criticality or unexpected results associated with the claimed features, and therefore to combine prior art elements according to known methods to yield predictable results and/or use of a known technique to improve similar methods in the same way, see MPEP 2132 I.(A) and (C).
Response to Arguments
Applicant’s arguments filed 6/18/2025 been fully considered, but the amendment to claims 1 and 27 necessitated new grounds of rejection. Loehn et al. is relied on to teach that vacuum frying temperatures and pressure can be maintained in the claimed ranges.
Applicant argues one of ordinary skill would not modify Baskar’s low pressures applied drying vacuum frying to be within the claimed range since the modification would slow the evaporation of water from the product during the frying, increasing risk of browning and impacting texture and shelf-life. Applicant argues one would not increase the oil temperature to accommodate for increased boiling point due to browning, where the modification would render Baskar’s method less effective for its intended purposes of increasing shelf-life and avoiding browning.
This is not persuasive since the prior art recognizes that temperature and vacuum pressure used during vacuum frying of vegetables affects the flavor, aroma, and texture of the final product based on the amount of oil absorbed during frying as taught by Loehn et al. One of ordinary skill in the art would have been motivated to modify Baskar’s vacuum pressure and oil temperature based on desirable characteristics associated with the factors stated above.
Additionally, Baskar does not particularly limit the vacuum range, teaching that the values can be varied based on the type of food being treated (paragraph 31). The reference teaches that the disclosed temperature ranges are “preferred”, and there is no evidence of record to indicate that that adjusting the vacuum pressure and temperature to the claimed ranges would not result in an expanded product. See also MPEP 2123 II.
Applicant’s argument that Bauman does not teach the claimed vacuum pressures has been considered, but the prior art combination relied upon in the instant Office Action relies on Loehn et al. to teach the claimed values as stated above.
Applicant argues that Ghaedian does not remedy the deficiencies of the combination of Baskar and Bauman, and does not disclose the features of amended claim 1.
The argument is not persuasive for the same reasons stated above, where the combination of Baskar, Loehn, and Bauman teach the feature of claim 1. Ghaedian is relied on only to teach that juice can be extracted from a whole or sliced fruit or vegetable prior to infusing, the modification being obvious for the reasons stated in the combination above.
Applicant argues that Lena and Sijbring do not remedy the deficiencies of the combination applied to claim 1, and do not disclose the features of amended claim 1.
This is not persuasive for the same reasons stated above, where the combination of Baskar, Loehn, and Bauman teach the feature of claim 1. Lena is relied on only to teach that foods can be puffed in olive and canola oil, and Sijbring teaches advantages to using baskets for frying, modification being obvious for the reasons stated in the respective combinations above.
Applicant’s arguments against the double patenting rejection and the dependent claims are 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.
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/B.K/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792