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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 29, 2025 has been entered.
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 1, 3 and 5-22 are currently pending and rejected.
Claim Objections
Claim 13 is objected to because of the following informalities:
Claim 13 recites the limitation, “the dough” on line 13. For matters of form, this limitation should be amended to recite, “the noodle dough.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3, 5-8, 11-17, 19, 20 and 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation, “the raw Chinese noodle” on the 4th to last line of the claim. This limitation lacks proper antecedent basis. This rejection can be overcome by amending the term “noodle” to recite, “noodles.”
Claims 6, 15 and 19 are rejected based on their dependence to a rejected claim.
Claim 3, line 6; claim 5, line 7; claim 11, line 6 and claim 13, line 7 recite the limitation, “the resultant mixture” which lacks proper antecedent basis. It is not clear as to what “the resultant mixture” is referring to. This rejection can be overcome by amending the claim to recite that the adding of the alcohol and kansui to the powder of the calcium monohydrogen phosphate dihydrate and main raw material powder forms a resulting mixture.
Claim 5 recites the limitation, “adding calcium monohydrogen phosphate dihydrate to a dough with which the raw Chinese noodles are prepared” (lines 11-12). Since the claim already recites adding calcium monohydrogen phosphate dihydrate to a main raw material powder, which is then used to prepare noodle dough, the limitations on lines 11-12 are not clear as to whether this is a different dough from noodle dough or is intending to be the same dough. In view of this, the subsequent recitations of “the raw Chinese noodles” is not clear whether it is referring to the noodles made using “noodle dough” or “a dough”
Claim 5 also recites on lines 13-15, “the dough with which the raw Chinese noodles are prepared comprises a main raw material powder, kansui comprising at least one compound selected from the group consisting of sodium carbonate and potassium carbonate; and alcohol.” Claim 13, lines 13-15 recites the same limitation. This limitation is indefinite as to whether it is referring to the same kansui, alcohol and main raw material powder as recited on lines 3-6 or some other main raw material powder kansui and alcohol.
In view of this, the limitations of “the main raw material powder” on line 16 and claim 6-8 lack proper antecedent basis.
Claims 7, 8, 12, 14, 16, 17, 20 and 22 are rejected based on their dependence to a rejected claim.
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 1, 3, 5-14 and 19-22 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou (US 20140093631) in view of Asao (JP 2006141369 already of record) and in further view Igoe (“Dictionary of Food Ingredients” already of record), Lallemand (“Baking Update”), Ikemoto (JP2015086171) and Hahn (US 5945144) and in further view of Audiopedia and Yajima (US 6180148).
The definition of “pasta” and “Whole Foods Market” have been relied on as evidence.
Regarding claim 1, Zhou teaches a raw noodle (see paragraph 5 – “raw”), comprising a main raw material powder comprising at least wheat flour (see at least, paragraph 4 and 5, “whole wheat”) that can comprise calcium monohydrogen phosphate hydrate (see paragraph 5 and 34, “DCP is the abbreviation for dicalcium phosphate” which is seen to be synonymous with calcium monohydrogen phosphate dihydrate; see page 13, claim 1, 2 and 6 which teach pasta comprising DCP). Zhou further teaches that the raw noodles are enclosed in a bag (see paragraph 99).
Regarding the limitation of “stored at an ordinary temperature,” since the claim is directed to the product and not the method of using or the method of making the product, this is seen to be an intended use that Zhou’s bag would have been capable of performing, especially since the storing at ordinary temperature is for any period of time. Applicant’s remarks filed September 4, 2024 present evidence that “ordinary temperature” refers to a range of 15-25°C based common meaning of the term.
Claim 1 differs from Zhou in specifically teaching that the noodle is raw Chinese noodle and comprises kansui comprising at least one of sodium carbonate and potassium carbonate; and alcohol.
Asao teaches that a known form of noodle is a raw Chinese noodle, comprising flour, kansui – which includes sodium carbonate, potassium carbonate - and any other additives (see paragraph 16, 28, 32). Asao does not teach any heating of the noodle (see paragraph 32 and 33 where the noodle is cut and packaged and stored in a refrigerator). Asao further teaches including alcohol (paragraph 32). Asao also teaches packaging the raw Chinese noodles in a bag (paragraph 33).
Zhou teaches that the inclusion of calcium monohydrogen phosphate has been desirable to improve properties of the noodles such as texture and firmness (see the abstract). Further regarding Zhou’s generic disclosure of pasta, it is noted that the plain meaning of the term “pasta” is a food made of flour water and sometimes egg (see the enclosed definition). In this regard Zhou teaches a food made from flour and water (see paragraph 52, last sentence). Furthermore, “Whole Foods Market” evidences that pasta can also refer to Asian style noodles (see page 1, “Pasta in Asia”).
To therefore modify Zhou and include calcium monohydrogen phosphate hydrate to other known forms of raw, unheated pasta such as raw Chinese noodles comprising kansui comprising sodium carbonate, potassium carbonate; and alcohol would have been obvious to one having ordinary skill in the art, for the purpose of also controlling the texture and firmness of raw Chinese noodles.
Regarding the limitation of, “flour comprising oxidized starch is sprinkled onto the noodles and attached to the surface of the noodles,” while the claim differs from Zhou in this regard, Asao also teaches that dusting of an oxidized starch on the noodles (see paragraph 33) can be useful for preventing the noodles from sticking together during storage (see paragraph 29).
To therefore dust the raw Chinese noodles as taught by the combination with oxidized starch would have been obvious to one having ordinary skill in the art, for the purpose of preventing the noodles from sticking during storage.
Claim 1 further recites, “the calcium monohydrogen phosphate dihydrate is contained in the noodles in a range from 1.0 to 2.5% by weight based on weight of the main raw material powder in powder form used to prepare the raw Chinese noodle.”
It is initially noted that this limitation does not limit how much of the main raw material powder is present and therefore, allows for the calcium monohydrogen phosphate dihydrate to be present at any amount because the main raw material powder is present in any amount. In this regard, Zhou teaches that the dicalcium phosphate can be used in amounts such as 0.4% by weight of the food as well as 2% by weight of the flour (i.e. the main raw material powder in powder form) (see paragraph 44). Furthermore, Zhou’s teachings of dicalcium phosphate can be construed as encompassing calcium monohydrogen phosphate dihydrate. It is also noted that it would appear a teaching calcium monohydrogen phosphate hydrate equates to calcium monohydrogen phosphate dihydrate because Applicant’s specification at paragraph 23, 25 and 29, as filed recite, “calcium monohydrogen phosphate” while also referring to “dihydrate” on page 11, Table 1.
If it could have been construed that Zhou’s teachings were not clear regarding the use of calcium monohydrogen phosphate dihydrate and calcium monohydrogen phosphate dihydrate being used at 1-2.5% by weight based on weight of the main raw material powder, then it is noted that Igoe teaches that dicalcium phosphate dihydrate is known to be used as a dough conditioner and bleaching agent. Lallemand further evidences that dough conditioners can provide stability to dough, extend shelf life and improve dough properties (see page 1, left column first paragraph; page 2, “ingredient terminology” “dough conditions”), which is what Zhou is also suggesting (see the abstract). Ikemoto (JP2015086171) further teaches that ingredients such as calcium monohydrogen phosphate in the dihydrate form (see paragraph 34, “calcium monohydrogen phosphate”; paragraph 35, “preferably a dihydrate”) which are known to suppress discoloration (see paragraph 32: “By including these compounds, the discoloration suppression effect tends to be further improved”) and can be used as an additive in various foods including noodles (see paragraph 68, ramen, yakisoba). Hahn further evidences that it has been desirable to include calcium monohydrogen phosphate dihydrate (see column 3, lines 21 and 24-25 where the anhydrous form is a preferred form, therefore suggesting the dihydrate as another available form - see MPEP 2123) as part of noodles (see column 2, lines 30-40) and used at a concentration of from 0.2-2% by weight of wheat flour as the main raw material in powdered form (see column 2, lines 53-57). Hahn is also teaching calcium monohydrogen phosphate dihydrate for calcium enrichment (see column 2, lines 30-31). As taught by Igoe, Dicalcium Phosphate Dihydrate is also a known source of calcium. Additionally, Audiopedia also teaches and suggests that dicalcium phosphate is also known as calcium monohydrogen phosphate that is usually found as the dihydrate and is known to be used as a dietary supplement in flour and noodle products. Therefore, while Hahn teaches that the anhydrous forms might be preferred, in view of Igoe and Audiopedia, it would have been obvious to one having ordinary skill in the art that Dicalcium Phosphate Dihydrate (i.e. calcium monohydrogen phosphate dihydrate) has equally been recognized in the art to provide calcium fortification.
To therefore modify Zhou and to use dicalcium phosphate dihydrate in amounts such as 2% by weight of the flour, would have been obvious to one having ordinary skill in the art, for the purpose of providing added source of calcium to the noodles and where the prior art further evidences that dicalcium phosphate dihydrate can have additional functionality as a dough conditioner, a bleaching agent, discoloration suppressant and source of calcium, as taught by Igoe, Lallemand, Ikemoto, Hahn and Audiopedia.
Regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at ordinary temperature is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate,” with respect to claim 1, this is an intended use that the prior art would have been capable of performing. Since the prior art is teaching a similar composition, it would have been reasonable to expect that the prior art would also have achieved similar discoloration suppression after storing for a month at ordinary temperature, especially since the prior art also teaches that calcium monohydrogen phosphate dihydrate has been recognized to suppress discoloration and can also serve as a bleaching agent (see Igoe and Ikemoto).
Regarding claim 3, the combination as applied above to claim 1 teaches that a phosphate salt, such as calcium monohydrogen phosphate dihydrate has been combined with water and flour to form a dough and then carry out noodle making (see Zhou paragraph 94-99; page 13, claim 17). By teaching extruding into strands, Zhou is teaching “carrying out noodle making.”
Claim 3 differs from Zhou in specifically reciting, adding kneading water containing alcohol and kansui dissolved therein to a powder obtained by adding calcium monohydrogen phosphate dihydrate to a main raw material powder in powder form and subjecting the calcium monohydrogen phosphate dihydrate and the main raw material powder to a powder mixing.
Asao teaches dissolved kansui in kneading water and which water also includes alcohol (see paragraph 32) and where a main raw material powder was combined with calcium additives and mixed together (see paragraph 32) and where the two mixtures were subsequently kneaded in a mixture to form a noodle dough and then noodle making was carried out (see paragraph 32). Asao also teaches sprinkling flour comprising oxidized starch onto the noodles and therefore attaching the oxidized starch to the surface of the noodles for preventing the noodles from sticking together (paragraph 29). In view of Zhou, Igoe, Ikemoto, Hahn and Audiopedia, the combination further suggests including calcium monohydrogen phosphate dihydrate to the dough, as discussed above with respect to claim 1.
Since Zhou teaches that the texture and firmness improving agent can be included an any form of pasta, it would have been obvious to one having ordinary skill in the art to have included calcium monohydrogen phosphate dihydrate in other known forms of noodle dough, such as the Chinese noodle dough as taught by Asao for the similar purpose of improving the texture and firmness of the raw Chinese dough as well as being a source of calcium and a discoloration suppressant, as further suggested by Zhou, Igoe, Lallemand, Ikemoto, Hahn and Audiopedia. In view of Asao, it would have been obvious to one having ordinary skill in the art to have modified Zhou and to have included alcohol and kansui to the kneading water and to combine this solution with a combination of a raw material in powder form together with additional powdered calcium additives, based on known expedients for making another type of known noodle such as a raw Chinese noodle, and to then sprinkle the formed noodles with oxidized starch, for the purpose of providing improved texture and firmness to raw Chinese noodles and to prevent sticking of the packaged raw Chinese noodles.
Regarding the raw material comprising at least one of wheat flour and starches, it is noted that Zhou and Asao teach that the main raw material powder can comprise wheat flour, as already discussed above with respect to claim 1.
Regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at ordinary temperature is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate,” the claim recites that “after” storing for a month at ordinary temperature, discoloration of the raw Chinese noodles comprising calcium monohydrogen phosphate dihydrate is suppressed compared to raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate. This limitation is seen to be an intended result of the claimed process. (see MPEP 2111.04(I)). The claim does not positively recite storing for a month, but rather, recites that “after” storing for a month at ordinary temperature, discoloration of the raw Chinese noodles comprising calcium monohydrogen phosphate dihydrate is suppressed compared to raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate. Even further, Zhou teaches that the noodles can be fresh or shelf stable (see paragraph 5) thus suggesting storage for extended periods of time.
Nonetheless, it is further noted that Yajima (US 6180148) teaches that it has been conventional to include for example 2-3% ethanol in the fresh Chinese noodles for increasing storage stability at ordinary temperatures such as 15°C to 3-4 weeks (i.e. one month) and to also include additional antibacterial ingredients and place in a package containing an oxygen scavenger or a sustained release alcohol preparation for extending the storage period of the fresh Chinese noodles to one month or more (see column 14, lines 10-30). In view of this, it would have been obvious to one having ordinary skill in the art to have modified the raw Chinese noodles at taught by the prior art combination and to have stored the Chinese noodles at ordinary temperatures such as 15°C while also extending the storage stability thereof.
In view of the prior art teaching a similar raw Chinese noodle composition and since the prior art also teaches using calcium monohydrogen phosphate dihydrate has been known to also suppress discoloration, it would have been obvious to one having ordinary skill in the art that storage of the prior art Chinese noodles would also have suppressed discoloration.
Regarding the limitation of, “calcium monohydrogen phosphate dihydrate” and the concentration of the calcium monohydrogen phosphate dihydrate being added in the noodles in a range from 1.0 to 2.5% by weight based on weight of the main raw material powder, this limitation is rejected for the same reasons as discussed above with respect to claim 1.
Regarding claim 5, the combination as applied to claims 1 and 3 teach adding calcium monohydrogen phosphate dihydrate to a dough that comprises wheat flour as a main raw material powder as a discoloration suppressant, dough condition and source of calcium, together with sodium and potassium carbonate and alcohol and where the noodles are sprinkled with oxidized starch for preventing sticking while packaged. The combination further teaches enclosing the noodles in a bag and storing for some period of time at an ordinary temperature, as discussed above with respect to claim 1; and where the calcium monohydrogen phosphate is added to the noodles in a range from 1.0 to 2.5% by weight based on weight of the main raw material powder as discussed above with respect to claim 1 and in view of Zhou and Hahn. The combination further teaches that calcium monohydrogen phosphate dihydrate is a known bleaching agent (see Igoe) and can be used for suppressing discoloration (see Ikemoto) and as a nutritional additive (Hahn and Audiopedia) and therefore, the prior art combination is also seen to suppress some degree of discoloration of raw Chinese noodles. The combination as applied to claim 3 is also incorporated herein to also teach and suggest storing the raw Chinese noodles that are enclosed in the bag and further is suggesting that the raw Chinese noodles stored in the bag would also have suppressed discoloration after storing for one month at ordinary temperature compared to raw Chinese noodles that do not include calcium monohydrogen phosphate dihydrate.
Regarding claims 6-8, Zhou teaches and suggests using 2% calcium monohydrogen phosphate as discussed above with respect to claim 1 and in view of Hahn, Igoe, Lallemand and Audiopedia the prior art further suggests using calcium monohydrogen phosphate dihydrate amounts such as 0.2-2% by weight of wheat flour (see Hahn column 3, lines 53-57).
Regarding claim 9, the claim repeats the limitations presented above with respect to claim 1 and is therefore rejected for the same reasons as discussed with respect to claim 1.
Claim 9 further recites that the noodles are chilled raw Chinese noodles within the bag. The product thus suggested by the claim is a packaged, chilled raw Chinese noodle.
In this regard, Asao suggests storage in a refrigerator (see paragraph 33) and therefore teaches a chilled raw Chinese noodle enclosed in a bag. To modify the combination and to chill the raw Chinese noodles would have been obvious to one having ordinary skill in the art for extending storage life, for example, based on using colder temperatures for storage.
Regarding the concentration of calcium monohydrogen phosphate dihydrate being in a range from 0.15 to 0.5% by weight based on weight of the main raw material powder, this limitation is similarly rejected for the reasons discussed above with respect to claim 1, especially since the claim does not provide specificity as to how much main raw material powder is present. As such the claim recites a percent of 0.15 to 0.5% calcium monohydrogen phosphate dihydrate based on an unknown amount of main raw material powder and therefore has been construed as any amount of calcium monohydrogen phosphate dihydrate.
Nonetheless, the prior art suggests amounts such as 0.4% as taught by Zhou at paragraph 44 and amounts such as 0.5% as taught by Hahn on column 4, lines 55-57. Igoe, Lallemand and Audiopedia have also been relied on as already discussed above. To thus use similar amounts of calcium monohydrogen phosphate dihydrate would have been obvious to one having ordinary skill in the art, for the purpose of providing the desired firmness and texture to the raw Chinese noodles and where the prior art teaches that calcium monohydrogen phosphate dihydrate can also serve as a bleaching agent and discoloration suppressant, as a dough conditioner and as a source of calcium.
Further regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at no more than 10°C is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate, this is an intended use that the prior art would have been capable of because the prior art is teaching and suggesting a similar raw Chinese noodle with an amount of calcium monohydrogen phosphate dihydrate within the claimed range.
Regarding claim 11, the combination as applied to claim 3 has been incorporated herein to teach the method for producing raw Chinese noodles. Regarding the noodles being chilled raw Chinese noodles, in view of Asao (paragraph 33) and Yajima (US 6180148), the combination suggests that chilling the noodles and storage at 10°C (see Yajima column 14, lines 10-20). To modify the combination and to chill the raw Chinese noodles would have been obvious to one having ordinary skill in the art for extending storage life, for example, based on using colder temperatures for storage.
Regarding the calcium monohydrogen phosphate dihydrate being added in the noodles from 0.15 to 0.5% by weight based on weight of the main raw material powder, the combination as applied to claim 9 has been incorporated herein to teach these amounts.
Further regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at no more than 10°C is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate, this is an intended use that the prior art would have been capable of because the prior art is teaching and suggesting a similar raw Chinese noodle with an amount of calcium monohydrogen phosphate dihydrate within the claimed range. It is further noted however, that Yajima (US 6180148) teaches that it has been conventional to include for example 2-3% ethanol in the fresh Chinese noodles for increasing storage stability at ordinary temperatures such as 10-15°C to 3-4 weeks (i.e. one month) and to also include additional antibacterial ingredients and place in a package containing an oxygen scavenger or a sustained release alcohol preparation for extending the storage period of the fresh Chinese noodles to one month or more (see column 14, lines 10-30). In view of this, it would have been obvious to one having ordinary skill in the art to have modified the raw Chinese noodles at taught by the prior art combination and to have stored the Chinese noodles at ordinary temperatures such as 10°C while also extending the storage stability thereof.
In view of the prior art teaching a similar raw Chinese noodle composition and since the prior art also teaches using calcium monohydrogen phosphate dihydrate has been known to also suppress discoloration, it would have been obvious to one having ordinary skill in the art that storage of the prior art Chinese noodles would also have suppressed discoloration.
Regarding claim 13, the combination as applied to claim 5 has been incorporated herein to teach a method of suppressing discoloration of raw Chinese noodles.
Claim 13 recites that the noodles are chilled and enclosed in a bag and where the concentration of the calcium monohydrogen phosphate dihydrate is in a range from 0.15 to 0.5% by weight based on weight of the main raw material powder.
The teachings as discussed above with respect to claims 9 and 11 have been incorporated herein to teach chilling the noodles and for the claimed concentration of calcium monohydrogen phosphate dihydrate.
Regarding claims 10, 12 and 14, in view of Zhou and Hahn, the combination teaches using calcium monohydrogen phosphate dihydrate at 0.4% or 0.5%, which falls within the claimed range.
Regarding claims 19-22, Asao further teaches using calcined calcium (see paragraph 16) for the purpose of adjusting the alkalinity and pH of the raw Chinese noodles (see paragraph 16).
Claims 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claims 1, 3, 5 and 9, which relies on Zhou (US 20140093631) as the primary reference, and in further view of Iwayagi (JP 2017029056).
It is noted that since claims 15-18 do not recite a particular range of main raw material powder, the particular percentage of the kansui is also open to any amount.
Nonetheless, regarding claims 15-18, Asao teaches using 11g of kansui per 1000g of the main raw material powder in combination with calcium oxide or calcium hydroxide for the purpose of achieving the desired alkalinity and storage stability (see paragraph 24) which therefore teaches and suggests using about 1.1% kansui based on the weight of the main raw material powder and therefor is suggesting amounts less than 1.1%. Asao also teaches using 0.8% kansui (see paragraph 26). Yajima further teaches that it has been conventional to use between 0.1-5% by weight kansui (see column 10, lines 36-50).
Furthermore, it is noted that Iwayagi (JP 2017029056) teaches that it has been conventional to use, for example 1g of kansui per 100g of a main raw material in powder form (see paragraph 12 “Powdered Lye water Red” “Red powdered kansui”; paragraph 13) for the purpose of also controlling odor and color (see paragraph 10).
To therefore modify the combination and use 1% kansui based on the main raw material in powder form would have been obvious to one having ordinary skill in the art, for the purpose of further ensuring that the noodles did not brown.
Claims 1, 3 and 5-22 are rejected under 35 U.S.C. 103 as being unpatentable over Aoyama (CN 1809287) in view of Asao (JP 2006141369), Zhou (US 20140093631) and in further view Igoe (“Dictionary of Food Ingredients”), Lallemand (“Baking Update”), Ikemoto (JP2015086171) and Hahn (US 5945144) and in further view of Audiopedia and Yajima (US 6180148).
Olsen (“What is Strong Flour”) has been relied on as evidence.
Regarding claims 1, 3 and 5, Aoyama teaches a raw Chinese noodle (see paragraph 172 of the machine translation: “Chinese noodles”), comprising a main raw material powder comprising at least wheat flour (see paragraph 172, “strong flour” – Olsen evidences that strong flour is wheat flour: see page 2, “strong flour is made from hard wheat kernels”), kansui comprising at least one of sodium carbonate and potassium carbonate (see paragraph 172 – “kansui powder”). While paragraph 172 does not specifically state the contents of kansui, Asao at paragraph 32 teaches that kansui comprises sodium carbonate and potassium carbonate) and alcohol (see paragraph 172 – “ethanol”).
Further regarding claims 3 and 5, Aoyama teaches that the noodles are made by combining kneading water, ethanol and kansui with flour which is then kneaded to make a dough (see paragraph 172) and then cut into noodles that are sealed in a bag that is stored at an ordinary temperature such as 20°C (paragraph 172).
Aoyama is not specific as to the kneading water and the powder first being separate and then combined.
Asao teaches providing a combination of kansui, water and ethanol and providing a combination of wheat flour together with other powdered additives (see paragraph 32: semi-strong flour and a calcined calcium preparation was thoroughly mixed in powder form), which are then combined together and kneaded to form dough (see paragraph 32) and then carrying out noodle making (see paragraph 32)
To therefore modify Aoyama and to follow this same process would have been obvious to one having ordinary skill in the art, based on conventional expedients for how to blend a main raw material powder with auxiliary ingredients and then combine with a kansui solution for the purpose of producing raw Chinese noodle.
Claims 1, 3 and 5 differ from Aoyama in specifically reciting that a powder comprising calcium monohydrogen phosphate dihydrate has been combined with the main raw material powder in an amount of 1-2.5% by weight of the main raw material powder; and sprinkling flour comprising oxidized starch onto the noodles.
Regarding sprinkling flour comprising oxidized starch onto the noodles, Asao teaches that dusting of an oxidized starch on the noodles (see paragraph 29: “dusting of flour”; “corn starch”; paragraph 33) which can be useful for preventing the noodles from sticking together during storage (see paragraph 29). To therefore modify the combination and to dust the raw Chinese noodles with oxidized starch would have been obvious to one having ordinary skill in the art, for the purpose of preventing the noodles from sticking during storage.
Regarding the noodles comprising calcium monohydrogen phosphate dihydrate that has been combined with the main raw material powder in an amount of 1-2.5% by weight of the main raw material powder, the claim differs from Aoyama in this regard.
It is initially noted that this limitation does not provide sufficient specificity as to how much of the main raw material powder is present and therefore, allows for the calcium monohydrogen phosphate dihydrate to be present at any amount.
Nonetheless, Zhou teaches a raw noodle (see paragraph 5 – “raw”), comprising a main raw material powder comprising at least wheat flour (see at least, paragraph 4 and 5, “whole wheat”) that can comprise calcium monohydrogen phosphate hydrate (see paragraph 5 and 34, “DCP is the abbreviation for dicalcium phosphate” which is seen to encompass calcium monohydrogen phosphate dihydrate; see page 13, claim 1, 2 and 6 which teach pasta comprising DCP). Zhou further teaches that the raw noodles are enclosed in a bag (see paragraph 99).
Zhou teaches that the dicalcium phosphate can be used in amounts such as 0.4% by weight of the food as well as 2% by weight of the pasta (see paragraph 44). Furthermore, Zhou’s teachings of dicalcium phosphate can be construed as encompassing calcium monohydrogen phosphate dihydrate. It is also noted that it would appear a teaching calcium monohydrogen phosphate hydrate equates to calcium monohydrogen phosphate dihydrate because Applicant’s specification at paragraph 23, 25 and 29, as filed recite, “calcium monohydrogen phosphate” while also referring to “dihydrate” on page 11, Table 1.
If it could have been construed that Zhou’s teachings were not clear regarding the use of calcium monohydrogen phosphate dihydrate and calcium monohydrogen phosphate dihydrate being used at 1-2.5% by weight based on weight of the main raw material powder, then it is noted that Igoe teaches that dicalcium phosphate dihydrate is known to be used as a dough conditioner and bleaching agent. Lallemand further evidences that dough conditioners can provide stability to dough, extend shelf life and improve dough properties (see page 1, left column first paragraph; page 2, “ingredient terminology” “dough conditions”), which is what Zhou is also suggesting (see the abstract). Ikemoto (JP2015086171) further teaches that ingredients such as calcium monohydrogen phosphate in the dihydrate form (see paragraph 34, “calcium monohydrogen phosphate”; paragraph 35, “preferably a dihydrate”) which are known to suppress discoloration (see paragraph 32: “By including these compounds, the discoloration suppression effect tends to be further improved”) and can be used as an additive in various foods including noodles (see paragraph 68, ramen, yakisoba). Hahn further evidences that it has been desirable to include calcium monohydrogen phosphate dihydrate (see column 3, lines 21 and 24-25 where the anhydrous form is a preferred form, therefore suggesting the dihydrate as another available form - see MPEP 2123) as part of noodles (see column 2, lines 30-40) and used at a concentration of from 0.2-2% by weight of wheat flour as the main raw material in powdered form (see column 2, lines 53-57). Hahn is also teaching calcium monohydrogen phosphate dihydrate for calcium enrichment (see column 2, line s30-31). As taught by Igoe, Dicalcium Phosphate Dihydrate is also a known source of calcium. Additionally, Audiopedia also teaches and suggests that dicalcium phosphate is also known as calcium monohydrogen phosphate that is usually found as the dihydrate and is known to be used as a dietary supplement in flour and noodle products. Therefore, while Hahn teaches that the anhydrous forms might be preferred, in view of Igoe and Audiopedia, it would have been obvious to one having ordinary skill in the art that Dicalcium Phosphate Dihydrate (i.e. calcium monohydrogen phosphate dihydrate) has equally been recognized in the art to provide calcium fortification.
To therefore modify Aoyama and to include dicalcium phosphate dihydrate in amounts such as 2% by weight of the flour, would have been obvious to one having ordinary skill in the art, for the purpose of providing added source of calcium to the noodles and where the prior art further evidences that dicalcium phosphate dihydrate can have additional functionality as a dough conditioner, a bleaching agent, discoloration suppressant and source of calcium, as taught by Igoe, Lallemand, Ikemoto, Hahn and Audiopedia.
Regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at ordinary temperature is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate,” with respect to claim 1, this is an intended use that the prior art would have been capable of performing. Since the prior art is teaching a similar composition, it would have been reasonable to expect that the prior art would also have achieved similar discoloration suppression after storing for a month at ordinary temperature, especially since the prior art also teaches that calcium monohydrogen phosphate dihydrate has been recognized to suppress discoloration and can also serve as a bleaching agent (see Igoe and Ikemoto).
Regarding claims 3 and 5, the claims recite that “after” storing for a month at ordinary temperature, discoloration of the raw Chinese noodles comprising calcium monohydrogen phosphate dihydrate is suppressed compared to raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate. This limitation is seen to be an intended result of the claimed process. (see MPEP 2111.04(I)). The claim does not positively recite storing for a month, but rather storing and that “after” storing for a month at ordinary temperature, discoloration of the raw Chinese noodles comprising calcium monohydrogen phosphate dihydrate is suppressed compared to raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate.
Nonetheless, it is further noted that Yajima (US 6180148) teaches that it has been conventional to include for example 2-3% ethanol in fresh Chinese noodles for increasing storage stability at ordinary temperatures such as 15°C to 3-4 weeks (i.e. one month) and to also include additional antibacterial ingredients and place the fresh Chinese noodles in a package containing an oxygen scavenger or a sustained release alcohol preparation for extending the storage period of the fresh Chinese noodles to one month or more (see column 14, lines 10-30). In view of this, it would have been obvious to one having ordinary skill in the art to have modified the raw Chinese noodles at taught by the prior art combination and to have stored the Chinese noodles at ordinary temperatures such as 15°C while also extending the storage stability thereof.
In view of the prior art teaching a similar raw Chinese noodle composition and since the prior art also teaches using calcium monohydrogen phosphate dihydrate has been known to also suppress discoloration, it would have been obvious to one having ordinary skill in the art that storage of the prior art Chinese noodles would also have suppressed discoloration.
Further regarding claim 5, the combination as applied to claims 1 and 3 teach adding calcium monohydrogen phosphate dihydrate to a dough that comprises wheat flour as a main raw material powder, together with sodium and potassium carbonate and alcohol and where the noodles are sprinkled with oxidized starch for preventing sticking while packaged. The combination further teaches packaging the noodles in a bag and storing for some period of time at an ordinary temperature, as discussed above with respect to claim 1; and where the calcium monohydrogen phosphate is added to the noodles in a range from 1.0 to 2.5% by weight based on weight of the main raw material powder as discussed above with respect to claim 1 and in view of Zhou and Hahn, Igoe and Audiopedia. The combination further teaches that calcium monohydrogen phosphate dihydrate is a known bleaching agent (see Igoe) and can be used for suppressing discoloration (see Ikemoto) and therefore, the prior art combination is also seen to suppress some degree of discoloration of raw Chinese noodles.
Regarding claims 6-8, in view of Zhou the combination teaches and suggests using 2% calcium monohydrogen phosphate dihydrate discussed above with respect to claim 1 and in view of Hahn, Igoe and Audiopedia the prior art further suggests amounts such as 0.2-2% by weight of wheat flour (see Hahn column 3, lines 53-57).
Regarding claim 9, the claim repeats the limitations presented above with respect to claim 1 and is therefore rejected for the same reasons as discussed with respect to claim 1.
Claim 9 further recites that the noodles are chilled raw Chinese noodles within the bag. The product thus suggested by the claim is a packaged, chilled raw Chinese noodle.
In this regard, Asao suggests storage in a refrigerator (see paragraph 33) and therefore reads on a chilled raw Chinese noodle enclosed in a bag. To modify Aoyama and to store the raw Chinese noodle in a chilled state would have been obvious to one having ordinary skill in the art for further extending the storage stability, especially as it would have been obvious to one having ordinary skill in the art that refrigeration temperatures can further extend the storage stability of foods.
Regarding the concentration of calcium monohydrogen phosphate dihydrate being in a range from 0.15 to 0.5% by weight based on weight of the main raw material powder, this limitation is similarly rejected for the reasons discussed above with respect to claim 1, especially since the claim does not provide specificity as to how much main raw material powder is present. As such the claim recites a percent of 0.15 to 0.5% of an unknown amount of main raw material powder and therefore has been construed as any amount of calcium monohydrogen phosphate dihydrate.
Nonetheless, the prior art suggests amounts such as 0.4% as taught by Zhou at paragraph 44 and amounts such as 0.5% as taught by Hahn on column 4, lines 55-57. Igoe, Lallemand and Audiopedia have also been relied on as already discussed above. To thus use similar amounts of calcium monohydrogen phosphate dihydrate would have been obvious to one having ordinary skill in the art, for the purpose of providing the desired firmness and texture to the raw Chinese noodles and where the prior art teaches that calcium monohydrogen phosphate dihydrate can also serve as a bleaching agent and discoloration suppressant, as a dough conditioner and as a source of calcium.
Regarding claim 11, the claim repeats the limitations of claim 3 and therefore the combination as applied to claim 3 has been incorporated herein to teach the method for producing raw Chinese noodles. Regarding the noodles being chilled raw Chinese noodles, in view of Asao (paragraph 33) and Yajima (US 6180148 column 14, lines 10-20), the combination suggests that chilling the noodles and storage at 10°C. To modify the combination and to chill the raw Chinese noodles would have been obvious to one having ordinary skill in the art for extending storage life, for example, based on using colder temperatures for storage.
Regarding the calcium monohydrogen phosphate dihydrate being added in the noodles from 0.15 to 0.5% by weight based on weight of the main raw material powder, the combination as applied to claim 9 has been incorporated herein to teach these amounts.
Further regarding the limitation of, “wherein discoloration of the raw Chinese noodles after storing for a month at no more than 10°C is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate, this is an intended use that the prior art would have been capable of because the prior art is teaching and suggesting a similar raw Chinese noodle with an amount of calcium monohydrogen phosphate dihydrate within the claimed range. It is further noted however, that Yajima (US 6180148) teaches that it has been conventional to include for example 2-3% ethanol in the fresh Chinese noodles for increasing storage stability at ordinary temperatures such as 10-15°C to 3-4 weeks (i.e. one month) and to also include additional antibacterial ingredients and place in a package containing an oxygen scavenger or a sustained release alcohol preparation for extending the storage period of the fresh Chinese noodles to one month or more (see column 14, lines 10-30). In view of this, it would have been obvious to one having ordinary skill in the art to have modified the raw Chinese noodles at taught by the prior art combination and to have stored the Chinese noodles at ordinary temperatures such as 10°C while also extending the storage stability thereof.
In view of the prior art teaching a similar raw Chinese noodle composition and since the prior art also teaches using calcium monohydrogen phosphate dihydrate has been known to also suppress discoloration, it would have been obvious to one having ordinary skill in the art that storage of the prior art Chinese noodles would also have suppressed discoloration.
Regarding claim 13, the combination as applied to claim 5 has been incorporated herein to teach a method of suppressing discoloration of raw Chinese noodles.
Claim 13 recites that the noodles are chilled and enclosed in a bag and where the concentration of the calcium monohydrogen phosphate dihydrate is in a range from 0.15 to 0.5% by weight based on weight of the main raw material powder.
The teachings as discussed above with respect to claims 9 and 11 have been incorporated herein to teach chilling the noodles and for the claimed concentration of calcium monohydrogen phosphate dihydrate.
Regarding claims 10, 12 and 14, in view of Zhou and Hahn, the combination teaches using calcium monohydrogen phosphate dihydrate at 0.4% or 0.5%, which falls within the claimed range.
It is noted that since claims 15-18 do not recite a particular range of main raw material powder, the particular percentage of the kansui is also open to any amount.
Nonetheless, regarding claims 15-18, Aoyama teaches using 10g kansui powder per 1000g flour (see paragraph 172), which equates to 1% kansui based on the weight of the main raw material powder.
Regarding claims 19-22, Asao further teaches using calcined calcium (see paragraph 16) for the purpose of adjusting the alkalinity and pH of the raw Chinese noodles (see paragraph 16) such that it would have been obvious to one having ordinary skill in the art to have modified Aoyama and to use calcined calcium for this same purpose.
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, 10, 15, 18, 19 and 21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of copending Application No. 17441145 and in further view of Asao (JP 2006141369) and Aoyama (CN 1809287).
Regarding claims 1 and 9, although the claims at issue are not identical, they are not patentably distinct from each other because copending claim 4 teaches Chinese noodles that comprise sodium carbonate and potassium carbonate and calcium monohydrogen phosphate hydrate and where the sodium carbonate and potassium carbonate can be used at 5-15g/1kg of the main raw material powder, and satisfies the expression 0.8X-2 <= Y <= 2X, where X-5-15g/1kg and Y= calcium monohydrogen phosphate hydrate. Therefore, the copending claims teach that calcium monohydrogen phosphate hydrate can be present at 2-10g/1kg or 10-30g/1kg of the main powder. This equates to 0.2-1wt% or 1-3wt% which thus falls within the claimed range and overlaps with the claimed range. While the copending claims recite, “non-fried Chinese noodles” the claims also recite there is a noodle raw material in combination with the sodium and potassium carbonate and the calcium monohydrogen phosphate hydrate and therefore encompasses a raw Chinese noodle.
Further regarding claim 1, since copending claim 4 teaches comprising sodium and potassium carbonate, it would have been obvious to one having ordinary skill in the art that the copending claim is teaching kansui. This is further evidenced by paragraph 22 of Applicant’s specification as filed, which discloses that sodium carbonate or potassium carbonate is referred to as kansui.
Regarding claim 1 and 9, it is noted that the claimed product resulting in suppressing discoloration of raw Chinese noodles comprises a step of adding calcium monohydrogen phosphate to noodles would also have been reasonably expected by the product disclosed by the copending claims since the copending claims encompass a raw Chinese noodle comprising calcium monohydrogen phosphate hydrate.
Claims 1 and 9 differ from the copending claims in specifically reciting that the raw Chinese noodles also comprise alcohol and the noodles are sprinkled with oxidized starch attached to the surface of the noodles and are enclosed in a bag and stored at ordinary temperature or chilled.
Regarding the use of alcohol, Asao evidences that it has been conventional to use alcohol in the kneading water (see paragraph 32) and to therefore modify the copending claims to also include alcohol would have been obvious to one having ordinary skill in the art based on conventional expedients for making raw Chinese noodles.
Regarding the oxidized starch, Asao teaches sprinkling oxidized starch onto the raw Chinese noodles for preventing sticking (see paragraph 29) and to accordingly modify the raw Chinese noodles of the copending claims in this manner would have been obvious to one having ordinary skill in the art for the same purpose.
Regarding the limitation of, the raw Chinese noodles being in a bag and “wherein discoloration of the raw Chinese noodles after storing for a month at ordinary temperature is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate,” Asao teaches storage at refrigeration temperatures within a bag (see paragraph 33) and Aoyama teaches storage at “ordinary temperatures” within a bag (see paragraph 172 – “plastic bag”; aged at 20°C).
To modify the copending claims and package the raw Chinese noodles within a bag such that the packaged raw chinese noodles are capable of being stored at ordinary or refrigeration temperatures for one month would have been obvious to one having ordinary skill in the art for preventing contamination of the raw Chinese noodles prior to further use such as steaming, drying and cooking for consumption.
Further regarding the limitation of “wherein discoloration of the raw Chinese noodles after storing for a month at ordinary temperature is suppressed compared with discoloration of raw Chinese noodles that do not include the calcium monohydrogen phosphate dihydrate,” with respect to claims 1 and 9, this is an intended use that the prior art would have been capable of performing. Since the prior art is teaching a similar composition, it would have been reasonable to expect that the prior art would also have achieved similar discoloration suppression after storing for a month at ordinary temperature and at up to 10°C.
Regarding claims 6 and 10, the copending claims teach calcium monohydrogen phosphate dihydrate used at 0.2-1wt% or 1-3wt% which thus falls within the claimed range and overlaps with the claimed range.
It is also noted that it would appear that the copending claims’ teaching of calcium monohydrogen phosphate hydrate equates to calcium monohydrogen phosphate dihydrate because Applicant’s specification at paragraph 23, 25 and 29, as filed recite, “calcium monohydrogen phosphate” while also referring to “dihydrate” on page 11, Table 1.
Regarding claims 15 and 18, Aoyama teaches using 10g kansui powder per 1000g flour (see paragraph 172), which equates to 1% kansui based on the weight of the main raw material powder and to accordingly modify the copending claims to use 1% kansui would have been obvious to one having ordinary skill in the art based on conventional amounts of kansui recognized to be used for making raw Chinese noodles.
Regarding claims 19 and 21, Asao further teaches using calcined calcium (see paragraph 16) for the purpose of adjusting the alkalinity and pH of the raw Chinese noodles (see paragraph 16) such that it would have been obvious to one having ordinary skill in the art to have modified the copending claims and to use calcined calcium for this same purpose.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
On page 13 of the response, Applicant urges that Zhou does not teach any distinction among calcium phosphate salts and fails to provide any guidance to reach calcium monohydrogen phosphate dihydrate.
This argument is not persuasive in view of the rejections as presented in this Office Action. At minimum, Zhou encompasses using either of the anhydride or hydrated form of dicalcium phosphate and therefore encompasses using dicalcium phosphate dihydrate (i.e. calcium monohydrogen phosphate dihydrate). Nonetheless, the prior art is further teaching and suggesting that dicalcium phosphate dihydrate is a known bleaching agent and dough conditioner, as taught by Igoe and Lallemand, and is known to suppress discoloration, as taught by Ikemoto. Furthermore, Audiopedia provides further evidence that it has been conventional to include calcium monohydrogen phosphate dihydrate as a supplement in noodles. Therefore, while Zhou does not specifically recite using the hydrated form of dicalcium phosphate, the reference encompasses using the hydrated form and the prior art provides additional motivation to use the hydrated form for conditioning dough, suppressing discoloration and as a nutrient source.
Further on page 13 of the response, Applicant urges that there is no motivation for a person having ordinary skill in the art to add kansui to the pasta of Zhou since kansui would raise the pH and enhance the typical flavor of chinese noodles such that it unintended typical flavor of chinese noodles would have been added to the pasta.
This argument is not persuasive because while Zhou is not limiting as to the particular type of pasta that is being made (see paragraph 5) and also teaches that the composition for making the pasta can at minimum comprise flour, water and a phosphate salt (see paragraph 5), while also allowing for additional additives to be used (see at least, paragraph 48).
Further on page 13 of the response, Applicant urges that a person having ordinary skill in the art would not have expected the beneifical features of using calcium monohydrogen phosphate dihydrate over the anhydride version in suppressing discoloration of the noodles during storage.
This urging is not seen to be sufficient because, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this instance, the prior art provides motivation for using the hydrated form of dicalcium phosphate, such as for suppressing discoloration, as a bleaching agent, dough conditioner and for calcium fortification.
On pages 13-14 of the response, Applicant urges that Igoe, Lallemand, Ikemoto, Hahn do not teach adding kansui to pasta and therefore do not resolve the deficiencies of Zhou and Asao.
This argument is not persuasive because these references have not been relied on for teaching adding Kansui, but rather teach and suggest reasons for using the hydrated form of dicalcium phosphate for the noodles as taught by Zhou and Asao.
On page 14 of the response, Applicant urges that the rejection does not provide a factual basis in the field of pasta making for sprinkling flour comprising oxidized starch onto the pasta or other noodles. Applicant urges that without such evidence there is no motivation for a person having ordinary skill in the art to sprinkle flour comprising oxidized starch onto the pasta of Zhou.
This argument is not persuasive because Asao teaches that the sprinkling of flour comprising oxidized starch has been beneficial for preventing sticking of the individual noodles (see paragraph 29). This would have been equally applicable to Zhou. While Zhou discloses “pasta” it is further noted that Zhou is not limiting as to the particular type of pasta being made (see paragraph 52), and even references noodles (see paragraph 132). Therefore, Asao’s teaching would have been equally applicable to Zhou’s product for the same purpose of preventing sticking of the individual noodles. Further regarding Zhou’s generic disclosure of pasta, it is noted that the plain meaning of the term “pasta” is a food made of flour water and sometimes egg. In this regard Zhou teaches a food made from flour and water (see paragraph 52, last sentence). Furthermore, “Whole Foods Market” evidences that pasta can also refer to Asian style noodles (see page 1, “Pasta in Asia”). Since Zhou is not limiting as to the particular composition, it would have been obvious to one having ordinary skill in the art that Zhou is open to various forms of pasta including noodles. Therefore, Zhou is not seen to teach away from using a sprinkling of flour comprising oxidized starch for the purpose of preventing noodles from sticking together.
Further on page 14-15 of the response, regarding Ikemoto Applicant urges that the reference does not discuss discoloration of noodles but rather, is directed to discoloration of pyrroloquinoline quinones.
This urging is not sufficient to overcome the rejection because the reference has only been relied on to teach that calcium monohydrogen phosphate dihydrate has been recognized in the art to suppress discoloration. Furthermore, while Ikemoto discloses that PQQ’s discolor, the reference also discloses that PQQ’s are known to be part of foods and can discolor the food (see paragraph 5). Ikemoto teaches that a known additive that can help to prevent this discoloration are calcium phosphate compounds (paragraph 32) such as calcium monohydrogen phosphate dihydrate (paragraph 34-35). In view of this, it would have been obvious to one having ordinary skill in the art that calcium monohydrogen phosphate dihydrate has been recognized as a discoloration suppressant.
On page 15 of the response, Applicant urges that the prior art does not teach calcium monohydrogen phosphate dihydrate in a range from 1-2.5 by weight based on the weight of a main raw material powder in powder form used to prepare the raw Chinese noodle.
This argument is not persuasive because the prior art the prior art teaches and suggests in view of Zhou (paragraph 44) and Hahn (column 2, lines 53-57) an amount of dicalcium phosphate and calcium monohydrogen phosphate dihydrate added to noodles based on a weight of a main raw material powder - such as the flour used to make the noodles.
On pages 15-16 of the response, Applicant urges that it si common practice in the noodle-making art to specify the amounts of ingredients relative to the weight of the main raw material powder such that the amount of calcium monohydrogen phosphate dihydrate relative to the main raw material powder is claimed with sufficient specificity.
It is noted however, that since the claim does not provide a particular amount of the main raw material powder, the claim would not limit the particular bounds for the amount of the calcium monohydrogen phosphate dihydrate. For example, the amount of calcium monohydrogen phosphate dihydrate present when using 50wt% of a main raw material powder would differ compared to the amount of the dihydrate present with when using 90wt% of a main raw material powder (i.e. 0.5-1.25wt% based on 50wt% of a main raw material powder, compared with 0.9-2.25wt% based on 90wt% of a main raw material powder). Nonetheless, the prior art teaches and suggests using an amount of calcium monohydrogen phosphate dihydrate based on the weight of a main raw material powder, such as flour.
The remainder of Applicant’s remarks on pages 16-17 reiterate those remarks already presented above and are therefore not sufficient to overcome the rejections for the reasons already presented above.
On pages 18-19 of the remarks, Applicant’s arguments with respect to the copending Application 17441145 disclosing steaming whereas the current claims recite a raw Chinese noodle have been considered. With respect to the method claims of the copending Application, the obviousness-type double patenting rejections have been withdrawn. With respect to the product claims, it is noted that the copending claims do not recite that the noodles are steamed and therefore encompass raw noodles. Therefore, the obviousness-type double patenting rejections directed to product claims 1 and 9 have been maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Aimutis (US 20070082029) discloses using dicalcium phosphate dihydrate (paragraph 70) as part of a pasta composition (paragraph 17).
Geng (US 20030147998) discloses using dicalcium phosphate dihydrate (Paragraph 21) as part of a dough composition used for pasta (paragraph 3).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights