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 .
This office action is written in response to the Applicants Remarks filed 12/29/25. Claims 1-6, and 8-20 are pending. Claims 10-12 were withdrawn. Claim 7 was previously cancelled. Claims 1-6, 8, 9, and 13-20 have been examined on the merits.
Withdrawn Rejections
The 103(a) rejections of claims 1-6, 8, 9, 13-16, and 19-20 over Nagayama (US 2011/0318466) in view of Juengling et al. (US 5,667,833), and Weinstein et al. (US 2010/0285187) have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5, 8, 13, 14, 15, 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Asahina et al. (US 2020/0163365) corresponding to (WO 2019/065932 pub 4/4/2019) in view of Weinstein et al. (US 2010/0285187).
Regarding Claims 1, 2, 3, 13, 14, 15, 19: Asahina discloses a method of making dried pasta [abstract]. Asahina discloses utilizing wheat flour (cereal flour) or durum flour [abstract 0012]. Asahina discloses mixing the flour with water and kneading [0015]. Asahina discloses a moisture content of about 20 to 40 parts by mass per 100 parts by mass of the raw powder (20% to 40%) and also discloses a water content of about 33% before drying [0015; 0031]. Asahina discloses extruding through a die plate [0016]. Asahina discloses drying noodles to a moisture content of 13% or less [0018; 0022; 0032].
Asahina does not disclose that the die is made of polyoxymethylene copolymer.
Asahina does not disclose having a surface roughness Ra of between 3.5 um and 6 um; 4.5µm to 5.7 µm (claim 13) calculated in accordance with the procedure ISO 16610-21.
Weinstein discloses an extruder wherein the extrusion die is made from polyoxymethylene (POM) [0015]. Weinstein discloses POM as advantageous due to its strength, light weight, and self-lubricating properties [0015]. Weinstein discloses the material as food safe [0015].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Asahina to include the die being made of polyoxymethylene as in Weinstein in order to provide a die that is strong, lightweight and self-lubricating.
Although the references do not recite a surface roughness of 3.5 to 6 µm (claim 1); 4.5µm to 5.7 µm (claim 13), it would have been obvious that the resulting dried noodles would have had the claimed property since it is made in the same way wand with the same ingredients. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Although Asahina does not explicitly disclose a water content of between 35% to 37.5%; 36% to 37.1% (claim 3), 36.7% to 37% (claim 15) one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Asahina overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 19, although Asahina does not explicitly disclose a moisture content between 10 to 11%, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Asahina overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 5: Asahina discloses as discussed above in claim 1. Asahina further discloses extruding under partial vacuum conditions [0020].
Regarding Claims 8, 20: Asahina discloses as discussed above in claim 1. Asahina discloses drying noodles to a moisture content of less than 13% at a temperature of 90°C or 80°C to 130°C [0018; 0022; 0032].
Although Asahina does not explicitly disclose a temperature of between 50 and 90°C (claim 8), between 70 and 85°C (claim 20) one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Asahina overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claims 17 and 18: Asahina discloses extruding under vacuum as discussed above in claim 5. Asahina does not disclose wherein said step c) of extruding is carried out at a pressure of between -500 mmHg and -700 mmHg (claim 17); wherein the pressure is between -600 mmHg and -670 mmHg (claim 18).
Although, Asahina discloses partial vacuum as part of the process, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the level of vacuum for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Claims 4 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Asahina et al. (US 2020/0163365) corresponding to (WO 2019/065932 pub 4/4/2019) in view of Weinstein et al. (US 2010/0285187) as applied to claim 1 above and in further view of Hsu et al. (US 4,208,439) and Juengling et al. (US 5,667,833).
Regarding Claims 4, 16: Asahina discloses as discussed above in claim 1. Asahina does not disclose mixing between 20°C and 50°C, for between 20 minutes and 30 minutes.
Hsu discloses a method of making pasta dough and instant pasta [abstract]. Hsu disclose combining flour including durum wheat and water for a moisture content of 27% to 40% and that the mixture is mixed for 10 to 15 minutes but that the kneading time is dependent upon the time necessary for water penetration into the flour [col. 3, lines 9-27].
Juengling discloses a method of making pasta wherein cereal flour or semolina is mixed with water to obtain a water content of 25% to 40% [abstract; col. 2, lines 50-53]. Juengling discloses that the mixture is maintained at a temperature of less than 55°C or less than 50°C in order to avoid damaging gluten [col. 2, lines 50-53]. Juengling discloses kneading the moistened flour (dough) and extruding through a die plate [abstract; col. 2, lines 50-53; col. 3, lines 43-47]. Juengling discloses drying the extruded dough [col. 3, lines 25-31; 38-41].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Asahina to include mixing at a time disclosed in Hsu in order to endure adequate hydration of the flour.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Asahina to include mixing at less than 55°C as in Juengling in order to mix the ingredients fully and at the temperature to avoid damaging the gluten [Juengling col. 2, lines 55-60].
Although Hsu does not disclose mixing for 20 to 30 minutes it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the time for mixing to achieve adequate or desirable mixing and hydration of the ingredients, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Juengling does not explicitly disclose a temperature of between 20°C and 50°C, between 30°C and 40°C (claim 16) one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Juengling overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 6 rejected under 35 U.S.C. 103 as being unpatentable over Asahina et al. (US 2020/0163365) corresponding to (WO 2019/065932 pub 4/4/2019) in view of Weinstein et al. (US 2010/0285187) as applied to claim 1 above and in further view of Juengling et al. (US 5,667,833).
Regarding Claim 6: Asahina discloses as discussed above in claim 1. Asahina does not disclose wherein said extruding is carries out by means of an extruder comprising an endless screw; wherein the endless screw is rotated at a speed comprised of between 15 rpm and 25 rpm.
Juengling discloses that extruder utilizes single or twin screw extrusions push move the dough toward the die plate at 20 to 120 rpm [col. 3, lines 11-17, 43-47].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Asahina to extrude using an endless screw and at the rpm as in Juengling in order to ensure adequate or desirable mixing of the dough.
Although Juengling does not explicitly disclose a speed of 15 to 25 rpm one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Juengling overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Asahina et al. (US 2020/0163365) corresponding to (WO 2019/065932 pub 4/4/2019) in view of Weinstein et al. (US 2010/0285187) as applied to claim 1 above and in further view of Nagayama (US 2011/0318466).
Regarding Claim 9: Asahina discloses as discussed above in claim 1. Asahina does not disclose wherein said step d) of drying is preceded by a step of partial surface drying during which said extruded dough is partially dried on its surface by application of a hot air flow, said hot air flow having a temperature of between 50°C and 90°C.
Nagayama discloses drying noodles to a moisture content of 8 to 10% by applying hot air at 60 to 100°C or 80°C to 90°C and discloses drying efficiency and avoiding foaming [0062; 0063].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Asahina for further include the pre-drying step with hot air of Nagayama because the temperature does not exceed the temperature allowed for in Asahina and in order to increase drying efficiency and avoiding foaming.
Although Nagayama does not explicitly disclose a temperature of between 50 and 90°C one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Nagayama overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Asahina et al. (US 2020/0163365) corresponding to (WO 2019/065932 pub 4/4/2019) in view of Weinstein et al. (US 2010/0285187) as applied to claim 5 above and in further view of JP 5596873 Sept 2014.
Regarding Claim 17 and 18: Asahina discloses extruding under vacuum as discussed above in claim 5. Asahina does not disclose wherein said step c) of extruding is carried out at a pressure of between -500 mmHg and -700 mmHg (claim 17); wherein the pressure is between -600 mmHg and -670 mmHg (claim 18).
JP’873 discloses that the vacuum extrusion can be performed at -200 mmHg to vacuum or -600 mmHg to vacuum [pg. 4, lines 1-4]. JP’873 discloses the improvement in the durability of noodles under this disclosed pressure [pg. 4, lines 1-4].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the vacuum method of Asahina to be performed at levels as discussed in JP’873 in order to improve the durability of the noodles.
Although JP’873 does not explicitly disclose a pressure of between -500 mmHg and -700 mmHg (claim 17); wherein the pressure is between -600 mmHg and -670 mmHg (claim 18) one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by JP’873 overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553
Response to Arguments
The 103(a) rejections of claims 1-6, 8, 9, 13-16, and 19-20 over Nagayama (US 2011/0318466) in view of Juengling et al. (US 5,667,833), and Weinstein et al. (US 2010/0285187) have been withdrawn.
The Applicants assert that none of the references teach the limitation of a surface roughness Ra of between 3.5 µm and 6 µm. The Applicants assert that the water content of between 35% and 37% with a die plate insert made of POM-C as critical for obtaining the Ra. The Applicants assert that in the examples the pasta dough with moisture content within range achieved an Ra of 5.46 µm while pasta dough with a moisture content of 34.1% achieved a Ra of 6.83 µm which is outside of the claimed range.
The Examiner notes that to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).
Here Applicants have provided one temperature point within and one outside of the range.
MPEP 716.02(d) states Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980).
Further the Applicants assert that in re Spada is not applicable because the claims are process claims not product claims, and multiple references are used to meet the claim limitation.
The Examiner disagrees because the claims are to a process of making a dried pasta product. The end result of the claims and Asahina is a dried pasta product and therefore the features of the pasta product are relevant to the characteristics that the pasta product would also display. Asahina discloses a pasta dough having a moisture content overlapping with the instant moisture content, extruding the pasta through a die, drying the pasta, and a resulting pasta having moisture content that is within the recited range. The Examiner maintains that in re Spada is relevant, as no other prior art was necessary to modify Asahina for its ingredients, and moisture contents which Applicants assert are necessary for their unexpected results.
The Applicants assert that the instant rejection does not disclose a process that is identical. The Applicants assert that Weinstein uses a die that is entirely made of POM and the claim recites that the die plate insert is made of POM.
The Examiner maintains Weinstein because by disclosing a die plate made of POM, this reads on the die insert since the entire die is made of POM and not just the insert. The claims do not recite that only the inserts are made of POM.
The Applicants also assert criticality of using POM. The Examiner notes that Applicants discloses in their specification that the use of POM for extrusion purposes is known [Instant published application US 2024/0122217 para 0017; 0018-0022].
For the reasons above the rejections under Asahina are maintained.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Mihalos et al. BR PI1101861 Sept 2012 Derwent Abstract discloses an extruder and methods for extruding a pasta [abstract]. Mihalos discloses forming a dough/pasta ingredients having a moisture content of 17% to 35% [pg. 5, 2nd and 3rd paragraph]. Mihalos discloses an extruder comprising a structure, a pasta feeder tank prefeed box a drill box, a compression chamber, with an upstream extension and a downstream extension wherein the internal perimeter of the extensions are made of POM, and a die plate connected to the downstream opening [pg. 3, 7th paragraph; pg. 8, 2ndparagraph, pg. 11, Claims 1 and 6]. Mihalos discloses drying the noodles in an oven after extrusion [pg. 11, 1st and 2nd paragraph]. Mihalos discloses that POM discloses a low coefficient of friction [pg. 8, 1st and 2nd paragraphs].
Conclusion
THIS ACTION IS MADE FINAL. 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 FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/ Primary Examiner, Art Unit 1793
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