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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 12-14, 16, 19, 21, 25, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) or alternatively Claims 1, 12-14, 16, 19, 21, 25, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Gilpatrick et al. US 2019/0248110, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”).
Regarding Claim 1, El-Afandi et al. disclose a microwavable packaged (pouch 12) (‘835, Paragraphs [0025] and [0050]) frozen rice (‘835, Paragraph [0051]) comprising a susceptor (‘835, Paragraphs [0026] and [0039]) and frozen rice (‘835, Paragraph [0051]).
El-Afandi et al. is silent regarding the frozen rice having a volume ratio (volume/area) to a contact area with the susceptor of 20 mm to 30 mm.
Erle discloses a microwavable packaged frozen rice comprising a susceptor (‘036, Paragraph [0051]) (‘036, Table 1) (‘036, Paragraphs [0106] and [0111]). The package (microwavable package 28) contains the susceptor on the bottom and along the cylindrical wall of the package microwavable package 28) wherein the composite susceptor is provided on about 50% to 100% of a total surface area of the package (microwavable package 28) (‘036, Paragraph [0092]) and the microwavable food having different geometric shapes (‘036, Paragraph [0053]). Resurreccion Jr. et al. discloses a microwavable package comprising a food item and susceptors wherein each food item is in contact with and/or in close proximity to a susceptor on multiple sides wherein an insert increases and/or optimizes the amount of surface area of the food items in contact with a susceptor to help with browning and/or crisping additional surfaces of the food item (‘044, Paragraph [0034]).
El-Afandi et al., Erle, and Resureccion Jr. et al. are all directed towards the same field of endeavor of microwavable packaged food product comprising a susceptor. Erle discloses the microwavable food having different geometric shapes (‘036, Paragraph [0036]), which necessarily has different ratios of surface area to volume as evidenced by Mehnert et al. that changing the shape of an article influences the ratio of surface area to volume (‘354, Paragraph [0102]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable packaged frozen rice of El-Afandi et al. and adjust the volume ratio to contact area with the susceptor since differences in the volume ratio to contact area with the susceptor of the microwavable packaged frozen rice will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such volume ratio to contact area with the susceptor of the microwavable packaged frozen rice is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the volume ratio to contact area with the susceptor of El-Afandi et al. by adjusting the surface area that the susceptor covers the package as taught by Erle and Resurreccion Jr et al. based upon the desired degree of browning and crispness of the food product (‘036, Paragraphs [0028], [0048], and [0083]) (‘044, Paragraph [0034]). Additionally, the disclosure of Erle that the microwavable food has different shape (‘036, Paragraph [0036]) necessarily results in different volume/surface area ratio as evidenced by Mehnert et al. (‘354, Paragraph [0102]).
Further regarding Claim 1, El-Afandi et al. is silent regarding the frozen rice having a color difference according to the CIE Lab of 3.1 to 15 when heating the packaged frozen rice in a microwave oven as compared with when heating packaged frozen rice without the susceptor under the same condition.
Resurreccion Jr. et al. discloses a microwavable package comprising a food item and susceptors wherein each food item is in contact with and/or in close proximity to a susceptor on multiple sides wherein an insert increases and/or optimizes the amount of surface area of the food items in contact with a susceptor to help with browning and/or crisping additional surfaces of the food item (‘044, Paragraph [0034]) when exposed to microwave energy in a microwave oven (‘044, Paragraph [0036]). The disclosure of a susceptor helping with browning surfaces of a food item indicates that there is a color difference when heating the microwavable package in a microwave oven.
Both El-Afandi et al. and Resurreccion Jr. et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. Although Resurreccion Jr. et al. does not explicitly discuss the degree to which browning occurs to allow for a color difference that falls within the claimed range of 3.1 to 15 according to the CIE Lab when heating the packaged frozen rice in the microwave oven as compared with when heating packaged frozen rice without the susceptor under the same condition, differences in the degree of color different when heating the packaged frozen rice in the microwave oven as compared with when heating the packaged frozen rice without a susceptor under the same conditions will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such color difference of the frozen rice when heating the packaged frozen rice in the microwave oven is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the surface area contact between the food item and susceptor of El-Afandi et al. and microwave the food item disposed therein based upon the desired degree of browning of the food item as suggested by Resurreccion Jr. et al. It is noted that the claims recite a generic susceptor disposed within the microwavable food package. The claims do not require any particular surface covering area within the microwavable food package or the material(s) from which the susceptor is made and/or the thickness of the susceptor, which would also influence the color difference of the food time when microwaving. It is also noted that the claims do not specify the power wattage of the microwave oven used when heating and/or the heating times of the microwave oven, which would also influence the color difference of the food item when microwaving.
Further regarding Claim 1, El-Afandi et al. discloses the edible product including a moisture content of at least 15 percent (‘835, Paragraph [0005]). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. is silent regarding the frozen rice having a moisture content of 48 wt% to 53 wt% in particular.
Kohlwey discloses a method of producing improved dehydrated rice comprising the steps of hydration to raise the moisture content of the rice from an initial 8%-15% to a final content of about 60% to 70% by weight which moisture content is raised above 60% to enable the rice grains to be more resistant to any browning from high temperatures and reduce the temperature at which glassification occurs (‘055, Column 6, lines 1-13) wherein the hydrating can occur to any desired preselected moisture content below 60% and then gelatinizing and glassifying rice in one step (‘055, Column 7, lines 35-44). Kohlwey also discloses a particular embodiment wherein the rice grains have a 50% moisture content (‘055, Column 7, lines 45-50), which falls within the claimed rice moisture content of 48 wt% to 53 wt%.
Both modified El-Afandi et al. and Kohlwey are directed towards the same field of endeavor of frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content of the rice of modified El-Afandi et al. to fall within the claimed rice moisture content as taught by Kohlwey since where the claimed rice moisture content overlaps rice moisture content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the rice moisture content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such rice moisture content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Kohlwey teaches that it is obvious to hydrate the rice to any desired preselected moisture content below 60% (‘055, Column 7, lines 35-38).
Further regarding Claim 1, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey is silent regarding the frozen rice having an oil content of at 2.6 wt% to 8 wt%.
Yamamoto et al. discloses a frozen food product containing boiled rice grains as a major ingredient wherein frozen rice is obtained by individual quick freezing (‘312, Column 3, lines 24-35) wherein 5% by weight or less olive oil is added to boiled cooked rice and freezing to obtain frozen rice (‘312, Column 7, lines 7-25), which overlaps the claimed frozen rice oil content of at 2.6 wt% to 8 wt%. The frozen rice is packaged in a microwavable package (‘312, Column 13, lines 34-62).
Both modified El-Afandi et al. and Yamamoto et al. are directed towards the same field of endeavor of microwavable packaged frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable packaged frozen rice of modified El-Afandi et al. and adjust the oil content of the frozen rice to fall within the claimed oil content range of 2.6 wt% to 8 wt% as taught by Yamamoto et al. since where the claimed oil content range overlaps oil content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Zukerman discloses a packaged frozen rice (‘295, Column 3, lines 54-73) wherein the rice is precoated with a vegetable oil to control the water absorption rate by controlling the degree of broken rice cells (‘295, Column 2, lines 59-67). It also would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaged frozen rice of El-Afandi et al. and adjust the oil content of the frozen rice to the claimed oil content range of at 2.6 wt% to 8 wt% since differences in the concentration of oil content of the frozen rice will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of oil content of the frozen rice is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the oil content of the frozen rice of modified El-Afandi et al. based upon the desired degree of water absorption rate as taught by Zukerman.
Further regarding Claim 1, Yamamoto et al. discloses the frozen rice comprising emulsified oil or fat (‘312, Column 13, lines 16-33). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey and Yamamoto et al. is silent regarding the emulsifier to be lecithin and the content of lecithin in the frozen rice to be 0.06 wt% to 0.68 wt%.
Masuda et al. discloses frozen rice (‘037, Paragraph [0007]) comprising a coating of fat or oil (‘037, Paragraph [0006]) and emulsifier wherein the emulsifier includes a combination of two or more kinds including lecithin and polyglycerol esters of fatty acids (‘037, Paragraph [0009]) in order to improve the adhesion efficiency of the emulsifier to foods (‘037, Paragraph [0010]) wherein the amount of the emulsifier added fat or oil added to the food is not limited because the amount differs depending upon the desired food material wherein the amount of emulsifier added is from 0.5 to 5 parts by weight based on 100 parts by weight of the food (‘037, Paragraph [0013]), which overlaps the claimed lecithin content range of 0.06 wt% to 0.68 wt%.
Both modified El-Afandi et al. and Masuda et al. are directed towards the same field of endeavor of packaged frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice of modified El-Afandi et al. and use lecithin as the emulsifier of the frozen rice as taught by Masuda et al. since the selection of a known material (frozen rice) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Masuda et al. discloses there was known utility in the food art to incorporate lecithin as an emulsifier into frozen rice. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice of modified El-Afandi et al. and incorporate lecithin in the claimed amounts as taught by Masuda et al. since where the claimed lecithin content ranges overlaps lecithin content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the lecithin content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such lecithin content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.).
Further regarding Claim 1, El-Afandi et al. discloses the package comprising a susceptor for facilitating browning of the edible product (‘835, Paragraph [0039]) wherein the edible product is rice (‘835, Paragraph [0051]). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey, Yamamoto et al., and Masuda et al. is silent regarding the frozen rice having a scorched texture.
Zenkimchi discloses frozen scorched rice comprising oil (Zenkimchi, Pages 2 and 4).
Both modified El-Afandi et al. and Zenkimchi are directed towards the same field of endeavor of frozen rice compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice composition of modified El-Afandi et al. and make the packaged frozen rice with oil have a scorched texture as taught by Zenkimchi based upon the desired mouthfeel of the rice for a particular consumer.
Further regarding Claim 1, the limitations “wherein the susceptor has an average temperature of 95°C to 125°C or a maximum temperature of 105°C to 150°C when the packaged frozen rice is heated in a microwave oven of 700 W for 6 minutes and the average temperature or maximum temperature is measured in the heating process” are intended use limitations. In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The claim does not specify the temperature at which the microwave oven is heated to. The susceptor of the microwavable packaged frozen rice of modified El-Afandi et al. would be capable of reaching the claimed susceptor average temperature and/or maximum temperature when the microwave oven supplies enough power to the packaged frozen rice during cooking. Since modified El-Afandi et al. teaches the claimed microwavable packaged frozen rice comprising a susceptor and frozen rice, one of ordinary skill in the art would expect the generic susceptor of modified El-Afandi et al. to behave in the same manner as claimed, i.e. the susceptor would have an average temperature of 95° to 125°C or a maximum temperature of 105°C to 150°C when the packaged frozen rice is heated in a microwave oven. The claim does not specify any particular materials and/or configuration of the claimed generic susceptor.
Further regarding Claim 1, the limitations “wherein the susceptor having an average temperature of 95°C to 125°C or a maximum temperature of 105°C to 150°C when the packaged frozen rice is heated in a microwave oven of 700 W for 6 minutes and the average temperature or maximum temperature is measured in the heating process” are intended use limitations and as such are obvious in view of the obviousness rejections above. However, in the event that it can be argued that the susceptor of modified El-Afandi et al. is not capable of reaching the claimed average temperature range and/or the claimed maximum temperature range, Gilpatrick et al. discloses a microwavable package (construct 100) comprising a food product wherein the microwavable package (construct 100) comprises a susceptor (susceptor 106) (‘110, Paragraph [0022]) that can withstand a high temperature to reach a surface temperature between about 250°F (121°C) and 300°F (149°C) wherein the susceptor generates heat a predetermined profile in the presence of microwave energy to maintain its temperature (‘110, Paragraph [0029]), which overlaps the claimed susceptor average temperature and maximum temperature.
Both modified El-Afandi et al. and Gilpatrick et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the susceptor of modified El-Afandi et al. and construct the susceptor to have an average temperature and/or a maximum temperature within the claimed range as taught by Gilpatrick et al. since where the claimed susceptor average temperature and/or maximum temperature ranges overlaps susceptor average temperature and/or maximum temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the susceptor average temperature and/or maximum temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such susceptor average temperature and/or maximum temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Although the claim specifies the power and duration of heating in the microwave, one of ordinary skill in the art would adjust the properties of the susceptor to be capable of withstanding high cooking temperatures.
Regarding Claim 12, El-Afandi et al. discloses the package comprising a susceptor (‘835, Paragraph [0008]) in contact with frozen rice (‘835, Paragraph [0051]). Resurreccion Jr. et al. discloses the susceptor (susceptor 27) being positioned on a bottom (at interior surface 13 of at least the bottom wall 21) (‘044, Paragraph [0025]) of the food (‘044, Paragraph [0027]).
Regarding Claim 13, Kohlwey discloses a raw material of the rice comprising white rice or brown rice (‘055, Column 2, lines 34-43).
Both modified El-Afandi et al. and Kohlwey are directed towards the same field of endeavor of rice products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the rice product of modified El-Afandi et al. and use a raw material of white raw or brown rice as taught by Kohlwey since the selection of a known material (rice derived from white rice or brown rice) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Kohlwey discloses there was known utility in the food art to incorporate use white rice or brown rice as a starting raw material in processing rice. One of ordinary skill in the art would adjust the ingredients added to the frozen rice of modified El-Afandi et al., e.g. use white rice or black rice based upon the desired food ingredients by a particular consumer.
Regarding Claim 14, the limitations “wherein the frozen rice is mixed with other food ingredients after being cooked” are intended use limitations. In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. One of ordinary skill in the art is capable of cooking the frozen rice and then mixing the cooked frozen rice with other food ingredients after being cooked.
Regarding Claim 16, the limitations “wherein the susceptor has an average temperature of 98°C to 125°C when the packaged frozen rice is heated in the microwave oven of 700 W for 6 minutes and the average temperature is measured in the heating process” are intended use limitations. In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The claim does not specify the temperature at which the microwave oven is heated to. The susceptor of the microwavable packaged frozen rice of modified El-Afandi et al. would be capable of reaching the claimed susceptor average temperature and/or maximum temperature when the microwave oven supplies enough power to the packaged frozen rice during cooking. Since modified El-Afandi et al. teaches the claimed microwavable packaged frozen rice comprising a susceptor and frozen rice, one of ordinary skill in the art would expect the generic susceptor of modified El-Afandi et al. to behave in the same manner as claimed, i.e. the susceptor would have an average temperature of 85° to 130°C when the packaged frozen rice is heated in a microwave oven of 700 W for 6 minutes wherein the average temperature is measured in the heating process. The claim does not specify any particular materials and/or configuration of the claimed generic susceptor. Furthermore, Gilpatrick et al. discloses a microwavable package (construct 100) comprising a food product wherein the microwavable package (construct 100) comprises a susceptor (susceptor 106) (‘110, Paragraph [0022]) that can withstand a high temperature to reach a surface temperature between about 250°F (121°C) and 300°F (149°C) wherein the susceptor generates heat a predetermined profile in the presence of microwave energy to maintain its temperature (‘110, Paragraph [0029]), which overlaps the claimed susceptor average temperature and maximum temperature.
Both El-Afandi et al. and Gilpatrick et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the susceptor of El-Afandi et al. and construct the susceptor to have an average temperature and/or a maximum temperature within the claimed range as taught by Gilpatrick et al. since where the claimed susceptor average temperature and/or maximum temperature ranges overlaps susceptor average temperature and/or maximum temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the susceptor average temperature and/or maximum temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such susceptor average temperature and/or maximum temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Although the claim specifies the power and duration of heating in the microwave, one of ordinary skill in the art would adjust the properties of the susceptor to be capable of withstanding high cooking temperatures.
Regarding Claim 19, El-Afandi et al. discloses susceptors being used as one or more layers forming at least a portion of a laminate (‘835, Paragraph [0026]). Erle discloses standard susceptor materials typically include a substrate upon which a coating for absorption of microwave radiation is deposited or laminated wherein most standard susceptors include a paper substrate with a thin layer of aluminum deposited thereon (‘036, Paragraph [0071]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the susceptor of the food package of modified El-Afandi et al. and coat the susceptor laminate with aluminum metal as taught by Erle since the selection of a known material (frozen rice comprising beans) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Erle discloses there was known utility in the microwavable food packaging art to incorporate a coating of aluminum metal on the susceptor.
Regarding Claim 21, El-Afandi et al. discloses the microwavable frozen packaged frozen rice comprising a container (pouch 12) containing the frozen rice (‘835, Paragraphs [0050]-[0051]) and the container containing a susceptor (‘835, Paragraph [0026]). Resurreccion Jr. et al. discloses the susceptor (susceptor 27) being coated on an inner surface of the container (at interior surface 13 of at least the bottom wall 21) (‘044, Paragraph [0025]) containing the food (‘044, Paragraph [0027]).
Regarding Claim 25, Kohlwey discloses a method of producing improved dehydrated rice comprising the steps of hydration to raise the moisture content of the rice from an initial 8%-15% to a final content of about 60% to 70% by weight which moisture content is raised above 60% to enable the rice grains to be more resistant to any browning from high temperatures and reduce the temperature at which glassification occurs (‘055, Column 6, lines 1-13) wherein the hydrating can occur to any desired preselected moisture content below 60% and then gelatinizing and glassifying rice in one step (‘055, Column 7, lines 35-44). Kohlwey also discloses a particular embodiment wherein the rice grains have a 50% moisture content (‘055, Column 7, lines 45-50), which is close to but does not overlap the claimed moisture content of 48 wt% or more and less than 49 wt%.
Both modified El-Afandi et al. and Kohlwey are directed towards the same field of endeavor of frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content of the rice of modified El-Afandi et al. to fall within the claimed rice moisture content as taught by Kohlwey since a prima facie case of obviousness exists where the claimed rice moisture content ranges do not overlap with the prior art but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.). Furthermore, Kohlwey teaches a broader desired preselected moisture content below 60% and then gelatinizing and glassifying rice in one step (‘055, Column 7, lines 35-44), which overlaps the claimed moisture content range of 48 wt% or more and less than 49 wt%. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content of the rice of modified El-Afandi et al. as taught by Kohwley since where the claimed rice moisture content ranges overlaps rice moisture content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the rice moisture content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such rice moisture content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Kohlwey teaches that it is obvious to hydrate the rice to any desired preselected moisture content below 60% (‘055, Column 7, lines 35-38).
Regarding Claim 29, El-Afandi et al. disclose a microwavable packaged (pouch 12) (‘835, Paragraphs [0025] and [0050]) frozen rice (‘835, Paragraph [0051]) comprising a susceptor (‘835, Paragraphs [0026] and [0039]) and frozen rice (‘835, Paragraph [0051]).
El-Afandi et al. is silent regarding the frozen rice having a volume ratio (volume/area) to a contact area with the susceptor of 20 mm to 30 mm.
Erle discloses a microwavable packaged frozen rice comprising a susceptor (‘036, Paragraph [0051]) (‘036, Table 1) (‘036, Paragraphs [0106] and [0111]). The package (microwavable package 28) contains the susceptor on the bottom and along the cylindrical wall of the package microwavable package 28) wherein the composite susceptor is provided on about 50% to 100% of a total surface area of the package (microwavable package 28) (‘036, Paragraph [0092]) and the microwavable food having different geometric shapes (‘036, Paragraph [0053]). Resurreccion Jr. et al. discloses a microwavable package comprising a food item and susceptors wherein each food item is in contact with and/or in close proximity to a susceptor on multiple sides wherein an insert increases and/or optimizes the amount of surface area of the food items in contact with a susceptor to help with browning and/or crisping additional surfaces of the food item (‘044, Paragraph [0034]).
El-Afandi et al., Erle, and Resureccion Jr. et al. are all directed towards the same field of endeavor of microwavable packaged food product comprising a susceptor. Erle discloses the microwavable food having different geometric shapes (‘036, Paragraph [0036]), which necessarily has different ratios of surface area to volume as evidenced by Mehnert et al. that changing the shape of an article influences the ratio of surface area to volume (‘354, Paragraph [0102]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable packaged frozen rice of El-Afandi et al. and adjust the volume ratio to contact area with the susceptor since differences in the volume ratio to contact area with the susceptor of the microwavable packaged frozen rice will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such volume ratio to contact area with the susceptor of the microwavable packaged frozen rice is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the volume ratio to contact area with the susceptor of El-Afandi et al. by adjusting the surface area that the susceptor covers the package as taught by Erle and Resurreccion Jr et al. based upon the desired degree of browning and crispness of the food product (‘036, Paragraphs [0028], [0048], and [0083]) (‘044, Paragraph [0034]). Additionally, the disclosure of Erle that the microwavable food has different shape (‘036, Paragraph [0036]) necessarily results in different volume/surface area ratio as evidenced by Mehnert et al. (‘354, Paragraph [0102]).
Further regarding Claim 29, El-Afandi et al. is silent regarding the frozen rice having a scorched texture characterized by a color difference according to the CIE Lab of 3.1 to 15 when heating the packaged frozen rice in a microwave oven as compared with when heating packaged frozen rice without the susceptor under the same condition.
Resurreccion Jr. et al. discloses a microwavable package comprising a food item and susceptors wherein each food item is in contact with and/or in close proximity to a susceptor on multiple sides wherein an insert increases and/or optimizes the amount of surface area of the food items in contact with a susceptor to help with browning and/or crisping additional surfaces of the food item (‘044, Paragraph [0034]) when exposed to microwave energy in a microwave oven (‘044, Paragraph [0036]). The disclosure of a susceptor helping with browning surfaces of a food item indicates that there is a color difference when heating the microwavable package in a microwave oven.
Both El-Afandi et al. and Resurreccion Jr. et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. Although Resurreccion Jr. et al. does not explicitly discuss the degree to which browning occurs to allow for a color difference that falls within the claimed range of 3.1 to 15 according to the CIE Lab when heating the packaged frozen rice in the microwave oven as compared with when heating packaged frozen rice without the susceptor under the same condition, differences in the degree of color different when heating the packaged frozen rice in the microwave oven as compared with when heating the packaged frozen rice without a susceptor under the same conditions will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such color difference of the frozen rice when heating the packaged frozen rice in the microwave oven is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the surface area contact between the food item and susceptor of El-Afandi et al. and microwave the food item disposed therein based upon the desired degree of browning of the food item as suggested by Resurreccion Jr. et al. It is noted that the claims recite a generic susceptor disposed within the microwavable food package. The claims do not require any particular surface covering area within the microwavable food package or the material(s) from which the susceptor is made and/or the thickness of the susceptor, which would also influence the color difference of the food time when microwaving. It is also noted that the claims do not specify the power wattage of the microwave oven used when heating and/or the heating times of the microwave oven, which would also influence the color difference of the food item when microwaving.
Further regarding Claim 29, El-Afandi et al. discloses the edible product including a moisture content of at least 15 percent (‘835, Paragraph [0005]). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. is silent regarding the frozen rice having a moisture content of 48 wt% to 52 wt% in particular.
Kohlwey discloses a method of producing improved dehydrated rice comprising the steps of hydration to raise the moisture content of the rice from an initial 8%-15% to a final content of about 60% to 70% by weight which moisture content is raised above 60% to enable the rice grains to be more resistant to any browning from high temperatures and reduce the temperature at which glassification occurs (‘055, Column 6, lines 1-13) wherein the hydrating can occur to any desired preselected moisture content below 60% and then gelatinizing and glassifying rice in one step (‘055, Column 7, lines 35-44). Kohlwey also discloses a particular embodiment wherein the rice grains have a 50% moisture content (‘055, Column 7, lines 45-50), which falls within the claimed rice moisture content of 48 wt% to 52 wt%.
Both modified El-Afandi et al. and Kohlwey are directed towards the same field of endeavor of frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content of the rice of modified El-Afandi et al. to fall within the claimed rice moisture content as taught by Kohlwey since where the claimed rice moisture content overlaps rice moisture content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the rice moisture content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such rice moisture content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Kohlwey teaches that it is obvious to hydrate the rice to any desired preselected moisture content below 60% (‘055, Column 7, lines 35-38).
Further regarding Claim 29, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey is silent regarding the frozen rice having an oil content of at 2.6 wt% to 6 wt%.
Yamamoto et al. discloses a frozen food product containing boiled rice grains as a major ingredient wherein frozen rice is obtained by individual quick freezing (‘312, Column 3, lines 24-35) wherein 5% by weight or less olive oil is added to boiled cooked rice and freezing to obtain frozen rice (‘312, Column 7, lines 7-25), which overlaps the claimed frozen rice oil content of at 2.6 wt% to 6 wt%. The frozen rice is packaged in a microwavable package (‘312, Column 13, lines 34-62).
Both modified El-Afandi et al. and Yamamoto et al. are directed towards the same field of endeavor of microwavable packaged frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable packaged frozen rice of modified El-Afandi et al. and adjust the oil content of the frozen rice to fall within the claimed oil content range of 2.6 wt% to 6 wt% as taught by Yamamoto et al. since where the claimed oil content range overlaps oil content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Zukerman discloses a packaged frozen rice (‘295, Column 3, lines 54-73) wherein the rice is precoated with a vegetable oil to control the water absorption rate by controlling the degree of broken rice cells (‘295, Column 2, lines 59-67). It also would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaged frozen rice of El-Afandi et al. and adjust the oil content of the frozen rice to the claimed oil content range of 2.6 wt% to 6 wt% since differences in the concentration of oil content of the frozen rice will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of oil content of the frozen rice is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the oil content of the frozen rice of modified El-Afandi et al. based upon the desired degree of water absorption rate as taught by Zukerman.
Further regarding Claim 29, Yamamoto et al. discloses the frozen rice comprising emulsified oil or fat (‘312, Column 13, lines 16-33). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey and Yamamoto et al. is silent regarding the emulsifier to be lecithin and the content of lecithin in the frozen rice to be 0.62 wt% to 0.68 wt%.
Masuda et al. discloses frozen rice (‘037, Paragraph [0007]) comprising a coating of fat or oil (‘037, Paragraph [0006]) and emulsifier wherein the emulsifier includes a combination of two or more kinds including lecithin and polyglycerol esters of fatty acids (‘037, Paragraph [0009]) in order to improve the adhesion efficiency of the emulsifier to foods (‘037, Paragraph [0010]) wherein the amount of the emulsifier added fat or oil added to the food is not limited because the amount differs depending upon the desired food material wherein the amount of emulsifier added is from 0.5 to 5 parts by weight based on 100 parts by weight of the food (‘037, Paragraph [0013]), which overlaps the claimed lecithin content range of 0.62 wt% to 0.68 wt%.
Both modified El-Afandi et al. and Masuda et al. are directed towards the same field of endeavor of packaged frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice of modified El-Afandi et al. and use lecithin as the emulsifier of the frozen rice as taught by Masuda et al. since the selection of a known material (frozen rice) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Masuda et al. discloses there was known utility in the food art to incorporate lecithin as an emulsifier into frozen rice. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice of modified El-Afandi et al. and incorporate lecithin in the claimed amounts as taught by Masuda et al. since where the claimed lecithin content ranges overlaps lecithin content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the lecithin content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such lecithin content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.).
Further regarding Claim 29, El-Afandi et al. discloses the package comprising a susceptor for facilitating browning of the edible product (‘835, Paragraph [0039]) wherein the edible product is rice (‘835, Paragraph [0051]). However, El-Afandi et al. modified with Erle and Resureccion Jr. et al. as further evidenced by Mehnert et al. in further view Kohlwey, Yamamoto et al., and Masuda et al. is silent regarding the frozen rice having a scorched texture.
Zenkimchi discloses frozen scorched rice comprising oil (Zemkimchi, Pages 2 and 4).
Both modified El-Afandi et al. and Zenkimchi are directed towards the same field of endeavor of frozen rice compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice composition of modified El-Afandi et al. and make the packaged frozen rice have a scorched texture as taught by Zenkimchi based upon the desired mouthfeel of the rice for a particular consumer.
Further regarding Claim 29, the limitations “wherein the susceptor has an average temperature of 95°C to 98°C or a maximum temperature of 112°C to 135°C when the packaged frozen rice is heated in a microwave oven of 700 W for 6 minutes and the average temperature or maximum temperature is measured in the heating process” are intended use limitations. In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. The claim does not specify the temperature at which the microwave oven is heated to. The susceptor of the microwavable packaged frozen rice of modified El-Afandi et al. would be capable of reaching the claimed susceptor average temperature and/or maximum temperature when the microwave oven supplies enough power to the packaged frozen rice during cooking. Since modified El-Afandi et al. teaches the claimed microwavable packaged frozen rice comprising a susceptor and frozen rice, one of ordinary skill in the art would expect the generic susceptor of modified El-Afandi et al. to behave in the same manner as claimed, i.e. the susceptor would have an average temperature of 95° to 98°C or a maximum temperature of 112°C to 135°C when the packaged frozen rice is heated in a microwave oven. The claim does not specify any particular materials and/or configuration of the claimed generic susceptor.
Further regarding Claim 29, the limitations “wherein the susceptor having an average temperature of 95°C to 68°C or a maximum temperature of 112°C to 135°C when the packaged frozen rice is heated in a microwave oven of 700 W for 6 minutes and the average temperature or maximum temperature is measured in the heating process” are intended use limitations and as such are obvious in view of the obviousness rejections above. However, in the event that it can be argued that the susceptor of modified El-Afandi et al. is not capable of reaching the claimed average temperature range and/or the claimed maximum temperature range, Gilpatrick et al. discloses a microwavable package (construct 100) comprising a food product wherein the microwavable package (construct 100) comprises a susceptor (susceptor 106) (‘110, Paragraph [0022]) that can withstand a high temperature to reach a surface temperature between about 250°F (121°C) and 300°F (149°C) wherein the susceptor generates heat a predetermined profile in the presence of microwave energy to maintain its temperature (‘110, Paragraph [0029]), which overlaps the claimed susceptor average temperature and maximum temperature.
Both modified El-Afandi et al. and Gilpatrick et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the susceptor of modified El-Afandi et al. and construct the susceptor to have an average temperature and/or a maximum temperature within the claimed range as taught by Gilpatrick et al. since where the claimed susceptor average temperature and/or maximum temperature ranges overlaps susceptor average temperature and/or maximum temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the susceptor average temperature and/or maximum temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such susceptor average temperature and/or maximum temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.). Although the claim specifies the power and duration of heating in the microwave, one of ordinary skill in the art would adjust the properties of the susceptor to be capable of withstanding high cooking temperatures.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Pinski et al. US 2005/0226986 or alternatively Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Pinski et al. US 2005/0226986.
Regarding Claim 7, El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the frozen rice containing an oil in a content of 0.5 parts by weight to 22 parts by weight based on 100 parts by weight of a moisture content.
Pinski et al. discloses a food composition comprising a food sauce (‘986, Paragraph [0002]) that is packaged (‘986, Paragraph [0030]) comprising obtaining desired ratios of oil to water while the food sauce base is heat stable, i.e. able to be cycled form refrigerated temperature or ambient temperature to cooking temperature and back without churning out or creaming and exhibiting freeze thaw ability without churning out or creaming (‘986, Paragraph [0019]). It is noted that applicant discloses an embodiment wherein the microwavable packaged frozen rice is combined with a seasoning sauce (Specification, Paragraph [40]).
El-Afandi et al. discloses the frozen food package containing rice and sauce (‘835, Paragraph [0051]). Both modified El-Afandi et al. and Pinski et al. are directed towards the same field of endeavor of frozen packaged foods containing at least a sauce. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaged frozen food sauce of modified El-Afandi et al. adjust the oil to moisture/water ratio of the food sauce since differences in the oil to moisture/water ratio of the frozen food product will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such oil to moisture/water ratio of the frozen food is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Pinski et al. teaches obtaining desired ratios of oil to water while the food sauce base is heat stable, i.e. able to be cycled form refrigerated temperature or ambient temperature to cooking temperature and back without churning out or creaming and exhibiting freeze thaw ability without churning out or creaming (‘986, Paragraph [0019]).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Zukerman US 3,961,087 (herein referred to as “Zukerman ‘087”) or alternatively Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Zukerman US 3,961,087 (herein referred to as “Zukerman ‘087”).
Regarding Claim 7, El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the content of oil in the frozen rice being 0.5 parts by weight to 22 parts by weight based on 100 parts by weight of a moisture content.
Zukerman ‘087 discloses 100 pounds of broken grain rice prepared by heating then adding to a cooking kettle containing 375 pounds of water and 2.5 pounds of vegetable oil (‘087, Column 4, lines 46-61). Normalizing 375 pounds of water and 2.5 pounds of vegetable oil by dividing both amounts by 3.75, Zukerman ‘087 discloses 0.667 parts by weight vegetable oil in the rice based on 100 parts by weight of the moisture/water, which falls within the claimed concentration of oil to moisture/water ratio of the rice of 0.5 parts by weight to 22 parts by weight oil based on 100 parts by weight of the moisture/water.
Both modified El-Afandi et al. and Zukerman ‘087 are directed towards the same field of endeavor of rice compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil to moisture/water ratio concentration of the frozen rice of modified El-Afandi et al. to fall within the claimed oil to moisture/water ratio as taught by Zukerman ‘087 since where the claimed oil to moisture/water ratio concentration ranges overlaps oil to moisture/water ratio concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Rudie et al. US 10,278,779 and Zukerman et al. US 4,764,390 (herein referred to as “Zukerman ‘390”) or alternatively Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Rudie et al. US 10,278,779 and Zukerman et al. US 4,764,390 (herein referred to as “Zukerman ‘390”).
Regarding Claim 8, El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the frozen rice having a cylindrical shape.
Rudie et al. discloses individual grains of rice have a cylindrical shape with rounded ends (‘779, Column 17, lines 12-13). Zukerman et al. ‘390 discloses a shaped rice and/or grain food product suitable for cooking in a microwave oven (‘390, Column 2, lines 41-48) wherein the shaped rice product is packaged and frozen (‘390, Column 8, lines 28-43) and the shaped rice product is cooked and extruded into a cylindrical shape (‘390, Column 5, lines 8-15).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the shape of the individual grains of rice of modified El-Afandi et al. to be cylindrical in shape as taught by Rudi et al. and/or produce a frozen and packaged shaped rice food product suitable for cooking in a microwave oven wherein the shaped rice product is cylindrical in shape as taught by Zukerman et al. ‘390 since the configuration of the claimed individual rice grains and/or the claimed shaped rice product is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed individual grains of rice and/or the entire rice product was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055,, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Birchmeier et al. US 2019/0002183 or Seaborne US 4,825,024 or alternatively Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Birchmeier et al. US 2019/0002183 or Seaborne US 4,825,024.
Regarding Claim 11, El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the frozen rice contacting the susceptor on only one surface of the frozen rice.
Birchmeier et al. discloses a packaged food comprising one or more susceptor materials provided on one or both sides of the package to be positioned above, below, or both above and below the food product (‘183, Paragraph [0040]).
Alternatively, Seaborne discloses a microwavable food package comprising microwave heating susceptors (‘024, Column 1, lines 16-22) wherein the food is heated from only one side by use of a heating susceptor panel (‘024, FIGS. 3-5) (‘024, Column 9, lines 15-24).
PNG
media_image1.png
326
1611
media_image1.png
Greyscale
Modified El-Afandi et al., Birchmeier et al., and Seaborne are all directed towards the same field of endeavor of microwavable food packages comprising a susceptor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food package of modified El-Afandi et al. and construct the food item to be disposed within the food package such that the food item contacts the susceptor on only one surface of the food item as taught by Birchmeier et al. or Seaborne since the configuration of the claimed susceptor within the food package is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence indicating such configuration of the susceptor within the food package is significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055,, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of “Re-heating frozen rice” <https://www.mumsnet.com/talk/food_and_recipes/1050788-Re-heating-frozen-rice> (published September 28, 2010) or alternatively Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of “Re-heating frozen rice” <https://www.mumsnet.com/talk/food_and_recipes/1050788-Re-heating-frozen-rice> (published September 28, 2010).
Regarding Claim 14, El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. renders obvious the intended use limitations “wherein the frozen rice is mixed with other food ingredients after being cooked” as discussed in the obviousness rejections of Claim 14 provided above. However, in the event that applicant can argue that the microwavable food package of modified El-Afandi et al. is not capable of the frozen rice being mixed with other food ingredients after being cooked, Re-heating frozen rice discloses a method of heating frozen rice (frozen rice) in a microwave then mixing with other food ingredients after being cooked (“add a little stock or cream when reheating”). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of using the microwavable food package of modified El-Afandi et al. and mix the frozen rice after being cooked by adding a little stock or cream as taught by Re-heating frozen rice since the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Hewitt et al. US 4,992,638 or alternatively Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Hewitt et al. US 4,992,638.
Regarding Claim 15, El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the frozen rice comprising fried rice.
Hewitt et al. discloses a microwavable package (‘638, Column 9, lines 49-59) comprising frozen fried rice (‘638, Column 7, lines 18-23).
Both modified El-Afandi et al. and Hewitt et al. are directed towards the same field of endeavor of microwavable frozen rice. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable frozen rice of modified El-Afandi et al. and incorporate frozen fried rice into the microwavable food package as taught by Hewitt et al. since the selection of a known material (frozen rice comprising beans) based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Hewitt et al. discloses there was known utility in the food art to dispose frozen fried rice into a microwavable food package comprising a susceptor. One of ordinary skill in the art would adjust the ingredients added to the frozen rice of modified El-Afandi et al., e.g. make the frozen rice a frozen fried rice, based upon the desired mouthfeel by a particular consumer.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Zeng et al. US 2008/0035634 or alternatively Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Zeng et al. US 2008/0035634.
Regarding Claim 18, El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al. Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding a shape of the susceptor comprising a polygon shape.
Zeng et al. discloses a microwavable food package comprising a susceptor (microwave energy interactive structure 100) and food (‘634, Paragraph [0032]) wherein the susceptor has a polygonal (hexagonal) shape or has any other suitable shape (‘634, Paragraph [0008]).
Both modified El-Afandi et al. and Zeng et al. are directed towards the same field of endeavor of microwavable food packages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable food package of modified El-Afandi et al. and construct the susceptor with a polygonal shape as taught by Zeng et al. since the configuration of the claimed susceptor is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed susceptor was significant in view of In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (MPEP § 2144.04.IV.B.).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of De La Cruz et al. US 5,416,304 or alternatively Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of De La Cruz et al. US 5,416,304.
Regarding Claim 20, El-Afandi et al. discloses the microwavable frozen packaged frozen rice comprising a container (pouch 12) containing the frozen rice (‘835, Paragraphs [0050]-[0051]) and the container containing a susceptor (‘835, Paragraph [0026]). However, El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al. Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding the susceptor being in the form to be separated from the container.
De La Cruz et al. discloses a packaged frozen rice (‘304, Column 5, lines 33-44) comprising a removable susceptor (‘304, Column 5, lines 9-17).
Both modified El-Afandi et al. and De La Cruz et al. are directed towards the same field of endeavor of microwavable food packages comprising a susceptor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the microwavable food package of modified El-Afandi et al. and construct the susceptor to be in the form to be separated/removable from the container as taught by De La Cruz et al. since if it were considered desirable for any reason to obtain access to the susceptor attached to the container containing the food, it would be obvious to make the susceptor separable and removable from the container containing the food for that purposes in view of In re Dulberg, 289 F.2d 522, 523, 129 USPQ 348, 349 (CCPA 1961) (MPEP § 2144.04.V.C.).
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Suzuki et al. US 2017/0303568 or alternatively Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”), and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Suzuki et al. US 2017/0303568.
Regarding Claim 26, El-Afandi et al. in view of Erle, Resurreccion Jr et al., Kohlwey, Yamamoto et al., Zukerman et al., Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. is silent regarding a ratio of the oil to the lecithin to be 37.71 or more.
Suzuki et al. discloses a rice composition containing an oil and fat composition containing lecithin (‘568, Paragraph [0014]) wherein the content of the lecithin in the oil and fat composition for rice cooking is 0.1% to 3% by mass (‘568, Paragraph [0024]), which converts to a ratio of oil to lecithin of 33.3:1 to 1000:1, which overlaps the claimed ratio of oil to lecithin of 37.71 or more.
Both modified El-Afandi et al. and Suzuki et al. are directed towards the same field of endeavor of rice compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the rice composition of modified El-Afandi et al. and incorporate oil and lecithin in the claimed ratio of oil to lecithin ratio as taught by Suzuki et al. since where the claimed ratio of oil to lecithin in rice content overlaps ratios of oil to lecithin in rice ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.). Furthermore, differences in the ratio of oil to lecithin will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such oil to lecithin is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.I.).
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Chapman “Make Your Own Frozen Brown Rice Packs” <https://www.9010nutrition.com/make-your-own-frozen-brown-rice-packs/> (published April 18, 2018) (herein referred to as “Chapman”) and Trivuncic “20 Minutes Paella Quick Recipe with Frozen Ingredients” <https://maisoncupcake.com/twenty-minute-paella-iceland-frozen-fish/> (published March 31, 2017) (herein referred to as “Trivuncic”) or alternatively Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over El-Afandi et al. US 2016/0023835 in view of Erle US 2014/0113036 and Resurreccion Jr. et al. US 2017/0107044 as further evidenced by Mehnert et al. US 2018/0133354 in further view of Kohlwey US 4,649,055, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, Gilpatrick et al. US 2019/0248110, and Zenkimchi “Nurungji (Scorched Rice) Chips” <https://zenkimchi.com/top-posts/nurungji-scorched-rice-chips/> (published August 3, 2011) (herein referred to as “Zenkimchi”) as applied to claim 1 above in further view of Chapman “Make Your Own Frozen Brown Rice Packs” <https://www.9010nutrition.com/make-your-own-frozen-brown-rice-packs/> (published April 18, 2018) (herein referred to as “Chapman”) and Trivuncic “20 Minutes Paella Quick Recipe with Frozen Ingredients” <https://maisoncupcake.com/twenty-minute-paella-iceland-frozen-fish/> (published March 31, 2017) (herein referred to as “Trivuncic”).
Regarding Claim 28, El-Afandi et al. in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al. in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Gilpatrick et al., and Zenkimchi is silent regarding the amount of frozen rice in the microwavable packaged frozen rice being at least 200 g.
Chapman discloses a frozen rice package divided into whatever size packs works for your family (Chapman, Page 6).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the frozen rice packaged in the microwavable package of modified El-Afandi et al. since differences in the amount of frozen rice in the microwavable package will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of frozen rice in the microwavable package is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of frozen rice packaged in the microwavable package of modified El-Afandi et al. since Chapman teaches dividing the frozen rice package into whatever size packs works for your family.
Further regarding Claim 28, although El-Afandi et al. in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Chapman or alternatively El-Afandi et al. in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Gilpatrick et al., Zenkimchi, and Chapman does not explicitly teach the amount of frozen rice in the microwavable packaged frozen rice being at least 200 g, Trivuncic discloses 200 g frozen steam rice bags (Trivuncic, Page 9), which encompasses the claimed amount of frozen rice in the microwavable packaged frozen rice being at least 200 g.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of frozen rice in the microwavable packaged frozen rice of modified El-Afandi et al. to be at least 200 g as taught by Trivuncic since where the claimed amount of frozen rice in the microwavable packaged frozen rice overlaps the amount of frozen rice in the microwavable packaged frozen rice ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.04.I.).
Response to Arguments
Applicant’s arguments with respect to the previous new matter rejection under 35 USC 112(a) have been fully considered and are persuasive. Applicant contends on Page 6 of the Remarks that Tables 2 and 4 of the instant specification provides support for the limitations of Claims 1 and 26 of a content of lecithin of 0.06 wt% to 0.68 wt% and a ratio of oil to the lecithin of 37.71 or more and that Claim 22 has been canceled rendering the rejection to this claim moot. These arguments are found persuasive. Tables 2 and 4 of the instant specification provides adequate written description support at the time of filing for the lecithin content recited in Claim 1 as well as the ratio of oil to lecithin recited in Claim 26 (Example 8 of Table 4) teaches the claimed ratio of oil to lecithin). The previous new matter rejections under 35 USC 112(a) have been withdrawn.
Applicant’s arguments with respect to the obviousness rejection(s) of Claim 1 under 35 USC 103(a) that relies upon the secondary reference of Kuntz to teach the previous claim limitation of the frozen rice having a moisture content of 48 wt% to 56 wt% as now recited have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. Applicant argues on Pages 8-9 of the Remarks that Kuntz teaches that the moisture content below 55% causes the rice to become too firm (‘295, Column 1, lines 63-68). However, upon further consideration, a new ground(s) of rejection is made in view of the secondary reference Kohlwey. Kohlwey renders obvious the newly presented moisture content range recited in Claim 1. Claim 1 has been amended to recite a new frozen rice moisture content range of 48 wt% to 53 wt%, which frozen rice moisture content range was not previously considered.
Applicant's arguments filed June 9, 2026 with respect to the obviousness rejection under 35 USC 103(a) to El-Afandi et al in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., and Zenkimchi or alternatively El-Afandi et al in view of Erle and Resurreccion Jr. et al. as further evidenced by Mehnert et al. in further view of Kohlwey, Yamamoto et al., Zukerman, Masuda et al., Zenkimchi, and Gilpatrick et al. have been fully considered but they are not persuasive.
Applicant argues on Page 9 of the Remarks that Yamamoto’s technical feature of mixing oil into rice is to form a water migration preventing layer thereby separating the rice grains from sauce and improving the overall texture, i.e. sticky. Applicant concludes that one of ordinary skill in the art would have no reasonable expectation of success in achieving a scorched texture in the frozen rice.
Examiner argues the primary reference of El-Afandi et al. already teaches a packaged rice (‘835, Paragraph [0051]) wherein the package comprises a susceptor for browning the edible product therein (‘835, Paragraph [0026]). The secondary reference of Zemkimchi is being relied upon to teach a rice having a scorched texture. The secondary reference of Yamamoto is not being relied upon to teach the limitations regarding the scorched texture. Instead, Yamamoto is being relied upon to render obvious the limitations regarding the claimed concentration of oil in the rice. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Additionally, the secondary reference of Zenkimchi teaches a frozen rice comprising oil having a scorched texture. Furthermore, Claim 1 recites the transitional phrase “comprising,” which is inclusive or open ended and does not exclude additional, unrecited elements in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). Claim 1 does not specify any sticky/non-sticky properties of the claimed rice. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 9-10 of the Remarks that the claimed range of a volume ratio (volume/area) to a contact area with the susceptor (i.e. 20 mm to 30 mm) has unexpected superior results. Applicant contends that Table 1 of the instant specification shows that when the volume ratio is too low, i.e. Example 1 volume ratio of 15) the rice is burned and loses its commercial value and when the volume ratio is conversely too high, i.e. Example 3 volume ratio of 55, the heat transfer efficiency decreases making it difficult to achieve a scorched texture.
Examiner argues to establish unexpected results over a claimed range, applicants should compare a sufficient number of testes both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Not enough data points have been provided to ascertain whether the alleged unexpected results would hold near the upper and lower bounds of the claimed range, e.g. additional data points should be provided below the claimed range, e.g. 18 mm, additional data points should be provided above the claimed range, e.g. 35 mm, and additional data points should be provided within the claimed range, e.g. 22 mm and 28 mm. Therefore, applicant’s allegations of unexpected results has not been sufficient to overcome the prima facie case of obviousness. Applicant should provide more data points to support their position of unexpected results over the claimed volume ratio range in the context of higher color difference and therefore better browning. Furthermore, Table 1 shows data within the claimed volume ratio (Example 2) and above the claimed volume ratio (Example 3) wherein Examples 2-3 both contain a color difference according to the CIE Lab of 3.1 to 15 when heating the packaged frozen rice in a microwave (Example 2 has a color difference of 13.44) (Example 3 has a color difference of 5.10). Furthermore, the data in Table 1 is unclear. Comparative Examples 2-3 both do not contain a susceptor. However, Comparative Examples 2-3 both have lower susceptor maximum temperatures and susceptor average temperatures lower than that of Examples 2-3. However, it is unclear how Comparative Examples 2-3 can have susceptor temperatures when neither Comparative Examples 2-3 contain a susceptor.
Examiner notes that applicant’s comments on Pages 10-11 of the Remarks with respect to the claimed moisture content of Claim 25 are moot since Kuntz et al. is no longer being relied upon in the current rejection, which was necessitated by amendment since Claim 1 recites a new moisture content range.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Moncel “How to: Freeze Rice” <https://www.budgetbytes.com/how-to-freeze-rice/> (published August 12, 2013) discloses frozen rice portioned into amounts you would normally use for one or two meals (Moncel, Step 3 on Page 4).
Wildly Organic “How to Freeze Rice” <https://wildlyorganic.com/blogs/recipes/how-to-freeze-rice?srsltid=AfmBOooUa5YCllH_TWfXaH17g3sAK66lSc0DPP-6NobCZbkgWno161h_> (published August 6, 2018) discloses freezing rice in pre-measured amounts is the best way to keep it on hand and ready to use for whenever you need it wherein rice is stored in food storage bags having a size in relation to the amount of rice you want to store wherein the container is not overstuffed but room is left for the rice to expand slightly (Wildly Organic, Page 3).
Ando et al. US 2011/0217438 discloses a rice manufacturing method comprising the steps of hydrating a dried unhulled rice by a gradual soaking process so as to increase the average moisture content thereof by 20% by weight or higher (‘438, Paragraph [0051]).
Gics US 2006/0292277 discloses a partially hydrated rice product that is greater than 50% hydrated (‘277, Paragraph [0043]).
Baz et al. US 5,089,281 discloses a method of making rice comprising cooking rice in water for a time sufficient to hydrate it to a moisture content of from about 40% to 45% by weight.
Myers et al. US 4,810,519 discloses a method of processing rice comprising the steps of hydrating a rice sample by steeping said rice sample in water at a temperature and for a period of time sufficient for rice to obtain a desired moisture content which permits a desired degree of gelatinization of starch in the rice wherein the rice sample is hydrated to a moisture content in the range of 20% to 50% by weight.
Lewis et al. US 4,810,506 discloses a method of treating grain product wherein pre-hydrated rice is made to a range of moisture contents depending on the variety of rice used and the times and temperatures for steaming.
Rubio et al. US 2016/0175844 discloses the amount of food a person needs to consume varies depending on age, size, and level of physical activity (‘844, Paragraph [0004]).
Bows et al. US 2008/0138480 discloses oil acts as a heat sink that helps prevent scorching and assists with moisture control at the end of a drying process (‘480,Paragraph [0086]).
Sano et al. US 2005/0276902 discloses a method of making cooked rice having egg flavor (‘902, Paragraph [0009]) wherein edible oil prevents the mixture from being scorched (‘902, Paragraph [0017]).
Uchida et al. US 4,963,370 discloses dough that is fried in oil at a moderate temperature until it was scorched.
Ando et al. US 4,166,868 discloses a method of making rice comprising the step of frying in heated edible oil to make a partially scorched rice (‘868, Column 4, lines 3-35).
Roufs et al. US 2013/0064935 discloses microwave puffed products comprising sugars can exhibit scorching due to high microwave absorption by sugars and salt and the low browning or burning temperatures of sugar (‘935, Paragraph [0007]).
Laubhan et al. US 2010/0038359 discloses a method of heating, browning, and/or crisping a food item in a microwave oven (‘359, Paragraph [0002]) wherein a microwave energy interactive material absorbs, transmits, reflects, or directs microwave energy as needed or desired for a particular microwave heating construct and food item wherein the microwave energy interactive element is configured to promote browning and/or crisping of a particular area of the food item, shield a particular area of the food item from microwave energy to prevent scorching or overheating or transmit microwave energy towards or away from a particular area of the food item (‘359, Paragraph [0053]).
The prior art made of record, cited on a previous 892 Notice of References cited, and not relied upon is considered pertinent to applicant's disclosure.
Greethead et al. WO 94/414340 discloses a frozen rice product (‘340, Page 3, lines 12-17) having a moisture content of approximately between 18-80% (‘340, Page 4, lines 5-9) and a particular example wherein the moisture content of the frozen rice is 60% (‘340, Page 14, lines 17-21).
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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 at 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.
/ERICSON M LACHICA/Examiner, Art Unit 1792
Prosecution Insights