DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 11, 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 4, 7-8, 11-16, 18-22, and 25-27 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the limitation “a content of lecithin in the frozen rice if 0.06 wt% to 0.68 wt%” in line 10. There was not adequate written description support at the time of filing for the specific lecithin concentration range of 0.06 wt% to 0.68 wt%.
Claim 22 recites the limitation “wherein the frozen rice includes an additional emulsifier” in lines 1-2. Claim 1 recites the limitation “a frozen rice comprising lecithin” in line 3. Applicant discloses lecithin to be a type of emulsifier (Specification, Paragraph [31]). However, the disclosure at the time of filing does not provide adequate written description support for the frozen rice to contain lecithin emulsifier as well as an additional emulsifier in addition to lecithin emulsifier. The disclosure at the time of filing does not provide adequate written description support for the frozen rice to contain more than one emulsifier. This limitation constitutes new matter.
Claim 26 recites the limitation “wherein a ratio of the oil to the lecithin is 37.71 or more: 1” in lines 1-2. There was not adequate written description support at the time of filing for the particular ratio of oil to lecithin to be 37.71 or more:1. This ratio of oil to lecithin constitutes new matter.
Claims 4, 7-8, 11-16, 18-21, 25, and 27 are rejected as being dependent on a rejected base claim.
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, 4, 12-14, 16, 19, 21-22, and 25 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 or alternatively Claims 1, 4, 12-14, 16, 19, 21-22, and 25 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Gilpatrick et al. US 2019/0248110.
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 16 mm to 45 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 to 30 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 to 30 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 56 wt% in particular.
Kuntz et al. discloses a process for making a frozen rice product comprising hydrating a parboiled rice to a moisture content of about 55-70% then quick cooling the hydrated rice followed by fast freezing the cooked rice (‘295, Column 1, lines 36-48) wherein substantial dehydration of the rice, i.e. loss of more than about 5% of the moisture content of the rice, is avoided during freezing (‘295, Column 2, lines 38-51). Given that the rice is frozen and avoids loss of more than about 5% of the moisture content of the rice, Kuntz et al. teaches the frozen rice having a moisture content of about 50-70%, i.e. 55-70% moisture of the cooked rice minus at most 5% moisture loss after freezing the rice. The disclosure of the frozen rice having a moisture content of about 50-70% overlaps the claimed frozen rice moisture content of 48 wt% to 56 wt%.
Both modified El-Afandi et al. and Kuntz et al. 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 frozen rice of modified El-Afandi et al. to fall within the claimed frozen rice moisture content as taught by Kuntz et al. since where the claimed frozen rice moisture content overlaps frozen 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 frozen rice moisture content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such frozen 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.).
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 Kuntz et al. is silent regarding the frozen rice having an oil content of at least 2 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) or 10% by weight of olive oil is added to boiled rice cooked and freezing to obtain frozen rice (‘312, Column 14, lines 17-32), which overlaps the claimed frozen rice oil content of at least 2 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 at least 2 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 least 2 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 Kuntz et al. 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, 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 4, 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]). 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. 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]).
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, Kuntz et al. discloses microwavable rice (‘295, Column 3, lines 7-9) wherein the microwavable rice is frozen rice comprising beans (‘295, Column 2, lines 60-67).
Both modified El-Afandi et al. and Kuntz 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 add a raw material of beans to the frozen rice as taught by Kuntz 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). Kuntz et al. discloses there was known utility in the food art to incorporate beans into frozen 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. add beans to the frozen 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 22, 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]). 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 package of modified El-Afandi et al. and incorporate an additional emulsifier in addition to lecithin into the frozen rice since the selection of a known material 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. teaches that there was known utility in the food art to incorporate multiple emulsifiers including lecithin into frozen rice.
Regarding Claim 25, Kuntz et al. discloses a process for making a frozen rice product comprising hydrating a parboiled rice to a moisture content of about 55-70% then quick cooling the hydrated rice followed by fast freezing the cooked rice (‘295, Column 1, lines 36-48) wherein substantial dehydration of the rice, i.e. loss of more than about 5% of the moisture content of the rice, is avoided during freezing (‘295, Column 2, lines 38-51). Given that the rice is frozen and avoids loss of more than about 5% of the moisture content of the rice, Kuntz et al. teaches the frozen rice having a moisture content of about 50-70%, i.e. 55-70% moisture of the cooked rice minus at most 5% moisture loss after freezing the rice. The disclosure of the frozen rice having a moisture content of about 50-70% is close to but does not overlap the claimed frozen rice moisture content of 48 wt% or more and less than 49 wt%.
Both modified El-Afandi et al. and Kuntz et al. 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 frozen rice of modified El-Afandi et al. to adjust the moisture content of the frozen rice to be close to the claimed frozen rice moisture content as taught by Kuntz et al. since a prima facie case of obviousness exists where the claimed moisture content ranges or amounts do not overlap 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 § 2144.04.I.). Furthermore, differences in the frozen rice moisture content will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such frozen 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.).
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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, and Zukerman US 3,711,295 as applied to claim 1 above in further view of Rudie et al. US 10,278,779, Zukerman et al. US 4,764,390 (herein referred to as “Zukerman ‘390”), and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. modified with Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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).
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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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman , and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al. Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman, and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al. Zukerman, Masuda et al., 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, 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., Kuntz et al., Yamamoto et al., Zukerman et al. and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., and Gilpatrick et al. is silent regarding a ratio of the oil to the lecithin to be 37.71 or more:1.
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:1.
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 27 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, and Masuda et al. US 2004/0058037 as applied to claim 1 above in further view of Chrisholm “The Good Type of Scorched” <http://www.joinchase.org/2013/06/the-good-type-of-scorched.html> (published June 12, 2013) or alternatively Claim 27 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 Kuntz et al. US 4,308,295, Yamamoto et al. US 6,770,312, Zukerman US 3,711,295, Masuda et al. US 2004/0058037, and Gilpatrick et al. US 2019/0248110 as applied to claim 1 above in further view of Chrisholm “The Good Type of Scorched” <http://www.joinchase.org/2013/06/the-good-type-of-scorched.html> (published June 12, 2013).
Regarding Claim 27, El-Afandi et al. in view of Erle, Resurreccion Jr et al., Kuntz et al., Yamamoto et al., Zukerman et al. and Masuda et al. or alternatively El-Afandi et al. in view of Erle, Resurreccion Jr. et al., Kuntz et al., Yamamoto et al., Zukerman, Masuda et al., and Gilpatrick et al. is silent regarding the microwavable packaged frozen rice having a scorched texture.
Chrisholm discloses nurungji scorched rice (Chrisholm, Page 2) used in a soup that is frozen (Chrisholm, Page 4).
Both modified El-Afandi et al. and Chrisholm 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 Chrisholm based upon the desired mouthfeel of the rice for a particular consumer.
Response to Arguments
Examiner notes that the previous new matter rejection of Claim 1 under 35 USC 112(a) regarding the color different of 3 to 30 have been withdrawn. Paragraph [29] of the originally filed specification states that the color difference may be 3 to 30 as argued by applicant on Page 5 of the Remarks. This is found persuasive. Therefore, this particular new matter rejection under 35 USC 112(a) has been withdrawn.
Examiner notes that the previous new matter rejections of Claims 20 and 24 under 35 USC 112(a) have been withdrawn in view of the amendments.
Examiner also notes that new new matter rejections under 35 USC 112(a) have been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant makes arguments on Page 7 of the Remarks with respect to the Hefnawy reference. It is noted that Hefnawy is not being relied upon in the current rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Greethead WO 94/14340 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).
Adachi et al. US 2010/0075014 discloses frozen cooked rice (‘014, Paragraphs [0069]-[0070]) comprising animal derived extracts and soybean water soluble polysaccharides as quality improving agents to enhance the loosening property of cooked rice, inhibit the deterioration in texture that occurs with aging of starch, and obtain cooked rice products with satisfactory quality (‘014, Paragraph [0001]) wherein the water soluble soybean polysaccharides are with in combination with other quality improvers or additives such as emulsifying agents such as lecithin or glycerin fatty acid esters and sucrose fatty acid esters (‘014, Paragraphs [0031]-[0032]).
Yamamoto et al. US 2008/0254186 discloses an improving agent for cooked rice food products which are frozen and heated in a microwave oven (‘186, Paragraph [0001]) wherein the frozen cooked rice comprises 3 g of emulsified oil based on 100 g of the original rice (‘186, Paragraph [0028]).
JP 2009/82025 discloses an improving agent for frozen cooked rice (‘025 Machine Translation, Paragraph [0001]) comprising edible oils and fats (‘025 Machine Translation, Paragraph [0010]) wherein the improving agent is added in an amount of 0.1 to 3.0% by mass to the frozen cooked rice (‘025 Machine Translation, Paragraph [0025]).
JP 2000-245367 discloses an anti-sticking agent for frozen or chilled cooked rice (‘367 Machine Translation, Paragraph [0001]) wherein the anti-sticking agent improves the frothing properties of cooked rice (‘367 Machine Translation, Paragraph [0014]) and the antibinding agent is obtained by spray drying an oil in water emulsion containing edible oils and/or oil soluble emulsifiers (‘367 Machine Translation, Paragraph [0015]) wherein the oil soluble emulsifier is lecithin (‘367 Machine Translation, Paragraph [0017]).
JPH 09224625 discloses a method of making frozen cooked rice (‘625 Machine Translation, Paragraph [0007]) comprising lecithin emulsifiers to improve the emulsion stability of a W/O type emulsion composition (‘625 Machine Translation, Paragraph [0013]).
JPH0889186 discloses a cooking oil containing lecithin, glycerin fatty acid ester and/or polyglycerin fatty acid ester and animal or vegetable waxes in specific ratios as emulsifiers in the oil intended to improve the breaking apart of cooked frozen rice to prevent burning and reduce oilness feeling (‘186 Machine Translation, Paragraph [0001]) wherein lecithin is present in amount of 0.1 to 8 wt% in the oil (‘186 Machine Translation, Paragraph [0004]) wherein if the amount of lecithin is less than 0.1% by weight a uniform coating cannot be obtained and if it exceeds 8% by weight problems such as excessive burning, a poor flavor, and increased costs arise (‘186 Machine Translation, Paragraph [0010]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792