DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to the application filed on August 17, 2022. The earliest effective filing date of the application is August 17, 2022.
Status of Application
The amendment filed May 12, 2025 with the Applicant Remarks has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 4 – 8, and 11 – 14
Amended claims: 6
Claims currently under consideration: 1, 4 – 8, and 11 – 14
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: The previous objection to claim 6 is withdrawn in light of Applicant’s amendments.
35 U.S.C. § 103 Rejections: The previous rejection under 35 U.S.C. § 103 over Home Sweet YOU of claims 1, 4 – 8, and 11 – 14 is maintained.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 4 – 8, and 11 – 14 are rejected under 35 U.S.C. 103 as being unpatentable over Home Sweet YOU (Screen captures from YouTube video clip entitled "쌈무 - SSam Mu (Pickled Korean Radish Slices)." uploaded on January 23, 2020 by user "Home Sweet YOU 유혜영" Retrieved from Internet: https://www.youtube.com/watch?v=OuK06i2WxnU (Retrieved on January 15, 2025)), in view of Shirahata, et al. (Advanced research on the health benefit of reduced water. Trends in Food Science & Technology. Vol.23 (2), p.124-131. (2011)) and Japan Up Close (Ultrasonic cutting technology opens up infinite possibilities. Japan Up Close. (2017, March 25). https://japanupclose.web-japan.org/tech/t20170330_2.html), as evidenced by Bon Appetit (The Science Behind This Mesmerizing Color-Changing Tea. Bon Appetit. (2016, January 31). https://www.bonappetit.com/drinks/non-alcoholic/article/butterfly-pea-flower-color-changing-tea).
Regarding claim 1, Home Sweet YOU teaches a method of making pickled radish slices (i.e., radish-wrapped for sushi) and the resulting pickled radish slice product, the method comprising the steps of:
slicing raw radish on a mandolin (p. 3), soaking the sliced radish in water for a few minutes, then draining the radish (p. 4 – 5);
placing the sliced radish in a container (p. 7);
pouring a mixture of two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents) over the radish until covered (p. 1, Video Description; p. 6; p. 8 - 16); and
allowing radish to marinate in the fridge for 30 minutes to over 1 month (p. 17 – 18; p. 22).
The range of marination time, 30 minutes to over 1 month, as disclosed by Home Sweet YOU, overlaps with the claimed range of 18 hours – 30 hours. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the step of “taking the radish out of the container and discarding the aqueous solution left behind in the container”, given the reference teaches the marinated radish slices can be used to wrap vegetables, the radishes must necessarily be removed from the brine (i.e., taking the radish out of the container and discarding the aqueous solution left behind in the container – p. 21).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU, therefore it would have been obvious to one of ordinary skill in the art to have sliced the radish to the claimed dimensions of a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet YOU does not teach adding ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents) after marinating the radish for 18 hours – 30 hours, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946); MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added the ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents) after marinating the radish for 18 hours – 30 hours. Additionally, because there are only two options regarding when the coloring is added – before marination, or after marination – It would have been obvious to one of ordinary skill in the art to try adding the coloring after marination instead of before marination with a reasonable expectation of success.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improves flavor and texture.
Therefore, the invention of claim 1 has been rendered obvious over Home Sweet YOU in view of Shirahata and Japan Up Close.
Regarding claim 4, the invention of claim 1 has been rendered obvious for reasons stated above.
Shirahata teaches electrochemically reduced water (i.e., ionized alkaline aqueous solution) has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
Regarding claim 5, the invention of claim 1 has been rendered obvious for reasons stated above.
Home Sweet YOU teaches pouring a mixture of two cups water (i.e., ionized alkaline aqueous solution), two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents) over the radish until covered (p. 1, Video Description; p. 6; p. 8 - 16).
Regarding claim 6, the invention of claim 1 has been rendered obvious for reasons stated above.
Home Sweet YOU does not teach coloring the radish is performed for 4 hours to 8 hours.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to adjust the exposure time of the radish to the coloring agent including within 4 hours to 8 hours. One of ordinary skill in the art would have been motivated to do so to control the extent of the coloring of the radish. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because adjustment of dyeing times in foods is routinely practiced in the art.
Regarding claim 7, the invention of claim 1 has been rendered obvious for reasons stated above.
Home Sweet YOU teaches ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents) may be added to the marinade to color the radish slices (p. 1, Video Description; p. 6; p. 8 - 16).
Regarding claim 8, the invention of claim 1 has been rendered obvious for reasons stated above.
The recitation of claim 8 is directed toward a product produced by the method of claim 1. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claim 1 have been considered when assessing the patentability of the product.
The structure implied by claim 1 is interpreted to be a dyed radish slice having a thickness of 0.25mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, that has been soaked in a composition comprising electrochemically reduced water (i.e., ionized alkaline aqueous solution) and coloring agent, and has perforations at regular intervals drilled into the sliced radish.
Home Sweet YOU teaches a dyed pickled radish slice that has been marinated in two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improve flavor and texture.
Therefore, the product of claim 8 is rendered obvious by Home Sweet YOU in view of Shirahata and Japan Up Close.
Regarding claim 11, the invention of claim 4 has been rendered obvious for reasons stated above.
The recitation of claim 11 is directed toward a product produced by the method of claim 4. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claim 4 have been considered when assessing the patentability of the product.
The structure implied by claim 4 is interpreted to be a dyed radish slice having a thickness of 0.25mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, that has been soaked in a composition comprising electrochemically reduced water (i.e., ionized alkaline aqueous solution) of pH 7 – 10 and coloring agent, and has perforations at regular intervals drilled into the sliced radish.
Home Sweet YOU teaches a dyed pickled radish slice that has been marinated in two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improve flavor and texture.
Therefore, the product of claim 11 is rendered obvious by Home Sweet YOU in view of Shirahata and Japan Up Close.
Regarding claim 12, the invention of claim 5 has been rendered obvious for reasons stated above.
The recitation of claim 12 is directed toward a product produced by the method of claim 5. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claim 4 have been considered when assessing the patentability of the product.
The structure implied by claim 5 is interpreted to be a dyed radish slice having a thickness of 0.25mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, that has been soaked in a composition comprising electrochemically reduced water (i.e., ionized alkaline aqueous solution), salt, vinegar, and coloring agent, and has perforations at regular intervals drilled into the sliced radish.
Home Sweet YOU teaches a dyed pickled radish slice that has been marinated in two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improve flavor and texture.
Therefore, the product of claim 12 is rendered obvious by Home Sweet YOU in view of Shirahata and Japan Up Close.
Regarding claim 13, the invention of claim 6 has been rendered obvious for reasons stated above.
The recitation of claim 13 is directed toward a product produced by the method of claim 6. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claim 1 have been considered when assessing the patentability of the product.
The structure implied by claim 6 is interpreted to be a dyed radish slice having a thickness of 0.25mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, that has been soaked in a composition comprising electrochemically reduced water (i.e., ionized alkaline aqueous solution) and coloring agent, and has perforations at regular intervals drilled into the sliced radish.
Home Sweet YOU teaches a dyed pickled radish slice that has been marinated in two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improve flavor and texture.
Therefore, the product of claim 13 is rendered obvious by Home Sweet YOU in view of Shirahata and Japan Up Close.
Regarding claim 14, the invention of claim 7 has been rendered obvious for reasons stated above.
The recitation of claim 14 is directed toward a product produced by the method of claim 7. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claim 1 have been considered when assessing the patentability of the product.
The structure implied by claim 7 is interpreted to be a dyed radish slice having a thickness of 0.25mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, that has been soaked in a composition comprising electrochemically reduced water (i.e., ionized alkaline aqueous solution) and one or more natural coloring agents selected from the group consisting of green tea, gardenia fruit, carrot, pumpkin, blueberry, red cabbage, purple sweet potato, paprika, omija, gromwell root, safflower, indigo plant, cactus fruit, and red beet; and has perforations at regular intervals drilled into the sliced radish.
Home Sweet YOU teaches a dyed pickled radish slice that has been marinated in two cups water, two cups white vinegar, 1/3 cups + 2 Tbsp sugar, ¼ cup sea salt, optionally 1 tsp lemon juice, and optionally ½ Tbsp of butterfly pea powder or ½ Tbsp red beet powder (i.e., natural coloring agents).
While Home Sweet YOU does not teach the radish slices have a thickness of 0.25 mm to 1.50 mm, a length of 5 cm to 30 cm, and a width of 3 cm to 30 cm, MPEP 2144.04.IV.A teaches in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Absent evidence to the contrary, there is no teaching the precisely claimed dimensions of the radish slice would perform differently than the slices as shown in the disclosure of Home Sweet YOU. Furthermore, it would have been obvious to produce the radish slices of varying dimensions, including thickness, width and length, including the claimed thickness of 0.25 mm to 1.50 mm, length of 5 cm to 30 cm, and width of 3 cm to 30 cm, as necessary for their intended use.
While Home Sweet You does not teach the marinade comprises an ionized alkaline aqueous solution, Home Sweet You teaches adding the butterfly pea powder to color the radish (p. 1, Video Description; p. 6; p. 8 - 16). Home Sweet You also teaches adjusting the acidity of the marinade with lemon and vinegar to change the color from blue to dark purple (p. 15 – 16). As evidenced by Bon Appetit, the color of butterfly pea flower powder changes depending on the pH of whatever it is mixed with (p. 5).
Shirahata teaches electrolyzing water can produce electrochemically reduced water (i.e., ionized alkaline aqueous solution) by flowing water into an electronic chamber and harvesting the water produced at the cathode (p.1, col.2, paragraph 3). The resulting water has a pH of about 8 – 10 due to electrolytic reduction (p. 1, col.2, paragraph 4).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to substitute non-ionized water with electrochemically reduced water in the modified method of Home Sweet YOU because one of ordinary skill in the art would have been able to expect changing the pH of water would affect the acidity of the marinade thereby adjusting the color of the butterfly pea powder (i.e., natural coloring agent) when added to the brine. One of ordinary skill in the art would have been motivated to change the pH of the marinade by adding electrochemically reduced water to the marinade because doing so would allow one to achieve the desired color of the radish wrap.
Home Sweet YOU does not teach drilling perforations at regular intervals in the sliced radish between the step (a) and step (b).
Japan Up Close teaches a method of punching microscopic perforations across nori paper at regular intervals with ultrasonic cutting technology. These microscopic holes improved nori texture and flavor (p.2, lines 4 – 10; p.3, image).
The modified method of Home Sweet YOU and Japan Up Close are combinable because they are concerned with the same field of endeavor, namely, sushi wrappers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to punch holes across sushi wrappings at regular intervals, as taught by Japan Up Close in the modified method of Home Sweet YOU because punching holes in sushi wrappings improve flavor and texture.
Therefore, the product of claim 14 is rendered obvious by Home Sweet YOU in view of Shirahata and Japan Up Close.
Response to Arguments
Applicant's arguments filed October 27, 2025 have been fully considered but they are not persuasive.
Applicant argues Home Sweet YOU does not disclose a marination time of the radish wraps that overlaps with the instant application (p. 7, paragraphs 1 – 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. MPEP 2141.02.IV states a prior art reference must be considered in its entirety, i.e., as a whole. Home Sweet YOU teaches overlapping ranges within the entirety of the reference (i.e., the comment section wherein Home Sweet YOU suggests storing the radish slices in the brine (marinating) for up to a month) such that one of ordinary skill in the art would have reasonably envisaged allowing the radish slices of Home Sweet YOU to marinate for a time that is within the disclosed range, including the overlapping portion of the range with the claimed invention. Therefore a prima facie case of obviousness has been established.
Applicant argues Home Sweet YOU does not disclose slicing washed radish into a strip shape having the precisely claimed dimensions (i.e., thickness of 0.25mm to 1.50 mm, length of 5cm to 30cm, and width of 3cm to 30cm), which are critical to the wrapping ability and color acceptance of the radish wraps (p. 7, paragraph 4; p. 8, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. As shown in Home Sweet YOU, the radish wraps are able to hold food (i.e., wrap sushi – p. 21); and accept color evenly (p. 20). In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., (i) easier wrapping of sushi ingredients and (ii) uniform coloring during extended immersion) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Additionally, with respect to the argument that the recited dimensions are unexpected, the results presented in the instant specification are not commensurate with the claims. There is no experimentation regarding the criticality of the precisely claimed dimensions of the instantly claimed radish wraps in the instant specification. There is only one example which describes a radish wrap with a thickness of 1.5mm, a width of 10cm, with no discussion of length (p. 9, Example 1). Because the examples in the specification are not commensurate with the claims, the evidence relied upon has not established that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance. See MPEP 716.02(b).
Applicant argues there is no teaching that alkaline water should replace the acidic brine of Home Sweet YOU (p. 9, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. The combination of Home Sweet YOU and Shirahata does not replace the acidic brine with electrochemically reduced water (i.e., ionized alkaline aqueous solution), it replaces the generically recited water with electrochemically reduced water (i.e., ionized alkaline aqueous solution), thereby gently adjusting the pH of the brine while keeping it acidic due to the vinegar and lemon juice.
Applicant argues Shirahata is not analogous art, therefore one of ordinary skill in the art would not have had a reasonable expectation of success when combining Home Sweet YOU and Shirahata (p. 9, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. MPEP § 2141.01(a).I states “The field of endeavor is ‘not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field’”. In this case, Home Sweet YOU shows the color change that adjusting the pH of the marinade imparts on the radish slices. Bon Apetit bridges the gap between Home Sweet YOU by expounding on this phenomenon by asserting that butterfly pea powder, specifically, has pH-sensitive color. Shirahata teaches electrochemically reduced water (i.e., ionized alkaline aqueous solution) has a pH of about 8 – 10, which, in light of the previously introduced references, would motivate one of ordinary skill in the art to utilize the high pHHH water to controllably adjust the color of the butterfly pea flower-dyed radish slices with a reasonable expectation of success. Furthermore, in response to applicant's argument that using electrochemically reduced water (i.e., ionized alkaline aqueous solution) in the marinade yields crunchy texture, odor reduction, and uniform coloring, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant argues one of ordinary skill in the art would not have been motivated or had a reasonable expectation of success to combine the teachings of Japan Up Close with Home Sweet YOU because the intended effect of perforating nori is different than the intended effect described in the present invention (p. 7, paragraphs 1 – 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the claimed perforations in radish serve a distinct technical purpose: (i) removing internal odor gases, (ii) preventing air- bubble formation within sushi ingredients, and (iii) enhancing uniform coloring during long alkaline immersion, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793