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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/11/26 was filed after the mailing date of the last Office action on 1/28/26. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
The amendment filed on 4/28/26 has been entered. Applicant amendments to the specification and the claims have overcome the objection to the specification for minor informalities, the objection to claim 9, as well as the rejections under 35 U.S.C. 112(d) and 35 U.S.C. 112(b) of claim 9, as set forth in the last Office Action mailed on 1/28/26. The rejection of claim 14 under 35 U.S.C. 112(b) in regards to the term “enhanced” has been withdrawn as the term “enhanced” for the “Enhanced Polyethylene Coextrusion” is a known term in the art as shown by the references provided by Applicant and attached to this Office action by the Examiner. Further, the rejection of claims 1, 14-15 under 35 U.S.C. 112(b) in regards to the recitation of “joining the upper film and the lower film to form the patterned sealing film”, then “placing a protein in the patterned sealing film” has been withdrawn in view of Applicant’s clarification and shown figure presented in page 8 of the Remarks. The objection of the specification under 35 U.S.C. 112(a) for introducing new matter into the disclosure, and the rejection of claims 14-15 under 35 U.S.C. 112(a) are maintained (see discussion under Response to Arguments below).
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 14-15 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.
NOTE: In regards to claims 14-15, which specify properties (i.e., film thickness) of the upper sealing films, the examiner recognize Applicant’s amendments to the specification to include the disclosure of the films CRYOVAC® VH718 and WINPAK® SK250, described on pages 8-9 of U.S. Provisional Application No. 63/235,899 filed 8/31/21 (see Remarks dated 3/31/25, page 1, first paragraph). However, there is no explicit disclosure and/or specific description of the claimed thickness and/or compositions of the films in the instant specification.
Regarding film thickness:
Claims 14-15 recites “the upper film has a total thickness of 250 microns” (claim 14), and “the upper film has a total thickness of 18 mm” (claim 15). On page 5, lines 21-22, of the instant specification is disclosed that “Some shapes require variations such as thinner or thicker films,” and pages 8-9 of the specification in the provisional application only disclose the following film information:
VH718 used for forming design (holds the protein), and
SK250 used for forming design (holds the protein).
Neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose the specific total thickness of 250 microns or 18 mm of the upper films as claimed.
Regarding film inner/outer composition:
Claim 14 recites “the upper film has an outer composition comprising a combination of Enhanced Polyethylene Coextrusion (PE) and nylon; wherein the upper film has an inner composition of polyolefin”. On page 5, lines 19-30, of the instant specification is disclosed that “films with a tacky inner face or to be more porous” (page 5, line 22), “film combinations between the sealing requirements are also possible” (page 5, lines 23-24), and “layered combinations of films” (page 5, line 30), may be produced. However, neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose the specific claimed compositions for the inner/outer films.
Claim 15 recites “the upper film has an outer composition comprising a combination of linear low density polyethylene (LLDPE) and high density polyethylene (HDPE), wherein the upper film has an inner composition of LLDPE”. On page 5, lines 19-30, of the instant specification is disclosed that “films with a tacky inner face or to be more porous” (page 5, line 22), “film combinations between the sealing requirements are also possible” (page 5, lines 23-24), and “layered combinations of films” (page 5, line 30), may be produced. However, neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose the specific claimed compositions for the inner/outer films.
Regarding polyethylene types:
Claim 14 recites “the upper film has an outer composition comprising a combination of Enhanced Polyethylene Coextrusion (PE) and nylon; wherein the upper film has an inner composition of polyolefin”. On page 5, lines 24-30, of the instant specification various examples of materials used for the films are disclosed including “Polyethylene” (page 5, line 25) and Nylon (page 5, line 27). However, neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose the specific type of combination of Enhanced Polyethylene Coextrusion (PE) and nylon for the upper film outer composition or polyolefin composition for the upper film inner composition.
Claim 14 recites “Enhanced Polyethylene Coextrusion (PE) and nylon”. However, neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose and/or support these limitations of an enhanced coextruded type of material.
Claim 15 recites “the upper film has an outer composition comprising a combination of linear low density polyethylene (LLDPE) and high density polyethylene (HDPE), wherein the upper film has an inner composition of LLDPE”. On page 5, lines 24-30, of the instant specification various examples of materials used for the films are disclosed including “Polyethylene” (page 5, line 25). However, neither the instant specification filed on 8/23/22, or the specification for the provisional application filed 8/23/21 disclose the specific types of polyethylene (LLDPE and HDPE) being claimed.
Specification
The amendment filed 1/9/26 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
For VH718:
wherein VH718 has an outer composition comprising a combination of linear low density polyethylene (LLDPE) and high density polyethylene (HDPE).
wherein VH718 has an inner composition of LLDPE.
wherein VH718 has a total thickness of 18 mm.
For SK250:
wherein the upper film has an outer composition comprising a combination of Enhanced Polyethylene Coextrusion (PE) and nylon.
wherein the upper film has an inner composition of polyolefin.
wherein the upper film has a total thickness of 250 microns.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 4-6, 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Parvin et al. [US 3527855 A], hereinafter Parvin, in view of Rich et al. [US 4287218 A], hereinafter Rich, and Raue et al. [US 20200037623 A1], hereinafter Raue.
Regarding claim 1, Parvin teach a method for forming and utilizing a patterned sealing film comprising ordered steps of: placing a forming and sealing film on an upper forming insert (FIG. 1 and FIG. 2 with a mold 10 that accommodates a film forming insert block 17) [Parvin, col. 2, l.34-36], wherein the upper forming insert comprises: a central cavity [Parvin, col. 2, l.30-34] having ventilation structure (passage 21) in the central cavity for forming a vacuum in the central cavity [Parvin, col. 2, l.42-47, Fig.4] and ventilation structures (holes 40) to direct a flow of air [Parvin, col. 3, l.11-17, Fig.2]; and an anchor section for anchoring (insert block 17 anchored/secured to the bottom wall 15 by any convenient means, such as machine screws) the forming insert to a forming box during forming of the sealing film by vacuum [Parvin, col. 2, l.34-38], forming an upper film from the forming and sealing film using the upper forming insert, wherein the mold shape (three-dimensional shape) is transferred to the upper film from the central cavity during forming [Parvin, col. 2, l.44-47]; forming a lower film (implicitly disclosed since two films are formed (upper and lower vacuum formed films, “at least one film (i.e., one or more films) is vacuum formed in a mold cavity”) in order to seal product between films, producing a three-dimensional package) [Parvin, col.1, l.29-31; col.2, l.47-51], placing a protein in the sealing film (product is then placed in the formed film, a cover film is fed over the formed film containing the product) [Parvin, col. 2, l.47-49; col.1, l.35-45; col.3, l.36-37]; joining the upper film and the lower film to form the sealing film [Parvin, col. 2, l.49-51; col.3, l.38-40], vacuuming and sealing the protein in the sealing film (air may be evacuated from the package before the final sealing) [Parvin, col. 2, l.49-51; col.1, l.39; col.3, l.40-42 ].
In regards to the multiple or plurality of ventilation structures and two (i.e., upper/lower) forming inserts (duplication of parts), MPEP 2144.04 VI. B. states:
In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (Claims at issue were directed to a water-tight masonry structure wherein a water seal of flexible material fills the joints which form between adjacent pours of concrete. The claimed water seal has a "web" which lies in the joint, and a plurality of "ribs" projecting outwardly from each side of the web into one of the adjacent concrete slabs. The prior art disclosed a flexible water stop for preventing passage of water between masses of concrete in the shape of a plus sign (+). Although the reference did not disclose a plurality of ribs, the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include one or more or a plurality of ventilation structures based on the amount of suction/vacuum degree or power to be applied, the material being treated and or the design, shape and/or size of the forming insert of Parvin, and include two or more forming inserts (upper/lower) as claimed based on the amount of films to be formed in a determined period of time (i.e., more forming inserts would form more formed films in less time), and/or use the same insert to form the upper and lower films (i.e., forming first/upper film in forming insert then removing formed film, then forming a second/lower film in forming insert, then removing formed film and join upper/lower films, since Parvin already teach forming one or more films in a mold) in the method of Parvin with reasonable expectation of success.
In regards to the location of the ventilation structures being surrounding the central cavity (rearrangement of parts), MPEP 2144.04 VI. C. states:
In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include ventilation structures surrounding the central cavity as claimed based on the design, shape and/or size of the forming insert of Parvin with reasonable expectation of success.
Parvin does not explicitly teach forming the lower film prior to placing the protein in the sealing film (since the lower sealing film in Parvin is formed at the same time or during the vacuuming and sealing of the protein), the sealing film exerts a pressure on the protein from the vacuuming; cooking the protein in the sealing film at a cooking temperature required for the protein, wherein the three-dimensional shape is transferred from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film; and removing the sealing film from the protein after the protein is cooked.
Rich teach a method for forming and utilizing a sealing film comprising the steps of placing a protein between an upper (film 16) and lower (bottom of a preformed mold 10, that is, the lower film is formed prior to placing the protein in the film) sealing film [Rich, Abstract, col.2, l.38-41], joining the upper film and the lower film to form the sealing film; vacuuming and sealing the protein in the sealing film [Rich, col.2, l.38-41], wherein the sealing film exerts a pressure on the protein from the vacuuming [Rich, col.2, l.41-47]; cooking the protein in the sealing film at a cooking temperature required for the protein [Rich, col.2, l.53-55], wherein a shape (loaf shape three-dimensional shape of the mold) is transferred from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film [Rich, col.2, l.56-57]; and removing the patterned sealing film from the protein after the protein is cooked [Rich, col.2, l.58-59].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the claimed forming of the lower film prior to placing the protein in the sealing film, wherein the sealing film exerts a pressure on the protein from the vacuuming; cooking the protein in the sealing film at a cooking temperature required for the protein, wherein the three-dimensional shape is transferred from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film; and removing the patterned sealing film from the protein after the protein is cooked as taught by Rich, since both are directed to methods for forming and utilizing sealing films for packaging meats, since both Parvin and Rich teach joining the upper film and the lower film to form the sealing film; vacuuming and sealing the protein in the sealing film, but Parvin simply formed the lower film during the vacuuming and sealing step, however Rich teach that by forming the lower film prior to placing the protein in the film, the lower film would be in a semi-rigid form [Rich, col.2, l.28-29], which would provide for the elimination of air holes, jelly pockets and voids between the meat pieces and effects increased cohesion of the ground meat pieces together or with the larger meat pieces due to the vacuum treatment in the semi-rigid mold, this effect being sufficient to prevent crumbling of the finished meat product when sliced [Rich, col.2, l.41-47], as well as providing a meat product having a convenient loaf shape [Rich, col.2, l.56-57].
Modified Parvin in view of Rich do not teach the sealing film being a patterned sealing film having a three-dimensional embossing pattern.
Raue teaches a method for forming and utilizing a patterned sealing film, wherein the patterned sealing film have a three-dimensional embossing pattern [Raue, 0028, Fig.1], and wherein said three-dimensional embossing pattern is transferred onto the surface of the enclosed food [Raue, 0033], and wherein said enclosed food may be a protein [Raue, 0001].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the claimed three-dimensional embossing pattern as taught by Raue into the upper forming insert having a central cavity of Parvin, to form an upper film from the forming and sealing film using the upper forming insert of Parvin, (particularly since Parvin teach that any shape of package (any shape of sealing film) can be formed by providing the appropriate complementary shaped mold surface within the die cavity, [Parvin, col. 3, l.44-47]), wherein the three-dimensional embossing pattern is transferred to the upper film from the central cavity during forming, and provide a patterned sealing film having a three-dimensional embossing pattern as taught by Raue into the method of modified Parvin, because Raue teach that by providing films in the form of bags (cavity) [Raue, 0035] having a three-dimensional embossing pattern, net-like patterns can be transferred onto the surface of enclosed protein food products [Raue, 0044], and further have the advantage of not requiring a net to produce the embossing pattern [Raue, 0123], therefore, the net-topology cannot shift and become irregular [Raue, 0033].
Regarding claims 4-6, modified Parvin teach the methods and concepts discussed above in claim 1 rejection but does not explicitly teach the three-dimensional embossing pattern comprises a plurality of raised areas and a plurality of depressed areas, wherein the three-dimensional embossing pattern is a net pattern, and wherein the three-dimensional embossing pattern comprises a company logo or graphic.
Raue teaches the method for forming and utilizing a patterned sealing film discussed above, wherein the three-dimensional embossing pattern comprises a plurality of raised areas (bulges 5) and a plurality of depressed areas (negative pattern squared shaped areas of grid), wherein the three-dimensional embossing pattern is a net pattern [Raue, 0170], and wherein the three-dimensional embossing pattern comprises a company logo or graphic [Raue, 0044].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a three-dimensional embossing pattern comprises a plurality of raised areas and a plurality of depressed areas that is a net pattern or a three-dimensional embossing pattern comprising a company logo or graphic as taught by Raue, into the method of Parvin, because Raue teach that this would provide not only a textured surface which forms a three-dimensional pattern of higher and lower retaining capacity for a functional additive, but additionally a textured surface that have a different design so that for example names, logos or designs representing a text, icon or other message which can be transferred onto the surface of the enclosed food [Raue, 0044].
Regarding claim 10, Parvin discloses no liquid cooling of the forming box (mold 10) is required (withdrawing air through suction passage 71, as described in (col. 4, lines 22-30), allows the. . . “formable film [to] come[s] into contact with the upper surface of the tray 60 [as] it cools and sets.”).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Parvin in view of Rich and Raue, as applied to claim 1 above, further in view of The Joslyn Manufacturing Co., INC. (“Best Thermoforming Tooling Choice for Your Product” 2020).
Regarding claim 7, modified Parvin teach the die cavity mold or insert for forming a film as discussed in the rejection of claim 1 above, and Raue also teaches thermoforming molds (upper/lower) and vacuum may be used [Raue, 0141-0142, 0170], but do not explicitly recite the upper forming insert or mold being made of aluminum material.
The Joslyn Manufacturing Co., INC. (“Best Thermoforming Tooling Choice for Your Product”’ 2020) teaches that the finest tooling for thermoformed products is a temperature-controlled mold machined from a block of aluminum. Products made with aluminum tooling are dimensionally more consistent and stable. Tolerances can be held to industry standards. Also, plates can be made with small vacuum holes along a detail area to evacuate air. Because porosity is minimal, products can be crafted with more detail and texture.
Simple substitution of materials used in molds, or tools in the thermoforming process, including the use of aluminum and the added hole structures would have allowed for the controlled evacuation of air or application of vacuum. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have utilized aluminum or any other desired/available metal based on the application in the Parvin film forming apparatus and Donnel clam shell to obtain the desired mold, insert or thermoforming tool as taught by The Joslyn Manufacturing Co., INC. (“Best Thermoforming Tooling Choice for Your Product”’ 2020, P. 2, Par. 2).
Parvin and The Joslyn Manufacturing Co., INC. are considered to be analogous to the claimed invention because they are in the same field of thermoforming process using molds. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Parvin to incorporate the teachings of The Joslyn Manufacturing Co., INC., and provide an aluminum thermoforming mold made of aluminum with small vacuum holes for air to circulate. Doing so would provide the right tool to manufacture a quality thermoformed product that will have crisp lines, edges, texture and other detailing that stays consistent from piece to piece (The Joslyn Manufacturing Co., INC., P. 1, Par. 1).
Claim(s) 14 is rejected under 35 U.S.C. 103 as being unpatentable over Parvin in view of Rich and Raue, as applied to claim 1 above, further in view of Emerson et al. [US 20140054831 A1], hereinafter Emerson, and Aikawa et al. [JP 2020033108 A], hereinafter Aikawa, evidenced by Wallce [US 20140054292 A1].
Regarding claim 14, modified Parvin teaches each and every claim limitation present in claim 1 and shared in common with claim 14 in regards to the method of forming and utilizing a patterned sealing film as discussed above. Parvin further teach that the formable film is a plastic film [Parvin, col.3, l.72] which is placed over the mold and heated, then vacuum is applied to form the film and may be sealed using heat (heat sealed around the periphery to produce a sealed package) [Parvin, col.2, l.44-51].
Parvin is silent regarding the specific material or composition of the plastic formable film being specifically (i.e., polyolefins such as polyethylene and polypropylene and/or polyamides such as nylon), as well as the specific temperatures of 90-145°C for the step of forming the film, and the specific temperatures of 130-160°C for the step of sealing the film required in claim 14.
In regards to the upper film inner/outer composition and film forming temperatures:
Raue teach the method for forming and utilizing a patterned sealing film discussed in claim 1 rejection above, and further teach the films used for forming a thermoplastic food casing with a three-dimensional pattern may comprise a single layer (monolayer) or multiple layers of thermoplastic polymer material (coextruded multilayer casing [Raue, 0035], equivalent to films having an inner composition and outer composition from different material) such as polyolefins (polyethylene and/or polypropylene) and/or polyamides (nylon or nylon-MXD6® [0066, 0105]), as well as blend compositions of these materials [Raue, 0032, 0038-0039 and 0066]. The disclosure teaches various combinations of materials including polyolefin/polyamide (equivalent to polyethylene/nylon) [Raue, 0080], polyethylene and polyamide (polyethylene/nylon) [Raue, 0082], and many other polyolefin/polyamide combinations [Raue, 0083-0095 and 0103-0105]. Raue teaches that temperatures of 100°C or higher (equivalent to forming temperatures of 90-145°C as claimed) may be used to form the food casing when using polyolefins and polyamides [Raue, 0134]. Example 3 teach heating the casing (thermoplastic material) to a temperature of 135°C and an embossing tool capable of embossing squares or net-like grid, is also heated to a temperature of 120°C. The embossed film was preheated to a thermoforming temperature of 100°C, then, in a thermoforming station, square shaped areas were pressed by vacuum [Raue, 0170].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed film composition combinations and materials such as polyolefins (polyethylene) and nylon (polyamide), as well as the forming temperatures into the invention of Parvin, in view of Raue, since both are directed to methods of forming casings for meat products, since Parvin already teach forming by heat but simply did not specify the temperature used, and since the forming temperature depends on the melting temperature of the thermoplastic material being used to form the food casing [Raue, 0132, 0134]. Doing so would provide various methods to produce a thermoplastic food casing such as continuous and discontinuous methods where heat is used (i.e., heated embossing tools) which has the advantage that the polymer material can be displaced easily, particularly when the temperature used is adapted to the melting temperature of the material being used [Raue, 0132]. It would also provide a wide range of thermoplastic materials to be used such as polyolefins, polyamides and polymers to produce a casing with a net-topology that cannot shift and become irregular, and that does not need a net in order to transfer a netting pattern to an enclosed food product [Raue, 0032-0033]. It would further provide methods to produce food casings with different shapes and forms for a wide range of different foods [Raue, 0068]. Since the claimed forming temperature would have been used during the course of normal experimentation and optimization in the method of Parvin, in view of Raue, due to factors such as the type and ratios of the various polymer materials being used, the desired type (shape, size, form) of casing to be produce, and/or the desired type of food product to be encased.
In regards to the film sealing temperatures:
Emerson teach tooling for manufacturing a unit dose pouch [Emerson, Title], and various methods for the manufacturing of pouches. The method include drawing a film into a mold (die) cavity to create a pocket for a product and sealing the pocket [Emerson, 0024]. The mold comprise vacuum holes which allow the film to be vacuum formed [Emerson, 0029]. The mold may be made from a porous material such as porous aluminum material [Emerson, 0031], and the pouches may be vacuum formed in addition to heat to assist with the forming process [Emerson, 0043-0044]. The tooling may be designed to operate in a thermoforming machine [Emerson, 0046]. The disclosure teach that suitable heat sealing temperatures are in the range of 50°C to 300°C, however, sealing temperatures depend on the film material being used and other characteristics of the sealing process [Emerson, 0050].
It would have been obvious to one of ordinary skill in the art to incorporate the claimed sealing temperatures into the invention of modified Parvin, in view of Emerson, since all are directed to methods of forming casings using molds (dies), vacuum, films and heat, since Parvin already teach the film may be sealed using heat (heat sealed around the periphery to produce a sealed package) [Parvin, col.2, lines 44-51], but simply did not specify the temperature used for the sealing step, since Emerson disclose that sealing temperatures depend on the film material being used and other characteristics of the sealing process [Emerson, 0050], and since Raue already teach that the film may be sealed using heat by a heated tool [Raue, 0147], and that the sealing energy (equivalent to sealing heat or temperature) may be different or depends on the film layer sequence, recipe of the layers and the design of the films, due to the differing wall thickness created by the embossing and thermoforming steps [Raue, 0159]. Doing so would provide a wide temperature range that is suitable for heat-sealing depending on the film material being used and sealing method being used [Emerson, 0050]. Since the claimed sealing temperature would have been used during the course of normal experimentation and optimization in the method of Parvin, in view of Emerson, due to factors such as the type of polymer materials being used for the film, as well as the thickness of the films.
In regards to the upper film total thickness:
Parvin teaches the film may have a certain thickness and strength in certain locations [Parvin, col.3, l.33-35], and Parvin in view of Raue teach the film may have an average thickness in a range of from 1 to 100 μm in some areas and an average thickness in a range of from 191 to 2000 μm in other areas [Raue, Abstract]. However, they do not teach an upper film having a total thickness of 250 microns.
Aikawa teaches method for forming and utilizing a patterned sealing film (pouch with embossed pattern) [Aikawa, Title], wherein the film may have a total thickness in the range of from 70 to 300 μm [Aikawa, 0013].
Wallce directed to methods of multilayer films in thermoforming processes for making separable food containers [Wallce, Abstract], where film materials may comprise polyethylenes (i.e., HDPE) [Wallce, 0067], disclose that the upper limit on the thickness of films in thermoforming processes depends on the materials used in the stack layers and can both be understood by a skilled artisan in this field and empirically determined through ordinary trial and error procedures [Wallce, 0126].
It would have been obvious to one of ordinary skill in the art to incorporate the claimed total thickness of 250 microns into the invention of modified Parvin, in view of Aikawa, because Aikawa teach using the same claimed film materials polyethylene and nylon [Aikawa, 0011], and also teach that when using this thickness the invention provides for forming films having a cavity (pouch) and embossed patterns with no irregularities [Aikawa, 0007] , and since the total thickness of films would have been used during the course of normal experimentation and optimization procedures in the method of modified Parvin as evidenced by Wallce, due to various factors such as the materials used for the films and the number of film layers.
Claim(s) 15 is rejected under 35 U.S.C. 103 as being unpatentable over Parvin in view of Rich and Raue, as applied to claim 1 above, further in view of Emerson et al. [US 20140054831 A1], hereinafter Emerson, and Dalgewicz [US 20050037168 A1], evidenced by Wallce [US 20140054292 A1].
Regarding claim 15, modified Parvin teaches each and every claim limitation present in claims 1 and 14 shared in common with claim 15 in regards to the method of forming and utilizing a patterned sealing film as discussed above, and Parvin in view of Raue teach using the claimed film material combinations of linear low density polyethylene (LLDPE) and high density polyethylene (HDPE) [Raue, 0104], but are silent regarding the upper film having a total thickness of 18 mm.
Dalgewicz teach a process for making thermoformed thermoplastic articles [Dalgewicz, Abstract], suitable for packaging proteins such as meats [Dalgewicz, 0096], where the method utilize suitable temperatures (heat) and vacuum to form the thermoplastic article by placing a forming and sealing film on a forming insert (mold) [Dalgewicz, Abstract, 0068-0069], wherein the film materials being used may be linear low density polyethylene (LLDPE) and high density polyethylene (HDPE) [Dalgewicz, 0103], and the containers made using the invention may be suitable for cooking applications (cooking protein inside pocket or film casing) [Dalgewicz, 0112], wherein the method provides for forming an upper film and a lower film (clam shell type article) [Dalgewicz, 0089], and wherein compositions for particular applications may have a thickness of about 15 to 25 mm [Dalgewicz, 0051], a thickness of about 12 to 18 mm [Dalgewicz, 0098], or processed into the desired thickness [Dalgewicz, 0062].
Wallce directed to methods of multilayer films in thermoforming processes for making separable food containers [Wallce, Abstract], where film materials may comprise polyethylenes (i.e., HDPE) [Wallce, 0067], disclose that the upper limit on the thickness of films in thermoforming processes depends on the materials used in the stack layers and can both be understood by a skilled artisan in this field and empirically determined through ordinary trial and error procedures [Wallce, 0126].
It would have been obvious to one of ordinary skill in the art to incorporate the claimed total thickness of 18 mm into the invention of modified Parvin, in view of Dalgewicz, because Dalgewicz teach using the same claimed film materials of low density polyethylene (LLDPE) and high density polyethylene (HDPE), the same film forming methods of heating temperatures and vacuum applied to a film over a forming insert, mold or die, and the same structure of an upper and lower films to encase protein foods and are suitable for cooking applications (cooking protein inside pocket or film casing), and further because Dalgewicz teach that the thickness of the film may be selected to provide the desired level of dimensional stability and adequate barrier properties to the container [Dalgewicz, 0098], and since the total thickness of films would have been used during the course of normal experimentation and optimization procedures in the method of modified Parvin as evidenced by Wallce, due to various factors such as the materials used for the films and the number of film layers.
Response to Arguments
Applicant’s arguments, see page 8 (Rejection of claims under 35 U.S.C. 112(b)), filed 4/28/26, with respect to the rejection of claim 14 (the term “enhanced” being indefinite), and the rejection of claims 1, 14-15 in regards to the recitation of “joining the upper film and the lower film to form the patterned sealing film”, then “placing a protein in the patterned sealing film” have been fully considered and are persuasive. The rejections of claims 1, 14-15 have been withdrawn for the reasons stated above under Response to Amendment.
Applicant's arguments filed 4/28/26 have been fully considered but they are not persuasive.
On page 7 of the Remarks under Objection to the specification, Applicant urges that because the U.S. Provisional Application No. 63/235,899, filed August 23, 2021, on pages 8-9 specifically identify VH718 and SK250 as films compatible with the forming inserts of the present invention, and claims 14 and 15 recite the known properties (i.e., composition and thickness) of these commercial films rather than the commercial trade names, that one of ordinary skill in the art at the time of the invention would have known that these properties (i.e., composition, thickness) are intrinsic or inherent to the VH718 and SK250 films.
These arguments are not persuasive because while the U.S. Provisional Application No. 63/235,899 mentions both the VH718 and SK250 films, there is no specific description or “specs” provided for each film (i.e., specific thickness (250 microns, 18mm), and composition). Further, on page 8, lines 20-24, of the instant specification filed 8/23/22 of Application 17893800, it is disclosed that “The process described in FIG. 7 is compatible with a variety of films depending on the size of the cavity and required final shape and impressions. Some shapes require variations such as thinner or thicker films, films with a tacky inner face or to be more porous, or for the film to be pre-shrunk to a varying degree”, which would prompt a skilled artisan to pursue the films having different properties (i.e., composition, thickness), according to factors such as the size of the cavity and required final shape and impressions.
On page 7 of the Remarks under Rejections of the claims under 35 U.S.C. 112(a), Applicant urges that provisional application clearly identifies CRYOVAC® VH718 and WINPAK®SK250 films as compatible forming films, which are commercially available product with well-known and publicly verifiable properties, including their thickness and composition, at the time of the invention, and therefore a person of ordinary skill in the art (POSITA) would understand from the disclosure of these specific commercial films that the properties claimed in claims 14 and 15 are the known properties of those products particularly because the names of the films even include "18" and "250" as reference to these thicknesses to distinguish them from other similar films having other thicknesses.
This argument is not persuasive because CRYOVAC® VH718 include the number “718” which by using the same reasoning would also imply a thickness of 718mm for the CRYOVAC® VH718 film, and a thickness of 250 microns or 50 microns for the WINPAK® SK250 film. These specific VH718 and SK250 films can only have the claimed properties at the time of filing because it could be argued that said specific VH718 and SK250 products could still be available in different thicknesses and various other properties.
On page 9 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that Parvin is silent regarding a three-dimensional embossing pattern and much less transferring such patter to a protein during cooking.
In response to Applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). This argument is not persuasive because the rejection is based on a combination of references where the secondary reference of Rich teaches a method for forming and utilizing a sealing film wherein the method includes cooking a protein in the sealing film at a cooking temperature required for the protein [Rich, col.2, l.53-55], and wherein a shape (loaf shape three-dimensional shape of the mold) is transferred from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film [Rich, col.2, l.56-57]. Therefore, one of ordinary skill in the art would immediately envisage the use of films to package products as taught by Parvin, having the required properties for packing, cooking, transferring a shape and vacuum sealing a proteinaceous food product as taught by Rich with reasonable expectation of success.
On page 10, paragraph 2 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that Rich merely teaches a simple loaf shape (i.e., overall shape of the protein mass) for a meat product, and not a three-dimensional embossing pattern on the film itself, to then transfer said pattern to the protein.
In response to Applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). This argument is not persuasive because the rejection is based on a combination of references where the primary reference of Parvin teaches that any shape of package using the sealing film can be formed by providing the appropriate complementary shaped mold surface within the die cavity [Parvin, col. 3, l.44-47], and secondary reference of Raue teaches a method for forming and utilizing a patterned sealing film, wherein the patterned sealing film have a three-dimensional embossing pattern [Raue, 0028, Fig.1] and is suitable for enclosing a protein [Raue, 0001], and wherein said three-dimensional embossing pattern is transferred onto the surface of the enclosed protein. Therefore, one of ordinary skill in the art would be motivated to look into Raue’s teachings and apply these into the method of Parvin to transfer not only the desired overall shape of the protein, but also transfer any desired shape or pattern to the surface of a protein product with reasonable expectation of success.
On page 10, paragraph 3 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that the independent claims require that a three-dimensional embossing pattern is first formed on the upper film using a forming insert having a central cavity with such a pattern, and that this specific embossing pattern is then transferred to the protein during cooking solely by vacuum pressure applied from the patterned sealing film, and that Rich teachings of forming a loaf shape is fundamentally different from the claimed process of transferring a detailed embossing pattern (e.g., a net pattern, logo, or graphic) from the patterned sealing film to the protein surface.
These arguments are not persuasive for the same reasons stated in the above paragraph, and because the independent claims 1, 14-15 recite “wherein the three-dimensional embossing pattern is transferred from the patterned sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the patterned sealing film”, where Parvin teaches that any shape of package using the sealing film can be formed by providing the appropriate complementary shaped mold surface within the die cavity, Rich teaches transfer of a shape from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film, and Raue further teaches a method for forming and utilizing a patterned sealing film, wherein the patterned sealing film have a three-dimensional embossing pattern [Raue, 0028, Fig.1] such as a net pattern, logo, or graphic [Raue, 0044], and wherein said three-dimensional embossing pattern is transferred onto the surface of the enclosed food [Raue, 0033], and wherein said enclosed food may be a protein [Raue, 0001].
On page 10, paragraph 4, and page 11, paragraph 2 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that Raue methods and teachings of a three-dimensional embossing pattern that is transferred onto the surface of enclosed food is achieved by a fundamentally different mechanism that comprises the three-dimensional pattern being formed on the casing using heated embossing tools and mechanical treatment while the thermoplastic material is in a thermoplastic state which involves embossing the casing material itself, and not transferring a pattern from the film to a protein during cooking solely by vacuum pressure. This argument is not persuasive for the same reasons stated in the above paragraph, and because these claim limitations are addressed by Rich as explained above. Further, the rejection of the claims are based on the combination of Parvin in view of Rich and Raue, and one of ordinary skill is also a person of ordinary creativity, not an automaton, and in many cases will be able to fit teachings of multiple patents together like pieces of a puzzle (See MPEP § 2141.03). That is, a person of ordinary skill in the art would be able to combine the teaching of Parvin of providing the appropriate complementary shaped mold surface within a die cavity to form any shape of package using a sealing film, with the transfer of a shape from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film in the method of Rich, and forming and utilizing a patterned sealing film, wherein the patterned sealing film have a three-dimensional embossing pattern such as a net pattern, logo, or graphic, wherein said three-dimensional embossing pattern is transferred onto the surface of the enclosed protein in the method of Raue in such a way that the transfer of any desired shape into the surface of a protein product would have occur during the cooking and vacuum sealing process.
On page 11, paragraph 1 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that the Examiner's proposed combination requires a POSITA to take the film-forming apparatus of Parvin, add the pre-formed lower film and cooking steps of Rich, and then add the embossing pattern of Raue, all to arrive at the claimed method, and that this combination is the product of impermissible hindsight reconstruction.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Further, as explained above, the combination of the references for the rejection is based on Parvin teaching forming “at least one film (i.e., one or more films, upper and lower) is vacuum formed in a mold cavity”) in order to seal product between films, wherein any shape of package (any shape of sealing film) can be formed, Rich is relied upon for teaching the transfer of a shape from the sealing film to the protein during cooking at the cooking temperature solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film, and Raue is relied upon for teaching forming and utilizing a patterned sealing film having a three-dimensional embossing pattern such as a net pattern, logo, or graphic, that can be transferred onto the surface of the enclosed protein.
On page 11, paragraph 2 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that the Examiner's reliance on Raue to supply the embossing pattern fails because Raue achieves pattern transfer through a different mechanism (heated embossing tools) than the claimed invention (vacuum pressure during cooking). A POSITA would not have been motivated to combine the embossing teachings of Raue with the packaging methods of Parvin and the cooking method of Rich because there is no teaching or suggestion in any of the references that an embossing pattern formed on a film using a forming insert would successfully transfer to a protein during cooking solely by vacuum pressure.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, as explained above, the rejection of the claims are based on the combination of Parvin in view of Rich and Raue, where Parvin teaches a method for forming a sealing film to form a three-dimensional package in which any shape can be produced by providing the appropriate complementary shaped mold surface within a die cavity, and Raue teaches a method for forming and utilizing a patterned sealing film, wherein the patterned sealing film have a three-dimensional embossing pattern such as a net pattern, logo, or graphic. Therefore, one of ordinary skill in the art would immediately envisage incorporating the three-dimensional embossing pattern of a net pattern (design) as taught by Raue, into the method of Parvin which allows the formation of packages in any shape solely by vacuum, and incorporating the teachings of Rich of transferring of a shape from a sealing film to the protein during cooking at the cooking temperature also solely by vacuum pressure applied to the protein from the vacuum between the protein and the sealing film, into the method of Parvin, with reasonable expectation of success. That is, a person of ordinary skill in the art, which is also a person of ordinary creativity, would look into the net pattern design in Raue, and the transfer of said net pattern into a meat product by vacuum and cooking at the claimed temperatures, into a packaging method that is capable of producing any design packaging from thermoforming films as taught by Parvin, successfully producing a meat product with a net pattern design on the surface.
On page 11, paragraph 3 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that the Examiner's reliance on MPEP § 2144.04 (duplication of parts) for the plurality of ventilation structures and upper/lower forming inserts is improper because the plurality of ventilation structures surrounding the central cavity in the present invention is not a mere duplication of parts but ensures that the embossing pattern is uniformly applied to the forming and sealing film by controlling both temperature and air flow through the emboss/deboss areas of the forming insert, and further that the Examiner's reliance on MPEP § 2144.04 (rearrangement of parts) for the position of ventilation structures is improper because the position of the ventilation structures surrounding the central cavity directly affects the function and performance of the forming process by allowing controlled pressure variation to form deeper impression pockets. The argument directed to the Examiner's reliance on MPEP § 2144.04 (duplication of parts) is not persuasive because not only the Examiner relied on MPEP 2144.04 for the duplication of parts but also provided motivation as to why it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include one or more or a plurality of ventilation structures. That is, a skilled artisan would include one or more or a plurality of ventilation structures based on the amount of suction/vacuum degree or power to be applied, the material being treated and or the design, shape and/or size of the forming insert of Parvin. Further, the argument directed to the Examiner's reliance on MPEP § 2144.04 (rearrangement of parts) is not persuasive because not only the Examiner relied on MPEP 2144.04 for the location of the ventilation structures but also provided motivation as to why it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include ventilation structures surrounding the central cavity as claimed based on the design, shape and/or size of the forming insert of Parvin with reasonable expectation of success.
On page 12, paragraph 2 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that the combination of references proposed by the Examiner, as well as the large number of references (plus an evidentiary reference) to arrive at the claimed invention indicates the use of impermissible hindsight reasoning, and that the Examiner did not demonstrated that the combination of references would even be possible or produce a sealing film compatible with any of the cited references in claim 14.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
Moreover, these arguments are not persuasive because the additional references relied upon for claim 14 are cited to address the claimed sealing temperatures (Emerson reference) and the upper film total thickness (Aikawa teaching reference, Wallce evidence reference), which are parameters (thickness and sealing temperature/heat) that Parvin already teach and express interest in controlling [Parvin, col.3, l.56-59; col.2, l.44-51], but simply did not mention a specific thickness or temperature.
Further, regarding the claimed sealing temperatures and film thickness MPEP 2144.05 II. A. states:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969). A change in form, proportions, or degree "will not sustain a patent"; In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929).
The examiner further provided motivation for the combination of references by one of ordinary skill in the art to provide a wide temperature range that is suitable for heat-sealing depending on the film material being used and sealing method being used [Emerson, 0050]. Since the claimed sealing temperature would have been used during the course of normal experimentation and optimization in the method of Parvin, in view of Emerson, due to factors such as the type of polymer materials being used for the film, as well as the thickness of the films.
On page 12, paragraph 3 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant urges that Emerson is directed to tooling for manufacturing unit dose pouches, not food packaging for cooking protein products, and that the disclosure of sealing temperatures in the range of 50°C to 300°C is extremely broad and does not provide a specific teaching of the claimed range of 130-160°C for vacuum sealing protein in a patterned sealing film which are critical to maintaining the embossing pattern while achieving an adequate seal for cooking the protein product. These arguments are not persuasive because while Emerson is not directed to packaging food, nonetheless is directed to packages [Emerson, Title, 0024] for consumer products [Emerson, Title, 0041] by using manufacturing tools comprising a mold, a cavity within the mold [Emerson, Title, 0009] for production of pouches by drawing a film into a mold (die) cavity to create a pocket for a product and sealing the product inside the pocket (pouch) [Emerson, Title, 0024]. The method also uses a mold (insert) comprising vacuum holes which allow the film to be vacuum formed [Emerson, 0029] or may be made from a porous material such as porous aluminum material [Emerson, 0031], and the pouches may be vacuum formed in addition to heat to assist with the forming process [Emerson, 0043-0044], which is a method that is reasonably similar to Applicants method but Emerson uses different language for elements and parts (i.e., mold, vacuum holes, porous aluminum die, pouch) instead of forming insert, plurality of ventilation holes, and joining the upper film and the lower film to form the patterned sealing film, which are all equivalents to Emerson’s elements and parts. Further, in regards to the sealing temperatures taught by Emerson in the range of 50°C to 300°C being extremely broad and not being specifically in the claimed range of 130-160°C for vacuum sealing protein, the argument is not persuasive because Emerson explicitly recognizes that sealing temperatures depend on the film material being used and other characteristics of the sealing process [Emerson, 0050], thus, one of ordinary skill in the art would have selected the appropriate sealing temperatures including those being claimed, based on the film material being used and other characteristics of the sealing process, particularly because Parvin already teach the film may be sealed using heat (heat sealed around the periphery to produce a sealed package) [Parvin, col.2, lines 44-51], but simply did not specify the temperature used for the sealing step.
On page 12, paragraph 4 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant arguments are directed to the thickness of the films (18 mm), and argues that the reference of Dalgewicz (US 2005/0037168) is directed to making rigid thermoformed food trays, not flexible vacuum-sealed films for cooking protein products, resulting in a thermoformed product (tray) with excellent heat resistance, which would prevent the exertion of any force on the meat product due to its rigidity during the claimed process. This argument is not persuasive because additionally to the limitations for the specific claimed thickness and the specifically claimed composition of the films being rejected under 35 U.S.C. 112(a) as discussed above, Dalgewicz is solely relied upon for teaching said thickness is known to be used in the thermoforming process of thermoplastic articles as well as the film materials known to be used include linear low density polyethylene (LLDPE) and high density polyethylene (HDPE) [Dalgewicz, 0103]. Moreover, Dalgewicz explicitly teaches that films may have a thickness of from 12-25 mm, however, these may be processed into the desired thickness [Dalgewicz, 0051, 0062].
On page 12, paragraph 4 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant argues that CRYOVAC® material in paragraph of Dalgewicz is in reference to lid films used to cover trays, not the trays themselves. This argument is not persuasive because as explained in the above paragraph, Dalgewicz not only teaches that CRYOVAC® material is known to be used in thermoforming processes of thermoplastic articles but also teaches the specifically claimed materials of linear low density polyethylene (LLDPE) and high density polyethylene (HDPE) [Dalgewicz, 0103].
On page 13, paragraph 1 of the Remarks under Rejections of the claims under 35 U.S.C. 103, Applicant argues that is not clear if the food trays of Dalgewicz are even food safe for cooking protein which is an important consideration because chemicals can leech into the protein if the sealing film is not food safe. The Examiner recognize that the claims are directed to sealing films for forming a patterned sealing film in which a protein is enclosed, sealed and cooking said enclosed protein, however as explained above Dalgewicz teaches using the same materials being claimed by Applicant (LLDPE) and (HDPE). Therefore, if the claimed material being used for food is the same as that being taught by Dalgewicz, the material of Dalgewicz is suitable for the same purpose of food processing.
On page 13, paragraph 2 of the Remarks, Applicant argues that the Examiner's response to the Applicant's arguments on pages 7-8, items 33-36 of the affidavit filed on 1/9/26 directed to Dalgewicz does not adequately address the fundamental incompatibility of Dalgewicz's rigid tray-forming process with the claimed method of forming flexible patterned sealing films for vacuum packaging and cooking protein and therefore a person of ordinary skill in the art would recognize that the materials and processes described in Dalgewicz are not applicable to the methods of Parvin or the claimed invention because the end products serve fundamentally different purposes.
The Examiner addressed the arguments on pages 7-8, items 33-36 of the affidavit filed on 1/9/26 directed to Dalgewicz on pages 26-28 of the last Office action. The Examiner noted that while Applicant urges that the process described in Dalgewicz creates a rigid article, as explained above, Dalgewicz not only teaches that CRYOVAC® material is known to be used in thermoforming processes of thermoplastic articles, but also teaches using the same film materials of low density polyethylene (LLDPE) and high density polyethylene (HDPE), the same film forming methods of heating temperatures and vacuum applied to a film over a forming insert, mold or die, and the same structure of an upper and lower films to encase protein foods and are suitable for cooking applications [Dalgewicz, 0077,0112, claims 33 and 35]. Furthermore, Dalgewicz is considered to be analogous to the instant invention because it is in the field of the inventor’s endeavor of thermoforming of polymeric material casings for proteinaceous foodstuffs, and Parvin is also directed to thermoforming processes, therefore one of ordinary skill in the art armed with the teachings of Dalgewicz would recognize the selection of forming inserts, molds or dies, suitable forming and sealing temperatures, as well as vacuum degree, and incorporate these into the method of Parvin, with parameters of the process being selected based on the type of polymer film materials being used and/or the particular application in which the forming and sealing films are being used (i.e., packaging and storing meats at ambient or above/under ambient temperatures such as freezing, or meat packaging suitable for cooking said meat inside the packaging).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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