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 submission dated April 15, 2026, any objection and/or rejection made in previous actions and not repeated below are considered withdrawn.
Claim Warning
Applicant is advised that should claim 4 be found allowable, claim 19 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 and 3-19 are rejected under 35 U.S.C. 103 as being unpatentable over Nadeau et al. (US10238136B2) in view of Popp et al. (WO2014009155A1) as evidenced by Skibsted et al. (Chemical Deterioration and Physical Instability of Food and Beverages).
With respect to Claim 1, Nadeau et al. presents a method for developing a food product comprising mixing a dry ingredient composition, a protein-containing composition, and an alginate composition to provide a first mixture, mixing the first mixture with a setting composition to affect a gelation reaction, then processing the food product further in order to provide the food product. [Col. 1, Line 67- Col. 3 Lines 1-7] The first mixture described in Nadeau et al. reads on the limitation recited in step a of claim 1, because the alginate composition comprises a solution of either potassium or sodium alginate in water [Col. 5, Lines 14-17] and the dry ingredient composition [Col. 4, Lines 12-13] and protein-containing composition [Col. 4, Lines 33-34] both contain food ingredients.
Additionally, Nadeau et al. teaches the dry ingredient composition may comprise calcium [Col. 9, Ln. 44] and calcium sequestrants, specifically sodium tripolyphosphate. [Col. 4, Ln. 15-17] The instant specification teaches that the sequestrant agents present in the starting material used in step a) can bind free calcium ions, and preferred sequestrant agents comprise polyphosphates. [Pg. 23, Ln. 28-33] Therefore, the composition taught by Nadeau et al. would comprise bound calcium ions in the pre-gel mixture.
The food product is subsequently processed, according to Nadeau et al., by extrusion [Col. 7, Line 64] and a multi-dimensional dicer [Col. 8, Line 2]. Skibsted et al. presents the well-known concept of syneresis, wherein liquid oozes out of food, including gels. [Page 324, Par. 1] One way in which syneresis can be induced is the mechanical breaking or cutting of gel structures, thereby exposing the trapped liquid. [Page 335, Par. 1] The process of chopping the extruded jellified composition as described by Nadeau et al. would result in liquid being expulsed from the composition and the act of cutting applies greater than atmospheric pressure to the composition.
Nadeau et al. is silent to the limitations of the amount of liquid expulsed, to causing gelation to occur in the absence of an added external calcium salt, and to adding an organic acid as recited in step b of claim 1, but does teach adjusting the pH in order to control the gelation reaction of the composition. [Col. 6, Lines 21-22]
Popp et al. presents an invention related to the production of a gelled food concentrate in the form of a semi-solid gel. [Page 4, Line 8] In a preferred embodiment of the invention, the product comprises alginate described as a salt-sensitive gum, [Page 11, Line 21-22] wherein the gum is set in the absence of calcium ions. [Page 3, Lines 25-32] Additionally, Popp et al. states that the gum provides a textural benefit, preferably between pH of 3.5 and 5.5 in water at 20°C. [Page 10, Lines 21-23] Popp proceeds to state that it is well known in the art to adjust the pH by adding an organic acid, and provides examples such as citric acid. [Page 26, Lines 26-29] This reads on the limitation of claim 1 in step b of adding one or more organic acids to the pre-gel mixture.
Nadeau et al. and Popp et al. exist within the same field of endeavor in that they both refer to the production of jellified food compositions. Nadeau et al. teaches adjusting the pH of the composition in order to control the gelation reaction, but does not provide organic acids designed to do that. Popp et al. presents a well-known method of reducing the pH of a gel composition by adding organic acids, in order to achieve a desired value. One of ordinary skill in the art would have been aware that the addition of the organic acid would result in the release of calcium ions from the bound calcium in the pre-gel mixture.
Additionally, MPEP 2144.04 IV. C, states, “Selection of any order of mixing ingredients is prima facie obvious”. It would have been obvious for one of ordinary skill in the art to arrange the order of steps such that the organic acid taught in Popp et al. would be added to the composition taught in Nadeau et al. after the calcium salts would have been added to the composition. Therefore, it would have been obvious to add one or more organic acids to the mixture in order to cause alginate gelation in the absence of added external calcium salt.
According to the MPEP 2112.01 I, “Where the claimed a prior art products are identical or substantially identical is structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The method taught by Nadeau et al. in view of Popp et al. produces a composition that is substantially identical to the composition produced by the method of the instant application.
The amount of liquid expulsed recited in claim 1 of 5-40% amounts to the results of routine optimization. One of ordinary skill in the art would have been motivated to determine the optimum amount of liquid to expulse from the composition and understand that the composition taught by Nadeau et al. in view of Popp et al. would be subjected to atmospheric pressure in the course of processing. According to MPEP 2144.05 II, “[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”.
Therefore, it would have been obvious, to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have combined the organic acid disclosure in Popp et al. with the process described by Nadeau et al. in order to produce the invention described in claim 1.
With respect to Claim 3, the processing step in Nadeau et al. also describes cutting the food product with either a variable speed knife [Col 7., Line 65] or a multi-dimensional dicer. [Col 8., Line 2] This reads on cutting the composition into pieces of a desired size as recited in claim 3.
With respect to Claims 4 and 5, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. The alginates provided in Nadeau et al. are sodium and potassium alginate [Col. 5, Lines 14-17], both monocation alginates. This reads on the limitations recited in both claims 4 and 5. Therefore, before the effective filing date of the instant invention, it would have been obvious to one of ordinary skill in the art to have produced the invention described in claims 4 and 5.
With respect to Claims 6 and 7, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, Nadeau et al. states that the structurally stable food presented in the disclosure requires no heating and cooling cycle. [Col. 7, Lines 55-57] If no heating or cooling was performed, it is considered that the process was carried out at room temperature, about 20°C, which falls within the ranges recited in claim 6 and 7.
With respect to Claims 8 and 9, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Popp proceeds to state that it is well known in the art to adjust the pH by adding an acid, and provides examples including citric acid. [Page 26, Lines 26-29]. Citric acid is recited in claims 8 and 9. Therefore, before the effective filing date of the instant invention, it would have been obvious to one of ordinary skill in the art to have produced the invention described in claims 8 and 9 by utilizing the invention in Nadeau et al. with the selection of citric acid in Popp et al.
With respect to Claims 10 and 11, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, Nadeau et al. states that one would be motivated to control the pH of the mixture in order to control the gelation reaction. [Col. 6, Lines 21-23] Nadeau et al. is silent to the exact value of the pH of the composition.
Popp et al. presents an invention related to the production of a gelled food concentrate in the form of a semi-solid gel. [Page 4, Line 8] In a preferred embodiment of the invention, the product comprises alginate described as a salt-sensitive gum. [Page 11, Line 21-22] Additionally, Popp et al. states that the gum provides a textural benefit, preferably between pH of 3.5 and 5.5 in water at 20°C. [Page 10, Lines 21-23] This disclosure recites an overlapping range with the limitations provided in claims 10 and 11.
According to the MPEP 2144.05, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” Therefore, one of ordinary skill in the art would have found it obvious, before the effective filing date of the application, to have produced the invention described in claim 10 and 11 by using the invention described by Nadeau et al. with the disclosure of Popp et al.
With respect to Claim 12, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, Nadeau et al. states the dry composition may comprise vitamins, minerals, and minor nutrients. [Col. 4, Lines 14-16] This reads on the limitations recited in claim 12. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have produced the invention described in claim 12.
With respect to claim 13, Nadeau et al. provides a disclosure comprising the invention described in claim 1. Nadeau et al. provides calcium as a commonly used mineral in the fortification of the first mixture [Col. 9, Lines 43-44], adding it should be present in an amount sufficient for maintenance of a normal healthy animal [Col. 9, Lines 50-51], but does not provide a specific amount of calcium in the food product.
Popp et al. presents an embodiment of the food concentrate that might also comprise calcium salts in order to provide calcium ions. [Page 17, Lines 2-3] Popp et al. provides a range for these ions as having a concentration between 0.01-3% by weight. [Page 17, Line 4] The provided range of Popp et al. is overlapping with the range provided by the limitation of claim 13.
According to the MPEP 2144.05, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” Therefore, one of ordinary skill in the art would have found it obvious, before the effective filing date of the instant invention, to have produced the invention described in claim 13 by using the invention described by Nadeau et al. with the disclosure of Popp et al.
With respect to Claim 14, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, Nadeau et al. states that the dry composition may contain one or more calcium sequestrants, such as tripolyphosphate. [Col. 4, Line 17] This reads on the limitation recited in claim 14. Therefore, before the effective filing date of the instant invention, it would have been obvious to one of ordinary skill in the art to have produced the invention described in claim 14.
With respect to Claim 15, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, Nadeau et al. provides a common embodiment and the nutritive values of the embodiment. [Table 18] This embodiment comprises 14.3% protein, carbohydrates, and fats. This reads on the limitation recited by claim 15. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have produced the invention described in claim 15.
With respect to Claim 16, Nadeau et al. in view of Popp et al. provides the invention described in claim 1. Additionally, the protein containing composition may include meat sources that are fresh or frozen [Col. 4, Line 51] or dried egg whites. [Col. 4, Line 66] Nadeau et al. states the dry composition may comprise vitamins, minerals, and minor nutrients. [Col. 4, Lines 14-16] Vitamins would read on the interpretation of “molecule of interest” as recited in the claim. The alginate composition described by Nadeau et al. is incorporated into the first mixture at about 10%. [Col. 9, Line 2] The specification describes a dry or low moisture composition as having a moisture content of less than 15%. [Page 1, Line 14-15] According to applicant’s definition of dry, the first mixture composition comprising 10% alginate mixture would have resulted in a moisture content of 10%, less than 15%, and therefore a dry composition. This reads on step a1 of claim 16. Additionally, the alginate composition provided is an aqueous mixture, and thereby reads on step a2 of claim 16. Therefore, before the effective filing date of the instant invention, it would have been obvious to one of ordinary skill in the art to have produced the invention described in claim 16.
With respect to Claims 17 and 18, Nadeau et al. in view of Popp et al. provides a disclosure comprising the invention described in claim 1. Additionally, Nadeau et al. states the food product can be fed to a human or non-human animal. [Col. 9, Lines 52-53] This reads on the limitations provided in claims 17 and 18. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have produced the invention described in claims 17 and 18.
With respect to Claim 19, Nadeau et al. presents a method for developing a food product comprising mixing a dry ingredient composition, a protein-containing composition, and an alginate composition to provide a first mixture, mixing the first mixture with a setting composition to affect a gelation reaction, then processing the food product further in order to provide the food product. [Col. 1, Line 67- Col. 3 Lines 1-7] The first mixture described in Nadeau et al. reads on the limitation recited in step a of claim 1, because the alginate composition comprises a solution of either potassium or sodium alginate in water [Col. 5, Lines 14-17] and the dry ingredient composition [Col. 4, Lines 12-13] and protein-containing composition [Col. 4, Lines 33-34] both contain food ingredients.
Additionally, Nadeau et al. teaches the dry ingredient composition may comprise calcium [Col. 9, Ln. 44] and calcium sequestrants, specifically sodium tripolyphosphate. [Col. 4, Ln. 15-17] The instant specification teaches that the sequestrant agents present in the starting material used in step a) can bind free calcium ions, and preferred sequestrant agents comprise polyphosphates. [Pg. 23, Ln. 28-33] Therefore, the composition taught by Nadeau et al. would comprise bound calcium ions in the pre-gel mixture.
The food product is subsequently processed, according to Nadeau et al., by extrusion [Col. 7, Line 64] and a multi-dimensional dicer [Col. 8, Line 2]. Skibsted et al. presents the well-known concept of syneresis, wherein liquid oozes out of food, including gels. [Page 324, Par. 1] One way in which syneresis can be induced is the mechanical breaking or cutting of gel structures, thereby exposing the trapped liquid. [Page 335, Par. 1] The process of chopping the extruded jellified composition as described by Nadeau et al. would result in liquid being expulsed from the composition and the act of cutting applies greater than atmospheric pressure to the composition.
Nadeau et al. is silent to the limitations of the amount of liquid expulsed, to causing gelation to occur in the absence of an added external calcium salt, and to adding an organic acid as recited in step b of claim 1, but does teach adjusting the pH in order to control the gelation reaction of the composition. [Col. 6, Lines 21-22]
Popp et al. presents an invention related to the production of a gelled food concentrate in the form of a semi-solid gel. [Page 4, Line 8] In a preferred embodiment of the invention, the product comprises alginate described as a salt-sensitive gum, [Page 11, Line 21-22] wherein the gum is set in the absence of calcium ions. [Page 3, Lines 25-32] Additionally, Popp et al. states that the gum provides a textural benefit, preferably between pH of 3.5 and 5.5 in water at 20°C. [Page 10, Lines 21-23] Popp proceeds to state that it is well known in the art to adjust the pH by adding an organic acid, and provides examples such as citric acid. [Page 26, Lines 26-29] This reads on the limitation of claim 1 in step b of adding one or more organic acids to the pre-gel mixture.
Nadeau et al. and Popp et al. exist within the same field of endeavor in that they both refer to the production of jellified food compositions. Nadeau et al. teaches adjusting the pH of the composition in order to control the gelation reaction, but does not provide organic acids designed to do that. Popp et al. presents a well-known method of reducing the pH of a gel composition by adding organic acids, in order to achieve a desired value. One of ordinary skill in the art would have been aware that the addition of the organic acid would result in the release of calcium ions from the bound calcium in the pre-gel mixture.
Additionally, MPEP 2144.04 IV. C, states, “Selection of any order of mixing ingredients is prima facie obvious”. It would have been obvious for one of ordinary skill in the art to arrange the order of steps such that the organic acid taught in Popp et al. would be added to the composition taught in Nadeau et al. after the calcium salts would have been added to the composition. Therefore, it would have been obvious to add one or more organic acid to the mixture in order to cause alginate gelation in the absence of added external calcium salt.
According to the MPEP 2112.01 I, “Where the claimed a prior art products are identical or substantially identical is structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The method taught by Nadeau et al. in view of Popp et al. produces a composition that is substantially identical to the composition produced by the method of the instant application.
The amount of liquid expulsed recited in claim 1 of 5-40% amounts to the results of routine optimization. One of ordinary skill in the art would have been motivated to determine the optimum amount of liquid to expulse from the composition and understand that the composition taught by Nadeau et al. in view of Popp et al. would be subjected to atmospheric pressure in the course of processing. According to MPEP 2144.05 II, “[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”.
Therefore, it would have been obvious, to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have combined the organic acid disclosure in Popp et al. with the process described by Nadeau et al. in order to produce the invention described in claim 19.
With respect to Claim 27, Nadeau et al. in view of Popp et al. provides a disclosure comprising the invention described in claim 1. Additionally, MPEP 2112.01 I, “Where the claimed a prior art products are identical or substantially identical is structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The method taught by Nadeau et al. in view of Popp et al. produces a composition that is substantially identical to the composition produced by the method of the instant application.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Nadeau et al. in view of Popp et al. in order to develop the invention recited in claim 1, wherein the gelation occurs instantaneously, thereby rendering claim 27 obvious.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Nadeau et al. (US10238136B20) in view of Popp et al. (WO2014009155A1) as evidenced by Skibsted et al. (Chemical Deterioration and Physical Instability of Food and Beverages) as applied to claim 1 above, and further in view of Gritzer (Pasta Water Experiment).
With respect to Claim 2, Nadeau et al. in view of Popp et al. provides a disclosure comprising the invention described in claim 1. Nadeau et al. also provides a process of adding a gravy to provide a chunk in gravy composition. [Col. 6, Lines 40-43] The gravy comprises starches or gums [Col. 6, Line 45] in order to provide the gravy with an increased viscosity, sufficient to suspend the food product chunks. [Col. 6, Line 51-52] This description reads on the limitations provided by step e and f of claim 2, but is silent to the retention of the expulsed aqueous solution in step c of claim 1.
Gritzer presents a method of creating a desirable sauce by using the liquid retained after hydrating a dry food product in water. [Test 1, Par. 2-4] Gritzer concluded that the best sauce was made with an aqueous solution containing some of the retained liquid as opposed to the sauces that lacked the retained liquid. [Test 1, Par. 7] Additionally, Gritzer points out that the flavor of the composition is retained in the liquid and carries over into the sauce. [Conclusion, Par. 2] The evidence that consistency of flavor and texture is carried over using the retained liquid provides a motivation for one of ordinary skill in the art to retain the liquid expulsed from the process described in Nadeau et al. in order to create a more flavorful gravy. This combination would read on the limitation recited by claim 2 step d.
Nadeau et al. and Gritzer exist within the same field of endeavor in that they both present methods for creating a sauce or gravy designed to be incorporated into a food composition. Gritzer provides a motivation for the method described in Nadeau et al. in view of Popp et al. to include retaining the liquid expulsed from the processing of the food product in order to create a more flavorful and desirable sauce. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective fling date of the claimed invention, to have reserved the liquid expulsed from the processing step of Nadeau et al. in the interest of making a gravy as described by Nadeau et al. through the motivation provided by Gritzer of increasing the desirable organoleptic properties of the final product, in order to produce the invention described in claim 2.
Response to Arguments
Applicant's arguments filed April 15, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 7, Number 1, that “The combination fails to teach step (b) because the mechanisms are fundamentally different and would change the principle of operation of Nadeau”, citing specifically on Page 8, Par. 3, “the claimed invention utilizes volumetric release kinetics triggered by organic acids. Introducing an acid to a mixture already containing bound calcium initiates gelation throughout the entire cross-section simultaneously”. Applicant continues in Par. 4, stating, “If one were to modify Nadeau by substituting this volumetric trigger for Nadeau’s interfacial trigger at the mixer inlet, which Applicants in no way concede, it would cause the mass to solidify instantaneously across the entire diameter of the static mixer. This rapid, volumetric solidification would physically preclude the helical mixer from performing its intended folding action”.
Firstly, however, Nadeau teaches the use of calcium ion sequestrant agents, [col. 6, In. 27] such as sodium tripolyphosphate. [col. 4, In. 17] Coupled with the above rejection of instant claim 1, which states, “It would have been obvious for one of ordinary skill in the art to arrange the order of steps such that the organic acid taught in Popp et al. would be added to the composition taught in Nadeau et al. after the calcium salts would have been added to the composition”, the composition of Nadeau is essentially compositionally identical to the composition taught in the instant invention, and would possess the same properties, that is the ability to set instantaneously.
Next, applicant is directed to MPEP 2141.02 VI, which states, “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”. Nadeau et al. teaches that the organic acid can control the rate of gelation, [Col. 6, Ln. 21-23] including a rate of instantaneous, regardless of whether such an embodiment would be preferable for the invention taught.
Finally, with respect to applicant’s assertion of the effect instantaneous gelation would have on the invention and equipment required to produce the invention taught in Nadeau et al., applicant is directed to MPEP 2145 I, which states, “Arguments presented by applicant cannot take the place of evidence in the record”. There is no evidence on record that the reaction recited would cause an inferior product when applied in tandem with the teachings of Nadeau et al. in view of Popp et al.
For this reason, the assertion made in section one are found to be unpersuasive.
Applicant asserts on Page 8, Par. 5, that, "Popp fails to overcome the deficiencies of Nadeau because Popp directed to a completely different technical system" and "the role of alginate in Popp, when mentioned, is entirely different from its role in the claimed invention" on Page 9, Par. 2. Applicant continues in Par. 3, that, “a skilled artisan would not apply a teaching from Popp related to an inactive alginate component to the active alginate system of Nadeau”.
Applicant continues in Par. 5, with respect to examiner’s response dated January 21, 2026, “that the combined teachings do not suggest the claimed invention, and the resulting products are not substantially identical. The Examiner has failed to account for the fact that a prior art reference must be considered in its entirety, including portions that lead away from the claimed invention”. Applicant concludes on Page 10, Par. 2, that “[a]pplicants’ argument is not predicated on a lack of “bodily incorporation,” but rather on a fundamental change in the principle of operation”.
Examiner reasserts statements made in previous actions here, with regard to the combination of Popp, as well as examiner’s response above with regard to the principle operation of the reaction” MPEP 2145 III states, “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” Popp establishes that it is well-known in the art that a non-calcium ion can be used to set a gelling reaction and teaches specific organic acids used in the production of jellified foods.”
MPEP 2141.02 VI, which states, “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”. Nadeau et al. teaches that the organic acid can control the rate of gelation, [Col. 6, Ln. 21-23] including a rate of instantaneous, regardless of whether such an embodiment would be preferable for the invention taught.
For these reasons, applicants’ assertions in section 2 are found to be unpersuasive.
Applicant asserts on Page 10, Number 3, that “The combination fails to teach step (c) because “applying pressure that is higher than atmospheric pressure” for a quantitative liquid expulsion is neither taught nor suggested by the cited art”. Applicant continues on Page 11, Par. 1, “claim 1 has been amended to recite applying pressure that is higher than atmospheric pressure, which distinguishes the claimed method from incidental moisture loss or passive syneresis occurring at ambient conditions disclosed in Nadeau”.
Applicant supports the assertion in Par. 3, stating, “in Nadeau, where the goal is to produce robust chunks for retorting, expelling up to 40% of the product weight would be viewed as a catastrophic loss of yield, not a target for optimization” and concludes on Page 12, Par. 2, that “[t]he cited art does not recognize liquid expulsion as a variable that affects the microbiological stability of the product”.
The rejection of instant claim 1 has been updated to clarify that the cutting action of Nadeau et al. would apply a pressure greater than atmospheric and would therefore still read on the amended limitation. Additionally, applicant’s assertion that Nadeau et al. would have optimized toward the high end of the range of liquid expulsion does not account for the whole range recited, which possesses a lower limit of 5%. By applicant’s own logic, optimizing the loss of liquid towards 5% would have been routine in the method taught by Nadeau et al.
Finally, applicant is directed to MPEP 2145 VI, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims”. There is no limitation recited in claim 1 directed to the microbial stability of the product as a result of the liquid expulsed from the composition. Additionally, considering the composition taught by Nadeau et al. in view of Popp et al. is substantially identical to the composition recited, the resulting invention would possess the same microbiological stability possessed by the claimed invention.
For these reasons, applicant’s assertions with respect to section 3 are found to be unpersuasive.
Finally, applicant asserts on Page 12, Par. 7, "Gritzer teaches retaining leftover pasta cooking water…which becomes starchy and flavorful as components (like starch and salt) leach into it”, contrasted with the instant invention on Page 13, Par. 1, that “a mechanical squeezing operation on a gel matrix to collect a non-starchy liquid for a specific manufacturing purpose”.
In contrast to applicant’s assertion, the instant specification teaches the use of food ingredients that comprise starches in the food composition, [pg. 18, In. 8] therefore, the liquid expulsed from the gel would also comprise starch. Additionally, The method taught by Nadeau et al. in view of Popp et al. produces a composition that is substantially identical to the composition produced by the method of the instant application, and would therefore produce a substantially identical liquid from the expulsion. In view of the motivation provided by Gritzer that the flavor of the composition is retained in the liquid and carries over into the sauce. [Conclusion, Par. 2]
For these reasons, and those enumerated above, applicant’s assertions are found to be unpersuasive, and the rejection of claims 1-19 are maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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