DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4, 9, 13, 18-20 and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over in view of Kageyama (US 5,860,356) in view of Kobayashi et al. (US 4,986,995) and Weibye (US 4,385,074).
Regarding claim 1, the claim recites alternatives. For the sake of examination, the alternative “rice” is chosen, and the alternative “grains other than rice” is construed to be not required.
Kageyama teaches a sterile-packed rice product that has been previously cooked (abstract), therefore construed to be an “instant cooked” grains”, comprising washing and soaking i.e., immersing, the rice with water (column 2 lines 63-64) sterilizing the immersed rice with pressurized steam i.e., superheated steam, at a temperature of at least 100oC (column 3 lines 7-9 and 12-13), adding water and cooking the sterilized rice “with steam in a known manner” (column 4 lines 30-32), sealing a container containing the cooked rice (column 5 lines 41-45), and steaming the sealed tray for a predetermined time period (column 6 lines 3-7).
Regarding the superheated steam cooking the rice to obtain “semi-finished cooked” rice, the process “facilitates alpharization of rice starch, which contributes to increase of rice flavor and reduction of rice cooking period”, and superheated steam treatment is performed for a period of time (column 4 lines 8-12). Absent persuasive evidence to the contrary, one of ordinary skill would have reasonably expected the temperature and duration of superheated steam exposure to at least partially cook the rice
Regarding the temperature and duration of cooking by superheated steam, Kageyama teaches temperatures above 100oC (column 3 lines 7-9) for a period of 5-10 minutes which is repeated 6-10 times (column 4 lines 8-12). It is noted that a single cycle duration (5-10 minutes) reads on “performed for 2 minutes to 15 minutes” as claimed, where the claim as currently drafted does not exclude multiple cycles.
While the temperature range of 110-127oC is not explicitly stated, it would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to use steam in the claimed range since time and temperature are well-known parameters affecting sterilization, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during routine experimentation and optimization procedures due to factors such as desired rate and/or degree of heat treatment and alpharization of starch.
Kageyama does not teach the steam used to cook the sterilized rice is atmospheric steam, and retort heating the sealed container.
Kobayashi et al. teaches a method for making retort boiled rice (abstract), where rice is recognized to be cooked by steam at about ambient pressure, cooled, sealed in a retort container, and retort sterilized (column 1 lines 12-16; column 2 lines 24-31).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to cook the sterilized rice using atmospheric steam and to retort heat the sealed container since the reference indicates “known” cooking methods can be used and suggests further heat treatment with “steaming the sealed tray for a predetermined time period” as stated above, where the prior art recognizes cooking rice with atmospheric steam and retort sterilization of the sealed container, and therefore to combine prior art elements according to known methods to yield predictable results, and to ensure sterility of the entire packaged product, thereby minimizing risk of contamination during transport and storage.
Kageyama does not teach the water adding ratio of rice obtained after superheated steam cooking is 45-90%. The limitation “water adding ratio” is interpreted in view of the specification to be the ratio of absorbed moisture contained in the semi-finished cooked grains obtained through the superheated steam cooking process compared to the instant cooked grains raw materials before washing (paragraphs 51-52).
Weibye teaches a method of making quick cooking (instant) rice by contacting the rice with water and steam for gelatinization i.e., cooking (abstract), comprising gelatinization of the rice to a certain predetermined moisture content of between 24-78% (column 3 lines 29-30 and 34-37), the number of cycles of spraying of water is based on rice type and starch content (column 3 lines 59-68), and the total amount of moisture imparted to the rice depends on “nature of the rice, the pressure and temperature of the steam, the temperature of the water, the time of treatment, and the weight and surface area of the rice being contacted” (column 4 lines 44-50). The steam treatment includes both superheated “dry” steam and saturated “wet” steam (column 2 lines 17-22 and 52-54).
While the reference does not explicitly recite “water adding ratio”, the reference nonetheless teaches water absorbed by the rice which would have necessarily resulted in a “water adding ratio”.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama such that the semi-finished cooked rice has a water adding ratio of 45-90% since the prior art recognizes that the amount of moisture added to the rice depends on various factors, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as type of grains in the composition, desired texture/mouthfeel, degree/rate of gelatinization, the pressure/temperature of the steam, the temperature of the water, the time of treatment, and the weight and surface area of the rice being contacted.
Regarding claims 2-4, Kageyama does not teach spraying water onto the raw materials while cooked in superheated steam, the cooking and adding water performed simultaneously.
Weibye teaches the cooking by superheated steam can be performed while simultaneously spraying water onto the rice (column 3 lines 46-50), where the process is performed to obtain a desired degree of gelatinization and moisture content based on various parameters of the process (column 4 lines 44-50).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to simultaneously spray water and cook the raw materials by superheated steam since the prior art recognizes simultaneous steaming and water spraying to obtain instant cooked grains having a desired moisture content, and therefore to provide increased control of moisture content throughout the pre-gelatinization and sterilization process, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and to facilitate uniform distribution of moisture throughout the rice during said process.
Regarding claim 9, Kageyama does not teach a moisture content of the cooked grains obtained after the step of cooking using superheated steam is 35-58%.
Weibye teaches a controlled amount of water and steam is utilized in order to attain a moisture content of about 24-78 wt% (column 2 lines 42-45), where the total amount of moisture imparted to the rice depends on variables including the nature of the rice, the pressure and temperature of the steam, the temperature of the water, the time of treatment, and the weight and surface area of the rice (column 4 lines 44-49).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to obtain the claimed moisture content after cooking by superheated steam since the reference teaches the rice to be sterilized already has a water content of up to 30% (column 2 line 65), since the prior art recognizes controlling moisture content of the rice, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and since the values would have been used during the course of routine experimentation and optimization procedures due to factors such as those disclosed by Weibye, as well as desired texture/mouthfeel and degree of gelatinization.
Regarding claim 13, Kageyama does not teach retort heating at the claimed temperature range and durations.
Koyabashi et al. further teaches retort conditions of 120oC for 20 minutes obtains rice comparable in softness, texture, and appearance to conventional cooked rice while ensuring sterilization (column 6 lines 15-26).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to retort at the claimed temperature and time ranges since the prior art recognizes such conditions for obtaining satisfactory results, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as ensuring sterility of the sealed food package while maintaining desirable characteristics similar to conventionally cooked rice.
Regarding claim 18, Kageyama teaches inverting the sealed container (column 6 lines 3-4 and 7-9).
Regarding claim 19, Kageyama does not specify the type of grain.
Weibye teaches the rice can be long or short grain rice (column 3 lines 5-7).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to use long or short grain rice since the grains are well known and commonly used in the art, since there is no evidence of criticality or unexpected results associated with the claimed feature, and as a matter of preference for the flavor, aroma, texture/mouthfeel, and nutritional profile.
Regarding claim 20, Kageyama teaches a tray (abstract).
Regarding claim 23, the combination applied to claim 1 teaches a method of making instant cooked grains as stated for said claim. The same combination is applied to claim 23, would have been obvious for the same reasons, and would have resulted in instant cooked grains. Furthermore, Weibye teaches instant cooked grains are recognized by the prior art (column 6 line 4).
Regarding claim 24, Kageyama teaches cooked rice as stated for claim 1.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Kageyama in view of Kobayashi et al. and Weibye as applied to claim 1 above, and further in view of Fukumori et al. (US 2014/0370174 A1).
Regarding claim 10, Kageyama does not teach, prior to sealing, adding cooking water to the container containing the raw materials cooked by superheated and atmospheric steam.
Fukumori et al. teaches subjecting rice to a pressurized heated steam treatment step and packaging in a retort pouch, and adding liquids such as water or seasoning liquid with the rice in the pouch prior to sealing (paragraph 63).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to provide additional water prior to sealing since the reference already contemplates adjusting moisture content of the product by adding water, since the prior art recognizes the claimed process for pre-cooked rice in a retort pouch, since the evidence of record does not indicate criticality or unexpected results associated with the claimed feature, and to provide additional water or seasoning to obtain a desired final flavor, texture/mouthfeel and nutritional profile.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Kageyama in view of Kobayashi et al. and Weibye as applied to claim 1 above, and further in view of Sakamoto et al. (WO 2021/149574 A1) and Sako et al. (US 2023/0210148 A1).
Citations to Sakamoto et al. are taken with respect to US equivalent (US 2022/0346414 A1).
Regarding claim 11, the combination applied to claim 1 teaches atmospheric steam cooking, necessarily requiring an atmospheric steam cooker.
The combination does not specify the temperature of the atmospheric steam cooker is controlled to 97-99oC.
Sakamoto et al. teaches a method of processing grain product (abstract), where different cooking devices and methods are optimal at different cooking temperatures, including those below 100oC (paragraph 96).
Sako teaches a method for producing instant cooked rice (abstract; paragraphs 2-3), where cooking with steam at around atmospheric can be performed at temperatures as low as 97oC (paragraph 27).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to control the cooker temperature to the claimed range since the prior art recognizes the temperature range for cooking grains such as rice, and controlling cooking devices accordingly, since there is no evidence of criticality or unexpected results associated with the claimed values, and since the temperatures would have been used during the course of routine experimentation and optimization procedures due to factors such as type of grain, type of cooking device, and desired texture/mouthfeel.
Regarding claim 12, the combination applied to claim 1 teaches atmospheric steam cooking, but does not specify 5-15 minutes.
Sakamoto et al. teaches cooking for a period of no less than 10 minutes has elapsed after water content has been absorbed by the rice (paragraph 96).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to cook the grains with atmospheric steam for 5-15 minutes since there is no evidence of criticality or unexpected results associated with the claimed range, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired amount of water absorption, degree of pre-gelatinization prior to atmospheric steam cooking, texture/mouthfeel, and type of grains.
Claims 14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kageyama in view of Kobayashi et al. and Weibye as applied to claim 1 above, and further in view of Zukerman et al. (US 4,764,390).
Regarding claim 14, Kageyama does not teach adding an emulsifier.
Zukerman et al. teaches a method for making a rice product (abstract) comprising adding emulsifiers in order to prevent the rice grains from sticking together during cooking thereby reducing damage to the grains (column 2 line 62 to column 3 line 11).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to include emulsifiers in the rice since the reference suggests modification (column 6 lines 37-39), and for the same advantages taught by Zukerman et al.
Regarding claims 16-17, Kageyama does not teach mixing sauce with the rice, performed after cooking by superheated steam.
Zukerman et al. further teaches mixing the cooked grains with other ingredients such as butter, dextrose, soy sauce, etc. to flavor the grains (column 3 lines 20-28).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Kageyama to mix the cooked rice with sauce for the same reasons stated for claim 14, since the combination of sauce and grains is a common pairing for foods products, and as a matter of preference for the flavor, aroma, mouthfeel/texture, and nutritional profile of the grains.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 9-14, 16-20 and 23-24 (particularly claim 1) are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 6-7, 9-12, 14-18 and 20-25 (particularly claims 1 and 6-7) of copending Application No. 17/920,265 in view of Kageyama and Kobayashi et al. as cited in the prior art rejection above.
Claim 1 of the ‘265 application teaches the steps of washing, cooking using superheated steam at 120-130oC, a water adding ratio obtained after superheated steam cooking being 45-90%, sealing a container containing the cooked raw materials, and retort heating the sealed container. Claim 6 teaches 120-125oC and claim 7 teaches 2-10 minutes.
The ‘265 application does not teach the raw materials cooked by using superheated steam are further cooked by using atmospheric steam.
Kageyama teaches treating rice with superheated steam and then cooking with steam “in a known manner”.
Kobayashi et al. teaches a method for making retort boiled rice (abstract), where rice is recognized to be cooked by steam at about ambient pressure, cooled, sealed in a retort container, and retort sterilized (column 1 lines 12-16; column 2 lines 24-31).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of the ‘265 application to partially cook the raw materials using superheated steam followed by fully cooking by using atmospheric steam since the prior art recognizes the two-step cooking process for rice, and to obtain a product having optimal characteristics based on features such as the type of grains, and the desired texture/mouthfeel and water content of the final product.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant’s arguments with respect to claims 1-4, 9-14, 16-20 and 23-24 have been considered, but the amendment to claim 1 necessitated new grounds of rejection.
Applicant’s arguments are directed only to Jung. However, Jung et al. is no longer relied upon, and is replaced with Kageyama and Kobayashi as stated above. Likewise, the provisional non-statutory double patenting rejection is updated to include Kageyama and Kobayashi.
Applicant’s argument against the dependent claims is not persuasive for the same reason stated above.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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/BRYAN KIM/Examiner, Art Unit 1792
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