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 Objections
Claims 9-11 and 13-14 are objected to because of the following informalities:
Regarding claim 9, in line 1 before “semi-finished” insert “the”. Delete the space before “finished”.
Regarding claim 10, in line 1 before “container” delete “a” and insert “the”.
Regarding claim 11, in line 3 before “97oC” delete “at”.
Regarding claim 13, in line 2 after “temperature of” delete “I 10” and amend to instead recite “110”.
Regarding claim 14, before “step” delete “the” and amend to instead recite “a”.
Appropriate correction is required.
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, 6-7, 9, 13, 19, and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. (US 2016/0249655 A1) in view of Weibye (US 4,385,074). BA NPL is relied on as evidence for claim 19.
Regarding claim 1, Jung et al. teaches a method of preparing cooked grains (abstract), where the cooked grains are “ready-to-cook” and can be eaten by a consumer after a simple heating/cooked process by microwaving (paragraph 22), and therefore considered to be “instant cooked grains”, comprising washing and soaking (immersing) the raw materials in water and placing the immersed rice into a container (paragraph 24), wherein the raw materials include rice and one or more grains other than rice (paragraph 25), pre-gelatinizing the raw materials by sterilizing at a temperature of 130-150oC (paragraphs 28-29), cooking the sterilized raw materials by using steam at 100oC i.e., atmospheric steam, sealing a container containing the raw materials cooked in the superheated and atmospheric steam, and retort heating the sealed container (paragraph 46). Since the sterilization at 130-150oC at least partially gelatinizes the rice, the process is construed to be a type of cooking process.
Jung et al. does not teach the sterilization at 130-150oC comprises sterilization by using superheated steam.
Weibye teaches a method of making quick cooking (instant) rice (abstract) comprising cooking the rice by simultaneously spraying steam and water (column 3 lines 47-51), where the steam is pressurized (superheated) and has a temperature of between about 135-160oC (column 4 lines 1-4). The total amount of moisture imparted to the rice depends on several variables including temperature of the steam (column 4 lines 44-46), and the process using the steam at the disclosed temperature provides a “superior quick cooking rice product” that “does not require conventional cooking in boiling water to be suitable for consumption” (column 5 lines 59-63).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to cook the immersed raw materials with superheated steam during the step of sterilizing since the reference already indicates cooking (gelatinization) during sterilization and suggests sterilization can include steaming (paragraph 28), since superheated steam is an art recognized sterilization technique and Jung et al. does not particularly limit the method of sterilization, where cooking rice can be performed by superheated steam as taught by Weibye, and therefore to combine prior art elements according to known methods to yield predictable results, and in order to control the total amount of moisture imparted to the rice and provide a “superior” quick cooking rice product.
Jung et al. does not teach the water adding ratio of semi-finished cooked grains obtained after the step of cooking by using the superheated steam 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 gelatinization (cooking) 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).
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 at the time of the invention to modify the process of Jung et al. 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 there is no evidence of 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, Jung et al. 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 at the time of the invention to modify the process of Jung et al. to simultaneously spray water and cook the raw materials by superheated steam since the reference already contemplates adding water to the rice while steam cooking, 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 there is no evidence of criticality or unexpected results associated with the claimed feature, and to facilitate uniform distribution of moisture throughout the rice during said process.
Regarding claim 6, Jung et al. teaches sterilization at 130oC as stated for claim 1, and the combination applied to said claim teaches using superheated steam.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to sterilize and cook the grains by using superheated steam at a temperature of 110-130oC since the reference recognizes a temperature range for sterilization overlapping that of the claimed range for cooking, since the prior art recognizes sterilizing/cooking using superheated steam, capable of heating at the claimed temperature range, 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, texture/mouthfeel, final moisture content, duration of treatment, and degree of pathogen reduction.
Regarding claim 7, Jung et al. does not teach cooking by using superheated steam is performed for 2-10 minutes.
However, Jung et al. teaches the sterilization step comprises heating to 130-150oC for 5-8 seconds for 4-10 times, which corresponds to a total duration of 20 to 80 seconds (paragraph 46).
Weibye teaches the spraying of water can last between 5-40 seconds (column 3 lines 52-53), the steaming can last for about 0.25-3 minutes (column 4 lines 10-11), where the spraying of water and steaming can be performed for up to 7 cycles depending on the type of rice, the duration of the sprays, the temperature of the sprays, etc., until the rice is substantially gelatinized (column 3 lines 59-68; column 4 lines 12-16).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to cook the rice for 2-10 minutes since the reference already contemplates varying the cooking time, since the prior art recognizes that the duration of steaming and spraying can be varied, 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 number of steaming and spraying cycles required, the weight and surface area of the rice being contacted, and the degree of pathogen inactivation.
Regarding claim 9, Jung et al. 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 52-73 wt% (column 3 lines 32-33 and 39-40), 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 at the time of the invention to modify the process of Jung et al. to obtain the claimed moisture content after cooking by superheated steam since the reference teaches a final water content of 60-65%, where one of ordinary skill in the art would have expected the water content to be lower than the above range when only partially gelatinized by the sterilization step of Jung et al., since there is no evidence of 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, Jung et al. teaches the retort process includes sterilization at a first temperature of 100-110oC for 3-5 minutes and at a second temperature of 120-130oC for 5-15 minutes (paragraph 46). The retort-packaged cooked rice is sterilized under optimal conditions for maintaining taste quality at the same level as that of aseptic-packaged cooked rice (paragraph 82).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to retort at the claimed temperature and time ranges since there is no evidence of criticality or unexpected results associated with the claimed features, 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 the taste quality of the cooked rice at the same level as that of aseptic-packaged cooked rice as taught by Jung et al.
Regarding claim 19, Jung et al. teaches various types of rice and combinations thereof can be used in the process (paragraph 25). Furthermore, long and short grain varieties of rice are well known in the art, and are understood to exhibit different organoleptic characteristics as evidenced by BA NPL (pages 4-5).
It would have been obvious to one of ordinary skill in the art at the time of the invention to use long or short grain rice 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 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, Jung et al. teaches instant cooked grains (paragraph 22).
Regarding claim 24, Jung et al. teaches the instant cooked grains are mixed cooked grains (paragraph 24).
Claims 10 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. in view of Weibye as applied to claim 1 above, and further in view of Fukumori et al. (US 2014/0370174 A1).
Regarding claim 10, Jung et al. 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 at the time of the invention to modify the process of Jung et al. 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 there is no evidence of unexpected results associated with the 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 flavor, aroma, texture/mouthfeel, moisture content and cooking time.
Regarding claim 18, Jung et al. does not teach inverting the sealed container.
Fukumori et al. teaches packing rice into a retort pouch, the rice immersed in liquid inside the pouch, and flipping the pouch, thereby necessarily inverting, in order to provide uniform absorption and permeation of liquid into the rice (paragraphs 65 and 67).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to invert the sealed container since the prior art recognizes flipping packaged precooked rice, and in order to similarly facilitate mixing and uniform distribution of the rice and other components in the pouch.
Claims 11-12 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. in view of 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, Jung et al. teaches cooking with steam at 100oC in an atmospheric steam cooker (paragraph 63), but does not specify the temperature 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 at the time of the invention to modify the process of Jung et al. to control the cooker to control the 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, Jung et al. teaches cooking at 100oC for about 30 minutes (paragraph 46), 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 at the time of the invention to modify the process of Jung et al. 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.
Regarding claim 20, Jung et al. teaches placing the rice into a container as stated for claim 1, but does not teach the container being either a pouch or a tray.
Sako teaches rice is sealed in a tray container (figures 2-4), where the container can be any conventionally known container and have flexibility (paragraph 25). The container comprises protrusions 51 on the inner surface of bottom 2 (figures 3-6; paragraph 46), where the feature facilitates heating/cooked by increasing heat transfer and efficiency (paragraph 47).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Jung et al. to use a tray as the container since the reference recites the container can be a heat resistant plastic container (paragraph 44) but does not otherwise limit the type of container, since the prior art recognizes that instant rice can be packed in trays and that the container can be any known container having flexibility, since there is no evidence of criticality or unexpected results associated with the claimed feature, to cook the rice directly in the packaging, to facilitate transport and storage (e.g. by stacking), to facilitate heat transfer and efficiency, and as a matter of manufacturing preference for the type of packaging used.
Claims 14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Jung et al. in view of Weibye as applied to claim 1 above, and further in view of Zukerman et al. (US 4,764,390).
Regarding claim 14, Jung et al. does not teach adding an emulsifier.
Zukerman et al. teaches a rice product (abstract) comprising rice mixed with other non-rice grains (column 1 lines 57-64), comprising adding emulsifiers in order to prevent the grains from sticking together during cooking and to prevent 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 at the time of the invention to modify the process of Jung et al. to include emulsifiers since the reference already teaches additional ingredients such as maltodextrin can be incorporated into the product, and for the same advantages taught by Zukerman et al.
Regarding claims 16-17, Jung et al. does not teach mixing sauce with the raw materials, 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 at the time of the invention to modify the process of Jung et al. to mix the cooked grains with sauce since the reference already teaches additional ingredients can be incorporated (paragraph 30), 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, 6-7, 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 claim 1) of copending Application No. 17/920,265 in view of Jung 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, 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.
The ‘265 application does not teach the raw materials cooked by using superheated steam are further cooked by using atmospheric steam.
Jung et al. teaches first sterilizing rice to pre-gelatinize (cook) the rice followed by final cooking using atmospheric steam (paragraph 46).
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, see page 7, filed 6/24/2025, with respect to the rejection of claims 1-2, 12-13,19 and 23-24 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, new grounds of rejection are made in view of Weibye.
Applicant’s argument against the combination of Jung and Sakamoto has been considered, but the new grounds of rejection are made using a combination of Jung and Weibye. Weibye teaches cooking using superheated steam.
Applicant’s argument against the combination of Jung and Sako for the water adding ratio has been considered, but the new grounds of rejection do not rely on Sako to teach the claimed feature. Rather, Weibye is relied on to teach that the amount of water added to the rice, and the moisture content of the cooked rice, can be varied based on the type of rice, starch content, 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 3 lines 60-68; column 4 lines 44-50). The moisture content of the cooked rice is e.g., 52 wt% (column 3 line 50), which is within the range claimed by applicant (claim 9), and one of ordinary skill would have modified the water adding ratio based on routine experimentation and optimization due to the factors stated above.
Applicant argues the purpose of Jung’s sterilization is not for cooking. The argument is not persuasive since the reference teaches sterilization causes gelatinization (paragraph 28), which is understood to be a type of cooking process for grains, particularly rice.
Applicant argues that experimental example 4 shows unexpected results of a complex cooking method (both superheated steam cooking and subsequent atmospheric steam cooking) as compared to a single cooking method.
This is not persuasive since the results are expected by the prior art, particularly since Jung et al. teaches pre-gelatinization (partial cooking) by sterilization such that a “surface of the rice is hardened so that deterioration in quality such as the softening of the rice at high temperature and pressure cooking can be inhibited” (paragraph 28). This suggests to one of ordinary skill in the art that a “complex” cooking method comprising a first heating step using temperatures greater than a second heating step using atmospheric steam provides a final product having characteristics that are desirable, and particularly since rice can be cooked by superheated steam as taught by Weibye.
Applicant argues that the water adding ratio of 66% yields unexpected results of preferred appearance, texture, and overall taste as compared to a ratio of over 100%.
This is not persuasive since the results associated with a ratio of 66% are not commensurate in scope with the claimed range of 45-90%, see MPEP 716.02(d). It is unclear if the results are observed at ratios in the lower and upper ends of the claimed range, and if the results are not observed at ratios below and above the claimed range. Furthermore, the prior art recognizes adjusting the amount of water added to, and absorbed by the rice as taught by Weibye, where the final moisture content can be varied based on the parameters stated in the prior art rejection above. One of ordinary skill in the art would have optimized the amount of water added and absorbed by the rice in order to obtain desired characteristics of the cooked rice, particularly since it is understood in the art that adding too much or too little water when cooking rice can negatively affect the final characteristics (e.g., too dry/hard or wet/soft).
Applicant’s argument against the dependent claims is not persuasive for the same reason stated above.
Conclusion
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/BRYAN KIM/Examiner, Art Unit 1792