256Notice 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 .
DETAILED ACTION
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Applicant’s election of Group I, Claims 1-7, in the reply filed on 9 July 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 8-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 5 is objected to because of the following informalities: the limitation “the dry salting phase sodium nitrate is added…” recited in line 2-3 appears to be missing a comma between “phase” and “sodium”. Appropriate correction is required.
Claim 6 is objected to because of the following informalities: “underside” is recited twice Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-7 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the production line" and “the raw material in the fresh state” in line 3, “the product” in line 4, “the meat” in line 5, “the salty product” in line 7, “the anatomical piece” in line 10, “the vacuum bag” in line 10-11, “the bagged and tied product” in line 12, and “the aging molds” in line 19. There is insufficient antecedent basis for this limitation in the claim. Also, the term “the product” recited in line 8 within the “resting phase”, line 14 within the drying phase, line 16 within the phase of maturing, and line 19 within the phase of washing, are not clear what “the product” is referring to (i.e. the salty product or the product from a particular phase). Furthermore, the claim is not clear that any of the “phase” are performed on the “raw material in the fresh state”. Therefore, it is not clear as to how the raw material in the fresh state is transformed into a raw cured meats without bone and without rind with a short maturation.
Claims 2-7 are rejected based on its dependency on a rejected claim. Additionally, anywhere that recites “the product” renders the claim indefinite because it is not clear what “the product” is referring to (i.e. the salty product or the product from a particular phase).
Regarding Claim 3, the phrase "i.e. not frozen" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claim 7, the claim recites “the salted product” in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1, 2, 5 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over AOG (Coffee Cured Bresaola, Gastrochemist.com – previously cited) in view of Pardede (Homemade Venison Bresaola, Italian Air Dried Cured Deer Meat Recipe, Dentist Chef) and Austin Industrial Refrigeration (Refrigeration Guidelines for Specific Applications, U.S. Cooler – previously cited).
Regarding Claims 1 and 6, AOG discloses a method for producing raw cured meats without bone and without rind (bresaola, as per Claim 6):
a phase of receipt on the production line of raw material in the fresh state (processing raw eye of round, page 1, construed as deprived of bony and tendon parts, derived from tip of hip as per Claim 6);
a dry salting phase with a tanning weight of 2.75% of the meat to be treated (kosher salt, see Table of cure ratio on page 2);
a phase of vacuum packing the salty product (vacuum sealed, page 1),
a resting phase of the product under vacuum in a salting cell (sit in the refrigerator, page 1) for at least seven days (two weeks, page 1) at a temperature below 10°C (refrigerator temperatures are known to be at 4°C or below),
a phase of filling the anatomical piece into natural casing after removing the vacuum bag (beef bung casing, page 3), a drying station (12°C and RH 70-80%, page 3-4),
a drying phase in which the product remains in a drying room for at least seven days (1 month+, 70-80% relative humidity at 12°C, bottom of page 3), which can also constitute as a phase of maturing the product in a maturing room for a period of 1 month (the prior art disclosure of “1 month+” encompasses the at least seven days in the drying phase and the at least 1 month in the maturing phase at similar temperature and relative humidity);
and a phase of washing the aging molds (used white vinegar to clean off the outside of the bresaola, page 5), peeling the casing of the product and packaging it in a vacuum bag (page 6).
As to the prior art teaching of the drying station, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). In this case, a drying phase at 12°C is seen to perform similarly to a drying phase at 14°C and the difference would have been an obvious matter of preference (i.e. to adjust the rate of drying).
AOG is silent to a phase of receipt where the raw material has a core temperature of 0°C to 8°C, and a cold rest phase of the bagged and tied product in a resting cell for at least twenty days at a temperature between 0°C and 7°C and a relative humidity between 65% and 90%.
As to the core temperature of the raw material at the phase of receipt, the claimed temperature overlaps with known refrigeration temperatures as evidenced by Austin Industrial Refrigeration (45 Degrees F/ 55%-70% humidity, see Page 2). Therefore, it would have been obvious to one of ordinary skill in the art to receive the raw material at refrigeration temperatures for the purpose of maintaining food safety. As to the cold resting phase, Pardede is relied on to teach a process of making venison bresaola using refrigeration. Pardede particularly discloses a process of hanging the encased meat product in the refrigerator which is noted as the ideal environment for cured meats (Hung the venison bresaola in your refrigerator, set it in “dry mode”, pages 5 and 14). In this case, the cold resting phase may be between one and three months depending on the starting weight of the bresaola (page 3). Therefore, since both Pardede and AOG are directed to methods of making bresaola, it would have been obvious to one of ordinary skill in the art to combine processes known for the same purpose of curing bresaola products (see MPEP 2144.06). Since both process of maturing the encased meat product in both refrigeration temperatures and temperatures of 12°C, it would have been obvious to one of ordinary skill in the art to use both methods to achieve the desired flavor profile and texture imparted by each respective process.
Regarding Claim 2, while AOG discloses a drying phase that is near or within the claimed temperature and humidity, AOG does not recite the claimed first sub-drying phase and second sub-drying phase. However, since AOG is also directed to Bresaola (compared to Applicant’s Claim 6), the particular time and temperatures of the drying phase would have been a matter of routine optimization. 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). See MPEP 2144.05. II. It would have been obvious to one of ordinary skill in the art to determine the particular drying conditions based on the desired texture and moisture level of the final product.
Regarding Claim 5, AOG further teaches adding sodium nitrite (cure# 2, see Table on page 2), and no refinement phase is present.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Cornforth et al. (Quality and safety of low-oxygen packaging of fresh meat, Meat International).
Regarding Claim 3, the combination is silent to wherein the raw material has been previously vacuum-packed fresh with a residual oxygen value in the vacuum bag of <=0.5%. Cornforth is relied on to teach studies of packaged raw meat which concludes that the package should have an oxygen level of less than 0.15% to prevent browning within the package (see page 1, second to last paragraph). Also, vacuum packaging lowers total plate count (page 1 last paragraph). Therefore, it would have been obvious to one of ordinary skill in the art to provide a raw meat material that has been vacuum-sealed with low residual oxygen level to provide a product that is low in bacterial load and reduced browning.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Watson et al. (Fate of Escherichia Coli O157:H7, Salmonella Spp. and Listeria Monocytogenes during Curing and Drying of Beef Bresaola, Meat and Muscle Biology).
Regarding Claim 4, the combination is silent to the value of free water (Aw), also construed as water activity. Watson is relied on to teach a process of making bresaola where requires the stuffed bresaola pieces to be hung and allowed to dry to a target water activity of <0.92 which resulted in a reduction of three particular pathogen within the study (see page 1). Therefore, it would have been obvious to one of ordinary skill in the art to achieve similar water activity values for the purpose of reducing pathogens including Escherichia, Salmonella, and Listeria.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Watson et al. (Fate of Escherichia Coli O157:H7, Salmonella Spp. and Listeria Monocytogenes during Curing and Drying of Beef Bresaola, Meat and Muscle Biology) and evidenced by Mecart (Clean Room Classifications).
Regarding Claim 7, the combination is silent to performing the method in a controlled atmosphere with a minimum ISO 8 classification; however, Watson, which has been relied on in the rejection of Claim 4 to provide a reduction of pathogens, would have lead one of ordinary skill in the art to a controlled atmosphere environment for the same purpose of reducing growth of pathogens. Furthermore, Mecart is provided as evidentiary reference to show that ISO 8 is classified as the second to last “cleanest” in ISO standard, ranging between ISO 1 to ISO 9. The class is the level of cleanliness the room complies with, according to the quantity and size of particles per cubic meters of air (Page 1, first paragraph). In view of this, it would have been obvious to one of ordinary skill in the art to use a clean room having an ISO of at least 8 to maintain an optimized level of cleanliness and maintain food safety while handling raw food products.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792