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 .
DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 22 April 2026 has been entered.
Response to Amendment
All rejections not repeated in this Office Action have been withdrawn.
Claims 1-2, 4-7, 9-13 are currently pending in this Office Action.
Election/Restrictions
Newly submitted claims 9-11 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Invention I, Claims 1, 2, 4-7 and 12-13, is directed to a method of forming a food product, and Invention II, Claims 9-11 is directed to a device for forming a food product. Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case the apparatus as claimed can be used to practice another and materially different process, such as a process of supplying a non-food item downwardly through the shutter device.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 9-11 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 112
Claims 12-13 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding Claim 12, the limitations associated with the second bar-like food or a second outer material through a second shutter device having a plurality of second shutter pieces is not supported by the specification at the time of filing. The closest support is found on paragraphs 51-54 which appears to be comparing the process of calculating the Y value when different thicknesses T are presented (though T is not a part of the linear equation). Thus, there is no support for a process that involves supplying a first bar-like food or a first outer material through a first shutter device having a plurality of first shutter piece, followed by a step of supplying a second bar-like food or a second outer material through the same supply device through a second shutter device having a plurality of second shutter pieces. This new claim reads on a single machine having simultaneously two shutter devices and a mechanism to convey the bar-like food items or the outer materials of a food item from a single supply device downwardly through two different shutter. Rather, based on the specification, it appears that the device employs a single shutter device (see 17 of Fig. 2) and where the shutter devices having different thickness are interchangeable.
Claim 13 is rejected based on its dependency on a rejected 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, 4, 5 7, and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tashiro et al. (US 6,709,256).
Regarding Claims 1 and 5, Tashiro discloses a method of forming a food product comprising:
supplying a bar-like food item (see abstract) from a supply device downwardly through a shutter device (shutter members 11) onto a support member (food-receiving apparatus 17), the shutter device including a plurality of shutter pieces having a thickness and capable of opening and closing (first control motor m1 to open and close the plurality of shutter, see abstract), the shutter device and the support member being vertically movable between a lower position and an uppermost position (see Col. 7 ln. 40-44),
supporting the bar-like food item by the support member (see 17 of Fig. 2), and
closing the plurality of shutter pieces to cut the bar-like food item (as per Claim 5, see Col. 1, ln. 65-Col. 2, ln. 4).
Tashiro does not specifically recite: before said supplying process, determining a vertical movement model pattern of the support member, calculating an uppermost position of the support member with an arithmetic equation Y=B-AX wherein Y is the uppermost position, X is a target weight of the food product and A and B are constants. However, Tashiro is directed to a support member and shutter pieces that are both vertically movable thereby inherently having an uppermost and a lowermost position, and also contemplates adjusting the operation to respond to variations in production (see Col. 7, ln. 19-35). Also, since Tashiro is directed to a process of forming a food-product of a particular shape formed by shutter pieces, the uppermost position of the support member would have been routinely determined based the amount of food, and the thickness of the shutter piece, because the amount of food would have directly determined the size of the final product. This is evident by Fig. 3C which depicts the movement of the conveyor thus showing a determination of a lowermost point and an uppermost point. In any case, it would have been an obvious to one of ordinary skill in the art to determine the uppermost position of the support member based on the desired serving portion size. The determination would have necessarily involved at least some arithmetic equation to determine a distance that results in a food product having a desired size.
Regarding Claim 4, Tashiro further teaches the selected vertical-movement model pattern, and the vertical-movement trajectory are readably stored as one memory group (Col. 2, ln. 37-40). Tashiro does not specifically recite storing the target weight, the thickness of the shutter piece, and the maximum stroke of the support member; however, since the vertical-movement trajectory would have been indirectly dependent on the size of the food being cut, and the thickness of the shutter, the target weight and the thickness of the shutter pieces would have necessarily been a factor in determining the vertical-movement model pattern. In any case, since Tashiro already comprise a memory device, it would have been obvious to one of ordinary skill in the art to store additional information used to determine the vertical-movement model pattern based on engineering design choice.
Regarding Claim 7, Tashiro does not specifically recite further comprising; comparing the target weight with an actual weight of the food product, and adjusting a supply amount of the bar-like food item supplied from the supply device so that the difference between the target weight and the actual weight is reduced. However, the limitation is merely reciting a method of optimization through routine experimentation (see MPEP 2144.05.II.A). In this case, since Tashiro is already concerned with adjustable components to account for variations during processing (Col. 7, Ln. 19-35), a person of ordinary skill in the art would have also adjusted the components to achieve a formed food product having a desired portion size. In other words, when the final products do not meet the required specifications, it would have been reasonable for one of ordinary skill in the art to configure the apparatus to arrive to the desired portion size. Note that the limitation of Claim 7 is necessarily met if the target weight and the actual weight are the same.
Regarding Claims 12 and 13, the claim is rejected for reasons discussed in Claim 1. The claim different in that the invention requires:
supplying a second bar-like food item or a second outer material of a food item from a supply device downwardly through a second shutter device having a plurality of second shutter pieces onto the support member, the second outer material having a second upper surface onto which a second inner material has been disposed, the second shutter device including a plurality of second shutter pieces capable of opening and closing, the second shutter device and the support member being vertically movable,
supporting the second bar-like food item or the second outer material from its lower side by the support member, and
closing the plurality of second shutter pieces, to cut the second bar-like food item, or to seal a periphery of the second outer material above the second inner material, so that the second food product is formed,
before the process of supplying the second bar-like food item or the second outer material of a food item,
determining a second vertical movement model pattern of the support member,
calculating a second uppermost position of the support member with the arithmetic equation including a second target weight of the second food product and a second thickness of the second shutter piece, and
determining a second vertical-movement trajectory of the support member by fitting the calculated uppermost position with the vertical movement model pattern.
However, the above limitations is merely a repetition of the first bar-like food item or a first outer material of a food item when presented with second shutter device having a plurality of shutter pieces with a thickness different from the first shutter device. This is not patentably distinct as it would read on a replacement of the prior art shutter device (for maintenance purposes) and performing a calibration of the second device. Furthermore, it would have been an obvious matter of routine optimization to adjust the parameters of the device following a replacement of a shutter device to achieve the desired product shape. That is, providing a second shutter device of a greater thickness would naturally require vertical adjustments since the thickness of the shutter device would overlap with the vertical range of the conveyor or else the seal would occur too close to the filling without allowing sufficient encrusting material to form a seal between the shutter and the encased filling (in the case of Tashiro where food filling is encrusted with a material and is cut by the apparatus, see abstract).
Claim(s) 1, 6, 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tada et al. (WO 2019/031558 A1).
Regarding Claims 1 and 6, Tada discloses a method of forming a food product comprising:
supplying an outer material (sheet-like outer covering material DD, see page 7, second to last paragraph) of a food item from a supply device downwardly through a shutter device (cutting device 15) onto a support member (See Fig. 7a, 7b, and 7c, where 47 is the support member), the outer material having an upper surface onto which an inner material has been disposed (solid S, see page 8, fifth paragraph), the shutter device including a plurality of shutter pieces having a thickness and capable of opening and closing (page 4, fourth paragraph), the shutter device and the support member being vertically movable between a lower position and an uppermost position (“movable up and down”, page 4, fourth paragraph, and page 8, second to last paragraph),
supporting the outer material from its lower side by the support member (see 47 of Fig. 7b), and
by closing the plurality of shutter pieces to seal a periphery of the outer material above the inner material (as per claim 6, see Fig. 7c), so that the food product is formed.
Tada does not specifically recite: before said supplying process, determining a vertical movement model pattern of the support member, calculating an uppermost position of the support member with an arithmetic equation Y=B-AX wherein Y is the uppermost position, X is a target weight of the food product and A and B are constants. However, Tada notes that the device is capable of supplying solid substances one by one or a predetermined amount (see Technical-Field, page 1). Also, Tada teaches a device where both the support member, and the shutter are movable vertically, thereby inherently having an uppermost and a lower position and being capable of making vertical adjustments to accommodate a range of sizes (see page 4, fourth paragraph and page 8, second to last paragraph). Therefore, the uppermost position of the support member would have been routinely determined based the amount of food, and the thickness of the shutter piece, because the amount of food would have directly determined the size of the final product, thereby allowing the shutter pieces to sufficiently seal the outer material around the inner material. In any case, it would have been an obvious to one of ordinary skill in the art to determine the uppermost position of the support member based on a size of the food for the purpose of sealing the outer material around the inner material with accuracy. The determination would have necessarily involved at least some arithmetic equation to determine a distance that results in a food product having a desired size.
Regarding Claims 12 and 13, the claim is rejected for reasons discussed in Claim 1. The claim different in that the invention requires:
supplying a second bar-like food item or a second outer material of a food item from a supply device downwardly through a second shutter device having a plurality of second shutter pieces onto the support member, the second outer material having a second upper surface onto which a second inner material has been disposed, the second shutter device including a plurality of second shutter pieces capable of opening and closing, the second shutter device and the support member being vertically movable,
supporting the second bar-like food item or the second outer material from its lower side by the support member, and
closing the plurality of second shutter pieces, to cut the second bar-like food item, or to seal a periphery of the second outer material above the second inner material, so that the second food product is formed,
before the process of supplying the second bar-like food item or the second outer material of a food item,
determining a second vertical movement model pattern of the support member,
calculating a second uppermost position of the support member with the arithmetic equation including a second target weight of the second food product and a second thickness of the second shutter piece, and
determining a second vertical-movement trajectory of the support member by fitting the calculated uppermost position with the vertical movement model pattern.
However, the above limitations is merely a repetition of the first bar-like food item or a first outer material of a food item when presented with second shutter device having a plurality of shutter pieces with a thickness different from the first shutter device. This is not patentably distinct as it would read on a replacement of the prior art shutter device (for maintenance purposes) and performing a calibration of the second device. Furthermore, it would have been an obvious matter of routine optimization to adjust the parameters of the device following a replacement of a shutter device to achieve the desired product shape. That is, providing a second shutter device of a greater thickness would naturally require vertical adjustments since the thickness of the shutter device would overlap with the vertical range of the conveyor.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over the prior art as applied to Claim 1, with respect to Tada et al. or, alternatively, Tashiro et al.
Regarding Claim 2, Tada and Tashiro further teaches wherein the support member has a structural lowest vertical-movement position (see Fig. 5 of Tada and Fig. 2 of Tashiro), wherein when a distance between the uppermost position and the structural lowest vertical-movement position of the support member does not exceed a set maximum vertical stroke, the lowermost position of the support member is determined to be the structural lowest vertical-movement position and fitted with a vertical movement model pattern to determine the vertical movement trajectory that vertically moves the support member between the uppermost position and the lowermost position (see Fig. 3C of Tashiro and Figs 7a-7c of Tada), and wherein when the distance between the uppermost position and the structural lowest vertical- movement position of the support member exceeds the set maximum vertical stroke, the lowermost position of the support member is determined to be a position lowered from the uppermost position by the maximum vertical stroke and fitted with the vertical movement modal pattern to determine the vertical movement trajectory that vertically moves the support member is vertically moved between the uppermost position and the lowermost position. That is, the claim reads on the support member moving vertically between its full range of vertical stroke because the term “when” is construed such that the limitations that follow do not necessarily happen.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tada as applied in Claim 2, further in view of Tashiro et al.
Regarding Claim 4, Tada is silent to wherein the target weight of the food product, the thickness of the shutter piece, the maximum stroke of the support member, the selected vertical-movement model pattern, and the vertical-movement trajectory are readably stored as one memory group. Tashiro teaches the selected vertical-movement model pattern, and the vertical-movement trajectory are readably stored as one memory group (Col. 2, ln. 37-40). Tashiro does not specifically recite storing the target weight, the thickness of the shutter piece, and the maximum stroke of the support member; however, since the vertical-movement trajectory would have been indirectly dependent on the size of the food being cut, and the thickness of the shutter, the target weight and the thickness of the shutter pieces would have necessarily been a factor in determining the vertical-movement model pattern. In any case, since Tashiro already comprise a memory device, it would have been obvious to one of ordinary skill in the art to store additional information used to determine the vertical-movement model pattern based on engineering design choice.
Response to Arguments
Applicant’s arguments in the response filed 19 Sep 2025 has been considered, but is not persuasive over the prior art for the following reasons:
Applicant argues that the prior art does not describe or suggest the recited Formula (I) nor does the prior art recite repeating the method of Claim 1 but with a different target weight. However, the argument is not persuasive in view of the new grounds of rejections.
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
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