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 .
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 after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 07/11/2025 has been entered.
Claim status
The examiner acknowledges the amendment made to the pending claims on 07/11/2025. Claims 1-21 are pending in the application. Claims 1and 21 are currently amended. Rest of claims are previously presented. Claims 1-21 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claim objected to because of the following informalities: “wherein the egg components” should read “wherein the plurality of egg components”. Appropriate correction is required.
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.
Claims 1-8, and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Rivoche US Patent No. 3,073,704 (hereinafter referred to as “Rivoche”) in view of Jenna Koo, Batch Process vs Continuous Process for Food Manufactures" [Online], published July 14, 2021 [retrieved on 2025-10-03]. Retrieved from the Internet: <URL: https://web.archive.org/web/20210726200510/https://tulip.co/blog/batch-process-vs-continuous-process/> (hereinafter referred to as Koo).
Regarding claims 1-2, Rivoche teaches a process for producing egg products (e.g., egg food product such as egg patties, omelets, souffles, etc. col. 1, line 10-12) , comprising: providing a raw egg mixture that comprises a plurality of egg components (e.g., fresh raw eggs mass, and aqueous/milk solution of cellulose ether, col. 2, line 21-25 and col. 5, line 15-16, and col. 1 line 45-60, which necessarily include a plurality of egg components such as egg white and yolk); mixing said raw egg mixture (col. 2, line 21-25); lowering the temperature of said raw egg mixture to a level sufficient to cause said raw egg mixture to have a semi-solid state (col. 2, line 25-28); and forming said semi- solid raw egg mixture into a plurality of shaped and portioned semi-solid raw egg products (col. 2, line 28-31 and 48).
Rivoche is silent regarding forming the raw egg product “continuously”, or that the process as a whole is carried out on a continuous basis. However, in a food process either a batch process or a continuous basis is known to be suitable; further, Rivoche discusses that at least in the temperature-lowering (e.g., chilling) step, either a batch operation or a continuous process can be carried out (Example 1; col. 4, line 1-3), therefore, one of ordinary skill in the art would have been motivated to perform a continuous process or a batch process for any individual step (e.g., the egg product forming step) or the whole process for a predictable result, absent a showing of new result associated with a continuous process. See also MPEP 2144.04 V. E, making continuous a prima facie obvious.
Further, Koo teaches that whenever a new food product is developed, its production process typically follows a batch process or a continuous process, or some combination of both (para. 1). Koo discusses the benefits and challenges associated with both processes, for example, while batch process provides more control over quality, shorter production time, and lower cost equipment, the batch process calls for greater storage process and leads to increased down time; as for the continuous process, it could provide better process control, leads to higher volume production, and smaller storage space but in the meantime has less flexibility, requires high initial cost of investment and has higher chance of contamination (under “Benefits & Challenges of Batch vs Continuous”). Additionally, Koo concludes that both batch and continuous processes are well suited for food industry operations and whether one is better than the other depends on product maturity and the product development stage at which the company is (under “Which Process is better for the Food industry?”).
Both Rivoche and Koo are directed to food manufacturing that includes batch and continuous process. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rivoche by choosing either continuous or batch process partially or wholly in the process of producing egg product as disclosed by Rivoche, depending on product maturity and the product development stage. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that either process is known to be suitable in the food manufacturing and the upsides and downsides of either process is known to one of ordinary skill in the art.
Rivoche is silent regarding that in the egg product forming step, the temperature of the raw egg mixture is maintained at a level sufficient to cause the raw egg mixture to have a semi-solid state, however, knowing that the low temperature is essential in achieving a semi-solid product, one of ordinary skill in the art would have been motivated to manipulate the temperature of the mixture after chilling so as to ensure that the semi-solid state is maintained or secured. Note that applicant has not shown any new result associated with the maintaining step.
Regarding claim 3, Rivoche teaches that the raw egg mixture is in liquid form (col. 2, line 21-25 and col. 5, line 15-16).
Regarding claim 4, Rivoche teaches using fresh raw eggs (col. 2, line 21-25 and col. 5), which inherently are chicken eggs since chicken eggs are the mostly consumed eggs among all types of eggs from birds; alternatively, it would have been obvious to an ordinary skill in the art to have selected any type of eggs such as chicken eggs to include in the raw egg mixture where Rivoche teaches eggs generically and chicken eggs are most widely consumed, as one of ordinary skill would have had the reasonable expectation that any egg (e.g. chicken egg) would function effectively in the mixture. This is merely selecting from a group of suitable options, absent a clear showing of the criticality associated with chicken eggs.
Regarding claims 5-8, Rivoche teaches that the raw egg mixture further includes additional ingredients including food items (e.g., ham, chicken livers, vegetable, etc., column 5, line 33-35), a functional ingredient (e.g., cellulose ether, which is a gum, a thickener and a binder, column 2, line 17-20), and flavor enhancers (e.g., chicken liver, column 5, line 33-35).
Regarding claim 15, Rivoche teaches chilling while mixing (col. 3, line 70-72).
Regarding claim 16, Rivoche teaches freezing the egg product (col. 2, line 29-35; col. 4, line 15-21).
Rivoche is silent regarding that in the frozen step, the temperature of the raw egg mixture is maintained at a level sufficient to cause the raw egg mixture to have a semi-solid state, however, knowing that the low temperature is essential in achieving a semi-solid product, one or ordinary skill in the art would have been motivated to manipulate the temperature of the mixture any moment after chilling so as to ensure that the semi-solid state is maintained or secured.
Regarding claim 17, Rivoche teaches packaging the egg products (col. 2, line 34-38; col. 4, line 15-21).
Regarding claim 18, Rivoche teaches cooking the egg products (col. 1, line 20; col. 2, line 40; col. 7, line 1-4).
Claims 9 is rejected under 35 U.S.C. 103 as being unpatentable over Rivoche in view of Koo as applied to claim 1 above, and further in view of Atwell US Patent Application Publication No. 2009/0092716 (hereinafter referred to as Atwell).
Regarding claim 9, Rivoche teaches mixing the raw egg mixture through stirring (col. 3, line 70-72), thus necessarily a blender/mixer is taught. Rivoche is silent regarding the blender being a paddle type blender, however, it would have been obvious to have selected any type of blender such as a paddle blender to mix the ingredients to homogeneity, as one of ordinary skill would have had the reasonable expectation that any blender (e.g. paddle type blender) would function effectively in the stirring action. This is merely selecting from a group of suitable options, absent a clear showing of the criticality associated with a paddle blender.
Further, Atwell teaches using a paddle blender (e.g., mixer equipped with a mixer blender) is suitable for mixing ingredients comprising liquid egg components combined with dry ingredients (0174).
Both Rivoche and Atwell are directed to mixing egg component that comprising liquid and solid. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rivoche by using a paddle blender with reasonable expectation of success, for the reason that prior art has established that a paddle blender is suitable for mixing egg components to homogeneity.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Rivoche in view of Koo as applied to claim 1 above, and further in view of Appolonia US Patent No. 5,520,005 (hereinafter referred to as Appolonia).
Regarding claims 10-11, Rivoche teaching lowering the temperature with a cold room or through a chilling unit (column 3, line 70-72), but being silent regarding the chilling unit is one that injects a gas such as liquid nitrogen or liquid carbon dioxide into the raw egg mixture to chill the mixture.
Appolonia teaches a method of chilling solid or liquid foodstuff (col. 2, line 4-10), in which a liquid cryogen such as liquid nitrogen (col. 3, line 13) is injected into the food to be chilled (e.g., liquid cryogen is passed into the mixing blender through an injector, col. 3, line 27-30; co. 4, line 32-39; Fig. 1-2; Col.1-2, “Summary of the invention); Appolonia further teaches that such a cooling means provides an effective means for cooling the food in a uniform manner (col. 2, line 27-30).
Both Rivoche and Appolonia are directed to processes of chilling a food. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rivoche by injecting the liquid nitrogen into the raw egg mixture with reasonable expectation of success, for the reason that Appolonia teaches that such a chilling method could provide an effective means for cooling a food in a uniform manner.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Rivoche in view of Koo and Appolonia applied to claim 10 above, and further in view of Newlin US Patent No. 4,426,400 (hereinafter referred to as Newlin).
Regarding claim 12, Rivoche in view of Koo and Appolonia teaches what has been recited above but is silent regarding applying vacuum to the raw egg mixture.
In the same field of endeavor, Newlin teaches that the use of vacuum treatment in processing blended egg materials has been carried out for reasons like: to remove oxygen which is known to cause deterioration, to avoid formation of undesirable foam layer at the top, to remove air so as to form a clear liquid for downstream processing, etc. (col. 2, line 24-36).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rivoche in view of Appolonia by applying vacuum to the raw egg mixture for the benefits of removing oxygen which could cause deterioration, avoiding formation of undesirable foam layer at the top, and/or removing air so as to form a clear liquid for downstream processing. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established the benefits associated with vacuuming a blended egg material.
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have applied vacuum post the liquid cryogen chilling given that such a chilling necessarily results in more gas in the mixture, and that the purpose of vacuum is essentially removing gas from the blended egg materials.
Prior art teaches applying vacuum after chilling, which necessarily removes residual gas from the mixture.
Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Rivoche in view of Koo as applied to claim 1 above, and further in view of Efstathiou US Patent Application Publication No. 2009/0246334 (hereinafter referred to as Efstathiou).
Regarding claims 13-14, Rivoche teaches chilling the raw egg mixture to a temperature of from 50 ºF to a freezing temperature of 32 ºF to obtain a semi-solid stat (col. 2, line 26-28), thus being silent regarding the temperature ranges as recited in claims 13-14. However, the lower temperature end as disclosed by Rivoche (e.g., 32 ºF) is very close the higher endcap 30 ºF as recited in claim 13 that one skilled in the art would have expected them to have the same properties, given that both Rivoche and the claimed invention are directed to chilling a raw egg mixture to form a semi-solid product. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Further, in the same field of endeavor, Efstathiou teaches a method of preparing a soft-frozen liquid egg product comprising combining liquid egg with a functional ingredient such as a thickener, and freezing the combination at a temperature ranging from 16 to 31 ºF to a form a semi-solid product (e.g., a soft-frozen product the texture of which is more firm than a liquid but more soft than a solid, 0016), wherein the semi-solid product has a soft-serve consistency which can be portioned, processed into a food product (e.g., omelet or souffles, 0034); or further processed (0009-0011; 0016-0017; 0020; 0025; 0034).
Both Rivoche and Efstathiou are directed to cooling a combination of liquid egg and a thickener to form a semi-solid which is further processed into an omelet or souffles. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Rivoche by applying a chilling temperature of 16 to 31 ºF so as to obtain a semi-solid product having a soft-serve consistency which can be processed into an omelet or souffles. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that chilling a combination of liquid egg and a thickener to a temperature of 16 to 31 ºF is suitable to form a semi-solid that has a soft-serve consistency which still can be processed into an omelet or souffles.
Further, knowing that the low temperature range of 16 to 31 ºF is essential in achieving a semi-solid product having a soft-serve consistency, one of ordinary skill in the art would have been motivated to maintain the temperature of the mixture any moment after chilling so as to secure the soft-serve texture.
The temperature as disclosed by Efstathiou encompasses the temperature ranges as recited in claims 13-14. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Claims 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Rivoche US Patent No. 3,073,704 (hereinafter referred to as “Rivoche”) in view of Koo and Efstathiou US Patent Application Publication No. 2009/0246334 (hereinafter referred to as Efstathiou).
The examiner notes that claims 19 and 21 combines the limitations of claims 1, 2, 5, 13, 14 and/or 16-17. In the instant case, given that Rivoche in view of Koo renders obvious claims 1-2, 5 and 16-17, and Rivoche as modified by Efstathiou renders obvious claims 13-14. claims 19 and 21 are logically rendered obvious over Rivoche as modified by Koo and Efstathiou.
Regarding claim 20, Rivoche teaches that the raw egg mixture further includes additional ingredients including food items (e.g., ham, chicken livers, vegetable, etc., column 5, line 33-35), a functional ingredient (e.g., cellulose ester, which is a thickener and binder, column 2, line 17-20), and flavor enhancers (e.g., chicken liver, column 5, line 33-35).
Response to Arguments
Applicant's arguments filed 07/11/2025 have been fully considered and the examiner’s response is shown below.
It is noted that all the arguments on pages 8-10 of the Remarks regarding Rivoche failing to teach continuous process partially or wholly are actually presented previously to which the examiner has replied (see. para. 43 of the OA issued 01/13/2025). Further, those arguments are found moot over the new ground of rejection set forth in the instant office action. To this end, Koo is cited to teach that a food process can be either be performed batch-wise or continuous-wise.
Applicant argues on pages 11 bottom para. of the Remarks that Rivoche “teaches away” from the claimed invention. In particularly, applicant argues that 1) while the claimed invention requires a raw egg product to begin with, Rivoche teaches pre-heating the egg mass thus failing to teach the raw egg product, and 2) while Rivoche teaches adding cellulose ether to the raw egg product, the raw egg product of the claimed invention behaves as though freshly prepared (e.g., without forming a crust and retaining the shape).
The arguments are considered but unpersuasive because first, the pre-heating step as disclosed by Rivoche is merely one of the aspects of Rivoche’s disclosure as opposed to a must-have step. To this end, applicant’s attention is drawn to column 1, line 40-52, and column 2, line 21-28 of Rivoche, which clearly teaches that Rivoche includes the embodiment of mixing raw egg (e.g., without any pre-heating) with other ingredients and subjecting the mixture to chilling to form semi-solid mass. Applicant has either misinterpreted Rivoche, or has narrowly interpreted Rivoche for applicant’s own benefit.
Second, regarding Rivoche adding cellulose ether to raw egg, applicant appears to argue a feature that is not claimed by asserting that the raw egg product of the claimed invention does not form a crust. The examiner notes that the disclosure as originally filed does not discuss crust (e.g., the disclosure does not mention the term “crust” or a synonym thereof). More importantly, where Rivoche teaching adding a gum such as cellulose ether as the thickener (see Rivoche column 2, line 17-18), the instant claims actually do not exclude a gum or a thickener, rather, claim 7 recites adding a thickener or gum to the raw egg. As such, applicant’s argument is self-defeating.
For the reasons set forth above, applicant’s arguments on pages 12-13 of the Remarks regarding Rivoche failing to teach raw egg mixture or raw egg product as recited in dependent claims 3-5, 9-10 and 12-17 are not persuasive, either.
Regarding claims 19 and 21, applicant argues on page 14 of the Remarks that Efstathiou “teaches away” from the claimed invention because the reference discloses producing eggs by combining liquid eggs with an amount of air and at least one functional ingredient, which is contrary to the formation of raw egg products and their related use. Applicant further urges that the office to consider prior art in its entirety.
The argument is considered but found unpersuasive because Efstathiou is relied upon for teaching freezing the egg to form a semi-solid product, not for teaching air or functional ingredient feature. Further, although the prior art is considered in its entirety, the non-cited portion of Efstathiou does not appear to be relevant to the instant rejection. Further, the examiner submits that there is no teaching away in Efstathiou since the instant claims do not exclude the feature of gas or functional ingredient, rather, claim 10 recites adding gas and claim 7 recites a functional ingredient. Again, applicant’s argument is self-defeating.
Applicant argues on the para. that bridges pages 14 and 15 of the Remarks that Efstathiou fails to teach the feature of continuous flow.
The argument is considered but found piecemeal. The reference is cited to teach the temperature of freezing the egg, not a continuous feature.
Applicant argues on page 16 first para. that Appolonia fails to teach the continuous flow limitation, or the egg product forming step. Applicant further argues that Appolonia fails to teach that a carbon dioxide gas is injected.
The argument is piecemeal. The reference is cited to teach the limitation of chilling a foodstuff with nitrogen, not a continuous feature or the egg forming step. Further, note that the limitation about carbon dioxide is not mandatory in claim 11, rather, it is in alternative form with nitrogen.
For the reasons set forth above, applicant’s arguments on pages 15-17 of the Remarks regarding the secondary references as cited are not persuasive, either.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791