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
Status of the Claims
Receipt of Remarks/Amendments filed on 06/24/2025 is acknowledged. Claims 1-4 have been amended and are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Modified Rejection As Necessitated by the Amendment Filed 06/24/2025
Claim Objections
Claim 4 is objected to because of the following informalities: Claim 4, step d), line 2 recites “toa” which should be “to a”.
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 1-3 are 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 “boiled water for part 1” and “boiled water for part 2”. The purpose of the recited “boiled water” is unclear. There is no indication in the disclosure that the boiled water needs to have been boiled to be useful for the compositions of part 1 or 2, e.g. for sterilization purpose, and therefore it is unclear whether “boiled water” is an essential claim limitation. Furthermore, one of ordinary skill in the art would not know at what temperature “boiled water” would be when the ingredients are added. All claims depending from Claim 1 are also rejected.
Response to Arguments:
Applicant traversed the rejection of Claim 1 over the recitation of "can be processed into noodles, spherical and rice-similar shapes", appearing to agree that it does not define the composition but rather describes a functional capability.
The Examiner has withdrawn the indefiniteness rejection over this limitation in Claim 1. However, it is put on the record that the phrase “can be processed into noodles, spherical and rice-similar shapes” is not give patentable weight. The phrase “can be” does not present a requirement; Just because the composition “can be processed”, i.e. is able to undergo known processing methods, does not materially affect the composition. The composition itself does not require to be processed into noodles, spherical and rice-similar shapes”.
Applicant traversed the indefiniteness rejection of Claim 4, stating that the claim functionally characterize the physical forms that result from the specific and well-defined
processing steps
As above, the Examiner puts on the record that the phrase “can be processed into noodles, spherical and rice-similar shapes”, “for making the protein food look like noodle shaped”, “with a second hole punched on a diameter of the second plastic bottle cap”, “for making the protein food look spherical and rice similar shaped” etc. ” are not give patentable weigh because they do not materially affect the composition. The resulting composition from these method steps does not require to be processed into noodles, spherical and rice-similar shape, but rather “can be processed…”. Furthermore, mere changes in shape does not establish patentability to a claim. See MPEP 2144.04. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.)
Applicant argues that the recitation in Claim 1 of “boiled water for part 1” and “boiled water for part 2” is functionally significant and essential to the claimed invention as it ensures microbial control, minimizes the presence of dissolved gases or minerals, and ensures batch-to-batch consistency in the physical properties of the aqueous medium.
Applicant alleges that “Although the water is allowed to cool before mixing with other ingredients, boiling it beforehand ensures a controlled starting environment-a well-established practice in food and biopolymer processing. A person of ordinary skill in the art would readily recognize that the functional behaviour of alginate in the presence of calcium ions, as well as protein hydration, can be impacted by variables such as water hardness, microbial contamination, or ionic content.”
The Examiner has considered the argument, but maintains the rejection. Firstly, there is no reference to cooling the boiled water in Claim 1. The claim just requires boiled water, and its not clear if the water is cooled or not; there is nothing pertaining to length of time of boiling that water that would affect the microbial and microbial limiting properties of the water. Secondly, one of ordinary skill in the art would not know at what temperature “boiled water” would be when the ingredients are added. Third, while Applicant alleges that one of ordinary skill in the art would know the criticality of boiling water beforehand as it affects “the functional behaviour of alginate in the presence of calcium ions, as well as protein hydration, can be impacted by variables such as water hardness, microbial contamination, or ionic content”, it is unclear to the Examiner how boiling would remove or alter the ionic content and water hardness by boiling because the salts do not boil off. The Examiner failed to see any such criticality explained in the disclosure, nor does Applicant provide any reference to support their statement. Importantly, Applicant is reminded that Claims 1-3 are article claims and thus are defined by the final product and not the method of making the product.
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 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.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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 1 is rejected under 35 U.S.C. 103 as being unpatentable over Eatmeatqueen (Obtained from URL: <https://www.pinterest.com/pin/459085755766254689/> on 03/18/2025), in view of Quora (Obtained from URL: <https://www.quora.com/What-are-some-of-the-best-ways-to-use-egg-white-powder> on 03/18/2025), and Nishibori et al. (CA 3084313, cited in the IDS), hereinafter Nishibori.
Regarding Claim 1, Eatmeatqueen teaches the preparation of noodles without starch or by only using 3 eggs, 1/4 cup of water, and 1 Tbs gelatin. However, Eatmeatqueen does not teach the egg is only egg white, or a specific gelatin, and the calcium chloride.
Quora discusses how egg white powder is a great alternative for eggs in avoiding the risk of salmonella, and ease of preparation, i.e. by rehydration with water (p. 2). Furthermore, it increases the protein in recipes (p. 3).
Nishibori discloses its noodles have good texture, and are healthy. Nishibori cures the deficiency of Eatmeatqueen by teaching sodium alginate as the gelling agent kneaded into the dough, and the calcium chloride dipping solution, forming a calcium alginate gel ([0004], [0006], Example 3). Nishibori teaches that coating with calcium alginate helps noodles retain their shape as well as impart elasticity [0004]-[0007]. Specifically, the art studies the change in blood glucose level when noodles made with wheat flour is kneaded with sodium alginate or calcium alginate, boiled, and are ingested (Fig. 3; pp. 15-16). Nishibori also teaches a method wherein sodium alginate is added, and the boiled udon is further subjected to a Ca alginate gel formation treatment, wherein the noodles are dipped in a solution comprising 0.3% calcium chloride and 0.4% acetic acid, indicating water at 99.3% (Example 3 [0054], [0056]). Regarding the boiled water in part 2, Nishibori teaches noodle strings boiled in hot water containing calcium to coat and prevent the cooked noodle strings from binding to one another [0006]. The amount of sodium alginate is 150 g, and the total amount of powder is 3240g, which gives 4.6%, meeting the required amount (Table 10). Because Nishibori teaches using wheat flour and dried egg white powder, its teaching is also compatible with Quora [0001].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Quora to Eatmeatqueen, and replace the egg with egg white powder to obtain a high protein, starch-free and fat-free noodles, while avoiding the risk of salmonella, and enjoying the ease of preparation.
Regarding the gelatin, both Nishibori and Eatmeatqueen teaches noodle preparations comprising gelling agents. Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to apply the teachings of Nishibori and substitute the gelatin in Eatmeatqueen with the sodium alginate of Nishibori. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143. Additionally, one would have been motivated to combine the teachings of Nishibori, incorporating sodium alginate as the gelling agent in the dough comprising egg white powder, followed by treating with calcium solution to coat the noodles with calcium alginate, to obtain noodles which have good texture and are healthy, and wherein the cooked noodle strings do not bind to one another.
Regarding the spherical or rice-similar shape of the instantly claimed noodles, both Eatmeatqueen and Nishibori teaches noodles. One of ordinary skill would for instance manipulate the shape of the noodles as desired for the recipe and as demanded in the market for aesthetic appeal, or for ease of breaking, cooking, and/or swallowing the noodles. One would be motivated to do so with reasonable expectations of success because noodles come in different shapes in the market, depending on the recipes or customer preference. Furthermore, mere changes in shape does not establish patentability to a claim. See MPEP 2144.04. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Eatmeatqueen, in view of Quora and Nishibori, and further in view of Acini di Pepe by DeLallo (Obtained from URL: <https://www.delallo.com/acini-di-pepe-pasta-1-lb/?srsltid=AfmBOooD6Zd6kAkTg GWD0nAa88fbM6It1X0nQIHjHwPQZc6hLqrVZCho> on 03/18/25), hereinafter DeLallo.
Regarding Claims 2-3, Eatmeatqueen does not teach a specific diameter. DeLallo cures the deficiency by teaching Acini di Pepe which are tiny round pasta balls with diameter of smaller than 1-2mm, which overlaps with the diameter required in Claims 2 and 3 (pp. 1-2). DeLallo teaches that Acini de Pepe is “soup cut” used in making Italian Wedding soup, and is usually baby’s first pasta in Italy (p. 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of DeLallo to that of Eatmeatqueen and create noodles in the shape of tiny round pasta balls with diameter of smaller than 1-2mm. One would have been motivated to do so with high expectations of success when preparing Italian Wedding soup or baby’s first pasta as taught by DeLallo using the starch-free fat-free noodles comprising egg white powder as taught by Eatmeatqueen in view of Quora and Nishibori for a high protein preparation of the classic soup, or to increase protein intake of babies, with little risk of salmonella, and with aesthetically pleasing noodles that retain their shape in soup.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Food Chemistry (Obtained from URL: <https://web.archive.org/web/20180612110835/ https://teachbesideme.com/food-chemistry-turn-juice-solid/> on 031825), in view of Eatmeatqueen, Quora, and Nishibori, and further in view of Live2Makan (Obtained from URL: https://live2makan.com/2011/12/31/the-ramen-special/ on 03/18/25).
Food Chemistry teaches making gummy juice noodles, using sodium alginate as gelling agent mixed in the juice, and preparing calcium chloride solution (pp. 4-5). After resting the juice and alginate gel mixture, it is collected using a syringe and directly squirted into the calcium solution, making long noodle strands (pp. 6-9).
While Food Chemistry teaches a fat-free, starch-free food, it does not teach a protein food comprising egg white powder.
Eatmeatqueen also teaches the preparation of starchless noodles using 3 eggs, 1/4 cup of water, and 1 Tbs gelatin. Quora discusses how egg white powder is a great alternative for eggs, in avoiding the risk of salmonella, and ease of preparation, i.e. by rehydration with water (p. 2). Furthermore, it increases the protein in recipes (p. 3).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Eatmeatqueen and Quora and use eggs instead of juice, specifically egg white powder, in order to make a fat-free, starch-free noodles that have high protein.
Nishibori and Food Chemistry teach the same sodium alginate, and calcium chloride solution for noodle making, making the references compatible. The teachings of Nishibori have been set forth supra.
Regarding Claim 4 steps a and b, Nishibori teaches the method of preparing the noodles by first mixing the powder raw materials comprising egg white powder and alginate powder, i.e. calcium or sodium alginate, to obtain a homogenous powder mixture (p. 24; [Table 1]; p. 30; [Table 10]), and then adding the powder with kneading water and kneaded for 10-16 mins at 28-34 ˚C, and the dough rolled and allowed to stand for 60 mins [0036]; the noodles rolled into a thickness of 3.6 mm, and finely cut. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date and with reasonable expectations of success to combine the teachings of Eatmeatqueen and Nishibori and adopt the mixing and kneading techniques. Blending materials to a homogenous mixture, and kneading dough are known techniques in the art. Hence, one with ordinary skill in the art would have applied the known technique taught by Nishibori of preparing noodle dough to the teachings of Food Chemistry. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding the amount of time of mixing and standing in Claim 4 step b, one of ordinary skill in the art would find it obvious to adjust the time as a matter of experimentation and optimization. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding Claim 4, step c, Nishibori expressly teaches dipping the noodles strings in a liquid mixture liquid of 0.3% by mass calcium chloride and 0.4% by mass acetic acid to perform the calcium alginate gel formation treatment [0056]. One would use the concentration of calcium chloride taught by Nishibori to prepare a precise amount of calcium solution.
Regarding Claim 4 step c, with respect to the volume of part 2 with respect to part 1, the Examiner calculates the ratio to be 1:1 to 3:1. Food Chemistry requires a large pan full of water mixed with the calcium chloride.
While the exact amounts of parts 1 and 2 are not disclosed by the prior art, it is generally noted that differences in amounts and ratio do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio 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). Given that applicant did not point out the criticality of amounts of parts 1 and 2 of the invention, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum amounts. NOTE: MPEP 2144.05.
Regarding Claim 4, steps d and e, Food Chemistry recognizes the use of spherification tool, or creating droplets to obtain noodles can be shaped to look like caviar balls (pp. 3-5, 8). Herein, the syringe reads on the plastic bottle with a hole, wherein the mixture is injected as a line onto the calcium chloride solution. One skilled in the art would use the appropriately sized syringe to obtain the desired diameter, such as thickness of 3.6 mm according to Nishibori.
Regarding Claim 4, step f, Food Chemistry teaches using plain water to rinse the noodles when they are done. Regarding the soaking step, Food Chemistry does not expressly teach the length of time the noodles are left to soak in the calcium solution nor the number of times the noodles need to be rinsed. However, as noted above, one of ordinary skill in the art would find it obvious to adjust the time or repetition as a matter of experimentation and optimization.
Regarding Claim 4, step g, Live2Makan describes instant ramen with preboiled noodles that is ready-to-eat, that clearly encompassed scooping, portioning, and putting in a ready-to-eat container (p. 2). "Preboiled" in the context of cooking, is often synonymous with parboiling or blanching, which are methods of partially cooking food in boiling water, therefore the art reads on step g. Regarding the length of blanching time and rinsing, as noted above, one of ordinary skill in the art would find it obvious to adjust the time or repetition as a matter of experimentation and optimization. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Live2Makan with Food Chemistry and preboil the noodles when preparing ready-to-eat noodles for ease and convenience.
From the teachings of the references, it is apparent that one of ordinary skill in the art -would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments:
Applicant traversed the 103 rejection stating that: i) Eatmeatqueen fails to use of sodium alginate or calcium chloride; a two-part composition in which alginate is dissolved in a protein solution and then crosslinked by immersion in a calcium solution; ii) Quora fails to discloses a product comprising of part 1 ingredients - sodium alginate and one or more proteins and boiled water and part 2 ingredients - boiled water and calcium chloride, and provides a mere statement stating that egg powder can be used as an alternative for eggs; iii) Nishibori discloses a traditional wheat-based noodle dough formulation in which sodium alginate and calcium compounds are incorporated directly into a flour or starch matrix via kneading, with a salt solution used as kneading water, and explicitly discourages external ionic gelation methods, which is contrary to the present invention, and that Nishibori teaches food that contains starch and is not starch-free.
The Examiner has considered the argument but was not persuaded. Firstly, the Examiner notes that for Claims 1-3, the rejection of the composition is over Eatmeatqueen as primary art, with Quora and Nishobori as secondary arts; for Claim 4, the rejection of the method claim is over Food Chemistry as primary art and Eatmeatqueen, Quora, and Nishobori as secondary arts. The secondary references are relied on to add the missing puzzle pieces to Eatmeatqueen or Food Chemistry, which a skilled artisan with a commensurate knowledge in the field will be able to do. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Regarding Applicant’s allegation that the arts do not teach a two-part composition in which alginate is dissolved in a protein solution and then crosslinked by immersion in a calcium solution, the Examiner traverses.
As a first matter, Applicant is again reminded that Claims 1-3 are drawn to a product, and is defined by the final product. Applicant appears to be arguing limitations that are not claimed, such as the crosslinking, which is not germane to the claims.
Nishibori teaches a sodium alginate as the gelling agent to substitute the gelatin in Eatmeatqueen, and the calcium chloride dipping solution, wherein the noodles strings are dipped in a liquid mixture liquid of 0.3% by mass calcium chloride forming a calcium alginate gel. Food Chemistry teaches making gummy juice noodles, using sodium alginate as gelling agent mixed in the juice, and preparing calcium chloride solution. After resting the juice and alginate gel mixture, it is collected using a syringe and directly squirted into the calcium solution.
Regarding the allegation against Nishibori, which Applicant state to explicitly discourages external ionic gelation methods, Applicant is reminded that Nishobori is not the primary reference, but is one of the secondary references; the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Nishibori is relied on to teach the sodium alginate substitution for the gelatin in Eatmeatqueen because they serve the same purpose. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143.
Applicant alleges improper hindsight reconstruction.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Shi, S. CN 103960596 A (Machine Translation from IP.com).
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792