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 .
Specification
The disclosure is objected to because of the following informalities:
Title of The Invention.
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed. The claims are clearly directed to “A method for forming fruit and vegetables” as recited in the preamble of the independent claim 1. However, the invention is titled “Device For Forming Fruit And Vegetables” which indicates a different statutory group, a “device”, than that of what is claimed, a “method”. A title that at least encompasses both statutory groups is more descriptive of the claimed invention.
The following title is suggested: “Method and Device For Forming Fruit And Vegetables”.
Content of Specification
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S): When there are drawings, there shall be a brief description of the several views of the drawings and the detailed description of the invention shall refer to the different views by specifying the numbers of the figures, and to the different parts by use of reference letters or numerals (preferably the latter). The specification shall include a reference to and brief description of the drawing(s) as set forth in 37 CFR 1.74.
The examiner should see to it that the figures are correctly described in the brief description of the drawing, that all section lines used are referred to, and that all needed section lines are used. If the drawings show Figures 1A, 1B, and 1C and the brief description of the drawings refers only to Figure 1, the examiner should object to the brief description, and require applicant to provide a brief description of Figures 1A, 1B, and 1C, MPEP 608.01(f).
In this instance, the content of the specification lacks “a brief description of the drawing(s)” section. Appropriate correction is required.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because: they do not include reference sign(s) or numbers for the parts and most of the drawings (FIGS.2 – 7) have no reference sign(s) or numbers at all.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 – 11 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.
Regarding claim 1, this claim recites "… c) heating the liquid in the pulp of the piece of fruit or vegetable by acoustic cavitation; d) disrupting the cell structures of the pulp by liquid evaporation …", in lines 5 – 7 of the claim. There is insufficient antecedent basis for the limitations: “the liquid in the pulp” and “the cell structures of the pulp” in the claim, rendering the claim indefinite. Claims 2 – 11 inherit this indefiniteness rejection by virtue of their dependency.
Regarding claims 2 and 10, A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claims 2 and 10 recite the broad recitations: “…by means of a sonotrode…” and “…selected from cucurbits…” respectively, followed by narrower statements of the range/limitation: “…preferably by means of an adjustably mounted sonotrode” and “… preferably pumpkins, melons, cucumbers, and zucchini” respectively.
The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 4, this claim recites “…during the heating by acoustic cavitation is exposed locally to a temperature of up to 5000 K and/or a pressure of up to 1000 bar and/or a flow rate of up to 400 km/h”. The claimed temperature, pressure and flow rate ranges only have “upper bound” and it is not clear what “lower bound” is covered by the scope of the claim. It is ambiguous to determine the metes and bounds of the scope of the ranges claimed here. Is it zero K and/or bar and/or km/h? is it 100 K and/or bar and/or km/h?... this renders the claim indefinite.
Regarding claim 6, this claim recites “…the disrupted cell structures of the pulp to the side.” There is insufficient antecedent basis for the term “the side” in the claim and/or claim 1, rendering the claim indefinite.
Regarding claim 7, this claim recites: “the method as claimed in claim 1, wherein the excavated piece of fruit or vegetable is filled with foods and thereafter irradiated with ultrasonic waves and during the heating of the liquid this filling is cooked too” in its entirety. There is insufficient antecedent basis for the limitation “cooked too” in the claim and/or claim 1, rending the claim indefinite.
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 – 6, 9 and 11 – 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over NPL (J.A. Ca'rcel et al., JOURNAL OF FOOD ENGINEERING, ELSEVIER, Valencia, Spain, vol. 78, no. 2, 1 January 2007 (2007-01-01), pages 472-479, PDF copy attached) and hereinafter “Carcel”.
Regarding claim 1, Carcel discloses a method for forming fruit and vegetables (see annotated FIG.2), comprising the following method steps:
a) providing a piece of fruit or vegetable (providing an apple sample, section 2.1 and see annotated FIG.2);
b) irradiating the piece of fruit or vegetable with ultrasonic waves (irradiating the apple with ultrasonic waves, section 2.2 and see annotated FIG.2);
c) heating the liquid in the pulp of the piece of fruit or vegetable by acoustic cavitation (subjecting the apple to a high intensity ultrasonic wave that heat to the apple by generating the growth and collapse of bubbles inside liquids, a phenomenon known as acoustic cavitation, (section 1, page 473, column 1, lines 4 – 16 and see annotated FIG.2));
d) disrupting the cell structures of the pulp by liquid evaporation (by exposing the apple to an increased ultrasonic intensity, an increase in dryness and loss of moisture content of the apple was affected, moisture/juice from the apple flesh/pulp exposed to the ultrasonic irradiation was evaporated, resulting in the disruption of the cellular structure of the flesh, (sections 3.2, 3.3 and 4)).
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Carcel does not explicitly say: e) forming a cavity in the piece of fruit or vegetable.
However, Carcel in discussing the several effects of ultrasonic cavitation recites, micro-stirring at an interface of the material exposed to the ultrasonic irradiation and a phenomenon called the ‘‘sponge effect’’ wherein the pulp/flesh is pressed together to one side and the generation of micro channels in the flesh of the material, (see section I, page 473, column 1, lines 12 - 17).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, that the ultrasonic heating of the apple of FIG.2 would cause the apple to be micro-stirred at the interface and the pulp/flesh to be pressed together to one side by a phenomenon called the “sponge effect”, forming of the micro channels or cavity in the flesh/pulp of the apple, as ultrasonic irradiation and heating is taught to generate such micro channels or cavities in the material exposed by Carcel.
Regarding claim 2, Carcel teaches the method as claimed in claim 1, wherein the piece of fruit or vegetable is irradiated with ultrasonic waves by means of a sonotrode, preferably by means of an adjustably mounted sonotrode (the apple is irradiated by means of an ultrasonic probe, (section 2.2, 3.1 and see annotated FIG.2) *Note – “sonotrode” is an ultrasonic probe, nozzle or horn).
Regarding claim 3, Carcel teaches the method as claimed in claim 1, wherein the ultrasonic waves have a frequency in the range from 20 to 2000 kHz (ultrasonic waves of frequencies of 20kHz and 44 kHz, (see sections 2.2 and 3.2)).
Regarding claim 4, Carcel teaches the method as claimed in claim 1, wherein the liquid in the pulp during the heating by acoustic cavitation is exposed locally to a temperature of up to 5000 K and/or a pressure of up to 1000 bar and/or a flow rate of up to 400 km/h (during the experiment, ultrasounds were applied to the apple flesh with an ultrasonic bath (44 kHz and 0.81 bar) at high temperatures of treatment, (section 3.2 and see FIG.2)).
Regarding claim 5, Carcel teaches the method as claimed in claim 1, wherein during the heating of the liquid, the pulp is microcooked (during the ultrasonic irradiation, the apple flesh/pulp is heated, (section 2.2 and see FIG.2). Thus, the flesh of the apple is microcooked. *Note here- the only definition of “microcooked” given by the speciation is: “cooked by means of heating through the ultrasonic waves.”, in page 4, line 30 and “microcooked” is interpreted to mean “heating through the ultrasonic waves”).
Regarding claim 6, Carcel teaches the method as claimed in claim 1, wherein the forming of the cavity in the piece of fruit or vegetable involves pressing the disrupted cell structures of the pulp to the side (heating by ultrasonic cavitation involves a phenomenon called the ‘‘sponge effect’’ wherein the pulp/flesh is pressed together to one side and the generation of micro channels or cavities in the flesh of the material, (see section I, page 473, column 1, lines 12 - 17)).
Regarding claim 9, Carcel teaches the method as claimed in claim 1, wherein the cavities form patterns or multidimensional structures in the piece of fruit or vegetable (the cavities formed are micro channels in the flesh of the apple/material, (see section I, page 473, column 1, lines 12 – 17)).
Regarding claim 11, Carcel teaches a convenience food item comprising one or more pieces of fruit or vegetable formed with the method as claimed in claim 1 (apple fruit formed with the method of claim 1, see FIG.2).
Regarding claim 12, Carcel teaches the method of forming fruit or vegetables by sound waves (the ultrasonic forming of the apple fruit involves ultrasound waves, (section 2.2, 3.1, 3.2 and see annotated FIG.2).
Claim(s) 7 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Carcel in view of Persson (WO 9107883 A1) and hereinafter “Persson”.
Regarding claims 7 and 10, Carcel teaches the method as claimed in claim 1, wherein the apple is irradiated with ultrasonic waves and heating of the liquid of the apple by acoustic cavitation, (page 473, column 1, lines 4 – 16 and see annotated FIG.2).
Carcel does not teach: wherein the excavated piece of fruit or vegetable is filled with foods and thereafter irradiated with ultrasonic waves and during the heating of the liquid this filling is cooked too (claim 7) and, wherein the piece of fruit or vegetable is selected from cucurbits, preferably pumpkins, melons, cucumbers, and zucchini (claim 10).
However, Persson that relates to an apparatus for hollowing differently shaped and/or sized fruits and root vegetables (page 1, lines 1- 5), also teaches, excavating the piece of fruit or root vegetables to form a hollow space and filling the hollowed space of the fruit or root vegetable with another edible filling material 77, (page 9 – 10 and page 11, lines 14 – 21 and see FIGS. 2 and 3), wherein the pieces of fruits and the root vegetables may comprise pears, melons, avocado pears, pine-apples, onions, potatoes, yam, garden turnips, and other edible plant parts, (page 1, lines 5 – 13).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of forming fruit and vegetables taught by Carcel to include hollowing the fruit and filling the hollowed space with additional edible material, wherein the fruit is a melon (a cucurbit family) as taught in Persson in order to form a more attractive and nutritive edible fruit mix. POSITA apprised of Persson’s teaching would easily and routinely incorporate the hollowing a melon and filling the hollowed space of the melon with additional edible material to the teaching of Carcel to ultrasonically cook the stuffed melon together in order to provide a more nutritive cooked mix.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Carcel in view of Ching et al. (US 2020/0205446 A1) and hereinafter “Ching”.
Regarding claim 8, Carcel teaches the method as claimed in claim 1,
Carcel does not explicitly teach the skin or peel of the piece of fruit or vegetable is removed partially or entirely by acoustic cavitation.
However, Ching that relates to a device and a method for treating, foodstuffs such as plant food, by high frequency sound waves (0001), also discloses that fruits and vegetables 4 contained in an ultrasonic enclosure 3 (FIG.1A) unwanted parts removed and peeled by acoustic cavitation, (0102,0147, 0263 and see FIG.1A).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of generating the growth and collapse of bubbles inside the apple pulp by as acoustic cavitation to disrupt the pulp to be used in partial or entire removal of the skin or peel of the apple in order to remove unwanted parts from the fruit or the vegetable as taught in Ching.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DILNESSA B BELAY whose telephone number is (571)272-3136. The examiner can normally be reached M-F approx. 8:00 am - 5:30 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steven Crabb can be reached at (571)270-5095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DILNESSA B BELAY/Examiner, Art Unit 3761
/STEVEN W CRABB/Supervisory Patent Examiner, Art Unit 3761