DETAILED ACTION
Background
The amendment dated November 05, 2023 (amendment) amending claims 1-4, 7 and 14, adding new claim 21 and canceling claims 16-19 has been entered. Claims 1-15 and 20-21 as filed with the amendment have been examined. In view of the amendment all outstanding objections have been withdrawn.
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 .
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.
Claim 3 is 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 3 recites the limitation "harvested material" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. It is not clear what harvested thing the claim requires drying. Claims 1 and 3 do not recite a harvested material.
The % (percent) in claim 3, at line 3 lacks units. Is the percent a weight %, a mass% or some other unit of percent?
The moisture content in claim 3 at line 3 does not have a basis or denominator defining a total for determining a content. Is the moisture content based on the total dried myceliated cacao product or based on some other thing, such as filamentous fungus?
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
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.
Claims 1-2, 5-10 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of US 2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by EP 31114939 A1 to Huhn (Huhn), of record.
Regarding instant claims 1 and 20, Miller at [0013] discloses a method for production of a myceliated cacao product comprising providing cacao nibs (“providing harvested cacao comprising beans, pulp and/or pods from the fruit pods of the species Theobroma cacao”), providing Cordyceps sinensis as a prepared fungal component (“fungal inoculum comprising a filamentous fungus”), inoculating the harvested cacao with the fungal inoculum and growing/cultivating (“culturing”) the harvested cacao and fungal inoculum to allow myceliation to produce the myceliated cacao product (claim 20). Further, Miller discloses cacao nibs without reference to pasteurizing wherein the fermented harvested cacao is not pasteurized prior to inoculation. The Office considers the recited inoculating fermented harvested cacao that is not pasteurized prior to inoculation to include the inoculating of cacao nibs disclosed at [0013] off Miller and to include harvested cacao fruit products in general.
Miller does not disclose conventionally fermenting its harvested cacao, thereby generating fermented harvested cacao. Also, Miller does not disclose culturing the fermented harvested cacao in a filamentous fungus as a supplemental fermentation step. However, Miller at [0013] discloses cacao nibs or cacao beans which comprise harvested cacao from cacao fruit. Further, Huhn at [0006] discloses that cacao fermentation naturally occurs almost immediately after the harvest and opening of cocoa pods to expose the cacao fruit (“pulp and pods”) and cocoa beans (“cacao beans”) to air. Huhn further discloses that the natural fermentation reduces the astringency of the bean and helps develop its chocolate flavor.
De Vuyst at [0009] discloses controlling natural fermentation of harvested cacao by adding lactic acid and/or acetic acid bacteria to impart desirable flavor and product content .
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of De Vuyst, if not necessary to ferment its naturally harvested cacao as in De Vuyst to help develop an acceptable or improved flavor; and, in fact, it appears the ordinary skilled artisan would have found such naturally fermentation unavoidable.
Regarding instant claim 2, Miller does not disclose fermenting harvested cacao in step b) that takes place for 3-7 days. However, De Vuyst at [0170] discloses incubating (“conventionally fermenting”) freshly harvested cacao for 6 days. The ordinary skilled artisan in Miller as modified by De Vuyst would have desired to ferment its harvested cacao for the claimed time period because De Vuyst discloses the claimed fermenting period as desirable for making chocolate products.
Regarding instant claims 5-6 and 21, Miller at [0013] as modified by De Vuyst at [0027] discloses a method of producing a myceliated cacao product from fermented harvested cacao wherein conventionally fermenting naturally occurs as disclosed in Huhn almost immediately after the harvest and reduces the astringency of the fermented harvested cacao product. Accordingly, absent a clear showing as to how flavor of chocolate made from the myceliated cacao product of Miller as modified by De Vuyst differs from that of a myceliated cacao product on as claimed, the Office considers the chocolate produced from the myceliated fermented cacao product of Miller as modified by De Vuyst to have all of:
A reduced acidity, astringency, and/or bitterness tastes compared to a chocolate prepared from an unmyceliated cacao product as in claim 5;
an increased fruity flavor, increased nutty flavor, and/or increased sweet caramel/malt flavor, compared with a chocolate produced from an unmyceliated cacao product as in claim 6; and,
reduced bitter tastes and/or reduced astringent tastes compared to an unmyceliated cacao product as in claim 21. See MPEP 2112.01.I.
Regarding instant claims 7-9, Miller at [0006] discloses culturing a medium on any of various filamentous fungus, including Hericium erinaceus (claims 7-8) and Inonotus obliquus (claims 7 and 9), further wherein the medium is selected from the group consisting of the group including cacao nibs. Further, at [0013] Miller discloses its myceliated cacao product as a protein replacement. The ordinary skilled artisan in Miller would have found it obvious to inoculate and culture its cacao nibs with any of the filamentous fungus disclosed in Miller, including Hericium erinaceus as claimed and Inonotus obliquus as claimed because Miller at [0006]discloses the claimed Hericium and Inonotus fungi as desirable inoculum for making protein containing myceliated products, including myceliated cacao products.
Regarding instant claim 10, Miller at [0010] discloses filamentous fungus grown on an agricultural substrate as a grain or seed (as “grainspawn culture” – claim 10).
Claims 3, 11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by EP 31114939 A1 to Huhn (Huhn) as applied to each of claims 1, 2 and 10 above, and further in view of US 2015/0254706 A1 to Kelly et al. (Kelly), of record.
As applied to claims 1, 2 and 10 Miller at [0013] in view of De Vuyst at [0009], as evidenced by Huhn at [0006] discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus for from 3-7 days, inoculating the fermented harvested cacao with the fungal inoculum as a grainspawn culture, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum to allow myceliation to produce a myceliated cacao product.
Miller as modified by De Vuyst does not disclose a method that further includes a drying step that takes place subsequent to the inoculation step, wherein the harvested material is dried to an 8 to 9% moisture content as claimed in claim 3; further, does not disclose inoculating wherein the grainspawn culture is applied in an aqueous slurry as in claim 11; and still further, does not disclose a method further comprising roasting the myceliated cacao product as in claim 13.
However, Miller at [0010] discloses filamentous fungus grown on an agricultural substrate as a grain or seed as a grainspawn culture with a juice and, at [0008] discloses including teas in its culture. Further, Miller at [0010] discloses that its grainspawn culture improves the overall growth of its filamentous fungus in a co-fermentation.
Kelly at [0003] discloses a method of conventionally fermenting cacao beans by providing a prepared fungal component and fermenting for 4-7 days. Further, at [0093] Kelly discloses inoculating the fermented harvested cacao with a fungal inoculum using (at [0087]) a system for volumetrically consistent dispensing of inoculate and culturing, thereby (at [0094]) removing bitter flavor compounds from the myceliated cacao to give a chocolate product having reduced bitterness. Further, Kelly in Example 6 at [0142] discloses inoculating harvested cacao with 50 mL of submerged liquid tissue cultures of the fungal inoculum at [0124] (“grainspawn culture is applied in an aqueous slurry”) and discloses inoculation media designed to maximize myceliation rates. Still further, in Example 6 at [0142] Kelly discloses drying the myceliated cacao product subsequent to the inoculation step to an 8 to 9% moisture content. And Kelly at [0125] discloses roasting its myceliated cacao product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kelly for Miller as modified by De Vuyst to apply its grainspawn culture in an aqueous slurry. Further, the ordinary skilled artisan would have found it obvious in view of Kelly for Miller to dry its myceliated cacao product subsequent to the inoculation step to an 8 to 9% moisture content and then roasting its myceliated cacao product. All references disclose culturing cacao and Miller and Kelly both disclose grainspawn culturing a fermented harvested cacao fruit material to form a myceliated cacao product. The ordinary skilled artisan in Miller would have desired to insure that its fungal inoculum is efficiently distributed in the fermented harvested cacao in a slurry as in Kelly. Still further, the ordinary skilled artisan in Miller would have desired to dry its myceliated cacao product as in Kelly to create a stable material, such as a cocoa powder, and to roast the product as a cacao product in the manner of Kelly to make a roast cocoa product.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by EP 31114939 A1 to Huhn (Huhn) as applied to claim 1 above, and further in view of US 2018/0303044 A1 to Soni et al. (Soni), of record.
As applied to claim 1, Miller at [0013] in view of De Vuyst at [0009], as evidenced by Huhn at [0006] discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus, inoculating the fermented harvested cacao with the fungal inoculum, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum to allow myceliation to produce a myceliated cacao product.
Miller as modified by De Vuyst does not disclose culturing that takes place for 1-2 days. However, Miller at [0013] discloses rapid and dense growth of its mycelium on cacao nibs.
Soni at Abstract discloses culturing (at [0054]) filamentous fungus on a high protein substrate in liquid media wherein, at [0048] culturing includes shearing and shaking while maintaining an optimal fungal growth temperature, optimizing lighting and optimizing feeding of nutrients to the culture. Further, Soni at [0048] discloses culturing for a period of from 1 to 90 days, which the claimed 1-2 days lies within; and, further, at [0061] Soni discloses that cultures grown optimally for 2-3 days yield a deflavored myceliated protein substrate product. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Soni would have found it obvious to culture its filamentous fungus for 1-2 days because Soni discloses that such a culture time provides a desirable myceliated product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Soni for Miller as modified by De Vuyst to maximize the efficiency of its culturing step by shearing and shaking the liquid in culture and to culture for a period of 1-2 days. Both references disclose culturing protein containing substrates in a liquid culture of a fungal inoculum comprising a filamentous fungus. The ordinary skilled artisan in Miller would have desired to optimize any of the temperature, shearing, shaking and nutrient content of its filamentous fungus culture as in Soni to make for efficient myceliation of its cacao over a period of 1-2 days to reduce undesirable flavors in its harvested cacao in an efficient manner.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of US2008/0193595 A1 to De Vuyst et al. (De Vuyst) and US 2015/0254706 A1 to Kelly et al. (Kelly), as evidenced by EP 31114939 A1 to Huhn (Huhn), as applied to claim 11 above, and further in view of US 5934012 to Holtz et al. (Holtz), of record.
As applied to claim 11, Miller at [0010] and [0013] in view of De Vuyst at [0009] and Kelly at Example 6 and [0142] discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus, inoculating the fermented harvested cacao with the fungal inoculum as a grainspawn culture applied in a liquid slurry, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum to allow myceliation to produce a myceliated cacao product.
Miller, De Vuyst and Kelly do not disclose culturing with an amount of fungal inoculum ranging from 103 to 104 colony forming units (CFU)/kg of its fermented harvested cacao. However, at [0092] Kelly discloses agitation in culturing that reduces the size of fungal inoculum hyphal spheres to a minimal size, which increases the number of colony forming units in a culture. Further, in Example 6 at [0142] Kelly discloses adding 50 mL of inoculant to each bag containing 7.1 lbs of cacao beans.
Holtz at col. 2, line 66 to col. 3, line 13 discloses submerged fermentation and preparing of mycelia to maximize culture efficiency, wherein (at col. 3, lines 29-37) the growth media comprise microcapsules containing lipid, protein and Group II metal salts and (in Example 1 at col. 6, lines 54-58) a grainspawn culture. Further, at col. 4, lines 4-21 Holtz discloses preparing the filamentous fungus to prepare the fungal inoculum comprises constantly agitating and periodically shearing the medium to keep colony size small and thereby produce more points of inoculation for a substrate.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Holtz for Miller as modified by De Vuyst and Kelly to prepare its fungal inoculum to provide the claimed amount of 103 to 104 colony forming units/kg of fermented harvested cacao. All of Holtz, Miller and Kelly disclose culturing filamentous fungus in a grainspawn culture. The ordinary skilled artisan working in Miller as modified by De Vuyst would have desired to provide the claimed amount of 103 to 104 colony forming units/kg fermented harvested cacao to maximize the growth of the fungal inoculum in its grainspawn culture. The ordinary skilled artisan in Miller as modified by De Vuyst would have desired to add the amount of fungal inoculum as in Holtz to insure efficient myceliation over time.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over 2015/0305249 A1 to Miller et al. (Miller) in view of US2008/0193595 A1 to De Vuyst et al. (De Vuyst), US 2018/0303044 A1 to Soni et al. (Soni), US 5934012 to Holtz et al. (Holtz) and US 2015/0254706 A1 to Kelly et al. (Kelly), as evidenced by EP 31114939 A1 to Huhn (Huhn).
Regarding instant claim 14, Miller at [0013] discloses a method for making a myceliated cacao product comprising providing cacao nibs (“providing harvested cacao comprising beans, pulp and/or pods from the fruit pods of the species Theobroma cacao”) by providing a prepared fungal component (“fungal inoculum comprising a filamentous fungus”), inoculating the harvested cacao with the fungal inoculum”) and culturing the harvested cacao and fungal inoculum as a supplemental fermentation step to allow myceliation to produce the myceliated cacao product (claim 15). At [0006], Miller discloses culturing the harvested cacao with a fungal inoculum as a filamentous fungus comprising Hericium erinaceus. Although Miller does not disclose culturing a harvested cacao with the Hericium erinaceus filamentous fungus, the ordinary skilled artisan in Miller would have found it obvious to form a myceliated cacao product from its cacao nibs and Hericium erinaceus because Miller discloses that such a fungus provides a desirable protein containing myceliated cacao product.
Miller does not disclose conventionally fermenting the harvested cacao, thereby generating a fermented harvested cacao, wherein the fermenting the harvested cacao takes place for 3-7 days. Also, Miller does not disclose culturing the fermented harvested cacao in a filamentous fungus as a supplemental fermentation step and does not mention pasteurizing its fermented harvested cacao. Still further, Miller does not disclose providing a fungal inoculum comprising a filamentous fungus comprising Hericium erinaceus and inoculating the fermented harvested cacao with the fungal inoculum at a level of about 103 to 104 colony forming units (CFU) per kg harvested and fermented cacao, and does not disclose culturing that takes place for 1-2 days. In addition, Miller does not disclose drying its myceliated cacao product. However, Miller at [0013] discloses cacao nibs or cacao beans which comprise harvested cacao from cacao fruit. The Office considers the claimed inoculating a harvested cacao that has not been pasteurized to include the harvested cacao of Miller.
De Vuyst at [0009] discloses controlling natural fermentation of harvested cacao by adding lactic acid and/or acetic acid bacteria and (at [0170]) discloses fermenting the harvested cacao for 6 days. Meanwhile, Huhn at [0006] discloses that cacao fermentation naturally occurs almost immediately after the harvest and opening of cocoa pods to expose the cacao fruit (“pulp and pods”) and cocoa beans (“cacao beans”) to air. Huhn further discloses that the natural fermentation of harvested cacao reduces the astringency of the bean and helps develop its chocolate flavor.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of De Vuyst, if not necessary for Miller to ferment its naturally harvested cacao as in De Vuyst to help develop an acceptable or improved flavor; and, in fact, it appears the ordinary skilled artisan would have found such naturally fermentation unavoidable. Both Miller and De Vuyst disclose methods of handling harvested cacao products which ferment naturally. The ordinary skilled artisan would have found it obvious to ferment its harvested cacao for the claimed time period which De Vuyst discloses as a desirable period for fermenting harvested cacao.
Holtz at col. 2, line 66 to col. 3, line 13 discloses submerged fermentation (preparing) mycelia to maximize culture efficiency, wherein (at col. 3, lines 29-37) the growth media comprise microcapsules containing lipid, protein and Group II metal salts and (in Example 1 at col. 6, lines 54-58) a grainspawn culture. Further, at col. 4, lines 4-21 Holtz discloses preparing the filamentous fungus to prepare the fungal inoculum comprises constantly agitating and periodically shearing the medium to keep colony size small and thereby produce more points of inoculation for a substrate.
Soni at Abstract discloses culturing (at [0054]) filamentous fungus on a high protein substrate in liquid media wherein, at [0048] culturing includes shearing and shaking while maintaining an optimal fungal growth temperature, optimizing lighting and optimizing feeding of nutrients to the culture. Further, Soni at [0048] discloses culturing for a period of from 1 to 90 days, which the claimed 1-2 days overlaps; and, further, at [0061] Soni discloses that cultures grown optimally for 2-3 days yield a deflavored myceliated protein substrate product. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I.
Kelly at [0003] discloses a method of conventionally fermenting cacao beans by providing a prepared fungal component and fermenting for 4-7 days. Further, Kelly in Example 6 at [0142] discloses inoculating harvested cacao with 50 mL of submerged liquid tissue cultures of filamentous fungus in a bag containing 7.1 lbs of cacao beans. Still further, at [0135]-[0136] Kelly discloses maintaining hyphal shear to improve culture efficiency. Further, in Example 6 at [0142] discloses drying the myceliated cacao product subsequent to the inoculation and culturing. And, at [0127] Kelly discloses a high protein myceliated cacao product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of De Vuyst, if not necessary, for Miller to ferment its naturally harvested cacao to help develop an acceptable or improved flavor; and, in fact, it appears the ordinary skilled artisan would have found such natural fermentation unavoidable. Further, the ordinary skilled artisan in Miller would have found it obvious to ferment its harvested cacao for the claimed time period because De Vuyst discloses the claimed fermenting period as desirable for making chocolate products.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Holtz and Kelly for Miller as modified by De Vuyst to prepare its fungal inoculum to provide the claimed amount of 103 to 104 colony forming units/kg of harvested cacao. Holtz, Kelly and Miller all disclose culturing filamentous fungus in a liquid suspension to create a high protein myceliated. product maximize its growth rate, including limiting filamentous fungal colony size to the smallest practicable colony size. The ordinary skilled artisan working in Miller would have desired to employ the method of agitating and shearing as in Holtz to maximize the growth of the fungal inoculum and in view of Holtz and Kelly to provide the claimed amount of 103 to 104 colony forming units/kg harvested cacao to insure efficient culturing. The Office considers the claimed 103 to 104 colony forming units/kg harvested cacao to include 1 to 1000 colony forming units/ml of culture and considers such an amount to include a mixture of 7.1 lbs of harvested cacao in Kelly with 50 mL of a dispersion of filamentous fungus colonies as disclosed in Holtz.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Soni for Miller as modified by De Vuyst to maximize the efficiency of its culturing step by shearing and shaking the liquid in culture and to culture for a period of 1-2 days. Both Soni and Miller disclose culturing protein containing substrates in a liquid culture of a fungal inoculum comprising a filamentous fungus. The ordinary skilled artisan in Miller would have desired to optimize any of the temperature, shearing, shaking and nutrient content of its culture as in Soni to make for efficient myceliation of its harvested cacao in a period of 1-2 days to remove undesirable flavors therefrom.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kelly for Miller as modified by De Vuyst to dry its cultured myceliated cacao product. Both Miller and Kelly disclose myceliated cacao products and methods for making them. Further, Kelly at [0142] and De Vuyst at [0122] disclose roasting fermented harvested cacao products improves their flavor. The ordinary skilled artisan in Miller would have desired to roast its myceliated cacao product as in Kelly to improve its flavor.
Response to Arguments
The positions taken with respect to claims 1-20 and have been considered but are moot because the new ground of rejection does not rely on Kelly or Huhn as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In view of the amendment dated November 05, 2023, the following rejections have been withdrawn:
The rejections of claims 1-3, 5-11, 13 and 16-20 under 35 USC 103 as unpatentable over US 2015/0254706 A1 to Kelly et al., as evidenced by EP 31114939 A1 to Huhn;
The rejection of claim 4 under 35 USC 103 as unpatentable over US 2015/0254706 A1 to Kelly et al. in view of US 2018/0303044 A1 to Soni et al., as evidenced by EP 31114939 A1 to Huhn;
The rejections of claim 12 under 35 USC 103 as unpatentable over US 2015/0254706 A1 to Kelly et al. in view of US 5934012 to Holtz et al., as evidenced by EP 31114939 A1 to Huhn; and,
The rejections of claims 14-15 under 35 USC 103 as unpatentable over US 2015/0254706 A1 to Kelly et al. in view of US 2018/0303044 A1 to Soni et al. and US 5934012 to Holtz et al., as evidenced by EP 31114939 A1 to Huhn.
Conclusion
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791