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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation “the food concentrate” in lines 2-3. It appears the claim should recite “the packaged food concentrate” in order to maintain consistency with “A packaged food concentrate” recited in Claim 1, line 1.
Appropriate correction is required.
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 of this title, 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 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 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.
Claims 1, 3, 6, 8, 10, 12, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hamdy et al. US 3,471,303 in view of Gooding US 2020/0270045.
Regarding Claim 1, Hamdy et al. discloses a packaged food concentrate (dehydrated food) made with a packaging comprising an edible primary packaging (edible coating composition) in contact with the food concentrate (dehydrated food) (‘303, Column 1, lines 48-55) wherein the edible primary packaging (edible coating composition) provides barrier properties (protects dehydrated food products against moisture penetration) (‘303, Column 1, lines 56-60) and the edible primary packaging (edible coating composition) comprises methylcellulose compounds (‘303, Column 5, lines 15-29).
Hamdy et al. is silent regarding a recyclable secondary packing.
Gooding discloses a container formed from a one piece outer casing defining an interior reservoir (‘045, Paragraph [0009]) wherein the outer casing is formed from a recyclable plastic material (‘045, Paragraph [0029]) and the outer casing is also formed of a laminated material (‘045, Paragraph [0032]) wherein the container encloses a product that is a liquid material or a dry material wherein the dry material is animal derived bouillon granules (‘045, Paragraph [0014]) wherein the outer casing is formed of a recyclable material (‘045, Paragraph [0029]). Bouillon granules are a type of dehydrated food.
Both Hamdy et al. and Gooding are directed towards the same field of endeavor of food packages comprising dehydrated food. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food packaging of Hamdy et al. and dispose the packaged food concentrate comprising the edible primary packaging in the form of a coated dehydrated food product into a recyclable secondary packing as taught by Gooding in order to preserve the freshness of the food concentrate packaging (‘045, Paragraph [0006]). Furthermore, it would have been obvious to one of ordinary skill in the art to make the secondary packing out of recyclable material as taught by Gooding in order to make the packaging environmentally friendly.
Further regarding Claim 1, Hamdy et al. modified with Gooding is silent regarding the edible primary packaging comprising the compounds in an amount between 0.1 to 2 wt% based on the food concentrate. However, differences in the concentration of the claimed compounds of the edible primary packaging based on the food concentrate will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of the claimed compounds of the edible primary packaging based on the food concentrate is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claim 1, the limitations “wherein the food concentrate is packaged in the edible primary packaging by a process comprising the steps of preparing a solution containing the constituents of the edible packaging, applying the solution onto the food concentrate, and drying the edible packaging” are product by process limitations. Even though the product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, Hamdy et al. discloses the coating compositions being made using conventional methods of applying coatings to food products such as by spraying a solution of the coating composition after drying the coated food product (‘303, Column 3, lines 69-75).
Regarding Claim 3, Hamdy et al. discloses the edible primary packaging (edible coating composition) comprising methylcellulose compounds (‘303, Column 5, lines 15-29).
Regarding Claim 6, Hamdy et al. discloses the edible primary packaging (edible coating composition) being water soluble (allows for rehydration by immersing food products in water at elevated temperatures) (‘303, Column 4, lines 18-34).
Regarding Claims 8 and 20, the limitations “wherein the solution containing the constituents of the edible packaging further comprises ethanol in an amount between 5 to 40 wt% based on the total amount of the solution” and “wherein the solution containing the constituents of the edible primary packaging further comprises ethanol in an amount between 10 to 30 wt% based on the total amount of solution” are product by process limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 7 above. Nevertheless, Hamdy et al. discloses the solution comprising ethanol (‘303, Column 2, lines 37-51).
Regarding Claim 10, Hamdy et al. discloses the food concentrate being reconstituted in water (rehydrated by immersing food products in water at elevated temperatures) (‘303, Column 4, lines 18-34).
Regarding Claim 12, Gooding discloses the secondary packaging being wrapped around the food concentrated packaged in the primary packaging (‘045, Paragraph [0014]).
Regarding Claims 16-19, Hamdy et al. discloses the edible primary packaging (edible coating) comprising methyl cellulose having improved moisture barrier properties (‘303, Column 2, lines 21-36). Although Hamdy et al. modified with Gooding does not explicitly disclose the claimed methylcellulose compounds being in an amount of between 0.1 to 1.5 wt%, between 0.1 to 1.0 wt%, between 0.2 to 1.5 wt%, and between 0.2 to 1 wt% based on the food concentrate, differences in the concentration of the methylcellulose compounds in the edible primary packaging/edible coating will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of methylcellulose compounds is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of the methylcellulose compounds in the edible primary packaging/edible coating of modified Hamdy et al. based upon the moisture barrier properties of the edible primary packaging/edible coating (‘303, Column 2, lines 21-27).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Hamdy et al. US 3,471,303 in view of Gooding US 2020/0270045 as applied to claim 1 above in further view of Pere et al. US 2012/0276596.
Regarding Claim 2, Hamdy et al. discloses the edible coating composition comprising fat (fatty acid ester of a substantially linear polysaccharide) and a polysaccharide (‘303, Column 1, lines 13-20). However, Hamdy et al. modified with Pere et al. is silent regarding the barrier properties being an oil and grease barrier with a maximum score of 1 when tested according to Lange et al. at the specified WVTR and OTR measuring parameters of WVTR of at least 4-5 g/m2/day and an OTR of at least 25 cc/m2/day/atm at 23°C, 50%RH).
Pere et al. discloses an edible coating for food product packages wherein the edible coating comprises a modified polymeric polysaccharide matrix (‘596, Paragraph [0035]) wherein grease resistance is an important characteristic of packaging materials used with products containing fat or oil and that polysaccharide films are generally expected to be highly grease resistant due to their substantial hydrophilicity and that the grease resistance properties of polysaccharides can be modified by for example chemical modification (‘596, Paragraph [0014]).
Both modified Hamdy et al. and Pere et al. are directed towards the same field of endeavor of edible polysaccharide containing coating compositions comprising a fat. Although Pere et al. does not explicitly recite the edible coating having an oil and grease barrier having the claimed WVTR and OTR when tested at the claimed conditions, Pere et al. establishes edible coating made of a polysaccharide film that is highly grease resistant due to their substantial hydrophilicity and that the grease resistance properties of polysaccharides are modified. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil and grease barrier properties of the polysaccharide based edible coating of Hamdy et al. and adjust the grease barrier properties as taught by Pere et al. since differences in the oil and grease resistance properties of the edible coating will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such oil and grease resistance is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Pere et al. teaches that one of ordinary skill in the art can adjust the grease barrier properties of a polysaccharide based edible coating such as that disclosed by Hamdy et al.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Hamdy et al. US 3,471,303 in view of Gooding US 2020/0270045 as applied to claim 1 above in further view of Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023).
Regarding Claim 11, Hamdy et al. modified with Gooding is silent regarding the food concentrate being a stock cube or a spice composition.
Achterkamp et al. discloses a packaged food concentrate (solid bouillon or broth concentrate) in a packaging comprising an edible primary packaging (edible coating) in contact with the food concentrate (solid bouillon or broth concentrate) (‘326, Page 9, lines 11-13). The edible primary packaging (edible coating) comprises wax compounds (‘326, Page 13, lines 5-7). The disclosure of the food concentrate to be solid bouillon or broth concentrate reads on the claimed stock cube.
Both modified Hamdy et al. and Achterkamp et al. are directed towards the same field of endeavor of packaged food concentrates in the form of a dehydrated food composition covered by an edible coating. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the generic dehydrated food of modified Hamdy et al. to be a stock cube in the form of solid bouillon or broth concentrate as taught by Achterkamp et al. based upon the particular type of food concentrate desired to be packaged in an edible coating.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Hamdy et al. US 3,471,303 in view of Gooding US 2020/0270045 as applied to claim 1 above in further view of Carroll et al. US 2006/0073190.
Regarding Claim 21, Hamdy et al. discloses the edible primary packaging/edible coating comprising methylcellulose which influences the moisture barrier properties of the edible coating (‘303, Column 2, lines 21-27).
Hamdy et al. modified with Gooding is silent regarding the edible primary packaging comprising natrium alginate and the weight ratio of natrium alginate and methylcellulose being in the range of about 5:1 to 15:1.
Carroll et al. discloses an edible film (‘190, Paragraph [0002]) comprising a hydrocolloid or gum of alginate and an edible polymer of methylcellulose (‘190, Paragraph [0018]) wherein combining different components enhances certain characteristics of the final film product (‘190, Paragraph [0038]).
Both modified Hamdy et al. and Carroll et al. are directed towards the same field of endeavor of edible primary packaging comprising methylcellulose. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the edible primary packaging of modified Hamdy et al. and incorporate alginate hydrocolloid as taught by Carroll et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Carroll et al. teaches that there was known utility in the food art to incorporate alginates into methylcellulose based edible films/coatings. Although Carroll et al. does not explicitly disclose the alginate to be natrium alginate, Carroll et al. teaches using hydrocolloids such as alginates to soften or make the film more elastic or pliable during production or aid in the ability of the polymer to form a thin film or dryable film that can be manipulated during processing (‘190, Paragraph [0018]). Since the alginate is discussed to be an example of a type of hydrocolloid that aids to soften or make the film more elastic or pliable during production or aid in the ability of the polymer to form a thin film or dryable film that can be manipulated during processing, it would have been obvious for a person having ordinary skill in the art at the time of the invention to make the species structurally similar to those in the prior art for these reasons in view of Dillon, 919 F.2d at 697, 16 USPQ2d at 1905; In re Stemniski, 444 F.2d 581, 586, 170 USPQ 343, 348 (CCPA 1971) (MPEP § 2144.08.II.A.4.(d).).
Further regarding Claim 21, Hamdy et al. modified with Gooding and Carroll et al. is silent regarding the edible primary packaging comprising natrium alginate and methylcellulose in a weight ratio in the range of about 5:1 to about 15:1. However, differences in the weight ratio of natrium alginate to methylcellulose in the edible primary packaging will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such weight ratio of the natrium alginate and methylcellulose is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would modify the weight ratio of natrium alginate and methylcellulose of modified Hamdy et al. based upon the desired elasticity/pliability of the edible film/coating imparted by the alginate as taught by Carroll et al. and based upon the desired moisture barrier properties of the edible coating imparted by the amount of methylcellulose as suggested by Hamdy et al. (‘303, Column 2, lines 21-27)
Claims 1, 3, 8-9, and 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023) in view of Averbach US 5,130,151, and Schmid et al. US 2015/0225152.
Regarding Claim 1, Achterkamp et al. discloses a packaged food concentrate (solid bouillon or broth concentrate) in a packaging comprising an edible primary packaging (edible coating) in contact with the food concentrate (solid bouillon or broth concentrate) (‘326, Page 9, lines 11-13). The edible primary packaging (edible coating) comprises wax compounds (‘326, Page 13, lines 5-7).
Achterkamp et al. is silent regarding a recyclable secondary packing and the edible primary packaging of the edible coating providing barrier properties.
Averbach discloses an edible coating for food products wherein the edible coating is an edible moisture barrier capable of inhibiting the migration of moisture through the surface of a food product (‘151, Column 2, lines 61-68) wherein the edible moisture barrier consists essentially of edible oleaginous materials of oils, fats, and synthetic oil like substances and a minor portion by weight of edible wax wherein the moisture barrier film contains beeswax (‘151, Column 4, lines 3-12).
Both Achterkamp et al. and Averbach are directed towards the same field of endeavor of edible primary packaging in the form of an edible coating for food products wherein the edible coating comprises wax. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the wax based edible coating of Achterkamp et al. and make the wax based edible coating to have barrier properties as taught by Averbach in order to inhibit the migration of moisture through the surface of a food product in order to protect said food product from the external environment.
Further regarding Claim 1, Achterkamp et al. modified with Averbach is silent regarding a recyclable secondary packaging.
Schmid et al. discloses a recyclable packaging film having high barrier properties (‘152, Paragraph [0016]) for food packaging (‘152, Paragraph [0017]) having oxygen barrier layers (‘152, Paragraph [0068]).
Both Achterkamp et al. and Schmid et al. are directed towards the same field of endeavor of food packaging. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaging of modified Achterkamp et al. and package the coated food concentrate in a recyclable secondary food packing as taught by Schmid et al. in order to preserve the freshness of the food contents using the food packaging having oxygen barrier layers of Schmid et al.
Further regarding Claim 1, Achterkamp et al. modified with Averbach and Schmid et al. is silent regarding the edible primary packaging comprising the compounds in an amount between 0.1 to 2 wt% based on the food concentrate. However, differences in the concentration of the claimed compounds of the edible primary packaging based on the food concentrate will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of the claimed compounds of the edible primary packaging based on the food concentrate is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claim 1, the limitations “wherein the packaged food concentrate is packaged in the edible primary packaging by a process comprising the steps of preparing a solution containing the constituents of the edible packaging, applying the solution onto the food concentrate, and drying the edible primary packaging” are product by process limitations. Even though the product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, Achterkamp et al. discloses the food concentrate being packaged by a process comprising the steps of preparing a solution containing the constituents of the edible packaging, applying the solution onto the food concentrate, and drying the edible packaging (‘326, Page 13, lines 1-12).
Regarding Claim 3, Achterkamp et al. discloses the edible primary packaging (edible coating) comprising wax (‘326, Page 13, lines 5-7. However, Averbach discloses the edible wax of a moisture barrier film containing beeswax (‘151, Column 4, lines 3-12). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the edible coating wax of modified Achterkamp et al. and use beeswax to make the moisture barrier edible film as taught by Averbach since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Averbach teaches that there was known utility in the food packaging art to construct an edible wax based coating out of beeswax.
Regarding Claim 8, the limitations “wherein the solution containing the constituents of the edible packaging further comprises ethanol in an amount between 5 to 40 wt% based on the total amount of the solution” are product by process limitations and as such are rejected for the same reasons regarding intended use enumerated in the rejections of Claim 7 above.
Regarding Claim 9, Achterkamp et al. discloses the food concentrate being pressed food concentrates (concentrate articles comprising a core of compressed ingredients) (‘326, Page 3, lines 18-21).
Regarding Claim 11, Achterkamp et al. discloses the food concentrate being a stock cube (‘326, Page 1, lines 6-8 and 18-24).
Regarding Claims 12-15, Schmid et al. discloses the secondary packaging being wrapped around the food packaged in the primary packaging (‘152, Paragraph [0017]) wherein the secondary packaging is made from paper (‘152, Paragraph [0029]) that is also biodegradable (‘152, Paragraph [0016]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaged food concentrate of modified Achterkamp et al. and construct the secondary packaging that is wrapped around the food packaged in the primary packaging and construct the secondary packaging out of biodegradable paper as taught by Schmid et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07).
Regarding Claims 16-19, Averbach discloses the edible primary packaging comprising the wax compounds in an amount of not more than about 2% (‘151, Column 4, lines 28-34), which encompasses the claimed wax compounds being in an amount of between 0.1 to 1.5 wt%, between 0.1 to 1.0 wt%, between 0.2 to 1.5 wt%, and between 0.2 to 1 wt% based on the food concentrate, which wax compounds improves the strength of the film and its wettability and serves to activate the solidification process (‘151, Column 4, lines 25-28). Both Achterkamp et al. and Averbach are directed towards the same field of endeavor of edible primary packaging in the form of an edible coating for food products wherein the edible coating comprises wax. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the wax based edible coating of Achterkamp et al. and incorporate wax compounds into the edible primary packaging/edible coating in the claimed concentration as taught by Averbach since where the claimed wax compound concentration ranges encompasses wax compound concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of wax compounds of the edible primary packaging/edible coating of Achterkamp since differences in the concentration of the wax compounds in the edible primary packaging/edible coating will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of wax compounds is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of the wax compounds in the edible primary packaging/edible coating of Achterkamp based upon the desired strength and wettability of the edible film as taught by Averbach.
Regarding Claim 20, the limitations “wherein the solution containing the constituents of the edible primary packaging further comprises ethanol in an amount between 10 to 30 wt% based on the total amount of the solution” are product by process limitations and as such are rejected for the same reasons regarding product by process limitations as that enumerated in the rejections of Claim 1 above.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023) in view of Averbach US 5,130,151, and Schmid et al. US 2015/0225152 as applied to claim 1 above in further view of MacLachlan US 2,136,557 and Pere et al. US 2012/0276596.
Regarding Claim 2, Achterkamp et al. discloses the edible primary packaging (edible coating) being made with wax (‘326, Page 13, lines 5-7). Averbach discloses the wax being present in an amount to form a thin continuous barrier (‘151, Column 5, lines 18-23). Achterkamp et al. also discloses the coating layer being made of an edible material (‘326, Page 5, lines 2-7) comprising fat (‘326, Page 7, lines 34-35) and modified starch (‘326, Page 7, lines 25-28), which is a type of polysaccharide. However, Achterkamp et al. modified with Averbach and Schmid et al. is silent regarding the barrier properties being an oil and grease barrier with a maximum score of 1 when tested according to Lange et al. at the specified WVTR and OTR measuring parameters of WVTR of at least 4-5 g/m2/day and an OTR of at least 25 cc/m2/day/atm at 23°C, 50%RH).
MacLachlan discloses an article of fibrous or cellulosic which is entirely coated or impregnated with a fat to render it waterproof and greaseproof wherein the coating material is an edible fat (‘557, Page 1, Left Column, lines 1-7). Pere et al. discloses an edible coating for food product packages wherein the edible coating comprises a modified polymeric polysaccharide matrix (‘596, Paragraph [0035]) wherein grease resistance is an important characteristic of packaging materials used with products containing fat or oil and that polysaccharide films are generally expected to be highly grease resistant due to their substantial hydrophilicity and that the grease resistance properties of polysaccharides can be modified by for example chemical modification (‘596, Paragraph [0014]).
Modified Achterkamp et al., MacLachlan, and Pere et al. are all directed towards the same field of endeavor of edible coatings made of fat. Although Pere et al. does not explicitly recite the edible coating having an oil and grease barrier having the claimed WVTR and OTR when tested at the claimed conditions, Pere et al. establishes edible coating made of a polysaccharide film that is highly grease resistant due to their substantial hydrophilicity and that the grease resistance properties of polysaccharides are modified. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil and grease barrier properties of the polysaccharide based edible coating of Achterkamp et al. made of a modified starch and adjust the grease barrier properties as taught by Pere et al. since differences in the oil and grease resistance properties of the edible coating will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such oil and grease resistance is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Pere et al. teaches that one of ordinary skill in the art can adjust the grease barrier properties of a polysaccharide based edible coating made of modified starch such as that disclosed by Achterkamp et al.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023) in view of Averbach US 5,130,151, and Schmid et al. US 2015/0225152 as applied to claim 1 above in further view of Hitzfeld et al. US 2018/0177214 and Bakker et al. US 2020/0214314.
Regarding Claim 5, Achterkamp et al. discloses the edible primary packaging (coating) being made of a layer comprising a polyol (‘326, Page 7, lines 30-34). Averbach discloses the moisture barrier compositions comprising oleaginous materials (‘151, Column 3, lines 35-43) such as sugar and sugar alcohol fatty acid polyesters (‘151, Column 3, lines 62-68). However, Achterkamp et al. modified with Averbach and Schmid et al. is silent regarding the edible primary packaging being sugar free.
Hitzfeld et al. discloses an edible coating used for food products (‘214, Paragraph [0001]) wherein the edible coating is based on sugar free polyols instead of sugar (‘214, Paragraph [0097]) which creates a barrier to lipid or water migration between the edible center and the layers (‘214, Paragraph [0119]).
Both modified Achterkamp et al. and Hitzfeld et al. are directed towards the same field of endeavor of edible coatings made of a layer comprising a polyol. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the edible primary packaging coating of modified Achterkamp et al. that is already made out of polyols and make the edible primary packaging coating out of only sugar free polyols as taught by Hitzfeld et al. since Bakker et al. teaches that polyols are called sugar alcohols that are a group of reduced calorie carbohydrates that provide the taste and texture of sugar with about half the calories and are advantageously used as food ingredients to replace sugar in an increasing variety of sugar free and reduced calorie foods and beverages for their functional and health benefits (‘314, Paragraph [0036]). One of ordinary skill in the art would incorporate only polyols in order to reduce the caloric content of the food as taught by Bakker et al.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023) in view of Averbach US 5,130,151, and Schmid et al. US 2015/0225152 as applied to claim 1 above in further view of Votolato et al. US 2020/0120940.
Regarding Claim 5, Achterkamp et al. modified with Averbach and Schmid et al. is silent regarding the edible primary packaging comprising seasoning particles.
Votolato et al. discloses a food sheet comprising an edible food substrate comprising a layer of starch and/or vegetable wherein the substrate is used for packaging the food sheet wherein the food sheet comprises seasonings (‘940, Paragraph [0036]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the packaged food concentrate of modified Achterkamp et al. and incorporate seasonings onto the edible primary packaging coating as taught by Votolato et al. based upon the particular ingredients desired to be incorporated onto the packaged food concentrate.
Claims 6 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Achterkamp et al. WO 2007/104326 (cited on Information Disclosure Statement filed February 27, 2023) in view of Averbach US 5,130,151, and Schmid et al. US 2015/0225152 as applied to claim 1 above as further evidenced by Hamdy et al. US 3,471,303.
Regarding Claim 6, Achterkamp et al. discloses the edible primary packaging (coating layer) comprising fat (‘326, Page 7, lines 34-35). Hamdy et al. provides further evidence that a fat based coating composition (‘303, Column 1, 13-20) is water soluble (dehydrated food products coated with compositions can be rehydrated by immersing such food products in water at elevated temperatures (‘303, Column 4, lines 30-34).
Regarding Claim 10, Achterkamp et al. discloses the food concentrate being a solid concentrate of bouillon (‘326, Page 6, lines 6-9). Hamdy et al. provides evidence that dehydrated coated vegetables are capable of being rehydrated by immersing the food products in water at elevated temperatures (‘303, Column 4, lines 18-34), which indicates that the food concentrate is to be reconstituted in water.
Response to Arguments
Examiner notes that most of the previous Claim Objections have been withdrawn in view of the amendments. One of the previous Claim Objections has been maintained as enumerated above as not being addressed.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Applicant's arguments filed July 31, 2025 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Pages 7-8 of the Remarks that the Patent Office allegedly fails to articulate sufficient reasoning as to why one of ordinary skill in the art with no knowledge of the present invention would have sought to optimize the amount of the compounds. Applicant contends that the field of edible packaging materials is complex and highly formulation dependent and minor changes in concentration can materially affect mechanical properties, solubility, and consumer acceptability and that optimization to achieve the claimed concentration would not have been routine or predictable. Applicant contends that the edible primary packaging comprising the compounds in an amount between 0.1 to 2% based on the food concentrate is not identified in the cited references and is not a result effective variable. Applicant alleges that the claimed range of 0.1 to 2 wt% is not arbitrary and provides a balance between functionality and palatability and contributes to shelf stability.
Examiner argues that arguments presented by the applicant cannot take the place of evidence in the record in view of In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Examples of statements which are not evidence and which must be supported by an appropriate affidavit or declaration includes statements regarding unexpected results (MPEP § 716.01(c).II.). Applicant has not provided any objective data supporting the allegation that the claimed range of 0.1 to 2 wt% is not arbitrary and provides a balance between functionality and palatability and contributes to shelf stability. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Applicant has not presented any data comparing the palatability and/or shelf stability of packaged food concentrates having the claimed concentration of the list of compounds in the claimed amounts compared to the palatability and/or shelf stability of packaged food concentrates below and above the claimed concentration of the list of compounds outside of the claimed amounts. It is unknown how applicant’s allegations of the claimed range of 0.1 to 2 wt% is not arbitrary and provides a balance between functionality and palatability and contributes to shelf stability was arrived at when no comparison of food concentrates having the claimed concentrations of the compounds was made to food concentrates outside of the claimed concentrations of the compounds. Additionally, Claim 1 recites several different compounds out of the group of gellans, waxes, whey protein isolate, cellulose, natrium alginate, methylcellulose, hydroxypropylmethyl cellulose, corn zein, gluten, soy protein, caseinate, chitosan, pectin, and/or carrageenan. Applicant admits that the field of edible packaging materials is complex and highly formulation dependent. Claim 1 encompasses a variety of different compounds that have different properties when incorporated into a food concentrate. Examiner again emphasizes that even applicant admits that the field of edible packaging materials is highly formulation dependent. Furthermore, the primary reference of Hamdy discloses edible coatings comprising methyl cellulose having improved moisture barrier properties (‘303, Column 2, lines 21-36). Methyl cellulose is one of the multitude of compounds claimed. It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of the compound of methyl cellulose in the edible primary packaging in the form of a food coating of Hamdy based upon the desired moisture barrier properties of the food coating. Furthermore, Hamdy et al. discloses the edible coating composition having the desired mechanical film properties (‘303, Column 3, lines 19-30). Pearce et al. US 2003/0224090 discloses an edible film containing many ingredients comprising a film forming agent and other additives such as thickening additives (‘090, Paragraph [0026]) wherein the thickening additives include methylcellulose to further enhance the structure of the film composition wherein the methylcellulose thickening agent is present in an amount ranging from about 0 to about 20 wt% or otherwise (‘090, Paragraph [0040]), which encompasses the claimed compound of methylcellulose concentration of between 0.1 to 2 wt% based on the food concentrate. Additionally, Rojas Grau et al. US 2018/0242604 discloses an edible coating comprising a polysaccharide matrix formed from methylcellulose (‘604,. Paragraph [0095]) in a concentration of from 0.1 to 2.5% w/w (‘604, Paragraph [0099]), which overlaps the claimed compound of methylcellulose concentration of between 0.1 to 2 wt% based on the food concentrate. It also would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of methylcellulose compound used in the edible primary packaging in the form of an edible coating barrier of Hamdy et al. and incorporate the methylcellulose in the claimed concentration as taught by Pearce et al. and Rojas Grau et al. based upon the desired rigidity of the edible coating as suggested by Pearce et al. and since both Pearce et al. and Rojas et al Grau et al. teaches that there was known utility in the food art to incorporate methylcellulose in the claimed concentrations into edible food coatings. Where the claimed methylcellulose concentration ranges overlaps methylcellulose concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Therefore, these arguments are not found persuasive.
Examiner notes that applicant’s comments on Pages 8-9 of the Remarks with respect to the combination of Hamdy modified with Gooding and/or Pere, and/or Achterkamp does not specifically and distinctly point out the supposed errors of the combination of references. Gooding is being relied upon to teach the limitations regarding using a recyclable secondary packaging. Hamdy already renders obvious the claimed concentrations of the multitude of compounds of Claim 1 as discussed above. In response to applicant's arguments against the references individually, 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).
Applicant argues on Page 10 of the Remarks regarding the rejections of Claim 1 using Achterkamp as the primary reference that none of the references of Achterkamp, Averbach, Schmid, MacLachlan, Pere, Hitzfeld, Bakker, Votolato, and Hamy does not disclose the edible primary packaging comprising the compounds in an amount of between 0.1 to 2 wt% based on the food concentrate Applicant contends that Achterkamp discloses edible coatings composed of waxes for food preservation such as cheese or product but is silent on the amount of edible coating material in relation to the food concentrate. Applicant similarly argues that Averbach and Schmid also does not teach the claimed concentration of edible coating material. Applicant alleges that Achterkamp with Averbach and Schmid alone or in combination does not provide direction or expectation of success for identifying 0.1-2 wt% as a workable or advantageous range and that any optimization would be speculative at best. Applicant continues on Page 11 of the Remarks that MacLachlan, Pere, Hitzfled, Bakker, Votolato, and Hamdy also does not disclose the edible primary packaging comprises the compounds in an amount of between 0.1 to 2 wt% based on the food concentrate, i.e. does not disclose the concentration range of the coating material relative to food weight.
Examiner argues Averbach discloses the edible moisture barrier containing wax which is a useful barrier to moisture migration in or out of a food product (‘151, Column 2, lines 40-47) in which the wax is a minor portion by weight of the edible moisture barrier and the wax being present in an amount sufficient to nucleate solidification of the molten oleaginous material (‘151, Column 2, lines 61-68) (‘151, Column 3, lines 1-2) in which the edible wax comprises no more than about 2% of the composition (‘151, Column 3, lines 2-16), which encompasses the claimed compounds of the edible primary packaging being in an amount between 0.1 to 2 wt% based on the food concentrate. Averbach teaches that there was known utility in the edible packaging art to incorporate wax compounds in an edible coating/edible primary packaging in the claimed concentration. Additionally, Averbach also teaches the presence of the wax improves the strength of the film and its wettability and serves to activate the solidification process to impart organoleptic properties of taste, after taste, and mouthfeel to be essentially imperceptible (‘151, Column 4, lines 18-34). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the edible primary packaging/edible moisture barrier of Achterkamp and adjust concentration of wax compounds of the edible moisture barrier the differences in the concentration of the claimed compounds of the edible primary packaging based on the food concentrate will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of the claimed compounds of the edible primary packaging based on the food concentrate is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of wax compound used in the edible primary packaging/edible moisture barrier of Achterkamp based upon the desired film strength and wettability while imparting imperceptible organoleptic properties of taste, after taste, and mouthfeel as taught by Averbach. Therefore, these arguments are not found persuasive.
PNG
media_image1.png
200
400
media_image1.png
Greyscale
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Briganti et al. US 2020/0214484 discloses an edible material comprising hydrocolloids including methylcellulose and alginate wherein hydrocolloids change their physical behavior and characteristics with the addition or elimination of heat and have the ability to thicken and form gels at low concentrations (‘484, Paragraph [0023]).
Solomon et al. US 2017/0275070 discloses an edible and biodegradable package material (‘070, Paragraph [0002]) comprising alginate and methylcellulose (‘070, Paragraph [0056]).
Pearce et al. US 2003/0224090 discloses an orally soluble edible film comprising thickening agents including methylcellulose and alginate (‘090, Paragraph [0040]).
Scionti US 2021/0345643 discloses an edible viscoelastic composition (‘643, Paragraph [0015]) comprising alginates and methylcellulose (‘643, Paragraph [0110]).
Ozawa et al. US 2021/0128439 discloses an edible film comprising alginates and methylcellulose (‘439, Paragraph [0037]).
Rojas Grau et al. US 2018/0242604 discloses an edible coating comprising polysaccharides of methylcellulose and alginate (‘604, Paragraph [0095]).
Barkalow et al. US 2006/0024425 discloses an edible film composition comprising film forming agents including alginate and hydroxypropyl methylcellulose wherein the selection of film formers makes the edible film more or less brittle and contributes to modifying the gummy properties of the edible films (‘425, Paragraph [0012]).
Auguello US 2005/0196445 discloses most commercially available edible coatings utilize hydroxypropylmethyl cellulose as the polymer for useful coatings and other synthetic film formers include methylcellulose which may be used in combination with alginate (‘445, Paragraph [0010]).
Barabolak et al. US 2004/0241294 discloses an edible thin film product comprising a film former of methylcellulose and sodium alginate that impacts the pH of the edible film composition (‘294, Paragraph [0049]).
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information i