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
Claims 1, 4-5 and 8-10 are objected to because of the following informalities:
Regarding claim 1, delete “is having” and amend to “has” to place the claim in better grammatical form.
After “storing information of the” delete “content of” and insert “one or more” for consistency with “one or more nutrients” in the preceding line.
After “nutrients, flavour and colour of” delete “the brewer’s spent grains” and insert “different compositions of brewer’s spent grain” to place the claim in better grammatical form (single vs plural).
After “providing input means (8) adapted to receive” delete “an input from a user” and insert “the user input” for consistency with the preamble to grammatical form.
Delete “of a mixture of brewer’s spent grain to be obtained by the method” since the limitation does not significantly add to the scope of the claim, and is redundant to “a requested user input” as recited in the preamble.
After “wherein the input from” delete “a” and insert “the” since “a…user” is recited in the preamble.
After “weighting cells, said” insert “one or more” for consistency with “one or more delivery devices” in the preceding line.
Before “adapted to deliver” delete “are”.
After “adapted to deliver” delete the limitation “from the receptacles (2)” and insert said limitation after “weighed amount of the brewer’s spent grain” to place the claim in better grammatical form.
After “container (4), to form” delete “a” and insert “the” since “mixture of brewer’s spent grain” is recited in the preamble.
After “database (7) information of the” delete “content of” and insert “one or more” for consistency with “one or more nutrients” as previously recited.
After “receptacles (2) and retrieve” delete “data of” for consistency with the preamble
Before “it determines the amounts” the “6” lacks parenthesis.
After “it determines the” delete “amounts” and insert “amount, and after “to be delivered from” insert “each of” for consistency in order to place the claim in better form.
After “receptacles (2) corresponding to the” delete “use” and insert “user”.
After “controller determines the amount of” delete “each of”, and insert “each of” after “grain to be delivered from” for grammar.
After “container (4)” delete “on basis of” and insert “based on” for grammar.
In the final clause, delete “being adapted” and insert “configured to” to place the claim in better form.
Delete “device(s)” and insert “devices” for consistency and form.
Delete the limitations “individually into the container (4)” and “to be delivered from a receptacle (2) to the container (4)” since the limitations do not significantly add to the scope of the claim, and are redundant to previously recited limitations.
Before “determined by the controller” delete “metered or weighed amount of brewer’s spent grain” and amend to instead recite “amount of the brewer’s spent grain from each of the receptacles (2)” in order to place the claim in better form.
Regarding claim 4, in lines 2-3 delete “grains” and insert “grain” for consistency with the language of claim 1.
Regarding claim 5, before “brewer’s” insert “the” to place the claim in better form.
Regarding claim 8, delete “metered or weighed amounts of the one or more brewer’s spent grain” and amend to “amount of brewer’s spent grain to be delivered from each of the receptacles (2)” to place the claim in better form.
Regarding claim 9, delete “in the one or more brewer’s spent grains in” and amend to “of the brewer’s spent grain in each of” to place the claim in better form.
Regarding claim 10, delete “receptacle (2) is” and amend to “receptacles (2) are” for consistency with claim 1.
Delete “a silo, a container, a pouch, a sack, a bag, a pipe, a basket, and a kettle” and amend to instead recite “silos, containers, pouches, sacks, bags, pipes, baskets, and kettles” for consistency with the above and to place the claim in better form.
After “the group” insert “consisting” in order to place the alternatives in appropriate form.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
The limitation “input means adapted to receive an input from a user” in claim 1 is interpreted in view of the specification to be a graphical user interface (page 15 lines 33-34).
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 and 3-10 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors.
Regarding claim 1, the limitation “each receptacle (2) comprises a brewer’s spent grain, where the brewer’s spent grain comprises independently of each other: one or more nutrients, a flavour and a colour” renders the claim indefinite since it is grammatically ambiguous. It is unclear if the spent grain in each receptacle has the same or different composition from the others. It appears Applicant is attempting to claim the composition of the spent grain in one receptacle is different from that of spent grain in a different receptacle with respect to nutrients, flavor and color. If so, the rejection can be overcome by amending the limitation in question to instead recite “each receptacle (2) comprises a different composition of brewer’s spent grain, wherein each composition is different with respect to one or more nutrients, a flavour and a colour”.
The limitation “is one or more selected from the following groups of inputs: a requested colour…nutrient content” renders the claim indefinite since it is unclear from the language if the claim should be treated as a Markush claim i.e., a closed group of alternatives. Further, it is unclear what is meant by “groups of inputs”, and how the recited alternatives are categorized into said “groups”. The proper form for Markush claims includes e.g., “one or more inputs selected from the group consisting of a requested colour, a requested flavour, and a requested nutrient content ", see MPEP 2117 I.-II. The rejection can be overcome by amending the claim to clarify the language as explained above.
The limitation “a controller (6) adapted by suitable software instructions” renders the claim indefinite since it is unclear what is encompassed by “suitable software instructions”, and what is considered to be “suitable”. It is noted that controllers are well-known to be operated by software, and therefore “adapted by suitable software instructions” is redundant. The rejection can be overcome by amending the claim to instead recite “a controller (6) configured to retrieve, from the database (7), information of….”
The limitation “the controller (6) is a programmable processor cooperating with a memory storing data and instructions” renders the claim indefinite since it is unclear if feature of “a memory storing data and instructions” is the same as “a database storing information” and “controller (6) being adapted…to retrieve from the database (7) information” previously recited in the claim. The rejection can be overcome by deleting “cooperating with a memory storing data and instructions” as the features are already recited in the claim.
The limitation “once the amount of nutrients, colour and/or flavour are known by the controller 6, it determines” renders the claim indefinite since the language is inconsistent with the rest of the claim, the antecedent basis is ambiguous. It is noted that the limitation does not significantly add to the claim, particularly since the claim already recites retrieving the appropriate information and it is well known that controllers necessarily perform this task before further calculations/actions. The rejection can be overcome by deleting “once the amount of nutrients, colour and/or flavour are known by the controller 6, it determines” and amending to instead recite “the controller (6) determines”.
Regarding claim 4, the limitation “are selected from the group of solids fractions of brewer’s spent grains and liquid fractions of brewer’s spent grain” renders the claim indefinite since it is unclear if the claim should be treated as a Markush claim as stated for claim 1. The rejection can be overcome by amending the limitation to proper form as explained for claim 1 e.g., “are selected from the group consisting of solid…and liquid...”
Regarding claim 8, the limitation “based on one or more of the following requested user inputs: a requested colour, a requested flavour, a requested nutrient content” renders the claim indefinite since claim 1 already recites said features. It is unclear if claim 8 is further limiting those of claim 1, or if claim 8 is directed to different subject matter than that of claim 1.
Claims 3, 5-7 and 9-10 are rejected by virtue of their dependence on a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 8 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. All the features recited by claim 8 are already recited by claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 and 3-10 are rejected under 35 U.S.C. 103 as being unpatentable over Neece et al. (US 2007/0172540 A1) in view of Lopez et al. (US 2012/0005916 A1), Ameye et al. (US 9,782,033 B2).
Regarding claim 1, Neece et al. teaches a method of preparing an animal feed pellet by blending one or more agricultural raw material byproduct (abstract), where the one or more agricultural byproduct can be brewer’s spent grain, hereon referred to as “BSG” (paragraphs 17 and 20-21). The one or more byproducts are delivered to a container such as a mixing apparatus (figure 3; paragraph 79). The reference teaches “a solution to the problem of variable content of the agricultural raw material processing byproducts, is the ability to select and combine the biproducts…to provide a nutritional effective amount of protein, fat, carbohydrate”, and providing “a consistent animal feed…having virtually any desired combination of protein, fat, carbohydrate... as needed for any particular application (paragraph 13). Therefore, the reference suggests to one of ordinary skill in the art that a food can be formulated by mixing a plurality of byproducts having different nutritional compositions in order to achieve a desired nutritional profile of the mixture. The different byproducts would have necessarily had different flavors and colors based on their respective compositions.
Neece et al. does not teach the mixture formed from different compositions of BSG having different nutritional composition, flavor and color.
Lopez et al. teaches a process for treating BSG (abstract), and states that BSG’s obtained from different factories represent a “heterogeneous composition” due to variations in milling rate, adjuncts used, barley variety, harvest time, and malting process (paragraph 14). The BSG from each respective factory would have necessarily comprised a color and flavor based on the composition thereof.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Neece et al. to mix different compositions of BSG based on nutrients, flavor, and color since the reference teaches such byproducts are known in the art and commercially available, where the price and availability varies (paragraph 31), since the prior art recognizes differences in composition of BSG based on the features disclosed by Lopez et al., and to use known feed materials based on price and availability, since there is no evidence of criticality or unexpected results associated with the claimed feature, to minimize waste from said factories, and to combine prior art elements according to known methods to yield predictable results of formulating a feed mixture having desired nutritional profile, flavor and color, see MPEP 2143 I.(A).
Neece et al. does not teach a plurality of receptacles each containing a different composition of BSG, providing a database storing information of the nutrients (and by extension flavor and color due to composition) of the BSG in the receptacles, providing input means to receive an input from the user, providing one or more delivery devices configured to deliver metered or weighed amount of the BSG from the receptacles to the mixing apparatus (container), providing a controller configured to retrieve information from the database and user input from the input means, where the controller determines the amount of the BSG to be delivered from each receptacle based on said retrieved information and user input, and controlling the one or more delivery devices to deliver the determine amount to mixing apparatus.
Ameye et al. teaches an apparatus and method for providing metered amounts of ingredients to a nutritional composition (abstract), the apparatus comprising a plurality of containers 2 each connecting one or more ingredients for the composition, and a plurality of delivery devices each connected to a container and adapted to deliver a metered amount of the one or more ingredients from the container (figure 1; column 8 lines 39-41 and 56-61). The apparatus further comprises a graphical user interface adapted to receive an input from a user relating to the one or more amounts of ingredients to be delivered (column 3 lines 29-38), a database storing values of the nutrient content of the ingredients in the containers (column 3 lines 43-45), and a controller adapted to retrieve from the database the amount of nutrients in an ingredient, determine the amounts of ingredient to be delivered from the containers corresponding to amounts of nutrients requested by the user through the input means, and control the delivery devices accordingly (column 3 lines 45-53). The apparatus and process allow preparation of individualized nutritional compositions to fulfil specific nutritional needs, where the composition can be specifically designed by inputs from a doctor (column 3 lines 7-10 and 14-17).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Neece et al. to include the claimed features since the prior art recognizes said features for producing a mixture of different ingredients to obtain a specific nutritional profile, in order to provide individually tailored compositions based on user need and/or preference for nutrition, flavor, and color, said tailored compositions including input from related professionals such as doctors, and to automate a manual activity, see MPEP 2144.04 III., using a known device and process for such automation, and therefore to combine prior art elements according to known methods to yield predictable results, see MPEP 2143 I.(A).
Regarding claim 3, Neece et al. does not teach an analyzer for analyzing the content of nutrients, flavor and/or color in the BSG.
Ameye et al. further teaches an analyzer for performing said process (column 4 lines 43-45).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Neece et al. to include an analyzer as claimed since the reference teaches wanting to “provide a nutritionally effective amount of protein…” to provide “a consistent animal feed…any desired combination of protein…” (paragraph 13), where the analyzer of Ameye et al. would facilitate determination of the nutritional content of the various BSG compositions, and to provide accurate and precise readings for each BSG composition to ensure a proper nutritional profile of the mixture formed by said compositions.
Regarding claims 4-6, Neece et al. teaches dried BSG as a solid fraction (paragraph 21), and distiller’s grains can be sold wet (liquid fraction) or dried (paragraphs 22-25), where wet grains have a different composition than dry grains (paragraph 20). While the reference does not explicitly recite wet/liquid fraction BSG, one of ordinary skill in the art would have reasonably expected wet BSG to have a nutritional profile relative to the dry BSG which is analogous to that of the wet and dry distiller’s grains.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Neece et al. to include receptacles containing a solid fraction and a liquid fraction of the BSG in order to provide a greater range of variations for the composition and nutritional profile of the mixed BSG, in order to provide varying moisture content, texture/mouthfeel, and rheological properties as desired, and to minimize waste.
Regarding claim 7, the combination applied to claim 4 does not teach the solid and/or liquid fractions are derived from at least two different raw BSG’s. The limitation “raw brewer’s spent grains” is interpreted in view of the specification (page 5 lines 33-36).
Lopez et al. teaches BSG’s obtained from different factories represent a “heterogeneous composition” due to variations in milling rate, adjuncts used, barley variety, harvest time, and malting process (paragraph 14) as stated for claim 1. Therefore, one of ordinary skill in the art would have reasonably expected the “raw BSG” received from different facilities to have different compositions, particularly considering different brewing methods, ingredients, and type of beer produced.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Neece et al. to use solid and/or liquid fractions of BSG from different raw BSG for the same reasons stated for claims 1 and 4, and particularly since there is no evidence of criticality or unexpected results associated with the claimed feature.
Regarding claim 8, the combination applied to claim 1 teaches the recited features.
Regarding claim 9, Neece et al. does not teach the controller further comprises or has access to a database storing incompatibility data of the BSG as claimed.
Ameye et al. further teaches the apparatus comprises or has access to a database storing incompatability data of nutrients (column 4 lines 57-58) that may be considered as conflicting or be incompatible when present in the same composition (column 13 lines 46-50).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the controller of Neece et al. to access to a database storing incompatibility data of the BSG compositions in order to similarly prevent forming undesirable combinations of BSG compositions, thereby ensuring a user does not inadvertently input an undesired combination.
Regarding claim 10, for the sake of examination the alternative “container” is chosen.
Ameye et al. teaches containers 2 (figure 1) as stated in the combination applied to claim 1.
Conclusion
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/BRYAN KIM/Examiner, Art Unit 1792