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 .
Response to Amendment
Applicant amendment filed 09/16/2025 has been entered and is currently under consideration. Claims 1-20 and 23-33 remain pending in the application.
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.
Claim(s) 1-4, 7-20, and 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nielson (US2022/0287326 of record) in view of Muller (US3997941).
Regarding claim 1, Nielsen teaches:
A facility for the production of a food composition ([0065]), comprising:
at least one preparation apparatus for continuously preparing the food composition ([0065]), and
a discharge apparatus for texturing a food composition (Fig 1-2; [0058]), comprising
a first boundary member having a first texturing surface (Fig 2: stationary discs 1, 2; [0058-0059]),
a second boundary member having a second texturing surface (Fig 2, 6-7: rotary paddle wheel 3, spokes 32; [0058-0059, 0067]),
a gap formed between the first texturing surface and the second texturing surface (Fig 2; [0059]),
at least one feed opening for continuously feeding the food composition into the gap (Fig 1-2: inlet opening 4; [0058]), and
at least one discharge opening for continuously discharging the food composition from the gap (Fig 2; [0059, 0063]),
wherein the first boundary member and the second boundary member are rotatably drivable relative to each other about an axis of rotation (Fig 2; [0059-0060]), and wherein the first texturing surface and the second texturing surface each extend radially to the axis of rotation between the at least one feed opening and the at least one discharge opening (Fig 2).
Nielson does not teach continuously preparing the food composition, wherein the at least one preparation apparatus includes an extruder.
However, Nielson teaches wherein the at least one preparation apparatus includes a sausage filler ([0065]).
In the same field of endeavor regarding food preparation, Muller teaches continuously preparing a food composition using a sausage filler including an extruder for the motivation of automatically maintaining a constant discharge velocity of the food composition (col 2, ln 1-38, col 8, ln 22-col 9, ln 7).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the preparation apparatus as taught by Nielson with the extruder as taught by Muller in order to automatically maintain a constant discharge velocity of the food composition.
Regarding claim 2, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the food composition is a meat substitute composition ([0002]).
Regarding claim 3, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein at least one of the first texturing surface and the second texturing surface extend at an angle b to the axis of rotation, wherein 45°< b < 90° (Fig 2).
Regarding claim 4, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the first texturing surface and the second texturing surface run parallel to one another (Fig 2).
Regarding claim 7, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the at least one discharge opening has a greater distance to the axis of rotation than the at least one feed opening (Fig 2; [0058-0059, 0063]).
Regarding claim 8, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the at least one discharge opening is formed for discharging the food composition in the direction radial to the axis of rotation (Fig 2; [0059, 0063]).
Regarding claim 9, Nielson in view of Muller teaches the facility of claim 8.
Nielson further teaches wherein the at least one discharge opening is formed circumferentially between the first boundary member and the second boundary member (Fig 2; [0059, 0063]).
Regarding claim 10, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches at least one wiper device in the region of the at least one discharge opening (Fig 6-7: cleats 34; [0067]).
Regarding claim 11, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches at least one texturing tool arranged in the gap (Fig 6-7: cleats 34, 37; [0068]).
Regarding claim 12, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the at least one texturing tool is detachably arranged at least one of at the first boundary member and at the second boundary member ([0061, 0067-0068, 0080-0081]).
Regarding claim 13, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches a temperature control unit for temperature control of at least one of the first boundary member and the second boundary member ([0062, 0079]).
Regarding claim 14, Nielson in view of Muller teaches the facility of claim 13.
Nielson further teaches wherein the temperature control unit controls the temperature of a temperature control region of at least one of the first texturing surface and of the second texturing surface wherein the temperature control region has a temperature control area ([0062, 0079]).
Nielson in view of Muller does not explicitly recite a temperature control area Ak for which applies: 40 cm2/(kg/h) ≤ Ak/m ≤ 1,000 cm2/(kg/h), wherein m is the hourly flow rate of the food composition in kilograms.
However, the examiner notes that the above limitation is recited as functional language and conditionally based on the operational parameter of the flow rate of the food composition. Therefore the above limitation is considered to be a mode of operation rather than an explicit recitation of structure. "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. See MPEP 2114. Nielson teaches a control system that monitors and controls various parameters, including flow-rate, pressure, rotation and temperature ([0079]) and would therefore be capable of performing the claimed functions. Furthermore, since the prior art apparatus teaches the claimed structure, one of ordinary skill in the art would reasonably expect the prior art apparatus to be capable of performing the claimed functions as well.
Regarding claim 15, Nielson in view of Muller teaches the facility of claim 13.
Nielson further teaches wherein the temperature control unit is designed for different temperature control of different temperature control subregions of at least one of the first texturing surface and of the second texturing surface ([0062, 0079]).
Regarding claim 16, Nielson in view of Muller teaches the facility of claim 15.
Nielson further teaches wherein the temperature control unit is designed for temperature control of at least one of the first texturing surface and of the second texturing surface in dependence on a distance from the axis of rotation ([0040-0045]).
Regarding claim 17, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein at least one of the first texturing surface and the second texturing surface have a surface profiling (Fig 6-7: cleats 34, 37; [0067-0068]).
Regarding claim 18, Nielson in view of Muller teaches the facility of claim 17.
Nielson further teaches wherein at least one of the first texturing surface and the second texturing surface have a corrugation (Fig 6-7: cleats 34, 37; [0067-0068]).
Regarding claim 19, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches at least one supply line for continuously supplying the food composition to the at least one feed opening ([0065-0066]).
Regarding claim 20, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches at least one additional access opening for at least one of the admixture of further ingredients and for monitoring the food composition (Fig 1-2: inlet opening 4; [0058, 0079]).
Regarding claim 32, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein the first texturing surface and the second texturing surface are spaced apart from each other in a direction of the axis of rotation and face each other (Fig 2).
Regarding claim 33, Nielson in view of Muller teaches the facility of claim 1.
Nielson further teaches wherein at least one outlet opening of the at least one preparation apparatus is connected to at least one feed opening of the discharge apparatus ([0065]).
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nielson in view of Muller as applied to claim 1 above, and further in view of Breel et al. (US2022/0369686 of record) hereinafter Breel.
Regarding claim 5, Nielson in view of Muller teaches the facility of claim 1.
Nielson in view of Muller does not teach wherein a gap dimension of the gap changes depending on a distance to the axis of rotation.
In the same field of endeavor regarding texturizing apparatus, Breel teaches a rotating texturizing surface having a cone shape that forms a corresponding gap dimension that changes depending on a distance to the axis of rotation for the motivation of displacing the foodstuff material sideways (Fig 1: end portion 25; [0136-0137]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the second boundary member as taught by Nielson in view of Muller to have a cone shaped cross-section as taught by Breel in order to displace the foodstuff material sideways.
Regarding claim 6, Nielson in view of Muller and Breel teaches the facility of claim 5.
Breel further teaches wherein the gap dimension of the gap increases with growing distance to the axis of rotation (Fig 1).
Response to Arguments
Applicant's arguments filed 01/26/2026 have been fully considered but they are not persuasive.
Applicant argues that Nielson does not teach at least one preparation apparatus for continuously preparing the food composition, wherein the at least one preparation apparatus includes an extruder. However, new grounds of rejection are provided over Nielson in view of Muller.
Applicant argues that Nielson teaches away from the use of an extruder. However, as cited by applicant, Nielson “differs from the prior art by not using an extruder or extrusion method to texturize the food product, but operate under low, or no pressure and the texturizing process is developed only by mechanical handling during the heat treatment” ([0018]). The examiner notes that the at least one preparation apparatus is used both in the instant invention and Nielson for preparing and supplying of the food composition to be texturized by the discharge apparatus. The prior art apparatus at no point requires the use of an extruder for the texturizing in the discharge apparatus nor does the claim. It is further noted that Nielson discourages the use of extruders specifically for the texturizing process and not the food composition preparation. Nielson teaches the disadvantages of an extruder is the high operating pressures required for texturizing when using an extruder ([0018, 0032]). Nielson also teaches to operate the at least one preparation apparatus at low pressure, such as that of a sausage filler ([0065]). Muller teaches a sausage filler that includes an extruder for supplying food composition that does not involve texturing. Therefore, even if the disadvantages of using an extruder in a high pressure texturizing process were also somehow applicable to preparation of the food composition, one of ordinary skill in the art would understand to operate an extruder of the at least one preparation apparatus at low pressure to avoid the high operating pressures and that an extruder of a sausage filler is capable of doing so. Rather than a blanket teaching away of all use of extruders as characterized by applicant, Nielson teaches that extruders are disadvantageous when specifically used for the texturizing process due to the high pressures required. The prior art apparatus avoids this problem completely while still including an extruder as part of the at least one preparation apparatus.
Applicant arguments regarding claim 16 are moot in light of the new grounds of rejection.
For at least the above reasons, the application is not in condition for allowance.
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 ALEXANDER A WANG whose telephone number is (571)272-5361. The examiner can normally be reached M-Th 8 am-4 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alison Hindenlang can be reached at 571-270-7001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEXANDER A WANG/
/ALISON L HINDENLANG/Supervisory Patent Examiner, Art Unit 1741
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