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 .
The Amendment filed November 11, 2025 has been entered. Claims 1-14 are pending. Claims 8 and 9 have been amended. Claims 10-14 are withdrawn as being directed to a non-elected apparatus.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Frith et al. (US 2003/0031774 A1; Feb. 13, 2003).
Regarding claim 1, Frith discloses a method of producing a shaped food product, comprising preparing a food matrix by mixing a carrier compound (i.e. water) with an ion-dependent gelling compound and a temperature-dependent gelling compound ([0020]-[0041], See Examples 1-2).
Frith further teaches providing the food matrix with a temperature above a gelling temperature of the temperature dependent gelling compound as Frith teaches heating the mixture up to 95 C ([0094]) and teaches that the gelling compounds set at temperatures of 40-45 C ([0026]).
Frith is also considered to shape the food matrix by means of a shaper which brings the food matrix into a desired shape as Frith teaches that the food matrix flows into a cylindrical pipe, where it is subjected to the gelling treatment and can directly be used for a food product ([0057], [0062], [0094], See Examples 1-2).
Frith teaches that during the shaping, the food matrix has a temperature above the gelling temperature as Frith teaches that the food matrix flows into the pipe before being subjected to the gelling treatment ([0057], [0062], [0094]-[0096], [0108]-[0110], See Examples 1-2).
Frith is also considered to use a pre-shaping solution that provides gelling of the ion-dependent gelling compound as Frith teaches the use of cations to provide gelling ([0029], See Examples 1-2).
While Frith teaches a pre-shaping solution, Frith fails to teach that the pre-shaping solution comes into contact with the food matrix already in the pipe. Frith instead, as seen from the Examples, using a pre-shaping solution prior to shaping the food matrix.
However, as the pre-shaping solution is already present with the food matrix, changing the order of adding or using the pre-shaping solution would have been obvious to one of ordinary skill in the art as it would not have changed the final product, which is a layered gelled food matrix ([0036], See Examples 1-2).
As stated in MPEP 2144.04 IV C: Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.
Therefore, as Frith clearly teaches using a cation solution to gel the ion-dependent gelling compound, it would have been obvious to one of ordinary skill in the art to use a pre-shaping solution at any point in the process in order to provide gelling of the ion-dependent gelling compound to result in a two phase, layered shaped food matrix ([0029], See Examples 1-2).
Regarding claim 2, as stated above, Frith teaches a layered shaped food matrix, wherein the layered matrix is entirely gelled by providing the layered shaped food product at a temperature that is below the gelling temperature of the temperature-dependent gelling compound ([0094]-[0096], [0108]-[0110]).
Regarding claim 3, Frith also teaches that during the mixing step, the temperature is above the gelling temperature as the compounds are in a liquid state and not gelled ([0094]).
Regarding claim 4, as stated above, Frith renders obvious a pre-shaping solution, but fails to teach a temperature of the pre-shaping solution. However, it would have been obvious to one of ordinary skill in the art to have the temperature below the gelling temperature such that the compounds effectively gel in order to form the two phase, layered food matrix.
Regarding claim 5, Frith further teaches bringing the layered shaped food matrix into contact a curing solution, wherein the curing solution has a temperature that is below the gelling temperature of the gelling compound as Frith teaches that pipe is cooled by a water jacket (e.g. water being the curing solution) having a temperature of 10 C ([0094]-[0096], [0108]-[0110]).
Regarding claim 6, Frith teaches that the contact time of the layered shaped food matrix with the curing solution has a duration such that the temperature dependent gelling compound is entirely gelled at the temperature of the curing solution to provide the shaped food product ([0094]-[0096], [0108]-[0110]).
Regarding claim 7, Frith teaches that the ion-dependent gelling compound comprises at least one polysaccharide ([0030]), and the pre-shaping solution comprises at least one cation (See Examples 1-2).
Frith also teaches that the ion-dependent gelling compounds comprises at least one cation and the pre-shaping solution comprises at least one polysaccharide (See Examples 1-2).
Frith further teaches that the cation reacts with the at least one polysaccharide to provide gelling of the ion-dependent gelling compound ([0029]).
Regarding claim 8, Frith teaches that the at least one polysaccharide can be alginate, pectin, or carrageenan ([0030]), and the at least one cation is a metal cation that can be of the metal calcium ([0028]-[0029]).
Regarding claim 9, Frith teaches that the temperature dependent gelling compound comprises at least one biopolymer that can be agar, carrageenan, gellan, or gelatin ([0024]).
Response to Arguments
Applicant’s amendments have overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection have been fully considered but were not found persuasive.
Applicant argues on page 9 that Frith teaches that the cations are already contained in the food matrix from the beginning and therefore it is not possible to perform ion-dependent gelling only on the surface of the food matrix in order to obtain the layered shaped food matrix.
This is not found persuasive as the claims do not require that the ion-dependent gelling is ONLY on the surface of the food matrix. The claim merely states “provides a layering of the shaped food matrix” and does not recite that the layering is only on the surface. While the examiner agrees that Frith teaches that the cations are already contained in the food matrix from the beginning, Frith teaches that the gelling occurs within the pipe, or shaper, to produce a two-phase, or layered, product, which would provide some sort of layering in the food matrix, including at least some portion of the surface depending on the mixing. Therefore this argument is not found persuasive as it is not commensurate in scope with the claims.
Regarding applicant’s argument that the change in order of process steps would render the teachings of Frith inoperative is not found persuasive as Frith teaches that the food matrix undergoes gelling within the pipe, or shaper, and therefore contacting the food matrix with a pre-shaping solution within the pipe would still provide gelling as required by Frith, and such gelling would still result in a two-phase, layered food product and would have been obvious to one of ordinary skill in the art.
Changing the order of adding or using the pre-shaping solution would have been obvious to one of ordinary skill in the art as it would not have changed the final product, which is a layered gelled food matrix ([0036], See Examples 1-2).
As stated in MPEP 2144.04 IV C: Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.
Therefore, as Frith clearly teaches using a cation solution to gel the ion-dependent gelling compound, it would have been obvious to one of ordinary skill in the art to use a pre-shaping solution at any point in the process in order to provide gelling of the ion-dependent gelling compound to result in a two phase, layered shaped food matrix ([0029], See Examples 1-2).
For the reasons stated above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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