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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on August 24, 2026 has been entered.
Claim Rejections - 35 USC § 112
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 15 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.
Claim 15 recites the limitation “wherein the step of adding the acidified solution is the final step for filling the container prior to the capping step” in lines 1-2. Claim 11 already recites the fourth and final step of the filling step being adding the acidified solution as a heated acidified solution. Claim 15 fails to further limit Claim 11 since Claim 11 already requires the fourth and final step of the filling step to be adding the acidified solution.
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 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 11, 13, 15-16, and 18-22 are rejected under 35 U.S.C. 103 as being unpatentable over Kiyafries “How to Make Pickles At Home” <https://kiyafries.com/how-to-make-pickles-at-home/> (published January 15, 2020) (herein referred to as “Kiyafries”) in view of Catalano “All Purpose Seasoning Blend” <https://www.thekitchn.com/all-purpose-seasoning-blend-23045445> (published June 21, 2020) (herein referred to as “Catalano”), Han “What is Sodium Metabisulfite (E223) in food? Uses and Safety” <https://foodadditives.net/preservatives/sodium-metabisulfite/> (published May 18, 2020) (herein referred to as “Han”), Postner et al. US 4,430,352 (cited on Information Disclosure Statement filed June 12, 2023), Wang US 2017/0166333, Fiwek et al. US 5,050,369, and Kingsley US 4,844,929 (cited on Information Disclosure Statement filed June 12, 2023).
Regarding Claim 11, Kiyafries discloses a method of making an onion food product (quick pickles of brines of canned vinegar pickles) (Kiyafries, Page 3). The method comprises the steps of providing a container, filling the container with at least one heat stable flavor (jalapenos) (Kiyafries, Page 3), onions (Kiyafries, Page 5), and an acidified solution comprising one or more acids (brine solution) (Kiyafries, Page 6) and water (Kiyafries, Page 8). The filling step is performed by adding the dry ingredients of produce and herbs followed by adding the acidified solution as a heated acidified solution. The container is capped (in an airtight container) and then cooled (Kiyafries, Page 8).
Kiyafries discloses the filling step comprising adding the dry ingredients of produce and herbs together before adding the acidified solution as a heated acidified solution in the form of a brine (Kiyafries, Page 8) wherein one of the dry ingredients is at least one heat stable flavor (sliced chili spices) (Kiyafries, Page 6). However, Kiyafries is silent regarding the filling step involving mixing dry ingredients together comprising dosing sodium metabisulfite in dry powder form and adding the onions which onions act as a buffer to prevent formation of sulfur dioxide.
Catalano discloses an all purpose spice blend made with a combination of salt, pepper, dried garlic, dried onion in the form of minced or chopped onion or onion powder, dried herbs, and savory spices wherein the spice blend is customized to your liking (Catalano, Pages 3-5). Han discloses sodium metabisulfite (SMBS) is a sulfite that can be used as a preservative, antioxidant, and bleaching agent in food that is a reducing agent commonly used for the preservation of vegetables (Han, Page 1) wherein sodium metabisulfite is a white crystal or crystalline powder that releases sulfur dioxide gas if exposed to air and moisture and SO2 is also released by reaction with acid (Han, Page 3) wherein SMBS is a sulfur containing preservative that inhibits the oxidase in food (Han, Page 4). Applicant discloses SMBS and other sulfite in granulated dry powder will turn into sulfur dioxide gas in the presence of water (Specification, Paragraph [063]). Since Catalano discloses the filling step comprising incorporating dried onion into the dry spice blend, one of ordinary skill in the art would expect the dry onion in the dry spice blend of Catalano to behave in the same manner as claimed, i.e. the onions act as a buffer to prevent formation of sulfur dioxide. Products of identical chemical composition can not have mutual exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Therefore, the dry onion incorporated into the dry spice blend of Catalano would be expected to behave in the same manner as claimed and act as a buffer to prevent formation of sulfur dioxide. Both Kiyafries and Catalano are directed towards the same field of endeavor of methods of making onion food products. Both methods of Kiyafries and Catalano comprises a step of making a mixture of dried ingredients containing spices and/or herbs blended together using any ingredients for flavoring as desired. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Kiyafries in which the dry ingredients containing any spices and herbs as desired are filled into the containers and incorporate dry onions as taught by Catalano based upon the desired flavor profile and onion intensity imparted by the dry spice blend. It would also have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Kiyafries and dose sodium metabisulfite in dry powder form as taught by Han to preserve the vegetables. Although Kiyafries modified with Catalano and Han does not explicitly state the order of filling step comprising dosing the sodium metabisulfite, then adding the at least one heat stable flavor, and then adding the onions, the selection of any order of mixing the dry ingredients together is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.). Applicant discloses the onion food product is made by mixing, in any relative order, onions,, any of at least one optional vegetable other than onion, any at least one optional liquid, any optional brine salts, and one or more acids (Specification, Paragraph [043]) wherein the steps are performed in any order so long as the hot acidified liquid added in the process completes the fill (Specification, Paragraph [063]). Kiyafries discloses adding the dry ingredients containing the desired herbs and spices prior to the heated brine (Steps 2-4 on Page 8 of Kiyafries).
Further regarding 11, Kiyafries modified with Catalano and Han is silent regarding the acidified solution comprising citric acid and having a pH of about 4.0 or less and thermally pasteurizing the container.
Postner et al. discloses a method of making an onion food product. The method comprises the steps of providing a container (tube), filling the container (tube) with sodium metabisulfite, onions, and an acidified solution comprising citric acid, wherein the acidified solution has a pH of about 4.0 or less (‘352, Column 2, lines 6-28). The container is capped (reclosable) (‘352, Column 3, lines 38-39), agitated (mixed) (‘352, Column 3, lines 20-29), and thermally pasteurized (‘352, Column 2, lines 36-39) and the container is cooled (‘352, Column 3, lines 32-37).
Both modified Kiyafries and Postner et al. are directed towards the same field of endeavor of methods of making onion food products packaged in a container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and adjust the pH of the acidified solution to the claimed pH of about 4.0 or less as taught by Postner et al. since where the claimed pH of the acidified solution ranges overlaps pH of the acidified solution 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.). Postner et al. teaches that it was conventional to adjust the pH of an onion food product to the claimed pH levels as desired. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and thermally pasteurize the container as taught by Postner et al. in order to destroy any unwanted bacteria and microorganisms present in the onion food product.
Further regarding Claim 11, Kiyafries modified with Catalano, Han, and Postner et al. is silent regarding capping the container within 30 seconds or less of completing the filling step and is also silent regarding inverting the container.
Wang discloses a sealed bottle, container, or pouch including caps and closures wherein the container contains foodstuffs (‘333, Paragraph [0059]) wherein a typical hot fill process involves adding a hot liquid to a bottle while at an elevated temperature typically from about 70 to about 93°C and then immediately sealing the bottle or container with a closure and then inverting the container wherein contact of the hot liquid with the closure sterilizes the closure wherein inversion lasts for about 15 seconds or a time sufficient for sterilization of the closure interior wherein the bottle is cooled to about 40°C following sterilization (‘333, Paragraph [0003]). The disclosure of immediately capping the container with the closure immediately after filling (‘333, Paragraph [0034]) reads on capping the container within 30 seconds or less of completing the filling step. Fiwek also discloses a method of assembling a container with a closure immediately following introducing of a selected quantity of liquid into the container (‘369, Column 2, lines 8-11), which also reads on capping the container within 30 seconds or less of completing the filing step. Fiwek et al. discloses avoiding prolonged contact between the contents of the filled containers and the surrounding atmosphere (‘369, Column 1, lines 62-66), which extremely short interval of time greatly reduces the likelihood of splashing, bubbling, or spraying of liquid out of a filled container as well as the likelihood of contamination of the confined liquid as a result of contact with oxygen in the surrounding atmosphere (‘369, Column 9, lines 32-43).
Modified Kiyafries, Wang, and Fiwek are all directed towards the same field of endeavor of methods of packaging liquid food or beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and cap the container immediately with the closure after filling the container with the liquid, which reads on the claimed capping of the container within 30 seconds or less of completing the filling step, as taught by Wang and Fiwek since Fiwek teaches that extremely short intervals of time in which the contents of the filled containers and the surrounding atmosphere is exposed reduces the likelihood of splashing, bubbling, or spraying of liquid out of a filled container as well as the likelihood of contamination of the confined liquid as a result of contact with oxygen in the surrounding atmosphere (‘369, Column 9, lines 32-43). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and invert the container as taught by Wang in order to sterilize the cap closure that seals the container.
Further regarding Claim 11, Kiyafries modified with Catalano, Han, Postner et al., Wang, and Fiwek et al. is silent regarding the brine acid of the acidified solution being 1.0% acid or less.
Kingsley discloses a rapid nonfermentative pickling process comprising the steps of dissolving water/acid soluble compounds and dispersing water/acid insoluble ingredients so as to form an aqueous pickling media and immersing the to be pickled foodstuff or green stock in said aqueous pickling media for pickling a number of vegetables (‘929, Column 4, lines 59-68) wherein the fresh brine has 0.3% acid (‘929, Column 5, lines 35-41), which falls within the claimed concentration of 1.0% acid or less of the brine acid.
Both modified Kiyafries and Kingsley are directed towards the same field of endeavor of methods of pickling foods in an acidic brine solution. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and use a brine solution having the claimed acidic concentration as taught by Kingsley since where the claimed acid concentration overlaps acid concentrations 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.).
Further regarding Claim 11, Kiyafries discloses the heated acidified solution (brine solution) being added as a hot brine (Kiyafries, Page 8). Although Kiyafries does not explicitly state that the hot brine was heated to a temperature of about 165°F or greater, differences in the heating temperature of the hot brine will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such heating temperature of the hot brine 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.).
Regarding Claim 13, Postner et al. discloses the sodium metabisulfite being added in an amount of from 0.05 to 0.1% of the onion food product and from 0.05 to 0.20% citric acid (‘352, Column 2, lines 20-28), which overlaps the claimed concentration of sodium metabisulfite of about 0.01-0.1% wt% and food grade acid of from about 0.1-2% wt%, respectively. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and incorporate sodium metabisulfite and citric acid in the claimed concentrations as taught by Postner et al. since where the claimed concentrations of sodium metabisulfite and citric acid ranges overlaps concentrations of sodium metabisulfite and citric acid 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.).
Further regarding Claim 13, modified Kiyafries is silent regarding the concentration of the heat stable flavor being added in an amount ranging from about 0.1-2 wt/wt% relative to the total weight of the onion food product, the concentration of the onion being added in an amount ranging from about 15-25 wt/wt% relative to the total weight of the onion food product, and the water being added in an amount ranging from about 71-84% wt/wt% relative to the total weight of the onion food product. However, differences in the concentration of the heat stable flavor, onion, and water will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of heat stable flavor, onion, and water 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 concentrations of the jalapeno heat stable flavor and onion of modified Kiyafries based upon the desired intensity of the jalapeno heat stable flavor and onion flavor desired by a particular consumer. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the water content of the onion food product disposed in the brine of Kiyafries to keep the onion and jalapenos moist until ready for use for cooking or consumption.
Regarding Claim 15, Kiyafries discloses the step of adding the acidified solution (hot brine) being the final step for filling the container prior to the capping step (Steps 4-6 on Page 8 of Kiyafries).
Regarding Claim 16, Wang discloses a typical hot fill process involves hot filling a hot liquid beverage to a bottle while at an elevated temperature of from about 70 to about 93°C and then sealing immediately with a closure and inverting while maintaining contact of the hot liquid with the closure to sterilize the closure (‘333, Paragraph [0003]). The disclosure of the inversion step occurring at a temperature of from about 70 to about 93°C for sterilization of the closure converts to an inversion temperature of about 158 to about 199°F, which encompasses the claimed inversion temperature of about 165°F. Where the claimed inversion temperature encompasses inversion temperatures 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, the inversion lasts for a time sufficient for sterilization of the closure interior (‘333, Paragraph [0003]). Although Wang does not explicitly disclose the inversion time being a minimum of about 2.2 minutes, differences in the inversion time at the elevated temperatures will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such inversion time at the elevated temperatures 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 amount of time the container of modified Kiyafries is inverted with heated brine solution until such time is sufficient for sterilization of the closure interior as taught by Wang.
Regarding Claim 18, Catalano discloses the onions being dehydrated (dried onions) (Catalano, Page 4).
Regarding Claim 19, Kiyafries discloses adding at least one spice (peppercorns, mustard seeds, coriander seeds, celery seeds) and at least one additional vegetable (garlic) different from onion (Kiyafries, Page 6).
Regarding Claim 20, Kiyafries discloses the at least one heat stable flavor being a natural flavor (jalapenos) (Kiyafries, Page 3).
Regarding Claim 21, Catalano discloses the onions being dried minced or chopped onions (Catalano, Page 4).
Regarding Claim 22, Wang discloses a typical hot fill process involves adding a hot liquid to a bottle while at an elevated temperature typically from about 70 to about 93°C and then immediately sealing the bottle or container with a closure and then inverting the container wherein contact of the hot liquid with the closure sterilizes the closure wherein inversion lasts for about 15 seconds or a time sufficient for sterilization of the closure interior wherein the bottle is cooled to about 40°C following sterilization (‘333, Paragraph [0003]). The disclosure of Wang of hot filling at from about 70 to about 93°C coverts to about 158°F to about 200°F, which overlaps the claimed container maintaining a temperature of about 165°F or greater during the inverting step. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Kiyafries and maintain the container at the claimed heated temperature range during the inverting step as taught by Wang since where the claimed heated temperature ranges overlaps heated temperature 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.).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kiyafries “How to Make Pickles At Home” <https://kiyafries.com/how-to-make-pickles-at-home/> (published January 15, 2020) (herein referred to as “Kiyafries”) in view of Catalano “All Purpose Seasoning Blend” <https://www.thekitchn.com/all-purpose-seasoning-blend-23045445> (published June 21, 2020) (herein referred to as “Catalano”), Han “What is Sodium Metabisulfite (E223) in food? Uses and Safety” <https://foodadditives.net/preservatives/sodium-metabisulfite/> (published May 18, 2020) (herein referred to as “Han”), Postner et al. US 4,430,352 (cited on Information Disclosure Statement filed June 12, 2023), Wang US 2017/0166333, Fiwek et al. US 5,050,369, and Kingsley US 4,844,929 (cited on Information Disclosure Statement filed June 12, 2023) as applied to claim 11 above in further view of Beach US 2021/0030026.
Regarding Claim 16, modified Kiyafries renders obvious the limitations of Claim 16 (via Wang) as enumerated in the obviousness rejections above. However, in the event that it can be shown with objective evidence that the claimed time the container being inverted for a minimum of about 2.2 minutes while maintaining a temperature of about 165°F during the inverting step is critical, Beach discloses a method of packaging an herbal energy drink comprising hot filling bottles at a minimum temperature of about 170°F with an infusion liquid, then capping the filled bottles and inverting for at least 5 minutes (‘026, Paragraph [0117]), which overlaps the claimed inversion minimum time of about 2.2 minutes and the claimed temperature of about 165°F during the inverting step.
Both modified Kiyafries and Beach are directed towards the same field of endeavor of methods of packaging a food product in a container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and invert the container for the claimed amount of time during the inverting step as taught by Beach since where the claimed inversion time at elevated temperatures encompasses inversion times at elevated temperatures 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.).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Kiyafries “How to Make Pickles At Home” <https://kiyafries.com/how-to-make-pickles-at-home/> (published January 15, 2020) (herein referred to as “Kiyafries”) in view of Catalano “All Purpose Seasoning Blend” <https://www.thekitchn.com/all-purpose-seasoning-blend-23045445> (published June 21, 2020) (herein referred to as “Catalano”), Han “What is Sodium Metabisulfite (E223) in food? Uses and Safety” <https://foodadditives.net/preservatives/sodium-metabisulfite/> (published May 18, 2020) (herein referred to as “Han”), Postner et al. US 4,430,352 (cited on Information Disclosure Statement filed June 12, 2023), Wang US 2017/0166333, Fiwek et al. US 5,050,369, and Kingsley US 4,844,929 (cited on Information Disclosure Statement filed June 12, 2023) as applied to claim 11 above in further view of Jensen US 2015/0056359.
Regarding Claim 17, Postner et al. discloses a method of making an onion food product. The method comprises the steps of providing a container (tube), filling the container (tube) with sodium metabisulfite, onions, and an acidified solution comprising citric acid, wherein the acidified solution has a pH of about 4.0 or less (‘352, Column 2, lines 6-28). The container is capped (reclosable) (‘352, Column 3, lines 38-39) and agitated (mixed) (‘352, Column 3, lines 20-29). However, modified Kiyafries is silent regarding agitated the container for about 45 seconds or less during the agitating step.
Jensen discloses a sauce comprising onions combined with vegetables and all remaining ingredients into a preheated pan, cooked, and blended using a puree setting for 10-45 seconds until desired consistency is achieved (‘359, Paragraph [0038]), which overlaps the claimed agitation time of 45 seconds or less during the agitating step.
Both modified Kiyafries and Jensen are directed towards the same field of endeavor of methods of making onion food products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Kiyafries and agitate the container for the claimed amount of time of agitation as taught by Jensen since where the claimed agitation time encompasses agitation times 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.). One of ordinary skill in the art would also adjust the agitation time of the contents of the container of modified Kiyafries based upon the desired consistency of the onion food product desired as taught by Jensen.
Response to Arguments
Applicant’s arguments with respect to the obviousness rejections of independent Claim 11 under 35 USC 103(a) has been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Shannon “Some Tips for Lacto-Fermenting Your Harvest” <https://www.plantoeat.com/blog/2014/07/some-tips-for-lacto-fermenting-your-harvest/> (published July 14, 2014) discloses temperature is huge in fermentation with a rise in temperature relating directly to the speed at which the vegetables ferment wherein the hotter the days the faster the fermentation wherein hot temperatures can degrade the flavor and texture of vegetables so do your best to keep the temperature at 85 or below and adjust salt (Shannon, Page 4) wherein salt slows down the fermentation process and heat speeds it up wherein high water vegetables like cucumbers often require more salt (Shannon, Page 3).
Cultured Guru “The Perfect Lacto Fermentation Salt Ratio for Fermenting Vegetables” <https://cultured.guru/blog/the-perfect-lacto-fermentation-salt-ratio-for-fermenting-vegetables> (published March 30, 2018) discloses a method of fermenting vegetables comprising the step of determining the perfect lacto fermentation salt ratio wherein particular concentrations of salt pave the way for creating a happy home for lactic acid producing bacteria wherein Lactobacillus bacteria thrive in fermented vegetables (Cultured Guru, Page 1) wherein once you provide the proper salt concentration, bacterial succession can occur and lactic acid can be adequately produced (Cultured Guru, Page 2) wherein the desired salt concentration varies by type of vegetable (Cultured Guru, Page 4) wherein the temperature for vegetable fermentation should be between 60 and 90 degrees F wherein the cooler the temperature, the slower the fermentation and the hotter the temperature the faster wherein once temperature is established the two main factors needed to be tailored to the microbes are salt concentration and the length of time for the fermentation (Cultured Guru, Page 12).
Kimberly “English Pickled Onions (Pub Style)” <https://web.archive.org/web/20190823011036/https://www.daringgourmet.com/english-pickled-onions-pub-style/> (archived August 23, 2019) discloses a method of making an onion product comprising the steps of pouring hot brine over onions disposed in a sterilized mason jar, cooling the onions, and storing in the fridge (Kimberly, Page 7) wherein the onions are processed in a boiling water bath canner (Kimberly, Page 8).
Schouw “Canning Basics: How and Why It Works” <https://www.instructables.com/Canning-Basics-How-and-Why-It-Works/> (published September 26, 2016) discloses a method of canning food products comprising the steps of heat treating food, sterilizing jars and lids by boiling them or leaving them in the oven, killing microorganisms present in the food and pouring the food directly into the hot jars wherein the jars are caped immediately to prevent microbes from entering (schouw, Page 10).
Sulfites ABC “Sulfites, Foods High in Sulfur, Sulfates, Gene Mutations: SUOX, CBS, ACHY, BHMT, NOS, etc.” <https://web.archive.org/web/20150515205702/https://sulfitesabc.com/e223-sodium-metabisulfite/> (archived May 15, 2015) discloses sodium bisulfite has utility in making pickled onions/cabbages (Sulfites ABC, Page 2).
Food Net India “Sodium metabisulfite: IN 223” <https://web.archive.org/web/20151216002425/https://foodnetindia.in/sodium-metabisulfitein-223/> (archived December 16 ,2015) discloses sodium metabisulfite is a white, non stable powder which reacts with oxygen to form sodium sulphate forms sulphurous acid in acid conditions and acts as a preservative as has utility in preserving onions (Food Net India, Page 1).
Vandergrift et al. “Sulfite Allergies and Wines: The Facts” <https://www.midwestsupplies.com/blogs/bottled-knowledge/sulfite-allergies-the-facts> (published October 25, 2019) discloses sulfite is used to preserve food and is used in onion and pickle relishes to protect from oxidation (Vandergrift, Pages 2-3).
Whitman “A Sulfite Free Diet” <https://www.weekand.com/healthy-living/article/sulfitefree-diet-18023026.php> (published December 9, 2018) discloses onions naturally contain sulfites (Whitman, Page 4) wherein sulfites are chemical compounds found in nature and added into food used to preserve food, prevent bacteria growth or halt browning in vegetables wherein people with a sensitivity to sulfites may experience a range of reactions including nausea, diarrhea, headaches, rash, swelling, or difficulty breathing (Whitman, Page 1).
Samantha “How Does Hot Filling in PET Work and What are the Benefits?” <https://web.archive.org/web/20151020010928/https://www.oberk.com/packaging-crash-course/quick-question-monday-hot-filling-beverages-and-juices-what-is-the-process> (March 16, 2015) discloses a method of hot filling beverages to maintain the shelf life and nutritional properties of the beverage comprising the steps of pasteurizing and heating the beverage to the hot filling temperature, generally between 190-203F in a heat exchanger for at least 15-30 seconds to kill all microorganisms in the liquid, cooling the liquid to around 180-185F and filling the liquid into the container wherein the closure is then applied immediately after wherein the container is inverted to ensure the closure is also sterilized with the hot liquid touching the inside surface and then cooling the container/closure package to preserve the product taste and nutritional properties and to prevent microbial growth (Samantha, Page 2).
Faithful to Nature “By Nature Sulphur Free Dried Onion Rings” <https://www.faithful-to-nature.co.za/by-nature-dried-onions?srsltid=AfmBOopSGZpOzIS45n77JSP6EbhJ7HVGM_bjD_E1GchMsRgZD9CXXcW5> (published April 20, 2016) discloses dried or dehydrated onion pieces without the pungent smell that won’t make your eyes water (Faithful to Nature, Page 1).
Conway “Just Ask: Why Do Onions Make Us Cry?” <https://www.pbs.org/newshour/science/why-do-onions-make-us-cry> (published February 22, 2011) discloses when we cut into an onion enzymes and amino acid sulfoxide chemicals inside the onion cells reacts to produce a volatile sulfur gas which reacts with water in your eye to form sulfuric acid (Conway, Page 1) wherein cooled onions make the enzymes less reactive (Conway, Page 2).
Asthma and Allergy Center “Sulfite Sensitivity” <https://web.archive.org/web/20170524131656/https://www.asthmaandallergycenter.com/article/sulfite-sensitivity/> (archived May 24, 2017) discloses dry metabisulfite, commonly called shrimp dip, reacts with acids and water to release toxic sulfur dioxide gas wherein sodium metabisulfite is more potent than sodium bisulfite in its ability to release sulfur dioxide gas wherein sulfites occur as a result of fermentation (Asthma and Allergy Center, Page 2).
iHerb “These Three Spices Are the Key to Helathier and Tastier Food” <https://www.iherb.com/blog/these-three-spices-are-the-key-to-healthier-and-tastier-food/849?srsltid=AfmBOooblndB_1dL0uy1xSXnR0zglfuzGEG8G491fYzjvOMkeAz4q-pZ> (published November 13, 2019) discloses a method of making onion powder comprising the step of crushing dried onions into a fine powder that can be blended with a variety of foods wherein onion powder provides all the solid nutrition of a whole onion wherein onion powder is mixed into spice rubs (iHerb, Page 2).
Vicky and Ruth “How to Make Pickled Onions” <https://mayihavethatrecipe.com/how-to-make-pickled-onions/> (published March 17, 2020) discloses a method of making a homemade pickling spice for making pickled onions wherein different whole spices are used for imparting various flavors (Vicky and Ruth, Page 4).
Kring “Harvest Time Pickles: 6 Recipes For Great Tasting Preserves” <https://foodal.com/knowledge/things-that-preserve/harvest-time-pickles/> (published September 23, 2015) discloses premixed pickling spices using the desired flavors and balancing quantities wherein vegetables are added to canning jars, fresh or dry herbs and spices are added for flavor then filled with pickling brine (Kring, Pages 11-12).
Iordache et al. “Nanostructurated Materials for Prolonged and Safe Food Preservation” (published 2017) discloses pickling is the process of soaking food in a solution containing salt, acid, or alcohol and can be use with most food including vegetables and is often combined with another method such as fermenting, canning, or refrigeration wherein pickling includes chemical pickling in which food is placed in an edible liquid that inhibits or kills bacteria and other microorganisms wherein brine, vinegar, alcohol, and vegetable oil are common pickling agents and fermentation pickling wherein the food itself is the preservation agent typically by a process that produces lactic acid (Iordache et al., Page 309).
Dabas et al. US 2021/0112831 discloses a method of coloring pickled and/or fermented vegetable products (‘831, Paragraph [0021]) comprising a natural colorant composition for coloring pickled and/or fermented vegetables comprising two or more natural colorants (‘831, Paragraph [0022]) wherein the pickled and/or fermented vegetable is onion (‘831, Paragraph [0030]) wherein pickling or preserving vegetables in vinegar, brine, or a similar solution is one of the oldest methods of food preservation (‘831, Paragraph [0002]) wherein most pickles are produced by refrigeration, fresh pack, or processed/cured/fermented (‘831, Paragraph [0003]) wherein fresh pack processing comprises placing cucumbers into a vinegar and salt brine and allowed to soak wherein colorants, preservatives and other ingredients are added at this stage and jars are then heat pasteurized at 180-185°F for 30 minutes (‘831, Paragraph [0005]) wherein fermented processes comprises immersing vegetables in brine and allowing to fermented for 4-6 weeks wherein different flavors are produced by varying temperature range (65-85°F) and the duration of the fermentation time wherein fresh brine and colorants are added after the fermentation process and jars are then pasteurized to complete processing wherein conditions are created in which Lactobacillus thrives in the absence of oxygen, optimum salt content, no acid addition and pH of 4-6 and produces lactic acid and other metabolites which contributes to taste and long term quality (‘831, Paragraph [0006]) wherein the brines for these processes varies greatly with vinegar concentrations ranging from 0-40%, salt ranges from 2-8%, and sugar concentration ranging from 0-20% (‘831, Paragraph [0007]).
Loh et al. US 2005/0186311 discloses a method for acidifying and preserving food products using electrodialyzed composition having an acidic pH to provide acidified for preserved food products having excellent organoleptic properties (‘311, Paragraph [0001]) comprising the steps of contacting a food product with an amount of ED composition effective for obtaining an acidified food product sufficient to achieve a pH of 4.2 or less, placing the acidified food product in a heat stable sealable container, sealing the container, thermally treating the food product in the sealed container at a temperature and for a time effective to pasteurize the food product, and cooling the thermally treated food product to rapidly reduce the temperature to 25°C or less to obtain the preserved food product wherein acidified foods are heated to a temperature sufficient to pasteurize the container while being hot filled into the container (‘311, Paragraph [0008]) or comprising the steps of placing a food product in a sealable heat stable container, adding an amount of elector dialyzed composition to the container sufficient to achieve a pH of about 4.2 or less in food products to be stored under ambient conditions, sealing the container, thermally treating the food product in the sealed container at a temperature and for a time effective to pasteurize the food product, and cooling the thermally treated food product to rapidly reduce the temperature to about 25°C or less to obtain the preserved food product and placing the food product in the sealable heat stable container which food product is raw or partially cooked, e.g. pre-blanched vegetables wherein the vegetable is onions (‘311, Paragraphs [0009]-[0010]).
Concin US 2018/0325147 discloses liquid foods are often pasteurized to destroy potentially harmful microorganisms in the foods and to increase the storage life of the foods wherein foods are packed in containers beforehand, the containers are closed, and then they are pasteurized (‘147, Paragraph [0002]).
Schell US 2,024,809 discloses a method of packaging food products by which the products are placed in a retail container and treated to destroy or render innocuous the microorganisms carried by the products and the container without doing injury to the container or the products which has been treated to pasteurize its contents and those parts of the package in contact therewith.
Sheerin et al. US 2017/0354751 discloses a method of pasteurizing paints after they are stored in containers or pasteurizing empty containers separately before they are filled with pasteurized paints (‘751, Paragraph [0014]).
Rasmussen et al. US 2013/0174581 discloses a method of processing a beverage comprising the step of flushing, filling, pasteurizing, or any other activity carried out after or just before capping of the beverage container (‘581, Paragraph [0133]).
Thielen et al. US 2011/0015277 discloses a method of packaging food comprising the step of filling a package with a food product and sterilizing or pasteurizing the package before or after closing or sealing the package (‘277, Paragraph [0058]).
Dhruv US 2009/0165474 discloses a container filled with hot food or heated after being filled wherein the food product is treated for pathogen reduction before packaging or filled into the container that is then sealed and the entire closed container is heated to achieve the desired degree of pathogen reduction, i.e. commercial sterilization (‘474, Paragraph [0027]).
Danks US 2006/0138163 discloses a method of packaging food wherein the food is not heated before it is introduced into the container but rather after the closure is installed on the filled container and the entire package is moved to a pasteurizing station wherein the package is subjected to heat form an external source so as to raise the temperature of the product within the package to a sufficient magnitude and for a sufficient time to effect pasteurization of the food (‘163, Paragraph [0021]).
Nielsen et al. US 2003/0049356 discloses a product to be pasteurized that is pasteurized either before it is transferred to smaller containers or after the containers have been filled (‘356, Paragraph [0118]).
Westphal et al. US 2017/0042834 discloses a packaged beverage composition or solution wherein the packaging is appropriately sterilized before being filled by a pasteurized or sterilized composition or solution (‘834, Paragraph [0207]).
Melnyczuk US 2014/0356496 discloses an onion food product (‘496, Paragraph [0048] comprising preservatives such as sodium metabisulphite and/or other antioxidants or preservatives added at a powder applicator (‘496, Paragraph [0063]).
Chen et al. US 2005/0084602 discloses a method of preserving uncooked fresh produce with a fresh produce preservative to extend the shelf life of the fresh product wherein the produce is onions (‘602, Paragraph [0012]) wherein the produce preservative does not have a sulphite concentration greater than 5% wherein the sulphite includes sodium bisulphite (‘496, Paragraph [0031]).
Lewis et al. US 4,447,460 discloses dehydrated onions or carrots wherein the dried carrots are mixed with a sodium chloride solution to which sodium metabisulfite had been added.
Sharkey-Pearce US 2021/0284421 discloses a container holding preserved pickled food (‘421, Paragraph [0001]) comprising a vacuum sealed container containing preserved pickled food (‘421, Paragraph [0003]) wherein brine is a natural preservative which ensures the pickled food can be preserved within the container without the need for energy and resource intensive refrigeration whilst maintaining the food viability and desirable textural qualities (‘421, Paragraph [0012]) wherein the pickled food is one or a mixture of onions and/or other additional vegetables (‘421, Paragraph [0016]) wherein the brine comprises only FDA Class 1 natural preservatives (‘421, Paragraph [0022]).
Lee et al. US 5,057,330 discloses pickling or acid preservation is a well known method of preserving food products against microbiological spoilage by reducing the pH of the food product by the addition of an edible acid.
Risier et al. US 4,946,693 discloses a method of preparing intermediate moisture vegetables of onions wherein the vegetables are dried wherein salts are introduced in the form of brine.
Melwitz US 2011/0262618 discloses pureed herbs, vegetables, and/or spices (‘618, Paragraph [0001]) free of sodium metabisulfite preservatives (‘618, Paragraphs [0031]-[0032]).
Cohen US 2016/0339086 discloses the human body requires molybdenum to convert sulfites in sulfur containing foods such as onions into sulfate (‘086, Paragraph [0039]).
Nasar et al. US 2006/0233937 discloses a food product made from whole raw potatoes comprising onion powder and/or dried onion and at least one anti-discoloration agent of sodium bisulfite (‘937, Paragraph [0012]).
Kim et al. US 4,780,417 discloses a common source of an indirect addition of a sulfite is dehydrated onions.
Linaberry et al. US 3,973,047 discloses a method of making dried onions comprising the steps of treating sliced green onions in a dilute sulfite solution and drying in a belt dryer.
The prior art made of record, cited on a previous Information Disclosure Statement, and not relied upon is considered pertinent to applicant's disclosure.
Davis US 2013/0323399 discloses a method of making processed garlic blends used as food products (‘399, Paragraph [0001]) wherein the garlic blend comprises pre-acidified onions (‘399, Paragraph [0039]) comprising the steps of blending pre-acidified chopped garlic in oil, pre-acidified chopped garlic in water, and olive oil, slowly heating the blend to a light boil at 212°F, maintaining a slow, light boil for 8 minutes, hot filling jars to a desired quantity by weight at a minimum temperature adequate to pasteurize the product at approximately 160-190°F (‘399, Paragraph [0043]), immediately capping the jars and tighten firmly (‘399, Paragraph [0044]) wherein the garlic blend further comprises brined jalapeno peppers (‘399, Paragraph [0048]).
Lavermicocca et al. US 2011/0111094 discloses a vegetable preserve (‘094, Paragraph [0001]) comprising onions (‘094, Paragraph [0013]) that are pasteurized and preserved in brine and placed in sterile glass jars and covered with their own brine diluted with sterile water to obtain a final concentration of 4% NaCl (‘094, Paragraph [0050]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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