DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because Fig. 1 and Fig. 2 lack labels on the y-axes. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 51, 57 – 60, 65 – 68, and 70 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Cryan US 2022/0053797.
Regarding claims 51 and 67, Cryan discloses a method for producing a fruit and/or vegetable based composition which comprises providing a fruit and/or vegetable component and at least one active ingredient (probiotics) , processing said fruit and/or vegetable component and said at least one active ingredient to generate a mixture, and freeze-drying at least a portion of said mixture to generate said fruit and/or vegetable based composition (paragraph [0178]). Further, the processing said fruit and/or vegetable component and said at least one active ingredient to generate a mixture is performed at temperatures less than 0 degree Celsius (freeze kill step) (paragraph [0182]).
Regarding claim 57, Cryan discloses the freeze drying is performed at temperatures between -80 degrees Celsius and 40 degrees Celsius (-35º F = -37.22º C) (paragraph [0156]).
Regarding claim 58, Cryan discloses the freeze drying would be carried out at
-37.22 degrees Celsius (-35º F) and that at no point would the mixture be processed at a temperature exceeding 60 degrees Celsius (140º F) which is a change in temperature during freeze drying of 79.44 degrees Celsius (175º F) which is to say that Cryan is disclosing the change in temperature during freeze drying would be between 20 degrees Celsius and 80 degrees Celsius.
Regarding claim 59, Cryan discloses the said fruit and/or vegetable based composition is substantially free of preservatives or additives (paragraph [0108]).
Regarding claim 60, Cryan discloses the fruit and/or vegetable composition would be soft, crispy, or crunchy in texture which is to say the vegetable based composition would have a crunchy mouth feel and be orally disintegrable when chewed (paragraph [0061], [0173] – [0174], and [0198]).
Regarding claim 65, Cryan discloses providing an additional dairy and/or food product ingredient to said fruit and/or vegetable component (dairy products/soy products) (paragraph [0089]).
Regarding claim 66, Cryan discloses the at least one active ingredient would consist of a flavour (paragraph [00070 and [0190]).
Regarding claim 68, Cryan discloses the fruit and/or vegetable based composition would comprise at least one type of fruit and/or at least one type of vegetable component (any combination of fruits, vegetables) (paragraph [0190]).
Regarding claim 70, Cryan discloses the fruit and/or vegetable based composition would comprise a coating of salt (paragraph [0094]).
Claim Rejections - 35 USC § 103
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.
Claims 52, 53, 56 and 69 are rejected under 35 U.S.C. 103 as being unpatentable over Cryan US 2022/0053797.
Regarding claim 52, Cryan discloses that processing said fruit and/or vegetable component would include directing said mixture to a mold which would have a rectangular shape (paragraph [0084]). With respect to the mold having at least one cavity comprising a dimension of about 1 cm to about 10 cm, once it was known to provide a mold to direct said mixture to it is not seen that patentability would be predicated on the particular size of the mold. Limitations relating to the size of the mold are not sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art mold capable of being scaled up, if such were the case, would not establish patentability in a claim to an old mold so scaled. Where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (MPEP § 2144.04 IV.A.).
Regarding claim 53, Cryan discloses said mold would be freeze dried to form a solid article of said fruit and/or vegetable based composition (paragraph [0084]).
Regarding claim 56, Cryan discloses that freeze drying said mixture is done at a temperature of less than -20 degrees Celsius (-35º F = -37.22º C) (paragraph [0156]) which is to say that the prior to freeze drying the mixture would obviously have to have been frozen to a temperature of less than -20 degrees Celsius.
Regarding claim 69, since Cryan discloses the fruit and/or vegetable component would be produced as a cooked-like product (paragraph [0170]) which is to say that the composition would obviously be ready to eat. Cryan further discloses that the composition would flash frozen, which is to say individually quick frozen, prior to freeze drying (paragraph [0020]) thereby making it obvious that said component would be both Individually Quick Frozen ad Ready to Eat.
Claims 62 and 63 are rejected under 35 U.S.C. 103 as being unpatentable over Cryan US 2022/0053797 in view of Buggenhout et al. and Wiessel et al. US 2012/0114625
Claim 62 differs from Cryan in a specific mixing rate and pressure. Once it was known to process the fruit and/or vegetable component and the at least one active ingredient temperatures of less than 0 degrees Celsius it is not seen that patentability would be conferred based on the specific mixing rate and pressure at which said blending would occur absent strong and compelling evidence to the contrary. 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. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of mixing rates and pressure ranges would lie the optimum combination of rates and ranges.
Nevertheless, Buggenhout discloses that it is conventional in the art when processing fruit and/or vegetable compositions by freezing to use high pressure and low temperature combinations (abstract) (page 475) to inactivate microbial growth without affecting enzyme quality (conclusion) (page 484) as well as allowing for the homogeneous matrix of numerous small ice crystals to limit texture loss (introduction) (page 475, paragraph 3). To therefore modify Cryan and process the fruit and/or vegetable compositions using high pressure and low temperature techniques as taught by Buggenhout to inactivate microbial growth without affecting enzyme quality would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Wiessel further discloses that in the processing of fruit (paragraph [0028]) and/or vegetable (paragraph [0029]) compositions containing at least one active ingredient (vitamins) (paragraph [0033]) in order to prevent unacceptable change in the taste or texture of the compositions it was well established and conventional in the art when processing said compositions to blend fruit and/or vegetable compositions at a mixing rate of between about 20 – about 200 rpm (100 rpm) and at a pressure of about 750 to about 4,000 psi (about 500 psi to about 4,000 psi) at a temperature of about 33 F which would allow for temperatures of less than 0 degrees Celsius (paragraph [0035]) again making it an obvious matter of choice and/or design to the ordinarily skilled artisan to have used temperatures less than 0 degrees Celsius and high pressure to process said composition.
Regarding claim 63, Cryan in view of Buggenhout and Wiessel disclose the blending would be performed using a blender (‘797, paragraph [0143]).
Claims 54 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Cryan US 2022/0053797 in view of Elerath US 3,637,398.
Regarding claim 54, Cryan discloses the fruit and/or vegetable based mixture would be extruded (paragraph [0171]). Claim 54 differs from Cryan in the extruding being conducted under temperatures less than 0 degrees.
Elerath discloses that when preparing fruit and/or vegetable based compositions for freeze drying it was quite old, well established, and conventional in the art to prepare fruit and/or vegetable compositions for freeze drying by extruding said compositions under temperatures less than 0 degrees (col. 1, ln 45 – 55). Elerath is extruding said mixture under temperatures under less than 0 degrees for the art recognized as well as applicant’s intended function which is to extrude the fruit and/or vegetable composition through a die of the desired product shape such that said composition will retain its shape after extrusion (col. 2, ln 14 – 18) as well as reduce costs by elimination of costly belt freezing systems (col. 1, ln 69 – 70) which is applicant’s reasons for doing so as well. To therefore modify Cryan, if necessary, and prepare fruit and/or vegetable compositions for freeze drying by extruding said compositions under temperatures less than 0 degrees as taught by Elerath to have the composition retain its shape after extrusion and reduce costs would have been an obvious matter of choice and or design to the ordinarily skilled artisan.
Regarding claim 55, Cryan in view of Elerath discloses said mold would be freeze dried to form a solid article of said fruit and/or vegetable based composition (‘797, paragraph [0084]).
Claim 61 is rejected under 35 U.S.C. 103 as being unpatentable over Cryan US 2022/0053797 as further evidenced by Jay (Modern Food Microbiology 2005).
Regarding claim 61, Cryan discloses the fruit and/or vegetable based composition would comprise a water content of less than 8% which as further evidenced by Jay equates to a water activity of about 0.15 to about 0.40 (Aw 0.25) (page 444, paragraph 5).
Claim 64 is rejected under 35 U.S.C. 103 as being unpatentable over Cryan US 2022/0053797 in view of Nowak et al. (The Freeze-Drying of Foods).
Regarding claim 64 Cryan discloses the freeze drying would performed by lowering the temperature to between -20 degrees Celsius and -80 degrees Celsius (-35º F = -37.22º C) (paragraph [0156]).
Claim 64 differs from Cryan in the cooling rate being between 0.5 and 20 degrees Celsius per minute.
Nowak discloses that the cooling rate (freeze rate) is one of the most critical stages in freeze drying. The appropriate freezing rate depends on the type of material to be dried. The kinetics of ice nucleation and crystal growth determine the physical state and morphology of the resultant properties of the freeze-dried product (page 3, “2.1 The First Stage of the Freeze-Drying Process” paragraph 4). Nowak further discloses that samples of apples were frozen to -25º C with different rates of 0.5, 2, and 3 C/min, and then the apples were freeze-dried. Slow freezing reduced the drying time by 8.3% in comparison to the fastest freezing rate. The slow rate of freezing caused damage to the cell wall, which facilitated the moisture removal. The decrease of the cooling rate also resulted in a softer texture of apples and a higher rehydration capacity (page 17, first paragraph).
This is to say that the cooling rate is a result effective variable which the ordinarily skilled artisan would regularly and routinely optimize. 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. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2144.05 II.A.).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to please telephone the Examiner.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.S./
Chaim SmithExaminer, Art Unit 1791 23 December 2025
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791