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 .
This office action is in response to the application filed on April 24, 2023. The earliest effective filing date of the application is October 28, 2020.
Priority
The present application is a 371 National Stage Application of PCT/EP2021/079163 which has a filing date of October 21, 2021.
Status of Application
The amendment filed November 26, 2025 with the Remarks has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26
Previously cancelled claims: 9, 11, 13, 17, 19, and 22
Amended claims: 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26
Claims currently under examination: 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: The previous objections to claims 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26 have been withdrawn in light of applicant’s amendments.
Withdrawn Rejections: The previous rejection under 35 U.S.C. § 112(b) of claim 15 is withdrawn in light of applicant’s amendments. The previous rejections under 35 U.S.C. § 103 of claims 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26 over Gidley are withdrawn in light of applicant’s amendments.
Rejections: New rejections under 35 U.S.C. § 103 of claims 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26 over Grassin are presented below.
Claim Interpretation
Claim 1 recites “wherein gelation is prevented or at least significantly reduced during the presence of active PME in the fruit preparation by applying mechanical stress to the fruit preparation comprising active PME”. Claim 1 later recites “wherein a mechanical stress of 1 to 100 Pa is applied to the fruit preparation containing active PME by stirring, shaking, pumping or combinations thereof.” It is interpreted that the mechanical stress of 1 to 100 Pa is applied to the fruit preparation containing active PME by stirring, shaking, pumping or combinations thereof inherently prevents or at least significantly reduces gelation during the presence of active PME in the fruit preparation.
Claim 1 recites “wherein the method provides an improved consistency as determined by a reduction of Bostwick units of at least 1 Bostwick unit in cm/min, wherein the Bostwick units are measured according to the standard ASTMF1080-93, including equilibration of the samples at 20°C with an additional agitation with a propeller stirrer for 25 sec at 25 rpm, and wherein the reduction of Bostwick units is the reduction compared to the fruit preparation without enzymation and also compared with the enzymated food preparation, which is not exposed to a mechanical stress during enzymation”. As stated by the instant specification, the appropriate (significant) reduction or prevention of gelation in the method according to the present invention is achieved by the present invention e.g. by applying a mechanical stress of 1 to 100 Pa, (p. 3, paragraph 7). As stated by the instant specification, the combination of appropriate mechanical shear during enzymation according to the present invention (which exceeds yield stress of the recipe mixture and can be defined for each recipe as e.g. shown in example 4) and heat treatment of fruit prior to enzymation step reduces flowability on Bostwick consistometer for at least 1 cm/min, (p. 4, paragraph 2). Therefore, it is interpreted that the method of Claim 1 inherently results in a Bostwick unit reduction of at least 1 according to the recited parameters.
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.
Claims 1, 2, 6 – 8, 10, 12, 14, 16, 18, and 23 – 26 are rejected under 35 U.S.C. 103 as being unpatentable over Grassin et al. (WO 9412055 A1) in view of Lager (US 20110250314 A1).
Regarding claim 1, Grassin teaches a process for preparing apple sauce (i.e., a stable fruit preparation) comprising the steps of:
a) washing and selecting apples;
b) crushing, chopping or slicing the apples;
c) adding pectinesterase (i.e., pectinmethylesterase) to the apples (i.e., adding pectinmethylesterase (PME) to a PME-sensitive fruit preparation to perform an enzymation step on the fruit preparation);
d) hopping of the apples to the cooker and steam cooking of the apples (i.e., inactivating the PME in the fruit preparation to obtain a stable fruit preparation); and
e) finishing i.e. removing of stamens, peels, seed and other undesired particles, adding sugar, and canning (Claim 8).
With respect to whether the crushed, chopped, or sliced apples of Grassin are PME-sensitive, Grassin teaches fruits and vegetables naturally comprise pectins (p. 1, lines 33 – 34). Grassin teaches both high-methoxylated pectins with a degree of esterification higher than 50%, and low-methoxylated pectins having a degree of esterification lower than 50% are capable of forming gels, however these gels differ in the mechanism by which they are formed (p. 2, lines 11 – 19). Grassin teaches high-methoxylated pectins form gels based on dehydration (adding sugar, needed for the dewatering) and electrical neutralization (adjusting the pH to about 3) of colloidal pectin-agglomerates (p. 2, lines 19 – 24). Grassin teaches structure forming interactions in the high-methoxylated pectin containing gels is based on hydrogen bond formation (p. 2, lines 27 – 28). Grassin teaches depending on the fruit, in practice, this often means that both sugar and high-methoxylated pectin have to be added to obtain the classical high sugar content jams (p. 2, lines 24 – 26). In contrast, Grassin teaches low-methoxylated pectins are capable of forming gels with calcium ions or other divalent cations only (p. 2, lines 29 – 30). Grassin teaches because calcium ions are naturally present in apples (p. 2, lines 32 – 33); and no sugars have to be added in order to obtain suitable gelling properties (p. 2, lines 33 – 34); low-methoxylated pectins are perfectly suited for the preparation of low sugar content jams and jellies (p. 2, lines 36 – 38). Grassin teaches the pectinesterase of the method of making apple sauce is used to demethoxylate the high- methoxylated pectins to obtain low-methoxylated pectins (p. 3, lines 21 – 22). Grassin teaches the pectins obtained in this manner show calcium dependent gelation (p. 3, lines 22 – 24). Grassin teaches under normal processing conditions the viscosity of the apple sauce is increased following treatment with pectinesterase (p. 8, lines 5 – 7). Therefore, the apples in the method of Grassin are PME-sensitive.
With respect to whether exogenous pectin is added to the fruit preparation, Grassin teaches the application of the low- methoxylated pectins diminishes or abolishes the required use of sugars or other gelifying agents (p. 7, lines 8 – 11). Grassin teaches after treatment of high- methoxylated pectin containing fruits or vegetables with pectinesterase the use of texturing agents such as exogenous pectin or of gelling or thickening agents obtainable from higher plants, seaweeds, animals or microorganisms (such as alginate or carrageenan) can be largely diminished (p. 7, lines 11 – 16). Therefore, Grassin teaches the method above does not require the addition of exogenous pectin.
Grassin does not teach a mechanical stress is applied to the fruit- or vegetable-based product (i.e., fruit preparation) after PME is added, before the inactivation step (c), by stirring, shaking, pumping or combinations thereof.
Lager teaches a method of making an active fruit powder produced from fruits comprising the steps of:
1. macerating the fruit at a temperature not exceeding 140.degree. F. to yield a fruit pomace slurry having a particle size approximately 1 mm;
2. adding water to the fruit during step (a), wherein water is added at a rate of 5-8% by weight;
3. adding pectin esterase (i.e., PME) to the slurry in an amount sufficient to provide the molecular breakdown of the fruit;
4. heating the slurry to a temperature not exceeding about 140.degree. F and agitating (i.e., stirring) the slurry for a time not to exceed four hours; and
6. drying the slurry under temperature conditions not exceeding 140.degree. F. to a moisture content less than about 15% by weight to form a dietary supplement (Abstract; [0010]; [0019]; Claim 18).
Lager teaches the enzymes can be added directly into the agitation tank to mix with the pomace slurry ([0048]). Lager teaches the pomace slurry, the enzymes and any additives are mixed thoroughly to ensure that the entire bulk of the pomace is contacted by the enzymes ([0048]).
Grassin and Lager are combinable because they are concerned with the same field of endeavor, namely, subjecting macerated fruits to enzymolysis by PME. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to agitate (i.e., apply mechanical stress) the paste with PME and pectin during the reaction (i.e., enzymation) of Grassin, as taught by Lager because thorough mixing ensures that the entire bulk of the pomace is contacted by the enzymes ([0048]).
While Grassin does not teach the agitation (i.e., mechanical stress by stirring) is within 1 – 100 Pa, one of ordinary skill would be careful to avoid applying too much pressure during agitation (i.e., stirring) to avoid damaging the apple pieces in the apple sauce (i.e., fruit preparation) while achieving a homogenous mixture, and ensuring total contact with the PME enzyme. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed stirring mechanical stress, 1 to 100 Pa, would thus be obvious.
Regarding claim 2, while Grassin does not explicitly state the apple sauce is a puree, MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). One of ordinary skill in the art would have substituted the chopped, crushed, or sliced apples with apple puree before the effective filing date of the application because apple puree is texturally similar to apple sauce, and would be suitable for the intended use as fruit base for apple sauce.
Regarding claim 6, while Gidley does not teach the agitation (i.e., mechanical stress by stirring) is within 3 – 20 Pa, one of ordinary skill would be careful to avoid applying too much pressure during agitation (i.e., stirring) to avoid damaging the fruit or vegetable pieces in the fruit- or vegetable-based product (i.e., fruit preparation) while achieving a homogenous mixture, and ensuring total contact with the PME enzyme. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed stirring mechanical stress, 3 to 20 Pa, would thus be obvious.
Regarding claim 7, Grassin teaches this process works well with fruits or vegetables which contain high-methoxylated pectins, such as apple, strawberry, blackcurrant, orange, peach, pear, apricots and raspberry (p. 4, lines 36 – 38).
Regarding claim 8, Grassin teaches the pectinesterase treatment of the present invention can be performed on entire fruits (i.e., whole fruits) or vegetables, it can also be performed on presliced or ground fruits (i.e., fruits pieces) or vegetables (p. 5, lines 36 – 38).
Regarding claim 10, Grassin teaches the apple sauce comprises chopped, crushed, or sliced apple (i.e., fruit pieces – Claim 8). Grassin teaches the PME is deactivated during the hot sterilization of the apple sauce before canning (p. 6, lines 24 – 26). Therefore, the apple sauce of Grassin (i.e., the stable fruit preparation) comprises fruit pieces and inactivated PME.
Regarding claim 12, Grassin teaches apples naturally comprise calcium ions, therefore calcium ion addition is unnecessary (p. 2, lines 32 – 33).
Regarding claim 14, Grassin teaches the applesauce is canned (i.e., packaged into a storage-stable form – Claim 8).
Regarding claim 16, Grassin teaches a reaction (i.e., enzymation) time of about 10 minutes leads to a considerable improvements in the quality of apple sauce (p. 6, lines 19 – 23).
Regarding claim 18, while Gidley does not teach the agitation (i.e., stirring) rpm is within 10 – 500 rpm, one of ordinary skill would be careful to avoid applying too much pressure during agitation (i.e., stirring) to avoid damaging the fruit or vegetable pieces in the fruit- or vegetable-based product (i.e., fruit preparation) while achieving a homogenous mixture, and ensuring total contact with the PME enzyme. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed agitation (i.e., stirring) rpm, 10 – 500 rpm, would thus be obvious.
Regarding claims 23 – 26, Grassin teaches the treatment with pectinesterase leads to an increased firmness and viscosity of the product (p. 6, lines 26 – 28; p. 8, lines 5 – 7). Grassin teaches the effect of pectinesterase (i.e., increased firmness and viscosity) does not only depend on the amount of enzyme added but also on the time the enzyme performs its activity (p. 6, lines 8 – 11).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the reaction (i.e., enzymation) time and the amount of PME added to the fruit in the method of Grassin to achieve the desired Bostwick unit reduction, including a Bostwick unit reduction of 2 cm/min, 5 cm/min, 20%, and 40%, because adjustment of reaction (i.e., enzymation) time is routinely practiced in the art.
Furthermore, the instant specification states, the appropriate (significant) reduction or prevention of gelation in the method according to the present invention is achieved by the present invention e.g. by applying a mechanical stress of 1 to 100 Pa, (p. 3, paragraph 7). As stated by the instant specification, the combination of appropriate mechanical shear during enzymation (i.e., mechanical stress) according to the present invention (which exceeds yield stress of the recipe mixture and can be defined for each recipe as e.g. shown in example 4) and heat treatment of fruit prior to enzymation step reduces flowability on Bostwick consistometer for at least 1 cm/min, (p. 4, paragraph 2). Therefore, the combination of agitating (i.e., stirring) during the reaction (i.e., enzymation) step of Grassin and controlling the reaction (i.e., enzymation) time and the amount of PME added to the fruit in the method of Grassin would result in a Bostwick unit reduction compared with the enzymated food preparation which is not exposed to a mechanical stress during enzymation of 2 cm/min, 5 cm/min, 20%, or 40%, as desired.
Claims 3 – 5 are rejected under 35 U.S.C. 103 as being unpatentable over Grassin et al. (WO 9412055 A1) in view of Lager (US 20110250314 A1), as applied to claims 2 above, and further in view of Chong (Analysis of cell-wall pectin from hot and cold break tomato preparations. Food Research International. Vol 42. Pp. 770 – 772. (2009)).
Regarding claim 3, Grassin teaches the fruit may be pretreated (p. 6, lines 1 – 4). Grassin teaches the effect of pectinesterase does not only depend on the amount of enzyme added but also on the time the enzyme performs its activity (p. 6, lines 8 – 11). Grassin teaches after the addition of pectinesterase, the temperature of this pulp is brought to 90°C by addition of fresh pulp to pulp kept at 94°C in a ratio of 1:9 (the so-called Hot-break process – p. 13, lines 8 – 11).
Grassin does not teach performing a hot-break step prior to the addition of PME.
Chong investigates the impact of hot-breaking on tomato products. Chong teaches the retention of natural color and fresh flavor and a lower viscosity are important for certain tomato products, such as soup and juice; whereas, a greater final viscosity is essential to products such as ketchup and tomato sauce (p. 770, paragraph 1). Chong teaches these qualities are greatly impacted by the conditions used in the initial processing (i.e., the ‘‘break”) of the fresh tomatoes (p. 770, paragraph 1). Chong teaches hot break involves a processing temperature of approximately 90 C, or higher, and is used to produce high viscosity products (p. 770, paragraph 1). Chong teaches the hot break method is believed to inactivate enzymes important to viscosity, particularly pectinmethylesterase (PME) and endopolygalacturonase (EPG – p. 770, paragraph 2).
Grassin and Chong are combinable because they are concerned with the same field of endeavor, namely, hot-breaking fruits for sauces. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included an additional hot-breaking step prior to the addition of PME to the apple sauce in the method of Grassin because hot-breaking inactivates PME and EPG, as taught by Chong. One of ordinary skill in the art would have been motivated to do so because inactivating endogenous PME prior to the controlled addition of PME to the applesauce offers greater control over the viscosity of the resulting apple sauce, because the amount of PME in the sauce, and the time of enzyme activity is controlled.
Regarding claims 4 and 5, Grassin teaches the pulp is kept at 90 °C for 10 to 15 min before further processing (p. 13, lines 11 – 12).
It would have been obvious to one of skill in the art before the effective filing date of the invention to hot-break the apples at 90 °C for 10 to 15 min prior to the addition of PME, because Grassin provides that it was known for the recited temperature and times for hot-breaking have been successfully used and published at the time of filing, which means it was within the general skill of a worker in the art to select 90 °C for 10 to 15 min as the temperature and time for hot-breaking the apples before adding PME because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use (see MPEP § 2144.07).
Claims 15 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Grassin et al. (WO 9412055 A1) in view of Lager (US 20110250314 A1), as applied to claim 1 above, and further in view of Chong (Analysis of cell-wall pectin from hot and cold break tomato preparations. Food Research International. Vol 42. Pp. 770 – 772. (2009)).
Regarding claim 15, Grassin teaches the fruit may be pretreated (p. 6, lines 1 – 4). Grassin teaches the effect of pectinesterase does not only depend on the amount of enzyme added but also on the time the enzyme performs its activity (p. 6, lines 8 – 11). Grassin teaches after the addition of pectinesterase, the temperature of this pulp is brought to 90°C by addition of fresh pulp to pulp kept at 94°C in a ratio of 1:9 (the so-called Hot-break process – p. 13, lines 8 – 11).
Grassin does not teach performing a hot-break step prior to the addition of PME.
Chong investigates the impact of hot-breaking on tomato products. Chong teaches the retention of natural color and fresh flavor and a lower viscosity are important for certain tomato products, such as soup and juice; whereas, a greater final viscosity is essential to products such as ketchup and tomato sauce (p. 770, paragraph 1). Chong teaches these qualities are greatly impacted by the conditions used in the initial processing (i.e., the ‘‘break”) of the fresh tomatoes (p. 770, paragraph 1). Chong teaches hot break involves a processing temperature of approximately 90 C, or higher, and is used to produce high viscosity products (p. 770, paragraph 1). Chong teaches the hot break method is believed to inactivate enzymes important to viscosity, particularly pectinmethylesterase (PME) and endopolygalacturonase (EPG – p. 770, paragraph 2).
Grassin and Chong are combinable because they are concerned with the same field of endeavor, namely, hot-breaking fruits for sauces. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included an additional hot-breaking step prior to the addition of PME to the apple sauce in the method of Grassin because hot-breaking inactivates PME and EPG, as taught by Chong. One of ordinary skill in the art would have been motivated to do so because inactivating endogenous PME prior to the controlled addition of PME to the applesauce offers greater control over the viscosity of the resulting apple sauce, because the amount of PME in the sauce, and the time of enzyme activity is controlled.
While Grassin does not explicitly suggest the application of mechanical stress during hot-breaking, given Grassin teaches the pulp is maintained at 90°C by addition of fresh pulp to pulp kept at 94°C in a ratio of 1:9 to achieve a hot-break. One of ordinary skill in the art would have considered stirring (i.e., applying mechanical stress) to the pulp during either of the hot-break steps, including the second hot-break step after the addition of PME, to ensure the pulp reaches 90°C evenly and quickly.
Regarding claim 21, Grassin teaches the fruit may be pretreated (p. 6, lines 1 – 4). Grassin teaches the effect of pectinesterase does not only depend on the amount of enzyme added but also on the time the enzyme performs its activity (p. 6, lines 8 – 11). Grassin teaches after the addition of pectinesterase, the temperature of this pulp is brought to 90°C by addition of fresh pulp to pulp kept at 94°C in a ratio of 1:9 (the so-called Hot-break process – p. 13, lines 8 – 11).
Grassin does not teach performing a hot-break step prior to the addition of PME.
Chong investigates the impact of hot-breaking on tomato products. Chong teaches the retention of natural color and fresh flavor and a lower viscosity are important for certain tomato products, such as soup and juice; whereas, a greater final viscosity is essential to products such as ketchup and tomato sauce (p. 770, paragraph 1). Chong teaches these qualities are greatly impacted by the conditions used in the initial processing (i.e., the ‘‘break”) of the fresh tomatoes (p. 770, paragraph 1). Chong teaches hot break involves a processing temperature of approximately 90 C, or higher, and is used to produce high viscosity products (p. 770, paragraph 1). Chong teaches the hot break method is believed to inactivate enzymes important to viscosity, particularly pectinmethylesterase (PME) and endopolygalacturonase (EPG – p. 770, paragraph 2).
Grassin and Chong are combinable because they are concerned with the same field of endeavor, namely, hot-breaking fruits for sauces. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included an additional hot-breaking step at 94 °C prior to the addition of PME to the apple sauce in the method of Grassin because hot-breaking inactivates PME and EPG, as taught by Chong. One of ordinary skill in the art would have been motivated to do so because inactivating endogenous PME prior to the controlled addition of PME to the applesauce offers greater control over the viscosity of the resulting apple sauce, because the amount of PME in the sauce, and the time of enzyme activity is controlled.
Regarding the limitation that the heating prior to the addition of PME is performed at a temperature of at least 50 °C, Grassin teaches the pulp is kept at 90 °C for 10 to 15 min before further processing during the hot-break (p. 13, lines 11 – 12).
It would have been obvious to one of skill in the art before the effective filing date of the invention to hot-break the apples at 90 °C for 10 to 15 min prior to the addition of PME, because Grassin provides that it was known for the recited temperature and times for hot-breaking have been successfully used and published at the time of filing, which means it was within the general skill of a worker in the art to select 90 °C for 10 to 15 min as the temperature and time for hot-breaking the apples before adding PME because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use (see MPEP § 2144.07).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Grassin et al. (WO 9412055 A1) in view of Lager (US 20110250314 A1), as applied to claim 1 above, and further in view of Andersen et al. (Thermal Treatment. In: Food Safety Management – A Practical Guide for the Food Industry (1st Edition). Elsevier. (2014)).
Grassin teaches the apple sauce is sterilized before canning (p. 6, lines 24 – 26).
Grassin does not teach the sterilization (i.e., pasteurization) occurs for at least 1 minute.
Andersen teaches the general objective of pasteurization is to extend product shelf-life by inactivating all non-spore-forming pathogenic bacteria and the majority of vegetative spoilage microorganisms, as well as inhibiting or stopping microbial and enzyme activity (p. 435, paragraph 3). Andersen teaches rapid, high or flash pasteurization uses pasteurization temperatures of about 85 to 90°C or more for a time only in the order of seconds (p. 435, paragraph 4). Andersen teaches typical temperature–time combinations can be 88°C (190°F) for 1 minute; 100°C for 12 seconds; 121°C for 2 seconds (p. 435, paragraph 4). Andersen teaches since heating applied to destroy microorganisms may also exert adverse effects on the quality of foods, in practice a minimum possible heat treatment is to be used that can guarantee destruction of pathogens and toxins and give the desired storage life, but also retain the characteristic organoleptic properties of food products (p. 437 paragraph 2). By adjusting the time and temperature of pasteurization, the degree of inactivation of heat-resistant pathogens is changed. Therefore, the time and temperature of pasteurization are result effective variables.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to pasteurize the apple sauce (i.e., stable fruit preparation) for at least 1 minute in the method of Grassin, as taught by Andersen, because one of ordinary skill in the art would have adjusted the time and temperature of pasteurization to achieve the desired reduction in microorganisms while preserving the quality of the apple sauce.
Response to Arguments
Applicant's arguments filed November 26, 2025 have been fully considered but they are not persuasive.
Applicant argues Gidley’s invention is specifically designed to address the problem of PME-insensitive paste where the native pectin has already been degraded (p. 9, paragraph 3).
Applicant’s argument has been carefully considered and is persuasive in light of applicant’s amendments. Therefore, the rejection of claims 1 – 8, 10, 12, 14 – 16, 18, 20, 21, and 23 – 26 over Gidley has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Grassin.
Applicant argues Gidley and Lager (i.e., Bernard in previous action) are not properly combinable because they are directed to different product categories with different technical requirements and end uses (p. 11, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, the combination of Gidley and Lager (i.e., Bernard in previous action), and in the present rejection above, Grassin and Lager (i.e., Bernard in previous action), the combination of each primary reference with the teachings of Lager (i.e., Bernard in previous action) is based on the method of mixing (i.e., applying mechanical stress) fruit and PME to achieve enzymolysis. While the final products of each reference are different, their combination is proper because of their shared field of endeavor, and the fact that each reference teaches combining fruit with PME to achieve enzymolysis.
Applicant argues Gidley and Lager (i.e., Bernard in previous action) are combined by relying on impermissible hindsight (p. 12, paragraph 4).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case, the motivation of combine Gidley and Lager (i.e., Bernard in previous action), and in the present rejection above, Grassin and Lager (i.e., Bernard in previous action), is based on the suitability of mechanical stress in the reaction between fruit and PME to achieve enzymolysis.
Conclusion
No claims are allowed.
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.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793