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 .
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 1-3, 5-6, 8-10, 12-13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Petit Gourmet “Homemade Bouillon Cubes” <https://thepetitgourmet.com/homemade-bouillon-cubes/> (published September 27, 2017) (herein referred to as “Petit Gourmet”) in view of Kerwood et al. US 2017/0208851 as further evidenced by To et al. “Effect of blending and pregelatinizing order on properties of pregelatinized starch from rice and cassava” (published February 2020) in further view of Perret et al. US 3,271,167, Chef Glen “Dehydrating Chicken” <https://web.archive.org/web/20180518074408/http://www.backpackingchef.com/dehydrating-chicken.html> (archived on May 18, 2018) (herein referred to as “Chef Glen”), Spritzler “How Cooking Affects the Nutrient Content of Foods” <https://web.archive.org/web/20191119065901/https://www.healthline.com/nutrition/cooking-nutrient-content#cooking-amp-nutrients> (archived on November 19, 2019) (herein referred to as “Spritzler”), and “Homemade Bouillon Recipes” <https://www.101cookbooks.com/homemade-bouillon-recipe/> (published August 15, 2020) (herein referred to as “Homemade Bouillon Recipes”).
Regarding Claim 1, Petit Gourmet discloses a method for manufacturing a frozen block (frozen chicken broth stock cubes) (Petit Gourmet, Pages 4-5). The method comprises mixing meat (chicken thighs), salts, and vegetables (leeks, onion, green pepper, garlic cloves, cilantro) to form a mixture, forming the mixture containing all ingredients to make a formed product, cooking the mixture by boiling the mixture of formed product, and freezing the cooked formed product (Petit Gourmet, Pages 6-7).
Petit Gourmet is silent regarding the mixture containing alpha starch. Petit Gourmet is also silent regarding steaming the formed product and instead teaches boiling the formed product mixture.
Kerwood et al. discloses a pregelatinized hydroxypropylated starch useful in thickening potable broth liquids (‘851, Paragraph [0025]) wherein pregelatinized starches develop viscosity when dispersed in cold or warm water without the need for further intense heating (‘851, Paragraphs [0035] and [0060]). To et al. provides evidence that it was known in the food art that pregelatinized starch is cooked and dried starch and is also called alpha starch (To et al., Page 103). Therefore, the pregelatinized starch useful in thickening potable broth liquids disclosed by Kerwood et al. is alpha starch as evidenced by To et al. that pregelatinized starch and alpha starch refer to the same thing.
Both Petit Gourmet and Kerwood et al. are directed towards the same field of endeavor of potable broth liquids. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Petit Gourmet and incorporate alpha starch/pregelatinized starch into the mixture of ingredients of the broth as taught by Kerwood et al. in order to thicken the broth as desired.
Further regarding Claim 1, Petit Gourmet modified with Kerwood et al. as further evidenced by To et al. is silent regarding steaming the formed product. Instead, Petit Gourmet teaches boiling the formed product mixture.
Perret et al. discloses a method of making flavored bouillon by mixing ingredients comprising vegetable based ingredients together and heating the mixture in a steam bath (‘167, Column 5, lines 32-45). Chef Glen discloses a method of dehydrating chicken comprising the step of cutting the chicken and steaming for one hour until falling apart, removing bones, pulling meat apart into small pieces, seasoning with salt, and dehydrating until dry (Chef Glen, Page 4).
Modified Petit Gourmet, Perret et al., and Chef Glen are all directed towards the same field of endeavor of methods of cooking ingredients. It would have been obvious to one of ordinary skill in the art at the time of the invention to substitute the boiling method of cooking the ingredient mixture of modified Petit Gourmet and cook the ingredient mixture by steaming as taught by the steaming used to make flavored bouillon of Perret et al. and also steam the chicken meat as taught by Chef Glen since Spritzler teaches that the way you cook your food has a major effect on the amount of nutrients it contains (Spritzler, Page 1) wherein boiling is a water based cooking method that reduces vitamin content of vegetables more than any other cooking method (Spritzler, Pages 2-3) whereas steaming is one of the best cooking methods for preserving nutrients including water soluble vitamins which are sensitive to heat and water (Spritzler, Page 7). Spritzler teaches that steaming has an advantage over boiling in that steaming preserves nutrients of the ingredients of the formed product.
Further regarding Claim 1, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the meat being present in an amount of 10 wt% to 25 wt% based on the total weight of the frozen block in the mixing step.
Homemade Bouillon Recipes discloses a method of making homemade bouillon comprising the steps of placing vegetable ingredients in a food processor and adjusting the ingredients using different herbs and ratio of base ingredients based upon personal preference (Homemade Bouillon Recipe, Page 6).
Both modified Petit Gourmet and Homemade Bouillon Recipes are directed towards the same endeavor of methods of making bouillon. 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 Petit Gourmet and adjust the concentration of meat and/or vegetables of the frozen block since Homemade Bouillon Recipes teaches using different herbs and ratios of base ingredients based upon personal preference. Differences in the concentration of meat and/or vegetables of the frozen block will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of meat and/or vegetables in the frozen block 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.). One of ordinary skill in the art would adjust the concentration of meat and/or vegetables in the frozen block of modified Petit Gourmet based upon the desired personal preference and flavor profile desired by a particular consumer as suggested by Homemade Bouillon Recipes.
Regarding Claim 2, the limitations “wherein step (A) comprises forming a first raw material by mixing meat and salts, mixing vegetables with the first raw material to form a second raw material, and mixing alpha starch with the second raw material” recites the order of steps in which the ingredients are mixed together. The prior art combination of Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, Spritzler, and Homemade Bouillon Recipes teaches mixing the claimed ingredients together as enumerated in the rejection of Claim 1 above (Kerwood et al. teaches incorporating alpha starch/pregelatinized starch into the ingredient mixture). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the order of mixing the ingredients of modified Petit Gourmet to occur in the claimed order since the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.).
Regarding Claim 3, Homemade Bouillon Recipes discloses a method of making homemade bouillon comprising the steps of placing vegetable ingredients in a food processor and adjusting the ingredients using different herbs and ratio of base ingredients based upon personal preference (Homemade Bouillon Recipe, Page 6). Both modified Petit Gourmet and Homemade Bouillon Recipes are directed towards the same endeavor of methods of making bouillon. 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 Petit Gourmet and adjust the concentration of meat and/or vegetables of the frozen block since Homemade Bouillon Recipes teaches using different herbs and ratios of base ingredients based upon personal preference. Differences in the concentration of meat and/or vegetables of the frozen block will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of meat and/or vegetables in the frozen block 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.). One of ordinary skill in the art would adjust the concentration of meat and/or vegetables in the frozen block of modified Petit Gourmet based upon the desired personal preference and flavor profile desired by a particular consumer as suggested by Homemade Bouillon Recipes.
Regarding Claim 5, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the vegetables being cut to a size of 5 mm to 15 mm in at least one of width, length, and height. However, limitations relating to the size of the intermediate cut vegetables are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.B.).
Regarding Claim 6, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the meat and the salts being mixed in a weight ratio of 2:1 to 20:1 or the meat and the alpha starch being mixed in a weight ratio of 1:1 to 25:1.
Homemade Bouillon Recipes discloses a method of making homemade bouillon comprising the steps of placing vegetable ingredients in a food processor and adjusting the ingredients using different herbs and ratio of base ingredients based upon personal preference (Homemade Bouillon Recipe, Page 6).
Both modified Petit Gourmet and Homemade Bouillon Recipes are directed towards the same endeavor of methods of making bouillon. 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 Petit Gourmet and adjust the concentration of meat relative to the concentration of salts and/or alpha starch of the frozen block since Homemade Bouillon Recipes teaches using different ratios of base ingredients based upon personal preference. Differences in the concentration of meat relative to the concentration of salts or alpha starch of the frozen block will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of meat relative to the concentration of salts or alpha starch in the frozen block 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.). One of ordinary skill in the art would adjust the concentration of meat relative to the concentration of salts in the frozen block of modified Petit Gourmet based upon the desired personal preference and degree of saltiness flavor profile desired by a particular consumer as suggested by Homemade Bouillon Recipes. Alternatively, one of ordinary skill in the art would adjust the concentration of meat relative to the concentration of alphas starch in the frozen block of modified Petit Gourmet based upon the desired degree of thickness of the frozen block which thickness is influenced by the presence of alpha starch/pregelatinized starch as taught by Kerwood et al. (‘851, Paragraphs [0025] and [0060]).
Regarding Claim 8, Kerwood et al. discloses the alpha starch (pregelatinized starch) being derived from any native source including waxy corn starch and tapioca starch (‘851, Paragraph [0038]). To et al. provides evidence that it was known in the food art that pregelatinized starch is cooked and dried starch and is also called alpha starch (To et al., Page 103). Therefore, the pregelatinized starch useful in thickening potable broth liquids disclosed by Kerwood et al. is alpha starch as evidenced by To et al. that pregelatinized starch and alpha starch refer to the same thing. 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 Petit Gourmet and use waxy corn starch or tapioca starch as the alpha/pregelatinized starch as taught by Kerwood et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Kerwood et al. teaches that there was known utility in the food art to use waxy corn starch or tapioca starch (‘851, Paragraph [0038]) to thicken broth liquids (‘851, Paragraphs [0025] and [0060]) such as the broth liquid disclosed by Petit Gourmet (Petit Gourmet, Page 7).
Regarding Claim 9, the mixture of ingredients of modified Petit Gourmet would necessarily have the ingredients attached to each other since Petit Gourmet teaches mixing and cooking the ingredients together (Petit Gourmet, Page 7).
Further regarding Claim 9, the limitations “wherein when the frozen block is placed in water irradiated by a microwave of 2.45 GHz and 700 W for 2 minutes, and stirred, 80 wt% or more of the meat and vegetables based on the total weight of the frozen block including the meat and vegetables are detached from each other within 1 minute immediately after stirring” are limitations with respect to the properties of the claimed frozen block. When the claimed and prior art products are identical or substantially identical in structure or composition or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.) Products of identical chemical composition cannot have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Since the prior art of modified Petit Gourmet incorporates the ingredients claimed in Claim 1, one of ordinary skill in the art would expect the frozen block of modified Petit Gourmet to behave in the same manner as claimed i.e. when the frozen block is placed in water irradiated by a microwave of 2.45 GHz and 700 W for 2 minutes, and stirred, 80 wt% or more of the meat and vegetables based on the total weight of the frozen block including the meat and vegetables are detached from each other within 1 minute immediately after stirring. Furthermore, it is noted that Claim 9 does not specify the particular type of stirring or the amount of force applied in the claimed stirring step. Given that the claim recites a generic stirring step, one of ordinary skill in the art would be capable of adjusting the force applied during the stirring step such that the claimed amount of meat and vegetables based on the total weight of the frozen block would be capable of detaching from each other within the claimed 1 minute time immediately after stirring.
Regarding Claim 10, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the vegetables being contained in an amount of 60 wt% or more and less than 80 wt% based on the total weight of the frozen block.
Homemade Bouillon Recipes discloses a method of making homemade bouillon comprising the steps of placing vegetable ingredients in a food processor and adjusting the ingredients using different herbs and ratio of base ingredients based upon personal preference (Homemade Bouillon Recipe, Page 6).
Both modified Petit Gourmet and Homemade Bouillon Recipes are directed towards the same endeavor of methods of making bouillon. 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 Petit Gourmet and adjust the concentration of meat and/or vegetables of the frozen block since Homemade Bouillon Recipes teaches using different herbs and ratios of base ingredients based upon personal preference. Differences in the concentration of meat and/or vegetables of the frozen block will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of meat and/or vegetables in the frozen block 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.). One of ordinary skill in the art would adjust the concentration of meat and/or vegetables in the frozen block of modified Petit Gourmet based upon the desired personal preference and flavor profile desired by a particular consumer as suggested by Homemade Bouillon Recipes.
Regarding Claim 12, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the vegetables being cut to a size of 5 mm to 15 mm in at least one of width, length, and height. However, limitations relating to the size of the intermediate cut vegetables are not sufficient to patentably distinguish over the prior art in view of In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (MPEP § 2144.04.IV.B.).
Regarding Claim 13, Petit Gourmet modified with Kerwood et al., Perret et al., Chef Glen, and Spritzler is silent regarding the meat and the salts being mixed in a weight ratio of 2:1 to 20:1 or the meat and the alpha starch being mixed in a weight ratio of 1:1 to 25:1.
Homemade Bouillon Recipes discloses a method of making homemade bouillon comprising the steps of placing vegetable ingredients in a food processor and adjusting the ingredients using different herbs and ratio of base ingredients based upon personal preference (Homemade Bouillon Recipe, Page 6).
Both modified Petit Gourmet and Homemade Bouillon Recipes are directed towards the same endeavor of methods of making bouillon. 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 Petit Gourmet and adjust the concentration of meat relative to the concentration of salts and/or alpha starch of the frozen block since Homemade Bouillon Recipes teaches using different ratios of base ingredients based upon personal preference. Differences in the concentration of meat relative to the concentration of salts or alpha starch of the frozen block will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of meat relative to the concentration of salts or alpha starch in the frozen block 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.). One of ordinary skill in the art would adjust the concentration of meat relative to the concentration of salts in the frozen block of modified Petit Gourmet based upon the desired personal preference and degree of saltiness flavor profile desired by a particular consumer as suggested by Homemade Bouillon Recipes. Alternatively, one of ordinary skill in the art would adjust the concentration of meat relative to the concentration of alphas starch in the frozen block of modified Petit Gourmet based upon the desired degree of thickness of the frozen block which thickness is influenced by the presence of alpha starch/pregelatinized starch as taught by Kerwood et al. (‘851, Paragraphs [0025] and [0060]).
Regarding Claim 15, Kerwood et al. discloses the alpha starch (pregelatinized starch) being derived from any native source including waxy corn starch and tapioca starch (‘851, Paragraph [0038]). To et al. provides evidence that it was known in the food art that pregelatinized starch is cooked and dried starch and is also called alpha starch (To et al., Page 103). Therefore, the pregelatinized starch useful in thickening potable broth liquids disclosed by Kerwood et al. is alpha starch as evidenced by To et al. that pregelatinized starch and alpha starch refer to the same thing. 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 Petit Gourmet and use waxy corn starch or tapioca starch as the alpha/pregelatinized starch as taught by Kerwood et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Kerwood et al. teaches that there was known utility in the food art to use waxy corn starch or tapioca starch (‘851, Paragraph [0038]) to thicken broth liquids (‘851, Paragraphs [0025] and [0060]) such as the broth liquid disclosed by Petit Gourmet (Petit Gourmet, Page 7).
Response to Arguments
Examiner notes that the previous Claim Objections and the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Applicant's arguments filed August 17, 2026 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Page 7 of the Remarks that the cited references fails to teach or suggest the limitations of amended Claim 1 of the meat being contained in an amount of 15 wt% to 25 wt% based on the total weight of the frozen block, which meat content range was previously recited in Claim 3. Applicant points out that Homemade Bouillon Recipes was previously relied upon to teach adjusting ingredient ratios based on personal preference and reasons that differences in meat or vegetable concentration do not support patentability absent evidence that the concentration is critical. Applicant alleges the evidence of record demonstrates that meat content is not merely a matter of taste or personal preference. Applicant points to Preparation Examples 1, 2, and 4 having meat contents of 18.45 wt, 15.27 wt%, and 21.43 wt% respectively and Preparation Examples 6-11 having meat contents of approximately 20-21 wt% which fall within the claimed 15-25 wt% range and exhibited no collapse after steaming. Applicant continues that Preparation Examples 3 and 5 having meat contents of 11.86 wt% and 14.64 wt% respectively exhibited collapse after steaming as shown in the data of Tables 1-4. Applicant concludes that these results allegedly demonstrate that meat content is not merely a parameter that may be varied according to taste or personal preference as suggested by Examiner but instead materially affects the ability of the formed product to retain its shape during steaming and that Homemade Bouillon Recipe does not identify meat content as a parameter affecting shape retention after steaming of selecting a meat content within the claimed 15-25 wt% range for that purpose and that Examiner’s teaching that ingredients ratios may be varied according to taste or personal preference does not provide a reasoned basis for arriving at the claimed meat content limitation or a reasonable expectation that doing so would provide the demonstrated shape retention property.
Examiner argues that where the issue of criticality is involved, applicant has the burden of establishing his position by a proper showing of the facts upon which he relies in view of In re Scherl, 156 F.2d 72, 74-75, 70 USPQ 204, 205 (CCPA 1946) (MPEP § 2144.05.III.A.). Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range in view of In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (MPEP § 716.02(d)). Preparation Examples 1-5 and the corresponding results in Tables 1-2 only provides data for the specific embodiment of pork meat and corn alpha starch. Claim 1 recites generically meat and alpha starch. Applicant’s data is specific to pork meat and corn alpha starch. Applicant’s data in Tables 1-2 is not commensurate in scope with the claimed invention. Furthermore, Gaddipati et al. WO 2019/192960 discloses a salt starch powder providing an efficient binding system in a bouillon tablet (‘960, Page 4, lines 2-4). Gaddipati et al. WO 2019/192960 teaches that starches influence the binding properties of a bouillon tablet. Preparation Examples 1-5 of Table 1 of applicant’s specification shows varying concentrations of corn alpha starch. The binding strength would influence the collapse of the bouillon tablets after steaming. However, Claim 1 does not specify any particular concentration of corn alpha starch. Additionally, Preparation Examples 1-5 of Table 1 does not provide any experimental data for meat concentrations above the claimed range of 15 wt% to 25 wt% based on the total weight of the frozen block. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Given that applicant has not provided any data points above the claimed meat content range, it is unknown if applicant’s allegations of collapse after steaming would hold above the claimed meat content range as well. Therefore, applicant’s data in Tables 1-2 of the Specification is not sufficient to show any unexpected results of the claimed frozen block.
Applicant argues on Pages 7-8 of the Remarks that applicant may rebut a prima facie case of alleged routine experimentation by evidence demonstrating that the claimed selection is not merely the product of routine experimentation and that an assertion of routine optimization does not eliminate the requirement for a reasoned explanation as to why a person of ordinary skill would have made the asserted modification with a reasonable expectation of success. Applicant alleges the cited art neither recognizes the relationship between meat content and shape retention nor provides a reason to select the claimed meat content limitation to obtain that result.
Examiner argues Claim 1 does not recite any shape retention property. Applicant argues limitations that are not commensurate in scope with the claimed invention. With respect to applicant’s alleged advantage of shape retention as a result of the claimed meat content, the fact that the inventor has recognized another advantage of shape retention which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). The Office Action relies upon the secondary reference of Homemade Bouillon Recipes for adjusting the concentration of meat and/or vegetables and ratios of base ingredients based upon personal preference and desired flavor profile as suggested by Homemade Bouillon Recipes. Therefore, this argument is not found persuasive.
Applicant argues on Page 8 of the Remarks with respect to Claim 9 that none of the cited references disclose or suggest the claimed detachment property recited in Claim 9. Applicant asserts that Examiner relies upon In re Best. Applicant continues that the cited primary reference combination is silent regarding the meat being present in the previously recited range of 10 wt% to 25 wt% and amended Claim 9 requires a meat content of 15 wt% to 25 wt%. Applicant continues that the Examiner has not established that the frozen block resulting from the cited combination is identical or substantially identical in composition to the claimed frozen block and that Examiner allegedly does not establish inherency by stating that a person of ordinary skill in the art could adjust the force applied during stirring until the claimed degree of detachment occurs. Applicant contends that to establish a missing limitation through inherency in an obviousness analysis the limitations must necessarily be present or be the natural result of the prior art combination and that the possibility that the claimed detachment condition might be achieved by selecting or adjusting an unspecified stirring force does not establish that the cited frozen block necessarily possesses the recited detachment property.
Examiner maintains that the limitations of Claim 9 reciting “wherein when the frozen block is placed in water irradiated by a microwave of 2.45 GHz and 700 W for 2 minutes, and stirred, 80 wt% or more of the meat and vegetables based on the total weight of the frozen block including the meat and vegetables are detached from each other within 1 minute immediately after stirring” are limitations with respect to the properties of the claimed frozen block. When the claimed and prior art products are identical or substantially identical in structure or composition or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.) Products of identical chemical composition cannot have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Since the prior art of modified Petit Gourmet incorporates the ingredients claimed in Claim 1, one of ordinary skill in the art would expect the frozen block of modified Petit Gourmet to behave in the same manner as claimed i.e. when the frozen block is placed in water irradiated by a microwave of 2.45 GHz and 700 W for 2 minutes, and stirred, 80 wt% or more of the meat and vegetables based on the total weight of the frozen block including the meat and vegetables are detached from each other within 1 minute immediately after stirring. Additionally, Gaddipati et al. WO 2019/192960 teaches that starches influence the binding properties of a bouillon tablet. Claims 1 and 9 do not specify any particular starch concentration, which starch concentration would influence the binding properties of the bouillon cube. Furthermore, it is noted that Claim 9 does not specify the particular type of stirring or the amount of force applied in the claimed stirring step. Given that the claim recites a generic stirring step, one of ordinary skill in the art would be capable of adjusting the force applied during the stirring step such that the claimed amount of meat and vegetables based on the total weight of the frozen block would be capable of detaching from each other within the claimed 1 minute time immediately after stirring. Therefore, this argument is not found persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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