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 Objections
Claims 9, 11-13, and 19-27 are objected to because of the following informalities:
Regarding claim 9, in line 1 insert “product” after “a food” to place the claim in better form.
In line 3, delete “parts” after “two or more” and insert “sections” for consistency and to place the claim in better form.
In line 3, insert “entire” before “single-category”.
In line 6, delete “parts” before “so that” and insert “divided sections”.
In line 6, delete “the two or more divided parts have different permittivities from each other” and insert “each of said sections have different permittivities”.
In line 8, insert “is” after “the component”.
In line 8, delete “parts” after “two or more divided” and insert “sections”.
In line 10, delete “a single-category food containing” and insert “the food product containing the”.
In line 11, delete “using the two or more parts having different permittivities” since the limitation is redundant.
Regarding claim 11, in line 1 insert “product” after “a food”.
In line 2, delete “single-category food” and insert “food product”.
In lines 2-3, delete “so that the two or more divided sections having different permittivities” and insert “to”.
Regarding claim 12, in line 1 insert “product” after “a food”.
In line 2, delete “single-category food” and insert “food product”.
In line 3, delete “of the two or more divided sections having different permittivities” since the limitation is redundant.
Regarding claim 13, in line 1 insert “product” after “a food”.
In line 2, delete “single-category food” and insert “food product”.
In lines 2-3, delete “so that the two or more divided sections having different permittivities” and insert “to”.
Regarding claims 19-23, in line 1 insert “product” after “a food”.
Regarding claim 20, in lines 1-2 delete “a characteristic value difference between” and insert “a difference between a characteristic value of”.
In line 3, insert “a characteristic value of” before “the divided section with the lowest”.
In line 4, delete “in” after “characteristic value” and insert “of”.
Regarding claim 23, in line 2 delete “a divided section in the single-category food” and insert “the two or more divided sections”.
In line 8, delete “divided section” before “in the food” and insert “two or more divided sections”.
In line 8, insert “product” after “in the food”.
In line 9, insert “one or more” before “characteristic values”.
In line 9, delete “food within the divided section” and insert “two or more divided sections”.
Regarding claims 24-27, in line 1 delete “method” and insert “production method for a food product” for consistency.
Regarding claim 24, in line 1 delete “the evaluation of the non-uniformity of heating in the evaluating non-uniformity of heating of the single-category food” and insert “the evaluating” since the limitation is redundant and to place the claim in better form.
Regarding claim 25, in line 2 delete “divided” and insert “the two or more divided”.
In line 2, delete “divided section” and insert “two or more divided sections”.
In line 2, insert “product” after “in the food”.
Regarding claim 26, in line 2 delete “in the evaluating non-uniformity of heating of the single-category food” since the limitation is redundant.
In line 3, delete “radiation or convection” and insert “radiative, or convective heating”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 20-27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 20, the limitations “the divided section with the highest dielectric constant or dielectric loss factor” and “the divided section with the lowest dielectric constant or dielectric loss factor” lack antecedent basis. The claim depends from claim 9, but the limitations in question are first recited in claim 19.
Regarding claim 21, the limitation “have different components or their contents that affect permittivity” renders the claim indefinite since it is unclear how the limitation should be interpreted. Claim 9 already recites “differentiating the content of a component that affects permittivity.” It is unclear if the limitation in question refers to the above feature of claim 9, unclear if there is a difference between the limitations, and unclear what subject matter is encompassed by the respective limitations.
Additionally, claim 21 recites plural “components” and “contents,” whereas claim 9 recites singular “content of a component.” Claim 9 also recites the component “is at least one selected from the group…” which indicates multiple substances can be present within “a component.” It is unclear if claim 21 is intended to recite “the component” of claim 9 includes a plurality of the recited alternatives, or recite a plurality of the “component” itself.
Regarding claim 22, the claim is rendered indefinite for the same reasons stated for claim 21. It is unclear if “the components” refers to the singular “component” of claim 9, particularly since the alternatives are the same as that of claim 9.
In line 2, the limitation “at least one” renders the claim indefinite since line 1 recites “the components” which indicates that “at least two” of the alternatives are required.
Regarding claim 23, in line 2 the limitation “to improve heating uniformity” renders the claim indefinite since claim 9 recites the food is “configured to be uniformly heated…” It is unclear whether heating uniformity is obtained by the process of claim 9 or claim 23. Examiner notes the limitation does not significantly add to the meaning of the claim. The rejection may be overcome by deleting “to improve heating uniformity”.
In line 6, the limitation “the measured characteristic value” renders the claim indefinite since line 4 recites “one or more characteristic values.” The rejection may be overcome by amending the limitation in question to instead recite “the measured one or more characteristic values”.
In line 7, the limitation “the heating characteristic data of a heating device” renders the claim indefinite since the limitation lacks antecedent basis and it is unclear which feature of the process is referred to by “a heating device.”
In line 8, the limitation “the number, size, or positional relationship” lacks antecedent basis. The rejection may be overcome by amending “the” to instead recite “a”.
In lines 6 and 9-10, the limitation “non-uniformity of heating” renders the claim indefinite since the boundary between “uniform” and “non-uniform” heating is unclear. The specification does not provide a definition for the limitation, and it is unclear if the limitation encompasses tolerance for slight temperature variations/gradients throughout the food product. In such a case, it is unclear what value(s) of said parameters would be encompassed by “uniform” and “non-uniform,” respectively.
In line 9, the limitation “adjusting the characteristic values” renders the claim indefinite since line 4 recites “one or more characteristic values,” and therefore it is unclear if the minimum number is “at least one” or “at least two.” The rejection can be overcome by inserting “one or more” before “characteristic values.”
In line 9, the limitation “the food within the divided section” renders the claim indefinite since the antecedent basis for “the food” is unclear.
Regarding claim 24, the limitation “the change or movement pattern of the heating spot inside the single-category food” lacks antecedent basis. While claim 23 recites evaluating “non-uniformity,” there is no indication that a heating spot (and characteristics thereof) is required by the process of claim 23.
Regarding claim 25, the limitation “the number or location of the heating spots” lacks antecedent basis for the same reason stated for claim 24.
Regarding claim 27, the claim is rendered indefinite since it is unclear what is meant by “conventionally existing food” and “new food.” The specification does not provide definitions, and one of ordinary skill would not be able to determine how the limitations should be interpreted. The subject matter encompassed by the respective limitations is ambiguous.
Claim 26 is rejected by virtue of its dependence on a rejected base claim.
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 27 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.
One of ordinary skill in the art would have understood any produced food is inherently either “a conventionally existing food” or a “new food.”
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 § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 9, 11-13 and 19-27 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
In the present application, claims 9, 11-13 and 19-27 are directed to a method (i.e. a process). Thus, the eligibility analysis proceeds to Step 2A.1.
Step 2A. 1:
Regarding independent claim 9, the claim recites a judicial exception as explained further below:
“differentiating the content of a component that affects permittivity…two or more divided parts of the single-category food”
The term “differentiating” is not defined by the specification, and as generally claimed is given its broadest reasonable interpretation to be mental differentiation, or a mental determination, so a mental process. For example, an individual may visually determine each divided section of the single-category food has a different number/amount of protein component.
The claim is directed to acts that can be and are performed by a human, e.g., mentally or manually, using a pen and paper, without the use of a computer or any other machine for the purpose of obtaining a certification, which has been done in the field before the invention of computer systems.
Step 2A. 2:
The claim does not recite additional elements that integrate the judicial exception into a practical application. Such elements include:
Improvements to the functioning of a computer, or to any other technology or technical field - See MPEP 2106.05(a)
Applying the judicial exception with, or by use of, a particular machine - See MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state of thing - See MPEP 2106.05(c)
The additional limitations are:
“dividing a single-category food into two or more parts”
The term “dividing” given its broadest reasonable interpretation encompasses dividing a food product as an extra pre-solution activity, and can be done to prepare the sample for analysis. As claimed, the “dividing” is done in a way which is nominal and incidental to the primary process, which is production of a food. See MPEP 2106.05(g)
“producing a single-category food containing two or more divided sections having different permittivities using the two or more parts having different permittivities”
The term “producing” is not defined by the specification. The broadest reasonable interpretation of the term encompasses simply providing, without further processing, a product that was already present during the “dividing” and “differentiating” portions of the process. Under said interpretation, there is no integration of the abstract idea into a practical application.
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - See MPEP 2106.05(e)
Therefore, the claim is directed to an abstract idea and the analysis proceeds to Step 2B.
Step 2B:
Independent claim 9 does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application. The claim is not patent eligible.
Dependent claims 11-13 and 19-27 merely add further details of the abstract steps/elements recited in the independent claims without including an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technology environment. All of the steps of the dependent claims can still be performed mentally.
Dependent claim 23 in particular recites abstract ideas of “designing,” “evaluating,” and “determining” (2A. 1.), does not integrate the judicial exception (2A. 2.) into a practical application since “measuring” is a routine process for data gathering and an extra-solution activity, and does not recite elements which are significantly more than the abstract ideas (2B.)
In summary, the dependent claims considered both individually and as ordered combination do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. The claims do not recite an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or provide meaningful limitations beyond generally linking an abstract idea to a particular technological environment. Therefore, the claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Additionally, claims 11-13 and 19-27 are rejected based on their dependence on a rejected base claim.
Claim Rejections - 35 USC § 102
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 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.
Claims 9, 13, 19 and 21-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Adashek (US 5,962,050 A).
Regarding claim 9, Adashek teaches a food production method (abstract) comprising dividing a single-category food such as pizza dough 28 into two or more parts 36 and 38 (figures 3-4; column 3 lines 11-21), differentiating components in the parts by adding different toppings to each part (figure 1; column 2 lines 53-59 and 61-64), and producing a food product containing two or more divided sections having different permittivities using two or more parts having different permittivities (abstract). The divided parts would necessarily have different permittivities due to the different toppings used for each part, where the toppings include components claimed to affect permittivity e.g., water, protein, fat, and carbohydrate from cheese, meat, sauce, and vegetables (column 2 lines 54-55). The toppings are shown to be mixed within the sections (figure 1). Further, one of ordinary skill would have been able to visually “differentiate” the sections based on the differences in toppings.
It is noted the limitation “configured to be uniformly heated by microwave radiation” indicates to one of ordinary skill that the process does not positively require a microwaving step, only that the food product is capable of said feature. Therefore, the limitation “uniformly heated by microwave radiation” is construed to be not required.
Regarding claim 13, the divided food comprises a “core-shell shape” where one divided section 12 surrounds another section 14 (figure 1).
Regarding claim 19, the divided sections would necessarily have different dielectric constants or dielectric loss facts due to their differing composition.
Regarding claims 21-22, the components include water protein carbohydrate and fat as stated for claim 9.
Claims 9, 11-12, 19 and 21-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Elnakib et al. (US 2007/0160715 A1).
Regarding claim 9, the interpretations applied to claim 9 for Adashek above are similarly applied.
Elnakib et al. teaches a food production method (abstract) comprising dividing a single-category food such as pizza dough 14 into two or more parts 20 (figures 7-8; paragraphs 20-21), differentiating components in the parts by adding different toppings to each part (figure 8; paragraph 22), and baking to produce a single-category food (pizza) containing two or more divided sections having different permittivities using two or more parts having different permittivities (figure 1; paragraph 20). The components that affect permittivity include protein and fat e.g., cheese and sausage (paragraph 22). The divided parts would necessarily have different permittivities due to the different toppings used for each part. The toppings are shown to be mixed within the sections (figure 1). The limitation “uniformly heated by microwave radiation” is construed to be not required as explained for Adashek above. Further, one of ordinary skill would have been able to visually “differentiate” the sections based on the differences in toppings.
Regarding claim 11, the divided sections having different permittivities include a layer formed by adjoining one divided section to another at portions 18 (figure 1).
Regarding claim 12, the divided sections having different permittivities include one section 18 (without toppings) interspersed within another divided section 20 (with toppings) (figure 1).
Regarding claim 19, the divided sections would necessarily have different dielectric constants or dielectric loss facts due to their differing composition.
Regarding claims 21-22, the components include water protein carbohydrate and fat as stated for claim 9.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 20, 23 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Elnakib et al. as applied to claim 9 above.
Regarding claim 20, Elnakib et al. does not teach the difference of characteristic value between the divided sections with the lowest and highest dielectric constant or dielectric loss factor is 95% or less of the value of the highest section.
However, the reference teaches varying topping components between sections as state for claim 9, see also figure 1. Absent evidence to the contrary, one of ordinary skill would have reasonably expected the differing compositions to have at least some degree of difference in water, fat, protein and carbohydrate content.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Elnakib et al. to have the claimed feature to provide variations in flavor, texture, and nutritional profile.
Regarding claim 23, the claimed features are directed to an abstract idea capable of being performed in the mind as stated in the rejection under 35 USC 101 above, where measuring is a routine process for data gathering. While Elnakib et al. does not teach the claimed features, the reference does teach wanting variance in toppings between the sections as stated for claim 9.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Elnakib et al. to “design” a structure of the sections as claimed to ensure each section obtains a desired flavor, aroma, texture/mouthfeel, and nutritional profile.
Regarding claim 27, the food product of Elnakib et al. would have necessarily been “a conventionally existing food” or “a new food.”
Claims 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Elnakib et al. as applied to claims 9 and 23 above, and in view of Olver et al. (US 2012/0074122 A1).
Regarding claim 24, Elnakib et al. does not teach evaluation is performed by analyzing the change or movement pattern of the heating spot inside the food.
Olver et al. teaches “hot spots” are known for most ovens, resulting in uneven application of heat, and using targeted temperature monitoring with controllers to actively adjust thermal properties within the oven (paragraph 2). Such a process would necessarily require analysis of the hot spot for changes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Elnakib et al. to evaluate and analyze changes in the hot spot in order to similarly minimize the effect of the hot spot, thereby ensuring optimal cooking/heating conditions throughout the food.
Regarding claims 25-26, Olver et al. as applied to claim 24 teaches analysis of hot spot changes as stated for said claim, which would have necessarily included a number or location of the hot spot. The same combination is applied to claims 25-26 and would have been obvious for the same reasons. The analysis can be performed for convective or radiative heating (paragraphs 51-52 and 55).
Response to Arguments
The amendments to claim 9 necessitated new grounds of rejection under 35 USC 101. The features of said claim were originally rejected under 35 USC 112(b) as being unclear with respect to interpretation of the limitations. The instant amendments provide details that now indicate to one of ordinary skill that the process is directed to an abstract idea without integration into a practical application and resulting in significantly more than the judicial exception. Specifically, the inclusion of “configured to be” now clarifies that “uniformly heated by microwave irradiation” is not required by the process. The amended “differentiating” step, when given its broadest reasonable interpretation, encompasses an abstract idea of an individual visually inspecting a single-category food product having divided sections and mentally determining that there are differences (of toppings) between the sections. The term “producing,” when given its broadest reasonable interpretation, encompasses simply providing the food product present during the “dividing” and “differentiating” steps, without further modification. New claim 23 further justifies the rejection above since the claim as currently drafted also encompasses an abstract idea without integration into a practical application.
Examiner acknowledges applicant does not intend the term “differentiating” to be interpreted as broadly as above. However, the term is not defined by the specification and therefore requires further language to clearly indicate “differentiating” as a physical process that materially affects the single-category food.
Applicant's arguments filed 6/15/2026 have been fully considered but they are not persuasive.
Applicant argues the amended limitation “the component mixed within the two or more…” is not taught by the cited prior art.
This is not persuasive since the references each show the toppings (components) are randomly distributed (construed to be “mixed) within the boundary of each divided section (figure 1).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wendt (US 4,894,503) teaches a package for heating food in a microwave (abstract) comprising selecting materials to control dielectric loss factor (column 2 lines 30-40).
Frank (US 2020/0113192 A1) teaches a single-category food 200 comprising divided section 14 having different components 16-20 (figure 2). The components include foods known to have different amounts of water, salt, protein, carbohydrate and fat (paragraph 38).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.K/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
Prosecution Insights