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 .
Specification
The disclosure is objected to because of the following informalities: the first paragraph of the specification should include the priority applications, and the specification lacks headings such as “Brief Description of the Drawings”.
Also, the amendment to the specification of 3/5/26 is unclear as it refers to “paragraph nos.” whereas the filed specification of 10/18/23 lacks paragraph numbers. It is not clear where these changes should be placed in the specification.
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 1-12 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors.
Claim 1 recites “providing a source of a frozen confection”. It is not clear if this is an active step of supplying material to the chamber, or simply “providing” a tank or container of material. It is not clear if a valve, pump, or some other similar structure is required, or not. Claim 2 recites “the source of frozen confection is stopped before or during the second extrusion step”. Parent claim 1 recites “a second extrusion step of moving the nozzle”. It is not clear if frozen confection is actually extruded from the nozzle during the second extrusion step, or whether the nozzle moves upward without frozen confection leaving the nozzle. It is not clear if stationary extrusion from the nozzle, followed by non-extrusion upward retraction, would satisfy these claims.
Claim 4 recites ‘the speed of the nozzle is increased during the second step”. It is not clear what speed it is being compared to. It is not clear which movement is being described. The first extrusion step can occur with “zero” speed, so would ANY upward speed be at an “increased” level?
Regarding claims 7-8, the phrases "such as" and “preferably” render the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 10 recites “the speed of the nozzle when moving”. It is not clear what point in time this occurs. It is not clear if this is describing the upward movement, downward movement, the first extrusion step, the second extrusion step, or some other movement.
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.
Claims 1, 5-12 are rejected under 35 U.S.C. 103 as being unpatentable over Binley et al [Pat. No. 9,392,809B2] in view of Cummings [Pat. No. 2,925,102].
Binley et al teach a method for preparing frozen confectionary products (title) comprising a means for supplying frozen confection to a nozzle (column 1, line 45; Figure 2), the nozzle including a chamber and extrusion plate with concentric and arcuate apertures (column 1, lines 57-60; Figure 1-2), the apertures having a width of 1-5 mm and a length of at least 10 mm (column 1, lines 61-62), extruding frozen confection through the apertures as the nozzle moves upward (column 1, lines 63-66), stopping extrusion (column 1, line 67), the apertures being arcuate (Figure 2), extrusion into a receptacle such as a cone (column 2, line 5), forcing gas from opening between the apertures (Figure 2, #1; column 2, lines 56-66), and a temperature of -5C or below (column 2, line 53).
Binley et al do not explicitly recite extruding while the nozzle has zero or a vertical downward movement (claim 1), and a nozzle speed of 0.5-3 m/s (claim 10).
Cummings et al teach a method for extruding ice cream (column 1, line 14) comprising a cone receptacle (Figure 3-8, #60, 62), an extrusion nozzle (Figure 3-8, #40), moving the nozzle in a downward movement while also extruding ice cream into the cone (Figure 3, #40; column 3, line 57-65).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed downward movement and extrusion into the invention of Binley et al, in view of Cummings, since both are directed to methods of extruding ice cream, since Binley et al already included a nozzle which moved vertically during extrusion into a cone but simply did not mention when the extrusion began, since ice cream cone filling systems commonly included moving the nozzle in a downward movement while also extruding ice cream into the cone (Figure 3, #40; column 3, line 57-65) as shown by Cummings, since the downward movement extrusion provided batter filling of the cone bottom by pushing out the air and removing air pockets (column 1, line 65), since the claimed nozzle movements would have been used during the course of normal experimentation and optimization procedures to achieve to provide increased/decreased filling and decorative surface effects in the system of Binley et al, in view of Cummings; and since beginning the extrusion as the nozzle initially descends would have provided a shorter depositing time and thus an increased production rate in the method of Binley et al, in view of Cummings.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed movement speed into the invention of Binley et al, in view of Cummings, since both are directed to methods of extruding ice cream, since Binley et al already included vertically movable nozzle but simply did not mention a speed, and since the claimed speed would have been used during the course of normal experimentation and optimization procedures due to factors such as the type of confection, the size of the container, the desired time of completion, and/or the temperature and flowability properties of the confection of Binley et al, in view of Cummings.
In conclusion, all of the claimed movements were known in the prior art and one skilled in the art could combined them as claimed with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Binley et al, in view of Cummings, as applied above, and further in view of Beuchert et al [US 2016/0021911A1] and Hulse [Pat. No. 3,166,025].
Binley et al and Cummings teach the above mentioned concepts. Binley et al do not explicitly recite stopping supply before or during the upward movement (claim 2-3), increasing speed during the nozzle upward movement (claim 4), and a nozzle speed of 0.5-3 m/s (claim 10).
Beuchert et al teach a method for filling confectionary product into a container (title) comprising an extrusion nozzle with a chamber (Figure 1, #2, 15’, 15”), a container (Figure 1, #12), a source of ice cream (paragraph 0031; Figure 1, #8’, 8”), lowering the nozzle into the container (Figure 1-2, #2, 12, A; paragraph 0042), initially supplying ice cream into the container from the nozzle after it has been placed in the container (paragraph 0042), upward movement of the nozzle during filling of the container (paragraph 0043), the upward movement occurring in either continuous or stepwise manner (paragraph 0045), briefly stopping supply of ice cream during dosing to provide varied patterns (paragraph 0036), and stopping supply of ice cream when finished by a short re-suction (paragraph 0048).
Hulse teaches an automatic ice cream depositing machine (title) comprising a container (Figure 11, D), ice cream nozzles (Figure 11, #1-2), a source of ice cream (Figure 5, G), moving the nozzles vertically downward into the container (Figure 11-12), subsequently opening a valve to begin extruding ice cream into the container (Figure 5, #31; Figure 13; column 4, lines 30), subsequently moving the nozzles vertically upward while still extruding ice cream (Figure 13; column 4, line 47-54), subsequently closing the valve and stopping supply of ice cream (column 4, line 55-64), and then rapidly elevating the nozzles out of the container to create a sharp break or separation of the ice cream (Figure 14; column 4, lines 65-71).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed stop time and increased speed into the invention of Binley et al, in view of Cummings, Beuchert et al, and Hulse; since all are directed to systems for extruding frozen confections, since Binley et al already included extruding frozen confection through the apertures as the nozzle moves upward (column 1, lines 63-66) and stopping extrusion (column 1, line 67) but simply did not mention when the stop occurred, since ice cream systems commonly included briefly stopping supply of ice cream during dosing to provide varied patterns (paragraph 0036) and stopping supply of ice cream when finished by a short re-suction (paragraph 0048) as shown by Beuchert et al, since ice cream systems also commonly included moving the nozzles vertically upward while still extruding ice cream (Figure 13; column 4, line 47-54), subsequently closing the valve and stopping supply of ice cream (column 4, line 55-64), and then rapidly elevating the nozzles out of the container to create a sharp break or separation of the ice cream (Figure 14; column 4, lines 65-71) as shown by Hulse; since stopping the supply during extrusion in combination with an increased upward speed of the nozzle would have provided a clean break and thus no tail on the top surface of the ice cream of Binley et al, in view of Cummings, Beuchert et al, and Hulse.
Response to Arguments
Applicant's arguments filed 3/5/26 have been fully considered but they are not persuasive.
Applicant argues that the claims are definite. However, the claim language is confusing and indefinite for the following reasons: Claim 1 recites “providing a source of a frozen confection”. It is not clear if this is an active step of supplying material to the chamber, or simply “providing” a tank or container of material. It is not clear if a valve or some other similar structure is required, or not. Claim 2 recites “the source of frozen confection is stopped before or during the second extrusion step”. Parent claim 1 recites “a second extrusion step of moving the nozzle”. It is not clear if frozen confection is actually extruded from the nozzle during the second extrusion step, or whether the nozzle moves upward without frozen confection leaving the nozzle. It is not clear if stationary extrusion from the nozzle, followed by non-extrusion upward retraction, would satisfy these claims. Claim 4 recites ‘the speed of the nozzle is increased during the second step”. It is not clear what speed it is being compared to. The first extrusion step can occur with “zero” speed, so would ANY upward speed be at an “increased” level? Regarding claims 7-8, the phrases "such as" and “preferably” render the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Claim 10 recites “the speed of the nozzle when moving”. It is not clear what point in time this occurs. It is not clear if this is describing the upward movement, downward movement, the first extrusion step, the second extrusion step, or some other movement. Clearly, applicant should amend the above claim language to eliminate any confusion.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). 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 response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it would have been obvious to one of ordinary skill in the art to incorporate the claimed downward movement and extrusion into the invention of Binley et al, in view of Cummings, since both are directed to methods of extruding ice cream, since Binley et al already included a nozzle which moved vertically during extrusion into a cone but simply did not mention when the extrusion began, since ice cream cone filling systems commonly included moving the nozzle in a downward movement while also extruding ice cream into the cone (Figure 3, #40; column 3, line 57-65) as shown by Cummings, since the downward movement extrusion provided batter filling of the cone bottom by pushing out the air and removing air pockets (column 1, line 65), since the claimed nozzle movements would have been used during the course of normal experimentation and optimization procedures to achieve to provide increased/decreased filling and decorative surface effects in the system of Binley et al, in view of Cummings; and since beginning the extrusion as the nozzle initially descends would have provided a shorter depositing time and thus an increased production rate in the method of Binley et al, in view of Cummings.
Applicant appears to argue that Binley et al would not want complete filling of the bottom of the container due to the use of decorative effects at the top of the confection without providing any evidence from Binley et al. One of ordinary skill in the art would understand that the extrusion conditions used for filling the container bottom do not have to be the same extrusion conditions used for providing decorative surface effects at the top of the container.
It is further noted that applicant has failed to provide any evidence of unexpected/unpredicted results which would result from the claimed nozzle movements.
Conclusion
THIS ACTION IS MADE FINAL. 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 DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
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/DREW E BECKER/Primary Examiner, Art Unit 1792