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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 6/29/26 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-14 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites a “transition extrusion step…throughout a transition between the first extrusion step and the second extrusion step”. However, this concept does not appear to be disclosed in the application.
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 1-14 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.
Claims 1, 5-6, 11-12 recite the limitation "the apertures". There is insufficient antecedent basis for this limitation in the claim. Parent claim 1 recites “one or more apertures”, as well as “the apertures”. It is not clear how many aperture(s) are required.
Claim 1 recites a “first extrusion step” and “second extrusion step”, as well as a “transition extrusion step” between the first and second. It is not clear when the various extrusion steps occur. The first extrusion step can occur when the nozzle has “zero” movement or is moving in the extrusion direction, while the second extrusion step occurs when the nozzle is moving opposite the extrusion direction. It is not clear if the transition step must also occur during the “zero” movement time, or not. It is not clear how one would differentiate between the three extrusion steps, when exactly they would occur, or what their movement direction would be (if any).
Claims 2-3 recite the limitation "the source of frozen confection". There is insufficient antecedent basis for this limitation in the claims. It is not clear if these claims are describing a halt in extrusion, or simply a halt in the source (eg a pump or valve). These claims also appear to contradict parent claim 1 which appears to require constant extrusion during all three extrusion steps.
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 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Sutton et al [WO 88/02990) in view of Binley et al [US 9,392,809].
Sutton et al teach a method for making frozen confection (title) by supplying frozen confection to a nozzle chamber with an aperture positioned above a cone (Figure 3, #20; page 8, lines 14-17), then lowering the nozzle down into the cone (Figure 3, #20-21, 11; page 8, lines 17-19), then a first extrusion of frozen confection into the cone (Figure 3, #12; page 8, lines 19-23), then transition and second extrusion steps of the frozen confection while raising the nozzle out of the cone (Figure 4, #20; page 8, line 23 to page 9, line 5), stopping the flow of frozen confection during the second extrusion step (page 9, line 8), raising the nozzle abruptly upward to separate the frozen confection (page 9, line 9), and an extrusion temperature of 17-23F or -8 to -5C (page 9, 2nd paragraph).
Sutton et al do not explicitly recite an extrusion plate with apertures 1-5mm wide and at least 10mm long (claim 1), a width of 2-4mm (claim 5), arcuate apertures (claim 6), gas openings (claim 8), a speed of 0.5-3 m/s (claim 10), a width of about 3mm (claim 11), concentric apertures (claim 12), the gas is air (claim 14).
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).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed plate, aperture features, and gas openings into the invention of Sutton et al, in view of Binley et al, since both are directed to methods of extruding frozen confection, since Sutton et al already included a nozzle with an aperture, since ice cream systems commonly included a 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), and forcing gas from opening between the apertures (Figure 2, #1; column 2, lines 56-66) as shown by Binley et al; since the extrusion plate features of Binley et al enabled the creation of ice cream cones with a delicate and intricate top surface decorations with fine details (Figure 3-4), and since these delicate and intricate features would have provided increased consumer appeal for the products of Sutton et al, in view of Binley et al.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed speed into the invention of Sutton et al, in view of Binley et al, since both are directed to methods of extruding frozen confections, since Sutton et al and Binley et al both already included movement of the nozzle but simply did not mention any particular 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 ice cream temperature and viscosity, the size of the nozzle and cone, and/or desired shape of the ice cream in the cone of the combined method of Sutton et al, in view of Binley et al.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Erickson teaches ice cream material entering a nozzle chamber, lowering the nozzle into a container, extruding the material as the nozzle rises out of the container (Figure 7-9).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-14 have been considered but are moot because the new ground of rejection does not rely on the same references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., continuous extrusion through the first, transition, and second steps; stretching and controlled tapering during the second step; an absence of deformation during the first step) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues that the previous references did not disclose continuous extrusion through a first, transition, and second extrusion steps. However, this concept is disclosed by the new reference of Sutton et al as described above.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DREW E BECKER/Primary Examiner, Art Unit 1792
Prosecution Insights