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 § 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.
Claim 21 is 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 21, claim 21 recites “the sterilized raw ingredient” in line 4. There is insufficient antecedent basis for this limitation in the claim. It is noted that the claim recites “sterilizing raw ingredients”.
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.
Claim(s) 1-5, 7-8, 10, 12-16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Mukai JP H09187238A (Espacenet Translation and Google Patents Translation) in view of Fukushima US 2009/0186140 in view of Oku US 2006/0148757 in view of Taguchi JP H09165018A (Translation).
Regarding claims 1 and 2, Mukai discloses a method for preparing instant cooked grain comprising: sterilizing raw ingredients filled in a container under the condition of F0 value of 4 or higher (see google patents translation Pg. 4, line 24 “F value: 8 or more”), wherein the raw ingredients comprise a grain, adding sterilized water to the sterilized raw ingredients, sealing a container added with the water and heating the sealed container at a temperature of 100 °C to 110 °C for 20 minutes (Espacenet Translation [0011]).
Claim 1 differs from Mukai in the recitation that the raw ingredients comprise at least one selected from the groups of beans, mushrooms, root and tuber crops, bulbs, seasoned vegetables fruits/seeds, meats, fishes and egg.
However, it is noted that Mukai discloses that the invention is also applicable to gomoku rice (see google patents translation Pg 4, lines 29-31), and gomoku rice is rice which contains additional ingredients, see for example Fukushima US 2009/0186140 [0063] recites “Gomoku Gohan (seasoned rice cooked with ingredients)”, see also Oku US 2006/0148757 discloses that “gomoku-gohan” is a boiled rice mixed with fish and vegetables ([0108]). Therefore, it would have been obvious to modify the embodiment directed to rice of Mukai such that the raw ingredients comprise rice and additional ingredients, such additional ingredients including fish and vegetables, since Mukai discloses that the invention is applicable to gomoku rice.
Additionally, it is noted that as discussed above gomoku rice can be considered generically rice with additional ingredients. Taguchi discloses that food to be packaged and sterilized includes rice, soybeans and mushrooms (Translation pg. 3, paragraph 6). It would have been obvious to one of ordinary skill in the art to modify the raw ingredients of Mukai to comprise soybeans and/ or mushrooms based on desired taste and nutrition of the product and in order to enhance the flavor and nutrition of the rice product of Mukai.
Regarding claim 3, Mukai discloses that the grains comprise white rice (Espacenet Translation [0001], [0032]).
Regarding claim 4, since claim 4 is further limiting an optional limitation of claim 2, the limitation of claim 4 is also optional. “Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation” (MPEP 2143.03)
Regarding claim 5, since claim 5 is further limiting an optional limitation of claim 2, the limitation of claim 5 is also optional. “Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation” (MPEP 2143.03).
Regarding claim 7, Mukai discloses that the sterilizing step is vacuum pressurized steam sterilization (steam sterilization treatment using steam at a predetermined temperature under vacuum deaeration for a predetermined time in a steaming tank) (‘238, Espacenet Translation [0011], [0007]).
Regarding claim 8, Mukai discloses that the sterilizing step is performed with steam at 130 C° for 4 to 7 minutes (‘238, Espacenet Translation [0011], [0029]).
Regarding claim 10, Mukai discloses immersing the raw ingredients in water before filling the raw ingredients in the container (rice is washed in washer/soaked in water) (‘238, Espacenet Translation [0011], [0013], [0015]).
Regarding claim 12, Since Mukai only discloses performing the sterilizing and heating steps recited in claim 1 and does not teach an additional cooking step (‘238, Espacenet Translation [0011]) Mukai is seen to teach that the method does not include any cooking of the sterilized raw ingredients after the heating step.
Regarding claim 13, because Mukai does not disclose applying a heating step after the sterilizing step and prior to the sealing step, Mukai obviously teaches that heat of 90 °C or higher is not applied to the ingredients and water in the container before the sealing step after the sterilizing step (‘238, Espacenet Translation [0011], [0029]).
Regarding claim 14, since Mukai does not disclose a heating step in between the sterilizing and sealing step, a temperature of the ingredients and water in the container of lower than 89 °C is obviously maintained (‘238, Espacenet Translation [0011], [0029]). In the event Mukai could be considered as differing from claim 14, it is noted that Mukai discloses that it is desirable to reduce the heat load applied to the product, and therefore outside of the desired heating steps, it would have been obvious to maintain the temperature of the product below 89 °C in order to avoid adding additional unnecessary heat load (‘238, Espacenet Translation [0034]).
Regarding claim 15, claim 15 differs from Mukai in the recitation that Mukai specifically discloses that the number of microorganisms in the raw ingredients measured after the heating step is 0 cfu/ml, however since Mukai teaches performing a substantially identical process to the claimed process, and where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties are presumed to be inherent (MPEP 2112.01), the claimed property is presumed to be inherent to the product obtained by the process of Mukai.
Regarding claim 16, Mukai discloses an instant cooked grain prepared by the preparing method of claim 1 (‘238, Espacenet Translation [0011]) (see google translation Pg. 4, line 24). It is noted that claim 16 is a product by process claim and “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (MPEP 2113.I).
Regarding claim 21, Mukai discloses a method for preparing an instant cooked grain comprising: sterilizing raw ingredients filled in a container under the condition of F0 value of 4 or higher (see google patents translation Pg. 4, line 24 “F value: 8 or more”), wherein the raw ingredients comprise a grain (rice), adding sterilized water to the sterilized raw ingredients, sealing a container added with the water and heating the sealed container at a temperature of 100 °C to 110 °C for 20 minutes (Espacenet Translation [0011]), overlapping the claimed ranges (MPEP 2144.05). Mukai discloses that the sterilizing raw ingredients step is performed with steam at a predetermined temperature (e.g. 130 °C) for a predetermined time (e.g. for 4 to 7 minutes). It is noted that it is well known in the art that the time and temperature of sterilization can be varied based on desired degree of sterilization and quality of the end product. It would have been obvious to one of ordinary skill in the art to routinely adjust the sterilization time and temperature based on sterilization degree and desired quality and processing time (MPEP 2144.05).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Mukai JP H09187238A (Espacenet Translation and Google Patents Translation) in view of Fukushima US 2009/0186140 in view of Oku US 2006/0148757 in view of Taguchi JP H09165018A (Translation) in view of Lee US 2008/0138494.
Regarding claim 9, claim 9 differs from Mukai in the recitation that the sterilizing step is performed by repeatedly contacting the raw ingredients 5 to 10 times with steam at 140°C to 155°C for 3 seconds to 10 seconds.
Lee discloses a known sterilization method for rice includes sterilizing with steam at 140-143 °C for 4.5 seconds, 7 times ([0034]). It would have been obvious to one of ordinary skill in the art to modify the sterilizing step of Mukai to be performed by sterilizing with steam at 140-143 °C for 4.5 seconds, 7 times as taught by Lee in order to suitably prepare sterilized rice. It has been held that “Simple substitution of one known element for another to obtain predictable results” supports a conclusion of obviousness (MPEP 2143.I.B).
Claims 11 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Mukai JP H09187238A (Espacenet Translation and Google Patents Translation) in view of Fukushima US 2009/0186140 in view of Oku US 2006/0148757 in view of Taguchi JP H09165018A (Translation) in view of Pang US 2021/0388392 in view of Fuhrmann et al. US 2003/0198729 in view of Jensen US 5,727,452.
Regarding claim 11, claim 11 differs from Mukai in the recitation that in the adding of the sterilized water, the sterilization is performed for 6 to 8 minutes by directly spraying steam at 130 °C to 140 °C to the water.
Pang discloses that water can be sterilized with steam sterilization under 121 °C for 20 minutes ([0048]).
Fuhrmann discloses a sterilization process of food products includes heating using direct injection of food quality steam to a temperature in the range of 125 °C to 135 °C and holding that temperature for 2 to 8 minutes ([0056]).
Jensen discloses that a steam injector is used for spraying steam (col. 1, lines 29-31)
It is noted that it is well known in the art that the time and temperature of sterilization can be varied based on desired degree of sterilization. Based on the prior art as a whole, it would have been obvious to one of ordinary skill in the art to modify Mukai such that the sterilization of the water is carried out by directly spraying steam to the water as taught by Pang, Fuhrmann and Jensen, thereby utilizing a known applying a known technique to a known device (method, or product) ready for improvement to yield predictable results (MPEP 2143.I.D). Additionally, it would have been obvious to one of ordinary skill in the art to routinely adjust the time of sterilization and temperature of the steam based on desired degree of sterilization (MPEP 2144.05.I.II).
Regarding claim 18, claim 18 is rejected for the same reasons given above as for claim 11.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Mukai JP H09187238A (Espacenet Translation and Google Patents Translation) in view of Fukushima US 2009/0186140 in view of Oku US 2006/0148757 in view of Taguchi JP H09165018A (Translation) in view of Takeshi JP H099937 in view of Lee US 2004/0071850.
Regarding claim 17, Mukai teaches that the sterilizing step comprises placing the raw ingredients in a vacuum pressurized sterilizer, reducing the pressure in the vacuum pressurized sterilizer and sterilizing the raw ingredients with steam (Espacenet Translation [0011])
Claim 17 differs from Mukai in the recitation that the method specifically includes vacuum cooling after an interior of the vacuum pressurized sterilizer is made in the vacuum state.
Takeshi discloses it was a known technique in the art to subject food to a cooling step after subjecting the food to vacuum sterilization (Espacenet Translation, Abstract, [0018], [0019])
Lee teaches it was a known technique to cool food by vacuum cooling ([0018]).
Based on the teachings of the art as a whole it would have been obvious to modify Mukai such that the method specifically includes vacuum cooling after an interior of the vacuum pressurized sterilizer is made in the vacuum state as suggested by Takeshi and Lee, since it has been held that “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” and “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A,D).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mukai JP H09187238A (Espacenet Translation and Google Patents Translation) in view of Fukushima US 2009/0186140 in view of Oku US 2006/0148757 in view of Taguchi JP H09165018A (Translation) in view of Watabe JP 2012105600A (Espacenet Translation).
Regarding claim 19, Mukai discloses sterilizing raw ingredients filled in a container under the condition of F0 value of 8 (see google patents translation Pg. 4, line 24 “F value: 8 or more”), merely close to the claimed “F0 below 8” (MPEP 2144.05). It is noted that Mukai discloses that the F value is defined as the degree of sterilization at which Clostridium botulinum is killed when it is 4, and the higher the value the better the sterilization degree (Espacenet Translation). Additionally, Watabe discloses that an F value of 4 or higher is suitable for sterilizing food and to maintain a sterile state and an F value of 25 of lower is preferable from the perspective of quality ([0080]-[0081]). It would have been obvious to one of ordinary skill in the art to modify Mukai such that the sterilizing raw ingredients filled in a container under the condition of F0 value of 4 or higher and below 8 as suggested by Watabe based on desired sterility and quality.
Regarding claim 20, Mukai discloses sterilizing raw ingredients filled in a container under the condition of F0 value of 8 (see google patents translation Pg. 4, line 24 “F value: 8 or more”), merely close to the claimed “F0 below 7” (MPEP 2144.05.I). It is noted that Mukai discloses that the F value is defined as the degree of sterilization at which Clostridium botulinum is killed when it is 4, and the higher the value the better the sterilization degree (Espacenet Translation). Additionally, Watabe discloses that an F value of 4 or higher is suitable for sterilizing food and to maintain a sterile state and an F value of 25 of lower is preferable from the perspective of quality ([0080]-[0081]). It would have been obvious to one of ordinary skill in the art to modify Mukai such that the sterilizing raw ingredients filled in a container under the condition of F0 value of 4 or higher and below 8 as suggested by Watabe based on desired sterility and quality.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered, and Taguchi was additionally brought to teach the newly added limitations.
On Pg. 5 of the remarks Applicant argues that Mukai discloses using grains as the only raw ingredient and does not teach raw ingredients other than grain.
After further review of the Mukai Translations, it is noted that Mukai discloses that while the discussed embodiment is directed to white rice, that the invention is also applicable to gomoku rice (see google patents translation Pg 4, lines 29-31). Gomoku rice is rice which contains additional ingredients, see for example Fukushima US 2009/0186140 [0063] recites “Gomoku Gohan (seasoned rice cooked with ingredients)”, see also Oku US 2006/0148757 discloses that “gomoku-gohan” is a boiled rice mixed with fish and vegetables ([0108]). Therefore, Mukai suggests that the product can include ingredients in addition to the rice.
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.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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