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 .
Response to Amendment
Those objections and rejections that have not been repeated in this Office Action have been withdrawn.
Claims 1-8, 11, 12, 14-23 are currently pending and rejected.
Claim Objections
Claims 1 and 12 are objected to because of the following informalities:
Claim 1, line 8 recites, “other than rice.” For matters of form, this limitation should be amended to recite, “other than the rice.”
Claims 1, 4, 11, 16, 18 and 19 recite the term, “the sauces.” For matters of form, this limitation should be amended to recite, “the sauce.”
Claim 12 recites, “wherein the instant rice consists of the container and Yakbab.” For matters of form, this limitation should be amended to recite, “wherein the instant rice consists of the container and the Yakbab.
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 1-8, 11, 12, 14-23 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.
Claim 1 recites the limitation, “the raw ingredients” on line 5, which lacks proper antecedent basis. It is not clear whether “the raw ingredients” is intending to refer to “the at least one raw ingredient selected from the group consisting of…” as recited on lines 3-4, or some other raw ingredients.
Claim 1 recites the limitation, “sterilized sauces” on lines 6-7. It is not clear whether “sterilized sauces” is intending to refer to “sauces” as already recited on line 3 or some other sauces.
Claim 1 recites, “wherein raw ingredients other than rice” on line 8. It is not clear whether this is intending to refer to any ingredient in the container other than the rice, or whether this is intending to refer to “the at least one raw ingredient selected from the group consisting of jujubes, nuts and raisins.”
Claim 1 is also not clear because the claim refers to the ingredients other than rice being present at 5-20 parts by weight based on 100 parts by weight of the contents in the container, but then recites that nuts (which would have been an ingredient other than rice) is present at 7-18 parts based on 100 parts by weight of the contents. Therefore, the claim is reciting a broad and narrow range within the same claim. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 1 recites “based on 100 parts by weight of contents contained in the container” on lines 9-10. This limitation is not clear as to what “contents” are being referred to. That is, it is not clear whether this is referring to the Yakbab comprising the rice, the sauce and the at least one raw ingredient selected from the group consisting of jujubes, nuts and raisins” or some other heretofore unrecited contents.
Claim 1 recites the limitation, “the container” on lines 10, 13 and 18. Claim 8, 12 and 22 also recite, “the container.” This limitation lacks proper antecedent basis because it is not clear whether this recitation is referring to “a container” as recited on line 2 of claim 1 or whether it is referring to “the sealed container” as recited on line 7.
Claims 5, 6 and 17 recite “based on 100 parts by weight of contents when preparing the instant rice.” This limitation is not clear as to what “contents” are being referred to. That is, it is not clear whether this is referring to the Yakbab comprising the rice, the sauces and the at least one raw ingredient selected from the group consisting of jujubes, nuts and raisins” or some other heretofore unrecited contents.
Claim 14 recites, “wherein the instant rice is prepared by heating the sealed container to a temperature of 90°C to 125°C for 10 minutes to 25 minutes.” In light of claim 1, line 7 reciting, “heating the sealed container,” it is not clear if claim 14 is intending to further limit the claim 1 limitation or whether claim 14 is intending to refer to another heating step.
Claims 1, 4, 11, 16, 18 and 19 recite the term, “the sauces.” This limitation lacks proper antecedent basis because it is not clear whether it is referring to “sauces” as recited on claim 1 line 3 or “sterilized sauces” as recited on claim 1, lines 6-7.
Claim 21 recites the limitation, “the only nut” which lacks proper antecedent basis.
Claim 22 recites, “the contents” on line 2, which lacks proper antecedent basis.
Claims 2-8, 11, 12 and 14-23 are rejected based on their dependence to a rejected claim.
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.
Claims 1-4, 8, 12, 14-16 and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR 20010079456) in view of Kim (KR 20090076465, i.e. Kim465).
A machine translation has been relied on for Kim (KR 20010079456) and Kim (KR 20090076465) both of which are of record.
Regarding claim 1, Kim teaches an instant rice (see page 4 of the machine translation, first paragraph which discloses reheating in a microwave oven), comprising a container (see page 3, 3rd paragraph, “molding container”; see page 3, 6th paragraph of the machine translation, “packaging under aseptic condition”) and a Yakbab comprising rice, sauces and jujubes and nuts such as pine nuts (see page 3, 5th paragraph which discloses pine nuts and jujube seed as well as chestnuts).
Kim further teaches that raw ingredients other than rice are contained in an amount of 5 parts by weight to 20 parts by weight based on 100 parts by weight of contents contained in the container. For example, on page 1, the translation discloses that chestnuts, pine nuts, ginko, ginseng and jujube can be included at a minimum of 8% based on 100 percent by weight of the contents. See also the Espacenet translation of the abstract on the last page. Kim also teaches that the rice can comprise 60% rice, 5% chestnut, 1% pine nut, 1% ginko, 1% ginseng and 5% jujube (see claim 1), and therefore teaches that the total of the ingredients “other than rice” can be 13%. Kim teaches that the total of chestnut and pine nut can be 10% (i.e. 5% chestnut and 5% pine nut) and therefore teaches that in the case that the raw ingredient comprises the nuts, the nuts are contained in an amount that falls within the range of the nuts being present at 7-18 parts based on 100 parts of the contents (see the Espacenet translation of the abstract on the last page). It is noted that the claim does not require the presence of “the nuts” since the claim recite, “wherein in the case the raw ingredient comprises the nuts”
Regarding the limitation of, “wherein the instant rice is prepared by sterilizing the raw ingredients contained in the container under the condition of a F0 value of 4 or higher; adding sterilized sauces to the container; sealing the container added with the sterilized sauces and heating the sealed container,” and “the number of microorganisms in the instant rice is 0 CFU/ml when measured at 9 months or less after the preparation of the instant rice,” it is initially noted that the claims are directed to the product and not the method of making the products. Therefore, patentability of a product does not depend on its method of production, such that if the claimed product is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process (see MPEP 2113(I)). In view of this, the implied product is a sealed container that has been heated and which comprises sterilized raw ingredients and sterilized sauce.
Nonetheless, it is noted that Kim teaches that sauce can be sterilized and then supplied to the rice (see page 3,5th paragraph, “the cooking sauce solution supplied from the outside of the process is HTST sterilized…and stored in a sterile storage tank”). The sauce, raw ingredient and rice are filled into the container, sterilized and aseptically packaged (see at least page 3, 3rd paragraph which discloses pressure sterilization; see also page 3, 5th paragraph, which also teaches pressure sterilization of the contents within the container at 121-141°C for 1-6 minutes. These sterilization conditions are seen to encompass the claimed F0 of 4 or higher because Applicant’s specification at paragraph 49 indicates that heat corresponding to 121.1°C and 1 minute equate to an F0 of 1 and Kim teaches for example, 121°C for 6 minutes, which would therefore equate to an F0 of about 6. Kim also teaches for example, sterilization at 141°C for 6 minutes which would also have been reasonably construed to have an F0 value of 4 or greater. Kim also teaches that there no microorganisms (see page 3 of the translation below “microbiological testing” and the table at paragraph 49 of the publication, where the middle column of each example is the total bacterial count which is zero after 90 days) and is therefore seen to read on 0 CFU/ml for less than 9 months after preparing the instant rice. Kim further teaches heating the sealed container, (see page 3, 4th paragraph, “after sealing, the is sprinkled with coolant…It is then steamed for 5 to 10 minutes”).
Regarding the limitation of, “wherein a deviation in the hardness or elasticity measured for three or more samples of the instant rice is 10 or less and the hardness or elasticity is measured by measuring the physical properties of the rice in the Yakbab included in the container using a texture analyzer after heating the instant rice in a 700 W microwave for 1 to 3 minutes,” it is noted that the prior art is teaching and suggesting a packaged product with a similar composition as claimed, and using similar sterilization techniques. Therefore, it would have been reasonable for one having ordinary skill in the art to have expected that a subsequent treatment in a 700 W microwave for 1-3 minutes would have provided a similar result.
Further regarding a deviation a hardness or elasticity, it is noted that Kim465 teaches that it has been desirable to control properties of an instant rice, such as hardness (see at least the abstract and pages 16-17 of the machine translation, directed to figure 6). Kim also teaches that the rice is mixed with all the components (see page 3, 7th paragraph, “mixed to coat the surface of the rice grains”). Therefore, it would have been obvious to one having ordinary skill in the art to have accordingly have controlled the hardness of the instant rice commensurate with the amount of hardness desired for the instant rice, such that the rice remained consistent in its properties.
Regarding claim 2, Kim discloses that the rice can comprise glutinous rice (see the abstract and at least, page 2, paragraph 11, “glutinous rice”).
Regarding claim 3, it is initially noted that since the claim recites, “wherein in the case the raw ingredient comprises the nuts” that the claims do not require the presence of nuts. Nonetheless, Kim discloses that the nuts can comprise chestnuts and pine nuts (see page 1, claim 1 of the machine translation).
Regarding claim 4, Kim discloses that the sauces can comprise soy sauce (see page 1 of the machine translation, claim 1).
Regarding claim 8, which recites that the instant rice is heated in a 700 W microwave for 1 minute to 3 minutes, and then has one or more of following physical properties of the rice in the Yakbab contained in the container measured using a physical property analyzer:(i) hardness of 15 to 35;(ii) elasticity of 40 to 60;(iii) adhesiveness of 25 to 40; and(iv) glutinousness of 65 to 105, it is noted that this is an intended use of the claimed instant rice. Therefore, as the prior art is teaching an instant rice with the composition as recited in claim 1, the prior art would also have been reasonably expected to have achieved similar properties, dependent on how the instant rice was subsequently heated. It is further noted that Kim465 teaches that it has been desirable to control properties of an instant rice, such as hardness (see at least the abstract and pages 16-17 of the machine translation, directed to figure 6). Therefore, it would have been obvious to one having ordinary skill in the art to have accordingly have controlled the hardness of the instant rice commensurate with the amount of hardness desired for the instant rice.
Regarding claim 12, Kim can be construed as disclosing that the instant rice consists of the container and the Yakbab.
Regarding claims 14-16 and 18, it is initially noted that the claims are directed to the product and not the method of making the product. Therefore, claims 14-16 are directed to a product by process limitation and in this regard, product by process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps (see MPEP 2113). In view of this, the structure implied by claims 14, 16 and 18 would have been that the instant rice and the sauce have been sterilized. The structure implied by claim 15 is that the instant rice is heated to some degree.
Regarding claim 14, it is noted that the claim does not specify if this is the same “heating the sealed container” as newly presented in claim 1, line 7. In view of this, claim 14 can be construed as reading on a separate step of heating of the sealed container. Nonetheless, it is noted that the claim is directed to the product and not the method of making the product such that the product as suggested by Kim is seen to be similar to the claimed product because Kim already teaches a sealed container comprising a Yakbab that comprises rice, sauce and nuts and which sealed container has been heated. Kim also teaches similar amounts of raw ingredients and nuts as recited in claim 1. It is further noted that on page 3, 4th paragraph, Kim teaches heating the sealed container for 5-10 minutes with steam (see page 3, 4th paragraph which discloses, “After sealing, the product is sprinkled with coolant and discharged to reduce the internal pressure of the package. It is then steamed for 5-10 minutes”). Kim also teaches that steam treatment can be at 115°C (see page 3, 3rd paragraph) and is therefore teaching and suggesting a steam treatment of the sealed container for 10 minutes at 115°C and is teaching a product that is similar to that implied by the claim. It is noted that paragraph 83 of Applicant’s specification as filed also appears to heat after sealing using a temperature of 115°C.
Regarding claim 15, Kim teaches that after sterilizing the product is sealed and then steamed for 5-10 minutes (see page 3, 4th paragraph which discloses, “After sealing, the product is sprinkled with coolant and discharged to reduce the internal pressure of the package. It is then steamed for 5-10 minutes”). In view of this, Kim is teaching and suggesting that additional heating would have occurred after the sealing, and not between the sterilizing and the sealing. It is further noted however, that since the claim is directed to the product and not the method of making the product, the prior art is teaching and suggesting a product that would have been substantially similar to the claimed product, especially as Kim suggests the sealed instant rice product as recited in claim 1.
Regarding claim 16, Kim teaches that the sauce has been sterilized in a separate high temperature short time sterilization at 131-141°C and then stored in a sterile storage tank (see page 3, 5th paragraph of the machine translation). Since the claim is directed to the product and not the method of making the product, the prior art is seen to teach and suggest a substantially similar sterilized sauce, since the product implied by the claim is a sterilized sauce.
Regarding claim 18, it is noted that Kim already teaches using high temperature short time sterilization of 1-4 seconds at 131-141°C (see page 3, 5th paragraph). Since the claim is directed to the product and not the method of making the product, the prior art is seen to teach and suggest a substantially similar sterilized sauce, since the product implied by the claim is a sterilized sauce.
Regarding claim 19, Kim discloses that the sugar content of the sauce can be 30% (see for example, the abstract which discloses the sauce contains 30% sugar sauce) and therefore falls within the range of 0-60 Brix.
Regarding claim 20 similar to the discussion above regarding claims 14-16 and 18, the claim is a product by process claim, such that the structure implied by the claim is a sealed container that has been heated. In this regard, Kim teaches steaming the sealed container (see page 3, 4th paragraph which discloses, “After sealing, the product is sprinkled with coolant and discharged to reduce the internal pressure of the package. It is then steamed for 5-10 minutes”) such that the structure implied by claim 20 is a sealed container that has been steamed. In view of this, the prior art is teaching and suggesting a product that is similar to that suggested by the claims. Additionally, Kim suggests steam temperatures such as 115°C for heating the sealed container, as discussed above with respect to claim 15 and which appears to be similar to the temperature disclosed on paragraph 83 of Applicant’s specification as filed. It is noted that the claims do not provide any specificity as to a particular structural difference between the product as a result of the step and that suggested by the prior art.
Regarding claim 21, Kim teaches chestnuts and pinenuts without discussion of an additional nut (see at least, the abstract on the last page and claim 1 on page 1) and therefore teaches and suggests the claimed nut.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kim (KR 20010079456) as the primary reference, and in further view of Kang (KR 20010083288), Yun (KR100728389) and Xu (CN106819851).
Machine translations have been relied on for Kang (KR 20010083288), Yun (KR 100728389) and Xu (CN 106819851).
Regarding claim 5, Kim teaches that the rice, which can be a 1:1 ratio of glutinous to non-glutinous rice, can be present at 60% in the composition (see claim 1).
This therefore teaches that the non-glutinous rice can be used at 30% based on 100 parts by weight of the contents.
Claim 5 differs in specifically reciting that the non-glutinous rice is within the range of 10-20 parts based on 100 parts by weight of the contents.
Kang teaches a Yakbab type product (see the abstract), which an comprise a ratio of glutinous rice to another rice component at 50:40 or 70:20 for example (see paragraph 21).
Yun teaches instant rice products such as Yakbab/Yaksik (see the abstract) which can use glutinous rice at 100wt% or can use mixtures of glutinous rice with any other types of rice (see page 4 of the machine translation, lines 12-15) and is therefore suggesting any combination of rice.
Xu teaches instant rice (see paragraph 2 of the machine translation), which can comprise a ratio of brown rice to glutinous rice (see paragraph 20, 34) for providing an instant rice with improved sensory value and a degree of softness (see paragraph 41 and 45). Xu teaches a ratio of the brown rice to the glutinous rice at 100:0 to 10:90 (see paragraph 56) and is therefore teaching that the amount of glutinous rice can be from 0-90 while the other rice such as brown rice can be from 100-10.
To therefore modify Kim and to use another ratio of glutinous to non-glutinous rice, such as 70:20 as taught by Kang would have been obvious to one having ordinary skill in the art, for the purpose of providing the desired taste preferences to the instant rice product (see paragraph 50 of Kang). In view of Kang’s teachings, the modification of the ratio (to 70:20) would have resulted in the glutinous rice being used at 42wt% (70x60wt%) and the non-glutinous rice being used at 12wt% (20x60wt%).
To modify Kim in view of Xu and use a ratio which comprises up to 90 parts of the glutinous rice and therefore at minimum 10 parts of Kim’s non-glutinous rice would have been obvious to one having ordinary skill in the art for the purpose of providing the desired sensory value and softness to Kim’s instant rice. Such a modification would have resulted in Kim’s 60wt% of mixed rice comprising 54wt% glutinous rice and at minimum 6wt% non-glutinous rice, but which can be greater than 6wt%.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kim (KR 20010079456) as the primary reference, and in further view of Kang (KR 20150105819).
A machine translation has been relied on for Kang (KR 20150105819).
Claim 6 differs from Kim in specifically reciting that the glutinous rice is added in an amount of 55 parts to 65 parts by weight based on 100 parts by weight of the contents.
Kang teaches an instant rice that also comprises one or more of chestnuts, sunflower seeds, raisins and pumpkin seeds (see the abstract), together with a sauce that can comprise soy sauce (see paragraph 10 of the machine translation). Kang teaches that the glutinous rice can be used at 120 parts by weight (see paragraph 35). Kang further teaches the nuts can be present at 20-40 parts by weight and a water that can comprise the sauce can be present at 56 parts by weight (see paragraph 36), for a total of 196 or 216 parts by weight. As such, the glutinous rice would have been present at about 120/196 or 120/216, or 61% or 55% respectively. Since Kim does not limit the particular amounts of glutinous or non-glutinous rice, to therefore modify Kim to use 55% or 61% glutinous rice would have been obvious to one having ordinary skill in the art based on the particular taste and texture desired for the instant rice.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kim (KR 20010079456) as the primary reference, and in further view of Kratochvil (US 5316783), Koo (KR100748268), Kano (JP 2014128265) Bae (KR 20110129654) and Park (KR 20180047557).
Regarding Koo (KR100748268), Kano (JP 2014128265) Bae (KR 20110129654) and Park (KR 20180047557), a machine translation has been relied on.
Claim 7 differs from Kim in specifically reciting the chromaticity of the rice in the instant rice has L value of 33.5 to 36, a value of 5.5 to 6.5 and b value of 13.5 to 14.5.
However, Kim also teaches using similar ingredients as those presented at table 1 of Applicant’s specification as filed. Specifically, Kim teaches using glutinous and non-glutinous rice, chestnuts, pine nuts, sesame oil and further teaches amounts of nuts and glutinous rice within the claimed range. Kim also teaches similar heat treatment of the rice, such as 121-141°C for 30 minutes, for example(see page 2, lines 1-2 and 45-46 of the machine translation; see also page 3 of the machine translation, paragraph 3). Therefore, it would have been reasonable to expect that the prior art would have presented similar chromaticity of the rice in the instant rice.
Nonetheless, the prior art further teaches that it has been known to heat rice to control the chromaticity as suggested by Kratochvil who teaches that that upon thermal treatment rice will: (1) darken such that the L value will get lower; (2) get more yellow increasing the b value; (3), get more red such that the a value increases.
Koo teaches that rice can be roasted to provide an L value of between 20-80, thus encompassing the claimed L-value (see the abstract and page 5 of the machine translation, lines 7-9).
Kano teaches that it has been known to tailor the color of a food product and where the L-value can be 30 or more, the a value can be within the range -10 to +10 and the b value can be within the range of -20 to +20, thus encompassing the claimed range (see paragraph 56).
Bae teaches that it has been known to vary the chromaticity of rice by varying the amounts of ingredients that are combined with the rice (see page 4 of the machine translation, Example 2).
Park teaches that the color of the rice used for products such as Yakbab (see the title) can vary by changing the mounts of various ingredients added to the rice (see Table 3 for example). That is, at table 3, the reference is teaching an L value such as 35.95, an a value of 5.33, which is seen to be close to the claimed range for the a-value and a b value of 14.05 for instance.
It would therefore have been obvious to one having ordinary skill in the art to have experimented with heating conditions and additives to accordingly adjust the particular chromaticity of the rice in the instant rice, for the purpose of achieving the desired coloration to the rice of the instant rice.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kim (KR 20010079456) as the primary reference and as evidenced by The Composites Store and Global Pumps.
Regarding claim 11, it is noted that Kim teaches a sauce that comprises sugar at 30-40wt%, sesame oil at 5-15wt%, soy sauce at 3-7wt%, caramel sauce at 2-10wt% and purified water at 50-60% (see the espacenet abstract on the last page of the machine translation). The Composites Store evidences that honey, for example, can have viscosity of 2000cp, and Global Pumps evidences that caramel and can have a viscosity of 500 cp (see page 6). Therefore, it would have been reasonable to expect that the viscosity of Kim’s sauce would have been lower than that of honey, considering that the sauce can be about 60% water with additional water via the soy sauce.
Claims 17, 22 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claims 1 and 2 above, which rely on Kim (KR 20010079456) as the primary reference and in further view of Kim (KR 100522981 B1, i.e. Kim981) and Kang (KR 20010083288).
Claims 17 and 23 differ from the combination as applied to claims 1 and 2 above, in specifically reciting:
“wherein the non-glutinous rice is added in a content of 10 parts by weight to 20 parts, and the glutinous rice is added in an amount of 55 parts by weight to 65 parts by weight based on 100 parts by weight of contents when preparing the instant rice.” (claim 17) and
“wherein a ratio of the non-glutinous rice to the glutinous rice is 1:3 to 1:5.” (claim 23).
Claim 22 differs from the combination as applied to claim 1 in specifically reciting, “wherein an amount of the rice is contained in an amount of 65 parts by weight to 80 parts by weight based on 100 parts by weight of the contents contained in the container.”
However, Kim981 teaches a combination of brown rice to glutinous rice where in one embodiment the brown rice can be present at 2kg and the glutinous rice can be used at 6.5kg, which equates to a ratio of about 1:3 nonglutinous rice to glutinous rice (see page 13 of the machine translation, Example 2), as recited in claim 23.
Kim981 also teaches in example 2 that a product which has in total 11.82 parts (6.5kg glutinous rice + 2kg Brown rice+ 1.3kg chestnuts + 1kg sugar + 500g peanuts, 250g walnuts, 150g pine nuts and 120g salt) of which 2 parts is nonglutinous rice and 6.5 parts is glutinous rice. This equates to the nonglutinous rice being used at about 16 parts per 100 parts total (2/11.82) and the glutinous rice being used at 54.99 parts per 100 parts by weight total (6.5/11.82) which is seen to overlap with and be close to the amounts recited in claim 17.
Kim981 therefore also teaches that the total amount of rice can be 8.5 parts per 11.82 parts total or about 72 parts per 100 parts of the contents, which falls within the range as recited in claim 22. Like Kim, Kim981 is teaching products such yakshik (see page 7, line 13), which is therefore similar to Kim. Since Kim981 distinguishes between glutinous rice and brown rice, Kim981 has been construed to encompass the brown rice being non-glutinous rice. Furthermore however, Kang teaches a Yakbab type product (see the abstract), which can comprise a smaller amounts of non-glutinous rice as part of the Yakbab (see paragraph 2). Kang further teaches that there can be a ratio of glutinous rice to another rice component at 50:40 to 70:20 for example (see paragraph 21). Therefore, Kang is teaching for example, a ratio of non-glutinous rice to glutinous rice of 40:50 to 20:70 and where a ratio of 20:70 equates to about 0.29, which is seen to essentially overlap with the claimed 1:3.
Since Kim does not limit the particular amounts of glutinous or non-glutinous rice, to therefore modify Kim to use 16 parts non-glutinous rice and 55 parts glutinous rice, or a ratio of 1:3 of non-glutinous to glutinous rice, and to use about 72 parts rice per 100 parts of contents, as taught by Kim981 would have been obvious to one having ordinary skill in the art based on the particular taste and texture desired for the instant rice.
Response to Arguments
In view of the amendment to the claims, which more clearly define Yakbab, the obviousness type double patenting rejections in view of copending U.S. Application No. 18/288597 and 18/288601 have been withdrawn.
On page 6 of the response, Applicant urges that the combination does not teach or suggest any instant rice prepared by sterilizing the raw ingredients contained in the container under conditions of a F0 value of 4 or higher before sealing the container, adding sterilized sauces to the container and sealing and heating the container to which the sauce has been heated.
These arguments have been considered but are not sufficient to overcome the rejection, as presented in this Office Action. It is further noted however, that since the claims are directed to the product, and not the method of making the product, the structure implied by the claim is a sealed container comprising Yakbab with rice, sauce and at least one of the recited raw ingredients, and where the above ingredients are sterilized and within a sealed container and which sealed container is heated and which sealed container should be capable of having 0 CFU/ml microorganisms for 9 months or less. The claim also recites amounts of raw ingredients other than rice and as well as an additional amount of nuts, if they are present. In this regard, the prior art is teaching and suggesting the above structure. In this regard the prior art teaches and suggests the above recited structure.
Further on pages 6-7 of the response, Applicant urges that Table 5 of the present Application demonstrates the physical property analysis of honey yakbab which exhibit relatively uniform physical property measurement values for samples 1-5 resulting in small deviations in the hardness and elasticity, which is in contrast to comparative examples 1 and 2 where the hardness and elasticity deviated to a much greater extent.
These arguments have been considered but are not seen to be sufficient to overcome the rejection. Table 5 and the results therefrom are acknowledged, however, there is not sufficient evidence to suggest that the product as taught by the prior art would not have exhibited similar properties, because the claim is not directed to the method of making the product, but the product itself; and because the prior art teaches and suggests the product as claimed. The prior art need not disclose the recited method steps provided that the prior art teaches the structure implied by the steps. Furthermore, the data presented in Table 5 is not seen to be commensurate in scope with the claims. In this instance, Example 1 is directed to a specific Yakbab composition (see Table 1 and the paragraph below Table 1), while the claim is directed to a much broader composition. Therefore, Applicant has not presented a sufficient showing that the data directed to a specific composition would have applied to the entirety of the scope of the claim.
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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/VIREN A THAKUR/Primary Examiner, Art Unit 1792