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 .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-15
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: None
New claims: None
Claims currently under consideration: 1-15
Currently rejected claims: 1-15
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
The disclosure is objected to because of the following informalities:
In paragraph [89], line 5, it appears that “Example 3” should read “Example 1”.
At the end of paragraph [97], “FIG. 2” should read, “FIG. 1” as there is no Figure 2, and the paragraph appears to be directed to the contents of Figure 1.
Appropriate correction is required.
Claim Objections
Claim 7 is objected to because of the following informalities:
In claim 7, lines 2-3, “has L value of…, a value of…, and b value of…” should read, “has an L value of…, an a value of…, and a b value of…”.
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.
Claims 1-15 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites the limitation “the number of microorganisms in the instant rice is negative within a shelf life” in lines 11-12. The claim is indefinite because a composition cannot have a negative amount of anything. The lowest possible amount of a component is zero. For purposes of examination, the limitation is construed to be “the instant rice is sterilized”.
Claim 10 recites the limitation “wherein the moisture content of mushrooms in the mushroom rice is 70% to 85%”. It is unclear how the percent is determined, for example, percent by weight, percent by volume, etc. For purposes of examination, any types of percentages in the prior art are deemed to be acceptable.
Claims 2-15 are rejected due to their dependency from claim 1.
Claim Rejections - 35 USC § 103
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 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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Hong (KR 101710660 B1 (see provided translation), also published as KR 20150087556 A, cited on the IDS filed on 27 October 2023).
Claim Interpretation:
The instant specification at paragraph [13] provides:
The term “instant rice” used herein means a Bap made in the form of an instant food. The instant rice is a processed food that its able to be eaten itself without a separate cooking process, or eaten through a simpler cooking process than a conventional method of preparing and cooking Bap, and prepared for convenient storage, reposition, transportation, and portability.
Therefore, the recited parts by weight in claim 1 are interpreted to include water in the weight of the rice and mushrooms because the instant rice is able to be eaten without a separate cooking process.
Claim Rejections:
Regarding claim 1, Hong teaches an instant rice – “The present invention relates to a method for manufacturing an improved instant cooked rice and an instant cooked rice produced by the method.” ([0001]).
comprising: a sealed container and a mushroom rice made from grains and mushrooms contained in the container – “…mixing raw rice, water, raw materials and sauces washed and dehydrated into a retort container and packing and packing inert gas…” ([0006]). Packing ingredients into a retort container implies that the container is sealed to undergo retort cooking. Rice is a grain. The raw materials may be mushrooms ([0022]).
and the instant rice is sterilized – Hong teaches that the process includes “a second step of simultaneously treating sterilization and cooking of the contents in the retort container at a predetermined temperature.” ([0006]). Therefore, the instant rice is sterilized (i.e., contains no viable microorganisms).
Hong does not explicitly state that the rice in the mushroom rice is included in an amount of 60 parts by weight to 90 parts by weight based on 100 parts by weight of contents contained in the container, mushrooms in the mushroom rice are included in an amount of 10 parts by weight to 30 parts by weight based on 100 parts by weight of the contents contained in the container.
However, Hong does teach that “…10 to 40 parts by weight of the washed and dehydrated rice cake, water, high-quality raw materials and sauces can be incorporated into the retort container, respectively.” ([0008]). In other words, the components of rice, water, raw ingredients (which may be mushrooms (see [0022])), and sauce may each be present in amounts of 10 to 40 parts by weight. Upon cooking, the majority of the water would necessarily absorb into the rice. As such, the water and rice amounts are considered to constitute the cooked rice. It is well known that the amount of water with respect to the amount of rice is a result-effective variable contributing to the texture of cooked rice; Too much water results in soft, soggy rice, and too little water results in rice that is too hard.
MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the amounts of rice, water, mushrooms, and sauce within the amounts of 10 to 40 parts by weight of each by routine experimentation to arrive at a texture of the rice and a ratio of rice to mushrooms according to desired organoleptic properties in the final instant rice product, including 60-90 parts by weight of rice and 10-30 parts by weight of mushrooms based on 100 parts by weight of contents contained in the container, as claimed.
Therefore, claim 1 is rendered obvious.
Regarding claim 2, Hong teaches that the grains comprise rice, and the rice includes at least one selected from the group consisting of white rice, black rice, brown rice, non-glutinous rice, and glutinous rice – “The rice cake may be any one or a mixture of two or more selected from the group consisting of white rice, brown rice, black rice…” ([0020]). It is noted that rice is either non-glutinous or glutinous, so any rice meets this limitation.
Claim 2 is therefore rendered obvious.
Regarding claim 3, Hong teaches the instant rice of claim 2, wherein the grains are mixed grains other than rice, and further comprise at least one selected from the group consisting of barley and red beans – “in addition to the rice, barley, , Kidney beans, peanuts. It may be a mixed mixture of grains such as red beans and mung bean sprouts.” ([0020]).
Claim 3 is therefore rendered obvious.
Regarding claim 4, Hong teaches that the grains comprise at least one selected from the group consisting of white rice and black rice – “The rice cake may be any one or a mixture of two or more selected from the group consisting of white rice, brown rice, black rice…” ([0020]).
Claim 4 is therefore rendered obvious.
Regarding claim 5, Hong teaches that the grains comprise at least one selected from the group consisting of non-glutinous rice and glutinous rice. Rice is either non-glutinous or glutinous, so any rice meets this limitation. Where Hong teaches that the product is instant rice ([0001]), the product meets this limitation.
Claim 5 is therefore rendered obvious.
Regarding claim 6, Hong teaches that the mushrooms comprise at least one selected from the group consisting of king oyster mushroom, shiitake mushroom, and oyster mushroom – Paragraph [0022] reads, “For example, the famous materials include vegetables such as green onion, garlic, onion, green onion, green pepper, carrot and cucumber, ginseng, mushrooms such as mushroom, mushroom, mushroom, oyster, nuts such as chestnut…”.
PNG
media_image1.png
767
1429
media_image1.png
Greyscale
Translation of the original text of paragraph [0022] of Hong using Google Lens indicates that the mushrooms are shiitake mushrooms, oyster mushrooms, and king oyster mushrooms (see screenshot below).
Claim 6 is therefore rendered obvious.
Regarding claim 7, Hong does not discuss that the chromaticity of the king oyster mushroom has L value of 50 to 70, a value of 3 to 5, and b value of 15.5 to 16.5.
However, Hong teaches that “…the contents in the retort container are preferably sterilized and cooked at a temperature of 100 °C to 125 °C for 10 minutes to 40 minutes.” ([0009]). As evidenced by the instant specification, the king oyster mushrooms of instant rice of Example 1 have an L value of 59.60, an a value of 3.39, and a b value of 16.08 ([96], Table 2). These values lie inside the claimed ranges. The instant rice of Example 1 was prepared by retort sterilization at 115 °C for 20 minutes ([87]).
It is widely known that cooking time and temperature affects the color of mushrooms, and the instant specification provides evidence that the claimed chromaticity values are obtainable within the range of temperatures and times disclosed by Hong. Furthermore, consumers have varying preferences based on the color of food products, some preferring more similar colors among food components, others preferring differing colors among food components.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the L value, a value, and b value of the king oyster mushrooms used in the instant rice product of Hong, through routine experimentation, to impart the king oyster mushrooms with the desired chromaticity values to provide an instant rice product that is appealing to consumers, including an L value of 50 to 70, an a value of 3 to 5, and a b value of 15.5 to 16.5, as claimed.
Therefore, claim 7 is rendered obvious.
Regarding claim 8, Hong teaches the instant rice of claim 6, wherein the raw materials, such as mushrooms, “may be in the form of a powder or a stalk cut to a predetermined size.” ([0022]).
Hong does not specifically discuss that the king oyster mushroom is comprised in the form having a length of 3 cm or more and a thickness of 6.5 mm or more.
However, MPEP § 2144.04(IV)(A) discusses that changes in size or proportion are not sufficient to patentably distinguish a claimed product over the prior art. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package "of appreciable size and weight requiring handling by a lift truck" were held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.)
Therefore, where Hong teaches that the mushrooms may be in the form of a powder or a stalk cut to a predetermined size, the size of the mushroom pieces is not a distinguishing feature.
Claim 8 is therefore rendered obvious.
Regarding claim 9, Hong teaches the instant rice of claim 6.
The phrase, “wherein the king oyster mushroom, compared to the thickness of the king oyster mushroom in raw ingredients before preparing, has 25% or less of a thickness shrinkage of the king oyster mushroom measured after heating in a 700 W microwave for 2 minutes” requires knowing the thickness of the king oyster mushroom before preparing. The claim is toward the final instant rice product (before heating in a microwave). One of ordinary skill in the art would be unable to ascertain the thickness of the king oyster mushroom before preparing based on the final product. The phrase therefore cannot patentably distinguish the claim from the prior art.
In the present case, there is no patentable distinction between the instant rice in the prior art and the claimed instant rice. The patentable subject matter of claim 9 is the instant rice as recited in claim 6.
Therefore, where claim 6 is obvious, so too is claim 9.
Regarding claim 10, Hong teaches the instant rice of claim 1.
Hong does not specifically discuss that the moisture content of mushrooms in the mushroom rice is 70% to 85%.
However, Hong teaches that “…the contents in the retort container are preferably sterilized and cooked at a temperature of 100 °C to 125 °C for 10 minutes to 40 minutes.” ([0009]). It is widely known that cooking time and temperature affects the moisture content, and therefore texture, of mushrooms. Furthermore, consumers have varying preferences based on the texture of food products, some preferring more similar textures among food components, others preferring differing textures among food components. The moisture content of the mushrooms is therefore a result-effective variable in relation to the texture, and thus, consumer preference.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal moisture content of the mushrooms used in the instant rice product of Hong, through routine experimentation within the disclosed cooking temperatures and times, to impart the mushrooms with the desired moisture content to provide an instant rice product that is appealing to consumers, including 70% to 85% as claimed.
Therefore, claim 10 is rendered obvious.
Regarding claim 11, Hong teaches the instant rice of claim 6.
Hong does not discuss that the king oyster mushroom has at least one of the following physical properties obtained by measuring the king oyster mushroom using a physical property analyzer, after heating the instant rice in a 700 W 45 microwave for 2 minutes: (i) tissue strength (max stress, dyn/cm2) value of 160,000 to 220,000; and (ii) area value (erg/cm3) of 18,000 to 28,000.
However, Hong teaches that “…the contents in the retort container are preferably sterilized and cooked at a temperature of 100 °C to 125 °C for 10 minutes to 40 minutes.” ([0009]). As evidenced by the instant specification, the king oyster mushrooms of instant rice of Example 1 have a max stress of 181,250 dyn/cm2 and an area value of 22,975 erg/cm3 ([104], Table 4). These values lie inside the claimed ranges. The instant rice of Example 1 was prepared by retort sterilization at 115 °C for 20 minutes ([87]).
It is widely known that cooking time and temperature affects the texture of mushrooms. Furthermore, consumers have varying preferences based on the texture of food products, some preferring more similar textures among food components, others preferring differing textures among food components. The texture of the mushrooms is therefore a result-effective variable in relation to consumer preference.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal moisture content of the king oyster mushrooms used in the instant rice product of Hong, through routine experimentation within the disclosed cooking temperatures and times, to impart the king oyster mushrooms with the desired textural properties, including tissue strength and area values, to provide an instant rice product that is appealing to consumers, including (i) a tissue strength (max stress, dyn/cm2) value of 160,000 to 220,000; and (ii) area value (erg/cm3) of 18,000 to 28,000, as claimed.
Claim 11 is therefore rendered obvious.
Regarding claim 12, Hong teaches the instant rice product of claim 1, further comprising: sauces, wherein the sauces comprise a shiitake hot water extract – “…mixing raw rice, water, raw materials and sauces washed and dehydrated into a retort container and packing and packing inert gas…” ([0006]). The raw materials may be mushrooms ([0022]). Translation of the original text of paragraph [0022] of Hong using Google Lens indicates that the mushrooms may be shiitake mushrooms, oyster mushrooms, and king oyster mushrooms (see screenshot below).
PNG
media_image1.png
767
1429
media_image1.png
Greyscale
Hong further teaches that “…the contents in the retort container are preferably sterilized and cooked at a temperature of 100 °C to 125 °C for 10 minutes to 40 minutes.” ([0009]). Where Hong teaches that the composition can comprise sauces, shiitake mushrooms and water, and the composition is heated, Hong teaches that the sauces comprise a shiitake hot water extract as claimed.
Claim 12 is therefore rendered obvious.
Regarding claims 13-15, Hong teaches the instant rice of claim 1. The limitations of claims 13-15 (“wherein the instant rice is prepared by sterilizing the grains and mushrooms contained in the container under the conditions of an F0 value of 4 or higher before sealing the container” (re: claim 13); “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” (re: claim 14); and “wherein the instant rice is prepared so that heat of 90 °C or higher is not applied before sealing of the container after the sterilizing” (re: claim 15)) are product-by-process limitations.
“[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”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113.
Therefore, absent evidence of criticality regarding the presently claimed process steps and given that Hong meets the requirements of the claimed composition, Hong clearly meets the requirements of present claims 13-15. Moreover, Hong teaches that “…the contents in the retort container are preferably sterilized and cooked at a temperature of 100 °C to 125 °C for 10 minutes to 40 minutes.” ([0009]).
Claims 13-15 are therefore rendered obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Shellhammer whose telephone number is (703) 756-5525. The examiner can normally be reached Monday - Thursday 7:30 am - 5:00 pm ET.
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, Emily Le can be reached at (571) 272-0903. 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.
/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793