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 Objections
Claims 3, 4 and 7-18 are objected to because of the following informalities: It is recommended to include the step identifiers in parenthesis in a manner similar to claim 1. For instance, claim 3 would read “step (g)” rather than “step g”. Appropriate correction is required.
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.
Claims 1, 3, 4, 7-16 are rejected under 35 U.S.C. 103 as being unpatentable over “To Her Core: How to Make Homemade Roasted Hazelnut Milk”, June 10, 2015 (To Her Core) in view of RU 2333657 (Dovgan) and further in view of “Simply So Good, Homemade Coconut Milk” (Simply) (2016) AND/OR CN 113733699 (Xia) OR CN 102524701 (Gao).
To Her Core discloses a method of making hazelnut milk including the following steps:
Supplying hazelnuts; (meets step a)
Cracking the nuts to remove the shells; (meets step b)
Adding water to the shells; (meets step c)
Soak to provide a smoother, creamier consistency; (meets step d, in part)
Removing the water (straining);
Add the nuts to a blender (mixer) and add fresh water to blend until thick and creamy; (meets steps f, g, and h); and
Straining through a nut bag or cheesecloth (woven cotton gauze fabric) (meets step i).
To Her Core does not disclose keeping the hazelnuts in water for 24 hours at a temperature of 5-15C, weighing the wet hazelnuts obtained in step d, and subjecting the milk to heat treatment.
Regarding the length of time for keeping the hazelnuts in water and the temperature, Dovgan discloses a method of making milk from nuts, including hazelnuts, similar to that disclosed by To Her Core. Note that To Her Core states that the nuts may be soaked for a few hours to overnight, and does not limit the amount of time per se. Indeed, the bottom of page 9 of To Her Core states that if you have a not-so-highly powered blender, to not scrimp on the soaking time which will help you gain a creamier consistency. This indicates to one of ordinary skill that increasing the time of soaking can increase the creaminess of the milk product. Dovgan’s method also comprises the step of soaking the nuts and specifies that the nuts may be soaked for 5-25 hours at 10-40C in water (abstract) before grinding. This step hydrates and swells the nuts (page 2). It would have been obvious to one of ordinary skill to soak the hazelnuts of To Her Core for up to 25 hours at cool temperatures as indicated by Dovgan with a reasonable expectation of providing a hazelnut milk with a creamier consistency as indicated by To Her Core. Dovgan also indicates that too high a temperature can result in undesirable fermentation (page 4).
Regarding weighing the wet hazelnuts that have been soaked, one of ordinary skill would have found it obvious to weight the hazelnuts after soaking since the weight of the hazelnuts will have changed. Determining the precise amounts of water to be added to yield the desired, and repeatable consistency in the final product would benefit from recording the weight of the hazelnuts and also recording the amount of water added to the mixture. The benefit of recording measurables (amounts of ingredients) when processing allows for one of ordinary skill to make changes to the recipe knowledgably, such as increasing the amount of water relative to the hazelnuts will decrease the thickness of the formed milk (discussed above).
Regarding the heat treatment of claims 1, 7, 10, and 11, Dovgan discloses pasteurizing the milk at 80C (examples 2 and 3). It would have been obvious to pasteurize the milk product of To Her Core as taught by Dovgan to confer the known benefits of pasteurization on the nut milk, such as achieving the necessary organoleptic properties of the final product as disclosed by Dovgan.
Regarding step (i) of filtering the mixture from step (h) through a cotton woven fabric to obtain milk, wherein the cotton woven fabric has a pore size of less than 30 microns, the prior art is seen to obviate the use of a cotton woven fabric with the claimed. To Her Core discloses straining through a nut bag or cheesecloth (woven cotton gauze fabric) but does not disclose the pore size. It is noted that in sole example of the instant specification, a diaper is used for filtering. Simply discloses a method of making coconut milk, and states that “just like nut milks, coconut milk is so simply to make with very few ingredients” (page 4). Simply discloses straining to remove pulp and fibers so that only the liquid remains and discloses using tightly wound cotton dish cloths, cheese cloth or a nut bag in the similar manner of To Her Core. Further, a comment was made February 28, 2016 (bubbysoo) that cloth diapers are “greatest for straining almond or coconut milk”. Thus, one of ordinary skill would have found it obvious to use a cloth diaper as indicated by Simply to strain the hazelnut milk of To Her Core to remove pulp and any fibrous materials that would affect the mouthfeel of the remaining milk with a reasonable expectation of success based upon the disclosure of using a cloth diaper in the same manner as cheesecloth and nut bags suggested in To Her Core. Regarding the pore size, to function as a diaper, the pore size must be similar to that used by applicant and have pores less than 30 microns.
Alternative to Simply, or in addition to Simply, Xia discloses a filter cloth that may be used in the field of pharmacy, food, chemical industry, metallurgy, purification and so on. such as beer in food processing, wine, fruit wine, tea beverage, soy milk and so on. The basic fiber cloth may be cotton filter cloth. The filtering is described as “micro-pore” and examples of a basic filter cloth are micro-hole 500 mesh. 500 mesh corresponds to 25 micron. Thus, anything smaller than 25 microns would pass through the filter resulting in removal of any materials having a size 25 microns or greater. It would have been obvious to use the filter of Xia as the filter in To Her Core in order to remove as much pulp and other materials from the milk mixture to provide only the liquid for consumption. Xia clearly discloses that the filter may be used in the food industry and indicates use in relation to soy milk “and so on”, thus indicating a reasonable expectation in use of filtering other milks. Additionally, Simply discloses the desire to remove pulp and fibers and To Her Core also discloses removal of pulps. It would have been obvious to use the micro-hole filter of Xia with a mesh of 500 to remove as much pulp and any fibers or granularities from the hazelnut milk of To Her Core as it is expressly disclosed that removal of pulp and fibers is desired and the smaller the pore size (the higher the mesh) results in removing more granularities. This concept of using a tightly woven (high mesh) cloth is well known as illustrated by the disclosure in Simply of using a tightly woven cotton dish cloth to prevent fibers and pulp from passing and Xia discloses a pore size for a filter cloth that is known and effective for use in the food industry, thus obviating the use of a cotton filter cloth having a pore size of less than 30 microns. Further regarding Xia, the disclosure of the 500 mesh cotton filter cloth is seen to be woven cloth due to the formation of mesh and the disclosure by Xia that filter cloth is formed by interweaving fibers.
Still further, Gao discloses filtering pulp from a fruit that has been treated with enzymes to separate the pulp. A filter cloth is used with 300-500 mesh. This conveys to one of ordinary skill that up to a 500 mesh is successfully used for filtering pulp using a cloth. Thus, one of ordinary skill in the art would have found it obvious to use a filter cloth as suggested by To Her Core that has a mesh up to 500 which corresponds to 25 microns as explained above. One of ordinary skill would have found it obvious based upon the demonstration by Gao of separating pulp is effectively done with a micron level mesh filter cloth and used a similar mesh to filter the hazelnut milk.
Regarding claim 3, in a comment made Dec. 23, 2016 of To Her Core, a question is raised regarding the proportion of water to hazelnuts and the answer given indicates that you can vary the amount of water or hazelnuts depending upon the thickness desired in the final product. Thus, one of ordinary skill would find it obvious to vary the amounts of hazelnuts or water (adjusting the ratio thereof) to obtain the thickness desired in the final product. Additionally, the recipe of In Her Core calls for 1 cup shelled hazelnuts to 2 cups water.
Regarding claims 4 and 9, the amount of time to mix/blend the hazelnuts and water is optimizable by one of ordinary skill in the art. To Her Core teaches blending until smooth and creamy, “around a minute”. It would have been obvious to one of ordinary skill to increase the amount of time taken to blend (grind) the hazelnut and water mixture until the desired smoothness and creaminess is obtained.
Regarding claims 8, 13, 14 and 16, the background of Dovgan discloses that the pasteurization (heat treatment) may be may be carried out in a homogenizer for a time of 0.25-20 minutes which is indicative of the time known to one of ordinary skill in the art for the amount of time needed for the heat treatment (page 2). Dovgan does not give other times in the discussion of the heat treatment in the rest of the disclosure thus one of ordinary skill would have found it obvious and reasonable to look to the disclosure of 0.25-20 minutes as a suggested time for performing the heat treatment. The time frame of 0.25-20 minutes overlaps the claimed range of 8-10 minutes and is therefore prima facie obvious. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) MPEP 2144.05(I).
Regarding claims 12 and 15, Dovgan teaches 80C for pasteurization and obviates the amount of time for the heat treatment.
Claims 4, 9, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over “To Her Core: How to Make Homemade Roasted Hazelnut Milk”, June 10, 2015 (To Her Core) in view of RU 2333657 (Dovgan) and “Simply So Good, Homemade Coconut Milk” (Simply) (2016) AND/OR CN 113733699 (Xia) OR CN 102524701 (Gao) as applied to claim 1 above, and further in view of WO 2013/010037 (Brown).
Alternative to the rejection of claims 4 and 9 above, Brown teaches making non-dairy milk for use in making cheese including the step of soaking nuts, draining and placing the nuts in a blender, adding water thereto and blending for 5 minutes [0061]. Brown teaches that the blending time and speed may be altered by up to 100% which indicates the range for blending may be optimized by the ordinary artisan. Thus, one of ordinary skill in the art would reasonably find that the time for blending can be adjusted based upon the time in a blender of Brown disclosing 5 minutes variable up to 100% which encompasses the claimed range of 3-10 minutes. Regarding claims 10 and 11, Dovgan teaches pasteurizing at 80C as discussed above.
Response to Arguments
Applicant’s amendments have overcome the objections and 112(b) rejections of the claims.
Applicant’s arguments with respect to claim(s) 1, specifically the limitation of the cotton woven fabric having a pore size of less than 30 microns, have been considered but are moot because the new ground of rejection with regard to this limitation relies upon new references cited above and does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant’s arguments regarding the Ku reference and the cotton woven fabric are persuasive and the rejection is withdrawn. A new ground of rejection is provided above with newly cited refereces.
Conclusion
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/Primary Examiner, Art Unit 1793