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 Objections
Claims 1, 6, 12 and 14 are objected to because of the following informalities:
Regarding claim 1, in the last line insert “exposed to the hot air and vacuum” after “grinding the composition”. The specification recites the grinding takes place after applying hot air and vacuum (page 7 lines 22-26). The claim should be amended to better match the language of the specification.
Regarding claim 6, in line 4 after “said hot air” delete “is” and insert “absorbs moisture and is then”. The specification recites the hot air is conducted away from the drying area after absorbing moisture (page 5 lines 27-30). The claim should be amended to better match the language of the specification.
Regarding claim 12, in line 4 after “final grinding material” delete “, which in solid phase has” and insert “having” in order to place the claim in better form. One of ordinary skill would understand the particles of the final grinding material are “solid phase”. The limitation is redundant and does not significantly add to the scope of the claim.
Regarding claim 14, delete “the” after “wherein” to place the claim in better form.
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.
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 1-9, 11 and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over Gooding (US 3,592,662) in view of Schnell et al. (US 2016/0000109 A1), Eisner (US 2018/0160708 A1) and Connick (US 4,004,037).
The limitation “stone fruit and/or nut fruit seeds” is construed to recite alternatives due to the presence of the term “or”. For the sake of examination, the alternative “nut fruit seeds” is chosen, and all limitations directed to the stone fruit are construed to be not required.
Regarding claim 1, Gooding teaches a method for treating comminuted peanut slurries in order to reduce the viscosity and remove malodorous materials therefrom (column 1 lines 24-26), the peanuts being “nut fruit seeds”, comprising receiving comminuted slurry and rapidly removing volatiles by means of heating to at least 200oF and reduced pressure (column 2 lines 4-6), where the reduced pressure is a vacuum of 27-29 in Hg or about 0.91-0.98 bar (column 3 lines 9-11). The range corresponds to an absolute pressure of about 0.02 to 0.09 bar. Higher or lower pressures can be employed (column 3 line 11), such as 15 in Hg or about 0.51 bar (column 4 line 68).
Regarding “receiving…seeds in a condition of being already pitted or stoned”, the limitation is given its broadest reasonable interpretation in view of the specification to encompass nuts that have been deshelled. Example IV teaches a process in which peanuts were roasted, deskinned, and ground into the slurry (column 4 lines 64-65). Removal of the shell before processing is known and commonly practiced, and therefore the peanuts would have necessarily been received in the claimed condition at some point in the process e.g., prior to roasting.
Regarding “breaking the seeds into pieces by pre-crushing to form a composition”, Applicant’s specification discloses the “pre-crushing preferably takes place by a pre-crushing device in the form of a grinder” (column 7 lines 3-4; claim 2). Gooding teaches the peanuts are ground (column 2 lines 11-12; column 4 line 65), which would necessarily require a grinding device.
Regarding “vacuum exposure to the composition to break open cells of the seeds and release fats and oils stored in the cells”, Applicant’s specification states an absolute pressure of less than 0.25 bar is suitable to obtain the claimed feature (page 6 lines 1-3). Gooding teaches an absolute pressure of e.g., 0.02-0.9 bar as stated above. Absent persuasive evidence to the contrary, one of ordinary skill would have reasonably expected the vacuum process of Gooding to obtain the same result.
Gooding does not teach applying hot air having a temperature over 60oC.
Schnell et al. teaches beans that may be preceded by crushing (paragraphs 70-71) are pre-dried in a conventional hot air dryer (paragraph 69).
Eisner teaches a method of making dried products (abstract), where pre-drying may prove advantageous by producing a cohesive mass for better shaping prior to vacuum exposure (paragraph 78). The pre-drying temperature can be about 70-80oC (paragraph 80).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding to pre-dry the slurry in a hot air dryer having a temperature over 60oC since the prior art recognizes pre-drying with hot air at the claimed temperature range is advantageous for dried products, and therefore to combine prior art elements according to known methods to yield predictable results of producing a cohesive mass, thereby facilitating further handling.
Gooding does not teach grinding the composition to form the pumpable batch composition.
Connick teaches a method for making peanut butter (abstract), where the peanuts are subjected to multiple grinding steps to obtain a desired final particle size and a “smooth type” peanut butter (column 3 lines 1-4, 14-17, and 42-45).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding to grind the composition in order to obtain a desired final particle size, thereby obtaining a desired texture/mouthfeel and consistency.
Regarding claim 2, Gooding teaches the peanuts are ground as stated for claim 1, but does not teach particles that predominantly have the claimed range of average particle size. It is noted that “predominantly” is interpreted to mean any amount above 50%.
Connick further teaches peanuts are ground to an average particle size of 30-250 microns (0.03-0.25 mm) to form a “smooth type of peanut butter” (column 3 lines 43-46).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding such that the average particle size is predominantly within the claimed range since the prior art recognizes the particle size for peanut butters, and further recognizes particle size affects characteristics thereof, and therefore since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as texture/mouthfeel and consistency.
Regarding claim 3, Gooding teaches the vacuum exposure is performed until the moisture content of the peanut slurry is less than 1 wt% (column 3 lines 27-30).
Eisner teaches pre-drying until the water content of the mass reaches a desired level (paragraph 81), and Schnell et al. teaches the same (paragraph 69).
The hot air and vacuum exposure would have necessarily been “controlled via an exposure time” in order to obtain a desired degree of pre-drying and final moisture content.
Regarding claims 4-5, Eisner as applied to claim 1 teaches hot air at a temperature of up to 80oC.
Regarding claim 6, Schnell et al. as applied to claim 1 teaches a conventional hot air dryer, where such dryers are known to conduct the air away from the drying area as exhaust after absorbing moisture from the material to be dried.
Regarding claim 7, Gooding teaches an absolute pressure of less than 0.25 bar as stated for claim 1.
Regarding claim 8, Gooding teaches the comminuted peanut slurry can be made from ground peanuts, and distinguishes said slurry from a “finished peanut butter” comprising additives (column 2 lines 6-17). Further, the reference provides examples of slurries made from only peanuts (columns 3-4 examples I-IV).
Regarding claim 9, Gooding teaches heating and vacuum exposure is performed in a clearance blade evaporator with a cylindrical surface and horizontal axis (column 2 lines 44-47), where the blade continuously disrupts the slurry film as it passes over the cylindrical surface (column 2 lines 65-67).
Regarding claim 11, Gooding teaches vacuum exposure of the peanut butter in the horizontal drum mixer as stated for claim 9, where the mixer operates by “contacting a thin, agitated film of the material to be treated”, understood to be a type of conching (column 2 lines 38-40). The body of the mixer is closed prior to vacuuming (column 2 lines 53-54).
While the reference does not specify a “multi-arm” conching tool, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Gooding to use a “multi-arm” conching tool since the reference already acknowledges multiple blade “edges” (column 2 line 65), since multiple arm mixer devices are well known in the art, since there is no evidence of criticality or unexpected results, and to increase efficiency by increasing working/contact area.
Regarding claim 14, Gooding does not teach single-stage grinding.
However, the combination applied to claim 1 teaches said grinding, where Connick further teaches multiple discrete grinding steps.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding to use single-stage grinding since the process is well known in the art, since there is no evidence of criticality or unexpected results associated with the claimed feature, and in order to obtain the desired final grind size with minimal equipment.
Regarding claim 15, Gooding teaches reducing the moisture of the composition to about 0.5 wt% (column 3 line 29).
Regarding claim 16, Gooding teaches an absolute pressure of about 0.02-0.9 bar as stated for claim 1.
The claimed value of 0.1 bar would have been prima facie obvious as a matter of routine experimentation and optimization due to factors such as volatiles removal.
Regarding claim 17, Gooding teaches no additives are introduced during pre-crushing as stated for claim 8, and the combination applied to claim 1 teaches final grinding.
Connick further teaches an “old fashioned peanut butter…no additional ingredients are added” (column 3 lines 18-20).
It would have been obvious to one of ordinary skill at the time of the invention to include no additives during grinding as a matter of manufacturing preference, and to provide a product based on desired flavor, texture/mouthfeel, and nutritional profile.
Regarding claim 18, Gooding teaches the blade (conching tool) is disposed in the horizontal evaporator body for rotary movement over the cylindrical surface (column 2 lines 46-50). The tool would have therefore necessarily rotated on a horizontal shaft within the container.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Gooding in view of Schnell et al., Eisner, and Connick as applied to claim 1 above, and further in view of Ryan et al. (US 2016/0316970 A1).
Regarding claim 10, Gooding does not teach a crushing cone rotating with a vertically-arranged shaft, which rotates in a stationary crushing ring thereby forming a crushing gap, where the gap is provided with a driver-forming profiling for entry of the seeds into the gap.
Ryan teaches conical burr grinders are known (paragraph 3), the grinder comprising conical burrs 15 and 17 with adjustable gap between them (figure 2; paragraph 62), a vertical shaft 23 for rotation (paragraph 64), the gap provided with a driver-forming profiling for entry of the seeds (figures 1-3 and 10-11; paragraphs 59 and 84).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding to use a crushing gone having the claimed features since conical burr grinders are known in the art, and in order to control the particle size of the final product based on desired texture/mouthfeel and consistency.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Gooding in view of Schnell et al., Eisner, and Connick as applied to claim 1 above, and further in view of Connick and Korstad et al. (US 2020/0297014 A1).
Regarding claim 12, the combination applied to claim 2 renders obvious the claimed range of average particle size. The same combination is applied to claim 12 and would have been obvious for the same reasons.
Gooding does not teach an agitator bead mill.
Korstad et al. teaches a method of preparing a food paste derived from nuts, seeds, grains or beans (abstract; paragraph 13), comprising shearing to a final average particle size of about 1-40 microns (paragraph 10), where ball mills are known in the art (paragraphs 6 and 8).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Gooding to use an agitator bead mill to obtain the claimed average particle size range since there is no evidence of criticality or unexpected results associated with the type of mill used, since ball mills are recognized by the art for fine grinding and therefore as a substitution of art recognized equivalents suitable for the purpose of milling, as a matter of market forces such as cost and availability, and since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as cost, availability, operation/energy cost, and the characteristics of the final product.
Response to Arguments
Applicant's arguments filed 12/9/2025 have been fully considered but the amendments to claim 1 necessitated new grounds of rejection. Specifically, the limitation of “hot air and vacuum” together was not previously considered, nor was the temperature over 60oC. Korstad et al. is no longer relied upon as the primary reference, and is replaced by Gooding. Likewise, Schnell et al., Eisner, Connick, and Ryan et al. are now incorporated into the respective combinations to address the amended claims.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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/BRYAN KIM/Examiner, Art Unit 1792
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