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 .
Drawings
The drawings are objected to because Fig. 1 item 150 appears to have a misspelling of “chunks” as it recites “chunsk”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 4 is objected to because of the following informalities: there appears to be a typographical error as “configure” in line 7 should be “configured”. 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 and 4 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.
Regarding claim 1, the phrases "wafer-like" and “tray-like” render the claim indefinite because the claim includes elements not actually disclosed (those encompassed by "-like"), thereby rendering the scope of the claim unascertainable. See MPEP § 2173.05(d).
Regarding claim 4, the phrases "wafer-like" and “tray-like” render the claim indefinite because the claim includes elements not actually disclosed (those encompassed by "-like"), thereby rendering the scope of the claim unascertainable. See MPEP § 2173.05(d).
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 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over UA (UA 146165 U; Jan. 20, 2021; See English Translation).
Regarding claim 1, UA discloses a method of manufacturing a broth product comprising the steps of preparing a fish broth, which corresponds to the claimed step of extracting a liquid broth from a set of chosen ingredients (e.g. in this case fish is the ingredient), placing the broth in freeze dryer trays, which correspond to applicant’s “tray-like sheet pan”, freezing the broth and sheet pan for a specified time until frozen, and freeze drying the frozen broth to evaporate the moisture, which corresponds to the claimed step of freeze drying until desiccated (page 2, para 1-4 of English Translation).
With respect to the step of straining off the resulting broth into a tray-like sheet pan, UA teaches that a “filtered broth” is distributed to the freeze dryer trays (page 2 para 2 and 4 of English Translation), and therefore UA renders obvious a step of straining the resulting broth into trays.
With respect to the preamble and the method producing a fluffy, desiccated, wafer-like broth product, UA fails to specifically teach a fluffy, desiccated, wafer-like broth product, but teaches the same steps as claimed (e.g. extracting, straining, freezing and freeze drying until desiccated) (page 2 para 2 and 4 of English Translation) and therefore the product of UA would necessarily be a fluffy, desiccated, wafer-like broth product absent a showing otherwise.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the products are produced by substantially identical processes and therefore the product of UA would inherently have the claimed characteristics. The claims do not recite any specifics with respect to freeze drying that are required to form a product having the claimed characteristics. Therefore, as UA teaches the claimed processing steps and freeze drying until desiccated, the product of UA is considered to have the same characteristics as claimed.
Further, it would have been obvious to one of ordinary skill in the art to freeze dry the frozen broth for a time sufficient to produce a desired texture of the broth product.
Regarding claims 2-3, as stated above with respect to claim 1, UA teaches a desiccated broth product (page 2 para 1-4 of English Translation). UA, however, fails to specifically teach that the desiccated broth product is a wafer-like shard further comprising a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer that is either a vertical wall structure or an oblique wall structure.
As UA teaches a desiccated broth product that is prepared by the same process as the broth product as claimed (e.g. extracting, straining, freezing and freeze drying until desiccated) (page 2 para 2 and 4 of English Translation), the product of UA would necessarily be a wafer-like shard further comprising a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer that is either a vertical wall structure or an oblique wall structure absent a showing otherwise.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the products are produced by substantially identical processes and therefore the product of UA would inherently have the claimed characteristics/structure. The claims do not recite any specifics with respect to freeze drying that are required to form a product having the claimed characteristics/structure. Therefore, as UA teaches freeze drying until desiccated, which is the same as claimed, the product of UA is considered to have the same characteristics/structure as claimed.
Further, it would have been obvious to one of ordinary skill in the art to freeze dry the frozen broth for a time sufficient to produce a desired structure for the broth product.
Regarding claim 4, UA further teaches a system for manufacturing a broth product comprising broth ingredients (e.g. fish and liquid to make the fish broth), at least one tray-like sheet pan where the broth is poured and frozen for a specified time, and a freeze dryer configured to hold the at least one tray and dry the broth until moisture is evaporated (e.g. desiccated) (page 2 para 1-4 of English Translation).
With respect to the system comprising at least one extraction container wherein the ingredients are rendered for a specified time in a liquid to product a broth, UA teaches preparing a fish broth (page 2 para 2 and 4 of English Translation), which would necessarily be prepared using fish ingredients rendered in a liquid. Therefore, as UA teaches a step of preparing a fish broth, it would have been obvious for the system of UA to comprise an extraction container to render the fish and liquid in order to produce the fish broth.
With respect to the system producing a fluffy, wafer-like broth product, wherein it is desiccated into shards of a thin, wafer with a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer, UA fails to specifically teach a fluffy, wafer-like broth product comprising shards of a thin, wafer with a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer, but teaches the same steps as claimed (e.g. extracting, straining, freezing and freeze drying until desiccated) (page 2 para 1-4 of English Translation) for producing the fluffy, wafer-like broth product comprising shards of a thin, wafer with a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer and therefore the product of UA would necessarily be a fluffy, wafer-like broth product comprising shards of a thin, wafer with a flaky top layer, a flaky bottom layer, and at least one wall structure between the top and the bottom layer absent a showing otherwise.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the products are produced by substantially identical processes and therefore the product of UA would inherently have the claimed characteristics/structure. The claims do not recite any specifics with respect to freeze drying that are required to form a product having the claimed characteristics/structure. Therefore, as UA teaches freeze drying until desiccated, which is the same as claimed, the product of UA is considered to have the same characteristics as claimed.
Further, it would have been obvious to one of ordinary skill in the art to freeze dry the frozen broth for a time sufficient to produce a desired texture of the broth product.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional cited prior art is considered relevant as they pertain to freeze-drying broth products. Jung (US 2011/0171361) discloses a broth product that involves combining broth ingredients and freeze drying the product for packaging (Abstract). Kelly (AU 2017101686) discloses wafter like broth chips made from freeze-drying chicken broth. Harvest Right (NPL Reference) discloses a method of freeze-drying bone broth by extracting a broth liquid, starting the liquid, and freeze drying the frozen liquid in trays.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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, Nikki Dees can be reached at (571) 270-3435. 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.
/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791