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 Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 15 is rejected under 35 U.S.C. 101 because Independent claim 10 is not directed to a single statutory invention and instead “embraces or overlaps two different statutory classes of invention" and thus the claim is directed to neither a "process" nor a "machine" (See MPEP 2173.05 (II)).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 15 is rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claim 15 is rejected since claim 15 is an Independent claim which refers in dependent to Independent claim 1. Claim 15 uses the placeholder of “at least one apparatus according to claim 1” and thus is in improper dependent form. Applicant is urged to rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-7 and 9-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Breel et al. (WO2021136846).
Breel et al. teaches an apparatus for texturizing meat-like material (pg. 19 lines 22-23), the apparatus comprising at least one tool (fig. 1), wherein the tool forms a mixing chamber for meat-like material (pg. 21 lines 17-19 chamber ref. 2 fig. 1), and wherein the mixing chamber has opposite chamber walls (pg. 21 lines 17-22; fig. 1 ref. 21, 24) rotatable relative to each other (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28) for controlling forces exerted on material located therebetween (pg. 23 lines 24-27).
With respect to the apparatus intended use, it is noted the recitation in the claim that the apparatus is “for producing protein breakdown on meat material, the apparatus comprising at least one tool configured for producing protein breakdown on meat material” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Breel discloses the apparatus comprising at least one tool (fig. 1), wherein the tool forms a mixing chamber for meat-like material (pg. 21 lines 17-19 chamber ref. 2 fig. 1), and wherein the mixing chamber has opposite chamber walls (pg. 21 lines 17-22; fig. 1 ref. 21, 24) rotatable relative to each other (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28) for controlling forces exerted on material located therebetween (pg. 23 lines 24-27) as presently claimed, it is clear that the apparatus of Breel would be capable of performing the intended use, i.e. for producing protein breakdown on meat material, the apparatus comprising at least one tool configured for producing protein breakdown on meat material, as presently claimed as required in the above cited portion of the MPEP, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
Further MPEP 2115 states material or article worked upon does not limit the apparatus claims.
A claim is only limited by positively recited elements. Thus, “[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935).
With respect to claim 2, wherein the mixing chamber has chamber walls rotatable coaxially relative to each other (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28).
Claim 3, wherein the chamber walls are rotatable relative to each other about a common vertical rotation axis (pg. 21 lines 14-16).
Claim 4, wherein the chamber walls are rotatable at different rotational speeds (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28 in a first instance relative with respect to different speed concurrently, encompassing one wall with one wall without rotation; alternatively with respect to variable pg. 19 lines 19-20; range).
Claim 5, the apparatus comprises two separate electric motors for driving the chamber walls (pg. 10 lines 4-5; motor attached to lid; pg. 10 lines 26-28; “also comprises” motor attached to frame)
Claim 6, wherein the mixing chamber has at least partially conical and/or cylindrical chamber walls which are rotatable relative to each other (pg. 20 lines 14-21; pg. 22 lines 1-2).
Claim 7, wherein at least one of the chamber walls rotatable relative to each other has a baffle for the meat material (pg. 12 lines 24-27; per applicants specification recess, elevation).
Claim 9, wherein the apparatus comprises a feeding device (pg. 21 lines 23-26) for feeding meat material into the mixing chamber (pg. 21 lines 28-29; displace) and/or a receptacle for meat material (pg. 21 line 28; interior of outer member), from which the meat material can be fed into the mixing chamber (pg. 21 lines 28-29; displace).
Claim 10, the mixing chamber comprises both a feeding opening (pg. 6 lines 26-29; opening in lid) for meat material and a discharge opening (pg. 18 line 30 lid removed), formed separately therefrom (different), for meat material with protein breakdown.
Claim 11, wherein the tool has a rotatable drum and a rotating body mounted coaxially therein and rotatable independently of the drum (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28), wherein the drum and the rotating body form the chamber walls (pg. 21 lines 12-22) of the mixing chamber which are rotatable relative to each other (pg. 22 lines 1-2).
Claim 12, wherein the drum forms a cylindrical or conical drum wall facing the rotating body and the rotating body forms a cylindrical or conical rotating body wall facing the drum (pg. 21 lines 12-22), wherein the drum wall and the rotating body wall form the other rotatable chamber walls of the mixing chamber (pg. 21 lines 12-22).
Claim 13, the apparatus has a discharge device (pg. 21 lines 28-29; displace) connected to the mixing chamber for meat material treated by the tool (pg. 21 lines 28-29; displace).
Claim 14, wherein a vacuum can be generated within the mixing chamber (pg. 23 lines 1-3 high to low pressure; expand within).
Claims 1-2, 6-7, 9-10, 13 and 15-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cheney (2729947).
Cheney teaches an apparatus for meat material (col. 1 lines 15-16), the apparatus comprising at least one tool (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1), wherein the tool forms a mixing chamber for meat material (col. 2 lines 50-52 “forcibly urging”), and wherein the mixing chamber has opposite chamber walls (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1) rotatable relative to each other (col. 2 lines 50-54) for controlling forces exerted on material located therebetween (col. 2 lines 56-57; selectively advanced).
With respect to the apparatus intended use, it is noted the recitation in the claim that the apparatus is “for producing protein breakdown on meat material, the apparatus comprising at least one tool configured for producing protein breakdown on meat material” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Cheney teaches an apparatus for meat material (col. 1 lines 15-16), the apparatus comprising at least one tool (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1), wherein the tool forms a mixing chamber for meat material (col. 2 lines 50-52 “forcibly urging”), and wherein the mixing chamber has opposite chamber walls (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1) rotatable relative to each other (col. 2 lines 50-54) for controlling forces exerted on material located therebetween (col. 2 lines 56-57; selectively advanced) as presently claimed, it is clear that the apparatus of Breel would be capable of performing the intended use, i.e. for producing protein breakdown on meat material, the apparatus comprising at least one tool configured for producing protein breakdown on meat material, as presently claimed as required in the above cited portion of the MPEP, and thus, one of ordinary skill in the art would have arrived at the claimed invention.
With respect to claim 2, wherein the mixing chamber has chamber walls rotatable coaxially relative to each other (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1).
Claim 6, wherein the mixing chamber has at least partially conical and/or cylindrical chamber walls which are rotatable relative to each other (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1).
Claim 7, wherein at least one of the chamber walls rotatable relative to each other has a baffle for the meat material (col. 2 lines 53-54 helical screw).
Claim 9, wherein the apparatus comprises a feeding device (col. 2 lines 46-50) for feeding meat material into the mixing chamber (col. 2 lines 46-50).
Claim 10, the mixing chamber comprises both a feeding opening (col. 2 line 46-46; open top ref. 16) for meat material and a discharge opening (col. 2 lines 49-50), formed separately therefrom (feed vs discharge), for meat material with protein breakdown.
Claim 13, the apparatus has a discharge device (fig. 1 ref. 46; col. 3 lines 16-18) connected to the mixing chamber for meat material treated by the tool (col. 3 lines 16-18).
With respect to claim 15, a meat production plant comprising;
an apparatus for meat material (col. 1 lines 15-16), the apparatus comprising at least one tool (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1), wherein the tool forms a mixing chamber for meat material (col. 2 lines 50-52 “forcibly urging”), and wherein the mixing chamber has opposite chamber walls (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1) rotatable relative to each other (col. 2 lines 50-54) for controlling forces exerted on material located therebetween (col. 2 lines 56-57; selectively advanced).
A filling station (fig. 1 downstream ref. 17; col. 2 lines 59-64) at which pieces of meat material produced by means of the at least one apparatus can be filled into at least one mold (col. 2 line 60) provided at the filling station (col. 2 lines 59-64).
With respect to the apparatus intended use, it is noted the recitation in the claim that the apparatus is “meat material with protein breakdown” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case Cheney teaches a same claimed apparatus.
Independent method claim 16, a method for producing protein breakdown on meat material (col. 1 lines 15-17), the method comprising feeding meat material to at least one mixing chamber (col. 2 lines 49-53), wherein opposite chamber walls (col. 2 line 50 horizontally extending conduit, col. 2 line 54 shaft ref. 21; fig. 1) of the mixing chamber are rotatable relative to each other (col. 2 lines 50-54) for controlling forces exerted on material located therebetween (col. 2 lines 56-58).
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Breel et al. (WO2021136846) in view of Cheney (2729947).
With respect to Independent claim 15, a meat production plant comprising;
an apparatus comprising at least one tool (fig. 1), wherein the tool forms a mixing chamber for meat-like material (pg. 21 lines 17-19 chamber ref. 2 fig. 1), and wherein the mixing chamber has opposite chamber walls (pg. 21 lines 17-22; fig. 1 ref. 21, 24) rotatable relative to each other (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28) for controlling forces exerted on material located therebetween (pg. 23 lines 24-27).
Breel teaches the production of food products where the obtained foodstuff can be further processed into consumer-ready products (pg. 18 lines 33-34) and thus one of ordinary skill in the art would have been motivated to look to the art of post processing of meat products as taught by Cheney.
More specifically Cheney teaches providing meat pieces to a filling hopper for providing the mass (col. 2 lines 46-47) to molds for shaping and sizing (col. 2 lines 60-62)
Though silent to a filling station comprising a mold, since Breel is silent to post processing after removing from the apparatus. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to incorporate the teachings of Cheney with respect to the filling station and at least one mold provided at the filling station thus providing known production systems which achieves the art recognized purpose of allowing the obtained foodstuff to be further processed into consumer-ready products as taught and desired by Breel (pg. 18 lines 33-34) and obtaining the art recognized advantage of uniformly formed meat products of a desired weight consistency as further taught by Cheney(col. 1 lines 60-62).
With respect to Independent method claim 16, a method for producing protein breakdown on meat material, the method comprising feeding food material (pg. 17 lines 27-29) to at least one mixing chamber (pg. 17 lines 21-29), wherein opposite chamber walls of the mixing chamber are rotatable relative to each other (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28) for controlling forces exerted on material located therebetween (pg. 23 lines 24-27).
Breel teaches the food product mimicking meat and thus one of ordinary skill in the art would have been motivated to look to the art of meat production.
Cheney teaches an apparatus for producing meat products (col. 1 line 16)
Thus since Breel recognizes and teaches the food for mimicking actual meat products in texture. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute the meat mimicking product of Breel with meat material as taught by Cheney (col. 1 lines 16-18) thus providing the selection of a known food material based on its suitability for its intended use of food production for consumption.
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute the meat mimicking product of Breel with meat material as taught by Cheney (col. 1 lines 16-18) thus providing the selection of a known food material based on its suitability for its intended use of food production for consumption.
With respect to claim 17, the chamber walls can be rotated at least temporarily about a common vertical rotational axis (pg. 23 lines 24-27; pg. 22 lines 1-2; pg. 10 lines 5-6, lines 15-16, lines 27-28).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Breel et al. (WO2021136846).
With respect to claim 8, Breel teaches each of the inner and outer chamber walls comprising grooves and ridges (pg. 12 lines 24-34) or protrusions arranged in a certain pattern (pg. 13 lines 3-7). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a specific type groove or ridges such as in the instant case helical surfaces facing each other at least in some areas thus achieving a same advantage and purpose as taught by Breel of providing friction between the material and walls as compared to when the walls are smooth and achieving the art desired altering of the texture as taught by Breel (pg. 12 lines 24-34).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792