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 .
EXAMINER’S REMARKS
Examiner notes that the instant application is a continuation in part of parent application 17/652,228, which has been abandoned. FIG. 5 of the instant application and the disclosure of the ultrasonic cleaner machine 500 used to sonicate the yogurt precursor samples at the specific ultrasonic frequency of 40 kHz was not previously disclosed in the parent ‘228 application. Claim 22 recites the limitations “sonicating the yogurt precursor includes sonicating the yogurt precursor at a frequency of 40 kHz,” which limitations were not disclosed in the parent ‘228 application. Therefore, Claim 22 of the instant application is afforded an effective filing date of the filing date of the instant application of January 25, 2024. Claims 1-21 of the instant application recites verbatim the limitations of Claims 1-21 of the parent ‘228 application, which limitations were previously supported in the disclosure of the parent ‘228 application. Therefore, Claims 1-21 of the instant application is afforded an effective filing date of the priority date of the parent ‘228 application, which has an effective filing date of the provisional 63/153,342 application of February 24, 2021. Therefore, Claims 1-21 of the instant application are afforded an effective filing date of February 24, 2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on May 6, 2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-22 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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “enhanced consistency” in line 5. The term “enhanced” is a relative term which renders the claim indefinite. The term “enhanced” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Amamcharla et al. US 2021/0186041 discloses a Greek style yogurt made by straining fermented yogurt in a cloth bag by centrifugation wherein the viscosity of micro and nanobubble containing Greek style yogurt is consistently lower than Greek style yogurt with no bubbles (‘041, Paragraph [0048]). Amamcharla et al. teaches that different Greek style yogurts can have different viscosities based upon the degree of bubbles incorporated into the Greek style yogurt. Viscosity is a standard of measurement of the consistency of the Greek style yogurt. Amamcharla et al. teaches that not all Greek style yogurts have the same consistency. It is unclear what a yogurt having an “enhanced” consistency that approximates a Greek style yogurt is. The claims do not specify any particular consistency/viscosity measurements for the claimed Greek style yogurt. Therefore, the recitation of an “enhanced” consistency is unclear.
Claim 1 recites the limitation “enhanced consistency to approximate a Greek style yogurt” in lines 5-6. It is unknown what constitutes approximately a Greek style yogurt. Lyle et al. US 2015/0320064 discloses a Greek style yogurt added to a final creamy yogurt base wherein Greek yogurt is added in amounts of 50-95% depending on the final desired thickness and consistency of the product (‘228, Paragraph [0012]). It is also unknown what consistency levels/viscosity levels are required to read on approximating a Greek style yogurt since Greek style yogurts can have a variety of consistency levels.
Claim 15 recites the limitation “a fermentation vessel” in line 2 It is unclear if this refers to “a fermentation vessel” recited in Claim 12, line 2 or to an entirely different fermentation vessel. For purposes of examination Examiner interprets the claim to refer to the same fermentation vessel.
Clarification is required.
Claims 2-14 and 16-22 are rejected as being dependent on a rejected base claim.
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 1-8, 12-13, 16, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024).
Regarding Claim 1, Lexi discloses a method for making yogurt (Lexi, Page 2). The method comprises maintaining a yogurt precursor including a liquid milk product (whole milk) and a live culture (yogurt starter) (Lexi, Ingredients on Page 11) at a fermentation temperature during a fermentation period (Lexi, Step 5 on Page 11). The yogurt precursor is used to make the yogurt having a consistency that approximates a Greek style yogurt (homemade Greek yogurt) (Lexi, Page 2).
Lexi is silent regarding sonicating the yogurt precursor according to a schedule during the fermentation period to produce the yogurt.
Mohammadi et al. discloses a method for making yogurt comprising sonicating a yogurt precursor (by applying music waves) during fermentation (Mohammadi et al., Page 193) wherein an increasing activity of starter bacteria during fermentation as affected by sonication was observed due to efficient convection of the fermenting media compared to the still fermenting media resulting in a good distribution of starter cells throughout the yogurt milk and higher probability of exposure of lactose to the cells while influencing the cell membrane permeability and nutrient uptake into the cells wherein music waves significantly increase the cell activity and acidification rate of yogurt and probiotic bacteria while significantly reducing the viable counts of microorganisms at the end of fermentation (Mohammadi et al., Page 196).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Lexi and sonicate the yogurt precursor during the fermentation period as taught by Mohammadi et al. in order to increase the activity of the starter bacteria during fermentation while significantly reducing the viable counts of microorganisms at the end of the fermentation.
Further regarding Claim 1, although Lexi modified with Mohammadi et al. does not explicitly state that the sonication of the yogurt precursor leads on yogurt having an “enhanced” consistency, where the claimed and prior art products are identical or substantially identical in structure or composition or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). One of ordinary skill in the art would expect the sonication method of Mohammadi et al. to behave in the same manner as claimed, i.e. produce yogurt having an “enhanced” consistency. It is noted that none of the sonication parameters are claimed. Any sonication would necessarily lead to any enhanced consistency in the yogurt.
Further regarding Claim 1, it is noted that the limitations regarding the yogurt having an “enhanced” consistency to approximate a Greek style yogurt are unclear in view of the rejections to 35 USC 112(b) provided above.
Further regarding Claim 1, it is noted that the parameters of “a schedule” is not defined. Any sonication of the yogurt precursor reads on the broad limitation “a schedule.”
Regarding Claim 2, Lexi discloses a duration of the fermentation period being between 12-16 hours (Lexi, Tip 5 on Page 8), which falls within the claimed duration of the fermentation period of 12 to 18 hours. Where the claimed duration of the fermentation period time ranges encompasses duration of fermentation period ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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.). Furthermore, differences in the duration of the fermentation period will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such duration of the fermentation period is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable fermentation duration periods by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Lexi discloses that the fermentation time influences the tanginess of the yogurt. One of ordinary skill in the art would adjust the fermentation time based upon the desired tanginess level of yogurt desired.
Regarding Claim 3, Lexi discloses the duration of the fermentation period being between 12-16 hours (Lexi, Tip 5 on Page 8), which overlaps the claimed duration of fermentation period of 15 to 16 hours. Where the claimed duration of fermentation period time ranges encompasses fermentation period duration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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.). Furthermore, differences in the duration of fermentation period will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such duration of fermentation period is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable fermentation duration periods by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Lexi discloses that the fermentation time influences the tanginess of the yogurt. One of ordinary skill in the art would adjust the fermentation time based upon the desired tanginess level of yogurt desired.
Regarding Claim 4, Lexi discloses maintaining the yogurt precursor at the fermentation temperature during the fermentation period including maintaining the yogurt precursor at a temperature of 105°F-110°F (Lexi, Step 3 on Page 11), which lies inside the claimed fermentation temperature of 105°F-115°F. Where the claimed fermentation temperature ranges lies inside fermentation temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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 Claim 5, Lexi discloses maintaining the yogurt precursor at the fermentation temperature during the fermentation period including maintaining the yogurt precursor at a temperature of 105°F-110°F (Lexi, Step 3 on Page 11), which overlaps the claimed fermentation temperature of 108°F-112°F. Where the claimed fermentation temperature ranges lies inside fermentation temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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 Claim 6, Lexi discloses maintaining the yogurt precursor at the fermentation temperature during the fermentation period including maintaining the yogurt precursor at a temperature of 105°F-110°F (Lexi, Step 3 on Page 11), which encompasses the claimed fermentation temperature of 110°F. Where the claimed fermentation temperature ranges encompasses fermentation temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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 Claim 7, Lexi discloses adding the live culture to the liquid milk product to make the yogurt precursor (Lexi, Step 4 on Page 11).
Regarding Claim 8, Lexi discloses heating the liquid milk product to an elevated temperature (Lexi, Step 2 on Page 11), reducing the elevated temperature to the fermentation temperature and maintaining the fermentation temperature (105°F-110°F) (Lexi, Step 3 on Page 11), and then adding the live culture after the temperature is reduced to the fermentation temperature (Lexi, Step 4 on Page 11).
Further regarding Claim 8, the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.).
Regarding Claim 12, Lexi discloses introducing the liquid milk product to a fermentation vessel (Instant Pot) (Lexi, Steps 1-2 on Page 11).
Regarding Claim 13, Lexi discloses introducing the liquid milk product to the fermentation vessel including introducing whole milk (4 cups whole milk) to the fermentation vessel (Instant Pot) (Lexi, Ingredients Section and Steps 1-2 on Page 11).
Regarding Claim 16, Mohammadi et al. discloses sonicating the yogurt precursor (Mohammadi et al., Page 193).
Further regarding Claim 16, it is noted that the parameters of “according to the schedule” and “a predetermined schedule” are not defined. Any sonication of a yogurt precursor reads on the broad limitation “according to the schedule” and “a predetermined schedule.”
Regarding Claim 21, Lexi modified with Mohammadi et al. discloses refrigerating the yogurt after the fermentation period (Lexi, Step 8 on Page 11).
Claims 9-10 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024) as applied to claim 8 above in further view of Christensen “Better Homemade Yogurt: 5 Ways to Make Thicker Yogurt” (<https://www.thekitchn.com/better-homemade-yogurt-5-ways-125442>) (published August 26, 2010) (cited on Information Disclosure Statement filed May 6, 2024) as further evidenced by Earl et al. US 2018/0295849 (cited on Information Disclosure Statement filed May 6, 2024).
Regarding Claims 9-10, Lexi discloses heating the liquid milk product to an elevated temperature of 180°F and then reducing the elevated temperature (cooling). The disclosure of heating the liquid milk product does not necessarily mean heating the liquid milk product to within 20°F of a boiling temperature of the liquid milk product. Additionally, Lexi modified with Mohammadi et al. is silent regarding heating the liquid milk product to an elevated temperature of 200°F.
Christensen discloses a method for making yogurt (Christensen et al., Page 2) comprising maintaining a yogurt precursor including a liquid milk product and a live culture and heating the liquid milk product to an elevated temperature of 200°F (Christensen et al., Step 1 on Page 3), which also reads on a temperature within 20°F of a boiling temperature of the liquid milk product.
Both Lexi and Christensen are directed towards the same field of endeavor of methods of making yogurt comprising maintaining a yogurt precursor including a liquid milk product and a live culture and heating the liquid milk product to an elevated temperature. Lexi discloses heating the liquid milk product to an elevated temperature of 180°F. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Lexi and heat the liquid milk product to an elevated temperature of 200°F, which also encompasses being within 20°F of a boiling temperature, since Christensen teaches that a heating temperature of 200°F was a well known and conventional heating temperature in the yogurt making art. Furthermore, Christensen teaches that heating to 200°F provides the beneficial effects of allowing some of the moisture in the milk to evaporate in the milk and concentrate the solids to produce a desired thickness (Christensen et al., Step 1 on Page 3).
Further regarding Claims 9-10, Earl et al. provides evidence that it was known in the food art that milk has a boiling point of 100.5°C (‘849, Paragraph [0008]), which converts to 213°F. The disclosure of Lexi modified with Christensen heating the liquid milk product to the elevated temperature of 200°F reads on the claimed step of heating the liquid milk product to within 20°F of a boiling temperature since Earl et al. teaches that the boiling point of milk is about 213°F.
Regarding Claim 14, Christensen discloses introducing 2% milk to the fermentation vessel (Christensen et al., Page 2). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Lexi that uses whole milk as the liquid milk product precursor and use 2% milk instead as taught by Christensen since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). One of ordinary skill in the art would adjust the type of milk fat content used depending on the desired thickness and cream levels. A higher fat content gives a thicker and creamier yogurt (Christensen et al., Page 2).
Regarding Claim 15, Christensen discloses adding liquid milk and a quantity of powdered milk to the fermentation vessel (Christensen et al., Step 4 on Page 3). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Lexi and add a quantity of powdered milk to the liquid milk as taught by Christensen based upon the desired thickness levels of the yogurt from the milk source (Christensen et al., Step 4 on Page 3).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024) as applied to claim 8 above as further evidenced by Earl et al. US 2018/0295849 (cited on Information Disclosure Statement filed May 6, 2024).
Regarding Claim 11, Lexi discloses heating the liquid milk product to the elevated temperature including heating the liquid milk product to a temperature of 180°F. Earl et al. provides evidence that it was known in the food art that milk has a boiling point of 100.5°C (‘849, Paragraph [0008]), which converts to 213°F. The disclosure of Lexi heating the liquid milk product to the elevated temperature of 180°F reads on the claimed peak temperature being below a full boil of the boiling temperature of milk of 100.5°C as evidenced by Earl et al.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024) as applied to claim 1 in further view of Melnik US 2014/0302205 (cited on Information Disclosure Statement filed May 6, 2024).
Regarding Claim 17, Lexi modified with Mohammadi et al. is silent regarding sonicating the yogurt precursor by applying a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration.
Melnik discloses a method of making yogurt (‘205, Paragraphs [0002]-[0003]) comprising sonicating a yogurt precursor (milk) by applying a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration (3 minutes pause) (‘205, Paragraph [0019]).
Both modified Lexi and Melnik are directed towards the same field of endeavor of methods of making yogurt using sonication techniques. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Lexi and apply a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration since Melnik teaches that this was a known technique to sonicate a yogurt precursor in the form of milk.
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024) and Melnik US 2014/0302205 (cited on Information Disclosure Statement filed May 6, 2024) as applied to claim 17 in further view of Cassone US 2008/0008796 (cited on Information Disclosure Statement filed May 6, 2024) and Lidner US 5,498,431 (cited on Information Disclosure Statement filed May 6, 2024).
Regarding Claims 18-20, Lexi modified with Mohammadi et al. is silent regarding applying a series of at least two pulse periods including a first pulse period having a first pulse duration and a first at least one quiescent period duration and applying a second pulse period and a second quiescent period and a third pulse period having a third pulse period duration and maintaining the third quiescent period.
Melnik discloses a method of making yogurt (‘205, Paragraphs [0002]-[0003]) comprising sonicating a yogurt precursor (milk) by applying a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration (3 minutes pause) (‘205, Paragraph [0019]).
Both modified Lexi and Melnik are directed towards the same field of endeavor of methods of making yogurt using sonication techniques. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Lexi and apply a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration since Melnik teaches that this was a known technique to sonicate a yogurt precursor in the form of milk.
Further regarding Claims 18-20, Lexi modified with Mohammadi et al. and Melnik is silent regarding applying a first pulse period having a first pulse period duration of approximately 1 hour wherein the first pulse period starts within an hour after the live culture is added wherein a first at least one quiescent period duration is approximately a half hour wherein applying the series of at least two pulse periods includes applying after the first at least one quiescent period ends a second pulse period having a second pulse period duration of approximately a half hour, applying the series of at least two pulse periods including applying after a second pulse period and following a second quiescent period having a duration of between six and twelve hours and a third pulse period having a third pulse period duration of approximately 1 hour or maintaining a third quiescent period of between two and eight hours after the third pulse period. However, Melnik discloses applying a series of at least two pulse periods having respective pulse period durations wherein the at least two pulse periods are separated by at least one quiescent period having a quiescent duration (pauses) (‘205, Paragraph [0019]). Additionally, Cassone discloses a method of making yogurt comprising maintaining a yogurt precursor and sonicating the yogurt precursor (‘796, Paragraph [0016]) for an effective period of time ranging from about 1 minute to about 24 hours with better results provided by exposure for a period of time ranging from about one minute to about one hour and an exposure lasting about 30 minutes providing optimal results for flavor enhancement (‘796, Paragraphs [0009] and [0022]). Lidner discloses a method of applying ultrasound to food comprising pulsed ultrasonic treatment for 10 seconds to 200 minutes duration (‘431, Column 4, lines 27-34) with a pulse sequence of 10 minutes sonic duration followed by 10 minutes pause and alternating the sonic duration and pause (‘431, Column 6, lines 25-31). Cassone teaches applying sonication to the yogurt precursor for a time period of up to about 24 hours and Lidner discloses applying pulsed ultrasonic treatments to food for up to 200 minutes duration. Differences in the pulse period durations and quiescent period durations will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pulse period durations and quiescent period durations is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). The combination of Melnik, Cassone, and Lidner teaches varying the sonication times and pulse durations applied to a food item.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Lexi “How to Make Yogurt in the Instant Pot” (<https://lexiscleankitchen.com/yogurt-in-instant-pot/>) (published January 23, 2019) (cited on Information Disclosure Statement filed May 6, 2024) in view of Mohammadi et al. “Effects of music waves on fermentation characteristics and viability of starter cultures in probiotic yogurt” (published 2011) (cited on Information Disclosure Statement filed May 6, 2024) as applied to claim 1 above in further view of Bhargava et al. “Advances in application of ultrasound in food processing: a review” (published January 2021) and Met al. WO 2019/096532.
Regarding Claim 22, Lexi modified with Mohammadi et al. is silent regarding sonicating the yogurt at the claimed sonication frequency of 40 kHz.
Bhagavara et al. discloses a method of processing yogurt using high intensity ultrasound to decrease the size of fat globules and to improve viscosity, decrease synersis, increase gel strength and accelerate fermentation (Bhargava et al., Page 8) wherein high intensity and low frequency ultrasound waves are characterized as disruptive and induce considerable effects on the physical, biochemical, and mechanical properties of food products and has a frequency ranging from 20 to 100 kHz and intensities from 10 to 1000 W/cm2 and has wide application in emulsification, defoaming, regulating of microstructures, and modification of textural attributes of fatty products (Bhargava et al., Page 2). The disclosure of processing yogurt using low frequency ranging from 20 to 100 kHz encompasses the claimed sonication frequency of 40 Hz. Met et al. discloses an ultrasonic yogurt machine made of a fermentation chamber and an ultrasonic transducer provided in the fermentation chamber (‘532, Paragraph [0033]) and a mixer to enable a more homogenous mixing as well as facilitating a homogeneous distribution of the ultrasonic waves (‘532, Paragraph [0038]) wherein a weight sensor is provided to measure the weight of the product during the fermentation process and enabling the value to be used for optimizing the energy, frequency, and duration values (‘532, Paragraph [0045]).
Modified Lexi, Bhagavara et al., and Met et al. are all directed towards the same field of endeavor of methods of making yogurt using sonication techniques. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Lexi and sonicate the yogurt at the claimed frequency of 40 kHz as taught by Bhagavara et al. since where the claimed sonication frequency ranges lies inside sonication frequency ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in sonication frequency will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such sonication frequency is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the sonication frequency applied to the yogurt of modified Lexi as a function of the weight, time, and energy parameters applied as suggested by Met et al.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Zombo US 6,684,681 discloses a mechanical ultrasonic device structured to create a vibration within a range of about 5 kHz to 40 kHz (‘681, Column 2, lines 20-22) on a test object (‘681, Column 4, lines 27-42).
Kofoed et al. WO 2008/017448 discloses a device for mixing an inhomogeneous food material comprising a vessel and a mixer arrangement and a method for controlling a mixing process of an inhomogenous food material in a vessel wherein an ultrasonic sensor is arranged in or at the vessel (‘962, Page 1) and a control unit connected to the ultrasonic sensor wherein the controller unit determines a mixture degree of the food material (‘448, Page 2) wherein the mixing process is stopped after a predefined mixture degree of the food material has been achieved and the mixing process is controlled to provide a sufficiently mixed food material to avoid overmixing (‘448, Page 3).
Mimouni et al. US 2017/0311635 discloses a cavitated fermented dairy product of Greek yogurt having an improved mouth feel (‘635, Paragraph [0003]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792