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 Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-20
Claims currently under consideration:
1-20
Currently rejected claims:
1-20
Allowed claims:
None
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 1-7, 9-12, and 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over Mason (US 20120004399 A1) in view of Romero (US 20220313744 A1).
Regarding claim 1, Mason teaches an egg powder obtained from egg yolks and/or egg albumen (i.e., egg whites), where both egg whites and egg yolk are known to be liquids ([0022]) and that the egg protein powder is obtained from egg products that can be homogenized egg products ([0047]). Mason also teaches that the egg mixture is spray dried ([0062]). Furthermore, Mason teaches that egg whites are high in protein, whereas egg yolks are lower in protein ([0004]-[0005]) and that variations in protein and fat in the egg mixture depend on the egg source ([0021]). Thus, it logically follows that the egg products of the composition in Mason is based upon the protein and solid content.
Although Mason does not explicitly state that the dried egg product comprises at least 95% of eggs, Mason does not disclose any additional ingredients that are added to the composition. Thus, one of ordinary skill would not have added any ingredients in addition to the raw egg products. Consequently, the product of Mason comprises 100% eggs, which falls within the claimed range of “at least 95%”.
Mason does not teach the composition comprising cooked eggs, the mixture being less viscous than the amount of cooked eggs, or wherein the amount of cooked eggs and the amount of liquid egg make up at least 95% by weight of the mixture.
However, in the same field of endeavor, Romero teaches an egg powder (Abstract) where the egg whites are separated from the egg liquid to make an egg white powder ([0011]). Romero also teaches that the eggs are cooked prior to drying ([0018]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the raw egg whites of Mason with the use of cooked egg whites as taught by Romero. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Although the cited prior art does not explicitly state that the amount of cooked eggs and liquid eggs are selected, one of ordinary skill would recognize that while performing the process of Mason in view of Romero, one would necessarily select the amount of ingredients that are included. Furthermore, although Mason does not teach a step for transporting the egg mixture form the mixing step to the drying step, it logically follows that the mixture would have to be transported to the mechanism used to perform the drying step.
Although the cited prior art does not explicitly teach that the mixture becomes less viscous than the amount of cooked eggs, one of ordinary skill would recognize that mixing a solid with a liquid homogenously would necessarily result in a decrease in viscosity compared to the solid eggs alone.
Regarding claims 2-5, although Mason does not explicitly state that the dried egg product comprises at least 95% of eggs, Mason does not disclose any additional ingredients that are added to the composition. Thus, one of ordinary skill would not have added any ingredients in addition to the raw egg products. Consequently, the product of Mason comprises 100% eggs, which falls within the claimed range of “at least 98%” (claim 2), “at least 99%” (claim 3), “at least 99.9%” (claim 4), and meetings the limitation of claim 5 consisting essentially of the cooked eggs and liquid egg.
Regarding claims 6-7, although the cited prior art does not teach the amount of cooked eggs compared to the amount of liquid egg, Mason teaches that egg whites are high in protein whereas egg yolks are high in fats ([0004]-[0005]). Therefore, one of ordinary skill in the art would have adjusted the amount of cooked egg whites compared to the amount of raw liquid egg yolks during routine optimization to arrive at a dried egg product that has the desired amount of protein and fats. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed range would thus be obvious.
Regarding claim 9, although the Mason teaches microfiltration to obtain a protein concentrate ([0018]) and Romero teaches a deashing step using ultrafiltration or nanofiltration ([0082]), MPEP §2144.04(II)(A) states “omission of an element and its function is obvious if the function of the element is not desired” and “In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (deleting a prior art switch member and thereby eliminating its function was an obvious expedient).” Thus, one of ordinary skill would have found it obvious to omit the filtration step if concentrating the protein content of the eggs and removal of ash is not desired.
Regarding claim 10, Mason teaches that if desired, water can be added during processing ([0061]). Thus, one of ordinary skill would recognize that the process can be performed without the addition of water.
Regarding claim 11, Mason teaches an egg powder obtained from egg yolks and/or egg albumen (i.e., egg whites), where both egg whites and egg yolk are known to be liquids ([0022]) and that the egg protein powder is obtained from egg products that can be homogenized egg products ([0047]). Mason also teaches that the egg mixture is spray dried ([0062]). Although Mason does not teach a step for transporting the egg mixture form the mixing step to the drying step, it logically follows that the mixture would have to be transported to the mechanism used to perform the drying step.
Mason does not teach the composition comprising cooked eggs, the mixture being less viscous than the amount of cooked eggs, or wherein the mixture is not processed through a filter or membrane for removing water.
However, in the same field of endeavor, Romero teaches an egg powder (Abstract) where the egg whites are separated from the egg liquid to make an egg white powder ([0011]). Romero also teaches that the eggs are cooked prior to drying ([0018]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the raw egg whites of Mason with the use of cooked egg whites as taught by Romero. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Although the Mason teaches microfiltration to obtain a protein concentrate ([0018]) and Romero teaches a deashing step using ultrafiltration or nanofiltration ([0082]), MPEP §2144.04(II)(A) states “omission of an element and its function is obvious if the function of the element is not desired” and “In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (deleting a prior art switch member and thereby eliminating its function was an obvious expedient).” Thus, one of ordinary skill would have found it obvious to omit the filtration step if concentrating the protein content of the eggs and removal of ash is not desired.
Although the cited prior art does not explicitly state that the amount of cooked eggs and liquid eggs are selected, one of ordinary skill would recognize that while performing the process of Mason in view of Romero, one would necessarily select the amount of ingredients that are included.
Although the cited prior art does not explicitly teach that the mixture becomes less viscous than the amount of cooked eggs, one of ordinary skill would recognize that mixing a solid with a liquid homogenously would necessarily result in a decrease in viscosity compared to the solid eggs alone.
Regarding claim 12, Mason teaches that if desired, water can be added during processing ([0061]). Thus, one of ordinary skill would recognize that the process can be performed without the addition of water.
Regarding claim 14, Mason teaches that the egg protein powder is obtained from egg mixtures that can be homogenized egg products ([0047]). Thus, one of ordinary skill would recognize that a homogenization step would necessarily be required to create a homogenized egg product. Mason also teaches that the egg mixture is spray dried ([0062]).
Regarding claim 15, although the cited prior art does not teach that the cooked eggs are ground into a paste prior to mixing, MPEP §2144.04(IV)(C) states “In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results)”. Thus, it would be obvious to perform the grinding step to turn the solid eggs into paste at the same time as the step of mixing together the solid and the liquid egg portions.
Regarding claim 16, Mason teaches an egg powder (Abstract).
Regarding claim 17, Mason teaches an egg powder obtained from egg yolks and/or egg albumen (i.e., egg whites), where both egg whites and egg yolk are known to be liquids ([0022]) and that the egg protein powder is obtained from egg products that can be homogenized egg products ([0047]). Mason also teaches that the egg mixture is spray dried ([0062]).
Although the cited prior art does not explicitly state that the amount of cooked eggs and liquid eggs are selected, one of ordinary skill would recognize that while performing the process of Mason in view of Romero, one would necessarily select the amount of ingredients that are included. Furthermore, although Mason does not teach a step for transporting the egg mixture form the mixing step to the drying step, it logically follows that the mixture would have to be transported to the mechanism used to perform the drying step.
Regarding claim 18, Mason teaches that the composition comprises egg yolk (Abstract).
Mason does not teach wherein the cooked eggs comprises hard-boiled eggs, the amount of cooked eggs comprising from 0 to 20 wt% of shell.
However, in the same field of endeavor, Romero teaches that the eggs may be hard-boiled eggs and that the eggs are deshelled to remove the shell pieces ([0011]). Thus, the eggs would comprise 0% shell, which falls within the claimed range of “0 to 20 wt%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Mason with the use of hard-boiled eggs as taught by Romero. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Regarding claim 19, Mason teaches that if desired, water can be added during processing ([0061]). Thus, one of ordinary skill would recognize that the process can be performed without the addition of water.
Claims 8 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Mason (US 2012/0004399 A1) in view of Romero (US 2022/0313744 A1) as applied to claim 1, and further in view of Campbell (US 2008/0268124 A1).
Regarding claims 8 and 20, Mason teaches that the egg powder comprises about 60% by weight of protein ([0023]), which lies close to the claimed amount of “between 35% and 56%”.
With respect to the close range, MPEP §2144.05 states a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Mason and Romero do not teach that the solids content of the dried egg product is between 90% and 99%.
However, in the same field of endeavor, Campbell teaches a dried egg product (Abstract) with a final moisture content of less than 10% by weight ([0014]), equivalent to 90% or more solids content, which overlaps with the claimed range of “between about 90% and 99%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Mason to dry the egg product to the moisture content of Campbell. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Mason (US 2012/0004399 A1) in view of Romero (US 2022/0313744 A1) as applied to claim 11, and further in view of Lele (US 11,154,081 B1).
Regarding claim 13, the cited prior art does not teach wherein the mixing step utilizes at least one mixing machine selected from the group consisting of a mix tank mixer, a shear mixer, and a grinder.
However, in the same field of endeavor, Lele teaches of an egg food product (Abstract) that is mixed using a high-sheer mixer (col. 3, lines 8-10).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Mason to use a high-shear mixer as taught by Lele. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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