Detailed Action
Continued Examination Under 37 CFR 1.114
1. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9-12-25 has been entered.
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 § 112
2. 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.
Claim 10 is 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. The phrase “wherein the backbone has been removed, but still includes both scapula bones” renders the claim indefinite in that it is unclear to whether the backbone includes both scapular bones or if the food product includes both scapula bones.
Claim Rejections - 35 USC § 103
3. 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.
Claim(s) 1-2, 5 and 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7,175,517 to Weakley in view of “How to Use a Boning Knife to Cut Apart Chicken Carcass” to Kaneda and further in view of U.S. Patent No. 5,779,532 to Gagliardi.
Referring to claims 1 and 5, Weakley discloses a method for obtaining a food product for human consumption from a chicken back piece, the back piece comprising meat, at least a backbone, a first scapula and a second scapula included in the meat, the method comprising the steps of, inserting a knife in a length direction adjacent to the backbone at a first side in a width direction of the backbone – see figure 4, and subsequently cutting the meat in the first width direction away from the backbone – see column 6 lines 18-61 and figures 7-8 where cutting is made toward the user and not toward the backbone, inserting the knife in the length direction adjacent to the backbone at a second side in the width direction of the backbone – see figure 4 where the knife is inserted at each end of the incision, and subsequently cutting the meat in the second width direction away from the backbone – see column 6 lines 18-61 and figures 7-8 where cutting is made toward the user and not toward the backbone, and a meat cut with bones is removed from the backbone – see figures 12-13 and column 7 lines 3-43. Weakley does not disclose inserting the knife in the first or second width direction above the backbone and subsequently cutting in the length direction between the backbone and the first and second scapula bones so that the food product comprising a single meat cut with both scapula bones is removed from the backbone. Kaneda does disclose inserting the knife in the width direction above the backbone and subsequently cutting in the length direction between the backbone and the scapula bones so that the food product comprising a single meat product with both scapula bones is removed from the backbone – see pages 11-13 where as seen in the figures of page 11 and first figure of page 12 a single meat product is produced including meat and scapula bones. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Weakley and add the cutting between the backbone and scapula bones as disclosed by Kaneda, so as to yield the predictable result of effectively removing all usable meat from the carcass so as to gain a greater yield of meat as desired. Weakley as modified by Kaneda further discloses inserting the knife and cutting at the scapular bones as if sliding the knife under the scapula as seen in page 12 of Kaneda but does not disclose cutting under the first and second scapula bones and forming a single meat cut having both scapula bones. However, it would have been obvious to one of ordinary skill in the art to take the method of Weakley as modified by Kaneda and cut under the scapula bones in that the method would still be performed equally as well as intended in that as seen in pages 11-13 of Kaneda and producing a single meat product having the scapular bones, in that the cutting is performed at the scapula and therefore the meat obtained would be similar given the cutting under the scapula bones and the meat product can include portions of the scapula bones since the meat is cut at the scapula bones, so as to yield the predictable result of effectively removing all usable meat from the carcass so as to gain a greater yield of meat as desired. Weakley as modified by Kaneda further discloses a chicken butterfly food product comprising a single unitary meat cut including both the first and second scapula bones maintained within a meat portion is removed from the backbone – see pages 11-13 of Kaneda where as seen in the figures of page 11 and first figure of page 12 a single meat product is produced including meat and scapula bones. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Weakley and add the cutting between the backbone and scapula bones as disclosed by Kaneda, so as to yield the predictable result of effectively removing all usable meat from the carcass so as to gain a greater yield of meat as desired. Weakley as modified by Kaneda does not disclose a chicken a scrap back piece of a chicken remaining after removal of main edible parts including breast, wings and legs from a chicken carcass. Gagliardi does disclose a chicken a scrap back piece of a chicken remaining after removal of main edible parts including breast, wings and legs from a chicken carcass – see for example column 2 line 30 to column 5 line 25 and figures 1-6B detailing tender is removed and does not contain the breast, wings and legs. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Weakley as modified by Kaneda and add the back piece remains after removal of the breast, wings and legs as disclosed by Gagliardi, so as to yield the predictable result of providing the specific cut of meat desired by the user/consumer.
Referring to claim 2, Weakley as modified by Kaneda and Gagliardi further discloses the back piece comprises at least one of the chicken's front back, the top of the chicken's ribcage, the front neck, the upper spine or backbone – see at least front back, ribcage and upper backbone in figures 7-8 of Weakley and pages 11-13 of Kaneda and see front neck in figures 7-8 of Weakley.
Referring to claim 8, Weakley as modified by Kaneda and Gagliardi further discloses the chicken butterfly food product is used as a delicacy for human consumption – see columns 6-8 of Weakley and columns 2-5 of Gagliardi.
Referring to claim 9, Weakley as modified by Kaneda and Gagliardi further discloses wherein the scrap back piece is obtained after removing the main edible parts from the chicken carcass like the breast, wings and legs – see columns 2-3 and figures 1-6B of Gagliardi, and the back piece is commonly sold as scrap meat for preparing chicken soup – see capable of being used for chicken soup in columns 6-8 figures 7-13 of Weakley and columns 2-5 and figures 1-6B of Gagliardi. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Weakley as modified by Kaneda and add the back piece remains after removal of the breast, wings and legs as disclosed by Gagliardi, so as to yield the predictable result of providing the specific cut of meat desired by the user/consumer.
Referring to claim 10, Weakley as modified by Kaneda and Gagliardi further discloses the chicken butterfly food product refers to a meat cut obtained from the back piece, and wherein the backbone has been removed, but still includes both scapula bones, and in the chicken butterfly both scapula bones remain on either side of the food product; as it were in the meat portion – see pages 11-13 of Kaneda where as seen in the figures of page 11 and first figure of page 12 a single meat product is produced including meat and scapula bones. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Weakley and add the cutting between the backbone and scapula bones as disclosed by Kaneda, so as to yield the predictable result of effectively removing all usable meat from the carcass so as to gain a greater yield of meat as desired.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weakley as modified by Kaneda and Gagliardi as applied to claim 1 above, and further in view of U.S. Patent No. 6,280,311 to Kuck.
Referring to claim 3, Weakley as modified by Kaneda and Gagliardi does not disclose cutting the food product comprising both the first and second scapula bones in the length direction with the knife and providing two second food products, each second food product comprising a second single meat cut including one of the first and second scapula bones. Kuck does disclose cutting the food product comprising both the first and second scapula bones in the length direction with the knife and providing two second food products, each second food product comprising a second single meat cut including one of the first and second scapula bones – see column 6 lines 10-56 and figures 14-16. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Weakley as modified by Kaneda and Gagliardi, and add the two food products formed as disclosed by Kuck, so as to yield the predictable result of ensuring the maximum amount of food products are obtained from the carcass during processing.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weakley as modified by Kaneda and Gagliardi as applied to claim 1 above, and further in view of U.S. Patent No. 6,745,477 to Gray.
Referring to claim 7, Weakley as modified by Kaneda and Gagliardi does not disclose the knife is a boning knife. Gray does disclose the knife – at 1, is a boning knife – see figure 1 and column 2 lines 55-65. Therefore it would have been obvious to one of ordinary skill in the art to take the method of Weakly as modified by Kaneda and Gagliardi and add the boning knife of Gray, so as to yield the predictable result of ensuring the bones are removed from the final meat product as desired.
Allowable Subject Matter
4. Claims 4, 6 and 11 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
5. Applicant’s claim amendments and remarks/arguments dated 9-12-25 obviates the 35 U.S.C. 112(b) rejections of claims 1-6 detailed in the last office action dated 3-13-25.
Applicant’s claim amendments and remarks/arguments dated 9-12-25 obviates the 35 U.S.C. 103 rejections of claims 1-3 and 5, detailed in the last office action dated 3-13-25. However, applicant’s claim amendments dated 9-12-25 necessitates the new grounds of rejection detailed earlier in paragraph 3 of this office action. Further, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The combination of the Weakley reference US 7175517 and the Kaneda reference “How to Use a Boning Knife to Cut Apart Chicken Carcass”, takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made in that as seen in Weakley and Kaneda as detailed earlier in paragraph 3 of this office action, processing/cutting a chicken carcass to provide for a meat product containing scapula bones is disclosed.
Regarding the prior art rejections of claim 3, applicant relies upon the same remarks/arguments with respect to parent claim 1 discussed earlier.
Regarding new claims 7-11, see paragraphs 3 and 4 of this office action.
Conclusion
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached at (571) 272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID J PARSLEY/Primary Examiner, Art Unit 3643