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 .
Election/Restrictions
Applicant’s election without traverse of claim 31-35 in the reply filed on 3/31/2026 is acknowledged.
Claim Interpretation
The Examiner wishes to point out to the Applicant that claims 31-35 are directed towards an apparatus and as such will be examined under such conditions. The material worked upon or the process of using the apparatus is viewed as recitation of intended use and is given patentable weight only to the extent that structure is added to the claimed apparatus (Please see MPEP 2112.01 I and 2114-2115 for further details).
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 31-35 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. Dependent claims not rejected separately are rejected due to their dependency.
Claim 31 is seen as vague and indefinite due to an inconsistency in one of the possible embodiments. In lines 3-4 there are a plurality of conduits each defining a steam of a different food component. Then in lines 5-6 one or more of said streams are divided into sub-streams and combined into a first stream. This first stream comprises two or more layers/features of two or more different food components, lines 6-8. The problem arises with the embodiment where only one of the stream in lines 5-6 is divided into sub-streams. It is not possible to then create a first stream made of two or more different food components, in this embodiment the first stream can only be made of one food component. The only possible way for the first stream to have two or more food components is for two or more streams to be divided into sub-streams.
Claim 34 recites the limitation "a multiplying unit" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 31 already claims a “multiplying element”, is the “multiplying unit” the same or different than the previous claimed “multiplying element”? For examination purposes they will be treated as the same.
Claim 34 recites the limitation "two or more different material streams, each stream being of a different extruded material" in lines 4-5. There is insufficient antecedent basis for this limitation in the claim. Claim 31 already claims “a plurality of conduits each defining a stream of a different food component”, is the limitation of claim 34 the same as 31 or different? For examination purposes they will be treated as the same.
Claim 35 recites the limitation "a multiplying unit" in line 7. There is insufficient antecedent basis for this limitation in the claim. Claim 31 already claims a “multiplying element”, is the “multiplying unit” the same or different than the previous claimed “multiplying element”? For examination purposes they will be treated as the same.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 32 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 32 states any orientation can be used. This is naturally the broadest reasonable interpretation of claim 31. Any orientation in claim 32 cannot not further limit claim 31, since that is already the broadest permissible orientation in claim 31.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, 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
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 31-35 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wimberger-Friedl et al (US 6707885; herein Wimberger-Friedl). Regarding claim 31:
Wimberger-Friedl teaches the system of claim 31 in Figure 7:
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Regarding claim 32:
As seen in Figure 7 the layers are in arranged in any orientation to each other.
Regarding claim 33:
Wimberger-Friedl teaches the material flows 12 and 13 are coextruded, column 4, lines 6-9.
Regarding claim 34:
As previously discussed Wimberger-Friedl teaches a co-extrusion assembly with two different material sources and a multiplying unit. Wimberger-Friedl naturally teaches an exit die, otherwise the end product would not come out of the apparatus. The claimed function of the multiplying unit is as shown in the above annotated Figure 7. Any exit die controls the external contour of the product exiting the die.
Regarding claim 35:
The entirety of Figure 7 plus the unshown exit die teach the requirements of claim 35. There is a back end and exit end. The two material flows 12 and 13 are positioned at the back end and extend outwardly from the back end. The flow therefrom creates a path of material through the multipliers in a direction of the exit.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The additional art shows different variations of co-extrusion layer multipliers, and show different variations on apparatuses for creating layered food products.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY J KENNEDY whose telephone number is (571)270-7068. The examiner can normally be reached Mon-Fri 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, Galen Hauth can be reached at 571-270-5516. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY KENNEDY/Primary Examiner, Art Unit 1743
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