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 Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation, “cutting the at least one block of cheese into a multitude of cheese portions” (see line 9). For matters of form, this limitation should be amended to recite, “cutting the at least one block of cheese that has been smoked in the smoker into a multitude of cheese portions.”
Claim 1 recites, “placing the cheese portions onto a stainless steel support tray” (see line 10). For matters of form, this limitation should be amended to recite, “placing the multitude of cheese portions onto a stainless steel support tray.”
Claim 1 recites the limitation, “the cheese portions” on lines 10-11. For matters of form, this limitation should be amended to recite, “the multitude of cheese portions.”
Claim 1 recites the limitation, “inserting the support tray into a freezer” (see line 12). For matters of form, this limitation should be amended to recite, “inserting the support tray comprising the multitude of cheese portions into a freezer.”
Claim 1 recites, “the cheese portions” (see line 15, 18, 19). For matters of form, this limitation should be amended to recite, “the multitude of cheese portions.”
Claim 1 recites the limitation, “ensuing attainment of a required active water content.” For matters of form, the term, “ensuing” should be amended to recite, “after”
Appropriate correction is required.
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 1-6 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.
Claim 1 recites the limitation, “wherein the cheese portions are superposed the support tray in a single layer” (see lines 10-11). It is not clear as to what this limitation is intended to mean, because Applicant’s specification only refers to “the rack having the cheese superposed thereon is placed in a smoker.” (see page 3, paragraph 19 as filed). Therefore, it is not clear if the above limitation is intending to mean that the multitude of cheese portions has been superposed on the support tray in a single layer, or whether for example, the cheese portions are superposed on each other.
Claim 1 recites the limitation, “the allocated cheese portions” (see line 19-20) which lacks proper antecedent basis. This rejection can be overcome by amending the limitation to recite, “the allocated portion” or “the allocated cheese portion” or “the portion”
Claim 1 recites the limitation, “pulling a vacuum within the freezer, wherein the freezer is maintained at a vacuum for at least twenty four hours.” This limitation is not clear as to whether “a vacuum” that has been pulled is maintained for at least 24 hours, or whether a vacuum is pulled within the freezer and then another vacuum can be maintained for at least 24 hours. This rejection can be overcome by amending the limitation to recite, “pulling a vacuum within the freezer, wherein the freezer is maintained at the vacuum for at least twenty four hours.”
Claim 1 recites the limitation, “the cheese portions” on line 21. Claims 2 and 5 also recite, “the cheese portions.” These limitations lack proper antecedent basis as to which of the cheese portions the limitation is intending to refer to: the multitude of cheese portions or the allocated cheese portions as recited in claim 1.
Claim 2 recites, “the active water content.” It is not clear whether this is referring to “an active water content” as recited on line 18 of claim 1 or “a required active water content amount” as recited on lines 22-23.
Claim 3 recites, “the vacuum” which lacks proper antecedent basis because claim 1, lines 16-17 recite, “a vacuum” twice.
Claim 4 recites, “the allocated cheese portion” which lacks proper antecedent basis.
Claims 5 and 6 are rejected based on their dependence to a rejected claim.
Claim Rejections - 35 USC § 103
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.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over “Freeze Dry Society” in view of Jin (KR 101756973) and in further view of “Harvest Right” and Haddock (US 11744257) and in further view of Loucks (US 20180153186), De Picciotto (US 20210007377) and Xie (CN 109042895).
Regarding Jin (KR 101756973) and Xie (CN 109042895) a machine translation has been relied on and is included with this Office Action.
Regarding claim 1 it is noted that while some of the steps are necessarily in a particular order, the step of “pulling a vacuum within the freezer, wherein the freezer is maintained at a vacuum for at least twenty four hours” is not seen to be required to be performed after maintaining the cheese portions in the freezer for at least an hour, but rather can be performed after setting the temperature of minus 10 degrees Fahrenheit.
Nonetheless, and regarding claim 1, Freeze Dry Society teaches cutting at least one block of cheese into cheese portions and placing the portions onto a support tray in a single layer (see pages 1-4, which shows various flavors of cheese blocks and page 4 which shows cut portions placed onto a support tray). Freeze Dry Society further teaches that the portions can be used for making snacks such as crackers (see page 12 which discloses that slices from the blocks can be freeze dried into crackers). Freeze Dry Society further teaches inserting the support tray comprising the cheese portions into a freezer (see page 5 and the freeze dryer) and setting the temperature of the freezer to -10°F and maintaining the cheese portions in the freezer for at least an hour (see page 6 which discloses the initial freeze is at -10°F and the extra freeze time is 1 hour). It would have been obvious to one having ordinary skill in the art that the reference is teaching the settings as is directed toward maintaining the product in the freezer for an hour, which freezer has been set to -10°F. Freeze Dry Society teaches that the freezer dryer can freeze dry the cheese portions in, for example 1394 minutes or about one day (see page 44).
Claim 1 differs from “Freeze Dry Society” in specifically reciting that the type of cheese is smoked cheese that has been smoked at a temperature range between thirty two and seventy five degrees Fahrenheit.
However, “Freeze Dry Society” already teaches freeze drying a variety of different flavored cheese (see pages 1-3 which discloses cheese such as pepper jack, cheddar and mozzarella).
While Freeze Dry Society is not specific as to a smoked cheese, Jin teaches that it has been conventional to smoke cheese to provide it with a unique flavor (see the abstract), by exposing various types of cheese such as mozzarella, Edam or gouda to smoke from burning wood (see paragraph 8 of the machine translation) using temperatures such as 15-25°C (see paragraph 11 and 12, which discloses step 2 is performed at 15-25°C and is a step of smoking cheese), which is equivalent to 59-77°F (see also paragraph 49 which discloses smoking temperatures such as 18-20°C). Jin teaches placing the cheese in a smoker for at least one hour (see paragraph 37 and 49). At paragraph 25, Jin also teaches blocks of cheese that can be smoked, especially as the claim does not limit the particular size of the block and because Jin teaches that the size can be varied based on the particular degree of smoky flavor desired.
To therefore modify Freeze Dry Society and to first smoke a block of cheese in a smoker and then remove the smoked cheese so as to further process as already taught by Freeze Dry Society, would have been obvious to one having ordinary skill in the art for the purpose of providing freeze-dried cheese snacks with another desirable flavor, such as a smoked cheese flavor.
Claim 1 differs from the above combination in specifically reciting that the trays are stainless steel trays and pulling a vacuum within the freezer, wherein the freezer is maintained at a vacuum for at least 24 hours; testing the cheese portions for an active water content; allocating a portion of the cheese portions for packaging and packaging at the cheese portions after achieving a required active water content.
Regarding pulling a vacuum within the freezer, wherein the freezer is maintained at a vacuum for at least 24 hours, it is noted that Freeze Dry Society is teaching using a HARVEST RIGHT freeze dryer (see page 5 and the last page of the reference which discloses “Harvest Right Freeze Dryers & Accessories”).
In this regard, “Harvest Right” teaches that the freeze dryer works by first freezing the food and then pulling a vacuum in the freezer (see page 8, item#1-2 under FAQ’s). “Harvest Right” also teaches that it can typically take between 20-40 hours to freeze dry the food (see page 10, under FAQ’s “How Long Does It Take to Freeze Dry Each Batch).
Even further, Haddock teaches freeze-drying methods for vacuum freezing food such as cheese (see column 1, lines 5-10 and lines 65-66 and column 6, line 67) where the vacuum freezing can cool the food to any temperature from 0°F to -50°F, such as -10°F (see column 8, lines 44-54; column 9, lines 11-13) and pulling a vacuum within the freezer to help sublimate ice to remove water present in the food, which process can take anywhere from several hours to two days, encompassing the claimed “at least twenty four hours.” (see column 9, lines 33-39). Haddock further teaches that the freeze drying can lower the moisture content of the food such as to around 1% (see column 11, lines 4-6). Haddock also teaches using a HARVEST RIGHT freeze dryer (see column 12, line 12) and where the vacuum is at 500 mTorr (see column 5, lines 31-40; column 14, lines 4-8). Regarding the trays being stainless steel trays, Haddock further teaches stainless steel food trays that are used for supporting the food in the freeze dryer (see column 12, lines 21-23).
Since Freeze Dry Society, HarvestRight and Haddock are suggesting using a similar type of freezer, to therefore modify Freeze Dry Society and to maintain a vacuum in the freezer for at least 24 hours would have been obvious to one having ordinary skill in the art for the purpose of allowing moisture in the cheese to sublimate and therefore be removed from the cheese for producing a crisp cracker like snack, as already suggested by Freeze Dry Society. One having ordinary skill in the art would have been motivated to experiment with known freeze drying times for the purpose of achieving the requisite moisture removal from the cheese pieces.
Additionally since Freeze Dry Society already appears to teach some form of a metal tray (see page 4), it would have been obvious to one having ordinary skill in the art to use stainless steel trays as taught by Haddock because the prior art teaches that such trays have been conventionally used for the freeze drying of cheese.
Regarding testing the cheese portions for an active water content, and allocating portions for packaging that reach the desired active water content, it is initially noted that the limitation, “active water content” has been construed to mean the water activity, especially as Applicant’s specification does not provide any further guidance regarding this term, and since Applicant’s specification does not disclose “active water content” to mean a percentage. Furthermore, since claim 1 does not recite any specific water content, it would have been obvious to one having ordinary skill in the art that the above combination is teaching some active water content. Regarding allocating cheese portions that attain a required active water content for packaging, it would have been obvious to one having ordinary skill in the art to have packaged the produced snacks in some form of a package for subsequent storage. Nonetheless, Freeze Dry Society teaches packaging the freeze dried products into mylar bags (see page 45) and with an oxygen absorber (see page 7 which shows bags and placing oxygen absorbers in the bags; and page 57 which teaches placing an oxygen absorber in the packaging.).
The above combination does not specifically recite a step of “testing” for an active water content.
However, Loucks (US 20180153186) teaches freeze drying of cheese (see at least, the abstract), where one of the goals of freeze drying is also to provide shelf-stability; and water activity is an important consideration in this regard because water that is not bound to the food would be available to support the growth of microbes (see paragraph 10). Loucks further teaches drying the cheese to a water activity level such as 0.1 (see paragraph 40) where it would have been obvious to one having ordinary skill in the art that the reference is suggesting some degree of testing to ensure that the requisite water activity has been reached. If it could have been construed that this was not “testing” for water activity, then De Picciotto (US 20210007377) teaches that it has been conventional to produce freeze-dried foods (see the abstract and paragraph 277) and where the water-activity of the freeze dried food product is measured (see paragraphs 518-520). Similarly, Xie teaches ready to eat cheese desirably has a water activity of less than 0.15 (see paragraph 19 of the machine translation) by freeze drying (see paragraph 69 of the machine translation) and also teaches testing the product for ensuring the low water activity for stability purposes (see paragraph 207 and 209 of the machine translation). It would have been obvious to have modified the prior art combination to also accordingly test the freeze dried cheese products for their water activity and then package the product that is at the requisite water activity, because the prior art is teaching that water activity such as 0.1 is desirable for freeze dried cheese products and because such water activity has also been desirable for shelf-stability and preventing degradation of the freeze dried cheese product, as taught by Loucks.
Regarding claim 2, in view of Loucks teaching a desirable water activity such as 0.1 (paragraph 40), the prior art teaches a water content less than 0.2 prior to packaging.
Regarding claim 3, in view of Haddock, the combination is teaching and suggesting a vacuum of 500 milliTorr (see Haddock column 5, lines 31-40; column 14, lines 4-8).
Regarding claim 4, Freeze Dry Society teaches packaging the cheese product in mylar bags with an oxygen absorber in the bag (see page 7 and page 57). “Harvest Right” also teaches placing the freeze dried food product in an airtight container with an oxygen absorber (see page 5, #3 below “How It Works”).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 4 above, and in further view of “OklahomaJoes.”
Regarding claim 5, Jin teaches burning wood for supplying smoke to the cheese (see paragraph 31), but claim 5 differs in specifically reciting “food grade hickory pellets.”
“OklahomaJoes” teaches “food grade” hickory pellets for smoking cheese which pellets can provide for a strong, sweet and smoky taste while being clean burning (see page 3, “food-grade pellets”).
To therefore modify the combination and use food grade hickory pellets would have been obvious to one having ordinary skill in the art, for the purpose of providing the desired flavor to the smoked cheese while being clean burning and provide a strong, sweet and smoky taste.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 5 and in further view of Oustric (US 20150173384).
Regarding claim 6, Loucks teaches that the cheese portions that are freeze dried can be cubes that are from 0.25-1.0 inch cubes (see paragraph 25) but that other forms can also be used such as cutting the cubes to form slices (see paragraph 25).
Oustric (US 20150173384) teaches dry cheese snacks (see the abstract) which can be freeze dried (see paragraph 56) and where the pieces can have any geometrical shape with a width of between 0.1-3cm and a length between 0.1-11cm (see paragraph 26).
To therefore modify the combination and to cut the cheese into portions with a width of 0.25 of an inch and a length of 0.5 of an inch would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on the particular desired size and shape of the freeze dried cheese product.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
“Adventures in Freeze Drying” (referred to as “Adventures”) teaches a food production method to produce a freeze-dried cheese product comprising procuring at least one block of cheese (see page 1 and the block of cheese at the top of the figure); cutting the at least one block of cheese into a multitude of cheese portions (see page 1 and the cheese slices on the top left of the figure); placing the cheese portions onto a stainless steel support tray such that the cheese portions are in a single layer (See the steel tray on page 1); inserting the support tray into a freezer (see page 10 of the reference where it is disclosed that prefreezing the food prior to freeze drying is preferred). “Adventures” further teaches after prefreezing to then freeze dry the cheese portions on the tray (see pages 2 and 3, where the trays are placed in the freeze dryer) and therefore suggests setting a temperature of the freezer and maintaining the cheese portions in the freezer. “Adventures” also teaches where the freeze drying has been performed for about 20 hours (see page 12 onto page 13 which discloses that there has been 16 hours of drying along with an additional four hours of extra drying.
Simon (US 20220378056) teaches that it has been conventional to use hickory flavored pellets (see paragraph 5, “For example, a consumer may select hickory..or cherry pellets or a combination of pellet flavors to impart a desired flavor to the food”) for cold smoking food such as cheese (see paragraph 3, “cheese”).
Carter (US 20180125083) similarly teaches cold smoking of food such as cheese, using temperatures such as 60°F (see paragraph 5) and which smoking can use hickory in the form of pellets (see paragraph 3).
“The Provident Prepper” discloses freeze-drying of cheese and then packaging in mylar bags with an oxygen absorber.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792