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 with traverse of claims 6-21 in the reply filed on 4/27/2026 is acknowledged. The traversal is on the ground(s) that there is not a serious search burden in considering both groups. This is not found persuasive because different groups would require a different search strategy and considerations that would not necessarily apply to the other group.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-5 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected product, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 4/27/2026.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 6-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 8980353. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘353 patent discloses all the limitations of the present claims.
Claims 6-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No.8962054. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘054 patent discloses all the limitations of the present claims.
Claim 6-21 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 19/195,529(reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘529 application discloses all the limitations of the present claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claim(s) 6-9,14,15,19,21 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ashourian(US 2014/0335249).
Regarding claim 6, Ashourian teaches a process for preparing a food product, the process comprising(para 56-60, 79):
(a) providing or receiving a plurality of food pieces of a food material having an initial moisture content;
(b) enzyme treating the plurality of food pieces of a) food pieces with an
effective amount of at least one starch-degrading enzyme to provide enzyme-treated food pieces;
(c) blanching the enzyme-treated food pieces of b) to deactivate the starch-
degrading enzyme to provide blanched food pieces; and
(d) reducing moisture of the food pieces via air drying from the initial moisture content to a reduced overall moisture content that is lower than the initial moisture content, to provide moisture- reduced food pieces.
Regarding claim 7, Ashourian teaches cooling to freezer conditions(para 92), which including temperatures below 40F.
Regarding claim 8, Ashourian does not teach oil frying(moisture reduction is done without the presence of oil frying, claim 2).
Regarding claim 9, Ashourian teaches that the air drying comprising heating the food pieces while flowing air over or past the food pieces(para 85).
Regarding claim 14, Ashourian teaches agitating the food pieces while heating the food pieces and flowing air over or paste the food pieces(example 2, food pieces are shaken to allow for even drying).
Regarding claim 15, Ashourian teaches cooking the moisture-reduced food pieces to a final moisture content that is less than the reduced overall moisture content(para 81, food pieces are reduced in moisture then further cooked in a second stage to a final moisture content).
Regarding claim 19, Ashourian teaches a thickness of no more than 3.5mm(example 7, slices are 1.6mm thick).
Regarding claim 21, Ashourian teaches that the food pieces can include “potato, beet, pumpkin, squash, tomato, mushroom, zucchini, carrot, eggplant, apple, pear, bananas, berries, grains, beans, nuts, seeds, rutabaga, plantain, taro, okra, onion, parsnip, yam, sweet potato, yucca, papaya, mango, pineapple, and the like”(para 52, example 1-potatoes).
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.
Claim(s) 10-13,16-18,20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ashourian(US 2014/0335249).
Regarding claims 10 and 11, Ashourian teaches air drying in two or more stages with the first stages bring done at a temperature of about 160F to about 400F and the second temperature being about 360F to about 375(para 81), which is considered “close enough” to about 385F to provide the same properties. See MPEP 2144.05 I.
Furthermore, Ashourian teaches that the temperature is not limited(para 81), so it would have been obvious to adjust the drying temperature depending on the final moisture content and texture desired.
Ashourian teaches that the drying stages can have different velocities depending on the flavor, texture, color, desired in the final product(para 85).
Regarding claims 12 and 13, Ashourian teaches that the food pieces can be dried using one or more stages(which would include a third stage) at different velocities and temperatures(para 81-85). Ashourian teaches that the temperature is not limited, so it would have been obvious to adjust the drying temperature of the third stage depending on the final moisture content and texture desired.
Regarding claim 16, Ashourian teaches a final moisture content of about 0.5 to about 10% by weight(para 78). “About 10%” would encompass “about 15%”, thus overlapping the claimed range and rendering it obvious.
Regarding claim 17, Ashourian teaches that the food pieces are cut into a variety of shapes and sizes including slices, sticks or strips(para 70). It would have been obvious to adjust the size of the pieces depending on the intended food product.
Regarding claims 18,20, Ashourian teaches the reduced moisture content(immediate moisture content) is about 10 to about 80% by weight(para 81), which overlaps the claimed ranges and renders them obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
Prosecution Insights