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 of claims 1-3 and 15 in the reply filed on 7/7/26 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-3 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 and 16 of copending Application 18723116. Although the claims at issue are not identical, due to the properties including dairy products they are not patentably distinct from each other because claims 1-3 and 16 fully encompass the limitations of claims 1-3 and 15 of the instant application since the product of imitated properties is claimed as a Markush group of at least one. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 1-3 and 15 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, and due to being dependent therefrom claims 2-3 and 15, are rejected due to the phrase “so as to obtain said product that imitates properties of meat, poultry, fish, dairy products, and seafood, and products derived therefrom” since in a first instance it appears the phrase contradicts the pre-amble which provides for imitating properties of at least one of i.e., “or”. The phrase is further rejected as it is unclear what properties each of meat, poultry, fish, dairy products, and seafood, and products derived therefrom share to be imitated. The claimed phrase is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what is encompassed by the phrase “so as to obtain said product that imitates properties of meat, poultry, fish, dairy products, and seafood, and products derived therefrom”; it is unclear as to what degree of difference is encompassed by this phrase, if not properties which imitate all of the group but some.
Claim 2 is rejected due to the phrase “or solidifying said first deposit” since the phrase appears to contradict the previously claimed phrase of claim 2 “before step b” and thus it is unclear if the second deposit step is “before step b” or after “solidifying said first deposit”.
Claim Rejections - 35 USC § 102
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 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 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 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by de Haan et al. (7045160; ids 10/4/24).
de Haan teaches with respect to Independent claim 1, a method for the manufacture of a product that imitates (col. 11 lines 5-8) properties of meat, poultry, fish, seafood, dairy products or products derived therefrom (col. 5 lines 38-40), comprising the steps:
a) dosing (col. 11 lines 20-22; placing mixture) and depositing a first material onto a surface of a product carrier (col. 11 lines 20-22 mould or other container of desired shape), so as to obtain a first deposit in a desired shape (col. 11 lines 20-22 mould or other container of desired shape)
b) solidifying said first deposit so that the first deposit has a self- containing structure (col. 11 lines 22-23 cooling, freezing)
c) releasing said product from said product carrier (col. 11 lines 26-27), so as to obtain said product (col. 11 lines 26-27) that imitates properties of meat, poultry, fish, dairy products, and seafood, and products derived therefrom (col. 11 lines 26-27 solid as opposed to liquid or air; col. 4 lines 27-33 containing protein)
wherein said first material comprises a protein (col. 4 lines 27-33), or a mixture of different proteins, wherein the protein content in the dry raw materials is 35 to 90% (col. 4 lines 27-33)
Claim 2, wherein the method comprises, before step b), the steps of dosing and depositing a second material onto or into a product support of said product carrier (col. 22 lines 14-15; moulds plural), so as to obtain a second deposit in a desired shape (col. 22 lines 14-15; moulds plural), wherein said step of dosing and depositing said second material is performed simultaneously with the step of dosing and depositing said first material (col. 22 lines 14-15; moulds plural), or after the step of depositing (col. 22 lines 14-15; moulds plural) or solidifying said first deposit .
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 3 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over de Haan et al. (7045160; ids 10/4/24) in view of Klimke (20170042175).
de Haan is taken as above.
With respect to claims 3 and 15, de Haan teaches depositing first and second materials into moulds or containers, though silent to a device or method of such depositing and thus one of ordinary skill in the art would have been motivated to look to the art of depositing apparatus as taught by Klimke.
More specifically Klimke teaches
dosing and deposition of at least one of the first and second material is carried out with a depositing machine having:
- at least one tank which contains said at least one of the first and second material for deposition (par. 0110) and which is equipped with a stirring device for stirring said material in said tank (par. 0111)
- a depositing assembly which is located below the tank (par. 0110) and comprises at least one row of pistons which perform an intake cycle (par. 0115), so as to draw said material out of said tank (par. 0115), and an exhaust cycle, so as to expel the drawn material (par. 0115) and at least one dispensing device (par. 0115) which rotates between a first position, so as to receive the material that has been drawn by the pistons, and a second position which enables an outflow of the material that is expelled by the pistons (par. 0115)
- a motor for rotating the dispensing device (par. 0116)
- actuation means for moving the pistons (par. 0116) in a reciprocal manner, wherein the actuation means are releasably connected to the pistons (par. 0116) and
- a machine frame (par. 0014) which carries the motor and comprises two arms (par. 0014) which project along respective parallel horizontal axes and are equipped with the actuation means (par. 0014)
wherein the tank and the depositing assembly form part of a module (par. 0074, 0121) which is removable in one piece from the machine frame (par. 0121), and the module is releasably connected to the motor and is equipped with a further frame (par. 0115), and the further frame in the machine frame is fastened by way of a plug-in connection (par. 0074) which is disposed in a substantially horizontal manner.
Thus since de Haan teaches depositing first and second materials into moulds or containers, though silent to a device or method of such depositing and since Klimke teaches an art known device for a same purpose as desired by de Haan. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the known device of Klimke as a depositing device relative multiple moulds for its art recognized purpose and advantage of providing a deposition device which solves a need as taught by Klimke and providing a depositing machine and a method for converting a depositing machine, by way of which the disadvantages of the prior art are overcome, by way of which simple operability, readily manageable fixing, and moreover a precise and solid connection between the components of the depositing machine and the depositing-machine frame are enabled as further taught by Klimke (par. 0011).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. 8201716, 7618251, 20060051458 directed to depositing devices.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven Leff whose telephone number is (571) 272-6527. The examiner can normally be reached on Mon-Fri 8:30 - 5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/ Primary Examiner, Art Unit 1792
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