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 with traverse of group I in the reply filed on 7/17/26 is acknowledged. The traversal is on the ground(s) that the method and product share a common technical feature. This is not found persuasive because group I requires a specific technical feature which is defined by food type, i.e. product. Namely, the groups do not share the same or corresponding technical feature of REPFEDs food types limited by pH value of at least 4.6 and REPFEDs singular food as opposed to group I encompassing a combination of different food types where group II further limits preserving pH or preservative types of pH of greater than 4.6. In addition the product of group II REPFED is limited by product conditions defined by refrigeration, and type specific to wherein at a temperature between 0 °C and 10 °C, the REPFED is free of vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus, wherein spores of said bacteria are at least fatally injured such that the spores can no longer grow vegetatively. In addition groups I and II lack unity of invention since the product of group I, can be made by another and materially different process such as without a temperature of between 0 °C and 10 °C for a defined pH of at least 4.6 and since the product of group II is defined by a type of food which is free of vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus and thus group I and group II lack unity of invention since the method of group I is open to all RDPFED foods as opposed to those limited by vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus.
The requirement is still deemed proper and is therefore made FINAL.
Claims 21-25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 7/17/26
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-25 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
Newly submitted claims 21-24 and Independent claim 25 directed to inventions that are independent or distinct from the invention originally claimed for the following reasons:
Group I, claim(s) 13-20, drawn to a method of preserving foods.
Group II, claim(s) 21-24 and 25, drawn to a product.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Groups I and II, drawn to a method and product by process, lack unity of invention because the groups do not share the same or corresponding technical feature. Namely, the groups do not share the same or corresponding technical feature of REPFEDs food types limited by pH value of at least 4.6 and REPFEDs singular food as opposed to group I encompassing a combination of different food types where group II further encompasses preserving pH of REPFED food types limited by pH value of at least 4.6 and or preservative types of pH of greater than 4.6. In addition the product of group II REPFED is limited by product conditions defined by refrigeration, and type specific to wherein at a temperature between 0 °C and 10 °C, the REPFED is free of vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus, wherein spores of said bacteria are at least fatally injured such that the spores can no longer grow vegetatively. In addition groups I and II lack unity of invention since the product of group I, can be made by another and materially different process such as without a temperature of between 0 °C and 10 °C for a defined pH of at least 4.6 and since the product of group II is defined by a type of food which is free of vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus and thus group I and group II lack unity of invention since the method of group I is open to all RDPFED foods as opposed to those limited by vegetative Listeria monocytogenes and fecal streptococci and/or free of killed Clostridium Botulimum and Bacillus cereus.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-25 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 13 and due to dependency, claims 14-20 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 13 is rejected due to the phrase “for at least 10 to 60 seconds” since the range is further limited by “at least” and thus it is unclear if the phrase is with respect to a minimum of 10 seconds, with respect to a minimum of any singular from 10-60, if the phrase is with respect to a desired range of 10-60 or with respect to something different altogether.
The phrase “within 5 minutes” of claim 13 is rejected as it is unclear if the phrase is with respect to cooling within a time from the end of heating, if the phrase is with respect to cooling for less than or equal to five minutes or with respect to something different altogether.
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 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Drozd et al. (20140322403) in view of Taguchi et al. (5707672).
Drozd teaches a method for preserving refrigerated processed foods of extended durability (REPFEDs), the method comprising:
a) preheating REPFEDs to be preserved (par. 0039 preheated)
b) heating the REPFEDs to be preserved to 110 °C to 115 °C (par. 0037 110C) for at least 10 to 60 seconds (par. 0035 last line)
c) cooling the heated REPFEDs (fig. 1 ref. 118, 120) and
d) performing aseptic, ultra clean or clean packaging of the REPFEDs in a sealable packaging (fig. 1 ref. 122, 123, 124),
wherein the steps c) and d) can be executed in reverse order (fig. 1 ref. 125 cool package)
Drozd teaches heating and packaging of food products and thus one of ordinary skill in the art would have been motived to look to the art of sterilizing and packaging foods as taught by Taguchi.
Taguchi teaches heating a food product (col. 2 lines 10-13) followed by cooling to a temperature including 10C (col. 3 lines 16-18) and packaging while flushing with nitrogen gas which permits the production of packaged food having a longer shelf life (col. 4 lines 34-38).
Thus since Drozd teaches cooling for less than 7 minutes (par. 0048 last 2 lines). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach a cooling time encompassed by Drozd and taught by Taguchi such as between 0 °C and 12 °C (col. 3 lines 16-18) within 5 minutes (col. 5 lines 42-43), for its art recognized purpose of preventing further heating of the food product beyond the predetermined temperature and providing the food product at a temperature for aseptic packaging as taught by Drozd (par. 0049) and packaged food of increased shelf life as taught by Taguchi (col. 4 lines 35-39).
Drozd teaches packaging with sterile air filtration until the food is filled and sealed (par. 0052). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach sterile air filtration as taught by Drozd comprising Nitrogen gas as taught by Taguchi, where due to Nitrogen flushing would comprise an oxygen percentage of less than one percent for its art recognized purpose of maintaining a sterile environment within packaging and prevent any recontamination of the packaging once sterilized as taught by Drozd (par. 0052) and packaged food of increased shelf life as taught by Taguchi (col. 4 lines 35-39).
Claims 14 and 15, Drozd teaches packaging with sterile air filtration until the food is filled and sealed (par. 0052). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach sterile air filtration as taught by Drozd comprising Nitrogen gas as taught by Taguchi, to displace the air above the cooled REPFEDs for its art recognized purpose of maintaining a sterile environment within packaging and prevent any recontamination of the packaging once sterilized as taught by Drozd (par. 0052) and packaged food of increased shelf life as taught by Taguchi (col. 4 lines 35-39).
Claim 16, Drozd teaches packaging with sterile air filtration until the food is filled and sealed (par. 0052). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach sterile air filtration as taught by Drozd comprising Nitrogen gas as taught by Taguchi, and a lid is put over the open side of the packaging to seal the packaging, whereby the gas is caught in a space between the cooled REPFEDs and the lid (col. 4 lines 34-37) for its art recognized purpose of maintaining a sterile environment within packaging and prevent any recontamination of the packaging once sterilized as taught by Drozd (par. 0052) and packaged food of increased shelf life as taught by Taguchi (col. 4 lines 35-39).
Claim 17, wherein the REPFEDs to be preserved are heated by Ohmic heating (par. 0041).
Claim 18, wherein before and/or during preheating the REPFEDs to be preserved, the REPFEDs to be preserved are mixed (par. 0107)
Claim 19, wherein during the preheating step, said REPFEDs are heated to a temperature between 40 °C and 80 °C (par. 0039 40-75C), between 50 °C and 70 °C (par. 0039 40-75C), or between 55 °C and 65 °C (par. 0039 40-75C).
Claim 20, wherein when steps c) and d) of the method occur in reverse order, and the cooled REPFEDs are precooled to a temperature between 110 °C and 12 °C (par. 0096; 87C), between 100 °C and 60 °C (par. 0096; 87C), or between 83 °C and 87 °C before the aseptic packaging (par. 0096; 87C).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
20210251262, 20180192681, 20100104721, 20090297672 directed to refrigerated packaged foods.
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
