DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. Applicant's election with traverse of Group I, claims 1-9 and 16 in the reply filed on 05 June 2026 is acknowledged. The traversal is on the ground(s) that a) the inventions are not “independent and distinct” because the method steps for the hypothetical transporting of chicken carcasses substantially mirror the method steps claimed for the transporting of closed containers, b) that there would be no serious burden resulting from the examination of both inventions because the same field of search would be required, and c) that the Office failed to describe a materially different apparatus for practicing the method of Invention II. This is not found persuasive because the claimed structures (temperature profile of device designed to heat and/or cool, transport speed of transport device, system parameter, etc.) are recited so generally such that the device is understood to be applicable across many automated heating or cooling applications. In part due to the broad recitation of claimed device structures and method steps, there is a serious search burden as the Examiner cited with separate classification, and a serious examination burden also exists in the consideration of “predicting the system parameter” as recited in method claim 10 for eligibility under 35 U.S.C. 101 as an abstract idea. In response to argument c, the Office need only show either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process in accordance with MPEP § 806.05(e). Regardless of whether the heating/cooling of chicken carcasses rises to a distinct process as the Examiner has previously presented, the apparatus as claimed can be used to controllably heat and/or cool open, unfilled containers, which clearly represents another and materially different process.
The requirement is still deemed proper and is therefore made FINAL.
3. Claims 10-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Examiner reminds Applicant that if the system claims are found allowable, the withdrawn method claims can be eligible for rejoinder pursuant to the procedures set forth in MPEP § 821.04(B) and fully examined for patentability under 37 CFR 1.104.
Priority
4. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
5. The information disclosure statement (IDS) submitted on 05 June 2024 and 05 August 2024 are being considered by the examiner.
Specification
6. The disclosure is objected to because of the following informalities: in par 0016, “food, In particular” should read --food, in particular--. Appropriate correction is required.
Claim Interpretation
7. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
8. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
transport device (claim 1), interpreted as a conveyor belt or equivalent per Specification par 0064;
device for heating and/or cooling (claim 1), interpreted as one or more heaters and/or coolers per Specification par 0068 (exemplified in a non-limiting manner as a heating/cooling fluid nozzle per pars 0065-0066, FIG. 1);
control device (claim 1), interpreted as a controller/processor operating with instructions from memory per Specification par 0068;
detection device (claim 4), interpreted as an image capturing device, for example, a camera or equivalent per Specification par 0069.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
9. For instances wherein the controller is “designed to” carry out a certain function, these limitations are interpreted broadly such that a controller that is designed as capable of carrying out the claimed function (similar to the handling of “adapted to” per MPEP 2111.04(I) or “capable of” per MPEP 2114(II)), because a conventional control device would be designed to carry out a wide range of configurable functions thus specific single actions would not be expected to be considered within the design of the control device itself.
10. For instances wherein the system parameter is “predicted”, this is interpreted broadly to include an assignment or determination based on present and/or past system parameters per Specification pars 0034 and 0071, wherein the system parameter is assigned based on past or present values of the system parameter in upstream and downstream process units as in a conventional feedback control arrangement.
Claim Rejections - 35 USC § 112
11. 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.
12. Claims 2, 4-5, 7-9, and 16 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.
13. Claim 2 recites the limitation "the full part" in the third line. There is insufficient antecedent basis for this limitation in the claim, as no definite number or orientation of parts for this accumulation section have been established.
Further, it is unclear what is meant by the limitation “in each case of the system” in the last line, as no “case” has been established previously in the claim(s). For examination purposes, a “case” is interpreted to represent a use case or example embodiment, and as such, a single use case comprising one of the listed system parameters would be understood to read upon the claim.
14. Claim 4 recites the limitation "the region" in the second line. There is insufficient antecedent basis for this limitation in the claim, as no definite number, size, or proximity have been established to define such a region.
15. Claim 5 recites the limitation "the full part" in the fourth line. There is insufficient antecedent basis for this limitation in the claim, as no definite number or orientation of parts for this accumulation section have been established.
Further, it is unclear what is meant by the limitation “in each case of the system” in the sixth line, as no “case” has been established previously in the claim(s). For examination purposes, a “case” is interpreted to represent a use case or example embodiment, and as such, a single use case comprising one of the listed system parameters would be understood to read upon the claim.
16. Claim 7 recites the limitation “a plurality of temperature zones referred to as heating zones”, and it is unclear whether this is intended to represent the same plurality of temperature zones as introduced in claim 6, a subset of the plurality introduced in claim 6, or a different plurality from that introduced in claim 6.
17. Claims 8-9 are indefinite by virtue of their dependence on indefinite claim 7.
18. Further regarding claims 8 and 9, it is unclear what is meant by the limitation “in each case of the system” in lines 6, 8, 13, and 15 of claim 8 and line 8 of claim 9, as no “cases” have been established previously in the claim(s). For examination purposes, a “case” is interpreted to represent a use case or example embodiment, and as such, a single use case comprising one of the listed system parameters would be understood to read upon the claim.
19. Claim 16 recites the limitation "the heating and/or cooling" in the first line. There is insufficient antecedent basis for this limitation in the claim, as the limitation appears to refer to a phrase introduced in the preamble of claim 1, which recites a purpose or intended use of the device and as such is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02(II), in particular Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). Thus, it is not clear how the limitation is intended to further limit the scope of claim 1, as modifying the preamble would not provide further structural limitation for the claim, and an alternative reading of the limitation as modifying a method of operation of the device designed to heat and/or cool (also an intended use) would similarly fail to provide further structural limitation to the claimed device.
Claim Rejections - 35 USC § 102
20. 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.
21. Claims 1-3, 5-9, and 16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koppel et al (US 9743686 B2).
22. Regarding claim 1, Koppel discloses a system for heating and/or cooling closed containers filled with a filling material (pasteurizing apparatus applied to containers that may be filled with liquid contents, col 2 line 26 to col 3 line 52; FIG. 1, pasteurizing occurs after filling containers with liquid contents, col 5 lines 21-35), comprising:
a transport device designed to transport the containers in a transport direction (containers are moved through the system along a transport direction A with the use of suitable transporters or transport elements, col 5 lines 21-35; transport element or transport belt of the pasteurizer, col 6 lines 22-35),
a device designed to heat and/or cool the containers (zones include a preheating set, a cooling set, and a pasteurizing set, Abstract) according to a temperature profile along the transport direction (zones 1-3 form pre-treatment or heating-up zones, zones 4-8 define pasteurization zones, and zones 9-11 are cooling zones, col 7 lines 8-12), and
a control device (controller configured to control the transport speed…of the transport element in the pasteurizer, col 3 line 64 to col 4 line 10) designed to control a transport speed of the transport device and the temperature profile (controlling and/or regulating of the transport speed of the pasteurizer 6 and, respectively, of the treatment duration and treatment temperatures or of the temperature profile of the pasteurizer 6 take place as a function of the operational state of a critical system component, col 5 lines 45-57),
wherein the control device is designed to control the transport speed (controller configured to control the transport speed, col 4 lines 4-20) during a time change between a stop and a nominal transport speed (controlling of the transport speed of the transport element inside the pasteurizer or of the pasteurizer itself is possible steplessly within wide limits, for example between 0% and 130% of a rated transport speed, col 2 lines 34-48),
wherein the control device is designed to control the temperature profile as a function of a predicted system parameter (controlling the treatment temperatures of its treatment zones as a function of the operational state of the system 1, and in particular, as a function of treatment durations, col 5 lines 36-44). An example of the predicted system parameter as presented in Specification par 0071 is “a transport speed of the system”, which the Koppel disclosure treats similarly as the speed of upstream and downstream conveyors is used as the control variable to adjust treatment temperatures (col 5 line 58 to col 6 line 21).
23. Regarding claim 2, Koppel discloses the system according to claim 1, wherein the system parameter comprises the transport speed (controlling the treatment temperatures of its treatment zones as a function of the operational state of the system 1, and in particular, as a function of treatment durations, col 5 lines 36-44; dynamic and adapted regulation of the transport speed permits dynamic and adapted regulation of the treatment duration, col 5 lines 36-44), in each case of the system (system events described in col 5 line 65 to col 6 line 21).
24. Regarding claim 3, Koppel discloses the system according to claim 1, wherein the control device is designed to control the transport speed (controller configured to control the transport speed, col 4 lines 4-20) as a function of:
- an available capacity for accommodating containers in the outfeed of the system in the past and/or present (in the event of a container jam in a system component that is downstream of the pasteurizer 6 in the transport direction A, the transport speed of the containers 2 is reduced by the pasteurizer 6, col 5 line 65 to col 6 line 7).
25. Regarding claim 5, Koppel discloses the system according to claim 1, wherein the control device is designed to predict the system parameter based on a transport speed (controlling the treatment temperatures of its treatment zones as a function of the operational state of the system 1, and in particular, as a function of treatment durations, col 5 lines 36-44; dynamic and adapted regulation of the transport speed permits dynamic and adapted regulation of the treatment duration, col 5 lines 36-44), in each case of the system (system events described in col 5 line 65 to col 6 line 21), and/or of one or more further systems upstream and/or downstream of the system in the past and/or present (event of a container jam or gaps in containers in a system component that is downstream of the pasteurizer, col 5 line 65 to col 6 line 21).
26. Regarding claim 6, Koppel discloses the system according to claim 1, wherein the device has a plurality of temperature zones along the transport direction of the containers (FIGS. 2-4, zones which follow one another in a transport direction include a preheating set, a cooling set, and pasteurizing set, Abstract), wherein the temperature profile comprises controllable temperatures of the temperature zones (pasteurizer 6 also allows for a dynamic regulating or controlling the treatment temperatures of its treatment zones, col 5 lines 36-44) and a control of the temperature profile comprises a control of the temperatures of the temperature zones (FIGS. 2-4, treatment temperatures within the eleven treatment zones of a pasteurizer 6 are represented by broken line 10), wherein each temperature zone has a uniform temperature for itself (FIGS. 2-4, temperature rises in steps as can be seen from lines 10, col 6 lines 44-49).
27. Regarding claim 7, Koppel discloses the system according to claim 6, wherein in a plurality of temperature zones referred to as heating zones, which follow one another in the transport direction, the temperatures increase or remain constant from temperature zone to temperature zone (FIG. 2, the treatment temperature rises in steps along zones 1-4 up to a pasteurizing temperature of some 61.4° C, col 6 lines 44-49), and
wherein the temperature corresponds to a maximum temperature in at least one or more temperature zones referred to as pasteurization zones following the heating zones in the transport direction (Zones 4-8, which are at the treatment temperature of 61.4° C., define pasteurization zones, col 6 lines 50-57), and
wherein the temperatures decrease or remain constant from temperature zone to temperature zone in a plurality of temperature zones referred to as cooling zones following the pasteurization zones in the transport direction (FIG. 2, zones 9-11 are cooling zones, col 5 lines 44-57).
28. Regarding claim 8, Koppel discloses the system according to claim 7, wherein the control device is designed to:
- increase a number of pasteurization zones if a) a predicted transport speed increases (controller is configured to respond to an increase in transport speed by … increasing a cardinality of zones in the pasteurizing set, col 4 lines 10-15)
and/or - to reduce a/the number of pasteurization zones if a) a predicted transport speed decreases (controller is configured to respond to a reduction in transport speed by…reducing a cardinality of zones in the pasteurizing set, col 4 lines 16-20).
29. Regarding claim 9, Koppel discloses the system according to claim 8, wherein the control device is designed to predict the transport speed and/or accommodation capacity () based on the/a transport speed (controlling the treatment temperatures of its treatment zones as a function of the operational state of the system 1, and in particular, as a function of treatment durations, col 5 lines 36-44; dynamic and adapted regulation of the transport speed permits dynamic and adapted regulation of the treatment duration, col 5 lines 36-44) in each case of the system (example system events described in col 5 line 65 to col 6 line 21), and/or of one or more further systems upstream and/or downstream of the system in the past and/or present (event of a container jam or gaps in containers in a system component that is downstream of the pasteurizer, col 5 line 65 to col 6 line 21).
30. Regarding claim 16, Koppel discloses the system according to claim 1, wherein the heating and/or cooling includes pasteurizing closed containers filled with liquid filling material (FIG. 1, pasteurizing occurs after filling containers with liquid contents, col 5 lines 21-35).
Claim Rejections - 35 USC § 103
31. 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
32. Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Koppel et al (US 9743686 B2).
Regarding claim 4, Koppel discloses the system according to claim 3, wherein the control arrangement of the pasteurizer apparatus is disclosed as capable of detecting a container jam downstream and reducing transport speed accordingly (col 5 line 65 to col 6 line 21). Koppel does not specifically teach the pasteurizer apparatus as comprising a detection device in the region of the/an infeed and/or outfeed of the system for detecting containers in the region of the infeed and/or outfeed of the system, wherein the detection device comprises an accumulation switch and/or an image capturing device .
However, Koppel teaches that known pasteurizers in the art address container transport irregularities by switching the transport element on and off, which can be put into effect by jam switches i.e. accumulation switches provided on transporters of the system as a whole and/or downstream of the pasteurizer (col 2 lines 14-22).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to employ an accumulation switch in at least the region of an outfeed of the system as taught by Koppel, because such a detection device would predictably detect containers in the region of the outfeed and perform the beneficial function of sensing an accumulation or jam in the same manner with a reasonable expectation of success. See MPEP 2143(I)(A) and MPEP 2143(I)(G).
Conclusion
33. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Panella et al (US 6142065 A) teaches an analogous tunnel sterilizer with a similar temperature control approach for ensuring uniform pasteurization through interruption of a constant velocity (FIG. 1, Abstract, col 1 lines 25-54 and col 2 lines 41-64).
Gunawardena et al (US 11234444 B1) teaches an analogous conveyor pasteurizer wherein conveyor speed can be controlled to alter duration of pasteurizing and cooling (col 9 lines 12-38 and col 14 lines 1-13, FIGS.2-4).
34. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eric Talbert whose telephone number is (703)756-5538. The examiner can normally be reached Mon-Fri 8:00-5:00 Eastern Time.
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, Maris Kessel can be reached at (571) 270-7698. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC TALBERT/Examiner, Art Unit 1758
/MARIS R KESSEL/Supervisory Patent Examiner, Art Unit 1758
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