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 Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 15, 17, 19-20, 23-33, 35-37 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites a sucrose concentration of “30 to 61 wt%”, claim 36 recites “wherein the batter excludes corn starch”, and claim 37 recites the ratio of sucrose to high fructose corn syrup is “50.6:15 to 60.6:5”. These limitations do not appear to be disclosed in the application.
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 15,17, 19-20, 23-33, 35 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 15 recites “wherein the coating comprises tumbling the fried food in a tumbler, or the raw food material excludes fish”. It is not clear if the claim requires only one of these two options, or not. Dependent claim 20 also includes “fish meat”. It is not clear if fish is permitted, or not.
Claim 33 recites “a temperature at which the fried food is coated with the composition in the tumbler is lower than a temperature of the heated composition”. It is not clear what this phrase means. It is not clear what temperatures are being compared. It is not clear if it is comparing the temperature of the sprayed sauce with the temperature of fried food within the tumbler, or the air temperature within the tumbler, or some other value. The tumbler of parent claim 15 appears to be optional. It is not clear if the limitations of claim 33 are even required.
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.
Claim(s) 15, 17, 19-20, 23-33, 35, 37 are rejected under 35 U.S.C. 103 as being unpatentable over Honey Chicken NPL in view of Kang et al [KR 100519634B1], Kim [KR 20210012223A], Thomas et al [US 2008/0317907A1], and Honey NPL [What is Honey?]
Honey Chicken NPL teaches a method for making fried food by marinading/curing, ageing, and dusting/powdering chicken pieces (page 2, Marinate & Dust Chicken), coating the chicken pieces with batter (page 2, Cold Batter & Fry #1), frying the battered chicken pieces (page 2, Cold Batter & Fry #1), providing Honey Sauce which included 100 g honey, 25g corn syrup, 1 tbsp soy sauce, and 2 tsp Chinese cooking wine (page 1-2, Honey Sauce), heating the Honey Sauce to a consistency like maple syrup (page 2, Honey Sauce), the ratio of honey to corn syrup being approximately 4:1 (page 1-2, Honey Sauce), the honey and corn syrup together provide a Brix of approximately 82 (page 1-2, Honey Sauce), coating and tumbling the chicken and sauce in a pan (page 3, Toss in Sauce & Serve), and an absence of fish (see while document).
Honey Chicken NPL does not explicitly recite heating the sauce to 40-80C, the sauce having a viscosity at 80C of 50-1,000 cP (claim 15, 37), 2-25% coating composition with 30-61% sucrose and 4-35% high fructose corn syrup (claim 15), a spray pressure of 0.2-3.5 bar (claim 17), freezing (claim 19), a ratio of sucrose to HFCS of 40:25 to 61:4 (claim 24), a tumbler temperature of 20-50C (claim 28), a tumbler speed of 2-12 rpm (claim 29), a tumbler angle of 4-6° (claim 30), a coating time of 1 second to 5 minutes (claim 31), 8-20% coating composition (claim 32), a lower temperature than the composition (claim 33), 2-25% coating composition with 10-70% sucrose and 4-35% high fructose corn syrup (claim 37), a ratio of sucrose to HFCS of 50.6:15 to 60.6:5 (claim 37), and a tumbler (claim 37).
Regarding claim 23, the claimed “sponge” method appears to a separate method for measuring absorption of the sauce and holds no patentable weight in the claimed method of making fried food.
Kang et al teach a method for frying a food product (page 2, line 28) and then coating the fried food with a sugar solution having 30-75% white sugar/sucrose and 5-50% sorbitol (page 2, line 31), it being commonly known that sorbitol was derived from starch, a ratio of sucrose to sorbitol of approximately 25:1 to 3:5 (page 2, line 31), the combination of sucrose and sorbitol providing a Brix range of 35-80 (page 2, lines 31-33), and the coating layer preventing oxidation of the food (page 4, line 4).
Kim teaches a method for preparing fried chicken by adding a sauce coating which is 35-50% white sugar (abstract), an application rate of 10-18% (abstract), and then freezing (page 2, 4th-5th paragraphs).
Thomas et al teach a system for applying an aqueous coating to cooked foods (title) comprising heating the aqueous coating solution to a temperature of at least about 150F or 65C (paragraph 0061), the aqueous coating including up to about 20% sugars such as sucrose and/or high fructose corn syrup (paragraph 0051), the coating also including 25-75% starch hydrolysates with a DE of 5-42, such as maltodextrin (paragraph 0041, 0046), an application rate of the coating solution being 0.5-20% of the weight of the entire product (paragraph 0047), the coating providing a crispy and crunchy texture (paragraph 0034), the core being a fried and cooked food product (paragraph 0036, 0065), spraying the heated solution onto the cooked foods in a tumbler (paragraph 0062; Figure 1, #22, 26), the use of lower viscosity solutions to provide a more uniform and thinner coating (paragraph 0039), no mention of heating the tumbler itself (see whole document), and room temperature conventionally being approximately 20C.
Honey NPL teaches that honey typically included 40% fructose and 30% glucose, while sucrose contained a 50:50 ratio of fructose and glucose; and that honey was up to 1.5 times sweeter than sucrose due to the increased fructose content (page 2).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed spraying, tumbler, and tumbler parameters into the method of Honey Chicken NPL, in view of Kang et al, Kim, and Thomas et al, since all are directed to methods of frying and/or coating food products, since Honey Chicken NPL already disclosed tumbling the chicken and sauce in a pan, since fried foods were commonly tumbled in a spray tumbler and sprayed with a sweet aqueous coating as shown by Thomas et al, since a mechanical tumbler would have eliminated the need for hand tumbling in a pan and thus enabled easier and faster coating of the chicken, since scaling up the home recipe of Honey Chicken NPL for use in a busy restaurant or industrial setting would have enabled more people to enjoy the recipe of Honey Chicken NPL, since Thomas et al disclosed an application rate of the coating solution being 0.5-20% of the weight of the entire product (paragraph 0047), and since the claimed tumbler speed, pressure, temperature, time, angle, and coverage amount would have been used during the course of normal experimentation and optimization procedures due to factors such as the size and number of the food pieces, the type of food, the desired amount of sauce coverage, and/or the desired taste and texture properties of the final product of Honey Chicken NPL, in view of Kang et al, Kim, and Thomas et al.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed sucrose, high fructose corn syrup, sauce parameters, and swwetener ratios into the method of Honey Chicken NPL, in view of Kang et al, Kim, Honey NPL, and Thomas et al; since Honey Chicken NPL already included Honey Sauce which included 100 g honey, 25g corn syrup, 1 tbsp soy sauce, and 2 tsp Chinese cooking wine (page 1-2, Honey Sauce), heating the Honey Sauce to a consistency like maple syrup (page 2, Honey Sauce), the ratio of honey to corn syrup being approximately 4:1 (page 1-2, Honey Sauce), and the honey and corn syrup together provide a Brix of approximately 82 (page 1-2, Honey Sauce); since fried foods were commonly coated with a 30-75 brix sucrose solution as shown by Kang et al, since fried chicken was commonly coated with a sauce which is 35-50% white sugar/sucrose (abstract) and an application rate of 10-18% (abstract) as shown by Kim, since fried foods were commonly coated with an aqueous solution with a temperature of at least about 150F or 65C (paragraph 0061), the aqueous coating including up to about 20% sugars such as sucrose and/or high fructose corn syrup (paragraph 0051), an application rate of the coating solution being 0.5-20% of the weight of the entire product (paragraph 0047), and the coating providing a crispy and crunchy texture (paragraph 0034) as shown by Thomas et al; since honey was known to be 40% fructose and 30% glucose, while sucrose contained only a 50:50 ratio of fructose and glucose; and that honey was up to 1.5 times sweeter than sucrose (page 2) as shown by Honey NPL, since the substitution of sucrose for the honey would have resulted in a decrease of fructose which could have been easily offset by the simultaneous substitution of high fructose corn syrup for the corn syrup of Honey Chicken NPL while still maintaining an acceptable level of sweetness in the coating, since many consumers preferred a sweet sauce which incorporated other flavor profiles, since Honey Chicken NPL disclosed adding additional ingredients such as Sriracha sauce to provide a more savoury flavor (page 4), since sweeteners such as sucrose, high fructose corn syrup, corn syrup, and honey were often commonly substituted for one another in recipes, since sucrose was commonly known to be less expensive, possess a longer shelf life than honey, and was available in large commercial quantities more readily than honey; since the substitution of one known sweetener mixture (ie sucrose and HFCS) for another (ie honey and corn syrup) would have yielded predictable results to one of ordinary skill in the art, and since the claimed sauce viscosity and brix level would have been used during the course of normal experimentation and optimization procedures based upon factors such the desired taste, texture, and coverage properties of the final product Honey Chicken NPL, in view of Kang et al, Kim, Honey NPL, and Thomas at al.
It would have been obvious to one of ordinary skill in the art to incorporate the claimed freezing step into the method of Honey Chicken NPL, in view of Kang et al, Kim, and Thomas et al; since all are directed to methods of frying and/or coating food products, since Honey Chicken NPL simply did not describe how the food might be preserved, since fried chicken products with sauce were commonly preserved by freezing as shown by Kim, and since freezing would have enabled the food of Honey Chicken NPL to be enjoyed on a later date.
In conclusion, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Honey Chicken NPL, in view of Kang et al, Kim, Thomas et al, and Honey NPL; as applied above, and further in view of Constarch NPL [What’s the Best Cornstarch Substitute?].
Honey Chicken NPL, in view of Kang et al, Kim, Thomas et al, and Honey NPL teach the above mentioned concepts. Honey Chicken NPL does not explicitly recite batter which excludes corn starch (claim 36). It is also noted that claim 36 does not require high fructose corn syrup. Cornstarch NPL teaches that many substitutes exist for cornstarch, such as potato starch (page 3) and rice flour which was a good substitute in batter recipes like tempura for extra crispiness (page 4). It would have been obvious to one of ordinary skill in the art to incorporate the claimed absence of cornstarch into the method of Honey Chicken NPL, in view of Cornstarch NPL, since both are directed to methods of preparing food, since Honey Chicken NPL already included batter which used cornstarch, since rice flour was a good substitute in batter recipes like tempura for extra crispiness (page 4) as shown by Cornstarch NPL, since the substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art, and since Honey Chicken NPL also desired crispy chicken (page 1).
Response to Arguments
Applicant's arguments filed 12/9/25 have been fully considered but they are not persuasive.
Applicant argues that claim 33 was definite. However, the language of claim 33 is confusing and not clear. It is not clear what materials or temperature or times are being compared.
Applicant argues the criticality of the claimed amounts of sweeteners, but provided no evidence of unexpected or unpredicted results. The primary reference (ie Honey Chicken NPL) specifically mentioned “CRISPY” in the title and initial description (page 1). Differences in crispiness would have been discovered during the course of normal experimentation procedures by using different amounts of known sweeteners.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DREW E BECKER/Primary Examiner, Art Unit 1792