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 .
This office action is in response to preliminary amendment filed on 1/27/25. Claims 1-28 are cancelled and claims 29-48 are added. Claims 29-48 are pending.
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) 29-36,40-48 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 4176505.
For claims 29, 33,40,44,47 Jp 505 discloses a freshness-keeping agent for vegetables. The vegetable includes frozen vegetables. The freshness-keeping agent is added to the vegetable in amount of .025-75% based on the whole vegetable. Additives including xanthan gum, fat and oil can be added to the freshness-keeping agent and the agent can be used in the form of liquid. The freshness-keeping agent can be directly added to the vegetables by spraying or dipping. For claim 34, the freshness-keeping liqud includes contains white pepper extract which can be considered as a seasoning. Furthermore, the additions including sugar, glucose, etc.. can also be considered as seasoning. ( see paragraphs 0014,0018,0019,0020). The liquid freshness-keeping agent is the same as the claimed slurry.
For claims 40-48, Jp505 discloses the vegetables are filled in a polyethylene container and store. This is pre-packaging of the vegetables. ( See paragraphs 0039,0040)
Jp505 does not disclose the amount of polysaccharide and oil by weight of frozen product as in claim 29, the water content of the vegetable as in claims 30,41,48, the vegetable as in claims 31,42, the amount as in claims 32,43, the inclusion of salt and amount as in claims 35,45, the amount of polysaccharide and oil as in claim 36, the amount of polysaccharide and oil in the liquid as in claims 40,46, the amount of food portion as in claim 47.
Jp 505 discloses the xanthan gum and oil are additives that can be added to the freshness-preserving liquid. It would have been within the skill of one in the art to determine amounts of the oil and gum in the liquid and eventually on the vegetable depending on amount of oil wanted to be in the vegetables and the viscosity of the liquid desired. The amounts added to the liquid affect the amounts present of the vegetables because the vegetables are treated with the liquid. The determination of the concentration can readily be carried out without undue experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) Since xanthan gum is a powder, it’s obviously added in dehydrated form and suspended in oil when oil is added. It’s obviously inherent the xanthan gum serves the same function as claimed because the same ingredient is used in the same product. The water content of vegetable varies with the types of vegetable. It would have been an obvious matter of preference to select any vegetable including zucchini depending on the taste, flavor wanted. It would have been obvious to use any amount of vegetable as an obvious matter of choice. It would have been obvious to add salt and pepper and to vary the amount when desiring to affect the taste and seasoning of the frozen vegetable. This parameter can readily be determined by one of skilled in the art.
Claim(s) 37-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 4176505 in view of Palleschi ( 2013/0230633).
Jp 505 does not disclose adding sauce as in claims 37,38.
Palleschi disclose a sauce added to vegetables. ( see example 5)
Adding sauce to vegetables is known in the art as shown in Palleschi. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add sauce when desiring to enhance the taste and flavor of the vegetable. The water content depends on the type of sauce wanted and it would have obvious to vary depending the taste and flavor desired. It would have been obvious to use varying amounts of sauce depending on the taste desired. Claim 39 is included because it depends from claim 38. The amount of food portion is addressed above.
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.
Claims 29-48 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12059013. Although the claims at issue are not identical, they are not patentably distinct from each other because both the patent and the application are directed to frozen food product comprising a slurry. The claims of the patent are encompassed in the claims of the application.
Conclusion
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