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 .
Status of the Application
The status of the claims stands as follows:
New claims: 1-19
Currently rejected claims: 1-19
Allowed claims: None
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 1-19 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 recites “a first ingredient associated with one of seven chakras, the seven chakras including a root chakra, a sacral chakra, a solar plexus chakra, a heart chakra, a throat chakra, a third eye chakra and a crown chakra; and a second ingredient associated with ayurveda,” which is vague and indefinite in that it is unclear what ingredients would fall within or outside the scope of the noted classifications. Paragraphs [0015]-[0016] (reciting “ayurvedic” food ingredients) and paragraphs [0017]-[0019] (reciting exemplary foods associated with the seven “chakras”) are noted but are insufficiently specific to distinctly claim the subject matter.
Claims 2-9 are rejected due to depending from claim 1 and failing to remedy the noted deficiency.
Claim 9 is additionally rejected due to reciting that “the second ingredient is also associated with the one of the seven chakras” according to the same rationale detailed for claim 1.
Claim 10 recites “a first ingredient corresponding to one of seven chakras, the seven chakras including a root chakra, a sacral chakra, a solar plexus chakra, a heart chakra, a throat chakra, a third eye chakra and a crown chakra; selecting a second ingredient associated with ayurveda,” which is vague and indefinite in that it is unclear what ingredients would fall within or outside the scope of the noted classifications. Paragraphs [0015]-[0016] (reciting “ayurvedic” food ingredients) and paragraphs [0017]-[0019] (reciting exemplary foods associated with the seven “chakras”) are noted but are insufficiently specific to distinctly claim the subject matter.
Claims 11-19 are rejected due to depending from claim 10 and failing to remedy the noted deficiency.
Claim 17 is additionally rejected due to reciting that “the second ingredient is also associated with the one of the seven chakras” according to the same rationale detailed for claim 10.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 8 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 requires the food product to be “a single-piece monolithic food product”. Dependent claim 8 then requires that the food product “forms a slurry of blended fruits and/or vegetables.” A food product in the form of a single-piece monolithic structure cannot also be in the form of a slurry. Claim 8 thus fails to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 8 cannot be further examined as related to the prior art.
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 (i.e., changing from AIA to pre-AIA ) 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 1-5, 7, 9-11, 13, and 15-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Levy et al. (U.S. 2023/0141336 A1).
Regarding claim 1, Levy et al. discloses a food product comprising a first ingredient and a second ingredient that are combined into a single-piece, monolithic food product ([0240]-[0242], where a dried fruit lamina may be filled with dehydrated fruit to form a snack bar) that has a moisture content of less than 4% by weight ([0096], where the lamina may have a water content of about 2%; [0122], where the encapsulated food is “dry”; [0128], where “dry” refers to “less than about 2% water”). The first ingredient may be apple ([0207], [0242]), which is considered to be associated with root chakra (Specification, [0019]). The second ingredient may be dehydrated fruit ([0210], [0242]), which is considered to be associated with ayurveda (Specification, [0015], [0016]).
As for claim 2, Levy et al. discloses the moisture content as being between 1% and 4% by weight ([0096], where the lamina may have a water content of about 2%; [0122], where the encapsulated food is “dry”; [0128], where “dry” refers to “less than about 2% water”).
As for claim 3, Levy et al. discloses the first ingredient is a fruit ([0207], [0242]) and the second ingredient is a fruit ([0210], [0242]).
As for claim 4, Levy et al. discloses the food product may be a heterogenous combination of the first and second ingredients ([0242]).
As for claim 5, Levy et al. discloses the first ingredient is a fruit piece ([0210], [0242]) and the second ingredient may be a different fruit/vegetable ([0207], [2014]) that forms an encasement around the first fruit piece ([0122], [0242]).
As for claim 7, Levy et al. discloses the food product is a homogenous combination of the first and second ingredients ([0135], [0137], where layers of at least two laminae made of the same material would constitute the claimed food product).
As for claim 9, Levy et al. discloses the second ingredient is also associated with the one of the seven chakras associated with the first ingredient ([0137], where a homogenous combination of the first and second ingredients implicitly requires that both of the ingredients are from the same fruit, in which case both ingredients would be associated with the one of the seven chakras).
Regarding claim 10, Levy et al. discloses a method for making a food product ([0141]), the method comprising selecting a first ingredient and a second ingredient that are combined into a single-piece, monolithic food product ([0207], [0240]-[0242]) and dehydrating the food mixture into a dried food product ([0142], where drying may occur after building of the lamina). The first ingredient may be apple ([0207], [0242]), which is considered to be associated with root chakra (Specification, [0019]). The second ingredient may be apple or peach ([0207]), which are considered to be associated with ayurveda (Specification, [0015], [0016]).
As for claim 11, Levy et al. discloses packaging the dried food product into a package ([0123]). The limitation requiring “a package identifying the one of the seven chakras associated with the first ingredient” is considered to refer to printed matter that is nonfunctional descriptive material that does not patentably distinguish the claimed product from the prior art. MPEP 2111.05 (“The first step of the printed matter analysis is the determination that the limitation in question is in fact directed toward printed matter. ‘Our past cases establish a necessary condition for falling into the category of printed matter: a limitation is printed matter only if it claims the content of information.’ See In re DiStefano, 808 F.3d 845, 848, 117 USPQ2d 1265, 1267 (Fed. Cir. 2015). ‘[O]nce it is determined that the limitation is directed to printed matter, [the examiner] must then determine if the matter is functionally or structurally related to the associated physical substrate, and only if the answer is ‘no’ is the printed matter owed no patentable weight.’”).
As for claim 13, Levy et al. discloses the step of combining as forming a heterogenous combination of the first and second ingredients ([0207], where different fruits are used to prepare the lamina).
As for claim 15, Levy et al. discloses the step of combining as forming a homogenous combination of the first and second ingredients ([0137], where a multi-layered lamina made of the same fruit would constitute a homogenous combination of ingredients).
As for claim 16, Levy et al. discloses the step of combining as comprising forming a slurry of blended fruits and/or vegetables ([0093], [0159]).
As for claim 17, Levy et al. discloses the second ingredient is also associated with the one of the seven chakras associated with the first ingredient ([0137], where a homogenous combination of the first and second ingredients implicitly requires that both of the ingredients are from the same fruit, in which case both ingredients would be associated with the one of the seven chakras).
As for claim 18, Levy et al. discloses dehydrating as occurring until a moisture content of the food product is between 1% and 4% by weight ([0096], where the lamina may have a water content of about 2%).
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 6 is rejected under 35 U.S.C. 103 as being unpatentable over Levy et al. (U.S. 2023/0141336 A1) in view of Prana (Prana Organic, “Crunchy and Nutty Chocolate Almond Butter Bars – Snacks Recipe, June 3, 2021, https://pranafoods.ca/blogs/snacks-recipes/crunchy-and-nutty-chocolate-almond-butter-bars-snacks-recipe?srsltid= AfmBOopRcGCFNQlcPl6-mStASW61QwNOXIUKNm8W021Mxylh9bPgUQt4).
Regarding claim 6, Levy et al. discloses encasement as being formed from a mixture of ingredients that may be characterized as a dough ([0175]) including seeds (chia, flaxseed) ([0179]).
Levy et al. does not disclose the dough as comprising coconut oil, nut butter, nuts, nut milk, dates, or spices.
However, Prana discloses a snack bar product (p. 1) that comprises coconut oil, almond butter, almonds, dates, and salt (p. 2, Ingredients).
It would have been obvious to one having ordinary skill in the art to incorporate various ingredients, such as those taught in Prana, into an encasement dough as taught in Levy et al. First, Levy et al. indicates that the lamina may comprise an adhesive component that may comprise various additional ingredients ([0114]), which would prompt a skilled practitioner to consult Prana for determination of such ingredients that are typically used in snack food bars. Since Prana discloses the inclusion of coconut oil, nut butter (almond butter), nuts (almonds), nut milk (almonds that would inherently comprise the material that would constitute almond milk), dates, and spices (salt), a skilled practitioner would find the addition of all of those ingredients to a snack food bar to be obvious in order to impart desirable taste and/or organoleptic properties to the bar. The inclusion of the claimed ingredients in any portion of a food bar would thus be obvious to a skilled practitioner, including into the lamina component of a product produced according to Levy et al.
Attention is additionally invited to In re Levin, 84 USPQ 232, and the cases cited therein, which are considered pertinent to the fact situation of the present case. The court in Levin states:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Levin at 234.
The mere inclusion of various known food ingredients into a food product does not amount to a nonobvious invention.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Levy et al. (U.S. 2023/0141336 A1) in view of Gross et al. (U.S. 5,020,237).
Regarding claim 12, Levy et al. discloses the method of claim 10.
Levy et al. does not specifically disclose the dehydrating step as comprising applying a vacuum and radiant energy to the food mixture.
However, Gross et al. discloses dehydrating fruit via applying a vacuum and radiant energy (C3, L56-L68).
It would have been obvious to one having ordinary skill in the art to dehydrate the composition of Levy et al. via application of vacuum to the ambient area around the food mixture and application of radiant energy such that moisture is discharged. First, Levy et al. discloses generally that the material may be dried without requiring any particular method of drying or providing indication as to a preferred method of drying ([0161], [0242]). A skilled practitioner would be motivated to consult Gross et al. for further instruction regarding suitable drying methods. Since Gross et al. discloses the simultaneous application of vacuum and radiant infrared/microwave energy in order to maintain an optimum evaporative rate and more efficient use of heat to effect dehydration (C3, L56 – C4, L6), a skilled practitioner would find incorporation of such instruction into the drying step of Levy et al. to be obvious. As such, performing a drying step that involves applying a vacuum to the ambient area around the food mixture and applying radiant energy to the food mixture during the vacuum step, such that moisture is discharged into the ambient area, would be obvious to a skilled practitioner.
Claims 14 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Levy et al. (U.S. 2023/0141336 A1).
Regarding claim 14, the rejection of parent claim 10 is on that the basis that the food product is the lamina only but that is comprised of multiple ingredients, such that the drying step taught in paragraph [0142] that occurs after building the lamina corresponds with the claimed step in claim 10 of dehydrating the food mixture into a dried food product. The requirement of claim 14 that the second ingredient forms an encasement encasing the fruit piece causes the rejection of claim 10 to no align with the corresponding elements in Levy et al. The rejection of claim 14 is thus comparable to that of claim 1, wherein the two ingredients form the lamina and the filling material, respectively. Realigning the elements of claim 10, then, Levy et al. discloses a method for making a food product ([0141]), the method comprising selecting a first ingredient and a second ingredient that are combined into a single-piece, monolithic food product ([0240]-[0242]). The first ingredient may be apple ([0207], [0242]), which is considered to be associated with root chakra (Specification, [0019]). The second ingredient may be dehydrated fruit ([0210], [0242]), which is considered to be associated with ayurveda (Specification, [0015], [0016]). Levy et al. further discloses the first ingredient is a fruit piece ([0210], [0242]) and the second ingredient may be a different fruit/vegetable ([0207], [2014]) that forms an encasement around the first fruit piece ([0122], [0242]).
Levy et al. does not explicitly disclose dehydrating a food mixture configured with a second ingredient encasing a first ingredient.
However, Levy et al. does disclose dehydrating the formed lamina ([0142]) and using dehydrated fruit as a filling ([0210], [0242]). MPEP 2144.04 IV C states: “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”. Since Levy et al. discloses dehydrating the components individually, altering the process sequence to entail mixing components before performing the dehydration step would be obvious, particularly in order to simply the method to involving only a single dehydration step. No new or unexpected result is evident from the claimed sequence of process steps. Performing a dehydration step on the food mixture would thus be obvious.
Regarding claim 19, Levy et al. discloses the use of fruit in the product ([0088], [0242]).
Levy et al. does not explicitly disclose selecting the fruit ingredients within 48 hours after harvesting.
However, the disclosure of the inclusion of fruit in the products renders the use of fruit at any point following harvesting obvious, including the claimed time frame. Selecting fruits that are within 48 hours of being harvested would thus be obvious to a skilled practitioner.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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