DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because FIGS. 4A, 4B, 5A, 5B, 6, and 7 are of severely poor quality and the details or key details thereof cannot be discerned. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 11,839,228. Although the claims at issue are not identical, they are not patentably distinct from each other (e.g., some of the instant claims are merely broader than the claims of U.S. Patent No. 11,839,228 or the claims of U.S. Patent No. 11,839,228 recite an additional element not present in the instant claims).
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,089,622 in view of one or more of Hauck (US 20090130267 A1), Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Fitzgerald et al. (US 20140093636 A1), Christiansen et al. (WO 2013163041 A1), Leusner et al. (US 20030206996 A1), Lundquist et al. (US 6013863 A), Notten et al. (US 20100130365 A1), and Ochiai et al. (US 20080008812 A1). Any limitations present in the instant claims and not present in the claims of U.S. Patent No. 12,089,622 are set forth in the prior art rejections of the instant claims and the motivation for incorporation thereof are either the same as set forth below or prima facie obvious (e.g., method steps vs. a system with units “configured to” perform the steps).
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 33-34 and 40 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 pre-AIA the applicant regards as the invention.
Regarding claims 33-34 and 40: “A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite”. See MPEP 2173.05(p) II.
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 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.
Claims 21, 25, and 30-32 are rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation) in further view of Fitzgerald et al. (US 20140093636 A1) and in further view of Christiansen et al. (WO 2013163041 A1).Regarding claim 21:Hauck teaches (FIG. 1) a system for producing sprouted popcorn kernels comprising:
a soaking tank (that which contains the water and seeds/kernels - 4; [0015], [0020]) sized and dimensioned to receive unsprouted popcorn kernels and a volume of soaking fluid sufficient to cover the charge of unsprouted popcorn kernels, the soaking tank configured to hold the charge of unsprouted popcorn kernels in contact with the soaking fluid;
a germination unit (8; [0023]) coupled with the soaking tank to receive soaked unsprouted popcorn kernels from the soaking tank, to produce sprouted popcorn kernels ([0009]);
a germination sensor ([0028]; claim 5) coupled with the germination unit and configured to generate an output signal in response to detection of a germination progress of the soaked unsprouted popcorn kernels to the sprouted popcorn kernels, the germination sensor including an optical sensor configured to measure an opacity of a hull of popcorn kernels held within the germination unit;
wherein the at least one reference germination threshold includes a hull opacity measurement of sprouted popcorn kernels prior to root formation ([0024]-[0026]); and
a drying unit (14; [0017], [0030]; claim 10) Hauck fails to teach or fails to explicitly teach (discussion below):
the soaking tank sized and dimensioned to receive a charge of at least 100 lbs. of unsprouted popcorn kernels
to provide a moisture content of the charge of unsprouted popcorn kernels by weight from 25% to 35%
the germination unit configured to maintain a relative humidity from 30% to 70%
a controller communicatively coupled with the germination sensor to receive the output signal, the controller configured to compare the output signal to reference germination thresholds to determine whether the output signal from the germination sensor meets or exceeds at least one reference germination threshold, wherein the at least one reference germination threshold includes a hull opacity measurement of sprouted popcorn kernels prior to acrospire formation
the drying unit communicatively coupled with the controller and responsive to instructions from the controller when the output signal from the germination sensor meets or exceeds at least one reference germination threshold
the drying unit configured to dry the sprouted popcorn kernels to a moisture content by weight from 14% to 16%Zheng teaches or renders obvious:
soaking to provide a moisture content of the charge of unsprouted popcorn kernels by weight from 29 to 35% ([0011]-[0012]); the germination unit configured to maintain a relative humidity from 30% to 70% ([0011]-[0012]) Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture content and humidity of Zheng in the device of Hauck to germinate the seed/kernels. Hauck explicitly teaches germination by soaking the seeds/kernels (FIG. 1 - 4; [0015], [0020]) and then, after soaking and removal of the water, keeping the seeds/kernels moist (8; [0023]); however, Hauck is silent as to the exact moisture content for soaking and the exact humidity levels for germination. Zheng teaches moisture content levels for soaking and humidity levels for germination of seed.Fitzgerald teaches:
the drying unit configured to dry the sprouted popcorn kernels to a moisture content by weight from 14% to 16% ([0005], [0007]) Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to dry the kernels to a moisture content of 14% to 16%, as taught by Fitzgerald, in the device of Hauck to yield popcorn which may be popped by the user. Hauck explicitly teaches that the seeds/kernels should be dried (FIG. 14; [0017], [0030]; claim 10) and that they are used for popcorn (abstract, [0011], [0030]); however, Hauck is silent as to the exact moisture content that the seeds/kernels should be dried to. Fitzgerald teaches what the moisture content should be to yield popcorn.Christiansen teaches:
both rootlets and acrospires are waste ([0027], [0036])
Hauck already teaches measuring hull opacity ([0028]; claim 5) to track germination state and that the goal is to stop germination / switch to drying once the peak nutritional value has been reached. Hauck teaches that the peak nutritional value is “the apex of germination” and “is considered to be the point at which the metabolism of the storage reserves of a given corn kernel has approached completion”. Hauck tracks this via hull opacity to prevent as much root eruption as possible. Christiansen teaches that both rootlets as well as acrospires are waste (i.e., they are removed and, thus, a metabolic waste). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the hull opacity measurement threshold of Hauck correspond to acrospire formation or both rootlet and acrospire formation to ensure peak nutritional value and prevent metabolic waste. It is noted that Hauck teaches that, prior to the main device being used, research is conducted to estimate parameters (e.g., such as hull opacity) that represent when the kernels have reached peak nutritional value ([0024]-[0027]).
Regarding the limitation of “the soaking tank is sized and dimensioned to receive a charge of at least 100 lbs. of unsprouted popcorn kernels”: “mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled". See MPEP 2144.04 IV. The aforementioned claim limitation is merely reciting the relative dimensions of the soaking tank. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding the limitations of “a controller communicatively coupled with the germination sensor to receive the output signal” and “the drying unit communicatively coupled with the controller and responsive to instructions from the controller”: The court has held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP 2144.04 III.
Regarding the limitations of “compare the output signal to reference germination thresholds to determine whether the output signal from the germination sensor meets or exceeds at least one reference germination threshold” and “when the output signal from the germination sensor meets or exceeds at least one reference germination threshold”: the examiner holds that Hauck inherently teaches or renders obvious these limitations. Specifically, Hauck explicitly teaches a germination sensor ([0028]; claim 5) which may be embodied as an electro-optical sensor which monitors changes in seed opacity. This sensor is used to determine when the seeds have reached the apex of germination (abstract, [0009]). As such, the sensor output must inherently be compared to some sort of “threshold” or “value” in order to make such a determination regarding when “apex of germination” has been reached.
Regarding claim 25:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.As combined in the claim 21 rejection above, Zheng renders obvious:
wherein the germination unit is configured to produce sprouted popcorn kernels having a moisture content by weight from 30% to 35% Zheng teaches a water content of 30-85% after soaking and prior to transferring to the “germination unit” ([0011]). Zheng teaches that the germination unit maintains a relative humidity of 35% to 100% ([0012]). As such, it appears that the moisture content of the sprouted popcorn kernels produced by the germination unit would remain around 30-85% due to the high humidity; however, this is not explicitly taught.
However, in light of the above, the examiner holds the instant claim limitation as merely routine optimization within prior art conditions or through routine experimentation. See MPEP 2144.05 II A. Also see MPEP 2144.05 in general.
Regarding claim 30:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.As combined in the claim 21 rejection above Hauck and Zheng explicitly teach:
wherein the controller (Hauck - that which controls the temperature of the temperature controlled bath - [0015], [0020]) is communicatively coupled with the soaking tank (Hauck - that which contains the water and seeds/kernels - 4; [0015], [0020]) to provide the moisture content of the charge of unsprouted popcorn kernels by weight from 25% to 35% (Zheng - [0011]-[0012])
The examiner notes that "apparatus claims cover what a device is, not what a device does." A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP 2114 II. Further, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 and/or 35 U.S.C. 103 may be appropriate. See MPEP 2114 IV. In this case, Hauck clearly teaches an apparatus that can inherently perform the claimed functions of “to provide an activation step and a steeping step” and “wherein the activation step includes soaking the charge of unsprouted popcorn kernels in the soaking fluid at a temperature of between 30°C to 60°C for a first duration, and wherein the steeping step includes soaking the charge of unsprouted popcorn kernels in the soaking fluid at a temperature of between 20°C to 30°C for a second duration greater than the first duration”. The examiner notes that: Hauck teaches a temperature of between 21.1°C and 32.2°C ([0020], claim 3); Zheng teaches a temperature of 20-45°C ([0011]-[0012]); and the claimed “activation step” and “steeping step” have an overlapping temperature range (i.e. a temperature of 30°C reads on the temperatures for both steps).
Regarding claim 31:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 30, as mentioned above.Hauck also teaches or renders obvious:
wherein the first duration is from 15 minutes to 120 minutes
The examiner notes that "apparatus claims cover what a device is, not what a device does." A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP 2114 II. Further, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 and/or 35 U.S.C. 103 may be appropriate. See MPEP 2114 IV. In this case, Hauck clearly teaches (e.g. based on [0020]) an apparatus that can inherently perform the claimed function of “soaking…for a first duration…wherein the first duration is from 15 minutes to 120 minutes”.
Regarding claim 32:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 31, as mentioned above.Hauck also teaches or renders obvious:
wherein the second duration is from 4 hours to 8 hours
The examiner notes that "apparatus claims cover what a device is, not what a device does." A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP 2114 II. Further, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 and/or 35 U.S.C. 103 may be appropriate. See MPEP 2114 IV. In this case, Hauck clearly teaches (e.g. based on [0020]) an apparatus that can inherently perform the claimed function of “soaking…for a second duration… wherein the second duration is from 4 hours to 8 hours”.
Claims 22-24 and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Fitzgerald et al. (US 20140093636 A1), and Christiansen et al. (WO 2013163041 A1) and further in view of Leusner et al. (US 20030206996 A1).Regarding claim 22:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.Hauck fails to teach:
a moisture sensor coupled with the soaking tank, the moisture sensor positioned to measure a moisture content of the charge of unsprouted popcorn kernelsLeusner teaches:
a moisture sensor ([0054], [0066])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture sensor of Leusner in the device of Hauck to increase accuracy and quality control. As set forth in the claim 21 rejection above, Hauck explicitly teaches germination by soaking the seeds/kernels (FIG. 1 - 4; [0015], [0020]) and Zheng teaches the soaking should yield a specific water content or level of moisture ([0011]-[0012]). By using the moisture sensor of Leusner, the specific moisture content/level may be directly monitored in real time, yielding increased accuracy and quality control.
Regarding claim 23:Hauck, Zheng, Fitzgerald, Christiansen, and Leusner teach all the limitations of claim 22, as mentioned above.As combined in the claim 22 rejection above, Hauck, Zheng, Fitzgerald, Christiansen, and Leusner teach:
wherein the controller (see claim 21 rejection above) is communicatively coupled with the moisture sensor (see claim 22 rejection above), and wherein the controller is configured to initiate transfer (see claim 21 rejection above regarding automation of a manual activity) of soaked unsprouted popcorn kernels from the soaking tank to the germination unit (Hauck - [0023]) when the moisture sensor detects a moisture content of the charge of unsprouted popcorn kernels by weight from 29% to 33% (Zheng - see claim 21 rejection above)
Regarding claim 24:Hauck, Zheng, Fitzgerald, Christiansen, and Leusner teach all the limitations of claim 22, as mentioned above.As combined in the claim 22 rejection above, Hauck, Zheng, Fitzgerald, Christiansen, and Leusner teach:
wherein when the controller determines output from the optical sensor at least substantially matches the optical measurement of sprouted popcorn kernels prior to acrospire formation the controller is configured to determine whether a moisture content of popcorn kernels held within the germination unit detected by the moisture sensor is within a moisture threshold, and wherein the controller is configured to instruct the drying unit to dry the sprouted popcorn kernels when it is determined that each of the optical sensor output and the moisture sensor output are within the respective threshold values(The examiner holds the rejections of claims 21-22 above, especially considering the automation of a manual activity, clearly set forth which references teach of the limitations of claim 24 and how the combination as a whole meets the instant claim limitations)
Regarding claim 26:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.Hauck fails to teach:
wherein the germination sensor further includes a moisture sensor configured to measure a moisture content of popcorn kernels held within the germination unit, and wherein the reference germination thresholds include a moisture content of sprouted popcorn kernels prior to acrospire formationLeusner teaches:
a moisture sensor ([0054], [0066])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture sensor of Leusner in the device of Hauck to increase accuracy and quality control. As set forth in the claim 21 rejection above, Hauck explicitly teaches germination by soaking the seeds/kernels (FIG. 1 - 4; [0015], [0020]) and Zheng teaches the soaking should yield a specific water content or level of moisture ([0011]-[0012]). By using the moisture sensor of Leusner, the specific moisture content/level may be directly monitored in real time, yielding increased accuracy and quality control. The remaining claim limitations are met upon combination (i.e., the moisture sensor is used along with the hull opacity sensor of Hauck to determine when the ideal germination point is reached as defined by Hauck and Christiansen and set forth in the claim 21 rejection above).
Regarding claim 27:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.Hauck also teaches:
drying the sprouted popcorn kernels (FIG. 1 - 14; [0017], [0030]; claim 10)As combined in the claim 21 rejection above, Fitzgerald teaches:
the final moisture content by weight after drying should be from 14% to 16% ([0005], [0007])Hauck fails to teach:
a moisture sensor coupled with the drying unit and communicatively coupled with the controller, wherein the controller is configured to instruct the drying unit to stop drying the sprouted popcorn kernels when the moisture content by weight measured by the moisture sensor is from 14% to 16%Leusner teaches:
a moisture sensor ([0054], [0066])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture sensor of Leusner in the device of Hauck to increase accuracy and quality control. As set forth above, Fitzgerald teaches that the final moisture content after drying is a critical parameter to ensure the popcorn pops properly and has the desired taste and texture ([0005], [0007]). By using the moisture sensor of Leusner, the specific moisture content/level may be directly monitored in real time, yielding increased accuracy and quality control.
Regarding the limitation of “the moisture sensor coupled with the drying unit and communicatively coupled with the controller, wherein the controller is configured to instruct the drying unit to stop drying the sprouted popcorn kernels”: The court has held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP 2144.04 III.
Claims 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Fitzgerald et al. (US 20140093636 A1), and Christiansen et al. (WO 2013163041 A1) and further in view of Lundquist et al. (US 6013863 A).Regarding claim 28:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 21, as mentioned above.Hauck fails to teach:
a decontamination unit configured to receive the charge of unsprouted popcorn kernels prior to introduction to the soaking tank, the decontamination unit including an input to receive a decontamination fluid and direct the decontamination fluid to contact the charge of unsprouted popcorn kernelsLundquist teaches:
decontaminating / sterilizing the popcorn kernels with a decontamination fluid prior to soaking and germination (col. 4, lines 31-37; col. 25, first two paragraphs)
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the decontamination fluid of Lundquist in the device of Hauck to ensure a standardized germination (i.e. eliminating variables such as contamination from affecting the germination) and/or to prevent dangerous contaminates (e.g. fungi or spores thereof, etc.) in the resulting popcorn.
Regarding claim 29:Hauck, Zheng, Fitzgerald, Christiansen, and Lundquist teach all the limitations of claim 28, as mentioned above.As combined in the claim 28 rejection above, Lundquist teaches:
wherein the decontamination fluid includes at least one of sodium hypochlorite (NaOCl) or an organic liquid decontaminating agent (col. 4, lines 31-37; col. 25, first two paragraphs - bleach is sodium hypochlorite)
Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Fitzgerald et al. (US 20140093636 A1), and Christiansen et al. (WO 2013163041 A1) and further in view of Notten et al. (US 20100130365 A1).Regarding claim 33:Hauck, Zheng, Fitzgerald, and Christiansen teach all the limitations of claim 30, as mentioned above.Hauck fails to teach:
wherein the activation step occurs in the absence of lightNotten teaches:
wherein the activation step occurs in the absence of light ([0023], [0253], [0254])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to soak the seeds in the absence of light for at least part of the soaking, as taught by Notten, in the device of Hauck to improve the hydration / germination process. Notten teaches that “light or darkness…also influence the outcome of the hydration method” ([0023]).
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Fitzgerald et al. (US 20140093636 A1), and Christiansen et al. (WO 2013163041 A1) and further in view of Notten et al. (US 20100130365 A1) and Ochiai et al. (US 20080008812 A1).Regarding claim 34:Hauck, Zheng, Fitzgerald, Christiansen, and Notten teach all the limitations of claim 33, as mentioned above.Hauck fails to teach:
wherein the steeping step occurs in the presence of lightOchiai teaches:
wherein the steeping step occurs in the presence of light ([0096]-[0098])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to soak the seeds in the presence of light for at least part of the soaking, as taught by Ochiai, in the device of Hauck to increase antioxidants or to increase antioxidant activity. Additionally/alternatively, one of ordinary skill in the art would use light during the soaking process to improve the hydration / germination process. Notten teaches that “light or darkness…also influence the outcome of the hydration method” ([0023]).
Claims 35 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation) and Leusner et al. (US 20030206996 A1) and further in view of Christiansen et al. (WO 2013163041 A1).Regarding claim 35:Hauck teaches (FIG. 1) a system for producing sprouted popcorn kernels comprising:
a soaking tank (that which contains the water and seeds/kernels - 4; [0015], [0020]) sized and dimensioned to receive a charge of unsprouted popcorn kernels and a volume of soaking fluid sufficient to cover the charge of unsprouted popcorn kernels, the soaking tank configured to hold the charge of unsprouted popcorn kernels in contact with the soaking fluid;
a germination unit (8; [0009], [0023]) coupled with the soaking tank to receive soaked unsprouted popcorn kernels from the soaking tank, the germination unit configured to maintain a relative humidity sufficient to produce sprouted popcorn kernels;
a germination sensor ([0028]; claim 5) coupled with the germination unit and configured to generate an output signal in response to detection of a germination progress of the soaked unsprouted popcorn kernels to the sprouted popcorn kernels, the germination sensor including an optical sensor configured to measure an opacity of a hull of popcorn kernels held within the germination unit;
wherein the at least one reference germination threshold includes a hull opacity measurement of sprouted popcorn kernels prior to root formation ([0024]-[0026]); and
a drying unit, the drying unit configured to dry the sprouted popcorn kernels (14; [0017], [0030]; claim 10)Hauck fails to teach or fails to explicitly teach (discussion below):
the soaking tank sized and dimensioned to receive a charge of at least 100 lbs. of unsprouted popcorn kernels
a moisture sensor configured to measure a moisture content of the popcorn kernels held within the germination unit
a controller communicatively coupled with the germination sensor to receive the output signal, the controller configured to compare the output signal to reference germination thresholds to determine whether the output signal from the germination sensor meets or exceeds at least two reference germination thresholds, wherein the reference germination thresholds include a hull opacity measurement of sprouted popcorn kernels prior to acrospire formation and a moisture content of sprouted popcorn kernels prior to acrospire formation
the drying unit responsive to instructions from the controller when the output signal from the germination sensor meets or exceeds at least two reference germination thresholdsZheng teaches:
soaking to provide a moisture content of the charge of unsprouted popcorn kernels by weight of a specific percentage ([0011]-[0012])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture content and humidity of Zheng in the device of Hauck to germinate the seed/kernels. Hauck explicitly teaches germination by soaking the seeds/kernels (FIG. 1 - 4; [0015], [0020]) and then, after soaking and removal of the water, keeping the seeds/kernels moist (8; [0023]); however, Hauck is silent as to the exact moisture content for soaking and the exact humidity levels for germination. Zheng teaches moisture content levels for soaking and humidity levels for germination of seed.Leusner teaches:
a moisture sensor ([0054], [0066])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture sensor of Leusner in the device of Hauck to increase accuracy and quality control. As set forth in the claim 35 rejection above, Hauck explicitly teaches germination by soaking the seeds/kernels (FIG. 1 - 4; [0015], [0020]) and Zheng teaches the soaking should yield a specific water content or level of moisture ([0011]-[0012]). By using the moisture sensor of Leusner, the specific moisture content/level may be directly monitored in real time, yielding increased accuracy and quality control.Christiansen teaches:
both rootlets and acrospires are waste ([0027], [0036])
Hauck already teaches measuring hull opacity ([0028]; claim 5) to track germination state and that the goal is to stop germination / switch to drying once the peak nutritional value has been reached. Hauck teaches that the peak nutritional value is “the apex of germination” and “is considered to be the point at which the metabolism of the storage reserves of a given corn kernel has approached completion”. Hauck tracks this via hull opacity to prevent as much root eruption as possible. Christiansen teaches that both rootlets as well as acrospires are waste (i.e., they are removed and, thus, a metabolic waste). Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the hull opacity measurement threshold of Hauck correspond to acrospire formation or both rootlet and acrospire formation to ensure peak nutritional value and prevent metabolic waste. It is noted that Hauck teaches that, prior to the main device being used, research is conducted to estimate parameters (e.g., such as hull opacity) that represent when the kernels have reached peak nutritional value ([0024]-[0027]).
Regarding the limitation of “the soaking tank is sized and dimensioned to receive a charge of at least 100 lbs. of unsprouted popcorn kernels”: “mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled". See MPEP 2144.04 IV. The aforementioned claim limitation is merely reciting the relative dimensions of the soaking tank. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Regarding the limitations of “a controller communicatively coupled with the germination sensor to receive the output signal” and “the drying unit responsive to instructions from the controller”: The court has held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP 2144.04 III.
Regarding the limitations of “compare the output signal to reference germination thresholds to determine whether the output signal from the germination sensor meets or exceeds at least two reference germination thresholds, wherein the reference germination thresholds include a hull opacity measurement of sprouted popcorn kernels prior to acrospire formation and a moisture content of sprouted popcorn kernels prior to acrospire formation”: the examiner holds that the combination of Hauck, Zheng, Leusner, and Christiansen render these limitations obvious. Specifically, Hauck explicitly teaches a germination sensor ([0028]; claim 5) which may be embodied as an electro-optical sensor which monitors changes in seed opacity. This sensor is used to determine when the seeds have reached the apex of germination (abstract, [0009]). As such, the sensor output must inherently be compared to some sort of “threshold” or “value” in order to make such a determination regarding when “apex of germination” has been reached. Zheng teaches the specific moisture content, Leusner teaches the moisture sensor, and Christiansen (in view of [0024]-[0028] and claim 5 of Hauck) renders obvious “prior to acrospire formation”.
Regarding claim 39:Hauck, Zheng, Leusner, and Christiansen teach all the limitations of claim 35, as mentioned above.As combined in the claim 35 rejection above Hauck and Zheng explicitly teach:
wherein the controller (Hauck - that which controls the temperature of the temperature controlled bath - [0015], [0020]) is communicatively coupled with the soaking tank (Hauck - that which contains the water and seeds/kernels - 4; [0015], [0020]) to provide the moisture content of the charge of unsprouted popcorn kernels by weight from 25% to 35% (Zheng - [0011]-[0012])
The examiner notes that "apparatus claims cover what a device is, not what a device does." A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. See MPEP 2114 II. Further, functional claim language that is not limited to a specific structure covers all devices that are capable of performing the recited function. Therefore, if the prior art discloses a device that can inherently perform the claimed function, a rejection under 35 U.S.C. 102 and/or 35 U.S.C. 103 may be appropriate. See MPEP 2114 IV. In this case, Hauck clearly teaches an apparatus that can inherently perform the claimed functions of “to provide an activation step and a steeping step” and “wherein the activation step includes soaking the charge of unsprouted popcorn kernels in the soaking fluid at a temperature of between 30°C to 60°C for a first duration, and wherein the steeping step includes soaking the charge of unsprouted popcorn kernels in the soaking fluid at a temperature of between 20°C to 30°C for a second duration greater than the first duration”. The examiner notes that: Hauck teaches a temperature of between 21.1°C and 32.2°C ([0020], claim 3); Zheng teaches a temperature of 20-45°C ([0011]-[0012]); and the claimed “activation step” and “steeping step” have an overlapping temperature range (i.e. a temperature of 30°C reads on the temperatures for both steps).
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Leusner et al. (US 20030206996 A1, and Christiansen et al. (WO 2013163041 A1) and further in view of Fitzgerald et al. (US 20140093636 A1).Regarding claim 36:Hauck, Zheng, Leusner, and Christiansen teach all the limitations of claim 35, as mentioned above.Hauck fails to teach:
a second moisture sensor coupled with the drying unit and communicatively coupled with the controller, wherein the controller is configured to instruct the drying unit to stop drying the sprouted popcorn kernels when the moisture content by weight measured by the second moisture sensor is from 14% to 16%Fitzgerald teaches
the drying unit configured to dry the sprouted popcorn kernels to a moisture content by weight from 14% to 16% ([0005], [0007])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to dry the kernels to a moisture content of 14% to 16%, as taught by Fitzgerald, in the device of Hauck to yield popcorn which may be popped by the user. Hauck explicitly teaches that the seeds/kernels should be dried (FIG. 14; [0017], [0030]; claim 10) and that they are used for popcorn (abstract, [0011], [0030]); however, Hauck is silent as to the exact moisture content that the seeds/kernels should be dried to. Fitzgerald teaches what the moisture content should be to yield popcorn.Leusner teaches:
a moisture sensor ([0054], [0066])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the moisture sensor of Leusner in the device of Hauck to increase accuracy and quality control. As set forth above, Fitzgerald teaches that the final moisture content after drying is a critical parameter to ensure the popcorn pops properly and has the desired taste and texture ([0005], [0007]). By using the moisture sensor of Leusner, the specific moisture content/level may be directly monitored in real time, yielding increased accuracy and quality control.
Regarding the limitation of the “moisture sensor coupled with the drying unit and communicatively coupled with the controller, wherein the controller is configured to instruct the drying unit to stop drying the sprouted popcorn kernels”: The court has held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP 2144.04 III.
Claims 37-38 are rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Leusner et al. (US 20030206996 A1, and Christiansen et al. (WO 2013163041 A1) and further in view of Lundquist et al. (US 6013863 A).Regarding claim 37:Hauck, Zheng, Leusner, and Christiansen teach all the limitations of claim 35, as mentioned above.Hauck fails to teach:
a decontamination unit configured to receive the charge of unsprouted popcorn kernels prior to introduction to the soaking tank, the decontamination unit including an input to receive a decontamination fluid and direct the decontamination fluid to contact the charge of unsprouted popcorn kernelsLundquist teaches:
decontaminating / sterilizing the popcorn kernels with a decontamination fluid prior to soaking and germination (col. 4, lines 31-37; col. 25, first two paragraphs)
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the decontamination fluid of Lundquist in the device of Hauck to ensure a standardized germination (i.e. eliminating variables such as contamination from affecting the germination) and/or to prevent dangerous contaminates (e.g. fungi or spores thereof, etc.) in the resulting popcorn.
Regarding claim 38:Hauck, Zheng, Leusner, Christiansen, and Lundquist teach all the limitations of claim 37, as mentioned above.As combined in the claim 37 rejection above, Lundquist teaches:
wherein the decontamination fluid includes at least one of sodium hypochlorite (NaOCl) or an organic liquid decontaminating agent (col. 4, lines 31-37; col. 25, first two paragraphs - bleach is sodium hypochlorite)
Claim 40 is rejected under 35 U.S.C. 103 as being unpatentable over Hauck (US 20090130267 A1) in view of Zheng et al. (CN 103719991 A - all citations are to the attached English translation), Leusner et al. (US 20030206996 A1, and Christiansen et al. (WO 2013163041 A1) and further in view of Notten et al. (US 20100130365 A1) and Ochiai et al. (US 20080008812 A1)Regarding claim 40:Hauck, Zheng, Leusner, and Christiansen teach all the limitations of claim 39, as mentioned above.Hauck fails to teach:
wherein the steeping step occurs in the presence of light, and wherein the activation step occurs in the absence of lightNotten teaches:
wherein the activation step occurs in the absence of light ([0023], [0253], [0254])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to soak the seeds in the absence of light for at least part of the soaking, as taught by Notten, in the device of Hauck to improve the hydration / germination process. Notten teaches that “light or darkness…also influence the outcome of the hydration method” ([0023]).Ochiai teaches:
wherein the steeping step occurs in the presence of light ([0096]-[0098])
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to soak the seeds in the presence of light for at least part of the soaking, as taught by Ochiai, in the device of Hauck to increase antioxidants or to increase antioxidant activity. Additionally/alternatively, one of ordinary skill in the art would use light during the soaking process to improve the hydration / germination process. Notten teaches that “light or darkness…also influence the outcome of the hydration method” ([0023]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Herbert Keith Roberts whose telephone number is (571)270-0428. The examiner can normally be reached 10a - 6p MT.
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/HERBERT K ROBERTS/Primary Examiner, Art Unit 2855
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