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 .
Election/Restrictions
Applicant's election with traverse of Group III, claim 11, in response to the restriction of the claims into Group I, claim 1, Group II, claims 2, 3, 5-9 and Group III, claim 11 , in the reply filed on 02/02/2026 is acknowledged. The traversal is on the following grounds:
that Examination of all the Groups would not be a serious burden placed on the Examiner if restriction is not required;
that the Examiner has not provided any indication that the claims interpreted in light of the description was considered in the decision to make the assertion of a lack of unity and therefor has not met the burden necessary to support the assertion; and,
that the claims are not directed to distinct inventions, rather they are different definitions of the same disclosed subject matter, varying in breadth or scope of definition.
These arguments are found persuasive regarding Group I, claim 1 and Group III, claim 11, not being properly restrictable relative to each other. It is acknowledged that claims 1 and 11 are each directed to producing of a pregelatinized, starch dry powder and are substantially drawn to similarly worded or recited production device limitations concerning a temperature adjusting means and a grinding mechanism which includes at least two rigid members, and a pressing member for varying a gap between the rigid members and for applying a specific amount of pressing force. Thus, it is agreed that these two Groups or claims can reasonably be examined together without effecting any significant burden on the examiner.
These arguments are not found persuasive regarding Group II, claim 2, 3 and 5-9 not being properly restrictable relative to Group III, claim 11 because the claims of Group II do not relate to a single, general inventive concept, nor have any special inventive feature in common, other than broadly both relating to “pregelatinized starch dry powder”, such material being well known in view of Nishioka (JP 2018038368) of record.
The respective claims otherwise widely diverge, with the Group II claims pertaining to determination of material properties including chromatographic analysis to determine molecular weight intensities, performing of a gelation test to determine shear strain values, and determination of crystallization values;
whereas the claims of Groups I and III instead are each directed to producing of a pregelatinized, starch dry powder and are substantially drawn to similarly worded or recited production device limitations concerning a temperature adjusting means and a grinding mechanism which includes at least two rigid members, and a pressing member for varying a gap between the rigid members and for applying a specific amount of pressing force.
Thus, it is submitted that Examination of the claims of Group II would indeed constitute a substantial examination burden on the Examiner.
Thus claims 1 and 11 have now been fully examined on the Merits, as detailed in the remainder of this Office Action.
The requirement for restriction between Group II, claim 2, 3 and 5-9 and Group III, claim 11 is still deemed proper and is therefore made FINAL.
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.
Claims 1 and 11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
In each of claims 1 and 11, in the 1st wherein clause, recitation of “an opposing surface side of the rigid member” (singular rigid member) is inconsistent with preceding recitations of “at least two rigid members” and “the rigid members” (plural);
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f):
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
Such claim limitations are: “a temperature adjusting means… temperature adjusting means adjusts a temperature of the cereal grain in a process of being sheared by the grinding mechanism” in each of claims 1 and 11.
Because these claim limitations are being interpreted under 35 U.S.C. 112(f), they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The Specification in paragraph [0041] recites that “the temperature adjusting means can be a conventionally known heater”, thus these claim limitations are interpreted accordingly as referring to any heater which is reasonably conventionally known for heating fluids.
If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f), applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over patent publication JP 2018-38368 and the accompanying Machine English translation (publication ‘368) in view of patent publication CN 101070437A and the accompanying Escapenet English translation (publication ‘437). Paragraph numbers of the applied Escapenet English translation are identified by “[ ]” referring to the paragraph immediately preceding the “[ ]” symbols.
Descriptions of paragraphs for the Machine translation of publication ‘368 refer to identified sections of the Translation of that document.
For independent claim 1, Publication ‘368 discloses: A method for producing a pregelatinized starch dry powder (Description, paragraph under “Technical Field” and throughout the Embodiment section of the translation) , comprising:
supplying a cereal grain to a production device (apparatus 10) including a grinding mechanism (see Description of Embodiments regarding providing cereal grains, figure 1 and description of Fig.1, 1st and 2nd paragraphs and description of Fig. 2, 1st paragraph concerning the grains provided to a mechanism comprising a combination of upper mill 11 and lower mill 12, leaving a pre-determined gap 13 therebetween for milling and “crushing”, i.e. “grinding”) and a
temperature adjusting means (description of Fig 1 pertaining to heater 17 and connection to temperature controller 19 and associated computer 22 which controls a set temperature applied by the heater as controlled by the controller); and
grinding the cereal grain under shear conditions (description of Fig. 2, 1st , 7th through 15th paragraph preceding Fig. 1) re the raw material grain being sheared and crushed),
wherein the grinding mechanism includes at least two rigid members arranged opposite to each other (opposing upper mill 11 and lower mill 12 illustrated in Fig 1 and described at description of Fig.1, 1st and 2nd paragraphs and description of Fig. 2, 1st paragraph) , and
a pressing member that presses at least one of the rigid members, at a given force, so that a gap distance between the rigid members is variable by a force from an opposing surface side of the rigid member (gap adjusting unit 16 which presses against the lower die or mill 12 to adjust such gap distance as shown in figures 1 and 2 and described in the 2nd paragraph of the description of Fig. 2),
wherein the temperature adjusting means adjusts a temperature of the cereal grain in a process of being sheared by the grinding mechanism (description of Fig 2, 1st paragraph concerning processing temperatures achieved by the heater 17 and corresponding increases in applied shear force) and
wherein the rigid members are arranged to shear and grind the cereal grain supplied to a gap formed by opposing surfaces of the rigid members (description of Fig 2, 1st paragraph concerning “the processing temperature when being sheared and ground in the gap 13 between the upper die 11 and the lower die 12).
Claim 1 differs from publication ‘368 by also requiring wherein the pressing member that presses at least one of the rigid members, pressing at a force of 15 kN/m2 .
Publication ‘437 teaches a system and method for granulating pigment particles [0003-0004 and 0030], concerning utilizing pressing to achieve objectives of providing well-dispersible, sufficiently stable, measurable and low-dust granules, utilizing a grinder [0020-0021 and 0030]. Publication ‘437 teaches in [0073-0076] that during pressing between rollers or applied clamping, a clamping or pressing force of 0.1 to 50 kN/cm, preferably 0.1 to 20 kN/cm is achieved, thus suggesting the claimed pressing force value of 15 kN/cm2 or greater.
Such force value range is deemed to constitute results-effective variables for which it would have been obvious for one of ordinary skill in the prior art to have optimized by routine experimentation, so as to adapt the size of the sleeve of the apparatus and accompanying container to a particular application. The MPEP, Section 2144.05 includes court rulings that have determined that such types of parameter values or ranges do not support the patentability of such subject matter, particularly where the prior art contains similar ranges, amounts or proportions, or suggests such similarity, absent a finding of unexpected criticality or achieving of unexpected results.
It would have been obvious to one of ordinary skill in the art of producing gelatinized starch dry powder to have adjusted the pressing force of the at least one of the rigid members of the grinding mechanism of the production device used in the method of publication ‘368, to a selected, optimum force, such as specifically 15 kN/m2 or more, as taught by publication ‘437, in order to optimally achieve objectives of providing well-dispersible, sufficiently stable, measurable and low-dust granules.
For independent claim 11, Publication ‘368 discloses: A device for producing a pregelatinized starch dry powder (Description, paragraph under “Technical Field” and throughout the Embodiment section of the translation), comprising:
a grinding mechanism (see Description of Embodiments regarding providing cereal grains, figure 1 and description of Fig.1, 1st and 2nd paragraphs and description of Fig. 2, 1st paragraph concerning the grains provided to a mechanism comprising upper mill 11 and lower mill 12, leaving a pre-determined gap 13 therebetween for milling and “crushing”, i.e. “grinding”), and
a temperature adjusting means (description of Fig 1 pertaining to heater 17 and connection to temperature controller 19 and associated computer 22 which controls a set temperature applied by the heater as controlled by the controller); and
wherein the grinding mechanism includes at least two rigid members arranged opposite to each other (opposing upper mill 11 and lower mill 12 illustrated in Fig 1 and described at description of Fig.1, 1st and 2nd paragraphs and description of Fig. 2, 1st paragraph), and
a pressing member that presses at least one of the rigid members, at a given force, so that a gap distance between the rigid members is variable by a force from an opposing surface side of the rigid member (gap adjusting unit 16 which presses against the lower die or mill 12 to adjust such gap distance as shown in figures 1 and 2 and described in the 2nd paragraph of the description of Fig. 2),
wherein the temperature adjusting means adjusts a temperature of the cereal grain in a process of being sheared by the grinding mechanism (description of Fig 2, 1st paragraph concerning processing temperatures achieved by the heater 17 and corresponding increases in applied shear force), and
wherein the rigid members are arranged to shear and grind the cereal grain supplied to a gap formed by opposing surfaces of the rigid members (description of Fig 2, 1st paragraph concerning “the processing temperature when being sheared and ground in the gap 13 between the upper die 11 and the lower die 12).
Claim 11 differs from publication ‘368 by also requiring wherein the pressing member that presses at least one of the rigid members, pressing at a force of 15 kN/m2 .
Publication ‘437 teaches a system and method for granulating pigment particles [0003-0004 and 0030], concerning utilizing pressing to achieve objectives of providing well-dispersible, sufficiently stable, measurable and low-dust granules, utilizing a grinder [0020-0021 and 0030]. Publication ‘437 teaches in [0073-0076] that during pressing between rollers or applied clamping, a clamping or pressing force of 0.1 to 50 kN/cm, preferably 0.1 to 20 kN/cm is achieved, thus suggesting the claimed pressing force value of 15 kN/cm2 or greater.
Such force value range is deemed to constitute results-effective variables for which it would have been obvious for one of ordinary skill in the prior art to have optimized by routine experimentation, so as to adapt the size of the sleeve of the apparatus and accompanying container to a particular application. The MPEP, Section 2144.05 includes court rulings that have determined that such types of parameter values or ranges do not support the patentability of such subject matter, particularly where the prior art contains similar ranges, amounts or proportions, or suggests such similarity, absent a finding of unexpected criticality or achieving of unexpected results.
It would have been obvious to one of ordinary skill in the art of producing gelatinized starch dry powder to have adjusted the pressing force of the at least one of the rigid members of the grinding mechanism of the production device used in the device of publication ‘368, to a selected, optimum force, such as specifically 15 kN/m2 or more, as taught by publication ‘437, in order to optimally achieve objectives of providing well-dispersible, sufficiently stable, measurable and low-dust granules.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Specifically, patent publication CN208771545 and accompanying English translation pertains to combinations of multiple milling members for grinding and milling wheat products; while patents 2,216,179 and 4,985,615 and PGPUBS Document 20200157251 pertain to varied method steps of processing and refining pre-gelatinized starches.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Primary Examiner Joseph Drodge at his direct government formal facsimile phone number telephone number of 571-272-1140. The examiner can normally be reached on Monday-Friday from approximately 8:00 AM to 1:00PM and 2:30 PM to 5:30 PM.
If attempts to reach the examiner are unsuccessful, the examiner' s supervisor, Benjamin Lebron, of Technology Center Unit 1773, can reached at 571-272-0475.
The telephone number, for official, formal communications, for the examining group where this application is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from the Patent Examiner. Unpublished application information in Patent Center is available to registered users. Visit https:///www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https:///www.uspto.gov/patents/apply/patents/docx for information about filing in DOCX format. For additional questions contact the Electronic Business Center EBC) at 866-217-9197 (toll free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (in USA or Canada) or 571-272-1000.
JWD
03/18/2026
/JOSEPH W DRODGE/Primary Examiner, Art Unit 1773