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 .
Application Status
Claim 1-16 are under examination.
Claim 1-16 are rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/12/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 1, 2, 7, 11, 12, 14 and 15 are objected to because of the following informalities:
the recitation of “shape” in claim 1, line 9 and line 12 and claim 15, line 2 should be “the shape” since antecedent basis has been established in claim 1, line 8;
in claim 2 the recitation of “60wt.-%”, “10wt.-%” and “55wt.-%” should have spacing between value and unit of measurement;
in claim 7 the recitation of “17.0wt.-%” should have spacing between value and unit of measurement;
in claim 9, the recitation of “stir-fired vegetables stir-fried in a stir-frying stage” is redundant.
in claim 11 the recitation of “3.0wt.-%” should have spacing between value and unit of measurement;
in claim 12 the recitation of “0.69Mpa” should have spacing between value and unit of measurement; and
in claim 14 and 15, the recitation of “110mm” in claim 14; and the recitation of “120mm”, “17mm” and “115g” should have spacing between value and unit of measurement.
Appropriate correction is required.
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.
Claim 1-16 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 in the preamble a method of producing bibim rice buns, however in the body of the claim does not provide step(s) on when or how the bibim rice buns are obtained; hence the claim is indefinite. Claim 2-16 are also rejected since the claims are dependent upon rejected claim 1.
Claim 1 recites the limitation "the ingredients" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Claim 1, lines 14-15 recites the phrase “until a material temperature reaches 30 to 40°C”, is confusing. It is not clear as to what element(s) as a material in the method does Applicant refers to, to reach “a material temperature” to meet the limitation.
Claim 1, lines 15-16 recites “the ingredients are heat-treated by drying with hot air in a first trial and grilling in a second trail in the oven-cooking stage” is confusing. It is not clear what Applicant intend as “the ingredients”. The metes and bounds of the terms “first trial” and “second trial” are unclear as to what element is considered “trial” to meet the limitation, hence the claim is indefinite.
Claim 5 recites “vegetables, seasonings, rapeseed oil and pregelatinized waxy corn starch are stir-fried” is confusing. It is not clear if the ingredients are additional and different ingredients from the recitation of claim 1, line 3.
Claim 8, recites the phrase “when a material temperature of the stir-fried vegetables is at 60 to 70°C”, is confusing. It is not clear as to which material of the stir-fried vegetables in the method does Applicant refers to, to reach “a material temperature” to meet the limitation.
Claim 12, recites the cooling at a temperature of 5-10°C, however the cited range is not farther limiting the range set forth in the cooling step of 30-40°C of claim 1, hence the claim is indefinite.
Claim Rejections - 35 USC § 102
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.
Claim(s) 16 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al. (KR 20160058252 A, Machine Translation English).
Regarding claim 16, the recitation of “produced according to claim 1” is considered not limiting, since the claim is considered a product by process claim. Attention is drawn to MPEP 2113
I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Kim et al. (Kim) discloses a rice burger (‘252, pg. 4, ln 6-9) with a rice bun, wherein the rice bun comprising rice, waxy corn starch, seasoning solution and food additive including carrots, onions (vegetables) (‘252, pg. 4-5, claims).
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) 1-11 and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (KR 20160058252 A, Machine Translation English).
Regarding claim 1, 4, 5, 8, 9 and 13, Kim et al. (Kim) discloses a method of making rice bun (Abstract) comprising cooking glutinous rice mixed with rice (‘252, pg. 3, middle page, pg. 4, middle page) with water to obtain cooked rice; and cooking food additives including carrots, green peppers, onions (vegetables/seasonings) (pg. 252, pg. 3, middle page to bottom page) to obtain cooked food additives, vegetables. Kim does not explicitly disclose the cooking is stir-frying, however stir-frying is a well-known cooking technique to provide cooked vegetables. It would been obvious to one of ordinary skill in the art to use known cooking practices, such as stir-frying in Kim’s method to provide desired cooked vegetables.
Kim discloses the method of mixing ingredients including the cooked rice with the cooked rice, cooked food additives, vegetables; seasoning liquid, waxy corn starch, then molding (forming) into a round bun shape (‘252, pg. 4, middle page) to form the rice bun. Kim’s mixing step encompasses a cooling step, since the ingredients the cooked rice with the cooked rice, cooked food additives, vegetables; seasoning liquid, waxy corn starch are not exposed to heating element. Kim discloses oven baking the formed rice buns in the oven then freezing the formed rice buns (‘252, pg. 4, middle page).
Kim does not explicitly disclose the cooking (stir-frying) the waxy corn starch, however Kim teaches the mixing the waxy corn starch with the cooked food additives, vegetables. Kim does not teach the mixing (cooling) is vacuum cooled to a temperature of 30-40°C. It would have been obvious to one of ordinary skill in the art to be motivated in Kim’s mixing (cooling) the cooked ingredients to a desired temperature including 30-40°C for ease of operation for forming to provide the rice buns. Kim’s oven baking the formed rice buns encompass an exposure to drying by hot air and grilling heat.
Regarding claim 2 and 3, Kim discloses 35 to 45% by wt. of the rice (non-glutinous rice), 5 to 7% by wt. of glutinous rice and 40 to 50% by wt. of purified water (‘252, pg. 3, middle page), which overlaps the cited ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). With respect to claim 3, the limitation set forth in claim 3 is considered an intermediate product in the claimed method. The patentability of an intermediate may be established by unexpected properties of an end product "when one of ordinary skill in the art would reasonably ascribe to a claimed intermediate the ‘contributing cause’ for such an unexpectedly superior activity or property." In re Magerlein, 602 F.2d 366, 373, 202 USPQ 473, 479 (CCPA 1979). "In order to establish that the claimed intermediate is a ‘contributing cause’ of the unexpectedly superior activity or property of an end product, an applicant must identify the cause of the unexpectedly superior activity or property (compared to the prior art) in the end product and establish a nexus for that cause between the intermediate and the end product." Id. at 479.
Regarding claim 6, 7 and 10, Kim discloses the cooking food additives including the carrots, green peppers, onions (vegetables/seasonings) (pg. 252, pg. 3, middle page to bottom page). Kim does not disclose the food additives as shiitake mushrooms and chives in claim 6; and seasonings and amount as cited in claim 7. However, shiitake mushrooms, chives, hot pepper paste, mixed soybean sauce, sugar, garlic, corn syrup, beef concentrate, pork, beef dasida and salt are known food additives and readily available in the food art. It would have been obvious to one of ordinary skill in the art to be motivated to include shiitake mushrooms, chives, hot pepper paste, mixed soybean sauce, sugar, garlic, corn syrup, beef concentrate, pork, beef dasida and salt are known food additives in Kim’s method to provide a desired flavor profile.
Regarding claim 11, Kim discloses the waxy corn starch in an amount of 0.5 to 1.5% by wt. which overlaps the cited range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 14, Applicant is referred to MPEP 2144. In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958); The court 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. The apparatus does not necessarily make a difference to the method. For example if heating on the stove was claimed and the reference taught heating by a microwave it could be stated that both the instant claims and the prior art teach of heating and the apparatus used to heat would not materially affect the process as both apparatus were known and provided heating. To use one known apparatus or another to accomplish the same process would have been obvious to one of ordinary skill in the art. Kim’s oven baking the formed rice buns encompass an exposure to drying by hot air and grilling heat (‘252, pg. 4, middle page).
Regarding claim 15, Kim does not explicitly disclose a configuration of the rice bun as recited in claim 15. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to provide a configuration as cited, since it has been held that the configuration was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration claimed was significant. In re Dailey, 357, F.2d 669, 149 USPQ 47 (CCPA 1966).
Regarding claim 16, Kim discloses a rice burger (‘252, pg. 4, ln 6-9) with a rice bun, wherein the rice bun comprising rice, waxy corn starch, seasoning solution and food additive including carrots, onions (vegetables) (‘252, pg. 4-5, claims).
Allowable Subject Matter
Claim 12 is allowed.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Claim 12 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
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/HONG T YOO/Primary Examiner, Art Unit 1792
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