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 .
Information Disclosure Statement
The submitted information disclosure statement(s) (IDS) is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) is/are being considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown, without entering new matter, or the feature(s) canceled from the claim(s):
The liquid product from a stick (claim 3).
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.
Claim Objections
The following claims are objected to because of informalities, wherein appropriate correction is required:
In claim 1: the recitation of “single-portion gelato” (in line 3) should be amended to –a single-portion of gelato—.
In claim 4:
The recitation of “in different flavours” (in line 2) should be amended to –with different flavours—.
The recitation of the semicolon “;” at the end of the claim should instead be replaced with a period “.” per MPEP § 608.01(m).
In claim 6: the recitation of “the aforesaid parameters” (in the last line) can be amended to –the parameters—.
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.
Claims 1-15 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.
Claim 1 contains the following issues:
The claim recites “an ice cream product, in particular, gelato” (in line 1), which can be construed as a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim). This may be considered indefinite because the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For examination purposes, the recitation of “in particular, gelato” will be omitted.
The claim recites “the cooling” (in line 6) without proper antecedent basis. For examination purposes, the recitation will be construed as –cooling—.
Claim 2 contains the following issues:
The claim recites “an additional base liquid” (in line 1), despite the same recitation in claim 1. It is unclear if a separate and distinct “additional base liquid […]” is required for anticipation or infringement. For examination purposes, the recitation will be construed as –the additional base liquid—.
Claim 3 contains the following issues:
The claim recites “an additional base liquid” (in line 1), despite the same recitation in claim 1. It is unclear if a separate and distinct “additional base liquid […]” is required for anticipation or infringement. For examination purposes, the recitation will be construed as –the additional base liquid—.
Claim 4 contains the following issues:
The claim recites “the cooling and mixing mode” (in line 4), without proper antecedent basis. It is unclear whether anticipation or infringement require a separate and distinct cooling mode from claim 1. For examination purposes, the recitation will be construed as –the cooling and a mixing mode—.
The claim recites “the simultaneous cooling and stirring mode” (in line 3 of page 2), without proper antecedent basis. For examination purposes, the recitation will be construed as –a simultaneous cooling and stirring mode—.
The claim recites “a serving container”, twice, (in line 7 and the last line in page 2), which may be considered ambiguous as to whether the same container is needed for anticipation or infringement. For examination purposes, the first recitation (in line 7) will be construed as –a first serving container— and the second recitation (in the last line) will be construed as –a second serving container—.
Claim 5 contains the following issues:
The claim recites “a first serving container” (in line 3), despite the recitations in claim 4. For examination purposes, the recitation will be construed as –the first serving container—.
Claim 7 contains the following issues:
The claim recites “the thermal treatment” (in line 3 of page 3), without proper antecedent basis. For examination purposes, the recitation will be construed as –a thermal treatment—.
Claim 12 contains the following issues:
The claim recites “an ice cream product, in particular, gelato” (in line 1), which can be construed as a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim). This may be considered indefinite because the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For examination purposes, the recitation of “in particular, gelato” will be omitted.
The claim recites “a base mixture” (in line 4), despite the recitation of the same in claim 1 (from which it depends). It is unclear whether a separate and distinct base mixture is required for anticipation or infringement. For examination purposes, the recitation will be construed as –the base mixture—
The claim recites “a batch freezing chamber” (in line 5), despite the recitation of the same in claim 1 (from which it depends). It is unclear whether a separate and distinct batch freezing chamber is required for anticipation or infringement. For examination purposes, the recitation will be construed as –the batch freezing chamber—.
The claim recites “the cooling system” (in line 1 of page 4) without proper antecedent basis. It is unclear whether anticipation or infringement require a “cooling system” that is separate and distinct from the “thermal system” recited earlier in the claim. For examination purposes, the aforementioned recitation will be construed as –the thermal system—.
The claim recites “the thermal cooling system” (in lines 3-4 of page 4), without explicit antecedent basis. It is unclear whether a separate and distinct thermal system is required. For examination purposes, the aforementioned recitation will simply be construed as –the thermal system—.
Any remaining claims are rejected at least by virtue of their dependency.
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, 3-4 and 6-15 are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Minard (US 20230292786 A1).
As per claim 1, Minard discloses a method (using apparatus 20) for making a single portion (72) of an ice cream product (see at least fig. 2), comprising the following temporal step sequence:
- providing a machine (20) for making single-portion gelato (at 72) and provided with a batch freezing chamber (42, 32, etc.) and a stirrer (46) mounted inside the batch freezing chamber (42, 32, etc.);
- preloading (via 24) the batch freezing chamber with a portion of base mixture (see at least ¶ 30);
- turning on the cooling (e.g., via 38) of the batch freezing chamber (42, 32, etc.) and mixing the portion of base mixture (with 46) in the batch freezing chamber (42, 32, etc.) to keep the portion of base mixture in a semiliquid, standby condition at a predetermined temperature of between -5°C and 5°C (see at least last sentence of ¶ 30);
- feeding an additional base liquid and/or a desired flavouring (see at least step 110) into the batch freezing chamber (42, 32, etc.), defining a predetermined gelato flavour (see at least ¶ 38);
- turning on the simultaneous cooling and stirring mode (e.g., see at least ¶ 32) of the batch freezing chamber (42, 32, etc.) to convert the base mixture with the added additional liquid and/or flavouring into a single portion of gelato (at 72) having the predetermined flavour (see at least ¶ 40);
- dispensing (via 70) the single gelato portion made in the batch freezing chamber (42, 32, etc.) into a serving container (72).
As per claim 3, Minard discloses wherein the step of feeding an additional base liquid comprises a step of extracting a liquid product (i.e., syrup) from a stick (e.g., 76) and conveying it into the batch freezing chamber (via 74).
As per claim 4, Minard discloses a step of making a plurality of single portions of gelato in different flavours (e.g., evidenced by at least the two different containers 76), according to the following temporal sequence:
- preloading the batch freezing chamber (42, etc.) with a portion of neutral base mixture and turning on the cooling and mixing mode of the batch freezing chamber (42, etc.) to keep the portion of base mixture in a standby condition at a predetermined temperature of between -5°C and 5°C (see at least last sentence of ¶ 30);
- feeding (via 74) the additional liquid and/or desired flavouring (e.g., from the left 76) into the batch freezing chamber (42, etc.) defining a first gelato flavour (see at least fig. 2);
- turning on the simultaneous cooling and stirring mode (see at least ¶ 32) of the batch freezing chamber (42, etc.) to convert the base mixture with the added additional liquid and/or flavouring (from the left 76) into a single portion of gelato (at 72) having a first flavour (see at least fig. 2 and ¶ 38);
- dispensing (via 70) the single gelato portion defining the first flavour (from the left 76) made in the batch freezing chamber (42, etc.) into a serving container (72);
- preloading the batch freezing chamber (42, etc.) with a portion of neutral base mixture (from 24) and turning on the cooling and mixing mode of the batch freezing chamber (42, etc.) to keep the portion of base mixture in a standby condition at a predetermined temperature of between -5°C and 5°C (see at least last sentence of ¶ 30);
- feeding (via 74) the additional liquid and/or desired flavouring (from the other 76) into the batch freezing chamber (42, etc.) defining a second gelato flavour (see at least fig. 2);
- turning on the simultaneous cooling and stirring mode (see at least ¶ 32) of the batch freezing chamber (42, etc.) to convert the base mixture with the added additional liquid and/or flavouring (from the other 76) into a single portion of gelato (at 72) having a second flavour (see fig. 2);
- dispensing (via 70) the single gelato portion defining the second flavour (from the other 76) made in the batch freezing chamber (42, etc.) into a serving container (72);
As per claim 6, Minard discloses a step of a user setting parameters from a control panel (38), and wherein the step of turning on the simultaneous cooling and stirring mode of the batch freezing chamber (42, etc.) to convert the portion of base mixture (from 24) with the added additional liquid and/or flavouring (from 76) into a single portion of gelato (at 72) comprises a step of turning on the stirrer (46) and/or a thermal system (26, etc.) based at least on one or more of the aforesaid parameters set by the user (see at least ¶¶ 29-30 & 38-40).
As per claim 7, Minard discloses the following steps: setting at least one parameter regarding a gelato flavour (see at least the third sentence of ¶ 38 and the last three sentences of ¶ 40) by reading a bar code or by means of a command issued by a user (at 38);
- adjusting the thermal treatment and/or stirring as a function of the result of said setting (see at least ¶ 39 and the last sentence of ¶ 40).
As per claim 8, Minard discloses the step of storing the base mixture in a storage tank (24) in fluid communication (via 28) with the batch freezing chamber (42, etc.); and wherein the step of preloading the batch freezing chamber (42, etc.) with a portion of base mixture comprises a step of transferring (see at least ¶ 32) a portion of base mixture from the storage tank (24) to the batch freezing chamber (42, etc.).
As per claim 9, Minard discloses wherein the step of turning on the cooling of the batch freezing chamber (42, etc.) and mixing the portion of base mixture (via 46) in the batch freezing chamber (42, etc.) to keep the portion of base mixture in a semiliquid, standby condition at a predetermined temperature of between -5°C and 5°C (see at least last sentence of ¶ 30) comprises a step of operating the stirrer (46) in substantially continuous mode (see at least third-to-last sentence of ¶ 32).
As per claim 10, Minard discloses wherein the base mixture (i.e., dairy product) comprises one or more of the following ingredients: water or sugar (see at least ¶ 15).
As per claim 11, Minard discloses wherein the base mixture has a composition whose freezing point is a temperature below the -5°C to 5°C temperature range (evident from at least the last sentence of ¶¶ 29 and 30).
As per claim 12, Minard discloses a machine (20) for a making a single portion (at 72) of an ice cream product (see fig. 2), in particular, gelato, configured to implement the method according to claim 1 (see rejection of claim 1), characterized in that it comprises:
- a storage tank (24) for a base mixture (see at least ¶ 30);
- the batch freezing chamber (42, etc.), in fluid communication (e.g., via 28) with the storage tank (24) which stores the base mixture and which is provided with a base mixture infeed valve (e.g., 52 or 54);
- a thermal system (26) for cooling the batch freezing chamber (42, etc.) operable to cool and/or batch freeze the base mixture present in the batch freezing chamber (see at least ¶¶ 31 & 32);
- a stirrer (46) mounted inside the batch freezing chamber (see at least fig. 2);
- a control unit (36 and related components) connected to the thermal system (26) and to the stirrer (46) to drive them (see at least ¶¶ 31-32);
- a user interface (38), connected in use to the control unit (36), configured to send commands to the control unit (see at least fig. 2), wherein the control unit (36) is configured to activate the thermal cooling system (26) and the stirrer (46) to keep the base mixture in a standby condition at a temperature in a range of between -5°C and 5°C (see at least last sentence of ¶ 30).
As per claim 13, Minard discloses at least one flavouring releasing device (74, 76, etc.), in fluid communication with the batch freezing chamber (42, etc.) and configured to feed a predetermined quantity of flavouring into the batch freezing chamber (see at least ¶ 38).
As per claim 14, Minard discloses a temperature sensor (56), connected to the batch freezing chamber (42, etc.) and to the control unit (36; see at least fig. 1 and ¶ 34).
As per claim 15, Minard discloses wherein the control unit (36) is configured to adjust at least one parameter relating to the thermal cooling system (26) and/or to the stirrer (46) as a function of the selection made (see at least ¶¶ 36, 39, etc.).
Claim Rejections - 35 USC § 103
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 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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Minard (US 20230292786 A1) in view of Cocchi et al. (US 20180303122 A1), herein Cocchi.
As per claim 2, Minard discloses wherein the step of feeding an additional base liquid and/or desired flavouring comprises a step of extracting a product from a capsule (76) and conveying it (via 74) into the batch freezing chamber (42, etc.).
However, Minard may not appear to explicitly disclose wherein the product is powdered.
On the other hand, Cocchi, directed to an ice cream machine, discloses a powdered product from a capsule (¶¶ 101 & 148).
Furthermore, it has been held that some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention is a support for a conclusion of obviousness which is consistent with the proper "functional approach" to the determination of obviousness as laid down in Graham, if the following findings can be articulated: (1) a finding that there was some teaching, suggestion, or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings; (2) a finding that there was reasonable expectation of success; and (3) whatever additional findings based on the Graham factual inquiries may be necessary, in view of the facts of the case under consideration, to explain a conclusion of obviousness.1
As per (1), Cocchi teaches that the capsule can be easily emptied completely without leaving residues of the product inside it, especially when the product is powder (¶ 200). As per (2), one of ordinary skill in the art would recognize that since the prior art of Cocchi has successfully implemented its own teachings with regards to the powdered product in the capsule, there would also be a reasonable expectation of success if said teachings were to be incorporated into the teachings of Minard. Said reasonable expectation of success is apparent from the fact that both references are analogous to each other, as well as are analogous to the claimed invention, by virtue of being within the same field of endeavor (i.e. ice cream machines). Thus, one of ordinary skill in the art would recognize that the teachings of the prior art are compatible and combinable, without yielding unpredictable results. As per (3), one of ordinary skill in the art, when considering the aforementioned evidence, would comprehend that the prior art teachings of Minard may be significantly improved by incorporating the prior art teachings of Cocchi, since the teachings thereof serve to complement the teachings of Minard by virtue of suggesting easier cleanup without leaving residue.
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 taken the teachings of Minard and to have modified them with the teachings of Cocchi, by having a powdered product, in order to improve cleaning without leaving residues, as similarly suggested by Cocchi, without yielding unpredictable results.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Minard (US 20230292786 A1) in view of Mann (US 20200337333 A1).
As per claim 5, Minard may not appear to explicitly disclose a step of cleaning the batch freezing chamber with a cleaning liquid, after the step of dispensing the single gelato portion defining the first flavour made in the batch freezing chamber into a first serving container.
On the other hand, Mann, directed to a soft-serve machine, discloses a step of cleaning the batch freezing chamber (e.g., 14, etc.) with a cleaning liquid (e.g., water), after the step of dispensing the single gelato portion defining the first flavour made in the batch freezing chamber into a first serving container (i.e., after dispensing a specific flavor; see at least ¶¶ 41 & 122).
Furthermore, it has been held that some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention is a support for a conclusion of obviousness which is consistent with the proper "functional approach" to the determination of obviousness as laid down in Graham, if the following findings can be articulated: (1) a finding that there was some teaching, suggestion, or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings; (2) a finding that there was reasonable expectation of success; and (3) whatever additional findings based on the Graham factual inquiries may be necessary, in view of the facts of the case under consideration, to explain a conclusion of obviousness.2
As per (1), Mann teaches using water to clean excess flavored ice cream after a particular flavor is dispensed (¶ 41). One of ordinary skill in the art should understand that this process can be done to prevent contamination or mixing of undesired flavors. As per (2), one of ordinary skill in the art would recognize that since the prior art of Mann has successfully implemented its own teachings with regards to the cleaning process, there would also be a reasonable expectation of success if said teachings were to be incorporated into the teachings of Minard. Said reasonable expectation of success is apparent from the fact that both references are analogous to each other, as well as are analogous to the claimed invention, by virtue of being within the same field of endeavor (i.e. ice cream machines). Thus, one of ordinary skill in the art would recognize that the teachings of the prior art are compatible and combinable, without yielding unpredictable results. As per (3), one of ordinary skill in the art, when considering the aforementioned evidence, would comprehend that the prior art teachings of Minard may be significantly improved by incorporating the prior art teachings of Mann, since the teachings thereof serve to complement the teachings of Minard by virtue of suggesting cleaning to avoid contamination or mixing of undesired flavors.
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 taken the teachings of Minard and to have modified them with the teachings of Mann, by having a step of cleaning the batch freezing chamber with a cleaning liquid, after the step of dispensing the single gelato portion defining the first flavour made in the batch freezing chamber into a first serving container, in order to avoid contamination or mixing of undesired flavors, without yielding unpredictable results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MIGUEL A DIAZ whose telephone number is (313)446-6587. The examiner can normally be reached Monday - Friday: 9:00 AM - 5:00 PM Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jianying C. Atkisson can be reached at (571) 270-7740. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MIGUEL A DIAZ/ Primary Examiner, Art Unit 3763
1 See MPEP § 2143.
2 See MPEP § 2143.
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