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 .
This office action is in response to amendment filed 12/19/25. The claims are not amended. Claim 28 is added. Claims 1-3, 5-6,8-13, 19-28 are pending.
Claim Rejections - 35 USC § 112
Claim 28 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 28 is not supported by the original disclosure. Applicant points to page 11 but the page only discloses the inclusion of humectant. There is no disclosure of the amount of humectant. The examples disclose internal dough comprising glycerol which is considered humectant but the amount is not 10% or 11%. Also, the examples only disclose glycerol. There is no disclosure of 10-11% of any humectant. The applicant is not in possessed of the invention recited in claim 28.
Claim Rejections - 35 USC § 103
Claims 1-3,5-6,8-13 and 19-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Waszyk ( 2003/0044489) in view of Nakagawa ( 2015/0374001), Tanaka ( 5178897) , Blaschke ( 2003/0017244) , Petrofsky (20060210673) , Bouvet ( 2013/0259978), Finley ( 5080919), Pollzzano ( EPA 0219423) , Karwowski ( 2010/0303991) and Zhou ( 2011/0081474)
For claims 1, 3, Waszyk discloses a dough precursor to bake into cookie having portions with different textures. The dough is formed form a first dough portion and a second dough portion, wherein the dough portions are associated with each other for simultaneous baking. The first dough forms a center portion of the dough and the second dough forms an edge portion of the dough product that surrounds the center portion. The center dough portion is formulated to be softer than the edge dough portion after the dough product is baked. For claim 24, Waszyk discloses the center dough is formulated to have a moisture content of greater than about 7% and the edge dough portion is formulated to have a moisture content of less than about 6% after baking. The center dough includes brownie dough and the edge dough portion includes cookie dough. For claims 9,22, Waszyk discloses one or both of the first and second dough portions includes pieces of chocolate, nuts, fruits or candy inclusions in an about of about 5-50%. For claim 12, Waszyk discloses cookies that possess dual texture. For claims 1,2,5, 10, Waszyk discloses the dough comprising flour in amount of about 10-60%, sugar in amount of about 5-50%, fat in amount of about 5-33%. The fat used can be plant or animal origin such as lard, butter, margarine or any of various oils. The dough may be baked to provide a crispy texture and the other a chewy texture. For claim 11, Waszyk disclose obtaining a cookie by baking the dough. For claim 23, Waszyk discloses to place topping on the upper surface of the dough. The topping can be any of the components described as the inclusions as well as those described as fillings. For claim 27, Waszyk discloses the dough portions, either a single dough or two or more types of different dough may be extruded simultaneously into a single dough product that has different properties. The dough is baked to form a cookie comprising dual texture ( see paragraphs 0006-0008,0010-0011,0018,0023,0024,0025,0027,0028,0035)
Waszyk does not specifically disclose the formulation as in claims 1,2,6, 18-21, the number and moisture difference and the percent of sugar and oligosaccharide of the first dough and second dough and the degree of polymerization as in claim 1,the ratio as in claim 4, the inclusion of starch as in claim 8, the feature of claims 12,25 , the Aw as in claims 13,26 and the inclusion of humectant as in claim 28.
Nakagawa discloses baked confectionery comprising insoluble fiber and starch in an amount of from 20-45 mass %. The baked confectionery is obtained from a dough comprising insoluble fiber in an amount of 4.5-17 mass % and starch in an amount of 15-40 mass %. The insoluble fiber includes soy fiber. The baked confectionery has softer and smoother food texture, good melt-in-the mouth and bright appearance, even though the confectionery is rich in insoluble dietary fiber. The baked confectionery includes biscuit, cookie, shortbread etc.. The baked confectionery contains one kind or more of starch such as potato starch, corn starch etc.. The starch contained in the baked confectionery may be gelatinized. Nakagawa discloses the fat and oil are not particularly limited. The baked confectionery comprises one kind or two or more kinds of fat and oil including soybean oil, safflower oil, rapeseed oil, margarine, shortening, butter, fat spread etc.. The fat and oil amounts range from .1-60%. The baked confectionery comprises saccharides in amount ranging from .1-30 mass % including sugar and oligosaccharide such as maltotriose. The moisture content of the baking confectionery ranges from 3-20 mass %. Nakagawa discloses in paragraph 0070 that under ordinary baking conditions, from 50-90% of the moisture contained in the dough is lost. Thus, if the baked product contains 3-20% moisture, the dough before baking should contain from 6-40% moisture when a minimum of 50% of moisture is lost during baking. For a view point of storage stability, the water activity of the baked confectionery is preferably .8 or less, most preferably .6 or less. ( see paragraphs 0004-0005,0008,0011,0024,0030-0031,0032-0033,0034,0040-0041.0044,0045)
Tanaka discloses water-in-oil emulsion composition for bakery. The emulsion comprises a mixture of fat such as palm oil, soybean oil, rapeseed oil, safflower oil et.. The solid fat content of the mixture of the selected fat has SFC of 20% or more at 20 degrees C. ( see col. 3 line 61-col. 4 lines 11).
Petrofsky discloses a dough products. Petrofsky teaches that high water holding capacity fibers allow higher dough absorptions and increase dough and baked product moisture contents. ( 0021)
Blaschke discloses various formulation for cookie dough. Example 6 discloses cookie dough comprising 38% flour, 33.3 % sugar,15% fat and 3.1% water. Blaschke discloses the sugar that is used can be of any type including sucrose, dextrose, corn syrup etc.. or mixture thereof ( see Examples 1-4,5,6 and paragraph 0026)
Bouvet discloses a food products such as cookies, biscuit crackers. The food products comprises hydrolyzed whole grain composition and fat component. The product has a fat content of 0-20%. Fat components are preferably vegetable fats such as cocoa butter, rapeseed oil, sunflower oil or palm oil. ( see paragraphs 0015-0019, 0049,0110)
Finley discloses cookie products. Finley teaches that sucrose is traditionally used as the major sweetening agent in cookie dough. The sucrose gives the cookie crispy texture. Finley also discloses dual texture cookie made of outer dough and inner dough. Finley teaches to use humectant sugars in the inner dough to give a soft, chewy texture. The humectant sugars include high fructose corn syrup, corn syrup, honey, molasses. The filler cookie dough may comprise 0-85% sucrose with the balance of the sugar being provided by the sugar solids of a corn syrup, honey or another humectant sugar. The humectant sugars may be employed alone or in combination with non-humectant sugars such as sucrose. Finley discloses humectant may be included in the dough as an added ingredient. Finley teaches that a wide variety of humectant which are not sugar can be added to the filler dough. ( see col. 1 lines 15-40, col. 7 lines 45-60, col. 9 lines 47-52, col. 10 lines 45-60, col. 11 lines 9-26)
Pollzzano discloses a dough composition for producing multi-textured cookies. Pollzzano discloses the cookies is made of casing dough having a firm out layer and a filler dough having a soft and moist texture. Pollazzano discloses the casing dough comprising sucrose and a minor proportion of a humectant sugar such as high fructose corn syrup, molasses. Page 7 discloses a casing dough comprising 70 sucrose and 2.5% molasses. ( see abstract, page 3 lines 30-34)
Karwowski discloses baked goods. Karwowski teaches to add humectant sugars such as high fructose corn syrup, maltose, corn syrup, molasses, glucose syrup etc… The humectant sugars are used to promote softness or chewiness in the baked product. ( see paragraph 0051)
Zhou discloses carbohydrate compositions. Zhou discloses to use glucose syrup comprising no more than 10% DP1 and DP2 saccharides and about 75% or higher of isomaltooligosaccharide and in particular about 80% or higher of DP3 to DP8 saccharides. The glucose syrup has a low content of digestible sugar. ( see paragraphs 0016,0047, 0048)
Waszyk discloses various embodiment of forming different dough portions. It would have been obvious to one of ordinary skill in the art at the time of the claimed invention to form dough portions having different compositions to obtain different flavor, texture, nutritional profile etc..It would have been obvious to one of ordinary skill in the art to form the dough using a known dough formulations depending on the taste desired. For instance, it would have been obvious to one skilled in the art to follow the guideline of Blaschke for the cookie dough as the first dough and to use the dough disclosed Nakagawa for the second dough to obtain a composite dough comprising the flavor and texture of cookie in combination with a softer , smoother , melt-in-the mouth dough with enhance nutrition from the presence of fiber. Blaschke discloses the sugar used can be of any type including sucrose , corn syrup, glucose etc.. and mixtures thereof. As shown in Finley, sucrose gives crispy texture to the cookies and humectant sugar gives a soft, moist, chewy texture to the cookies. It would have been obvious to one of ordinary skill in the art to make to vary the proportion of sucrose and oligosaccharide such as corn syrup depending on the texture desire. For instance, Pollzzano teaches in the example on page 7 a crispy outer casing dough comprising 70% sucrose and 2.5% humectant sugar. The example show molasses as the humectant sugar but Pollzzano also teach that corn syrup can be used as humectant sugar. The percent of sucrose in the crispy dough is 96%. If one wants the outer dough portion to be crispy, it would have been obvious to use sucrose as the major sugar with humectant sugar in minor portion for flavoring and little change in texture. Blaschke discloses mixture of sucrose and corn syrup can be used. One of ordinary skill in the art can follow the guideline of Pollzzano for the proportion of sucrose and corn syrup and adjust depending on the degree of crispness desired. Such determination would have been within the routine experimentation of one of ordinary skill in the art. Both Pollzzano and Finley teach to use humectant sugars to obtain softness and chewiness. Glucose syrup can be corn syrup if it is obtained from corn. Furthermore, Karwowski discloses humectant sugars including corn syrup, honey, molasses and glucose syrup is used to promote softness or chewiness. It would also have been obvious to one of ordinary skill in the art to use glucose syrup as disclosed in Karwowski as using an alternative ingredient to perform the same function of providing a humectant sugar. 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 glucose syrup containing high amount of oligosaccharide as taught in Zhou when desiring glucose syrup having low amount of digestible sugar. Since both Pollzzano and Finley teach that sugar such as sucrose gives a crispy texture. Thus, one skilled in the art would use higher amount of oligosaccharide in the inner dough when wanting a chewy, soft texture. Thus, one would have been motivated to use the glucose syrup disclosed in Zhou. The dough disclosed in Nakagawa does not contain flour and the claimed range of less than 1% include 0%. With regard to the inner dough portion using the Nakagawa dough, Nakagawa discloses in paragraph 0030 the sugar includes sucrose, high fructose corn syrup, maltotriose, etc.. and mixture thereof. As shown in Finley, humectant sugar such as high fructose corn syrup gives soft ,moist texture to the cookie. Finley teaches on column 10 lines 50-61, “ a suitable humectant sugar composition for use in the filler cookie dough may comprise 0-85% sucrose with the balance of the sugar solids content of a corn syrup, honey, high fructose corn syrup or another humectant sugar”. Thus, Finley discloses an amount of sugar in the range claimed. For instance, when 35% sucrose is used, the remaining sugar is 65% humectant sugar. The inner moist dough comprising humectant sugar with lesser amount of non-humectant sugar such as sucrose. The claim does not claim the content of oligosaccharide in the oligosaccharide. The claim recites the amount of oligosaccharide as composition relative to the sugar content. But even if it does, when the glucose syrup as taught in Zhou is used as the humectant sugar, the percent of oligosaccharide is 52% because Zhou discloses the glucose syrup contains 80% or more oligosaccharide ( .65 X80%= 52%). The dough of Nakagawa is to give confection that has soft and smooth texture. Thus, it would have been obvious to one of ordinary skill in the art to use small amount of sucrose and major amount of the humectant sugar. One of ordinary skill in the art can follow the guideline of Finley for the proportion of sucrose and humectant sugar and adjust depending on the degree of softness desired. Such determination would have been within the routine experimentation of one of ordinary skill in the art. 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) . Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages”. With regard to the difference in moisture content, Blaschke discloses cookie dough comprising 3.1% water. The dough in Nakagawa has a minimum of 6% moisture content when a minimum of 50% moisture is lost during bake. The moisture content of the Nakagawa dough is at least 30% greater than the cookie dough of Blaschke. Nakagawa discloses the fat used is not limited and includes two or more kinds selected from vegetable fat and oil, animal fat an oil, emulsified fat and oil and shortening can be used. Vegetable fats such as cocoa butter is known to be used in confectionery including biscuit, cookies etc... as disclosed in Bouvet. It would have been obvious to one of ordinary skill in the art to use vegetable fat such as cocoa butter taught in Bouvet in combination with oil when desiring the flavor provided by the cocoa butter. As shown in Tanaka a blend of oil such as palm oil, soybean oil rapeseed oil, safflower oil, cacao fat has a solid fat content of 20% or more at 20 degrees C. Thus, it would have been obvious to one of ordinary skill in the art to form the Nakagawa dough to have a blend of fat having a solid fat content of 20% or more at 20 degrees C because Nakagawa discloses the same types of oil. It would have been obvious to one of ordinary skill in the art to determine the appropriate ratio of first and second dough depending on the flavor, taste and texture desired. This parameter would have been an obvious matter of preference. For instance, it would have been obvious to use 50:50 when desiring equal amount of flavoring, taste and texture from both doughs. Waszyk discloses the same type of product containing the same ingredients as claimed; thus, it is expected the Aw would be within the range claimed. Furthermore, Nakagawa discloses that the baked confectionery including cookie to have storage stability when the Aw is .6 or less. Thus, it would have been obvious to one of ordinary skill in the art to form product having the Aw as taught in Nakagawa to obtain shelf stability. When the Aw is the same as the claimed range, it is obvious the same shelf life is obtained. As the number the multiplication product in claim 1, Nakagawa dough comprises insoluble fiber as claimed and the amount falls within the claimed range. Petrofsky shows fiber has water holding capacity. Thus, it is obvious the multiplication product as claimed can be obtained. Also, the water holding capacity of the fiber affects the moisture content of the final baked product since it absorbs more water in the dough as taught in Petrofsky. Thus, it would have been obvious to one skilled in the art to determine the appropriate amount of fiber and it water holding capacity depending on the fiber content and the moisture content desired in the final baked product. The multiplication product would vary depending on the type of fiber and the water holding capacity. Such parameters are result-effective variable and can be determined by one skilled in the art through routine experimentation. It would have been an obvious matter of choice to add inclusion and to select any appropriate amount to the Nakagawa dough when desiring to further enhance the taste and flavor of the baked confection. It would have been obvious to one of ordinary skill in the art to add humectant to control the moistness and thus the water activity of the dough. Adding humectant is known as shown in Finley. Adding an ingredient for its art-recognized function would have been within the skill of one in the art. It would have been within the skill of one in the art to determine the amount to obtain the desirable moistness with most optimum property and shelf stability. Generally difference in concentration does not support patentability is absence of showing of criticality or unexpected result.
Applicant's attention is directed to the following case law which is applicable to the instant claims:
In re Levin 84 USPQ 232, which takes the position that "new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing no one else ever did the particular thing upon which the applicant asserts his right to patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function."
Response to Arguments
Applicant's arguments filed 12/19/25 have been fully considered but they are not persuasive.
In the response, applicant submits an affidavit in support of the claims. Applicant’s argument parallels the argument and statements made in the affidavit. Thus, the argument is addressed by addressing the affidavit.
The affidavit is not persuasive. The affidavit does not have any comparative testing to show unexpected result of the claimed product versus the product of the prior art used in the rejection. The affidavit only gives a series of opinion. Paragraph 6 states that modifying of Waszyk in view of Finley and Zhou would not result in an added sugar content of at least 35% and result in at most 33%. The examiner respectfully disagrees. Varying the sugar content of cookie dough is a parameter that is well within the skill of one in the art to determine depending on taste, sweetness degree and flavor desired. Paragraph 7 alludes to the unexpected result shown in the specification. The unexpected result in the specification had already been addressed in the Examiner’s answer mailed on 7/1/22 and the rejection was affirmed in the Board’s decision on 9/15/23. There is no showing of unexpected result against the prior art. As shown in Finley, humectant sugar such as high fructose corn syrup gives soft ,moist texture to the cookie. Finley teaches on column 10 lines 50-61, “ a suitable humectant sugar composition for use in the filler cookie dough may comprise 0-85% sucrose with the balance of the sugar solids content of a corn syrup, honey, high fructose corn syrup or another humectant sugar”. Thus, Finley discloses an amount of sugar in the range claimed. For instance, when 35% sucrose is used, the remaining sugar is 65% humectant sugar. The inner moist dough comprising humectant sugar with lesser amount of non-humectant sugar such as sucrose. The claim does not claim the content of oligosaccharide in the oligosaccharide. The claim recites the amount of oligosaccharide as composition relative to the sugar content. But even if it does, when the glucose syrup as taught in Zhou is used as the humectant sugar, the percent of oligosaccharide is 52% because Zhou discloses the glucose syrup contains 80% or more oligosaccharide ( .65 X80%= 52%). The dough of Nakagawa is to give confection that has soft and smooth texture. Thus, it would have been obvious to one of ordinary skill in the art to use small amount of sucrose and major amount of the humectant sugar. One of ordinary skill in the art can follow the guideline of Finley for the proportion of sucrose and humectant sugar and adjust depending on the degree of softness desired. Such determination would have been within the routine experimentation of one of ordinary skill in the art. 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) . Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages”.
Paragraph 8 of the affidavit states that Finley fails to suggest the claimed ratio but expressly teaches away from it since increasing sucrose in the inner dough would undermine Finley’s stated goal of chewiness. The basis of this statement is not clear. Finley specifically discloses on column 10 lines 45-60 “ humectant sugars may be employed alone or in combination with non-humectant sugars such as sucrose in the filler dough to impart a soft or chewy texture.. Suitable humectant sugar composition for use in the filler cookie dough may comprise about 0-85% sucrose with the balance of the sugar being comprises of humectant sugar”. Thus, the ratio as claimed is fully suggested. The amount of 35% fall within the range of 0-85%. If 35% of sucrose is used, the remaining is 65% oligosaccharide.
Paragraph 9 of the affidavit states the dual texture of Finley’s achieve softness by way of inclusion of humectant sugars such as high fructose corn syrup, honey or molasses which composed predominantly DP1 and DP2. This statement does not address the rejection which provide motivation to use the glucose syrup disclosed in Zhou.
Paragraphs 11-12 offers opinion that adding Zhou syrup would completely contradict the examiner’s alleged motivation for using Zhou’s syrup in the first place. The statements are opinion without reasonable evidence to the contrary. Contrary to applicant’s opinion, there is nothing contradicting in the use of Zhou glucose syrup. One skill in the art can follow the guideline of Finley to have sucrose and Zhou glucose syrup if one does not want to further increase monosaccharide in the humectant sugar. Applicant has not shown any evidence to reach such opinion. It’s not hindsight if the teaching is from the prior art.
Paragraph 13 states that Finley teaches substitution of sucrose with higher molecular weight saccharide adversely affects both flavor and texture. The portions of the disclosure pointed out are discussion of prior art. It’s not the Finley product. On column 10 lines 55-60, Finley discloses corn syrup, honey or high fructose corn syrup or another humectant sugar. There is no restriction placed on the humectant sugar. Paragraph 15 offers the opinion that there is no motivation to combine. This is just an opinion without any evidential support.
Paragraphs 16-24 discuss the other references. The reason for incorporating the prior art is explained above. The affidavit does not address the rejection as whole and does not have any showing against the use of the reference. The issue of water holding capacity of the fiber has already been addressed in the previous examiner’s answer and board’s decision.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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February 26, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793