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 .
The amendment filed July 2, 2026 is acknowledged. Claims 14-21, 23-30, 32-39, and 41-43 are pending in the application. Claims 1-13, 22, 31, and 40 have been cancelled.
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.
Claims 14, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”).
With respect to claim 14, Casper teaches preparing baked dough products (paragraph [0004]).
Regarding the recitation of “to prepare a baked dough” in the preamble of claim 14, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method consisting of (a) mixing ingredients, the ingredients consisting of: flour, water, yeast, and optionally other additives selected from the group consisting of chemical leavener, salt, oil, sugar, nonfat dry milk, corn syrup, shortening, ascorbic acid, whey, and combinations thereof, wherein the mixing forms a dough that is unproofed and has a specific volume of about 1.3 to 1.5 mL/g in claim 14, Casper teaches mixing flour, water, and yeast and optionally chemical leavener, salt, oil, sugar, non fat milk solids, corn syrup, shortening, ascorbic acid, and/or whey to form unproofed dough with a specific volume of 0.95 to 1.9 cc/g (mL/g) (paragraphs [0006], [0008], [0037], [0057]-[0059], [0062]-[0064], [0067], [0070], and [0072]). The specific volume range of Casper encompasses that as presently claimed. As set forth in MPEP 2144.05, in the case where the claimed range “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 the recitation of (b) shaping the dough to a desired size and shape in claim 14, Casper teaches shaping the dough pieces to a desired shape and size (paragraphs [0006], [0008], [0010] and [0072]).
Regarding the recitation of (c) freezing the dough in claim 14, Casper teaches freezing the dough (paragraph [0008]).
Regarding the recitation of (d) thawing the dough until the dough has doubled in size in claim 14, it is noted that this recitation relates to the resulting effect of practicing the claimed step. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature of the dough doubling in size since Casper teaches thawing the dough as well as the dough composition can be caused to expand from the yeast (paragraphs [0008] and [0064]), and the dough volume doubling in size during thawing is an intended result of the claimed process.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to thaw the dough until the dough has doubled its size in the method of Casper with the expectation of successfully preparing a functional dough product. One of ordinary skill in the art would have been motivated to do so because thawing the dough until the volume doubles in size would involve only a mere change is a size of the dough, scaling up or down of an element which merely requires a change in size is generally considered as being within the ordinary skill in the art, and Casper teaches the dough composition can be caused to expand as desired prior to baking (paragraphs [0003], [0008], [0051], [0057], and [0064]). There would have been a reasonable expectation of success. Mere scaling up or down of a prior art process capable of being scaled up or down would not establish patentability in a claim to an old process so scaled. In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976).
Regarding the recitation of (e) refreezing the dough after the dough has doubled in size to form a frozen dough without performing a separate proofing step between steps (a) and (e) in claim 14, Casper teaches freezing the dough again without a proofing step (paragraphs [0004], [0008], and [0060]).
Regarding the recitation of (f) baking the frozen dough without thawing before baking to form a baked bread having a specific volume of about 3 to 6 mL/g in claim 14, Casper teaches baking the frozen dough without thawing before baking to form a baked bread product with a specific volume in the range from 3 to 6 cc/g (mL/g) (paragraphs [0004] and [0060]).
With respect to claim 19, Casper is relied upon for the teaching of the method of claim 14 which has been addressed above.
Regarding the recitation of the thawing step lasts from 2 hours to 72 hours in claim 19, Casper does not expressly disclose this duration of the thawing step.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the duration of thawing in the method of Casper through routine experimentation with the expectation of successfully thawing the dough product. One of ordinary skill in the art would have been motivated to do so because the thawing duration is a variable that can be modified by adjusting the temperature during this step, Casper teaches obtaining a product with desired properties during temperature cycling and processing steps, such as times, are known and can be conventional in nature (paragraphs [0008] and [0072]), the duration of the thawing step would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the claimed invention, and the claimed time of from 2 hours to 72 hours cannot be considered critical without showing unexpected results. There would have been a reasonable expectation of success. “[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) (MPEP 2144.05 II).
With respect to claim 20, Casper is relied upon for the teaching of the method of claim 14 which has been addressed above.
Regarding the recitation of the thawing and refreezing steps are repeated at least once in claim 20, Casper teaches subjecting the dough products to multiple freeze-thaw cycles (paragraph [0008]).
Claims 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) as applied to claim 14 above, and in further view of Scripps Laboratories, “Storage Temperatures” (hereinafter “Scripps”).
With respect to claims 15-18, Casper is relied upon for the teaching of the method of claim 14 which has been addressed above.
Regarding the recitation of the thawing step brings the dough temperature to 50-65⁰F (claim 15), 65-80⁰F (claim 16), 34-50⁰F (claim 17), or to 80-110⁰F (claim 18), Casper teaches the dough pieces may be refrigerated, at room temperature, or higher (paragraphs [0008], [0050], and [0072]).
However, Casper does not expressly disclose the claimed temperature ranges.
Scripps teaches a refrigerator temperature is maintained between 36⁰F to 46⁰F, and room temperature is usually 68⁰F to 77⁰F that allows for deviations between 59⁰F to 86⁰F (P1, Cold, Room Temperature, and Controlled Room Temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed temperature ranges, including the instantly claimed ranges, from the ranges disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Casper and Scripps similarly teach room temperature and refrigeration, and Casper teaches temperatures are known and can be conventional in nature (paragraph [0072]). There would have been a reasonable expectation of success. "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 percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claims 21, 23, and 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) as applied to claim 14 above, and in further view of Sluimer US 5171590 (hereinafter “Sluimer”).
With respect to claim 21, Casper is relied upon for the teaching of the method of claim 14 which has been addressed above.
Regarding the recitation of the yeast is selected from frozen or compressed yeast in claim 21, Casper does not expressly disclose the yeast is frozen or compressed (paragraph [0064]).
Sluimer teaches preparing baked dough products that can be directly baked from frozen without defrosting (C4, L17-20 and C7 L9-12). Compressed yeast was used to prepare the dough (C8, L18-19).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Sluimer, to select compressed yeast in the method of Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Sluimer and Casper similarly teach preparing baked dough products from frozen dough, Sluimer teaches the dough is made from desired ingredients and containing yeast (C3, L51-53), Casper teaches any type of yeast may be used as the leavening agent (paragraph [0064]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 23, Casper teaches preparing cooked dough products (paragraphs [0002] and [0004]).
Regarding the recitation of “to prepare a steamed dough” in the preamble of claim 23, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method consisting of (a) mixing ingredients, the ingredients consisting of: flour, water, yeast, and optionally other additives selected from the group consisting of chemical leavener, salt, oil, sugar, nonfat dry milk, corn syrup, shortening, ascorbic acid, whey, and combinations thereof, wherein the mixing forms a dough that is unproofed and has a specific volume of about 1.3 to 1.5 mL/g in claim 23, Casper teaches mixing flour, water, and yeast and optionally chemical leavener, salt, oil, sugar, nonfat milk solids, corn syrup, shortening, ascorbic acid, and/or whey to form unproofed dough with a specific volume of 0.95 to 1.9 cc/g (mL/g) (paragraphs [0006], [0008], [0037], [0057]-[0059], [0062]-[0064], [0067], [0070], and [0072]). The specific volume range of Casper encompasses that as presently claimed. As set forth in MPEP 2144.05, in the case where the claimed range “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 the recitation of (b) shaping the dough to a desired size and shape in claim 23, Casper teaches shaping the dough pieces to a desired shape and size (paragraphs [0006], [0008], [0010] and [0072]).
Regarding the recitation of (c) freezing the dough in claim 23, Casper teaches freezing the dough (paragraph [0008]).
Regarding the recitation of (d) thawing the dough until the dough has doubled in size and remains unproofed in claim 23, it is noted that this recitation relates to the resulting effect of practicing the claimed step. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature of the dough doubling in size since Casper teaches thawing the dough as well as the dough composition can be caused to expand from the yeast (paragraphs [0008] and [0064]), and the dough volume doubling in size during thawing is an intended result of the claimed process.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to thaw the dough to increase the volume of the dough to double of its size in the method of Casper with the expectation of successfully preparing a functional dough product. One of ordinary skill in the art would have been motivated to do so because thawing the dough until the volume doubles in size would involve only a mere change is a size of the dough, scaling up or down of an element which merely requires a change in size is generally considered as being within the ordinary skill in the art, and Casper teaches the dough composition can be caused to expand as desired prior to baking (paragraphs [0003], [0008], [0051], [0057], and [0064]). There would have been a reasonable expectation of success. Mere scaling up or down of a prior art process capable of being scaled up or down would not establish patentability in a claim to an old process so scaled. In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976).
Regarding the recitation of (e) refreezing the dough after the dough has doubled in size to form a frozen dough without performing a separate proofing step between steps (a) and (e) in claim 23, Casper teaches freezing the dough again without a proofing step (paragraphs [0004], [0008], and [0060]).
Regarding the recitation of (f) steaming the frozen dough without thawing before steaming to form a steamed dough having a specific volume of about 3 to 6 mL/g in claim 23, Casper teaches cooking the frozen dough without thawing before cooking to form a cooked product with a specific volume in the range from 3 to 6 cc/g (mL/g) (paragraphs [0002], [0004] and [0060]).
However, Casper does not expressly disclose cooking the dough by steaming.
Sluimer teaches preparing baked dough products from frozen dough pieces, and thawing is not necessary prior to baking (C4, L17-20; and C7, L9-12). Baking is conducted with the use of steam (C7, L19-20 and 37-38).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Sluimer, to select steaming as the cooking method in Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Casper and Sluimer similarly teach preparing baked dough products from frozen dough without thawing before cooking, Casper teaches the dough may be cooked in an oven (paragraphs [0002] and [0015]), Sluimer teaches steam assists in producing acceptable oven rise and the product will not dry out in the chamber (C7, L20-31 and 37-41), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 28, modified Casper is relied upon for the teaching of the method of claim 23 which has been addressed above.
Regarding the recitation of the thawing step lasts from 2 hours to 72 hours in claim 28, modified Casper does not expressly disclose this feature.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the duration of thawing in the method of modified Casper through routine experimentation with the expectation of successfully thawing the dough product. One of ordinary skill in the art would have been motivated to do so because the thawing duration is a variable that can be modified by adjusting the temperature during this step, Casper teaches obtaining a product with desired properties during temperature cycling and processing steps, such as times, are known and can be conventional in nature (paragraphs [0008] and [0072]), the duration of the thawing step would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the claimed invention, and the claimed time of from 2 hours to 72 hours cannot be considered critical without showing unexpected results. There would have been a reasonable expectation of success. “[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) (MPEP 2144.05 II).
With respect to claim 29, modified Casper is relied upon for the teaching of the method of claim 23 which has been addressed above.
Regarding the recitation of the thawing and refreezing steps are repeated at least once in claim 29, modified Casper teaches this limitation since Casper teaches subjecting the dough products to multiple freeze-thaw cycles (paragraph [0008]).
With respect to claim 30, modified Casper is relied upon for the teaching of the method of claim 23 which has been addressed above.
Regarding the recitation of the yeast is selected from frozen or compressed yeast in claim 30, modified Casper does not expressly disclose this feature.
Sluimer teaches preparing baked dough products that can be directly baked from frozen without defrosting (C4, L17-20 and C7 L9-12). Compressed yeast was used to prepare the dough (C8, L18-19).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Sluimer, to select compressed yeast as the yeast in the method of modified Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Sluimer and Casper similarly teach preparing baked dough products from frozen dough, Sluimer teaches the dough is made from desired ingredients and containing yeast (C3, L51-53), Casper teaches any type of yeast may be used as the leavening agent (paragraph [0064]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claims 24-27 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) and Sluimer US 5171590 (hereinafter “Sluimer”) as applied to claim 23 above, and in further view of Scripps Laboratories, “Storage Temperatures” (hereinafter “Scripps”).
With respect to claims 24-27, modified Casper is relied upon for the teaching of the method of claim 23 which has been addressed above.
Regarding the recitation of the thawing step brings the dough temperature to 50-65⁰F (claim 24), 65-80⁰F (claim 25), 34-50⁰F (claim 26), or to 80-110⁰F (claim 27), Casper teaches the dough pieces may be refrigerated, at room temperature, or higher (paragraphs [0008], [0050], and [0072]).
However, Casper does not expressly disclose the claimed temperature ranges.
Scripps teaches a refrigerator temperature is maintained between 36⁰F to 46⁰F, and room temperature is usually 68⁰F to 77⁰F that allows for deviations between 59⁰F to 86⁰F (P1, Cold, Room Temperature, and Controlled Room Temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed temperature ranges, including the instantly claimed ranges, from the ranges disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Casper and Scripps similarly teach room temperature and refrigeration, and Casper teaches temperatures are known and can be conventional in nature (paragraph [0072]). There would have been a reasonable expectation of success. "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 percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claims 32, 37, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) in view of Gaddis et al. US 20040219263 (hereinafter “Gaddis”).
With respect to claim 32, Casper teaches preparing cooked dough products (paragraphs [0002] and [0004]).
Regarding the recitation of “to prepare a microwaved dough” in the preamble of claim 32, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method consisting of (a) mixing ingredients, the ingredients consisting of: flour, water, yeast, and optionally other additives selected from the group consisting of chemical leavener, salt, oil, sugar, nonfat dry milk, corn syrup, shortening, ascorbic acid, whey, and combinations thereof, wherein the mixing forms a dough that is unproofed and has a specific volume of about 1.3 to 1.5 mL/g in claim 32, Casper teaches mixing flour, water, and yeast and optionally chemical leavener, salt, oil, sugar, nonfat milk solids, corn syrup, shortening, ascorbic acid, and/or whey to form unproofed dough with a specific volume of 0.95 to 1.9 cc/g (mL/g) (paragraphs [0006], [0008], [0037], [0057]-[0059], [0062]-[0064], [0067], [0070], and [0072]). The specific volume range of Casper encompasses that as presently claimed. As set forth in MPEP 2144.05, in the case where the claimed range “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 the recitation of (b) shaping the dough to a desired size and shape in claim 32, Casper teaches shaping the dough pieces to a desired shape and size (paragraphs [0006], [0008], [0010] and [0072]).
Regarding the recitation of (c) freezing the dough in claim 32, Casper teaches freezing the dough (paragraph [0008]).
Regarding the recitation of (d) thawing the dough until the dough has doubled in size in claim 32, it is noted that this recitation relates to the resulting effect of practicing the claimed step. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature of the dough doubling in size since Casper teaches thawing the dough as well as the dough composition can be caused to expand from the yeast (paragraphs [0008] and [0064]), and the dough volume doubling in size during thawing is an intended result of the claimed process.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to thaw the dough to increase the volume of the dough to double of its size in the method of Casper with the expectation of successfully preparing a functional dough product. One of ordinary skill in the art would have been motivated to do so because thawing the dough until the volume doubles in size would involve only a mere change is a size of the dough, scaling up or down of an element which merely requires a change in size is generally considered as being within the ordinary skill in the art, and Casper teaches the dough composition can be caused to expand as desired prior to baking (paragraphs [0003], [0008], [0051], [0057], and [0064]). There would have been a reasonable expectation of success. Mere scaling up or down of a prior art process capable of being scaled up or down would not establish patentability in a claim to an old process so scaled. In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976).
Regarding the recitation of (e) refreezing the dough after the dough has doubled in size to form a frozen dough without performing a separate proofing step between steps (a) and (e) in claim 32, Casper teaches freezing the dough again without a proofing step (paragraphs [0004], [0008], and [0060]).
Regarding the recitation of (f) microwaving the frozen dough without thawing before microwaving to form a microwaved dough having a specific volume of about 3 to 6 mL/g in claim 32, Casper teaches cooking the frozen dough without thawing before cooking to form a cooked product with a specific volume in the range from 3 to 6 cc/g (mL/g) (paragraphs [0002], [0004] and [0060]).
However, Casper does not expressly disclose cooking the dough by microwaving.
Gaddis teaches dough products that can be frozen, and its size and shape are adapted to be baked and/or microwaved (Abstract; and paragraphs [0001], [0005], [0009], [0013], [0017], [0022], and [0025]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Gaddis, to interchange or combine baking and microwaving in the method of Casper with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Casper and Gaddis similarly teach baking dough products, Casper teaches the dough may be cooked or baked in an oven (paragraphs [0002] and [0015]), Gaddis recognizes the equivalency of baking and microwaving in an oven in the field of cooking dough and these cooking methods are combinable and interchangeable, and said modification is merely the selection of functionally equivalent dough cooking methods recognized in the art and one of ordinary skill in the art would have a reasonable expectation of success in doing so. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
With respect to claim 37, modified Casper is relied upon for the teaching of the method of claim 32 which has been addressed above.
Regarding the recitation of the thawing step lasts from 2 hours to 72 hours in claim 37, modified Casper does not expressly disclose the claimed duration.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the duration of thawing in the method of modified Casper through routine experimentation with the expectation of successfully thawing the dough product. One of ordinary skill in the art would have been motivated to do so because the thawing duration is a variable that can be modified by adjusting the temperature during this step, Casper teaches obtaining a product with desired properties during temperature cycling and processing steps, such as times, are known and can be conventional in nature (paragraphs [0008] and [0072]), the duration of the thawing step would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the claimed invention, and the claimed time of from 2 hours to 72 hours cannot be considered critical without showing unexpected results. There would have been a reasonable expectation of success. “[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) (MPEP 2144.05 II).
With respect to claim 38, modified Casper is relied upon for the teaching of the method of claim 32 which has been addressed above.
Regarding the recitation of the thawing and refreezing steps are repeated at least once in claim 38, modified Casper teaches this limitation since Casper teaches subjecting the dough products to multiple freeze-thaw cycles (paragraph [0008]).
Claims 33-36 are rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) in view of Gaddis et al. US 20040219263 (hereinafter “Gaddis”) as applied to claim 32 above, and further in view of Scripps Laboratories, “Storage Temperatures” (hereinafter “Scripps”).
With respect to claims 33-36, modified Casper is relied upon for the teaching of the method of claim 32 which has been addressed above.
Regarding the recitation of the thawing step brings the dough temperature to 50-65⁰F (claim 33), 65-80⁰F (claim 34), 34-50⁰F (claim 35), or to 80-110⁰F (claim 36), Casper teaches the dough pieces may be refrigerated, at room temperature, or higher (paragraphs [0008], [0050], and [0072]).
However, Casper does not expressly disclose the claimed temperature ranges.
Scripps teaches a refrigerator temperature is maintained between 36⁰F to 46⁰F, and room temperature is usually 68⁰F to 77⁰F that allows for deviations between 59⁰F to 86⁰F (P1, Cold, Room Temperature, and Controlled Room Temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed temperature ranges, including the instantly claimed ranges, from the ranges disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Casper and Scripps similarly teach room temperature and refrigeration, and Casper teaches temperatures are known and can be conventional in nature (paragraph [0072]). There would have been a reasonable expectation of success. "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 percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claim 39 is rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) in view of Gaddis et al. US 20040219263 (hereinafter “Gaddis”) as applied to claim 32 above, and in further view of Sluimer US 5171590 (hereinafter “Sluimer”).
With respect to claim 39, modified Casper is relied upon for the teaching of the method of claim 32 which has been addressed above.
Regarding the recitation of the yeast is selected from frozen or compressed yeast in claim 39, Casper does not expressly disclose the yeast is frozen or compressed yeast.
Sluimer teaches preparing baked dough products that can be directly baked from frozen without defrosting (C4, L17-20 and C7 L9-12). Compressed yeast was used to prepare the dough (C8, L18-19).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Sluimer, to select compressed yeast as the yeast in the method of modified Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Sluimer and Casper similarly teach preparing baked dough products from frozen dough, Sluimer teaches the dough is made from desired ingredients and containing yeast (C3, L51-53), Casper teaches any type of yeast may be used as the leavening agent (paragraph [0064]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) as applied to claim 14 above, and in further view of Cruz US 20130236592 (hereinafter “Cruz”).
With respect to claim 41, Casper is relied upon for the teaching of the method of claim 14 which has been addressed above.
Regarding the recitation of wherein the flour is white refined wheat flour, whole grain wheat flour, corn flour, sorghum flour, barley flour, rye flour, rice flour, quinoa flour, millet flour, triticale flour, amaranth flour, buckwheat flour, oat flour, einkorn flour, kamut flour, spelt flour, or teff flour in claim 41, Casper does not expressly disclose the specific flour as presently claimed.
Cruz teaches a dough for a baked food product. Flour, water, yeast and optional other ingredients may be included in the dough mixture, and the flour may be white processed wheat flour, whole grain wheat flour, oat flour, rye flour, sorghum flour, barley flour, rice flour, millet flour, or corn flour (paragraphs [0016], [0024], [0026], [0029], [0035], and [0065]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Cruz, to select the specific flour in the method of Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Cruz and Casper similarly teach baked dough products comprising flour, water, and yeast, Cruz teaches the flour in the dough acts to provide physical stability to the foodstuff while also providing the necessary consistency and thermal stability for a foodstuff which is baked (paragraphs [0023] and [0024]), Casper teaches formulations of dough products are well known to those of skill in the art and can be prepared from usual ingredients known to those of skill in the art (paragraphs [0061] and [0062]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claim 42 is rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) and Sluimer US 5171590 (hereinafter “Sluimer”) as applied to claim 23 above, and in further view of Cruz US 20130236592 (hereinafter “Cruz”).
With respect to claim 42, modified Casper is relied upon for the teaching of the method of claim 23 which has been addressed above.
Regarding the recitation of wherein the flour is white refined wheat flour, whole grain wheat flour, corn flour, sorghum flour, barley flour, rye flour, rice flour, quinoa flour, millet flour, triticale flour, amaranth flour, buckwheat flour, oat flour, einkorn flour, kamut flour, spelt flour, or teff flour in claim 42, Casper does not expressly disclose the specific flour as presently claimed.
Cruz teaches a dough for a baked food product. Flour, water, yeast and optional other ingredients may be included in the dough mixture, and the flour may be white processed wheat flour, whole grain wheat flour, oat flour, rye flour, sorghum flour, barley flour, rice flour, millet flour, or corn flour (paragraphs [0016], [0024], [0026], [0029], [0035], and [0065]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Cruz, to select the specific flour in the method of modified Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Cruz and Casper similarly teach baked dough products comprising flour, water, and yeast, Cruz teaches the flour in the dough acts to provide physical stability to the foodstuff while also providing the necessary consistency and thermal stability for a foodstuff which is baked (paragraphs [0023] and [0024]), Casper teaches formulations of dough products are well known to those of skill in the art and can be prepared from usual ingredients known to those of skill in the art (paragraphs [0061] and [0062]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over Casper et al. US 20060024416 (hereinafter “Casper”) in view of Gaddis et al. US 20040219263 (hereinafter “Gaddis”) as applied to claim 32 above, and further in view of Cruz US 20130236592 (hereinafter “Cruz”).
With respect to claim 43, modified Casper is relied upon for the teaching of the method of claim 32 which has been addressed above.
Regarding the recitation of wherein the flour is white refined wheat flour, whole grain wheat flour, corn flour, sorghum flour, barley flour, rye flour, rice flour, quinoa flour, millet flour, triticale flour, amaranth flour, buckwheat flour, oat flour, einkorn flour, kamut flour, spelt flour, or teff flour in claim 43, Casper does not expressly disclose the specific flour as presently claimed.
Cruz teaches a dough for a baked food product. Flour, water, yeast and optional other ingredients may be included in the dough mixture, and the flour may be white processed wheat flour, whole grain wheat flour, oat flour, rye flour, sorghum flour, barley flour, rice flour, millet flour, or corn flour (paragraphs [0016], [0024], [0026], [0029], [0035], and [0065]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Cruz, to select the specific flour in the method of modified Casper based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Cruz and Casper similarly teach baked dough products comprising flour, water, and yeast, Cruz teaches the flour in the dough acts to provide physical stability to the foodstuff while also providing the necessary consistency and thermal stability for a foodstuff which is baked (paragraphs [0023] and [0024]), Casper teaches formulations of dough products are well known to those of skill in the art and can be prepared from usual ingredients known to those of skill in the art (paragraphs [0061] and [0062]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Response to Arguments
Applicant’s remarks filed July 2, 2026 are acknowledged.
Due to the amendments to the claims, the claim objections and the 35 USC 112 rejection in the previous Office Action have been withdrawn (P7).
Applicant’s arguments have been fully considered, but they are unpersuasive.
Applicant agues the cited passages of Casper do not disclose or suggest intentionally thawing a frozen dough until the dough doubles in size and thereafter refreezing the dough before final cooking. The moisture barrier is the central inventive concept of Casper. The entire invention disclosed by Casper is the moisture barrier that is excluded from the method of the claims by the use of the transitional phrase “consisting of”. The Office extracts isolated disclosures relating to dough characteristics while disregarding the fact that those characteristics are expressly tied to the moisture barrier itself. Casper does not teach achieving those results in the absence of the moisture barrier. A person of ordinary skill in the art reading Casper would not remove the moisture barrier because the moisture barrier is the reason Casper achieves its stated benefits. Removal of the moisture barrier would render Casper unsatisfactory for its intended purpose. The teachings of Casper and the moisture barrier cannot be separated from each other as the entire point of Casper is to describe dough performance that is a direct result of formation of a moisture barrier (P7-P11).
Examiner disagrees. As addressed above, Casper and modified Casper teaches the claimed invention. Casper teaches thawing the dough and freezing the dough again without a proofing step (paragraphs [0004], [0008], and [0060]). It is noted that the recitation of thawing the dough until the dough has doubled in size in the independent claims relates to the resulting effect of practicing the claimed step. The method would naturally arrive at the claimed feature of the dough doubling in size since Casper teaches thawing the dough as well as the dough composition can be caused to expand from the yeast (paragraphs [0008] and [0064]), and the dough volume doubling in size during thawing is an intended result of the claimed process, absent any clear and convincing evidence to the contrary. Additionally, one of ordinary skill in the art would have been motivated to thaw the dough until the dough has doubled its size in the method of Casper with the expectation of successfully preparing a functional dough product because thawing the dough until the volume doubles in size would involve only a mere change is a size of the dough, scaling up or down of an element which merely requires a change in size is generally considered as being within the ordinary skill in the art, and Casper teaches the dough composition can be caused to expand as desired prior to baking (paragraphs [0003], [0008], [0051], [0057], and [0064]). Applicant is reminded mere scaling up or down of a prior art process capable of being scaled up or down would not establish patentability in a claim to an old process so scaled. In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976).
Further, while Casper’s invention is directed to a moisture barrier for dough products (Abstract), the broad disclosure of Casper would lead one of ordinary skill in the art to arrive at the method as presently claimed since Casper teaches preparing products from dough pieces that do not include the moisture barrier (paragraphs [0006] and [0008]). Applicant is reminded that "[t]he use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)).
Applicant argues Cruz is directed to the use of phosphate binders, and phosphate binders are not part of the Markush group that the dough ingredients consist of in the independent claims. There would have been no motivation to modify Cruz to remove the phosphate binders as the entire purpose of Cruz is to bind phosphate for renal treatment patients. Scripps is directed entirely to storage temperatures and includes no disclosure about methods of making dough products or ingredients thereof. A person of ordinary skill in the art reading Sluimer would appreciate that Sluimer teaches that alcohol should be used in the ingredients to achieve a desirable dough product. The Markush group of ingredients in the independent claims does not include alcohol. There would have been no motivation to modify Sluimer to remove alcohol from the dough to meet the limitations of the independent claims. Gaddis does not describe ingredients in dough or methods of forming dough, only how the dough can be arranged for aesthetic presentation (P11-P12).
Examiner disagrees. Casper (independent claim 14) as well as modified Casper (independent claims 23 and 32) teach the presently claimed methods as previously addressed. However, while Cruz, Scripps, Sluimer, and Gaddis do not disclose all the features of the presently claimed invention, Cruz, Scripps, Sluimer, and Gaddis are used as teaching references, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Additionally, as stated in MPEP 2145 III., “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]I is not necessarily that the inventions of the references be physically combinable to render obvious the invention under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve the ability to combine their specific structures.”).
Conclusion
THIS ACTION IS MADE FINAL. 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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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
