DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 02/23/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the objection to claim 56 has been withdrawn; (2) the 35 U.S.C. §112(b) rejections of claims 55-56 have been withdrawn; (3) the 35 U.S.C. §102(a)(1) rejections of claims 16, 24, 34, 41, 44, 48, 52, and 55 over Eisner have been withdrawn; and (4) the 35 U.S.C. §103 rejection of claim 54 over Rodgers and Diamante has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 16, 24, 30, 39, 41, 44-53, 55-59
Withdrawn claims: None
Previously cancelled claims: 1-15, 17-23, 25-29, 31-33, 35-38, 40, 42-43
Newly cancelled claims: 34, 54
Amended claims: 16, 24, 30, 44, 52, 55-57
(Claims 46-47 are marked as amended but these claims are not amended.)
New claims: 58-59
Claims currently under consideration: 16, 24, 30, 39, 41, 44-53, 55-59
Currently rejected claims: 16, 24, 30, 39, 41, 44-53, 55-59
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/23/2026 has been entered.
Claim Interpretation
The phrases “the method maintaining the organoleptic properties of the first and second types of fresh food not previously dried” and “maintains organoleptic properties of the first fresh fruit or vegetable and the second fresh fruit or vegetable” recited in present claim 16; and “maintains organoleptic properties of the fresh fruit or vegetable” and “ maintains organoleptic properties, including flavor, color and nutritional value, of the first fresh fruit or vegetable and the second fresh fruit or vegetable” recited in present claim 57 are interpreted as meaning that the final food product maintains some degree of organoleptic properties from the first and second types of fresh fruit or vegetable from which the product is made.
Claim Objections
Claim 57 is objected to because “wherein the formed food product having a moisture content” should be read as “wherein the formed food product has a moisture content”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 16, 24, 30, 39, 41, 44-53, and 55-59 are rejected under 35 U.S.C. 112(a) 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 16 recites that the component obtained from the second type of fresh food consists of the second fresh fruit or vegetable in its natural and undried state. Claim 16 recites a step of “forming the first mixture….to obtain the formed food product”. Claim 46 recites that the first mixture is heated in an open vessel. Claim 48 recites that the formed food product is not a food film. Claim 52 recites that the component obtained from the second type of fresh food is an undried paste of the second type of fruit or vegetable. Claim 57 recites that the second type of fresh food is an undried paste of the second type of fruit or vegetable. Claim 57 recites a step of “forming the first mixture or the second mixture….to obtain the formed food product”. None of the parent applications, present specification, or originally-filed claims recite that: the second type of fresh food is in an undried state or is an undried paste; the method comprises a step of forming a first or second mixture to obtain a formed food product; the food product is not a film; or the first mixture is heated in an open vessel. Therefore, these features represent new matter.
Claims 24, 30, 39, 41, 44-45, 47, 49-51, 53, 55-56, and 58-59 are rejected by dependency from claim 16 or claim 57.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 16, 24, 30, 39, 41, 44-53, and 55-56 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 16 recites that the formed food product may comprise of a mixture of the first type of fresh food, the second type of fresh food, and at least one additional ingredient. However, the claim does not recite any method steps associated with a mixture comprising an additional ingredient. For at least this reason, claim 16 is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the method may further comprise any steps which results in including at least one additional component in the product.
Claim 16 also recites that the component obtained from the second type of fresh food is in its natural and undried state but in a processed form. The term “processed” implies that the second type of fresh food is not in a natural state. Therefore, it is unclear as to what is meant by being simultaneously “natural” and “processed”. For at least this reason, the claim is indefinite.
For the purpose of this examination, the component obtained from the second type of fresh food will be interpreted as being any undried version of the second type of fresh food.
Claim 16 also recites “forming the first mixture….to obtain the formed food product”. The mixture is already formed in the step comprising “mixing a first mixture” prior to the heating step. Therefore, it is not clear as to what is encompassed by the step of “forming the first mixture….to obtain the formed food product”.
For the purpose of this examination, the step of “forming the first mixture….to obtain the formed food product” will be interpreted as meaning shaping and/or cutting the mixture.
Claims 16 and 57 recite that the food product may contain “at least one additional ingredient for taste and/or nutrition purposes” but also exclude “additives, flavorings, sweetening agents, preservatives, and colorants…which are not naturally part of…the additional ingredient”. Therefore, it is unclear as to which ingredients allowed to be present in the product versus the ingredients which are excluded from the product.
For the purpose of this examination, the claims will be interpreted as meaning that the additional ingredient may be any ingredient including those which are considered to be or contain additives, flavorings, sweetening agents, preservatives, and colorants.
Claim 24 recites “the second amount of the second type of fresh food not previously dried is not a juice of the type of fresh food”. It is unclear as to whether the second amount of the second type of fresh food is not a juice of the first type of fresh food, the second type of fresh food, or some other type of fresh food. Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the second amount of the second type of fresh food is not a juice of the second type of fresh food.
Claims 55 and 56 recite a total amount of the fresh food in the product. However, it is unclear if this total amount of fresh food refers to the first type of fresh food, the second type of fresh food, or both. Therefore, the claims are indefinite.
For the purpose of this examination, the claims will be interpreted as meaning the total amount of first and second types of fresh food in the product.
Claim 57 recites “forming the first mixture or the second mixture….to obtain the formed food product”. The first or second mixture is already formed in the step comprising “mixing a first mixture….or a second mixture” prior to the heating step. Therefore, it is not clear as to what is encompassed by the step of “forming the first mixture or the second mixture ….to obtain the formed food product”.
For the purpose of this examination, the step of “forming the first mixture or the second mixture ….to obtain the formed food product” will be interpreted as meaning shaping and/or cutting the first or second mixture.
Claims 30, 39, 41, 44-45, 47, 49-51, 53, and 57-59 are rejected by dependency from claim 16 or claim 57.
Claim Rejections - 35 USC § 103
Claims 16, 24, 30, 39, 41, 44, 48, 50, 52, and 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Lock (GB 2510351).
Regarding claim 16, Lock teaches a method for preparing a formed food product that is readily consumable by an end user (corresponding to snack food in the form of a sheet/chip) (abstract; Fig. 1; page 10, 3rd paragraph). Lock teaches that the product may consist of a mixture of: cut pieces of a first type of fresh food consisting of the first fresh fruit in its natural and undried state in distinct pieces (corresponding to diced and/or grated fruit); a component obtained from a second type of fresh food not previously dried consisting of the second fresh fruit in its natural and undried state (corresponding to fresh puree); and at least one additional ingredient for taste and/or nutrition purposes (corresponding to yogurt as the dairy material and/or chocolate) (abstract; page 6, 1st and 3rd paragraphs; page 7, 1st and 4th paragraphs). Lock teaches that the product has a high fruit taste (page 13, 2nd paragraph); and teaches that the product may not further contain any further additives such as flavorants and colorings (page 9, 2nd paragraph). Therefore, the method is considered to maintain organoleptic properties in relation to taste of the first and second types of fresh food; and the method is considered to produce a product consisting of the first type of fresh food, the second type of fresh food, and the at least one additional ingredient as presently claimed.
Lock teaches that the method may comprise: cutting a first fresh fruit into distinct pieces to obtain a first amount of the cut pieces of the first type of fresh food not previously dried (corresponding to diced and/or grated fruit); processing a second fresh fruit to obtain a second amount of the component obtained from the second type of fresh food not previously dried (corresponding to fresh puree); and mixing a first mixture consisting of the first amount of cut pieces of the first type of fresh food and the second amount of the component of the second type of fresh food (corresponding to combining the fruit puree and fresh diced and/or grated fruit) (Fig. 1; page 6, 1st and 3rd paragraphs). Lock teaches that the method further comprises adding a dairy material to the first mixture; and heating the mixed first mixture to a temperature of at least 40°C (page 6, 4th paragraph; page 9, 6th paragraph), which overlaps the claimed temperature range.
Lock teaches that the mixture is in the form of a sheet during cooking and that the sheet may optionally be dimensioned to form a single piece prior to the cooking step (page 10, 3rd paragraph). The term “optional” implies that the sheet may be formed into a single piece after the cooking step as well. Lock also discloses that the product forms air bubbles after heating (page 10, 5th paragraph). These disclosures render the claimed forming the mixture after heating obvious. Lock teaches that the product may have a moisture content of 5-15 wt.% (page 9, 5th paragraph), which overlaps the claimed moisture content.
In regard to the overlapping ranges disclosed in Lock, 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 ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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.I.
Regarding claim 24, Lock teaches the invention as described above in claim 16, including the additional ingredient is selected from yogurt and chocolate (page 7, 1st and 4th paragraphs). Lock also teaches that the second amount of the second type of fresh food not previously dried is a fruit puree (page 6, 1st and 3rd paragraphs) and thus, is not a juice of the second type of fresh food.
Regarding claim 30, Lock teaches the invention as described above in claim 16, including the first and second type of fresh fruit may be the same type of fruit (page 5, 5th paragraph).
Regarding claims 39 and 50, Lock teaches the invention as described above in claim 16, including that the product may consist of a mixture of: cut pieces of a first type of fresh food consisting of the first fresh fruit in its natural and undried state in distinct pieces (corresponding to diced and/or grated fruit); a component obtained from a second type of fresh food not previously dried consisting of the second fresh fruit in its natural and undried state (corresponding to fresh puree); and at least one additional ingredient for taste and/or nutrition purposes (corresponding to yogurt as the dairy material and/or chocolate) (abstract; page 6, 1st and 3rd paragraphs; page 7, 1st and 4th paragraphs) as recited in present claim 50. Lock also teaches that the additional ingredient is selected from yogurt and chocolate (page 7, 1st and 4th paragraphs) as recited in present claim 39.
Regarding claim 41, Lock teaches the invention as described above in claim 16, including the cut pieces of the first type of fresh food are diced shaped (page 6, 1st paragraph).
Regarding claim 44, Lock teaches the invention as described above in claim 16, including first and second types of fresh fruit may be selected from the group consisting of banana, mango, pineapple, blueberry, strawberry, apple, pear, apricot, and cherry (page 5, 5th paragraph).
Regarding claim 48, Lock teaches the invention as described above in claim 16, including the product is not a food film (page 10, 3rd paragraph).
Regarding claim 52, Lock teaches the invention as described above in claim 16, including that the second amount of the second type of fresh food not previously dried is an undried paste of the second fresh fruit (corresponding to fruit puree) (page 6, 1st and 3rd paragraphs).
Regarding claims 55 and 56, Lock teaches the invention as described above in claim 16, including an amount of fruit greater than 90 wt.% results in a product having a glassy texture and very sweet flavor (page 5, 6th paragraph). Therefore, Lock at least suggests a product comprising the first and second types of fresh fruit from an amount greater than 0 wt.% to an amount of 90 wt.%, which overlaps the concentration recited in present claims 55 and 56. The selection of a value within the overlapping range renders the claimed concentration obvious. MPEP 2144.05.I. Furthermore, Lock teaches that the second type of fresh food not previously dried is a paste of the second type of fresh food (corresponding to fruit puree) (page 6, 1st and 3rd paragraphs) as recited in present claim 56.
Claims 16, 30, 39, 45-47, 49-51, 53, and 56-59 are rejected under 35 U.S.C. 103 as being unpatentable over Rodgers (Rodgers, N., “Trader Joe’s Apple + Banana and Apple +Mango Fruit Bars”, 2014, What’s Good at Trader Joe’s?, https://www.whatsgoodattraderjoes.com/2014/07/trader-joes-apple-banana-and-apple.html; previously cited) in view of Diamante (Diamante et al., “Fruit Leathers: Method of Preparation and Effect of Different Conditions on Qualities”, 2014, International Journal of Food Science, vol. 2014, article ID: 139890; previously cited).
Regarding claims 16, 45, 51, 53, 56, and 57, Rodgers teaches a formed food product that is readily consumable by an end user in the form of a fruit bar as recited in present claim 45 (page 1, photo). Rodger teaches that the bar is made of a first type of fruit and a second type of fruit (corresponding to apples and mangoes or apples and banana); wherein one of the types of fruit may be in the form of distinct pieces of a fruit (corresponding to bits of fruit) and one of the types of fresh fruit may in the form of a liquid (corresponding to “syrupy goodness”) (page 2, 3rd paragraph; page 2, 2nd photo). Therefore, Rodgers discloses a fruit bar consisting of a first mixture of a first type of fruit and a second type of fruit, thereby rendering a formed food product containing 100 wt.% of the first and second types of food as recited by present claims 16, 56, and 57 obvious. Rodgers also discloses the addition of chili to the fruit bar (page 2, 4th paragraph), thereby rendering a fruit bar consisting of a mixture of a first type of fruit, a second type of fruit, and an additional ingredient for taste and/or nutrition purposes as recited by present claim 16 obvious.
These disclosures render a method comprising the steps of: processing a fruit to obtain a component of the second type of food; mixing a first mixture consisting of a first mixture of a first type of fruit and a second type of fruit; and forming the first mixture to obtain the formed food product obvious. These disclosures also render the formed food product consisting of the first mixture or the first mixture plus the additional ingredient so that the formed food product is free of additives, flavorings, sweetening agents, preservatives, colorants or any additional ingredients not naturally part of the respective fruits or additional ingredients as recited by present claims 16 and 57 obvious. Rodgers also teaches that the formed food product tastes like fresh fruit (page 2, 4th paragraph), thereby disclosing that the product maintains at least the organoleptic properties related to taste of the first and second types of fresh fruit as recited in present claims 16 and 57.
Rodgers does not teach that: the first type of food is fresh fruit is not previously dried; the distinct pieces of the first type of fresh fruit are formed by cutting; the component of the second type of food is fresh fruit in the form of an undried paste; the first mixture is heated to a temperature of about 35°C to about 121°C from about 4 to about 20 hours; that the first mixture is formed after heating; or that the product has a moisture content of about 13 wt.% to about 40 wt.% as recited in present claims 16, 56, and 57.
However, Diamante teaches a method of producing fruit bars (also known as fruit leathers) comprising the steps of: cutting or pulping fresh fruit; optionally adding other ingredients to form a mixture comprising fruit puree; pouring the mixture onto trays; and dehydrating the mixture (page 1, 1st column, 1st paragraph; page 2, column 1, 1st paragraph under section 2; page 2, Fig. 1) at a temperature of 30-80°C for up to 24 hours until a final moisture content of 12-20% has been reached (Abstract). The disclosed temperature overlaps the ranges recited in the heating steps of present claims 16, 53, and 57. The disclosed moisture content falls within the range recited in present claims 16 and 57. The disclosed heating time encompasses the ranges recited in the heating step of present claims 53 and 57. In regard to the overlapping and encompassing ranges disclosed by Diamante, the selection of values within the overlapping and encompassing ranges renders the claimed ranges obvious. MPEP 2144.05.I. Diamante also discloses cutting as a method of producing discrete pieces of fruit (corresponding to cutting fruit into halves, dices, pieces) (page 2, column 2, 2nd paragraph; page 7, 2nd paragraph). Diamante also discloses undried paste (corresponding to fruit puree) of a second type of fresh fruit as being an ingredient in fruit bars (page 2, column 1, 1st paragraph under section 2) as recited in present claims 56 and 57. Diamante also discloses that the fruit bars may be made from fresh fruit (page 1, 1st column, 2nd paragraph), thereby rendering the first and second types of food being fresh food as recited in present claims 16 and 57 obvious.
It would have been obvious for a person of ordinary skill in the art to have modified the method of Rodgers by not previously drying the first and second types of fresh fruits, forming the discrete pieces of the first type of fresh fruit by cutting, providing the second type of fresh food in the form of an undried paste, heating the first mixture of first and second types of fresh fruit to a temperature of 30-80°C, and forming a product after heating the mixture as taught by Diamante. Since Rodgers discloses that its fruit bar comprises discrete pieces of fruit and a liquid from fresh fruit (page 1, 1st column, 2nd paragraph; page 2, 3rd paragraph; page 2, 2nd photo), but does not disclose a method of producing the discrete pieces of fruit or a specific liquid with which to form a fruit bar, a skilled practitioner would have been motivated to consult an additional reference such as Diamante in order to determine a suitable method of producing discrete fruit pieces and a suitable liquid for producing a fruit bar. In consulting Diamante, the practitioner would find that fresh fruit not previously dried and fruit paste are suitable for making food bars, thereby rendering the claimed first and second types of fresh fruit not previously dried as recited by present claims 16 and 57 obvious. Furthermore, from the combined teachings of Diamante and Rodgers, the practitioner would find that fruit pieces and fruit paste (corresponding to fruit puree) are both suitable ingredients for a fruit bar as recited, especially wherein “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. MPEP 2144.06.I.
In consulting Diamante, the practitioner would also find that the fruit mixture should be dried prior to shaping since drying allows the mixture to be solid enough to hold a shape; and Diamante discloses that drying the mixture is a typical step in producing fruit bars (page 1, column 1, 2nd paragraph – column 2, 1st paragraph). Therefore, heating the mixture to a temperature of 30-80°C prior to forming the product as recited by present claim 16 is rendered obvious. Furthermore, since the combination of Rodgers and Diamante discloses a method only comprising of the cutting, the obtaining, the mixing, the heating, and the forming processes recited by present claim 16, the prior art also renders a method consisting of these steps as recited by present claim 51 obvious.
Regarding claims 30, 58, and 59, modified Rodgers discloses the invention as described above in claims 16 and 57, including the first and second types of fresh food may be the same type of fruits (corresponding to single fruit leathers) (Diamante, pages 3-4, Table 1).
Regarding claims 39 and 50, Rodgers discloses the invention as described above in claim 16, including the inclusion of chili onto the fruit bar (page 2, 4th paragraph). Therefore, the combination of Rodgers and Diamante discloses that the formed food product consists of the first mixture comprising the first and second types of fresh fruits; and the at least one additional ingredient in the form of chili (Rodgers, page 2, 3rd – 4th paragraphs; page 2, 2nd photo) as recited by present claims 39 and 50.
Regarding claims 46 and 47, modified Rodgers discloses the invention as described above in claim 16, including dehydrating a fruit mixture by heating the mixture in an open vessel (corresponding to tray); and evaporating water from a fruit mixture using a hot water bath (Diamante, page 6, column 1, 2nd paragraph). Since modified Rodgers discloses heating the mixture to dehydrate the mixture, modified Rodgers renders heating the mixed first mixture in an open vessel and heating the mixed first mixture in a hot water bath as recited in present claims 46 and 47 obvious.
Regarding claim 49, Rodgers discloses the invention as described above in claim 16, including that the formed food product may consist of the first mixture comprising the first and second types of fresh fruits; and not the at least one additional ingredient (page 2, 3rd paragraph; page 2, 2nd photo).
Response to Amendment
The Declaration under 37 CFR 1.132 filed 02/23/2026 is insufficient to overcome the rejection of claims 16, 30, 39, 45-47, 49-51, 53-54, and 56-57 based upon Rodgers and Diamante as set forth in the last Office action due to the following reasons.
Applicant prepared a food product labeled “MB” using undried mango paste and fresh mango pieces which is meant to correspond to a product produced by the claimed methods. Applicant prepared food products labeled “MC”, “MD”, and “ME” using 10%, 20%, and 30% dried mango pieces, respectively, and undried mango paste. Applicant prepared food products labeled “MF”, “MG”, and “MH” using 10%, 20%, and 30% paste from dried mango, respectively, and fresh mango pieces. Applicant provided sample labeled “MA” consisting of fresh mango pieces as a control. Applicant provided a commercial mango and apple fruit bar labeled “MI” believed by Applicant to have been made using dried fruit pieces and/or paste. Applicant provided a commercial mango fruit bar labeled “MJ” believed by Applicant to have been made from dried mango pieces and/or paste. Applicant stated that sample MB (it is noted that Applicant appears to mistakenly refer to sample MA in several instances as the inventive sample and thus, this summary is written to the best of the Examiner’s understanding) contained virtually the same amount of terpenes as the sample MA while samples MC-MH contained significantly less terpenes than sample MA. Applicant stated that sample MB contained slightly less alcohol than sample MA while samples MC-MH had more alcohol than sample MA. Applicant stated that sample MB had less esters than sample MA and samples MC-MH had more esters than sample MA. Applicant stated that sample MB had slightly increased levels of lactones and furanones than sample MA and that samples MC-MH had increased levels of lactones and furanones than sample MA. Applicant stated that sample MB had lower levels of acids and ketones than sample MA and that samples MC-MH had less acids and ketones than sample MA. Applicant stated that these differences in components demonstrate that the products comprising fresh fruit/vegetable pieces and undried fruit/vegetable paste from fresh fruit unexpectedly and unobviously retain organoleptic nutritional values of the fresh fruit/vegetable used to form the food product (Declaration, paragraphs 35).
However, it is well known in the art that dried fruit has a different flavor profile, texture, and appearance than the flavor profile, texture, and appearance of the fresh form of the fruit as evidenced by at least the 3rd paragraph on page 2 of Lock. Therefore, it is unclear as to how it would be unexpected and unobvious that a food product comprising dried fruit components would have different organoleptic properties than those of a product using only fresh fruit components. Furthermore, the Examiner points out that inventive sample MB can only be said to maintain some degree of the organoleptic properties of sample MA at best as none of the amounts of terpenes, alcohols, esters, lactones/furanones, and acids and ketones in inventive sample MB matched those of control sample MA.
Applicant stated that the levels of terpenes, alcohols, esters, lactones/furanones, and acids and ketones in sample MI (i.e., commercial fruit bar comprising mango and apple) differed from the levels in control sample MA even more than samples MC-MH. Applicant stated that the method used to produce sample MI and the fact that sample MI contained apples may have contributed to the differences in organoleptic nutritional composition (Declaration, paragraph 36).
For at least the reason that sample MI contains apple while control sample MA consisted of mango, the Examiner considers a comparison of sample MI to control sample MA moot.
Applicant stated that the levels of terpenes, alcohols, esters, lactones/furanones, and acids and ketones in sample MJ (i.e., commercial fruit bar comprising mango) differed from the levels in control sample MA. Applicant stated that the method used to produce sample MJ may have contributed to the differences in organoleptic nutritional composition. Applicant stated that the products made using the same process used to produce samples MA-MI, but with different fruits would be expected to produce comparable results (Declaration, paragraphs 37-39).
The Examiner points out that the present claims are directed to methods of producing a formed food product. None of the present claims are directed to the formed food product itself. Therefore, comparing differences between various formed food products, especially wherein one of the formed food products being compared is produced by an unknown method (i.e., sample MJ), does not demonstrate patentability or unexpected results of the claimed invention.
Furthermore, the levels of terpenes, alcohols, esters, lactones/furanones, and acids and ketones differ between individual mangos of the same variety and between mangos of different varieties (e.g., an Alphonso variety of mango would have different levels of terpenes than a Valencia Pride variety of mango). There is no indication of the type of mango from which sample MJ was produced, but it is clear that sample MJ was not produced from the same mango of sample MA. As such, it is not clear as to how much of the organoleptic properties of the fresh fruit was maintained in sample MJ. However, if one were to compare the results of sample MJ to control sample MA, one could say that some of the organoleptic properties of the fresh fruit were maintained as there is no level of organoleptic properties maintenance that is required by the claims (e.g., the claims do not require 100% of flavor to be maintained).
Applicant provided photographs of samples MB-MJ and stated that inventive example MB had colors and tones that were similar to the color/tones of control sample MA. Applicant stated that samples MC-MJ differed more in appearance from control sample MA when compared to the differences in appearance between inventive sample MB and control sample MA. Applicant stated that the products made using the same process used to produce samples MA-MI, but with different fruits would be expected to produce comparable results (Declaration, paragraphs 40-50).
As previously stated above, inventive sample MB can only be said to maintain some degree of the organoleptic properties of sample MA at best as the appearance of sample MB differed in appearance from control sample MA, even if Applicant describes these differences as “limited or muted”.
Also as previously stated above, the present claims are directed to methods of producing a formed food product. None of the present claims are directed to the formed food product itself. Therefore, comparing differences between various formed food products, especially wherein at least one of the formed food products being compared is produced by an unknown method (i.e., samples MI and MJ), does not demonstrate patentability or unexpected results of the claimed invention. Furthermore, it is well known in the art that dried fruit has a different flavor profile, texture, and appearance than the flavor profile, texture, and appearance of the fresh form of the fruit as evidenced by at least the 3rd paragraph on page 2 of Lock. Therefore, it is unclear as to how it would be unexpected and unobvious that a food product comprising dried fruit components would have different organoleptic properties than those of a product using only fresh fruit components.
For at least these reasons and the reason that the Declaration does not discuss the method(s) disclosed by the combination of Rodgers and Diamante as described in the prior art rejections, the Declaration is not considered to overcome the prior art rejections as written in the previous Office Action.
Response to Arguments
Claim Objections: Applicant amended claim 56 to fully address the objection. Therefore, the objection is withdrawn.
Claim Rejections – 35 U.S.C. §112(b) of claims 55-56: Applicant amended claims 55 and 56 to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 16, 24, 34, 41, 44, 48, 52, and 55 over Eisner: Applicant’s arguments with respect to claim(s) 16, 24, 41, 44, 48, 52, and 55 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The rejection of claim 54 is moot due to the cancellation of the claim.
Claim Rejections – 35 U.S.C. §103 of claims 16, 30, 39, 45-47, 49-51, 53-54, and 56-57 over Rodgers and Diamante: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant amended claim 16 to recite the features previously recited in now-canceled claim 54. Applicant argued that neither Rodgers nor Diamante disclose that the first type of fresh food is cut pieces of a first fresh fruit/vegetable in its natural state and that the second type of fresh food is a paste of the second fresh fruit/vegetable in its natural state as now recited by present claim 57. Applicant argued that the “bits” of fruit disclosed by Rodgers are not cut pieces of fruit in their natural state; and that the “syrupy goodness” disclosed by Rodgers is not a paste or a component of a fresh fruit/vegetable in its natural, not previously dried state. Applicant argued that Diamante does not cure these defects of Rodgers as Diamante does not disclose using pieces and a paste/component of a fresh fruit/vegetable as presently claimed. Applicant argued that in the examples of Diamante, Diamante discloses steam blanching fruit and mixing fruit with sucrose and citric acid so that Diamante does not disclose fruit in its natural state (Applicant’s Remarks, page 11, 1st paragraph – page 14, 3rd paragraph).
However, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As described above in the rejections of claims 16 and 57 over Rodgers and Diamante, Rodgers discloses that its fruit bar comprises discrete pieces of fruit and a liquid from fruit (page 1, 1st column, 2nd paragraph; page 2, 3rd paragraph; page 2, 2nd photo), but Rodgers does not disclose a method of producing the discrete pieces of fruit or a specific liquid with which to form a fruit bar. Therefore, a skilled practitioner would have been motivated to consult an additional reference such as Diamante to determine a suitable method of producing discrete fruit pieces and a suitable liquid for producing a fruit bar. In consulting Diamante, the practitioner would find that fresh fruit not previously dried and fruit paste are suitable for making food bars, thereby rendering the claimed first and second types of fresh fruit not previously dried as recited by present claims 16 and 57 obvious. Furthermore, from the combined teachings of Diamante and Rodgers, the practitioner would find that fruit pieces and fruit paste (corresponding to fruit puree) are both suitable ingredients for a fruit bar as recited, especially wherein “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. MPEP 2144.06.I. Therefore, the combination of Rodgers and Diamante discloses that the first type of fresh food is cut pieces of a first fresh fruit in its natural state and that the second type of fresh food is an undried paste/processed undried component of the second fresh fruit in its natural state as recited in present claims 16 and 57.
Applicant then pointed to the Declaration filed 02/23/2026 to demonstrate evidence of unobvious or unexpected advantageous properties of the presently claimed invention (Applicant’s Remarks, page 15, 1st paragraph - page 30, 1st paragraph).
See the section labeled “Response to Amendment” written above.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of claims 16, 30, 39, 45-47, 49-51, 53, and 56-57 are maintained as written herein. The rejection of claim 54 is moot due to the cancelation of the claim.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KELLY P KERSHAW/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
