Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to amendment filed on 3/19/26. Claims 48-72 are amended. Claims 48-72 are pending.
Claim Rejections - 35 USC § 112
Claims 48-72 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
In the amendment, applicant amends claims 48-72 to recite “animal-protein free dough”. The limitation is not supported by original disclosure. The specification does not disclose that the dough is free of animal protein. There is also no disclosure of inclusion of animal protein to allow for its exclusion. The instant specification discloses inclusion of “egg”. Thus, egg can be excluded. But, there is no disclosure of “ egg-derived protein” as recited in claim 48. Negative limitation cannot be added unless it’s specifically disclosed in the specification or there is positive disclosure to allow for its exclusion. The limitation “ total digestible carbohydrate content of between 7% to 38.5%” is not disclosed in the specification. The disclosure recites carbohydrate content for the different examples but there is no disclosure of a general range for the composition containing the ingredients in the amounts cited in claim 48. There is also no disclosure of the “ protein content and fiber content of at least 44% combined”. The limitation of “ extrusion at a moisture content of 40% to 55% and at extrusion temperature of 40 to 56 degrees C while maintaining structural integrity to be shape” is not disclosed. Applicant is not possession of the dough as now claimed.
Claim Rejections - 35 USC § 103
Claims 48-72 is/are rejected under 35 U.S.C. 103 as being unpatentable over Charrak ( 2017/0150730) in view of Westley ( 2018/0110243), Karcher et al ( ES2585890) , Tutelyan et al ( RU2611142) and Tetrick ( CA 2873413)
For claims 48, 62, 69, Charrak discloses flour mix comprising flour from one or more shell fruits and/oil seed of non-legumes, at least 5%, e.g in the range of 5-40% psyllium powder, protein component in amount of at least 4% ( e g 4-40%) and other components such as other dietary fibers, plant protein isolate and baking aid in amounts not exceeding 50% such as in the range of 2-50%. Examples of baking aids are salt, baking agents, flavoring agents, sweeteners, release agents and preservatives. Examples of fibers in apple fibers, oat fiber, pea fiber, potato fiber, almond fiber, et.. as set for in paragraph 0091. Examples of protein include pea protein, chia seed protein and/or hemp protein. Charrak discloses the mix is low in carbohydrate comprising less than 15% utilizable carbohydrate. For claims 48, 54, 57, the mix comprises a maximum of 10% stabilizers such as malic acid, pectins, xanthan , tara gum etc.. as shown in paragraph 0092. For claims 50-51,70, the flour includes coconut flour and oat flour. For claim 55, the fiber includes inulin. The mix comprises baking agent such as gas forming component as shown in paragraph 0090. For claims 59, 67 the flour mix comprises protein in amount of 4-40%. For claim 61, the fiber includes pea fiber. For claim 63, the mix comprises flax meal. For claim 64, the fiber includes oat fiber. For claim 66, the flour includes coconut flour. Charrak discloses adding sugar alcohol as shown in paragraph 0093. ( see paragraphs 0033-0039,0052-0059,0072,0084-0087,0090-0093)
Charrak does not discloses the specific ranges of gum, pea protein and plant fiber, free of animal-derived protein, the total protein and fiber content and property of extrusion as in claim 48, the addition of cauliflower and cabbage flour in the amounts as in claims 49, 51, the amount of coconut flour as in claim 50, the amount of oat flour as in claim 52, the tapioca flour in the amount as in claim 53, the amounts of inulin, sugar alcohol, starch, baking soda as in claims 55-58, the fiber content as in claim 60, amount of pea protein and pea fiber as in claim 62, amounts of flax seed, oat fiber, unripe plantain flour, coconut flour as in claims 63-66, the fiber content as in claim 68, the pea protein, pea fiber, baking powder and salt as in claim 69 and the amounts as in claims 70-72.
Westley discloses gluten flour mixture comprising oat flour and one or more flour including vegetable flour, other flours and gum for binding. The gum is used in amount of from about .01-2%. The mixture also comprises native starch pregelatinized. Examples of gluten free ingredients includes tapioca, chickpea flour etc.. ( see paragraph 0007,0012,0037)
Karcher discloses gluten-free composition for bread product or the like. The composition comprises from about 4-27% legume flour derived from one or more of chickpeas, lentils, dried peas, dried beans etc..( see entire reference)
Tutelyan discloses dietary bread including gluten-free legume bread containing chickpea flour and lentil flour. Tutelyan teaches by varying the number of mixtures, creating different compositions, dietary bread can be made to get diverse assortment of taste preferences and at the same time being gluten-free. ( see entire reference)
Tetrick discloses a plant-based egg substitute. Tetrick teaches that eggs are highly valued in baked products such as bread, cookies, cake etc.. However, eggs have a number of drawbacks such as high level of cholesterol, allergy, shelf stability and risk of contamination. Tetrick discloses a whole egg substitute comprising plant protein and can replace whole egg or part of egg in food product on a 1:1 basis. The substitute has nutritional profile similar to eggs and replicates one or more of egg’s core functionalities such as binding, structure/texture, mouthfeel, aeration/foaming, leavening, creaminess etc.. ( see paragraphs 0003-0015)
With respect to the transitional language “ consisting essentially of”, the transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976). For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising."
With respect to the psyllium amount, claim 48 recites approximately 4%; approximately is the same as “ about” which means the amount is not exactly 4% but can be a little higher than 4%. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ773 (Fed. Cir. 1985). Charrak discloses a composition for low gluten, low carbohydrate baked goods. As shown in Karcher and Tutelyan, legume flours such as chickpea flour and lentil flour are known to use to make different, diverse baked products that are gluten-free. Charrak discloses in paragraph 0084 that additional edible plant components including legumes can be added. Thus, it would have been obvious to one skilled in the art to add chickpea or lentil or combination of both when the taste and flavor of legumes are wanted. It would have been an obvious matter of taste preference. It would have been obvious to one skilled in the art to determine the amount depending on the taste and flavor desired. One skilled in the art can follow the guideline of Karcher and determine the amount through routine experimentation to obtain the most optimum product. As shown in Westley, different combination of flour can be used to form gluten-free mixture. It would have been obvious to add vegetable flour as shown in Westley in the Charrak composition when wanting the nutrition, taste and flavor of vegetable. The type of vegetable flour including cauliflower and cabbage selected would have been an obvious matter of choice depending on the taste and flavor desired. It would also have been obvious to use tapioca and starch as an obvious matter of using known ingredients for the purpose of forming known gluten-free flour mix. As to the amounts of the component, it would have been obvious to one skilled in the art to determine the amounts depending on the taste, flavor, the product to be made, the texture desired. Determining the optimum amounts can readily be done through routine experimentation with different ranges to find the most optimum product. Baking soda and baking powder are well-known leavening agents. It would have been obvious to one skilled in the art to use baking soda and baking powder as using known alternative ingredients to perform the same function. It would have been obvious to vary the fiber content depending on the nutrition profile desired. Such parameter can readily be determined by one skilled in the art. As to the feature vegan flour, Charrak discloses flour from plant material. Thus, it is considered a vegan flour. Charrak discloses the inclusion of egg to provide the dough with an increased stability , water-binding capacity and contribution to a good taste of the bakery products and farinaceous goods. As shown in Tetrick plant-based egg substitute can provide the same functionalities and taste as egg without the health issues and shelf life as egg. It would have been obvious to one of ordinary skill in the art to replace the egg in Charrak with the egg substitute disclosed in Tetrick when desiring to obtain a product free of egg for health reason. Tetrick discloses the egg substitute can be replaced one on one with egg. Thus, it would have been obvious to use equal amount of egg substitute as the egg. Charrak in view of the prior art disclosed a dough as claimed. Thus, it’s obvious inherent the dough has the same capability of extrusion. The exact temperature at which the dough is extruded is a processing step that does not determine the patentability of the product. As shown in the examples in Charrak, the water content of the dough can vary. It would have been obvious to one of ordinary skill in the art to determine the appropriate water content depending on the type of dough. Such parameter can readily be determined by one of ordinary skill in the art. The amount of protein and fiber can vary; thus, it’s obvious the combined amount of protein and fiber can vary.
Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A
Response to Arguments
Applicant’s arguments with respect to claim(s) 48-72 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.
In the response, applicant argues the requirement of inclusion of egg protein in Charrak which is excluded in the amended claims. A new prior art to Tetrick is added to address the new limitation.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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April 8, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793