DETAILED ACTION
Background
The amendment dated October 14, 2025 (amendment) amending claims 19, 40-41 and 45 and canceling claims 42 and 44 has been entered. Claims 19-24, 38-41, 43 and 45-46 as filed with the amendment have been examined. Claims 26-29, 33 and 35-37 have been withdrawn from consideration as drawn to a non-elected invention. Claims 1-18, 25, 30-32, 34 and 42 have been canceled. In view of the amendment, all outstanding claim objections have been withdrawn.
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 .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 19-24, 37-39 and 46 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0054944 A1 to Neidlinger et al. (Neidlinger) in view of US 2013/0136830 A1 to Ganjyal (Ganjyal), both of record, and US 2014/0322392 A1 to Haskins et al. (Haskins), as evidenced by Canet, W. “Determination of the Moisture Content of Some Fruits and Vegetables by Microwave Heating”, Journal of Microwave Power and Electromagnetic Energy, Vol. 23, No. 4, 231-235 (1988) (Canet), of record, and US 2015/0282507 A1 to Rizvi et al. (Rizvi).
The Office considers a generic disclosure of density or of specific weight as interchangeable with bulk density or apparent density.
Regarding instant claims 19, 39 and 44, Neidlinger at Abstract discloses a method (“process”) of making an expanded snack (“food snack”) comprising (at [0015]) preparing a mixture comprising water and a starchy material, extruding in (at [0031] a screw or twin-screw extruder to cook (“gelatinizing the starch present in the mixture” as in claims 19 and 44) the mixture of from 50 to 80 wt% of at least one amylaceous material (“at least one starchy material which consists entirely of non-pregelatinized starch”), a calcium source, sugar and from 11 to 19 wt% of added water at from 120 to 170 °C for from 5 to 50 seconds, and then drying and expanding the mixture (at [0032]-[0034]) by pushing it through an extruder die of any shape including half-moon shape to form an expanded food snack having the form of a potato chip (“forming a snack having the form of a potato chip” - claim 39) and a specific weight (“apparent density”) of (at [0014]) from 60 to 180 g/l (0.06 to 0.18 g/cc), which the claimed apparent density of about 0.04 to 0.065 g/cc overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Neidlinger would have found it obvious to form a food snack having the claimed apparent density which Neidlinger at [0014] discloses as a desirable apparent density for its food snack. Also, at [0015], Neidlinger further discloses drying the expanded snack to form a dried product (“drying the gelatinized product”).
The Office considers the extruder cooking of the mixture of starchy material and water in Neidlinger at [0015] to comprise the heating of the mixture by friction in an extrusion cylinder. As evidenced by Rizvi at [0005], the extruding in Neidlinger results in gelatinizing through heating by friction of the mixture in the extrusion cylinder. In addition, the instant specification at page 11, lines 19-28 discloses that extrusion at temperatures including 80 to 150 °C in Neidlinger gelatinizes starches as it heats a mixture by friction in an extrusion cylinder.
Further, and regarding instant claims 20-24, 37 and 42, Neidlinger does not disclose a food snack comprising a raw vegetable material, does not disclose a food snack comprising macroparticles of the at least one vegetable material dispersed in the starchy material that is a “material different from a starchy material”, which macroparticles are visible to the naked eye and have a size between 5 mm and 1.5 mm and wherein said raw vegetable material is in the form of pieces and wherein said pieces are reduced in size during said extruding step; and, Neidlinger does not disclose preparing a mixture comprising between 25% and 65% by weight of the at least one raw vegetable material with respect to the weight of the mixture, or preparing a mixture comprising between 30% and 65% by weight of the at least one vegetable material as in claim 22, or one comprising between 38% and 50% by weight of the at least one vegetable material as in claim 23. Further, Neidlinger does not disclose at least one vegetable material selected from vegetables and fruits as in claim 20, does not disclose a process wherein its dried product is expanded by frying or toasting to produce the finished snack product having the form of a potato chip as in claim 21, does not disclose reducing the thickness of the gelatinized product as in claim 24; and does not disclose a snack food wherein the vegetable material comprises fruits and said fruits are selected from apples, pears, lime, lemon and citrus fruits, apricots, peaches, bananas, cherries, grapes, strawberries, blueberries, blackberries, raspberries, melon, watermelon, cocoa, coffee and their mixtures.
The Office interprets the recited food snack comprising macroparticles that are visible to the naked eye and have a size between 5 mm and 1.5 mm to include any food snack that has more than one of such macroparticles because the size claimed is not an average size or otherwise related to a whole composition.
At Abstract and at [0057] Ganjyal discloses a method for making an expanded snack piece (“food snack”) comprising extrusion mixing and extrusion of macroparticles of at least one vegetable material in the presence of a starch or starchy material and then further processing. At [0009] Ganjyal discloses a puffed snack piece comprising fruit or vegetable solids (“vegetable material”) as a crunchy snack that has the function of a potato chip. Further, Ganjyal at [0057] discloses generally use of a fruit or vegetable puree (“raw vegetable material”) to hydrate the mixture in the extruder whereby the puree imparts visible (“visible to the naked eye”) vegetable and/or fruit inclusions in the snacks as macroparticles of at least one vegetable or fruit material, and additionally discloses visible fruit or vegetable inclusions wherein (at [0035]) fruit including apples, pears, strawberry, blueberry, bananas and peaches. The Office considers the fruit and vegetable inclusions disclosed in Ganjyal to include at least one macroparticle. Further, at [0057] Ganjyal discloses a tomato purée having 12% solids and the use of the tomato puree having up to 20 wt% solids as the hydrating liquid instead of water in extrusion, wherein (at [0046]) the mixtures extruded have between 20 and 40 wt% moisture. In addition, at [0055] Ganjyal discloses post-extrusion baking to further puff the snack pieces and discloses extruding through a flat die orifice and cutting the extrudate into pieces to form snacks having the form of a potato chip. The Office considers the claimed further toasting the dried product in claim 21 to include the post-extrusion baking of Ganjyal at [0055] and considers the claimed reducing the thickness of the gelatinized product to include the cutting of the extrudate of Ganjyal. Still further, Ganjyal at [0053] discloses post-extrusion processing so as to drastically alter the structure of its food product including at [0055] forcing the mixture through a flat die orifice which would also reduce the thickness of the mixture mass as it exits the extruder.
In the Examples, on pages 6-7 at [0056]-[0057] and Table 1, Ganjyal discloses preparing a mixture of the starchy material, water for moisture and tomato, apple or berry powder by extrusion, followed by forcing the mixture through a die to expand it, cutting the extrudate into pieces and drying it in an impingement dryer. As evidenced by Rizvi at [0005] disclosing that extrusion degrades plant cell walls in fruit pomace or powder extruded with starch in Rizvi, the Office finds the claimed process reducing vegetable material pieces in size during said extruding step to include the extrusion mixing disclosed in Neidlinger at [0014]-[0015] and [0031] as modified by Ganjyal at [0057], which is the same extrusion as disclosed in the instant specification at page 11, lines 12-24 and therefore reduces the pieces of vegetable material in size during its extruding step. See MPEP 2112.01.I.
Haskins at [0002] discloses crisps comprising inclusions and methods for making them, wherein at [0016] the inclusions comprise vegetables. Further, at Table 1 on page 3, Haskins discloses food snacks comprising 5 to 50 wt% of inclusions, within which range the claimed 25 to 65 wt% lies. See MPEP 2144.05.I. At [0023] Haskins discloses pieces, granules or particles of vegetables having a -3+10 mesh size or large enough to be retained on a 10 sieve which has 10 sieve units per inch and passing through a 3 sieve to produce a granule the size of greater than about 2.6 mm and smaller than 10 mm, which the claimed 1.5 to 5 mm in claim 19, the claimed at greater than 2 mm in claim 28 and the claimed greater than or equal to 3 mm in claim 35 overlaps. Haskins provides an idea of the size of the inclusions of Ganjyal. See MPEP 2144.05.I. Further, Rizvi at [0088] refers to fruit pomace as having a 0.031 inch or about 1 mm size and (at [0010]) cross references the powder of Ganjyal and defines it as a pomace which is not an inclusion and is therefore smaller than the inclusions of Ganjyal or Haskins.
Canet at Table 2 on p 233 discloses that vegetables other than tomato comprise from about 84 to about 92 wt% moisture and at Table 2 on page 234 discloses that apples, strawberries and pears comprise from about 85 to about 90 wt% moisture. Accordingly, the 20-40 wt% weight parts moisture from vegetable material in the Examples of Ganjyal at [0046] corresponds to an amount of vegetable material disclosed in Ganjyal at [0057] of from (20%/0.92 max moisture fraction in vegetable material or) from about 22 wt% as a minimum to (40%/0.84 min moisture from vegetable material or) about 47.5 wt% vegetable material as a maximum and corresponds to the amount of purée, which the claimed between 25% and 65% by weight of the at least one vegetable material with respect to the weight of the mixture in claim 19, the claimed between 30% and 65% by weight of the at least one vegetable material as in claim 22, and the claimed between 38% and 50% by weight of the at least one vegetable material as in claim 23 all overlap. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Ganjyal would have found it obvious to use the claimed amount of vegetable material because Ganjyal discloses the claimed amounts as desirable for making its food snack.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ganjyal for Neidlinger to include in its mixture comprising a starchy material and at least one raw vegetable material selected from vegetables and fruits comprising vegetable pieces in the amount of between 25% and 65% by weight, between 30% and 65% and between 38% and 50% by weight of macroparticles of with respect to the total weight of a mixture comprising the vegetable material and the starchy material to make its expanded food snack, including fruit macroparticles of apples, pears, strawberry, blueberry, bananas and peaches as in Ganjyal. Further, the ordinary skilled artisan would have found it obvious in view of either Haskins or Ganjyal for Neidlinger to include in its starchy mixture for extrusion macroparticles to form a food snack comprising a gelatinized product including vegetable material wherein the macroparticle inclusions of Ganjyal or Haskins are dispersed in a starchy material and at least some of the macroparticles have a size between 5 mm and 1.5 mm, or greater than 2 mm or greater than or equal to 3 mm. Still further, the ordinary skilled artisan would have found it obvious in view of Ganjyal for Neidlinger to further process its expanded, extruded food snack by frying or toasting it to produce the finished snack product having the form or function of a potato chip as in claim 21 and by reducing the thickness of the gelatinized product as in claim 24. Neidlinger and Ganjyal each disclose extruding a starchy material to form an expanded food snack having the form or function or a potato chip; and all references disclose starchy snacks. Further, Haskins and Ganjyal each disclose starchy snacks having vegetable inclusions. The ordinary skilled artisan in Neidlinger would have desired to provide the needed 13.5 to 38 wt% moisture, based on the weight of water and starchy material as disclosed in Neidlinger at [0015] for extruding the starch by including the claimed amount of fresh and/or raw vegetable materials as inclusions of macroparticles that are visible to the naked eye as in Ganjyal at [0057] and that have the claimed 5 mm to 1.5 mm, or at least 2 mm, or 3 mm or greater in size as in Haskins at [0023] to improve the flavor, color and nutrient content of the food snack in Neidlinger. Further, the ordinary skilled artisan would have desired to toast and/or fry its expanded food snack as in Ganjyal at [0055] and reduce the thickness of the food snack as in Ganjyal at [0055] to make a lighter, crispier and easier to eat food snack.
Regarding instant claim 38, Neidlinger does not disclose a thickness of the gelatinized product of from 0.8 to 1.5 mm. However, Neidlinger as modified by Ganjyal at [0055] discloses a flat die orifice for extrusion, thus forming a snack having the form of a potato chip when it is divided into snack sized pieces as at the Abstract of Ganjyal. As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ganjyal for Neidlinger to select any flat die width, including the claimed 0.8 to 1.5 mm width. The Office considers forming a sheet or flat gelatinized product to include forming any desired thickness from the flat die orifice as in Ganjyal and considers a gelatinized product to include one having the claimed thickness for any period of time including the instant it leaves an extruder die.
Regarding instant claim 46, Neidlinger as modified by Ganjyal does not say that the starch present in its mixture is gelatinized; however, extrusion in Neidlinger at 120 to 170 °C causes heating and gelatinization of at least part of the starch as evidenced in Rizvi at [0005]. Further, the claimed temperature between 110 to 140°C overlaps the extrusion temperature of 120 to 170 °C in Neidlinger at [0015] and is substantially the same extrusion process as the claimed gelatinizing process. Generally, differences in temperature will not support the patentability of subject matter where the ordinary skilled artisan would have expected the art and the claims to result in the same properties unless there is evidence indicating such temperature is critical. See MPEP 2144.05.I.
Claims 40-41, 43 and 45 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0054944 A1 to Neidlinger et al. (Neidlinger) in view of US 2013/0136830 A1 to Ganjyal (Ganjyal) and US 2014/0322392 A1 to Haskins et al. (Haskins), as evidenced by Canet, W. “Determination of the Moisture Content of Some Fruits and Vegetables by Microwave Heating”, Journal of Microwave Power and Electromagnetic Energy, Vol. 23, No. 4, 231-235 (1988) (Canet) and US 2015/0282507 A1 to Rizvi et al. (Rizvi), and further in view of US 2008/0213432 A1 to Bunke et al. (Bunke), of record and US 2011/0014343 A1 to Jordan (Jordan) of record.
As applied to claim 19, Neidlinger at [0014]-[0015] and [0031] as modified by Ganjyal at [0057] and Haskins at [0023], as evidenced by Canet and Rizvi at [0005] and [0088] discloses mixing and extruding a mixture of a starchy material and a fresh and/or raw vegetable material pieces in an amount of 25 to 65 wt% of the mixture, gelatinizing the starch present in said mixture in the presence of said at least one fresh and/or raw vegetable material, drying it and expanding it to provide a snack comprising macroparticles of the at least one vegetable material having a size of between 5 mm and 1.5 mm dispersed in the starchy material.
Regarding instant claims 40-41, 43 and 45, Neidlinger as modified by Ganjyal does not disclose further reducing a thickness of the gelatinized product to a thickness of from 0.4 to 0.9 mm as in claim 40, or to obtain a thickness reduction of 40 to 60% with respect to an initial thickness of the gelatinized product as in claim 41. Further, Neidlinger as modified by Ganjyal does not disclose the size of macroparticles in its food snack or such a food snack wherein at least some macroparticles of a vegetable material having a length of at least 4 mm. And Neidlinger as modified by Ganjyal and Jordan does not disclose packaging a partially dried product, and wherein expanding the dried product to provide a food snack is not carried out where said preparing, gelatinizing and drying take place as in claim 45. However, Neidlinger discloses at [0015] drying the extrudate pieces to a residual water content of 1 to 3 wt% (“only partially drying” a gelatinized product as in claims 40-41 and 45).
Bunke at [0014] discloses a snack chip from a dough of a raw vegetable material, such as (at [0019]) raw carrots, and a dry material such as (at [0017]) starches to form a half product or pellet. Bunke at [0074] discloses forming and then sheeting the dough via (at [0076]) an extruding sheeter to a thickness (at [0075]) of from 0.063 to 0.152 cm or 0.63 to 15.2 mm, which the claimed thickness of from 0.4 to 0.9 mm overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, Bunke at [0014] discloses drying its dough to form a fabricated snack product or "half product" for storage and (at [0082]) later cooking to cause puffing.
Jordan at [0025] discloses packaging extruded, cut and dried food pieces as half products.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bunke for Neidlinger as modified by Ganjyal to include carrot shreds as in Bunke as a vegetable in its snack product, to reduce the thickness of its gelatinized product to a thickness of from 0.4 to 0.9 mm as in claim 40 as in Bunke, and to obtain a thickness reduction of 40 to 60% with respect to an initial thickness of the gelatinized product as in claim 41 and thereby to produce a snack having at least some macroparticles of at least 4 mm in length as in claim 43. Further, it would have been obvious in view of Bunke and Jordan for Neidlinger as modified by Ganjyal to store its dried extrudate as “half-products”, to package them as in Jordan and then expand them at a separate time or place as in Bunke. All three of Neidlinger, Ganjyal and Bunke disclose extruded, dried puffed snacks in the shape or form of a chip comprising a starchy material. All of Ganjyal, Jordan and Bunke disclose extruding food comprising macroparticles of at least one vegetable material. The ordinary skilled artisan in Neidlinger as modified by Ganjyal would have desired to include as at least one of its vegetable material the shredded raw carrots as at [0019] of Bunke for their texture, color and flavor, and, further, would have desired to shape the gelatinized product of Neidlinger as modified by Ganjyal to have a thickness from 0.4 to 0.9 mm as in Bunke and package them as in Jordan to prepare them for later puffing and to produce a snack of chip like dimensions through extruder orifice of any practicable size or desired thickness as in Bunke, thereby resulting in reducing the thickness of the Ganjyal gelatinized product by 40 to 60% from a flat orifice of 2 mm thickness for storage. In addition, the ordinary skilled artisan in Neidlinger as modified by Ganjyal and Bunke would have desired to package its half product as in Jordan to preserve it so it can be expanded at an independent place and time.
Response to Arguments
In view of the amendment dated October 24, 2025, Applicant’s arguments with respect to US 4769253 to Willard (Willard) and with respect to macroparticle size in US 2011/0014343 A1 to Jordan (Jordan) and claims 19, 28 and 35 have been considered but are moot because the new ground of rejection does not rely on Willard for any teaching or matter specifically challenged in the argument and does not rely on Jordan for any matter related to macroparticle size.
Regarding the positions taken in the remarks accompanying the amendment dated October 24, 2025, the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the position taken in the Reply at pages 8-11 against the Neidlinger and Ganjyal 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). Respectfully, the positions taken do not address the propriety of the combination of Neidlinger and Ganjyal.
Regarding the position taken in the Reply at pages 9-10 and Canet, respectfully the rejections do not attempt to combine Canet with anything; rather, the rejections properly look to Canet to define the amount of moisture in the vegetable matter already disclosed in Ganjyal and find that the amount of moisture in fruit in Canet at Table 1 and vegetables in Canet at Table 2 are consistent with the moisture disclosed in each of Neidlinger at [0014]-[0015] and Ganjyal at [0057]. The positions do not address the propriety of using Canet as evidence of what Ganjyal discloses.
Regarding the position taken in the Reply at pages 11-12 that Neidlinger does not disclose gelatinizing starch, respectfully this position is not found persuasive. Even if cooking a native starch at 120 to 170 °C in moisture as in Neidlinger at [0014]-[0015] and [0031] by extrusion is not called gelatinizing, both Rizvi at [0005] and the instant specification at page 11, lines 12-24 disclose that the same extrusion as in Neidlinger in fact gelatinizes the starch. No evidence was presented to rebut this finding. Regarding the view that Neidlinger “could gelatinize the starch”, the Office finds this position as lacking in evidence because Neidlinger at [0030] discloses cooking the starch in the presence of moisture, which gelatinizes the starch. Further, regarding the allegation that Neidlinger does not disclose a gelatinization temperature or conditions, the Office finds that the evidence does not support this position in view of the 120 to 170 °C temperatures disclosed and the cooking disclosed in Neidlinger.
Regarding the position taken in the Reply at page 9 that Ganjyal in disclosing a puree cannot disclose inclusions because purees are “notoriously well known” not to make such inclusions, this position goes contrary to the disclosure of Ganjyal itself at [0057] that the puree used therein provides inclusions. Therefore, even if the position taken in the Reply is supported by one reference, the position taken in the Reply does not preponderate over the contradictory evidence in Ganjyal. However, the ordinary skilled artisan in Neidlinger would have desired to add inclusions for appearance and flavor as specifically disclosed in the last sentence Ganjyal at [0057]. Further, the art of Haskins at [0023] is relied on as disclosing methods of providing vegetable macroparticles in starchy food snacks. Accordingly, evidence present in the rejections preponderates.
Regarding the position taken in the Reply that the art does not disclose reducing vegetable material pieces in size during said extruding step, respectfully the position does not read Neidlinger as a whole. However, in view of the extrusion at 120 to 170 °C and at pressures of 40 to 160 bar disclosed at [0015] of Neidlinger, the ordinary skilled artisan given the extrusion as disclosed in the instant specification at page 11, lines 12-24 would reasonably have expected the extrusion in Neidlinger at [0014]-[0015] and [0031] as modified by Ganjyal at [0057] to reduce the particle sizes of vegetable pieces during extrusion. In addition, the rejections have included support for this position found in Rizvi at [0005].
Conclusion
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/ANDREW E MERRIAM/Examiner, Art Unit 1791