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 .
Claim Objections
Claim 9 is objected to because of the following informalities: Claim 9 should conclude with the term “bar”. 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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1-23 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.
Independent claims 1, 9, and 15 each recite that the inulin provides at least 50% of the total dietary fiber of the fasting bar. However, while Table 7 of the present specification [0080] provide an example where inulin is in an amount of 14-18% of the fasting bar, there is no indication in the specification that inulin must be at least 50% of the dietary fiber contained in the fasting bar. Additionally, it is noted that Tables 1-5 provide examples of fasting bars where it is indicated that dietary fiber in general can be used. There is no requirement that the dietary fiber be at least 50% inulin. In [0078], the use of inulin is even characterized as a variation of the fasting bar.
Claims 2-8, 10-14, 16-23 are rejected as they are dependent on or rely on claims 1, 9 and or 15.
Claims 3, 10, and 17 are not clear. Each of the claims recite “further comprising” fiber. However, their respective base claims also recite the presence of inulin. The claims are unclear because it is unclear whether this fiber is in addition to the inulin and how the fiber in claims 3, 10 and 17 relate to the overall amounts of fiber and inulin recited in base claims 1, 9 and 15, respectively.
Claim 10, in particular, “further comprises” 2 to 10 g fiber/100 g of the fasting bar, while claim 9 says the fasting bar comprises 14 to 18% inulin.
Claim 13 is further rejected as the claim repeats a number of ingredients that are already recited in claim 10. It is not clear what ingredients are required.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-10, 12-14 and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Anon, Homemade Keto Fasting Bars- Copycat Honey Bar, August 13, 2019, My Crash Test, accessed at https://mycrashtestlife.com/homemade-keto-fasting-bars-copycat-honey-nut (ANON) in view of United States Patent Application Publication No. 2014/0335123 (PAK).
As to claims 1, 4-5 and 22-23, ANON teaches a fasting bar that can be stored in an airtight container/package with the following kcal (see Nutritional Statement):
ANON Bar (40g) Ingredients
% Weight
kcal per g
grams per 100g bar
Kcal per 40g bar
kcal per 100g bar
17 g fat
42.50%
9 kcal for fat
42.5g
153
382.5
13g carbohydrates
32.50%
4 kcal for carbohydrates
32.5 g
52
130
5 g protein
12.50%
4 kcal for protein
12.5g
20
50
7g of fiber
n/a
17.5 g
n/a
n/a
Thus, each of these amounts fall within the claimed ranges. The bar can be used to skip a meal and maintain an 8-hour fasting window (see What is a Fast Bar section).
Given ANON teaches a fat, protein and carbohydrate that falls within that claimed, the ANON bar would naturally provide the same post-prandial response, as claimed.
ANON is silent as to adding inulin and rosemary extract.
However, PAK teaches a health bar [0065] which can facilitate control of glucose in the human bloodstream in a resting or fasting state [0055]. Inulin can be added as fiber and was historically used by physicians to regulate blood sugar levels [0025] and rosemary extract was known to be included as an anti-oxidant [0053].
Thus, it would have been obvious to add inulin as a dietary fiber and rosemary extract as an antioxidant to the composition of ANON.
PAK also teaches that fiber such as inulin has a variety of health benefits [0027] and that the recommended amount of fiber is between 25-40 grams of fiber per day. In this regard, it would have been obvious to one skilled in the art to vary the amount of dietary fiber such as inulin based on the daily intake requirements.
As to claim 4, it is noted that claims 4 recites “optionally about 8 to 15 grams are saturated”. Thus, this recitation is optional.
As to claim 3, the ANON bar contains 17.5g fiber per a 100g bar (See Nutritional statement). However, in the Liquid Sweetener paragraph, it is taught that tapioca fiber is used as a binder. In this regard, it would have been obvious to one skilled in the art to vary the amount of fiber based on the amount of binder needed.
As to claim 6, ANON teaches that almond, pecans and coconut flour can be used (see ingredient listing).
As to claim 7, ANON teaches that the bar can be used to skip a meal and maintain a 8-hour fasting window (see What is a Fast Bar section).
As to claim 8, given the bar contains the same kcal and fat contents, one could naturally consume coffee and tea and not break a fasting state.
As to claim 9, ANON teaches a fasting bar that can be stored in an airtight container/package with the following kcal (see Nutritional statement):
ANON Bar (40g) Ingredients
% Weight
kcal per g
grams per 100g bar
Kcal per 40g bar
kcal per 100g bar
17 g fat
42.50%
9 kcal for fat
42.5g
153
382.5
13g carbohydrates
32.50%
4 kcal for carbohydrates
32.5 g
52
130
5 g protein
12.50%
4 kcal for protein
12.5g
20
50
7g of fiber
n/a
17.5 g
n/a
n/a
Thus, each of these amounts fall within the claimed ranges. The bar can be used to skip a meal and maintain a fasting window (see What is a Fast Bar section).
On page 7, it is taught that almond, pecans, macadamia nuts, nut butter and flaxseed meal can be used. It would have been obvious to use almond butter as almonds are a suggested nut to use. As to the amount of each ingredient, it would have been obvious to vary the amount based on taste, yet still maintain the fat, carbohydrate and protein profile disclosed in the Nutritional Statement (see pg. 32 of ANON and table above).
ANON is silent as to adding inulin and rosemary extract.
However, PAK teaches a health bar [0065] which can facilitate control of glucose in the human bloodstream in a resting or fasting state [0055]. Inulin can be added as fiber and was historically used by physicians to regulate blood sugar levels [0025] and rosemary extract was known to be included as an anti-oxidant [0053].
Thus, it would have been obvious to add inulin as a dietary fiber and rosemary extract as an antioxidant to the composition of ANON.
As to claim 10, the ANON bar would contain 7g fiber per a 100g bar (See Nutritional statement).
As to claim 12, ANON teaches a fasting bar that can be stored in an airtight container/package with the following kcal (see Nutritional statement):
ANON Bar (40g) Ingredients
% Weight
kcal per g
grams per 100g bar
Kcal per 40g bar
kcal per 100g bar
17 g fat
42.50%
9 kcal for fat
42.5g
153
382.5
13g carbohydrates
32.50%
4 kcal for carbohydrates
32.5 g
52
130
5 g protein
12.50%
4 kcal for protein
12.5g
20
50
7g of fiber
n/a
17.5 g
n/a
n/a
Thus, each of these amounts fall within the claimed ranges
As to claim 13, ANON teaches that macadamia nuts, almonds, coconut flour can be used (see ingredient listing).
As to claim 14, ANON teaches that the bar can be used to skip a meal and maintain a 8-hour fasting window (see What is a Fast Bar section).
Claims 2 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over ANON and PAK and as applied to claims 1 and 10, respectively, above and further in view of https://theprobar.com/products/oatmeal-chocolate-chip-meal-replacement-bar (PRO BAR).
ANON and PAK are cited for the reasons noted above but do not teach the same fat, protein, and carbohydrate contents or addition of saturated fat.
Pro Bar teaches 54 kcal of saturated fat (see ingredients list).
PRO BAR teaches a nutritional bar with following ingredients (see Nutritional statement):
PRO BAR (43 g bar)
Weight %
kcal per g
g per 100 g bar
kcal per 100g bar
11g fat
25%
9 kcal for fat
25
225
22g carbohydrate
51%
4 kcal for carbohydrates
51
204
5g protein
11%
4 kcal for protein
11
44
3g fiber
7.00%
n/a
7
2.5g Saturated Fat
6%
9 kcal for fat
6
54
Thus, these ingredients fall within the recited amounts of the claims.
As noted above, the Pro Bar contains 3g fiber per a 100g bar (See Nutritional statement).
Pro Bar teaches the addition of unsweetened chocolate which is a cocoa derivative (see ingredient list).
The use of the bar as a fasting-mimicking diet bar is an intended use which does not change the ingredients or physical make-up of the bar. However, as the bar contains the same ingredients as claimed, it would have the same properties such as not breaking a fast in between meals.
Moreover, as noted above, Pro Bar teaches amounts within or touches on the claimed ranges for the fat and protein. PRO BAR does not teach the same amount of carbohydrate. However, it would have been obvious to vary the amount of these ingredients based on the desired test and nutritional need of the product.
Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
Claims 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over ANON in view of PAK and https://theprobar.com/products/oatmeal-chocolate-chip-meal-replacement-bar (PRO BAR).
ANON teaches a fasting bar that can be stored in an airtight container/package with the following kcal (see Nutritional statement):
ANON Bar (40g) Ingredients
% Weight
kcal per g
grams per 100g bar
Kcal per 40g bar
kcal per 100g bar
17 g fat
42.50%
9 kcal for fat
42.5g
153
382.5
13g carbohydrates
32.50%
4 kcal for carbohydrates
32.5 g
52
130
5 g protein
12.50%
4 kcal for protein
12.5g
20
50
7g of fiber
n/a
17.5 g
n/a
n/a
Thus, each of these amounts fall within the claimed ranges.
However, ANON does not teach the addition of the use inulin and rosemary extract.
PAK teaches a health bar [0065] which can facilitate glucose control in the human bloodstream in a resting or fasting state [0055]. Inulin can be added as fiber and was historically used by physicians to regulate blood sugar levels [0025] and rosemary extract is added as an anti-oxidant [0053].
Thus, it would have been obvious to add inulin as a dietary fiber and rosemary extract as an antioxidant to the composition of ANON.
ANON and PAK do not teach the same fat, protein, and carbohydrate contents or addition of saturated fat.
Pro Bar teaches 54 kcal of saturated fat (see ingredients list).
Pro Bar teaches amounts that fall within or touch on the claimed ranges for the fat and protein. PRO BAR does not teach the same amount of carbohydrate. However, it would have been obvious to vary the amount of these ingredients based on the desired test and nutritional need of the product.
PRO BAR teaches a nutritional bar with following ingredients (see Nutritional statement):
PRO BAR (43 g bar)
Weight %
kcal per g
g per 100 g bar
kcal per 100g bar
11g fat
25%
9 kcal for fat
25
225
22g carbohydrate
51%
4 kcal for carbohydrates
51
204
5g protein
11%
4 kcal for protein
11
44
3g fiber
7.00%
n/a
7
2.5g Saturated Fat
6%
9 kcal for fat
6
54
Thus, these ingredients fall within the recited amounts of the claims.
As noted above, the Pro Bar contains 3g fiber per a 100g bar (See Nutritional statement).
Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
As to claim 16, ANON and PAK are cited for the reason noted above but silent as to the kcal of saturated fat.
In the ingredients list above, Pro Bar teaches saturated fat is present in an amount of 54kcal per 100 g bar (see ingredient list). Thus, this falls within that claimed. Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
As to claim 17, ANON does teach the use of fiber.
PAK teaches a health bar [0065] which can facilitate glucose control in the human bloodstream in a resting or fasting state [0055]. Inulin can be added as fiber [0055].
However, ANON and PAK do not teach the same amounts.
PRO BAR teaches a nutritional bar with following ingredients (see Nutritional statement):
PRO BAR (43 g bar)
Weight %
kcal per g
g per 100 g bar
kcal per 100g bar
11g fat
25%
9 kcal for fat
25
225
22g carbohydrate
51%
4 kcal for carbohydrates
51
204
5g protein
11%
4 kcal for protein
11
44
3g fiber
7.00%
n/a
7
2.5g Saturated Fat
6%
9 kcal for fat
6
54
Thus, these ingredients fall within the recited amounts of the claims.
Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
As to claim 18, ANON and PAK do not teach the same fat, protein, and carbohydrate contents or addition of saturated fat.
Pro Bar teaches 6 g of saturated fat (see ingredients list). This is considered about 5 grams, as claimed.
Additionally, PRO BAR teaches a nutritional bar with following ingredients (see Nutritional statement):
PRO BAR (43 g bar)
Weight %
kcal per g
g per 100 g bar
kcal per 100g bar
11g fat
25%
9 kcal for fat
25
225
22g carbohydrate
51%
4 kcal for carbohydrates
51
204
5g protein
11%
4 kcal for protein
11
44
3g fiber
7.00%
n/a
7
2.5g Saturated Fat
6%
9 kcal for fat
6
54
Thus, these ingredients fall within the recited amounts of the claims.
Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
As to claim 19, ANON and PAK are cited for the reasons noted above but do not teach the same percentage of fat, protein, and carbohydrate contents.
PRO BAR teaches a nutritional bar with following ingredients (see Nutritional statement):
PRO BAR (43 g bar)
Weight %
kcal per g
g per 100 g bar
kcal per 100g bar
11g fat
25%
9 kcal for fat
25
225
22g carbohydrate
51%
4 kcal for carbohydrates
51
204
5g protein
11%
4 kcal for protein
11
44
3g fiber
7.00%
n/a
7
2.5g Saturated Fat
6%
9 kcal for fat
6
54
Pro Bar teaches that the nutritional make-up of the bar provides a nutrient dense bar that can be used as a meal bar (pg. 3-5).
Thus, it would have been obvious to use nutrient make-up of the Pro Bar in the product of ANON and PAK, as Pro Bar teaches that it provides a nutrient dense meal bar.
As to claim 20, ANON teaches that almond, pecans and coconut flour can be used (see ingredient listing).
As to claim 21, as the PRO bar contains the same ingredients as claimed, it would have the same properties such as not breaking a fast in between meals.
Response to Arguments
Applicant's arguments filed 2/10/2026 have been fully considered but they are not persuasive.
The applicant argues that the Office Action combines ANON with PAK (and PROBAR for certain dependent claims) to assert that it would have been obvious to add inulin and rosemary extract to ANON's bar. Even assuming ANON is prior art, this combination does not teach or suggest Applicants' inulin-dominant fasting bar, nor does it suggest a bar having the specific structural and functional features now recited in claims 1, 9, and 15. In particular, it is argues that ANON further provides only a qualitative assertion that the bar can help maintain an "8-hour fasting window," without any quantitative ketone or glucose data, and without any teaching that the bar maintains a water-fast-like ketone profile. PAK does not disclose or suggest configuring inulin to provide at least 50% of total dietary fiber in a bar whose macronutrient energy distribution falls within the specific ranges of Applicants' claims. Nor does PAK discuss preserving ketone AUC at water-fast levels after a prolonged fast; its focus is conventional glycemic control in the fed state.
However, ANON and PRO BAR show that the fat, carbohydrate and protein amounts for fasting bars are known. The ANON bar even describes the bar as a “copycat” bar. Given these amounts are known, it follows that the bars of ANON and PRO BAR would provide the same post prandial results.
The Applicant does argue that limitation "the fasting bar, when consumed by a subject after a fast of 12 to 18 hours, results in a 0-4 hour post-prandial blood ketone area under the curve that is not statistically different from that of water-only fasting" defines an objectively measurable pharmacodynamic property and is not an intended use. Additionally, it is argued that clinical data further provide objective evidence of non-obviousness under the fourth Graham factor (Graham V. John Deere Co., 383 US 1 (1966)).
However, the claimed invention is a product. The patentability of a product does not depend on its method of use (e.g., use of the food bar as a fasting bar). If the claimed product is the same as or obvious from a product of the prior art, the claim is unpatentable. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). As noted above, ANON and PRO BAR show that the fat, carbohydrate and protein amounts for fasting bars are known. The ANON bar even describes the bar as a “copycat” fasting bar. PAK teaches that the use of inulin and rosemary extract can be added to food products such as health bars (see [0025], [0053], and [0055]). The reference plainly render obvious claimed product and any recitations as to how the bar is used and resulting properties do not alter the structure or ingredients of the product.
As to the evidence present in the application indicating obviousness or nonobviousness, there is no evidence to suggest that the bars of the cited prior art perform differently than that claimed. Moreover, applicant’s results set forth in the present specification appear to be based on one type of bar (see Figure 1). It is not clear that the same results alleged by applicant occur over the full range of ingredients set forth in independent claims 1, 9 or 15.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached on 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Prosecution Insights