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 .
This office action is in regard to the application filed on June 21, 2021 and in response to a Request for Continued Examination filed on January 20, 2026.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 20, 2026 has been entered.
Status of Application
The amendment filed January 20, 2026 has been entered. Claims 1-5, 8-13, and 15-18 are currently pending in the application. Claims 1 and 18 have been amended; claims 8-13 and 15-17 are withdrawn; claims 6, 7, and 14 are canceled. Claims 1-5 and 18 are hereby examined on the merits.
The previous 112(b) rejections of claims 1-5 and 18 have been withdrawn in view of applicant’s claim amendments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-5 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Salzman (“Supersmooth, Light-As-Air Hummus,” Pamela Salzman; June 2013) as evidenced by My Food Data (“Nutrition Facts for Cooked Chickpeas (Garbanzo Beans)”; “Nutrition Facts for Sesame Butter (Tahini)”; “Nutrition Facts for Lemon juice, 100%, freshly squeezed”; Nutrition Facts for Raw Garlic (Fresh)”; My Food Data: Nutrition Facts Search Tool).
Regarding claim 1, Salzman discloses a whipped hummus (i.e., aerated food product) (p. 7) which comprises 3 2/3 cups cooked chickpeas (p. 8 step 3), 1 cup tahini, ¼ cup lemon juice, 4 cloves garlic, 1.5 teaspoons sea salt, and 6.5 tablespoons water (p. 7).
When converted to grams and percent by weight, the recipe becomes:
Component
Recipe
Grams
Percent by weight (100% total)
Cooked chickpeas
3 2/3 cup
600 g (1 cup ~164 g; 1/3 cup ~55 g)
58.8 wt.%
Tahini
1 cup
240 g (1 cup ~240 g)
23.5 wt.%
Lemon juice
¼ cup
61 g (1 cup ~245 g)
5.97 wt.%
Garlic
4 cloves
12 g (1 clove ~3 g)
1.18 wt.%
Salt
1.5 teaspoons
12 g (1 tsp ~8g)
1.18 wt.%
Water
6.5 tablespoons
96 g (1 tbsp~14.8 g)
9.40 wt.%
Salzman teaches that the cooked chickpeas are blended to get a stiff paste, thereby teaching an edible plant paste that is not a dry particulate or powder composition and consists essentially of a vegetable which is crushed, ground, or homogenized and which has a pasty flowing consistency allowing its consumption with a fork.
Tahini is a paste made from ground sesame seeds. Thus, the tahini taught by Salzman is also an edible plant paste that is not a dry particulate or powder composition and consists essentially of a vegetable which is crushed, ground, or homogenized and which has a pasty flowing consistency allowing its consumption with a fork.
Therefore, the ground cooked chickpeas and tahini together as taught by Salzman is the edible plant paste as claimed.
The whipped hummus comprises 58.8 wt.% cooked chickpeas and 23.5 wt.% tahini as set forth in the table above. Thus, the whipped hummus (i.e., aerated food product) comprises 82.3 wt.% of the edible plant paste (combination of cooked chickpeas and tahini), which lies within the claimed range of 65-95 wt.%.
Salzman is silent as to the amount of fat, protein, and fiber in the whipped hummus.
However, as evidenced by My Food Data (pages 2 and 4-6), each component (excluding salt and water because they do not contain any amounts of fat, protein, and fiber) comprises the following amount of fat, protein, and fiber:
Component
Fat (weight)
Fat (weight percentage)
Protein (weight)
Protein (weight percentage)
Fiber (weight)
Fiber (weight percentage)
Cooked chickpeas
15.5 g
2.58%
53.2 g
8.87%
45.6 g
7.6%
Tahini
129 g
53.75%
40.8 g
17%
22.3 g
9.3%
Lemon juice
0.15 g
0.25%
0.21 g
0.34%
0.18 g
0.3%
Garlic
0.06 g
0.5%
0.76 g
6.33%
0.25 g
2.1%
Based on the amounts in the total composition (again excluding salt and water):
Component
Percent by weight
Percent fat (weight)
Percent protein (weight)
Percent fiber (weight)
Cooked chickpeas
58.8%
1.52%
5.21%
4.47%
Tahini
23.5%
12.63%
4%
2.18%
Lemon juice
5.97%
0.01%
0.02%
0.02%
Garlic
1.18%
0.01%
0.07%
0.02%
Total
14.2%
9.3%
6.7%
Therefore, the aerated food product comprises a protein content of 9.3 wt.% which lies within the claimed range of 3-10 wt.% and a fiber content of 6.7 wt.%, which does not lay within the claimed range, but is close. However, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05(I). The difference between the claimed range and that evidenced by My Food Data is virtually negligible absent any showing of unexpected results or criticality. One of ordinary skill in the art would have expected the final composition to have the same properties as a composition with the claimed amounts.
Where Salzman as evidenced by My Food Data teaches 14.2 wt.% fat, when recalculated as percent by volume, it becomes 13.6 vol%, which lies within the claimed range of 10-35 vol%.
Thus, Salzman as evidenced by My Food Data renders obvious the instant claim limitations.
Salzman is silent as to that the overrun of the aerated food product is 7-150% and that the aerated food product remains stable over 30 days at 4°C.
However, where the claimed and prior art products are substantially identical in structure or composition, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). Since the composition of Salzman is substantially identical to that of the claimed composition, the prior art product must necessarily possess the same properties and characteristics as the composition claimed. Therefore, the composition taught by Salzman is considered to possess the overrun and stability as claimed because the composition is substantially the same and thus must necessarily exhibit the same characteristics.
Regarding claim 2, Salzman teaches ground cooked chickpeas and tahini (ground sesame seeds) as the edible plant paste (p. 8 step 3), which is a vegetable paste.
Regarding claim 3, Salzman teaches the vegetable paste comprising ground cooked chickpeas (p. 8 step 3) – chickpeas are pulses; thus the vegetable paste is a pulse paste.
Regarding claim 4, Salzman teaches a combination of ground cooked chickpeas and tahini as the vegetable paste (p. 8 step 3). Chickpeas are pulses and tahini is an oleaginous vegetable paste because tahini is made from ground sesame seeds which are oleaginous. Thus, the vegetable paste consists of a mixture of at least one pulse paste and at least one oleaginous vegetable paste.
Regarding claim 5, Salzman teaches that the aerated food product further comprises garlic, sea salt, (i.e., a spice aromatic herb, condiment, flower essence, and salt), and lemon juice (i.e., an edible acidic ingredient) (p. 7 ingredients).
Regarding claim 18, Salzman teaches that the aerated food product further comprises olive oil (i.e., an edible oil) (p. 7 ingredients).
Claims 1-5 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Salzman (“Supersmooth, Light-As-Air Hummus,” Pamela Salzman; June 2013) as evidenced by My Food Data (“Nutrition Facts for Cooked Chickpeas (Garbanzo Beans)”; “Nutrition Facts for Sesame Butter (Tahini)”; “Nutrition Facts for Lemon juice, 100%, freshly squeezed”; Nutrition Facts for Raw Garlic (Fresh)”; My Food Data: Nutrition Facts Search Tool), in view of Clavier et al. (WO 2017/067965), herein after referred to as Clavier.
Regarding claim 1, Salzman discloses a whipped hummus (i.e., aerated food product) (p. 7) which comprises 3 2/3 cups cooked chickpeas (p. 8 step 3), 1 cup tahini, ¼ cup lemon juice, 4 cloves garlic, 1.5 teaspoons sea salt, and 6.5 tablespoons water (p. 7).
When converted to grams and percent by weight, the recipe becomes:
Component
Recipe
Grams
Percent by weight (100% total)
Cooked chickpeas
3 2/3 cup
600 g (1 cup ~164 g; 1/3 cup ~55 g)
58.8 wt.%
Tahini
1 cup
240 g (1 cup ~240 g)
23.5 wt.%
Lemon juice
¼ cup
61 g (1 cup ~245 g)
5.97 wt.%
Garlic
4 cloves
12 g (1 clove ~3 g)
1.18 wt.%
Salt
1.5 teaspoons
12 g (1 tsp ~8g)
1.18 wt.%
Water
6.5 tablespoons
96 g (1 tbsp~14.8 g)
9.40 wt.%
Salzman teaches that the cooked chickpeas are blended to get a stiff paste, thereby teaching an edible plant paste that is not a dry particulate or powder composition and consists essentially of a vegetable which is crushed, ground, or homogenized and which has a pasty flowing consistency allowing its consumption with a fork.
Tahini is a paste made from ground sesame seeds. Thus, the tahini taught by Salzman is also an edible plant paste that is not a dry particulate or powder composition and consists essentially of a vegetable which is crushed, ground, or homogenized and which has a pasty flowing consistency allowing its consumption with a fork.
Therefore, the ground cooked chickpeas and tahini together as taught by Salzman is the edible plant paste as claimed.
The whipped hummus comprises 58.8 wt.% cooked chickpeas and 23.5 wt.% tahini as set forth in the table above. Thus, the whipped hummus (i.e., aerated food product) comprises 82.3 wt.% of the edible plant paste (combination of cooked chickpeas and tahini), which lies within the claimed range of 65-95 wt.%.
Salzman is silent as to the amount of fat, protein, and fiber in the whipped hummus.
However, as evidenced by My Food Data (pages 2 and 4-6), each component (excluding salt and water because they do not contain any amounts of fat, protein, and fiber) comprises the following amount of fat, protein, and fiber:
Component
Fat (weight)
Fat (weight percentage)
Protein (weight)
Protein (weight percentage)
Fiber (weight)
Fiber (weight percentage)
Cooked chickpeas
15.5 g
2.58%
53.2 g
8.87%
45.6 g
7.6%
Tahini
129 g
53.75%
40.8 g
17%
22.3 g
9.3%
Lemon juice
0.15 g
0.25%
0.21 g
0.34%
0.18 g
0.3%
Garlic
0.06 g
0.5%
0.76 g
6.33%
0.25 g
2.1%
Based on the amounts in the total composition (again excluding salt and water):
Component
Percent by weight
Percent fat (weight)
Percent protein (weight)
Percent fiber (weight)
Cooked chickpeas
58.8%
1.52%
5.21%
4.47%
Tahini
23.5%
12.63%
4%
2.18%
Lemon juice
5.97%
0.01%
0.02%
0.02%
Garlic
1.18%
0.01%
0.07%
0.02%
Total
14.2%
9.3%
6.7%
Therefore, the aerated food product comprises a protein content of 9.3 wt.% which lies within the claimed range of 3-10 wt.% and a fiber content of 6.7 wt.%, which does not lay within the claimed range, but is close. However, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05(I). The difference between the claimed range and that evidenced by My Food Data is virtually negligible absent any showing of unexpected results or criticality. One of ordinary skill in the art would have expected the final composition to have the same properties as a composition with the claimed amounts.
Where Salzman as evidenced by My Food Data teaches 14.2 wt.% fat, when recalculated as percent by volume, it becomes 13.6 vol%, which lies within the claimed range of 10-35 vol%.
Thus, Salzman as evidenced by My Food Data renders obvious the instant claim limitations.
Salzman is silent as to that the aerated food product remains stable over 30 days at 4°C.
However, where the claimed and prior art products are substantially identical in structure or composition, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). Since the composition of Salzman is substantially identical to that of the claimed composition, the prior art product must necessarily possess the same properties and characteristics as the composition claimed. Therefore, the composition taught by Salzman is considered to possess the stability as claimed because the composition is substantially the same and thus must necessarily exhibit the same characteristics.
Salzman is silent as to that the overrun of the aerated food product has an overrun ranging from 7% to 150%.
Clavier, in the same field of invention, teaches a mixing apparatus and process for aerating food compositions with overruns of 20-300% (p. 11 lines 16-28; claims 1 and 13). This overrun overlaps with the claimed range of 7-150% and where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Therefore, as it was known in the art to produce aerated food products, it would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have produced an aerated food product with the overrun as claimed, as Clavier teaches that food products are known to be aerated and are known to have the overrun as claimed.
Regarding claim 2, Salzman teaches ground cooked chickpeas and tahini (ground sesame seeds) as the edible plant paste (p. 8 step 3), which is a vegetable paste.
Regarding claim 3, Salzman teaches the vegetable paste comprising ground cooked chickpeas (p. 8 step 3) – chickpeas are pulses; thus the vegetable paste is a pulse paste.
Regarding claim 4, Salzman teaches a combination of ground cooked chickpeas and tahini as the vegetable paste (p. 8 step 3). Chickpeas are pulses and tahini is an oleaginous vegetable paste because tahini is made from ground sesame seeds which are oleaginous. Thus, the vegetable paste consists of a mixture of at least one pulse paste and at least one oleaginous vegetable paste.
Regarding claim 5, Salzman teaches that the aerated food product further comprises garlic, sea salt, (i.e., a spice aromatic herb, condiment, flower essence, and salt), and lemon juice (i.e., an edible acidic ingredient) (p. 7 ingredients).
Regarding claim 18, Salzman teaches that the aerated food product further comprises olive oil (i.e., an edible oil) (p. 7 ingredients).
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejections of claims 1-5 and 18 from the previous office action and therefore these rejections have been withdrawn.
Applicant’s arguments with respect to claims 1-5 and 18 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 new ground of rejection relies on new references that were not applied in the prior rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Shittu et al. (“Whipping and Lowering of Moisture Content to Reduce Cowpea Paste Souring Rate,” Journal of Culinary Science & Technology, 13:187-199, 2015) teaches whipping cowpea (pulse vegetable) paste to an overrun of 15-82.5%.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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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.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791