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
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-4,11,12,13,21,22 is/are rejected under 35 U.S.C. 103 as being unpatentable over The 36thAvenue.com(Gluten Free Quinoa Tortillas) in view of Hillson(How to Build A Gluten Free Flour Blend) and Zhang(US 20100015279) as evidenced by King Arthur Flour(Ingredient Weight Chart), Aqua-calc.com(Food Volume to Weight Conversions), and The Physics Factbook (Density of Cooking Oil).
Regarding claims 1-3, The 36th Avenue teaches a tortilla composition comprising 4 cups quinoa flour, ¾ cup brown rice flour, 1 teaspoon salt, 1 teaspoon olive oil, and 1 ¼ cups hot water.
As evidenced by King Arthur Flour, 1 cup of quinoa flour weighs 110grams and 1 cup of brown rice flour weighs 128g. Therefore, the weight of 4 cups of quinoa flour and ¾ cup of rice flour equates to 440g and 96g.
As evidenced by The Physics Factbook, olive oil has a density of 0.92 g/cm^3. One teaspoon is equivalent to 4.93cm^3. Therefore, the weight of 1tsp or 4.93cm^3 of olive oil equates to 4.5g.
Water has a density of 1g/cm^3. 1 ¼ cup of water is equivalent to 296cm^3. Therefore, 1 ¼ cup water weighs 296g.
A teaspoon of salt weights 6.08g as evidenced by Aqua-calc.com.
The total weight for the tortilla composition equates to 842g. The gluten free flour mix (quinoa flour, brown rice flour) comprises 64% (536/842) of the composition, water comprises 35% (296/842).
The 36th avenue does not specifically teach the presence of oat flour in the gluten free flour mixture. However, Hillson teaches a chart of gluten free flours, categorizing each one as neutral (light), high protein, or high fiber (p.2). Hillson teaches that one can exchange flours that are in the same category since the properties of these flours will be similar and serve the same function in building structure in a particular recipe. Specifically, Hillson teaches that quinoa flour and oat flour are both high protein flours. Hillson also teaches that oat flour adds taste, texture, and structure to a composition. Therefore, it would have been obvious to exchange some of the quinoa flour for oat flour since they are recognized by Hillson as equivalents and because oat flour is known to add taste, texture, and structure to a composition.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated 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. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Thus, it would have been within the realm of ordinary skill in the art to combine three commonly known gluten free flours (oat flour, quinoa flour, and brown rice flour) to arrive at the applicant’s invention.
Even with the partial substitution of oat flour for quinoa flour, the total amount of three flours would equate to 64% as calculated above, assuming an even weight for weight exchange. As calculated by the applicant in parent case 15/419,474, even a complete volume for volume exchange of quinoa for oat flour, the gluten free mix would account for 60.2% of the tortilla composition, which is over the claimed range of 50 to 60%.
However, Zhang teaches a gluten free tortilla composition that comprises a preferred range of 45 to 55% gluten free flour mix (paragraphs 20, table 1). Zhang also teaches that “It is believed that "fine tuning" of the amount of salt and water in the dough would be within the ability of one of ordinary skill in the art” (paragraph 25).
Therefore, it would have been obvious to adjust the amount of water and gluten free flour mix in The 36th Avenue to the amount of 45 to 55% as taught in Zhang since this is a known amount of flour that can yield an acceptable gluten free tortilla and because the concept of adjusting the amount of flour and water in a dough based composition is well known in the art. One of ordinary skill in the amount could easily adjust the amount of flour and water in order to achieve a dough that can be effectively kneaded and shaped into a gluten free tortilla.
The 36th Avenue teaches that the tortilla composition comprises 11% rice flour (96/842) and 52% (440/842) quinoa flour. As stated above, it would have been obvious to replace some of the quinoa flour with oat flour since they are considered equivalents according to Hillson. Nonetheless, the references in combination do not teach from 17 to 20% of each of the three flours.
However, it would have been obvious to adjust the amount of each flour component depending on the desires of the consumer. Specifically, Hillson teaches that rice flour is considered a neutral(light) flour and quinoa flour and oat flour are considered high protein flours(chart p.2). Therefore, if one desired a more neutral (light) taste, it would have been obvious to have more rice flour. Likewise, if one desired a higher protein content, it would have been obvious to have more quinoa flour and/or oat flour.
Also, Hillson teaches specific properties and advantages of each flour on the chart on p. 3-4. Specifically, rice flour is high in fiber and nutrients, quinoa flour has a delicate nutty flavor similar to wild rice, and oat flour adds taste, texture, and structure to a composition. Based on these known properties, it would have been obvious to adjust the amount of each flour in the gluten free tortilla composition
The 36th avenue teaches the tortillas are “flexible and strong enough to hold your filling”(p.2) but does not specifically teach the gluten-free tortilla has a toughness of about 300 to about 500g for Day 0 or an extensibility of about 13 to about 16.5mm for Day 0.
However, Zhang teaches a gluten free tortilla composition that comprises 0.05 to 1.5wt% of hydrocolloid in the form of xanthan gum (paragraphs 20, 22). Zhang teaches that the xanthan gum is important to dough strength, since it is well known in the art that gluten free compositions lack the important cohesiveness normally provided by gluten. Therefore, it would have been obvious to include 0.05 to 1.55% of xanthan gum in the gluten free tortilla of The 36th Avenue.com since it provides strength to the dough as taught in Zhang.
Furthermore, Zhang teaches the presence of enzymes in the gluten free tortilla(paragraph 28) in order to “improve dough machinability and product texture”. It would have been obvious to include enzymes in with the gluten free tortilla of The 36th Avenue in order to improve dough machinability and product texture.
Since both enzymes and xanthan gum are taught in Zhang to provide strength and extensibility similar to gluten containing tortillas, it would have been obvious to adjust the amounts of enzymes and xanthan gum in order to provide the claimed strength and extensibility.
Regarding claim 4, The 36th Avenue.com teaches 6.08 g of salt out of a total composition weight of 842. This equates to a concentration of 0.7%. While this is not exactly 1 to 2% as claimed, it would have been obvious to modify the amount of salt depending on the taste preferences of the consumers since salt is a common ingredient with a well-known taste profile.
Regarding claims 11,12, The 36th avenue.com teaches mixing all the ingredients to form a dough, flattening the dough, then frying the tortilla dough to form a tortilla composition. The 36th Avenue does not specifically teach the order of steps as claimed.
However, Zhang teaches a method of preparing gluten free tortillas comprising the steps of (table 1, paragraphs 14, 33, 36, and 44):
A. Providing and mixing a dry composition including a gluten free flour mixture comprising 35-65% of the composition. The dry composition can include an enzyme. Zhang teaches that the mixing is done using “gentle mixing” which one of ordinary skill in the art would interpret at “low speed” as claimed. Zhang further teaches that an enzyme can be included for annealing(paragraph 28).
B. Mixing liquid ingredients including water in an amount of 30% of the composition. Zhang teaches that the mixing is done using “gentle mixing” which one of ordinary skill in the art would interpret at “low speed” as claimed.
C. Mixing the dough
D. Forming the dough into quantities of individual tortilla pieces having a thickness of 4-16mm, which overlaps the claimed range of 1-5mm and renders it obvious
E. Baking the tortilla pieces to form finished gluten-free tortillas
It would have been obvious to prepare the gluten free tortillas of The 36th Avenue.com using the method of Zhang since this is a known method of preparing acceptable gluten free tortillas.
Zhang teaches mixing the dough ingredients using any suitable apparatus(paragraph 33) to a desired consistency but does not specifically teach that the mixing is done at high speed. However, it would have been obvious to mix the dough at high speed since dough is known to be tough and require a fair bit of kneading. It would have been obvious to adjust the speed of the mixing in order to achieve the proper consistency desired.
36th Avenue.com teaches that the tortilla composition comprises 11% rice flour (96/842) and 52% (440/842) quinoa flour. As stated above, it would have been obvious to replace some of the quinoa flour with oat flour since they are considered equivalents according to Hillson. It would have been obvious to adjust the amount of each flour component depending on the desires of the consumer. Specifically, Hillson teaches that rice flour is considered a neutral l (light) flour and quinoa flour and oat flour are considered high protein flours. If one desired a more neutral (light) taste, it would have been obvious to have more rice flour while if one desired a higher protein content it would have been obvious to have more quinoa flour and/or oat flour.
Also, Hillson teaches specific properties and advantages of each flour. Specifically, rice flour is high in fiber and nutrients, quinoa flour has a delicate nutty flavor similar to wild rice, and oat flour adds taste, texture, and structure to a composition. Based on these known properties, it would have been obvious to adjust the amount of each flour.
The 36th avenue does not specifically teach the gluten-free tortilla has a toughness of about 300 to about 500g for Day 0 or an extensibility of about 13 to about 16.5mm for Day 0.
However, Zhang teaches a gluten free tortilla composition that comprises 0.05 to 1.5wt% of hydrocolloid in the form of xanthan gum (paragraphs 20, 22). Zhang teaches that the xanthan gum is important to dough strength, since it is well known in the art that gluten free compositions lack the important cohesiveness normally provided by gluten. Therefore, it would have been obvious to include 0.05 to 1.55% of xanthan gum in the gluten free tortilla of The 36th Avenue.com since it provides strength to the dough as taught in Zhang.
Furthermore, Zhang teaches the presence of enzymes in the gluten free tortilla(paragraph 28) in order to “improve dough machinability and product texture”. It would have been obvious to include enzymes in with the gluten free tortilla of The 36th Avenue in order to improve dough machinability and product texture.
Since both enzymes and xanthan gum are taught in Zhang to provide strength and extensibility similar to gluten containing tortillas, it would have been obvious to adjust the amounts of enzymes and xanthan gum in order to provide the claimed strength and extensibility.
Regarding claim 13, The 36th Avenue.com teaches 6.08 g of salt out of a total composition weight of 842. This equates to a concentration of 0.7%. While this is not exactly 1 to 2% as claimed, it would have been obvious to modify the amount of salt depending on the taste preferences of the consumers since salt is a common ingredient with a well-known taste profile.
Claim 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over The 36thAvenue.com(Gluten Free Quinoa Tortillas) in view of Hillson(How to Build A Gluten Free Flour Blend) and Zhang(US 20100015279) further in view of Savvy Vegetarian.com(Homemade GF Flatbread or Tortilla Recipe, as provided by the applicant) .
Regarding claim 8, The 36th Avenue teaches that the tortilla is free of gluten protein and a leavener but does teach the presence of a fat(olive oil).
However, The Savvy Vegetarian aka “Savvy” teaches gluten-free tortillas comprising 1 cup millet flour, 3/4 cup oat flour, 1/3 cup tapioca flour, 1/3 cup arrowroot flour, 1/3 cup chickpea flour, ¼ cup rice flour, 1 teaspoon xanthan gum, 1 teaspoon salt, 2 tablespoons olive oil, 1 and ¼ cup water, and 2 tablespoons lemon juice, 2 tablespoons ground flax seed(p.1, ingredients). Savvy teaches that the product can be made oil-free for a crispier product(p.2). Therefore, it would have been obvious to modify The 36th Avenue with Savvy by excluding the oil in order to provide a lower calorie and crispier product.
Claims 9,10,18,19 is/are rejected under 35 U.S.C. 103 as being unpatentable over The 36thAvenue.com(Gluten Free Quinoa Tortillas) in view of Hillson(How to Build A Gluten Free Flour Blend) and Zhang(US 20100015279) further in view of Griebel (US 2014/0377424).
Regarding claims 9 and 10, The36th Avenue.com and Hillson do not specifically teach that the gluten free tortilla is a soft shaped tortilla in one of the claimed shapes and that it is sufficiently baked/cooked to maintain its shape at room temperature. However, Griebel teaches a tortilla that holds a preformed shape such as a boat, bowl, U shaped, tube, envelope or cone (paragraph 57) in room temperature by cooking/baking(paragraph 84). Griebel further teaches that the tortilla can be made out of gluten free flour (paragraph 70). Griebel teaches that the preformed shape of the tortilla makes it less messy and easier for the consumer to eat (paragraph 4). It would have been obvious to make the gluten free tortilla of The36thAvenue.com, Hillson and Zhang comprise a preformed shape as taught in Griebel in order to make the tortilla less messy and easier for the consumer to eat.
Claim 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over The 36thAvenue.com(Gluten Free Quinoa Tortillas) in view of Hillson(How to Build A Gluten Free Flour Blend) and Zhang(US 20100015279) further in view of Iturbe et al(Shelf-life of tortilla extended with fungal amylases).
The 36th Avenue, Hillson, and Zhang are silent on the use of alpha amylase in the gluten free tortilla. However, Iturbe teaches that alpha amylase prevents starch retrogradation and stalling in gluten-free(corn) tortillas, thus improving shelf life(p.508, conclusion). It would have been obvious to include alpha amylase in the gluten free tortillas of The 36th Avenue, Hillson, and Zhang in order to extend the shelf life of the tortilla product.
Response to Arguments
Applicant's arguments filed 12/26/2025 have been fully considered but they are not persuasive.
The applicant argues that The 36th avenue does not teach toughness and extensibility. However, the instant spec(para 33) describes extensibility and toughness as follows.
“As shown in Table 2, the toughness and extensibility of the present gluten-free tortillas is advantageously more similar to that of wheat flour tortillas than the toughness and extensibility of corn masa tortillas. For purposes of this disclosure, toughness refers to resistance to extension. It is measured in grams and is related with the maximum strength registered. Toughness measurement gives information about the tortilla resistance, such as how the tortilla would resist loading or filling without breaking. Extensibility is a measure of the distance for the tortilla to break. In particular, the extensibility measurement gives information about the tortilla elasticity, i.e., deformation of the tortilla without breaking.”
Likewise, The 36th avenue teaches the tortillas are “flexible and strong enough to hold your filling”(p.2). While The 36th avenue is silent on the value of toughness, the teaching of flexibility and strength indicates that the tortilla has a high level of toughness similar to a conventional gluten containing tortilla. This disclosure also shows that the tortilla would have level of flexibility, which is similar to extensibility
Furthermore, Zhang suggests that enzymes and xanthan gum “Xanthan gum is important to dough strength” and that gums allow the dough to be sheeted without tearing (para 20). This teaching suggestions that the tortilla would also have sufficient toughness and extensibility as claimed.
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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/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791
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