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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/05/2025 has been entered.
Response to Amendment
The amendment filed 10/07/2025 has been entered. Claims 1, 4, 9, 11-12, and 14-18 remain pending in the application. Claims 11-12, 14-15, and 17-18 are withdrawn. Applicant’s amendments to the Claims have overcome each and every 112(b) rejection previously set forth in the Non-Final Office Action mailed 12/10/2024.
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.
Claim(s) 1 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breadsong (Amaranth "Happiness" Bread . . .) in view of Rawls (US 20100203212 A1), Robson (Rainbow Puffed Wheat), Reading (GB 155724 A), Hansa (US 20010008646 A1), and Sroka (US 20030035857 A1).
Regarding claim 1, Breadsong teaches (Page 2) a method of preparing amaranth “happiness” bread wherein ingredients, including puffed amaranth (puffed wholegrains), are mixed with developed dough which is subsequently proofed and baked.
Breadsong is silent on of the wholegrains being colored wholegrains that are distinct in color to dough forming the bread when baked. Breadsong is further silent on soaking puffed wholegrains in one or more dyes to provide coloured puffed wholegrains. Also, Breadsong is silent on drying the puffed wholegrains and agitating them while drying to prevent the puffed wholegrains from clumping. Additionally, Breadsong is silent on adding the coloured puffed wholegrains to dough during a kneading process.
Rawls teaches (Paragraph 0003, 0025) a method of producing prepared food products and, more particularly, to an improved snack food chip made from dough containing a cooked and distinctly colored grain, wherein the grain may be colored with a colorant (dye) in association with a pre-soaking step. Also, Rawls teaches (Paragraph 0025) coloring the grains can impart a color to the cooked grain that makes it visually distinct from a primary color of the dough. Furthermore, Rawls teaches (Paragraph 0003, 0037) the snack food chip contains a cooked and distinctly colored grain and the resulting snack food chip may beneficially have whole grain kernels that are much more visually distinct from the remainder of the chip than in the absence of coloring, indicating that the grains remain distinct in color to the dough when cooked.
While Rawls is not directed specifically to puffed grains, coloration of puffed grains is known, for example Robson teaches preparation of rainbow puffed wheat by coating puffed wheat cereal with mixture of water and liquid water colors or food coloring.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to soak puffed wholegrains in one or more dyes to provide coloured puffed wholegrains that are distinct in color to the dough forming the bread when baked in view of Rawls and Robson, since each of Breadsong, Rawls, and Robson are directed to methods of preparing products comprising cereal grains, since both Breadsong and Rawls are directed to methods of preparing dough based food products including grains, since coloring grains by soaking the grains in colorant (dye) to be used in a dough based food product wherein the grains are distinct in color to the dough forming the product when cooked is known in the art as shown by Rawls, since coloring puffed grains is known in the art as shown by Robson, since coloring the grains can impart a color to the cooked grain that makes it visually distinct from a primary color of the dough (Rawls, Paragraph 0025) making the product more noticeable and appealing to a consumer, since coloring the grains can make the consumer aware that the grains are present in the food composition by preventing the grains from blending in with the dough visually, since coloring the grains can satisfy a variety of consumer preferences in food color, and since dyeing the grains a particular color can influence a consumers perception of how the food product will taste, and since a contrast between the grains and the dough can satisfy a variety of consumer preferences in food appearance.
Reading teaches (Page 1, lines 7-34) a method of making sweetmeats, cakes, biscuits, or the like, wherein nuts or cereals such as maize are colored by immersion in dye liquid, followed by drying in a hot chamber or apparatus, and then application to the sweetmeats, biscuits, or the like.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to dry the puffed wholegrains prior to addition to the dough in view of Reading, since both are directed to methods of preparing dough based products with the addition of dyed particulates including grains, since drying dyed particulates prior to addition to a subsequent food product component is known in the art as shown by Reading, since drying the wholegrains prior to addition to dough will prevent the dye from bleeding into the dough, ensuring that the wholegrains do not lose any color and the dough remains its original color, preserving the contrast between the wholegrains and the dough, and since drying the wholegrains prevents dyes from mixing if multiple colors of wholegrains are used, preventing the undesired color mixes and preserving the intended dye color for the wholegrains.
Hansa teaches (Paragraph 0002, 0023, 0048) methods of making the coated, uncooked oat flake products, wherein the coating may comprise colorants, and wherein the coated oat flakes can be agitated during drying and/or cooling to prevent unwanted agglomeration or clumping.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to agitate the puffed wholegrains while drying to prevent the puffed wholegrains from clumping in view of Hansa since both are directed to methods of preparing food products containing grain-based particulates, since agitating a grain-based particulate while drying to prevent clumping after coloring is known in the art as shown by Hansa, since agitating while drying to prevent clumping will ensure that the grains dry evenly and prevent liquid from being trapped between grains, which will decrease the time it takes for drying, since agitating while drying to prevent clumping will ensure that grains are evenly covered in dye so that the coloration is consistent between grains, and since agitation while drying to prevent clumping will allow the grains to be evenly dispersed upon addition to the dough, ensuring a consistent taste, texture, and appearance for the resulting food product.
Sroka teaches (Paragraph 0002, 0051) a system of process steps and mixes of ingredients for improving the making of bread, wherein walnuts and raisins are kneaded into dough that is subsequently baked into bread.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to add the puffed whole grains to the dough during a kneading process in view of Sroka since both are directed to methods of preparing bread by adding solid inclusions to dough, since adding solid inclusions to dough during a kneading process is known in the art as shown by Sroka, since adding the puffed whole grains during a kneading process would ensure that the puffed wholegrains are thoroughly mixed through the dough so that the resultant food product has a consistent taste, texture, and appearance, and since adding the puffed wholegrains during kneading simplifies the process by removing the need for an additional mixing step.
Regarding claim 16, Breadsong is silent on the puffed wholegrains being soaked in dyes of different colours to provide puffed wholegrains of different colours.
Rawls teaches (Paragraph 0003, 0025) a method of producing prepared food products and, more particularly, to an improved snack food chip made from dough containing a cooked and distinctly colored grain, wherein the grain may be colored with a colorant (dye) in association with a pre-soaking step. Rawls further teaches (Paragraph 0037) an embodiment wherein red and green colors are used for chips sold during the Christmas season.
While Rawls is not directed specifically to puffed grains, coloration of puffed grains is known, for example Robson teaches preparation of rainbow puffed wheat by coating puffed wheat cereal with mixture of water and liquid water colors or food coloring, wherein multiple different colors are provided as shown in the images of Robson.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to soak puffed wholegrains in dyes of different colors to provide puffed wholegrains of different colors in view of Rawls and Robson, since each of Breadsong, Rawls, and Robson are directed to methods of preparing products comprising cereal grains, since both Breadsong and Rawls are directed to methods of preparing dough based food products including grains, since coloring grains by soaking the grains in different colorants (dyes) to be used in a dough based food product is known in the art as shown by Rawls, since coloring puffed grains different colors is known in the art as shown by Robson, since coloring the grains can impart a color to the cooked grain that makes it visually distinct from a primary color of the dough (Rawls, Paragraph 0025) making the product more noticeable and appealing to a consumer, since coloring the grains different colors can make the consumer aware that the grains are present in the food composition by preventing the grains from blending in with the dough visually, since coloring the grains different colors can increase the number of variations of appearance for the food product, satisfying a variety of consumer preferences in food color, since some consumers prefer multicolored food products, and since dyeing the grains different colors can influence a consumers perception of how the food product will taste.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breadsong (Amaranth "Happiness" Bread . . .) in view of Rawls (US 20100203212 A1), Robson (Rainbow Puffed Wheat), Reading (GB 155724 A), Hansa (US 20010008646 A1), and Sroka (US 20030035857 A1), and further in view of Myers (US 20040202755 A1) and Hall (How to Make Homemade Rainbow Coconut Sprinkles).
Regarding claim 4, Breadsong, as modified above, is silent on more than one color of the puffed wholegrains being provided. Breadsong is further silent on the puffed wholegrains of more than one color being mixed together according to a predetermined mixture proportion, before being added to the dough or batter.
Rawls teaches (Paragraph 0003, 0025) a method of producing prepared food products and, more particularly, to an improved snack food chip made from dough containing a cooked and distinctly colored grain, wherein the grain may be colored with a colorant (dye) in association with a pre-soaking step. Rawls further teaches (Paragraph 0037) an embodiment wherein red and green colors are used for chips sold during the Christmas season.
While Rawls is not directed specifically to puffed grains, coloration of puffed grains is known, for example Robson teaches preparation of rainbow puffed wheat by coating puffed wheat cereal with mixture of water and liquid water colors or food coloring, wherein multiple different colors are provided as shown in the images of Robson.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to provide puffed wholegrains of more than one color in view of Rawls and Robson, since each of Breadsong, Rawls, and Robson are directed to methods of preparing products comprising cereal grains, since both Breadsong and Rawls are directed to methods of preparing dough based food products including grains, since providing more than one color of grains to be used in a dough based food product is known in the art as shown by Rawls, since coloring puffed grains different colors is known in the art as shown by Robson, since coloring the grains can impart a color to the cooked grain that makes it visually distinct from a primary color of the dough (Rawls, Paragraph 0025) making the product more noticeable and appealing to a consumer, since coloring the grains more than one color can make the consumer aware that the grains are present in the food composition by preventing the grains from blending in with the dough visually, since coloring the grains more than one color can increase the number of variations of appearance for the food product, satisfying a variety of consumer preferences in food color, since some consumers prefer multicolored food products, and since dyeing the grains more than one color can influence a consumers perception of how the food product will taste.
Myers (Paragraph 0003, Paragraph 0022) teaches coloring flakes for use in the surface treatment of confection pieces and more specifically compositions and methods related to producing confection pieces with speckled coloring, wherein the colors and the relative number (proportion) of flakes having a given color in a distribution of coloring flakes may be tailored (predetermined) to produce a broad range of speckling patterns and intensities.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong, as modified above, to provide a predetermined mixture proportion of puffed wholegrains of more than one color in view of Myers since both are directed to methods of adding particulates to a food product, since providing a mixture of colors of particulates of a predetermined proportion to add to a food product is known in the art shown by Myers, since tailoring the colors and the relative number (proportion) of flakes having a given color in a distribution of coloring flakes can produce a broad range of speckling patterns and intensities (Myers, Paragraph 0022) which can satisfy a variety of consumer preferences in appearance and color, since controlling the proportion of colors will ensure consistency in appearance of the final product, and since controlling the proportion of colors will prevent a particular color of particulate from running out or being produced in excess.
It is noted that Myers does not explicitly state that the colored particulates are mixed together before being added to the dough or batter. However, premixed mixtures of multicolor particulates for addition to food products are well-known in the art. For example, Hall teaches (Instructions) a method of preparing rainbow coconut sprinkles wherein 4 bowls of 20 grams each of desiccated coconut are separately colored yellow, red, blue, and green; baked and dried; and then mix together and placed in a container for subsequent use.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong to mix the puffed wholegrains of multiple colors together prior to addition to the dough or batter in view of Hall, since both are direct to methods of providing particulates for addition to a food product, since mixing together different colored food particulates is known in the art as shown by Hall, since mixing the colors prior to addition to the dough will ensure that the colors are evenly distributed through the dough for a consistent appearance in the final food product, and since mixing before adding to the dough or batter allow a particular combination of colors in a set proportion to be stored for later use so that addition to the dough or batter can be done at a user’s convenience while ensuring that the colors in the desired proportions are available at the required time.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Breadsong (Amaranth "Happiness" Bread . . .) in view of Rawls (US 20100203212 A1), Robson (Rainbow Puffed Wheat), Reading (GB 155724 A), Hansa (US 20010008646 A1), and Sroka (US 20030035857 A1), and further in view of Beranbaum (Punching Down, Shaping, and the Final Rise).
Regarding claim 9, Breadsong as modified above, is silent said dough being punched prior to baking.
Sroka teaches (Paragraph 0002, 0051) a system of process steps and mixes of ingredients for improving the making of bread, wherein walnuts and raisins are kneaded into dough that has been punched down and that is baked after the punching and kneading processes.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Breadsong, as modified above, to punch the dough prior to baking as taught by Sroka since both are directed to methods of preparing bread containing solid inclusions, since punching the dough prior to baking is known in the art as shown by Sroka, since punching dough is a well-known and common procedure in preparing baked dough products, since punching dough prevents the dough from overproofing (Beranbaum, Punching Down and Turning Dough), and since, if bread is allowed to rise to more than double its size, the gluten will stretch to the point of collapse and will no longer be able to hold the gas bubbles that provide necessary structure for the loaf (Beranbaum, Punching Down and Turning Dough).
Response to Arguments
Applicant’s arguments, see pages 5-8, filed 10/07/2025, with respect to the rejection(s) of claim(s) 1 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, these arguments have been made in view of amendments to claim 1, and, upon further consideration, a new ground(s) of rejection is made over Breadsong (Amaranth "Happiness" Bread . . .) in view of Rawls (US 20100203212 A1), Robson (Rainbow Puffed Wheat), Reading (GB 155724 A), Hansa (US 20010008646 A1), and Sroka (US 20030035857 A1), as shown above.
The Applicant notes that Rawls is not directed to bread making, but is instead directed to making snack food chips. It is unclear if the Applicant is suggesting that Rawls is non-analogous art, but the Examiner maintains that it has been held that a prior art reference must either be in the field of the inventor' s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Rawls is directed to a method of making a dough-based food product containing colored grains. While this food product is not bread, both the claimed bread and the snack food chips of Rawls are dough based products containing colored grains, which renders Rawls reasonably pertinent to the particular problem with which the inventor was concerned, which is to also provide a visually distinct appearance to the grains to enhance visual appeal.
The Applicant further notes that Robson is not related to bread making, but “merely describes coloring puffed grains for sensory play.” It is unclear if the Applicant is suggesting that Robson is non-analogous art, but the Examiner maintains that it has been held that a prior art reference must either be in the field of the inventor' s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both Robson and the claimed invention are directed to methods of making products comprising colored puffed grains, which renders Robson reasonably pertinent to the particular problem with which the inventor was concerned, even if Robson is not directed making a bread product.
Additionally, the Applicant notes that Reading is not related to bread making, but rather to making sweetmeats, biscuits, cakes or the like. However, the Examiner maintains that biscuits are a type of bread, and cakes are, at minimum, baked dough products similar is ingredients, texture, and structure to bread.
Furthermore, the Applicant notes that Hansa is not related to bread making, but rather to preparation of coated, uncooked oat flake products. It is unclear if the Applicant is suggesting that Hansa is non-analogous art, but the Examiner maintains that it has been held that a prior art reference must either be in the field of the inventor' s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both Hansa and the claimed invention are directed to methods of making food products comprising colored grain-based particulates, which renders Hansa reasonably pertinent to the particular problem with which the inventor was concerned, even if Hansa is not directed making a bread product.
Additionally, the Applicant notes that Sroka is relied on for kneading and proofing, noting that walnuts and raisins are kneaded into bread, but, there is no disclosure of kneading and proofing with dyed grains, and walnuts and raisins are not dyed puffed wholegrains. However, the Examiner maintains that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, Breadsong discloses adding puffed whole grains to bread dough, and Rawls and Robson disclose coloring grains. In consideration with the addition of particulate food ingredients during kneading disclosed by Sroka, one of ordinary skill in the art would find it obvious add colored puffed wholegrains to the bread dough during kneading for the reasons stated above with regard to claim 1.
Regarding the Applicant’s argument that skilled person cannot be said to have had, at the priority date, a reasonable expectation of success in the combination of all of the above mentioned references, in particular because, each reference relates to production of its own specific product, and so there could be no expectation that certain specific steps from each reference could be successfully extracted and combined, to arrive at the claimed invention, the Examiner notes that the Applicant has not identified which steps from which references cannot be combined not identified why the combination of references would be unsuccessful. For example, both Breadsong and Rawls are directed to dough based food products containing grains. While the food products are not identical, the Examiner maintains that coloring the grains in Breadsong would be obvious and successful in view of Rawls do the similarities between the products. Similarly, the other secondary references provide teaching applicable to the method of Breadsong.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Regarding the Applicant’s argument that the claimed invention, allows for inclusion of colored whole grains without bleeding, the Examiner notes that the features upon which applicant relies (i.e., no color bleeding) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Additionally, Rawls teaches addition of colored grains to a dough product without indication of a problem with color bleeding, and one of ordinary skill in the art would recognize that drying processes, such as that disclosed by Reading and Hansa, would dry the colored puffed wholegrains and prevent color bleeding.
For the reasons stated above, claim 1 and all dependent claims remain rejected under 35 USC 103.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Sarah (gluten free muesli bread) teaches a method of preparing a gluten free muesli bread comprising puffed rice.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUSTIN P TAYLOR whose telephone number is (571)272-2652. The examiner can normally be reached M-F 8:30am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AUSTIN PARKER TAYLOR/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792