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 .
Response to Amendment
The amendment filed 10/07/2025 has been entered. Claims 1, 4, 9, 11-12, 14-18, and 20 remain pending in the application. Claims 11-12, 14-15, and 17-18 are withdrawn. Claims 1, 4, 9, 16, and 20 are rejected.
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 in batches 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. Rawls further teaches (Paragraph 0035) embodiments wherein the pre-soaking step may be accomplished in batches. 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 in batches 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) in batches 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, since dyeing the grains a particular color can influence a consumers perception of how the food product will taste, since a contrast between the grains and the dough can satisfy a variety of consumer preferences in food appearance, and since dyeing the grains in batches would allow for precise control over the amount of dyed grains produced to meet consumer demands and allow different batches of grains to be dyed for different amounts of times if multiple types of grains or multiple types of dyes are used (where different types of grains may benefit from more or less time soaking (Rawls, Paragraph 0035)).
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).
Claim(s) 20 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 Caws (US 20140030376 A1).
Caws teaches (Paragraph 0015, 0018, 0046) a method of producing a ready to eat food product comprising millet, wherein the millet may be puffed prior to incorporation into the food product, and typically the food product is baked in an oven. Caws further teaches (Paragraph 0052) exemplary embodiments include cookies produced by mixing ingredients including puffed millet to form dough that is subsequently baked.
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 use puffed millet as the puffed wholegrains (e.g., as a substitute for, or in addition to puffed amaranth) since both are directed to baked dough products comprising puffed wholegrains, since adding millet to dough and baking the dough is known in the art as shown by Caws, since millet can provide a protein content close to wheat but contains no gluten, making it an appropriate food for those with Celiac disease, or other forms of allergies (Caws, Paragraph 0017), since millet is advantageously, rich in B vitamins, especially niacin, B6 and folic acid, as well as calcium, iron, potassium, magnesium and zinc (Caws, Paragraph 0017), and since some consumers will prefer the taste, texture, and/or appearance of puffed millet to other ingredients.
Furthermore, the substitution or use of millet as the puffed wholegrain would have been obvious to one of ordinary skill in the art since the inclusion of amaranth, a puffed wholegrain, in bread is known in the art from Breadsong, since the use of puffed millet as a wholegrain included in a baked dough product is known in the art from Caws, and since substitution of one known element for another yields predictable results to one of ordinary skill in the art (See MPEP 2143 I. B.).
Response to Arguments
Applicant's arguments filed 06/11/2026 have been fully considered but they are not persuasive.
Regarding the Applicant’s argument that one of ordinary skill in the art would not have had any suggestion or motivation to combine Rawls, Robson and Breadsong since Rawls describes only coloring grain, not puffed wholegrains, as part of a method of producing a snack food chip, whereas Robson teaches dyeing puffed wheat for sensory play, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, as stated above with regard to claim 1, it would have been obvious to one of ordinary skill in the art to modify Breadsong to soak puffed wholegrains in one or more dyes in batches 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) in batches 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, since dyeing the grains a particular color can influence a consumers perception of how the food product will taste, since a contrast between the grains and the dough can satisfy a variety of consumer preferences in food appearance, and since dyeing the grains in batches would allow for precise control over the amount of dyed grains produced to meet consumer demands and allow different batches of grains to be dyed for different amounts of times if multiple types of grains or multiple types of dyes are used (where different types of grains may benefit from more or less time soaking (Rawls, Paragraph 0035)).
In response to the Applicant’s argument that the utility of Robson is quite different from Rawls and Breadsong, the Examiner notes 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 Breadsong and Robson are directed to production of products comprising puffed grains, making the teaching of Robson pertinent to the problem of the claimed invention and Breadsong of producing food products comprising puffed grains. While the intended use of the puffed grains of Robson is not for incorporation into bread, incorporation of puffed wholegrains into bread is already known from Breadsong, and the use of colored grains in a food product is known from Rawls. Consequently, one of ordinary skill in the art would recognize that coloring the puffed grains would be desired for the reasons stated above with regard to claim 1, and that there would be a reasonable expectation of success in incorporating colored puffed grains into a bread, since incorporation of puffed grains into bread is known from Breadsong and since incorporation of colored grains into a dough product is known from Rawls.
Regarding the Applicant’s argument that Robson is not concerned with the preparation of food, let alone bread; that Robson describes the use of expired cereals and (non-edible) liquid watercolors to make play beads; and that Robson merely supposes that the dyes could be substituted with food coloring ("I imagine you could substitute food coloring"), but only in the context of making beads for sensory play, not food products, and there is no teaching, suggestion or motivation in Robson that the dyed cereals could be used in the making of bread or any dough-based product, the Examiner notes that the puffed wheat cereal disclosed in Robson is itself a food product, even if not intended to be consumed, that the expired cereal was simply used in an example process in Robson, and no indication is made that unexpired puffed grains could not be dyed, that no indication is made that liquid watercolors are inedible, and that simply indicating that food dyes could be used constitutes disclosure that such a process is known in the prior art. Furthermore, it is already known the from Rawls that wholegrains can be dyed and added to consumable products. Robson simply provides further evidence that the puffing process would not prevent the wholegrains from being dyed. Additionally, Breadsong teaches that puffed wholegrains can be used in bread and Rawls teaches that dyed wholegrains cam be used in dough products. When considering the prior art as a whole, the inclusion of dyed, puffed wholegrains would be obvious to one of ordinary skill in the art for the reasons stated above with regard to claim 1.
In response to the Applicant’s argument that the coloring techniques described by Rawls are not suitable for dyeing puffed wholegrains since Rawls describes that coloring is done while the grain is cooked in a heated cooking solution, and since it is believed by Applicant that heated cooking solutions or hot water are not suitable for dyeing puffed wholegrains because such hot liquids would be absorbed too quickly and cause the puffed wholegrains to collapse or become soggy, which is undesirable, the Examiner notes that the temperature of the dyes in the soaking step is not a claimed feature of the invention, and the Applicant has provided no evidence to substantiate the claim that “hot” water is not suitable for dyeing puffed wholegrains. No temperature range is provided to define what the Applicant considers “hot water”. Furthermore, the effects of a heated liquid would depend upon the length of the dying step which is also not limited by the claimed invention. Additionally, coloring the grains in heated cooking solution appears to simply be a preferred embodiment, rather than being essential to the dying process of Rawls.
Regarding the Applicant’s argument that Robson's method of dyeing, which uses a large zipper seal bag and manual agitation, would not be an obvious inclusion to the industrial process taught by Rawls, that the bread recipe taught by Breadsong, which is intended for an individual using common kitchen appliances, is quite different from Rawls's method involving processing conditions and industrial equipment, such as a sheeting machine, for the mass production of snack food chips, that the conditions and equipment needed for large-scale chip manufacture are significantly different from those required for bread-making on a small-scale, and that there is no disclosure in either Rawls or Robson of "soaking puffed wholegrains in one or more dyes in batches the Examiner notes 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). Furthermore, the Applicant has not defined what is meant by “industrial process”, nor does Rawls, a secondary reference appear to be limited to “industrial processes” nor does Breadsong appear to limit the type of equipment that can be used in production of the bread product. Rawls describes that (Paragraph 0035) the pre-soaking step may be accomplished in batches or in a continuous environment, but manual agitation in zipper seal bags could also be performed in batches. Moreover, not every feature of a secondary reference need be incorporated into the primary reference. In this case, one of ordinary skill in the art would clearly recognize that the process dyeing puffed wholegrains disclosed by Robson is not dependent upon the use of zipper seal bags and manual agitation for success. Additionally, Rawls does not appear to use the word “industrial”, but regardless, the scale of the process in examples of Rawls does not mean the method dyeing grains is only applicable at certain scale.
In response to the Applicant’s argument that the claimed drying step with agitation reduces the volume and increases the density of the wholegrains, and it is believed the drying step changes the physical properties of the wholegrains, making them denser and harder than the original puffed wholegrain, and the resulting wholegrains are better suited to withstand kneading than the original puffed wholegrains, and without the drying step, puffed wholegrains may disintegrate during kneading, while Reading only mentions drying cereals (among other things such as nuts, beans, and fruit stone kernels) to be subsequently "applied and adhered to the chocolates, bon-bons, or other sweetmeats, biscuits, or the like, similarly as is done at present," (Reading, page 2, lines 22 to 24), and that Reading's dried cereals are used to decorate a finished product (not bread) and are not meant to undergo a kneading step, and that there is also no indication that Reading's cereals are puffed cereal, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Furthermore, in consideration of the prior art as a whole, in view of Breadsong, which teaches a puffed cereal mixed into a bread product and Sroka, which teaches kneading solid inclusions into dough, one of ordinary skill in the art would recognize that the dying process of Reading to produce dried grains would be compatible with a process of kneading grains, including puffed grains, into a bread dough, even if Reading is silent on a kneading step. Furthermore, the Applicant has not explained on what basis the drying process of Reading would be incompatible with a subsequent kneading step.
Regarding the Applicant’s argument that Hansa is not related to bread making, but rather to preparation of coated, uncooked oat flake products, while the agitation step of the claimed invention is for preserving separate dyed puffed wholegrains suitable for later incorporation into bread dough while maintaining discrete visual appearance after baking, the Examiner notes 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 teaches a method of producing a bread containing puffed wholegrains, and dying puffed whole grains would be obvious in view of Rawls and Robson as shown above with regard to claim 1. While the oat flakes of Hansa are not identical to puffed wholegrains, both are solid particulates produced from grain products, and one of ordinary skill in the art would clearly recognize that the process of agitating while drying of Hansa would be applicable to puffed wholegrains, and obvious for the reasons stated above with regard to claim 1. This is further evidenced by the drying process of Reading, while shows that dyed grain products can be successfully dried. Additionally, the Applicant has not explained on what basis the drying and agitation process of Hansa would be incompatible with a subsequent kneading step. The fact that oat flakes are not exactly the same as puffed wholegrains is not enough to demonstrate non-obviousness, absent a demonstration that differences between the two ingredients are critical to the drying process.
In response to the Applicant’s argument that Sroka teaches kneading walnuts and raisins rather than dyed puffed wholegrains, the Examiner maintains that 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). Breadsong teaches mixing puffed wholegrains with dough prior to baking, but is silent on whether such mixing occurs during kneading. In consideration of Sroka, one of ordinary skill in the art would find it obvious to mixed the puffed wholegrains during kneading in the same manner as the walnuts and raisins in Sroka for the reasons stated above with regard to claim 1. Additionally, the Applicant has not explained on what basis the kneading of Sroka would be incompatible puffed wholegrains. The fact that walnuts and raisins are not exactly the same as puffed wholegrains is not enough to demonstrate non-obviousness, absent a demonstration that differences between the two ingredients are critical to the kneading process.
Regarding the Applicant’s argument that, in seeking to develop a method of making bread with colored wholegrains where there is no color bleeding, a 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, it is noted 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.
Applicant’s arguments, with respect to claims 20, regarding the use of puffed millet, have been fully considered and are persuasive. However, claim 20 is a newly added claim, and upon 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), and further in view of Caws (US 20140030376 A1), as shown above.
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).
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
For the reasons stated above, claim 1 and all dependent claims remain rejected under 35 USC 103.
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 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.
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/AUSTIN PARKER TAYLOR/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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