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 01/28/2026 has been entered. Claims 1-2, 5-6, 12-13, 21-23, 25-27, 29-30, 36-37, and 41-44 remain pending in the application. Claims 25-27,29-30,36-37 and 41-43 are withdrawn from consideration. Claims 1-2,5-6,12-13, 21-23, and 44 are rejected. Applicant’s amendments to the claims have overcome each and every 35 USC 112(a) rejection and 35 USC 112(b) rejection previously set forth in the Non-Final Office Action mailed 10/30/2025, except where otherwise stated.
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, 5, 6, 12-13, 21, 23, and 44 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dihel (US 20040121046 A1) in view of Smoot (WO 2019005861 A1) and Fujimura (US 20170208846 A1).
Regarding claim 1, Dihel teaches (Paragraph 0014-0015) providing a starch batter coating for coating a food portion, wherein the native source of the starch can be pea starch. Dihel further teaches (Paragraph 0022, 0024) the starch batter coating may be comprised of a single starch, or a combination of at least two starches, wherein minor amounts, 0.5 to 3.0%, of pre-gelatinized starches may be used to provide viscosity control and suspension of the solids in the batter. Also, Dihel teaches (Paragraph 0013-0014) the food portion is coated with a hydrocolloid prior to application of the starch batter. Since the hydrocolloid is applied to the food portion separately, before the starch batter, the starch batter itself is understood to be free of hydrocolloids. It is noted that, in some embodiments, (Paragraph 0037, 0039), dextrin is used in the batter. However, since dextrin is not a required material, (for example, claim 1 only requires the presence of starch in the starch batter coating), at least some embodiments of the batter of Dihel are understood to comprise less than 0.01% (w/w) of the dry weight in the batter mixture. Additionally, Dihel teaches (Paragraph 0025) optional additives for the starch batter include solvents such as water, and the starch may be in the form of a slurry. Furthermore, Dihel teaches (Paragraph 0022) the starch coating is typically applied by using a high solids starch dispersion, particularly a dispersion with a solids content of at least about 30% (which indicates that up to 70% of the dispersion is not solid, i.e. liquid). Therefore, Dihel, at minimum, suggests that the batter is a liquid mixture in some embodiments.
Dihel does not explicitly state that the pregelatinized pea starch has a granulometry characterized by an "n" value and "d" value according to German norm DIN 66 145, wherein the "n" value is from 1.2 to 1.8 and the "d" value is from 80 to 150 μm. Also, while Dihel teaches a composition comprising 0.5 to 3.0% of pre-gelatinized starches, Dihel does not clarify if the percentage of pre-gelatinized starch is a percentage of the dry weight of the batter. Furthermore, Dihel does not explicitly state that the batter mixture has fewer lumps compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch.
Smoot teaches (Paragraph 0007, 0008, 0047) a pregelatinized starch for use with food products, wherein, in embodiments, the pregelatinized starch is derived from peas. Smoot further teaches (Paragraph 0044) the pregelatinized starch (e.g., at least 75% or at least 90% by weight thereof) is in the form of individual sheet- or flake-like agglomerates, wherein drum-dried sheets can be ground to agglomerates hundreds of microns (e.g., 750 microns) in major dimension to provide a starch providing a pulpy texture to a food, down to on the order of 5-10 microns for a starch providing a smooth texture to a food, wherein, in some embodiments, the agglomerates of pregelatinized starch have a thickness (diameter) in the range of 20 microns to 100 microns (which overlaps with the claimed range of 80-150 μm). Smoot further teaches (Paragraph 0102, 0103) the starch can be used in a wide variety of foods including batters and breadings, wherein, the starch can be included in dry mixes in an amount of 0.1 -5% (which would constitute the percentage of the dry weight in a dry mix and which overlaps with the claimed range of 1 to 10% of dry weight).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel to provide a pre-gelatinized pea starch with a small particle size in the range of 20 to 100 micrometers (which overlaps with the claimed range of 80-150 μm) and a percentage of 0.1-5% based on dry weight as taught by Smoot since both are directed to compositions and methods of preparing compositions including batters, comprising pregelatinized starch, including pea starch, since providing a pre-gelatinized pea starch with a small particle size in the range of 20 to 100 micrometers and a percentage of 0.1-5% based on dry weight is known in the art as shown by Smoot, since a small particle size can provide a smooth texture to a food (Smoot, Paragraph 0044), making the food more palatable and easier to swallow for consumers, since a fine granulometry can ensure that the pregelatinized pea starch does not form undesirable clumps in the batter that are visually unappealing or that don’t mix well with other ingredients, since the amount and type of the starches provide the necessary texture and viscosity in the finished food product (Smoot, Paragraph 0103), so excessive starch can make the batter too viscous, while too little starch can render the batter unable to properly adhere to a food product, and since the amount of pre-gelatinized starch will affect the taste and nutritional effects of the batter.
Furthermore, the claimed percentage of the pregelatinized pea starch from 1 to 10% (w/w) of the dry weight in the batter mixture would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture and viscosity of the batter (where more pre-gelatinized starch would increase the viscosity of the batter), the desired taste and nutritional properties of the batter, the amount of other ingredients, the inclusion of other starches, the intended coloration of the batter, the type of food coated with the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed percentage of the pregelatinized pea starch from 1 to 10% (w/w) of the dry weight in the batter mixture that would render it non-obvious.
Additionally, the claimed "n" value from 1.2 to 1.8 and a "d" value from 80 to 150 μm according to German norm DIN 66145 for the pregelatinized pea starch would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the desired texture for the batter (where the size distribution of the particles will affect the texture of the resultant batter and, therefore, the texture of food products prepared with the batter, where different consumers have different preferences in texture, with some consumers preferring food products with smoother textures), the intended viscosity of the batter, the particle size of other batter ingredients (where similarly sized particles can mix more evenly and have similar textural properties), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed "n" value from 1.2 to 1.8 and a "d" value from 80 to 150 μm according to German norm DIN 66145 that would render it non-obvious.
Fujimura teaches (Paragraph 0001, 0024, 0032) a tempura batter mix, wherein the mix contains wheat flour and gelatinized starch, and 100 to 200 parts by mass of a liquid such as water to 100 parts by mass of the batter mix (i.e., 50 to 67% water or a liquid mixture).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to provide a liquid as taught by Fujimura since both are directed to batter products comprising gelatinized starch and water, since a liquid batter mixture comprising gelatinized starch is known in the art as shown by Fujimura, since a batter with an amount of water in the range of 50 to 67% (liquid mixture) can provide a viscosity with improved adhesion property to ingredients and can form a fluffier tempura coating (Fujimura, Paragraph 0032), since a liquid batter can provide additional moisture to a coated food product, since water can be used to mix batter components together and help them adhere, and since a food product can be coated by immersion in a liquid batter.
Additionally, since the claimed method is obvious is view of the prior art as explained above, one of ordinary skill in the art would reasonably expect that the resulting properties of a batter produced by the method suggested by the prior art would be the same as the properties of the batter produced by the claimed invention, including having fewer lumps compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch. Furthermore, the applicant has not provided sufficient evidence to show criticality from the claimed “fewer lumps” that would render the claimed invention non-obvious.
Regarding claim 5, while Dihel teaches a composition comprising 0.5 to 3.0% of pre-gelatinized starches, Dihel does not clarify if the percentage of pre-gelatinized starch is a percentage of the dry weight of the batter.
Smoot teaches (Paragraph 0102, 0103) the starch can be used in a wide variety of foods including batters and breadings, wherein, the starch can be included in dry mixes in an amount of 0.1 -5% (which would constitute the percentage of the dry weight in a dry mix and which overlaps with the claimed range of 4.5 to 7.5% of dry weight).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel to provide a pre-gelatinized pea starch comprising 0.1-5% of the dry weight of the mixture as taught by Smoot since both are directed to compositions, including batters, comprising pregelatinized starch, including pea starch, since providing a pre-gelatinized pea starch comprising 0.1-5% of the dry weight of the mixture is known in the art as shown by Smoot, since the amount and type of the starches provide the necessary texture and viscosity in the finished food product (Smoot, Paragraph 0103), so excessive starch can make the batter too viscous, while too little starch can render the batter unable to properly adhere to a food product, and since the amount of pre-gelatinized starch will affect the taste and nutritional effects of the batter.
Furthermore, the claimed percentage of the pregelatinized pea starch from 4.5 to 7.5% (w/w) of the dry weight in the batter mixture would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture and viscosity of the batter (where more pre-gelatinized starch would increase the viscosity of the batter), the desired taste and nutritional properties of the batter, the amount of other ingredients, the inclusion of other starches, the intended coloration of the batter, the type of food coated with the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed percentage of the pregelatinized pea starch from 4.5 to 7.5% (w/w) of the dry weight in the batter mixture that would render it non-obvious.
Regarding claim 6, Dihel teaches (Paragraph 0023) selection of the starch coating materials is dependent upon the desired texture, taste and appearance of the fried food product and is within the skill of the artisan, wherein inclusion of a flour, such as rice, corn or wheat flour, reduces oil content. Dihel further teaches (Paragraph 0025), optional additives include leavening agents.
Regarding claim 12, Dihel teaches (Paragraph 0025) optional additives for the starch batter include solvents such as water. Therefore, the batter is understood to be an aqueous mixture in some embodiments.
Regarding claim 13, Dihel teaches (Paragraph 0025) optional additives for the starch batter include solvents such as water. Therefore, the batter is understood to be an aqueous mixture in some embodiments.
Dihel is silent on the percentage of water being from 40 to 80% (w/w) of the aqueous mixture.
Fujimura teaches (Paragraph 0001, 0024, 0032) a tempura batter mix, wherein the mix contains wheat flour and gelatinized starch, and 100 to 200 parts by mass of a liquid such as water to 100 parts by mass of the batter mix (i.e., 50 to 67% water).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to provide an aqueous batter mixture with the percentage of water being from 40 to 80% (w/w) of the aqueous mixture as taught by Fujimura since both are directed to aqueous batter products comprising flour and gelatinized starch, since an aqueous batter mixture with the percentage of water being from 40 to 80% (w/w) of the aqueous mixture is known in the art as shown by Fujimura, since a batter with an amount of water in the range of 50 to 67% can provide a viscosity with improved adhesion property to ingredients and can form a fluffier tempura coating (Fujimura, Paragraph 0032), since an aqueous batter can provide additional moisture to a coated food product, since water can be used to mix batter components together and help them adhere, and since a food product can be coated by immersion in a sufficiently aqueous batter.
Furthermore, the claimed percentage of water is from 40 to 80% (w/w) of the aqueous mixture would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture and viscosity of the batter (where the amount of water will affect the batter viscosity), the desired moisture content of the food product prepared with the batter, the amount and type of other ingredients, the type of food coated with the batter (where an aqueous batter will adhere to some foods better than a dry mixture), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed percentage of water is from 40 to 80% (w/w) of the aqueous mixture that would render it non-obvious.
Regarding claim 21, Dihel teaches (Paragraph 0024) minor amounts of pre-gelatinized starches may be used to provide viscosity control and suspension of the solids in the batter, wherein the selection of the pre-gelatinized starch must be made carefully to avoid excessive batter viscosity (indicating that the pre-gelatinized starch increases viscosity relative to a batter without the pre-gelatinized starch).
Regarding claim 23, Dihel teaches (Paragraph 0024) minor amounts of pre-gelatinized starches may be used to provide viscosity control and suspension of the solids in the batter, wherein the selection of the pre-gelatinized starch must be made carefully to avoid excessive batter viscosity (indicating that the pre-gelatinized starch increases viscosity relative to a batter without the pre-gelatinized starch).
While Dihel does not explicitly state that the viscosity of the batter mixture comprising the pregelatinized pea starch is at least 5% higher than the viscosity of a control batter, a batter with the claimed viscosity increase would have been used during the course of normal experimentation and optimization procedures in the product of Dihel based upon factors such as the amount of the pre-gelatinized starch (where more pre-gelatinized starch will increase the viscosity), the types and amounts of other ingredients in the batter, the type of food to which the batter is applied (where some foods will require a more viscous batter for the batter to properly adhere to the food product), the presence of any other thickeners in the batter, the liquid content of the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed viscosity increase of at least 5% higher, that would render it non-obvious.
Regarding claim 44, the claim does not specify that batter is at a temperature of about 10 to about 25°C, nor does claim 1 require such a temperature range. Claim 44 is simply refers to a step of counting which does not need to occur in the method as currently claimed. Therefore, claim 44 is rejected based upon dependence upon claim 1.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dihel (US 20040121046 A1) in view of Smoot (WO 2019005861 A1), and Fujimura (US 20170208846 A1), and further in view of Hyun (KR 101432183 B1), Guthrie (WO 9742827 A1), Huber (US 20070031543 A1), Moorcroft (GB 2551050 A), Lichtendonk (US 20090304862 A1), Moore (US 3956515 A), and Gusek (US 5456930 A).
Regarding claim 2, Dihel teaches (Paragraph 0023) selection of the starch coating materials is dependent upon the desired texture, taste and appearance of the fried food product and is within the skill of the artisan, wherein inclusion of a flour, such as rice, corn or wheat flour, reduces oil content. Dihel further teaches (Paragraph 0022, 0024) the starch batter coating may be comprised of a single starch, or a combination of at least two starches, wherein minor amounts, 0.5 to 3.0%, of pre-gelatinized starches may be used to provide viscosity control and suspension of the solids in the batter. Dihel also teaches (Paragraph 0025) the use of leavening agents, for example SAPP (sodium acid pyrophosphate) in the starch slurry, to provide crisping and control browning.
Regarding claim 2, Dihel does not explicitly state that the "d" value is from 100 to 120 μm. Also, while Dihel teaches a composition comprising 0.5 to 3.0% of pre-gelatinized starches, Dihel does not clarify if the percentage of pre-gelatinized starch is a percentage of the dry weight of the batter. Dihel is silent on the combined pregelatinized pea starch and wheat flour constituting 92 to 94% of the dry weight in the batter mixture. Dihel is further silent on providing 4 to 6% (w/w) of salt, 0.5 to 1.5% (w/w) of sodium acid pyrophosphate, 0.6 to 1% (w/w) of sodium bicarbonate, and 0.6 to 1% (w/w) of dextrose to the batter mixture. Also, Dihel is silent on providing water at 7°C to the batter mix, wherein the ratio of water to dry ingredients in the batter mixture is 3:2 (w/w), wherein the water and the dry ingredients is mixed for 8 to 12 minutes and maintained at 16 to 20.5°C.
Smoot teaches (Paragraph 0007, 0008, 0047) a pregelatinized starch for use with food products, wherein, in embodiments, the pregelatinized starch is derived from peas. Smoot further teaches (Paragraph 0044) the pregelatinized starch (e.g., at least 75% or at least 90% by weight thereof) is in the form of individual sheet- or flake-like agglomerates, wherein drum-dried sheets can be ground to agglomerates hundreds of microns (e.g., 750 microns) in major dimension to provide a starch providing a pulpy texture to a food, down to on the order of 5-10 microns (fine granulometry) for a starch providing a smooth texture to a food, wherein, in some embodiments, the agglomerates of pregelatinized starch have a thickness (diameter) in the range of 20 microns to 100 microns (which overlaps with the claimed range of 100-120 μm).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel to provide a pre-gelatinized pea starch with a small particle size in the range of 20 to 100 micrometers (which overlaps with the claimed range of 100-120 μm) as taught by Smoot since both are directed to compositions and methods of preparing compositions comprising pregelatinized starch, including pea starch, since providing a pre-gelatinized pea starch with a small particle size in the range of 20 to 100 micrometers is known in the art as shown by Smoot, since a small particle size can provide a smooth texture to a food (Smoot, Paragraph 0044), making the food more palatable and easier to swallow for consumers, and since a fine granulometry can ensure that the pregelatinized pea starch does not form undesirable clumps in the batter that are visually unappealing or that don’t mix well with other ingredients.
Furthermore, the claimed "d" value from 100 to 120 μm according to German norm DIN 66145 for the pregelatinized pea starch would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the desired texture for the batter (where the size distribution of the particles will affect the texture of the resultant batter and, therefore, the texture of food products prepared with the batter, where different consumers have different preferences in texture, with some consumers preferring food products with smoother textures), the intended viscosity of the batter, the particle size of other batter ingredients (where similarly sized particles can mix more evenly and have similar textural properties), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed "d" value from 100 to 120 μm according to German norm DIN 66145 that would render it non-obvious.
Smoot also teaches (Paragraph 0102, 0103) the starch can be used in a wide variety of foods including batters and breadings, wherein, the starch can be included in dry mixes in an amount of 0.1 -5% (which would constitute the percentage of the dry weight in a dry mix and which overlaps with the claimed range of 1 to 7% of dry weight).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel to provide a pre-gelatinized pea starch comprising 0.1-5% of the dry weight of the mixture as taught by Smoot since both are directed to compositions, including batters, comprising pregelatinized starch, including pea starch, since providing a pre-gelatinized pea starch comprising 0.1-5% of the dry weight of the mixture is known in the art as shown by Smoot, since the amount and type of the starches provide the necessary texture and viscosity in the finished food product (Smoot, Paragraph 0103), so excessive starch can make the batter too viscous, while too little starch can render the batter unable to properly adhere to a food product, and since the amount of pre-gelatinized starch will affect the taste and nutritional effects of the batter.
Furthermore, the claimed percentage of the pregelatinized pea starch from 1 to 7% (w/w) of the dry weight in the batter mixture would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture and viscosity of the batter (where more pre-gelatinized starch would increase the viscosity of the batter), the desired taste and nutritional properties of the batter, the amount of other ingredients, the inclusion of other starches, the intended coloration of the batter, the type of food coated with the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed percentage of the pregelatinized pea starch from 1 to 7% (w/w) of the dry weight in the batter mixture that would render it non-obvious.
Fujimura teaches (Paragraph 0001, 0024) a tempura batter mix, wherein the mix contains wheat flour and gelatinized starch, and the total content of the grain flour and the starch is preferably from 90 to 97% by mass (which encompasses the claimed range of 92-94%).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to provide 90 to 97% by mass of wheat flour and gelatinized starch in the batter as taught by Fujimura, since both are directed to methods of preparing batters containing flour and gelatinized starch, since providing 90 to 97% by mass of wheat flour and gelatinized starch in the batter is known in the art as shown by Fujimura, since inclusion of a flour, such as rice, corn or wheat flour, reduces oil content (Dihel, Paragraph 0023), so the amount of flour can be selected to prevent the batter from being too oily, since the amount pregelatinized starch and wheat flour will determine the texture and viscosity in the finished food product, so the amount of the ingredients can be controlled for a suitable viscosity, and since the amount of pre-gelatinized starch and wheat flour will affect the taste and nutritional effects of the batter.
Furthermore, the claimed combined percentage of pregelatinized pea starch and wheat flour constituting 92 to 94% of the dry weight in the batter mix would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture and viscosity of the batter (where more pre-gelatinized starch would increase the viscosity of the batter), the desired taste and nutritional properties of the batter, the amount of other ingredients, the inclusion of other starches or flours, the intended coloration of the batter, the type of food coated with the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed combined percentage of pregelatinized pea starch and wheat flour constituting 92 to 94% of the dry weight in the batter mix that would render it non-obvious.
Hyun teaches (Paragraph 0025) a batter mix comprising starch and wheat flour, 1-5% refined salt (which overlaps with the claimed range of 4-6%), 1-5% baking powder (sodium bicarbonate) 1-5% (which overlaps with the claimed range of 0.6-1%). Thus, the claimed amounts of salt and sodium bicarbonate are known in the art to be used in batter compositions and would be obvious to one of ordinary skill in the art to include in the composition to provide flavor from salt, leavening from sodium bicarbonate, affect the taste and texture of the batter, etc.
Furthermore, the claimed 4 to 6% (w/w) of salt would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended taste of the batter (where salt is commonly used to provide flavor to food products, but excess salt can adversely affect taste), the desired nutritional properties of the batter (where excess sodium can be harmful to consumers), the amount of other ingredients, the intended coloration of the batter, the type of food coated with the batter (where some foods may have low or high sodium contents prior to addition of the batter), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed 4 to 6% (w/w) of salt that would render it non-obvious.
Also, the claimed 0.6 to 1% (w/w) of sodium bicarbonate would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture of the batter, the desired nutritional properties of the batter, the amount of other ingredients, the intended volume of the batter (since sodium bicarbonate functions as a leavening agent), the type of food coated with the batter, the amount of other leavening agents in the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed 0.6 to 1% (w/w) of sodium bicarbonate that would render it non-obvious.
Guthrie teaches (Claim 1) an aqueous batter mix for coating vegetables or pieces thereof, said batter mix comprising up to 1% by weight of sodium acid pyrophosphate (which overlaps with the claimed range of 0.5-1.5%). Thus, the claimed amount of sodium acid pyrophosphate is known in the art to be used in batter compositions and would be obvious to one of ordinary skill in the art to include to provide crisping and control browning.
Furthermore, the claimed 0.5 to 1.5% (w/w) of sodium acid pyrophosphate would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture of the batter, the desired nutritional properties of the batter, the amount of other ingredients, the intended volume of the batter (since sodium acid pyrophosphate functions as a leavening agent), the type of food coated with the batter, the amount of other leavening agents in the batter, the desired amount of crisping and browning, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed 00.5 to 1.5% (w/w) of sodium acid pyrophosphate that would render it non-obvious.
Huber teaches (Paragraph 0033) a bread crumb type food coating comprising wheat flour and 1.0% dextrose.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to include 1% dextrose in the batter in view of Huber, since both are directed to food coating mixes comprising flour, since including 1% dextrose in a food coating mix is known in the art as shown by Huber, since dextrose can providing flavor and sweeting to a food, while excess dextrose may render the food too sweet, and since some consumers prefer foods containing natural sugars like dextrose.
Also, the claimed 0.6 to 1% (w/w) of dextrose would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended taste and flavor of the batter (where dextrose can sweeten a food product), the desired nutritional properties of the batter, the amount of other ingredients, the type of food coated with the batter (since some foods naturally contain differing amounts of sugar), the amount of other sweetening agents in the batter, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed 0.6 to 1% (w/w) of dextrose that would render it non-obvious.
Moorcroft teaches (Page 1, lines 4-6, 18-20), a batter coating for a food product, wherein the batter is mixed using chilled water at 5 °C. Thus, batter coatings prepared by mixing with water at low temperatures near 7°C are known in the art.
Furthermore, the claimed water at 7°C provided to the batter mix would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the desired viscosity of the batter (where temperature affects viscosity), the ingredients in the batter (where some ingredients are sensitive to temperature changes or will be altered at higher temperatures), the temperature of the food to which the batter is applied, the intended storage temperature of the batter (where the water can help cool the batter to the desired temperature), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed water at 7°C provided to the batter mix that would render it non-obvious.
Lichtendonk teaches (Paragraph 0001, 0032) a batter and a food product having a coating comprising the batter, wherein the water content of the batter is preferably 50-60 wt.% (where a 60% water to 40% dry ingredient ratio is 3:2). Thus, the claimed ratio of water to dry ingredients in a batter coating is known in the art, and would be obvious to use to prevent the batter from being too viscous or too runny.
Furthermore, the claimed ratio of water to dry ingredients in the batter mix of 3:2 (w/w)would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the desired viscosity of the batter (where the water content affects viscosity), the ingredients in the batter, the storage life of the batter, the food to which the batter is added (where different foods have different moisture contents), etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed ratio of water to dry ingredients in the batter mix of 3:2 (w/w) that would render it non-obvious.
Moore teaches (Col. 2, lines 21-23; Col. 10, lines 18-21) a batter starch dry mix which can be easily reconstituted in an aqueous medium and applied to food pieces, wherein the starch batter dry mix was reconstituted in tap water by mixing in a Hobart mixer at a medium speed for 10 minutes.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to mix the water and dry ingredients for 10 minutes as taught by Moore since both are directed to batters comprising starch, since mixing dry ingredients with water for 10 minutes is known in the art as shown by Moore, since insufficient mixing will result in a batter with an inconsistent texture and viscosity that may not properly adhere to a food product, and since excessive mixing time will extend the total production time and render the product less cost effective to produce.
Furthermore, the claimed mixing time of 8-12 minutes would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended texture of the batter, the types of ingredients in the batter (where some ingredients mix more easily than others), the amount of the batter, the type of mixer and mixing speed. etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed mixing time of 8-12 minutes that would render it non-obvious.
Gusek teaches (Col. 1, line 17) mixes for batter based baked goods, wherein ingredients are mixed for a period of 8-20 minutes at a mix temperature of 18°C and the mix after blending is at 18-21°C. Thus, maintaining a batter mix at a temperature of 16 to 20.5°C is known in the art and would be obvious to prevent spoilage or harm of the ingredients.
Furthermore, the claimed maintained temperature of 16 to 20.5°C would have been used during the course of normal experimentation and optimization procedures in the product of Dihel, as modified above, based upon factors such as the intended storage time, the types of ingredients in the batter (where some ingredients are altered or react to temperature changes), the energy costs of maintaining the batter at a set temperature, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed maintained temperature of 16 to 20.5°C that would render it non-obvious.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dihel (US 20040121046 A1) in view of Smoot (WO 2019005861 A1) and Fujimura (US 20170208846 A1), and further in view of Moore (US 3956515 A).
Regarding claim 22, Dihel, as modified above, is silent on the viscosity of the batter mixture being measured at the temperature of 15 to 25°C.
Moore teaches (Col. 2, lines 21-23; Col. 10, lines 21-23) a batter starch dry mix which can be easily reconstituted in an aqueous medium and applied to food pieces, wherein the viscosity of the starch batter is measured at 23°C.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel, as modified above, to measure the viscosity of the batter mixture at the temperature of 15 to 25°C in view of Moore since both are directed to starch based batter coatings, since measuring the temperature of a batter mixture at 23°C is known in the art as shown by Moore, and since 15-25°C is around room temperature, and, therefore, will not require heating or cooling of the mixture to determine viscosity, while also demonstrating the viscosity of the batter at room temperature conditions.
Response to Arguments
Applicant's arguments filed 01/28/2026 Applicant’s arguments, see pages 9-11, filed 01/28/2026, 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 rejections have been made in view of amendments to claim 1, and upon further consideration, a new ground(s) of rejection is made over Dihel (US 20040121046 A1) in view of Smoot (WO 2019005861 A1) and Fujimura (US 20170208846 A1) as shown above.
Regarding the Applicant’s argument that a person of ordinary skill in the art would understand that Dihel's exemplary starch batter is a dry dispersion, since, in Dihel's exemplary method of the preparation of reduced oil french fries, "[t]he hydrocolloid-coated strips were next dipped in a 45% starch dispersion and the excess starch was blown off." and there would be no need to assess for the type of lumping which would occur within a liquid batter mixture, the Examiner notes that the batter mixture being limited to a liquid mixture is an amendment to claim 1. Furthermore, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (MPEP 2123 II). Nothing in the example explicitly states the that batter is dry. While excess starch is blown off, one of ordinary skill in the art would understand that this indicates that the excess starch dispersion was blown off. Also, as now stated in the rejection of claim 1 above, Dihel teaches (Paragraph 0025) optional additives for the starch batter include solvents such as water, and the starch may be in the form of a slurry. Furthermore, Dihel teaches (Paragraph 0022) the starch coating is typically applied by using a high solids starch dispersion, particularly a dispersion with a solids content of at least about 30% (which indicates that up to 70% of the dispersion is not solid, i.e. liquid). Therefore, Dihel, at minimum, suggests that the batter is a liquid mixture in some embodiments. Also, Fujimura, which teaches a liquid batter is now cited, and It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Dihel to provide the batter as a liquid mixture in view of Fujimura for the reasons stated above with regard to claim 1.
In response to the Applicant’s argument that Dihel at best provides optimizations "to minimize sticking or clumping of the strips during processing," and is silent regarding any lumping of a liquid batter mixture, much less optimizing to reduce the number of lumps of a pregelatinized pea starch batter mixture as compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch, the Examiner maintains, as stated in the rejection of claim 1 above, since the claimed method is obvious is view of the prior art as explained above, one of ordinary skill in the art would reasonably expect that the resulting properties of a batter produced by the method suggested by the prior art would be the same as the properties of the batter produced by the claimed invention, including having fewer lumps compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch. Furthermore, the applicant has not provided sufficient evidence to show criticality from the claimed “fewer lumps” that would render the claimed invention non-obvious. The Examiner also notes that Figure 1 of the Applicant’s Drawings, from which the Applicant draws support for the amendments to claim 1, is limited to compositions comprising 7% of the pregelatinized pea starch, and does not show that the reduction the number of lumps occurs across the entire claimed range of pregelatinized pea starch from 1 to 10% (w/w) of the dry weight in the batter mixture.
The Applicant makes further arguments that Smoot is silent regarding optimizing to reduce the number of lumps of a pregelatinized pea starch batter mixture as compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch. However, 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). As shown above, Dihel in view of Smoot and Fujimura, renders the claimed method, and properties of the batter resulting from the claimed method, obvious to one of ordinary skill in the art.
Also, the Applicant argues that additional prior art cited to address dependent claims, do not provide or suggest that the batter mixture is a liquid mixture, and that the batter mixture has fewer lumps compared to a control batter mixture containing the same percentage of pregelatinized corn starch or pregelatinized potato starch. However, such features are known or obvious over Dihel in view of Smoot and Fujimura as explained above. Consequently, all claims depending from claim 1 also 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.
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