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 .
The amendment filed 8/11/2025 has been entered. Claims 13-22 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 13-22 are rejected under 35 U.S.C. 103 as being unpatentable over Green (WO 02/21937 A2) in view of Zukerman (US 5137745A).
Regarding Claim 13, Green teaches a crispy, savory snack food comprising cereal (Page 1, Line 20-21). Green teaches that the crispy, savory snack food may be presented in a packet (Page 6, Lines 19-20), which one of ordinary skill would understand describes a shelf stable food with an extended shelf life (e.g. at least one month) at room temperature.
Regarding part a, Green teaches that that cereal is in particulate form. A cereal is coated with a binder comprising a sugar such as maltodextrin (Page 1, Lines 20-Page 2, Line 2) in an aqueous solution. The sugar may be a powder (Page 2, Line 20).
Regarding part b, Green does not teach mixing the maltodextrin powder with particulates as a separate step from adding water; however, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding part b, i, Green teaches that the ratio of binder to ingredients (which is the same as particulates) may be 50:50 (Page 4, Line 5), which touches the claimed range.
Regarding part b, ii, Green teaches that the binder may comprise water at 5-60 wt% (Page 3, Line 10), which overlaps the claimed range of the hydrated maltodextrin powder. Green teaches the addition of multiple saccharide components (Page 2, Lines 18-Page 3, Line 2) including maltodextrin (Page 2, Line 23). Green additionally teaches the addition of starch at 5% (Page 3, Line 7) and 5-60% water (Page 4, Line 10). Green therefore teaches a composition comprising, for example, a 50%/50% mixture of particulates and binder, wherein the binder comprises 30% maltodextrin, 45% non-maltodextrin polysaccharide, 5% starch, and 20% water. This composition comprises 15 % maltodextrin in the moist stage, which lies within the claimed range. Note that the claim does not require that the particulates of part a. be coated with only maltodextrin, or that the maltodextrin binder of part d. be the sole binding species of the shelf stable food. The Examiner notes that a composition comprising 30% maltodextrin, 45% polysaccharide, 5% starch, and 20% water as taught by Green comprises a maltodextrin binder as taught by the claim (comprising, e.g. all of the maltodextrin, starch, and some fraction of the water) in addition to a non-maltodextrin binder (comprising, e.g. all of the non-maltodextrin polysaccharide and the remaining portion of water).
Regarding part c, Green teaches that the food may be produced via stamping or moulding (Page 15, Line 20) but does not specifically teach positive displacement moulding.
Zukerman teaches a cereal grain product formed via piston molding (Column 8, lines 36-38), which is a positive displacement moulding method. Zukerman teaches that piston molding applies minimal shear to the product, and allows the grain and cavity shape of the food to be maintained.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a positive displacement moulding method, as taught by Zukerman, to form the cereal product of Green. One would have been motivated to make such a modification to form a grain product with a good aesthetic appearance.
Regarding part d, Green teaches that the food is set via baking (Page 7, Lines 15-17). Note that the instant specification teaches baking as an appropriate method to set the structure of the product [0037].
Regarding the limitation of 65-85% particulates, Green teaches that the food may contain, e.g. “about 55%” of granola mix, a particulate food, with 45% binder (Page 21, Example 5). Green teaches that the binder component is reduced in water content from 22.91% to 2.5% after baking. Green therefore teaches that the final food contains 61% of granola particulates (55 grams granola / ( 55 grams granola + (45 grams binder – 45 grams binder * (22.91% water – 2.5 % water)). Note that since Green teaches “about” 55% of a granola mix to yield a final food containing 61% particulates, and the instant Claim teaches “about” 65% particulates, the office takes the position that the ranges of Green both approach and overlap with the instant Claims. See MPEP2144.05 I.
Additionally, note that the disclosed composition is so close in value to the claimed composition that there is an expectation is will provide an identical product. No material difference is expected between a composition comprising “about 65% particulates” as claimed and about 61% particulates as taught by Green. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
Regarding the limitation of maltodextrin binder comprising 15-35% by weight of the shelf stable food, Green teaches the addition of multiple polysaccharides (Page 2, Lines 18-Page 3, Line 2) including maltodextrin (Page 2, Line 23). Green therefore teaches a composition comprising, for example, a composition comprising 55% particulates and 45% binder, wherein the binder comprises 30% maltodextrin, 45% non-maltodextrin polysaccharides, 5% starch, and 20% water. Note that the claim does not require that the particulates of part a. be coated with only maltodextrin, or that the maltodextrin binder of part d. be the sole binding species of the shelf stable food. The Examiner notes that a composition comprising 30% maltodextrin, 45% non-maltodextrin polysaccharides, 5% starch, and 20% water as taught by Green comprises a maltodextrin binder as taught by the claim (comprising, e.g. all of the maltodextrin, starch, and half of the water) in addition to a non-maltodextrin binder (comprising, e.g. all of the non-maltodextrin polysaccharides and the remaining portion of water).
Green teaches that upon baking, the amount of water can be reduced by about an order of magnitude (Page 21, Example 5). It would have been obvious to one of ordinary skill to expect the amount of water in a similar product to reduce by a similar magnitude. Therefore, the composition as described above (a 50/50 mixture of particulates and binder prior to baking or setting, wherein the binder comprises 30% maltodextrin, 45% non-maltodextrin polysaccharides, 5% starch, and 20% water) would be expected to have a composition of 55% particulates, 16% maltodextrin, 25% non-maltodextrin polysaccharides, 3% starch, and 1% water after baking, provided that the content of water is reduced by an order of magnitude. This amount of maltodextrin lies within the claimed range.
Regarding Claim 14, Green teaches the addition of multiple polysaccharides, including saccharides that are not sugar. Note that the limitation of “sugar” of the claim is interpreted to mean one of more of glucose, fructose, sucrose, lactose, or maltose. Additionally, note that the “sugar” of Green is necessarily defined differently than the “sugar” of the claim, since the “sugar” of Green includes maltodextrin.
Regarding Claim 15, Green teaches the addition of multiple saccharide components (Page 2, Lines 18-Page 3, Line 2) including maltodextrin (Page 2, Line 23). Green additionally teaches the addition of starch at 5% (Page 3, Line 7) and 5-60% water (Page 4, Line 10). Green therefore teaches a composition comprising, for example, a 50%/50% mixture of particulates and binder, wherein the binder comprises 16% maltodextrin, 59% non-maltodextrin polysaccharide, 5% starch, and 20% water. This composition comprises 8% maltodextrin in the moist stage, which touches the claimed range. Note that the claim does not require that the particulates of part a. be coated with only maltodextrin, or that the maltodextrin binder of part d. be the sole binding species of the shelf stable food. The Examiner notes that a composition comprising 16% maltodextrin, 59% non-maltodextrin polysaccharide, 5% starch, and 20% water as taught by Green comprises a maltodextrin binder as taught by the claim (comprising, e.g. all of the maltodextrin, starch, and some fraction of the water) in addition to a non-maltodextrin binder (comprising, e.g. all of the non-maltodextrin polysaccharide and the remaining portion of water).
Regarding Claim 16, Green teaches an aggregate food prior to baking comprising e.g. 50% binder (Page 4, Line 5), wherein 5-60% of the binder is water (Page 3, Line 10). Green thus teaches 2.5-30% water (5% water * 50% binder to 60% water * 50% binder), which encompasses the claimed range.
Regarding Claim 17, Green teaches that the food is set via baking (Page 7, Lines 15-17).
Regarding Claim 18, Green teaches that the food is baked at 100-200 °C (Page 7, Lines 15-17), which is 212-392 °F, which overlaps the claimed range. Green does not teach a specific time for baking. However, one of ordinary skill would adjust the amount of baking time to arrive at the claimed baking time through no more than routine experimentation, since one of ordinary skill would understand that the length of baking time affects the moisture content and flavor development of the final product.
Regarding Claim 19, Green in view of Zukerman teaches piston molding as discussed above in regard to Claim 13.
Regarding Claim 20, modified Green teaches a method for making a food as described above in regards to Claim 13.
Green teaches that the ratio of binder to ingredients (which is the same as particulates) may be 50:50 (Page 4, Line 5), which touches the claimed range. Green additionally teaches that the binder may comprise water at 5-60 wt% (Page 3, Line 10), which overlaps the claimed range of the hydrated maltodextrin powder. Green teaches the addition of multiple saccharide components (Page 2, Lines 18-Page 3, Line 2) including maltodextrin (Page 2, Line 23). Green therefore teaches a composition comprising, for example, a 50%/50% mixture of particulates and binder, wherein the binder comprises 20% maltodextrin, 20% non-maltodextrin polysaccharide, and 60% water. On a dry basis, this is equivalent to 50 parts particulates (71%), 10 parts maltodextrin (14%), and 10 parts non-maltodextrin polysaccharide (14%).
Note that no material difference is expected between a composition comprising 80% particulates as claimed and 71% particulates as taught by Green. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
The claimed range(s) of maltodextrin and particulates are therefore obvious in view of modified Green.
Regarding Claim 21, Green teaches the addition of multiple saccharide components (Page 2, Lines 18-Page 3, Line 2) including maltodextrin (Page 2, Line 23). It would be obvious to utilize maltodextrin, or maltodextrin and sugar, in the food of Green since Green teaches one or more types of sugar in the binder. Additionally, note that it would have been obvious to separate the mixing of the maltodextrin and/or sugar with particulates from mixing with water, since selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding the limitation that the coating consists “essentially of” maltodextrin, or maltodextrin powder and a sugar, Green teaches the use of maltodextrin and sugar as binder ingredients. The composition therefore does not include components which materially affect the basic and novel characteristics of the claimed composition.
Regarding Claim 22, Green teaches the combination of maltodextrin with particulates (Page 2, Lines 23 and Page 6, Lines 25-29).
Green does not address mixing of maltodextrin powder directly with particulates. However, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Response to Arguments
Applicant’s arguments filed 8/11/2025 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues (Pages 6-7 of Remarks) that the method requires coating particulates with a powdered maltodextrin prior to combination with water to forma moist aggregate. Applicant argues that the formation of the powder coated particulates yields even distribution of the binder and ensures sufficient hydration of the powder. Applicant additionally argues that Green, at best, teaches an aqueous binder solution and does not teach the application of maltodextrin powder.
This argument is not convincing. Selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C. Applicant has not provided a comparative showing against the closest prior art. Note that the arguments of counsel cannot take the place of evidence in the record. See MPEP 716.01(c)II.
Applicant additionally argues (Pages 7-8 of Remarks) that the claimed order of combining ingredients is purposeful and provides even distribution of binder and moisture absorption, and the claimed sequences provides an aggregate which can be molded using positive displacement molding. Applicant additionally argues that to modify the teachings of Green/Zukerman to utilize a powder would change the principle of operation.
This argument is not convincing. First, note that the arguments of counsel cannot take the place of evidence in the record. See MPEP 716.01(c)II. Applicant has not provided evidence of the criticality of the claimed method steps. Second, regarding the argument that the principle of operation of Green requires an aqueous binder, Green teaches the mixing of cereal and binder (Page 6, Line 28). The effect of both Green and the instant Claimed method is an aggregate food bound by a syrup of maltodextrin. It would therefore be obvious to mix maltodextrin and water in any order to provide the final aggregate food.
Regarding arguments regarding dependent Claims 15, 20, 21, and 22, note that the Claims have been rejected over a combination of references as described above.
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 DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791