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 .
Status of Application
Claims 1-17 and 21-23 are under consideration.
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/9/2025 has been entered.
Claim Objections
Claim 1, line 4 is objected to because of the following informalities: “with a selected granola” should be with “the selected granola” so that it refers back to the granola in the selecting step. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-17 and 21-23 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Independent claims 1 and 12 recite a fat mixture comprising palm fat and cocoa fat “in a weight ratio of 2:1”. The specification does not discuss any ratios for the palm fat or cocoa fat. Thus, there is no support for this ratio.
Additionally, claim 1 recites “without including coconut fat”. However, there is no support for calculating a ratio that excludes coconut fat.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1, 4-5, 9-12, 14, 22 are rejected under 35 U.S.C. 103 as being unpatentable over US 2014/0220218 (COLEMAN) and United States Patent Application Publication No. 2011/0183046 (NACK) and United States Patent Application Publication No. 2006/0263496 (CROSS).
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As to the selecting step, COLEMAN teaches making a granola by selecting oat [0026].
As to the mixing step with at least two additives, COLEMAN mixes quinoa [0026], syrup, sodium carbonate [0033] and sugar [0042] to form a mixture [0042].
As to the coating step, the granola is coated with syrup that includes corn syrup solids [0025].
As to generating a first moisture barrier step, the granola is baked at 200oF to 300oF with the syrup [0046]. Baking the syrup with the granola naturally provides a moisture barrier/encapsulated granola.
As to the amount of corn syrup solids, up to 30 wt % of long chain polysaccharides such as corn syrup solids are in the syrup [0042].
As to the dividing step, the granola is broken in slabs [0046] with a predetermined 3/16 inch to 1 inch size [0046].
As to the reducing step, it would have been obvious to allow the granola to cool from baking to allow further processing and handling.
COLEMAN does not teach generating a second moisture barrier step.
NACK teaches a coated snack products comprising a coating reminiscent of high fat compound fat coating that is resistant to rub-off of a powdery or fat based topping. The method comprises providing a hot, oil-in-water emulsion coating slurry [0032]. The slurry comprises about 15%-35% of fat [0009]. Palm stearin, soybean, canola, cottonseed, corn and safflower can also be used in the fat [0028]. Thus, this is greater than 14%, as claimed. The temperature is typically 60-85oC [0051] but it can be higher so long as the temperature is below 120oC so as to prevent Maillard browning [0011]. NACK teaches the coating improves stability and shelf-life [0002]. The resulting product is coated with two coatings (i.e., moisture barriers) that would naturally provide granola clusters/pieces with a coating that prevents moisture migration. This includes keeping the first moisture barrier dry while submerged in a liquid for a predetermined period of time. In [0073], NACK teaches that the resulting product is a shelf stable product even under elevated summer temperatures [0072]. It would have been obvious to provide a piece in a climate-controlled package for at least 12 hours to improve shelf-life.
Neither NACK nor COLEMAN teach the use of palm and cocoa fat.
CROSS teaches that cereal/granola pieces can be coated with coatings that eliminate “the need for extra time and expense involved in special storage and handling conditions” [0022]. The fat in the liquid coating composition (i.e., which is heated) preferably has a melting point of less than about 104oF [0016]. The liquid coating composition will include from about 27-50% by weight fat based upon the total weight of the liquid coating composition. Suitable fats include fractionated palm kernel oil and other fractionated vegetable oils, hydrogenated soybean oil and other hydrogenated vegetable oils, non-hydrogenated oils (e.g., soybean, canola, and sunflower oils, cocoa butter), and mixtures thereof [0016].
It would have been obvious to one skilled in the art to add palm kernel oil and cocoa butter to a second coating because it facilitates storage. Indeed, the fats taught by NACK and CROSS are both taught as extending shelf life for coated snacks/granola products. CROSS teaches that cereal/granola pieces can be coated with coatings that eliminate “the need for extra time and expense involved in special storage and handling conditions” [0022]. The fat in the liquid coating composition (i.e., which is heated) preferably has a melting point of less than about 104oF [0016]. Thus, CROSS uses fats with melting points lower than 120oF as does NACK. Moreover, given the coating is a fat-based hydrophobic coating, it would have been obvious to one skilled in the art that the coating would inhibit moisture and keep coated cereal/granola pieces dry for a period of time when submerged in a liquid.
As to the moisture inhibiting properties of the coatings, it is noted that the Patent Office does not have facilities to conduct such studies. In this regard, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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As to COLEMAN, the granola is baked to a moisture content of 1 to 8 wt% [0046]. It would have been obvious to one skilled in the art to vary the time until the desired moisture level was reached.
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The granola can be baked at 200 to 300oF [0046]. Thus, COLEMAN teaches a temperature that touches on that claimed. However, it would have been obvious to vary the temperature in conjunction with the time to reach the desired moisture content [0046].
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As noted above, CROSS teaches that the fat in the liquid coating composition (i.e., which is heated) preferably has a melting point of less than about 104oF [0016].
It would have been obvious to use a temperature of at least 90oF but less than 104oF. Thus, an overlapping range is taught.
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COLEMAN does not teach a third moisture barrier.
However, NACK teaches adding coatings reminiscent of a high fat compound fat coating (i.e., see [0042]) resistant to rub-off of a powdery or fat based topping as well as methods for preparing such coated snack products. Thus, it would have been obvious to add a third coating as multiple coatings can be added. The present invention provides methods for preparing such coated food product including providing a hot, oil-in-water emulsion coating slurry containing a hydrated film forming hydrophilic colloid. In [0028], palm fat can be used as the coating.
It would have been obvious to add the coating of NACK to the product of COLEMAN to improve shelf-life.
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In [0010] of COLEMAN, it is noted that cereal is added to milk [0093] yet stays crunchy. It would have been obvious that the creamy cereal stay in good condition for at least 12 hours.
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As to the selecting step, COLEMAN teaches making a granola by selecting oat [0026].
As to the mixing step, COLEMAN mixes quinoa [0026], syrup, sodium carbonate [0033] and sugar [0042] to form a granola mixture [0042].
As to the coating step, the granola is coated with syrup that includes corn syrup solid to produce a coated, encapsulated granola [0025].
As to the generating a first moisture barrier step, the granola clusters are baked at 200oF to 300oF with the syrup [0046]. Baking the syrup with the clusters naturally provides a moisture barrier to produce an encapsulated granola. As to the amount of corn syrup solids, up to 30 wt % of long chain polysaccharides such as the corn syrup solids are in the syrup [0042].
As to the dividing step, the encapsulated granola is broken in slabs [0046] with a predetermined 3/16 inch to 1 inch size [0046].
As to the reducing step, it would have been obvious to allow the granola to cool from baking to allow further processing.
COLEMAN does not teach generating a second or third moisture barrier step.
However, NACK teaches adding coatings reminiscent of high fat compound fat coating (i.e., see [0032] reference multiple coatings), resistant to rub-off of a powdery or fat based topping as well as methods for preparing such coated snack products. Thus, it would have been obvious to add a third coating as multiple coatings can be added. The present invention provides methods for preparing such coated food product including providing a hot, oil-in-water emulsion coating slurry containing a hydrated film forming hydrophilic colloid. In [0028], palm fat can be used as the coating.
NACK provides methods for preparing such coated food product including providing a hot, oil-in-water emulsion coating slurry containing a hydrated film forming hydrophilic colloid. The slurry comprises about 15%-35% of fat [0009]. Thus, this is greater than 14%, as claimed. NACK teaches that the slurry can be heated. The temperature is typically 60-85oC [0051] can be higher so long as the temperature is below 120oC so as to prevent Maillard browning [0011]. NACK teaches the coating improves stability and improved shelf-life [0002]. The resulting coated product with two or more coatings (i.e., moisture barriers) would provide granola clusters/pieces. NACK teaches the coating improves stability and improved shelf-life [0002]. The resulting coated products with two or more coatings (i.e., moisture barriers) would provide granola clusters/pieces with the coating preventing moisture migration of through other coatings/moisture barriers. Indeed, it would have been obvious to provide additional coatings based on the desired shelf stability and improved shelf-life. This would have included keeping the moisture barriers dry while submerged in a liquid for at least 12 hours. In [0073], NACK teaches that clusters provide a shelf stable product, including over the summer [0072]. In [0010], it is noted that creamy cereal can be packaged with milk [0093]. It would have been obvious that the cereal stay in good condition for at least 12 hours.
It would have been obvious to add the coating of NACK to the product of COLEMAN to improve shelf-life.
Neither Nack nor COLEMAN teach the use of palm and cocoa fat.
CROSS teaches that cereal/granola pieces can be coated with coatings that eliminate “the need for extra time and expense involved in special storage and handling conditions” [0022]. The fat in the liquid coating composition preferably has a melting point of less than about 104.degree. F., more preferably from about 50-100.degree. F., and even more preferably from about 75-95.degree. F. The liquid coating composition will include from about 27-50% by weight fat, more preferably from about 30-40% by weight fat, and even more preferably about 34% by weight fat, based upon the total weight of the liquid coating composition taken as 100% by weight. This process can be used to reduce the fat content of products made by prior art methods by at least about 50%. Suitable fats include fractionated palm kernel oil and other fractionated vegetable oils, hydrogenated soybean oil and other hydrogenated vegetable oils, non-hydrogenated oils (e.g., soybean, canola, and sunflower oils, cocoa butter), and mixtures of the foregoing [0016].
It would have been obvious to one skilled in the art to add palm kernel oil and cocoa butter to a second coating because it facilitates storage. Indeed, the fats taught by NACK and CROSS are both taught as extending shelf life for coated snacks/granola vegetable based. NACK and CROSS teaches that the fats can be heated. For example, NACK teaches that the temperature is typically 60-85oC [0051] but can be higher so long as the temperature is below 120oC so as to prevent Maillard browning [0011]. CROSS teaches that cereal/granola pieces can be coated with coatings that eliminate “the need for extra time and expense involved in special storage and handling conditions” [0022]. The fat in the liquid coating composition (i.e., which is heated) preferably has a melting point of less than about 104.degree. F., more preferably from about 50-100.degree. F., and even more preferably from about 75-95.degree. F.
Thus, CROSS uses fats with melting points lower than 120oF as does NACK. Moreover, given the coating is a fat-based, hydrophobic coating, it would have been obvious to one skilled in the art to that the coating would inhibit moisture and keep cereal pieces dry for a period of time when submerged in a liquid.
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As to COLEMAN, the granola is baked to a moisture content of 1 to 8 wt% [0046]. It would have been obvious to one skilled in the art to vary the time until the desired moisture level was reached.
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In [0046] and [0047] of COLEMAN, it is taught that the resulting syrup coated blend is transferred to a paddle spreader to form a slab. The slab travels through an oven and baked at 200 to 300° F., more typically, 265 to 280° F., until crisp or a moisture level of 1 to 8 wt %, typically 1 to 3 wt %. The slab may be any suitable thickness, but is typically 1 to 5 inches thick, more commonly 2 to 3 inches thick. The slab is then broken up using breaker rollers and screened to obtain the desired size of granola are collected in an appropriate container. The granola clusters are typically 3/16 to 1 inch in size. FIG. 1 is not intended to limit the method steps or equipment used to create granola clusters. Clusters may also be formed by cutting, panning, molding or otherwise mechanically forming the ingredients into clusters.
It would have been obvious to one skilled in the art to use a cutter/slicer to obtain desired sizes.
Claims 2-3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over COLEMAN, NACK and CROSS as applied to claims 1 and 12 above, and further in view of United States Patent Publication No. 20100183772 (CLANTON).
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As to claims 2-3 and 13, NACK, COLEMAN, and CROSS are cited for the reasons noted above but silent as to adding oat flour or cane sugar.
CLANTON teaches that oat flour can be added as a dietary fiber source to granola [0034]. Sugar cane can be added as a sugar binder [0052].
Thus, it would have been obvious to one skilled in the art to add oat flour as a fiber source and sugar cane as a binder to granola.
Claim 6, 15 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over COLEMAN, NACK and CROSS as applied to claims 1 and 12 above, and further in view of United States Patent Publication No. 2005/0079248 (STEVENS) .
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As to claims 6, COLEMAN, NACK, and CROSS are silent as to using rack ovens.
STEVENS teaches that it is desirable to heat cereal pieces by using a rack [0062].
It would have been obvious to use a rack in the references above, as STEVENS teaches that by using a rack this allows excess coating/slurry to be removed/fall off [0062].
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As to claims 15, and 21, COLEMAN, NACK and CROSS are silent as to using rack ovens.
STEVENS teaches that it is desirable to heat cereal pieces by using a rack [0062].
It would have been obvious to use a rack in the references above, as STEVENS teaches that by using a rack this allows excess coating/slurry to be removed/fall off [0062].
Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over COLEMAN, NACK and CROSS as applied to claims 1 and 12 above, and further in view of eGyanKosh, Unit 2 Cleaning and Grading, September 12, 2017, accessed at https://egyankosh.ac.in/bitstream/123456789/10855/5/Unit-2.pdf (ANON).
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The references above are silent as to using a rotary screen.
As to claims 7 and 16, ANON teaches at pg. 8 that rotary and gyratory screens are either circular or rectangular decked. Their motion is almost circular and affects sifting action. These are capable of accurate a complete separation of very fine sizes.
Thus, it would have been obvious to one skilled in the to use a rotary screen to divide fine portions of pieces.
Claims 8, 17 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over COLEMAN, NACK and CROSS as applied to claims 1 and 12 above, and further in view of United States Patent Application Publication No. 2014/0154363 (DUFFY).
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As to claims 8, 17 and 23, NACK, CROSS and COLEMAN are silent as to using a cooling tunnel/mechanism.
DUFFY teaches that products can cooled in cooling tunnels [0073]. The products are cooled to 55 to 70oF [0073]. However, it would have been obvious to vary the temperature and time of the cooling based on the coating and how soon the product needed to be packaged [0073].
It would have been obvious to modify the references above with DUFFY, as DUFFY teaches that cooling tunnels ae effective apparatus to cool the food products.
Response to Arguments
Applicant's arguments filed 9/2/2025 have been fully considered but they are not persuasive.
The rejection under 35 USC 112 is withdrawn in view of the changes to the claims.
Applicant that Nack does not cure the deficiencies of Coleman. It is argued that at most, Nack discusses a coated snack product whose coating comprises only coconut oil. In support of this position, the applicant points to [0028] of Nack. [0028] of Nack states “the fat ingredient is solid to semi solid at room temperature (i.e. 20° C.) Particularly useful herein is coconut oil as the solid fat ingredient. Coconut oil is particularly desirable since such ingredients are solid at room temperature without need for hardening such as by hydrogenation that can lead to undesirable trans fatty acids upon hydrogenation and thus are naturally low in trans-fat.”
However, [0028] only discloses coconut oil as preferred and states that palm, soybean, canola, cottonseed, corn, safflower can also be used. Palm stearin can also be added to further increase heat stability (i.e., melting point). Thus, it would have been obvious to vary the fats and control the melting point of the fat mixture.
In addition, Applicant argues that claim 1 states “without including coconut fat”. Applicant concludes that a person skilled in the art would appreciate that the combination of the first moisture barrier made of the dry corn syrup solid and the second moisture barrier made of the fat mixture produced an unexpected result of preventing moisture migration within the granola cluster for over eight hours, resulting in a crunchy granola product even while submerged in a liquid (i.e., milk or a similar liquid) during the eight hours.
However, there is no evidence of unexpected results. Fat coatings are hydrophobic. It would have been obvious to one skilled in the art that a coating comprising fat would inhibit moisture migration. In this regard, a coating comprising fat only acts as one skilled in the art would have expected.
The applicant also argues that Cross fails to teach or suggest the coating allows for the coated product to remain dry while submerged in a liquid for a predetermined period of time as recited by amended claim 1.
However, as noted above, fat is hydrophobic. CROSS teaches that cereal/granola pieces can be coated with coatings that eliminate “the need for extra time and expense involved in special storage and handling conditions” [0022]. The fat in the liquid coating composition (i.e., which is heated) preferably has a melting point of less than about 104.degree. F., more preferably from about 50-100.degree. F., and even more preferably from about 75-95.degree. F. Thus, CROSS uses fats with melting points lower than 120oF as does NACK. It would have been obvious to one skilled in the art that a coating comprising fat would inhibit moisture migration. In this regard, a coating comprising fat only acts as one skilled in the art would have been expected.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached on 571-270-3435. 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./PHILIP A DUBOIS/ /PHILIP A DUBOIS/Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791