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 .
This office action is in response to amendment filed 2/9/26. Claims 1,11 and 21 are amended. Claims 1-19, 21 are pending.
The previous 112 first paragraph rejection is withdrawn due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 1-3,5-13,15-16,18-19,21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mastenbroek ( WO 2008/138748) in view of Zimmerman ( 5514387).
For claims 1,2,9, Mastenbroek discloses a baking powder comprising a carbon dioxide carrier and a leavening agent. Suitable carbon dioxide carrier includes calcium carbonate and suitable leavening agents include organic acids such as citric acid, tartaric acid etc. Mastenbroek discloses the amounts of carbon dioxide carrier and leavening agent depend on which carrier and acid are used and can be determined by one skilled in the art. In example 1, Mastenbroek shows the use of 2 g of carbonate, 2.75g of leavening acid and 1.5 g of yeast extract which give a total of 6.25 grams of the baking powder component. The percent of carbonate is 32%, acid is 44%. Mastenbroek discloses embodiment that is free of sodium because the acids selected can be citric acid, tartaric acid and the carbon dioxide carrier selected can be calcium carbonate. The salt of the organic acid can be calcium salt or potassium salt. For claims 5, 18, the leavening agent selected can be organic acid; thus, the baking powder is free of phosphate salt and the claim amount includes 0. For claims 8, 19, Mastenbroek does not disclose adding a separating agent and the claimed range includes 0. For claim 10, the carbonate selected includes calcium carbonate so the powder is free from other carbonate. For claims 11, 21, the baking powder of Mastenbroek includes embodiment consist of calcium carbonate and organic acid. Mastenbroek discloses on page 5 lines 1-5, the yeast extract can be added to the dough separate from the baking powder. Thus, the baking powder does not need to include the yeast extract. For claim 12-13, Mastenbroek discloses baking mixture and food product comprising the baking powder. For claim 15, Mastenbroek discloses mixing the baking powder with further food ingredient and the baking powder release carbon dioxide. For claim 16, Mastenbroek discloses citric acid. ( see page 2 line 5 through page 3 line 3, pages 4-5 and example 1)
Mastenbroek does not disclose the calcium carbonate as a natural ground , the percent and the gas release rate and amount of calcium carbonate as in claim 1, the source as in claim 3, the amount as in claim 6 and the ratio as in claim 7
Zimmerman discloses calcium-enriched baked good. Zimmerman teaches to use ground calcium carbonate from limestone. The limestone is ground to have particle size passing through a 325 US mesh.. ( see col 7 lines 12-50)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a natural source of calcium carbonate obtained from limestone as taught in Zimmerman as using an alternative ingredient to provide the same function of providing a calcium carbonate source. One of ordinary skill in the art would have been motivated to use limestone so that the baking powder can be considered a natural product. Zimmerman teaches the limestone is ground. Mastenbroek discloses the amount of carbonate and acid can vary depending on the source. It would have been obvious to one of ordinary skill in the art to follow the guideline of percent of carbonate and acid as set forth in example 1 and to adjust depending on the type of acid and carbonate to obtain the most optimum release of carbon dioxde. Generally, difference in concentration does not support patentability in absence of showing of criticality or unexpected result. The amount of gas release depends on the amount of baking powder use. Since Mastenbroek in view of Zimmerman discloses the same components of natural calcium carbonate and organic acid, it’s expected the gas release rate is similar to the claimed range. How the release rate is determined is processing parameter which does not determine the patentability of the product. It would have been within the ordinary skill of one in the art to determine the molar ratio of the carbonate and the acid group so to obtain the most optimum liberation of gas for proper leavening. It would have been an obvious matter of choice to use the acid and its salt and to determine the proper ratio to obtain the optimum reaction with the carbonate to produce proper leavening. Optimization is within the skill of one in the art.
Claim(s) 4,14,17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mastenbroek in view of Zimmerman as applied to claims 1-3, 5-13,15-16, 18-19,21 above, and further in view of Lang ( CA 02657464).
Mastenbroek in view of Zimmerman does not disclose the particle sizes of calcium carbonate.
Lang discloses a powder comprising an organic acid and calcium carbonate powder having a median particle below about 30 microns. Lang discloses the calcium carbonate has a median particle size of .05 micron to about 30 microns or from about 10 microns to about 15 microns. ( see paragraphs 0029,0034,0038,0039,0041)
Zimmerman teaches the limestone is ground. It would have been obvious to one of ordinary skill in the art to grind the limestone to the size specification required in Lang because Lang discloses a powder comprising a mixture of organic acid and calcium carbonate. It would have been obvious to one of ordinary skill in the art to follow the guideline of Lang and optimize the particle sizes depending on the textural feel desired for the baking powder. If a very fine powder is wanted, it would have been obvious to grind the limestone to very small particle sizes. Such parameter can readily be determined by one of ordinary skill in the art through routine experimentation.
Response to Arguments
Applicant's arguments filed 2/9/26 have been fully considered but they are not persuasive.
In the response, applicant argues that Mastenbroek does not disclose 40-70% ground calcium carbonate. This argument is not persuasive. It’s acknowledge that Mastenbroek does not disclose the amount of calcium carbonate as claimed. The calculation is done to show that the amount of acid falls within the claimed range. The rejection also states “ Mastenbroek discloses the amount of carbonate and acid can vary depending on the source. It would have been obvious to one of ordinary skill in the art to follow the guideline of percent of carbonate and acid as set forth in example 1 and to adjust depending on the type of acid and carbonate to obtain the most optimum release of carbon dioxde. Generally, difference in concentration does not support patentability in absence of showing of criticality or unexpected result”. Determining the proper optimum amounts of acid and carbonate is a result effective variable to obtain optimum degree of leavening. Such variable can readily be determined by one skilled in the art through routine experimentation. Applicant further argues Zimmerman does not cure the deficiencies of Mastenbroek. Zimmerman is not relied upon to teach the amount of calcium carbonate. The reference is relied upon to teach the natural source of calcium carbonate.
Applicant further argues Mastenbroek repeatedly includes sodium in its baking powder. The examiner respectfully disagrees. Masternbroek discloses different options including one that is free of sodium. Matenbroek explicitly discloses on page 2 lines 17-18 that the leavening agents can be tartaric acid, citric acid and potassium and calcium salts of tartaric acid and citric acid. Thus, the baking powder includes embodiment that is free of sodium. Applicant points to the example. The example is only one exemplified disclosure; it’s not the totality of the teaching.
Applicant further argues that Mastenbroek and Zimmerman do not disclose the same components of natural calcium carbonate and organic acid at least in that they do not teach the weight percentage of the natural ground calcium carbonate. This argument is not persuasive. Mastenbroek discloses the amount of carbonate and acid can vary depending on the source. It would have been obvious to one of ordinary skill in the art to follow the guideline of percent of carbonate and acid as set forth in example 1 and to adjust depending on the type of acid and carbonate to obtain the most optimum release of carbon dioxde. Generally, difference in concentration does not support patentability in absence of showing of criticality or unexpected result”. Determining the proper optimum amounts of acid and carbonate is a result effective variable to obtain optimum degree of leavening. Such variable can readily be determined by one skilled in the art through routine experimentation. The amount of gas release also depends on the amount of baking powder use and such parameter is within the determination of one skilled in the art. Mastenbroek does not just turn to additional ingredients to serve as leavening agents as contended by applicant because Mastenbroek discloses the components as claimed and the use of natural ground calcium carbonate is taught by Zimmerman. Applicant points to the comparative showing of figure 7B. However, the showing is against a conventional baking powder; it’s not against Mastenbroek in view of Zimmerman disclosure. Mastenbroek discloses baking powder comprising calcium carbonate and organic acids such as citric acid and tartaric acid. The motivation to use natural ground calcium carbonate is explained in the rejection.
Applicant also argues Lang fails to cure the deficiencies of Mastenbroek and Zimmerman in that it does not disclose a baking powder as recited in claim 1. The Lang reference is only relied upon for the teaching of particle sizes. In response to applicant's arguments against the references individually, 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).
Conclusion
THIS ACTION IS MADE FINAL. 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.
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April 22, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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