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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5, 7-10, 12-16 and 21 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 due to the phrase “and wherein the mixing is at about 65 to about 80F (about 18 to about 27C)”. 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Though the specification teaches at par. 0013 “In approaches of the methods, the grain based slurry and grain-based binder composition are cold processed. That is, the slurries and binder compositions are not heated during processing (until subsequent baking) and processed at ambient or room temperature, such as about 65 to about 80 °F or about 70 to about 75 °F.” The specification and drawing are silent to controlled mixing at a defined temperature range. The claim requires the active method step of mixing where the slurry temperature itself is claimed to be limited to the specific range. However the specification teaches the claimed temperature of 65 to about 80F with respect to during processing, i.e. ambient or room temperature which is different from a claimed temperature attained of the slurry itself during mixing. In addition, the claimed “and wherein the mixing is at about 65 to about 80F (about 18 to about 27C)” requires both a minimum and maximum being controlled. Applicants specification is silent to mixing at ambient conditions which are in excess of 80F and more specifically due to ambient conditions in excess of 80F reducing the temperature of the slurry to a maximum of 80F during mixing. Alternatively, where ambient conditions are less than 65F, heating the slurry to maintain the minimum mixing temperature of 65F.
Claims 1-5, 7-10, 12-16 and 21 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 due to the phrase “and wherein the binder composition is mixed for about 10 seconds to about 2 minutes at about 65 to about 80F”. 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Though the specification teaches at par. 0013 “In approaches of the methods, the grain based slurry and grain-based binder composition are cold processed. That is, the slurries and binder compositions are not heated during processing (until subsequent baking) and processed at ambient or room temperature, such as about 65 to about 80 °F or about 70 to about 75 °F.” the specification and drawing are silent to controlled mixing at a defined temperature range. The claim requires the active method step of mixing where the slurry temperature itself is claimed to be limited to the specific range. However the specification teaches the claimed temperature of 65 to about 80F with respect to during processing, i.e. ambient or room temperature which is different from a claimed temperature attained of the slurry itself during mixing. In addition, the claimed mixing “at about 65 to about 80F” requires both a minimum and maximum being controlled. Applicants specification is silent to mixing at ambient conditions which are in excess of 80F and more specifically due to ambient conditions in excess of 80F reducing the temperature of the binder composition to a maximum of 80F during mixing. Alternatively, where ambient conditions are less than 65F, heating the binder composition to maintain the minimum mixing temperature of 65F.
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 1-5, 7-10, 12-16 and 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 is rejected due to the phrase “and wherein the mixing is at about 65 to about 80F (about 18 to about 27C)” since it is unclear if the phrase requires a specific mixing temperature controlled to attain, i.e. 65 to about 80F of the slurry itself, if the phrase is with respect to general ambient conditions which are separate from an attained mixing temperature, if the phrase is with respect to controlled ambient temperatures in the claimed range or with respect to something different altogether.
Claim 1 is rejected due to the phrase “and wherein the binder composition is mixed for about 10 seconds to about 2 minutes at about 65 to about 80F” since it is unclear if the phrase requires a specific mixing temperature controlled to attain, i.e. 65 to about 80F of the binder composition itself, if the phrase is with respect to general ambient conditions which are separate from an attained mixing temperature, if the phrase is with respect to controlled ambient temperatures in the claimed range or with respect to something different altogether.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-5, 7-10, 12-16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Yang et al. (20170245508).
Yang teaches a method for preparing a food product including a grain-based binder (par. 0078) and being essentially free of intentionally added sugars (par. 0078), the method comprising:
mixing (par. 0028; par. 0109) a grain flour (par. 0109, 0078, 0091) with an oil (par. 0109, 0076; par. 0091) selected from the group consisting of vegetable oil, canola oil, sunflower oil, high oleic sunflower oil, soybean oil, corn oil, cottonseed oil, peanut oil, safflower oil, palm oil, coconut oil, rice bran oil, olive oil, sesame oil, and a combination thereof (par. 0021) to form a grain flour slurry (par. 0109; par. 0078 step a) wherein a grain particle is protected with a layer of the oil (par. 0109, 0076, 0078) coating the grain particle (mixture), the grain slurry includes about 30 to about 50 weight percent of the grain flour and about 50 to about 70 weight percent of the oil based on the total weight of the grain flour slurry (par. 0041 1:1)
Though silent to a mixing temperature, since Yang teaches a same binder which is oil and mixing with the grain flour, since Yang teaches forming a mixture, where the temperature of the oil would directly affect the viscosity and since Yang teaches the composition for its same intended purpose of as a binder of flour which has a viscosity for achieving an agglomerated food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach mixing at about 65 to about 80F (about 18 to about 27C) thus maintaining a desired viscosity of the for forming a homogenous mixture relative same component of the composition to achieve a viscosity which prevents pasting properties as taught by Yang (par. 0065 last 4 lines).
Yang teaches combining the grain flour slurry with one or more ingredients (par. 0109, par. 0076; taken with respect to additional one or more oils; par. 0091 subsequently mixed) to form a binder composition (par. 0109, par. 0076; par. 0091 subsequently mixed) and mixing the binder composition (par. 0091 subsequently mixed), where the one or more liquid ingredients includes water (par. 0040), wherein the binder composition including the grain flour slurry (par. 0109 par. 0091) maintains a viscosity before thermal processing (liquid)
mixing the binder composition and one or more dry ingredients to form an agglomerate (par. 0078 step b) and thermally processing the agglomerate (par. 0078; step c; par. 0057 last 3 lines) to activate the grain flour to increase the binder viscosity to form the agglomerate into a cohesive food product (par. 0057, 0078 food product). It is noted given that Yang discloses thermal processing as presently claimed, it is clear that the thermal processing would achieve a same “to active the grain flour” to increase the binder viscosity as presently claimed due to reducing the moisture content.
Though silent to explicitly teaching the addition a liquid ingredient after forming the oil and grain flour slurry, importantly Yang teaches the binder composition including one or more oils (par. 0076), that the terms fat and oil are used interchangeably (par. 0021) and in addition to teaching as an example (par. 0091) the grain flour mixed with milk and subsequently mixed with additional ingredients (par. 0091).
Thus since Yang teaches a first and second mixing step, since Yang teaches the first mixing step for the same purpose of forming a binder composition comprising oil (par. 0076; par. 0091, 0109). In a first instance, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a subsequent mixing step for the addition of additional ingredients relative a flour slurry including liquid ingredients in addition to teaching the grain flour and oil slurry optionally without additional ingredients.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combining the grain flour slurry with one or more liquid ingredients subsequent to forming the slurry as opposed to concurrently for its art recognized purpose of the addition of additional fat; one or more oils; i.e. both fat and oil as taught by Yang (par. 0076) depending on the binder composition use or product which it is incorporated (par. 0077), or alternatively the addition of liquid flavoring (par. 0077) for taste, or alternatively liquid colorants including dyes to produce a desired color (par. 0084) or preservatives which ensure the safety and quality of the product as further taught by Yang (par. 0085).
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to combining the grain flour slurry with one or more liquid ingredients subsequent to forming the slurry as opposed to concurrently for its art recognized purpose of the addition of additional fat; one or more oils; i.e. both fat and oil as taught by Yang (par. 0076) depending on the binder composition use or product which it is incorporated (par. 0077), or alternatively the addition of liquid flavoring (par. 0077) for taste, or alternatively liquid colorants including dyes to produce a desired color (par. 0084) or preservatives which ensure the safety and quality of the product as further taught by Yang (par. 0085).
Alternatively, since Yang teaches the addition of one or more oils. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine the grain flour slurry with one or more liquid ingredients including additional oil subsequent to forming the slurry for its art recognized purpose of the addition of further oil either to achieve a desired viscosity in the instant the first aliquot wasn’t enough or for the addition of multiple oils as taught by Yang (par. 0076) in subsequent stages depending on the binder composition use or product which it is incorporated (par. 0077).
Alternatively, since Yang teaches a first step of the addition of milk (par. 0091) and subsequently the addition of oil. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute one known ingredient for forming the binding composition with that of another for its same purpose as taught by Yang, and more specifically in the instant case combine the grain flour slurry with one or more oil ingredients for forming the binder composition in addition to or prior to the taught milk depending on the binder composition use or product which it is incorporated (par. 0077).
Though silent to the binder composition including the grain flour slurry maintains a viscosity of about 200 BU or less before thermal processing at a temperature about 100C or less, since Yang teaches a same binder which is fat or oil, since Yang is silent to a claimed heating, thus encompassing oil as a liquid and since Yang teaches the composition for its same intended purpose of as a binder of flour which has a viscosity for achieving an agglomerated food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a desired viscosity relative same component of the composition to achieve a viscosity which both achieves the homogenous mixture and prevents pasting properties as taught by Yang (par. 0065 last 4 lines).
Applicant is using known components to obtain expected results. There is nothing patentable unless the applicant, by a proper showing, further establishes acoaction or cooperative relationship between the selected ingredients, which produces a new, unexpected, and useful function. Applicant's claims are drawn to a combination of known components which produces expected results for achieving a binder for agglomerated food products.
It would have been obvious to one of ordinary skill in the art, at the time theinvention was filed to modify the teachings of Yang with respect to a desired viscosity of 200BU or less at a temperature of 100C or less because given the teaching of Yang, on how the process parameters of a desired liquid component and flour are interrelated, one of skill in the art would have a reasonable expectation of success that through routine experimentation they would impart the claimed viscosity of 200 BU or less and since the selection of something based on its known suitability for its intended use has been held to support a prima facie case of obviousness such as in the instant case achieving a binding composition.
Though silent to the second mixing temperature, since Yang teaches a same binder which is oil and mixing with the grain flour, since Yang teaches forming a mixture, where the temperature of the oil would directly affect the viscosity and since Yang teaches the composition for its same intended purpose of as a binder of flour which has a viscosity for achieving an agglomerated food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach mixing at about 65 to about 80F (about 18 to about 27C) thus maintaining a desired viscosity of the oil for forming a homogenous mixture relative same component of the composition to achieve a viscosity which prevents pasting properties as taught by Yang (par. 0065 last 4 lines).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach mixing at about 65 to about 80F (about 18 to about 27C) for a time of 10 seconds to 2 minutes since the time is dependent on the amounts both with respect to volume and ratio thus providing a time of mixing which achieves a homogenous mixture.
With respect to claim 2, the grain flour is a pre-gelatinized (heated with liquid; par. 0033 pre-soaked; par. 0034 steam; par. 0034 last 4 lines cook in water) grain flour obtained from barley, oat, wheat, corn, millet, buckwheat, quinoa, rice, sorghum, triticale flour, mixtures thereof (par. 0029), and their waxy varieties (par. 0029).
Wherein the grain flour is a pre-gelatinized whole oat flour (par. 0029).
With respect to claim 4, wherein the thermally processing includes baking (par. 0049) at a temperature of about 300 °F (par. 0049) for about 5 minutes to about 60 minutes (par. 0049).
With respect to claim 5, and the recitation in the claims the thermally processing generates steam to at least partially degrade the layer of fat or oil coating the grain particle to allow hydration of the grain flour particle. It is noted the claimed statements must be evaluated to determine whether the prior art is capable of performing the claimed recitation.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to generate steam during a same baking as taught by Yang at a same temperature as taught by Yang thus achieving an outcome based on the same composition and processing conditions and thus, one of ordinary skill in the art would have arrived at the claimed invention.
With respect to claim 7, wherein the food product includes about 30 to about 50 percent of the binder composition and about 50 to about 70 percent of the dry ingredients based on the total weight of the food product (par. 0067).
With respect to claim 8, since Yang teaches a same binder which is fat or oil, since the claims are silent to a temperature of the viscosity and since Yang teaches the composition for its same intended purpose of as a binder of flour which has a viscosity for achieving an agglomerated food product. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a desired viscosity relative same component of the composition to achieve a viscosity which prevents pasting properties as taught by Yang (par. 0065 last 4 lines).
Applicant is using known components to obtain expected results. There is nothing patentable unless the applicant, by a proper showing, further establishes acoaction or cooperative relationship between the selected ingredients, which produces a new, unexpected, and useful function. Applicant's claims are drawn to a combination of known components which produces expected results for achieving a binder for agglomerated food products.
It would have been obvious to one of ordinary skill in the art, at the time theinvention was filed to modify the teachings of Yang with respect to a desired viscosity of 80 to 130 BU at temperatures of about 95C because given the teaching of Yang, on how the process parameters of a desired liquid component and flour are interrelated, one of skill in the art would have a reasonable expectation of success that through routine experimentation they would impart the claimed viscosity of 80 to 130 BU at temperatures of about 95C and since the selection of something based on its known suitability for its intended use has been held to support a prima facie case of obviousness such as in the instant case achieving a binding composition.
With respect to claim 9, wherein the pre-gelatinized grain flour is a high amylopectin containing grain flour (par. 0030, 0032).
With respect to claim 10, since Yang teaches a pre-gelatinized grain flour comprising water (heated with liquid; par. 0033 pre-soaked; par. 0034 steam; par. 0034 last 4 lines cook in water) grain flour obtained from barley, oat, wheat, corn, millet, buckwheat, quinoa, rice, sorghum, triticale flour, mixtures thereof (par. 0029), and their waxy varieties (par. 0029). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach about 1 to about 4 percent water, about 5 to about 10 fat, about 10 to about 15 percent protein, and less than about 1 percent fiber relative a same properties of a same grain flour and since applicant is using known components to obtain expected results. There is nothing patentable unless the applicant, by a proper showing, further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected, and useful function. Applicant's claims are drawn to a combination of known components which produces expected results for achieving a binder for agglomerated food products.
Wherein the high amylopectin grain flour includes an amylopectin to amylose ratio of about 75 to 98 percent amylopectin (par. 0032) and about 2 to about 25 percent amylose (par. 0032).
With respect to claim 13, the high amylopectin grain flour is selected from oat flour, whole oat flour, and combinations thereof (par. 0029).
With respect to claim 14, since Yang teaches a same high amylopectin grain flour is selected from oat flour, whole oat flour, and combinations thereof (par. 0029) comprising water (heated with liquid; par. 0033 pre-soaked; par. 0034 steam; par. 0034 last 4 lines cook in water). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach the high amylopectin grain flour has about 1 to about 4 percent water, about 5 to about 10 fat, about 10 to about 15 percent protein, and less than about 0.5 percent fiber relative a same properties of a same grain flour and since applicant is using known components to obtain expected results. There is nothing patentable unless the applicant, by a proper showing, further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected, and useful function. Applicant's claims are drawn to a combination of known components which produces expected results for achieving a binder for agglomerated food products.
With respect to claim 15, wherein the one or more liquid ingredients include fruit juice (par. 0024), fruit puree (par. 0025), fruit concentrate (par. 0080), or blends thereof.
With respect to claim 16, wherein the one or more liquid ingredients include one or more liquid natural sweeteners (par. 0016).
With respect to claim 21, the mixing step a) is substantially free of water (par. 0109), where Yang teaches a same oil for combining with the whole grain flour and where the method is open, i.e. “comprising”.
Response to Arguments
With respect to applicants urging Yang is silent to the claimed two-step process including a first coating step. Importantly Yang teaches the addition to the whole grain for from a binder. Yang teaches the addition of oil singularly, i.e. without additional as Yang specifically teaches “or” relative other components (par. 0109). Thus Yang encompasses applicants same claimed grain flour slurry by coating the grain flour with oil, and more specifically an oil (par. 0109, 0076) selected from the group consisting of vegetable oil, canola oil, sunflower oil, high oleic sunflower oil, soybean oil, corn oil, cottonseed oil, peanut oil, safflower oil, palm oil, coconut oil, rice bran oil, olive oil, sesame oil, and a combination thereof (par. 0021) to form a grain flour slurry (par. 0109; par. 0078 step a).
With respect to applicants urging of hydrating, importantly Yang is not limited to hydrating and teaches the slurry of grain flour and oil (par. 0109; table). Where Yang further teaches hydrating as urged by applicant is optional.
In addition with respect to applicants urging of the addition of water by Yang prior to step a), it is noted the claimed method is open due to the phrase “comprising” and thus is not limited to the urged steps.
Importantly Yang teaches the grain flour mixed with one or more oils to form the binder composition (par. 0076)
With respect to applicants urging directed to the weight percent of the mixing step, Yang teaches a ratio of 1:1 of the grain to liquid of the binder composition (par. 0041).
With respect to applicants urging directed to the separate second mixing step. Importantly Yang teaches the grain flour first mixed with oil for forming a binder. The subsequent mixing and additional ingredients are merely limited to water comprising as taught by Yang such as juice or water (par. 0040) or even coloring.
Though silent to explicitly teaching the addition a liquid ingredient after forming the oil and grain flour slurry, importantly Yang teaches the binder composition including one or more oils (par. 0076), that the terms fat and oil are used interchangeably (par. 0021) and in addition to teaching as an example (par. 0091) the grain flour mixed with milk and subsequently mixed with additional ingredients (par. 0091).
Thus since Yang teaches a first and second mixing step, since Yang teaches the first mixing step for the same purpose of forming a binder composition comprising oil (par. 0076; par. 0091, 0109). In a first instance, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a subsequent mixing step for the addition of additional ingredients relative a flour slurry including liquid ingredients in addition to teaching the grain flour and oil slurry optionally without additional ingredients.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combining the grain flour slurry with one or more liquid ingredients subsequent to forming the slurry as opposed to concurrently for its art recognized purpose of the addition of additional fat; one or more oils; i.e. both fat and oil as taught by Yang (par. 0076) depending on the binder composition use or product which it is incorporated (par. 0077), or alternatively the addition of liquid flavoring (par. 0077) for taste, or alternatively liquid colorants including dyes to produce a desired color (par. 0084) or preservatives which ensure the safety and quality of the product as further taught by Yang (par. 0085).
In addition, it is not necessary that suggestion or motivation be found within the four comers of the reference(s) themselves. "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of... the explicit content of issued patents." KSR Int'l. Co. v. Teleflex lnc., 550 U.S. 398, 419. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416., The question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR, 550 U.S. at 417.
In addition, a conclusion of obviousness can be made from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Such as in the instant case, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to combining the grain flour slurry with one or more liquid ingredients subsequent to forming the slurry as opposed to concurrently for its art recognized purpose of the addition of additional fat; one or more oils; i.e. both fat and oil as taught by Yang (par. 0076) depending on the binder composition use or product which it is incorporated (par. 0077), or alternatively the addition of liquid flavoring (par. 0077) for taste, or alternatively liquid colorants including dyes to produce a desired color (par. 0084) or preservatives which ensure the safety and quality of the product as further taught by Yang (par. 0085).
Alternatively, since Yang teaches the addition of one or more oils. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine the grain flour slurry with one or more liquid ingredients including additional oil subsequent to forming the slurry for its art recognized purpose of the addition of further oil either to achieve a desired viscosity in the instant the first aliquot wasn’t enough or for the addition of multiple oils as taught by Yang (par. 0076) in subsequent stages depending on the binder composition use or product which it is incorporated (par. 0077).
Alternatively, since Yang teaches a first step of the addition of milk (par. 0091) and subsequently the addition of oil. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to substitute one known ingredient for forming the binding composition with that of another for its same purpose as taught by Yang, and more specifically in the instant case combine the grain flour slurry with one or more oil ingredients for forming the binder composition in addition to or prior to the taught milk depending on the binder composition use or product which it is incorporated (par. 0077).
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN N LEFF whose telephone number is (571)272-6527. The examiner can normally be reached on M-F 8:30-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)270-34753475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792