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 Status
In the Claim set filed on 19 November 2025 Claims 2, 4, 8, 10, and 14 have been cancelled and claims 18-22 have been newly added.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3, 5-7, 9, 11-13, 16-17, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Short Milling Co. (GB 1114436) in view of Beekman et al. (herein referred to as Beekman, WO 2019115669 A1) and Ultrus (“Westhove Wheat TM80”) with evidence from Becker et al. (Herein referred to as Becker, WO 2014205161 A1)
With regard to Claim 1,Short Milling Co. teaches a baking additive powered for the improvement of baked goods (page 2, lines 11-14, page 2 line 23, Short Milling Co. reads such that the compositions is a uniform admixture of a particulate solid. This description is equivalent to a powder). The composition comprising enzyme particles in the form of lipoxidase-bearing material constituting 5-85% of the total weight (page 2, lines 31-32, 93-94 Short Milling Co. reads such that the lipoxidase-bearing material is enzymatically active material), oil in the form of enzyme-peroxidizable fat constituting 3-30% of the total weight (page 2, lines 35-36 104-105 Short Milling Co. reads such that the enzyme-peroxidizable fat includes oils of vegetable), and a non-enzymatic diluent particle, in the form of an extender material, constituting 10-70% of the total mixture (page 2, lines 33-34) with an average particle size of 75-150 µm (page 3, lines 9-11). The extender material can include suitable inorganic materials such as calcium carbonate, tricalcium phosphate, and calcium sulfate (page 3, lines 4-6).
However, Short Milling Co. is silent regarding the Stokes diameter of the non-enzymatic diluent particles.
Ultrus teaches Westhove Wheat TM80 is a heat-treated wheat flour that is used as a carrier (whole document). Ultrus teaches Wheat flour has many applications in baked goods, soups, sauces, and meat products. This wheat flour differs from the many other wheat flours offered by its physical properties such as particle size and viscosity (whole document). Per Example 1 in applicants specification, applicant teaches wheat flour, specificallt Farigel TM45, TM80, and TM120 obtained from Westhove France, satisfies the stokes diameter limitation as instantly claimed. Thus, because Ultrus teaches Westhove Wheat TM80, the reference inherently teaches the claimed stokes diameter. See MPEP 2112.01 (II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Short Milling Co. teaches the extender material can be ant cereal flour such as wheat flour (page 2, lines 123-125). Thus, it would have been obvious to one with ordinary skill in the art to modify Short Milling Co. to substitute the Westhove Wheat TM80 as taught by Ultrus as the extender material because it is a known equivalent in the art. See MPEP 2144.06 discusses combining or substituting equivalents known for the same purpose. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.
However, Short Milling Co. is silent to the enzyme particles having a mass median diameter (D50) of 20-200 µm.
Beekman teaches an enzyme granulate which can be used as an additive for baking (Page 6, lines 20-28). Beckman teaches the granulate consists of enzyme granule with 60% to 97% of the enzyme granules having a particle size of 63 to 224 µm (page 3, lines 30-35). Beekman teaches the enzyme particle size is adapted to the particle size of the carrier to ensure homogenous distribution (page 1, lines 32-33). Beekman teaches particle size is determined using sieve analysis (page 3 lines 34-35). One with ordinary skill in the art would recognize sieve analysis or sieve screening is utilized for the determination of mass median diameter as evidenced by Becker who teaches using sieve analysis to find the mass median diameter of a granule used as a baking additive (Example 2 page 47 lines 5-10). Therefore, given the particle size (diameter) taught by Beekman overlaps with the claimed mass median diameter and the same method taught by Beekman can determine the mass median diameter and the applicant fails to identify the criticality of the mass median diameter over the particle size (diameter), it can be reasonably concluded that Beekman discloses the claim property sufficiently that it does not contribute to an inventive step.
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Short Milling Co. in view of Beekman to include the particle size taught by Beekman to ensure a homogenous distribution with the carrier particle. This parameter can be easily adjusted through routine optimization. See MPEP 2144.05(II) Routine optimization.
In addition, Short Milling Co. is silent to the angle of repose.
Beekman teaches measurement of the angle of repose of a powder is based on the principle that a powder flows from a small aperture at the bottom of a glass container to form a conical shaped mountain. The angle of the slope of the "mountain" with the base line is a measure for the flowability (page 9, lines 34-37). Beekman teaches a degree of flowability (angle of repose) less than 30 is excellent, 31-35 is good, 36-40 is fair, and 41-45 is passable (Table 1). Beekman teaches addition of oil to fine-particle enzyme granules can cause clotting of the granulate which may result in poor flowability (page 2 lines 1-2).
Therefore, it would have been obvious to one with ordinary skill in the art before to modify Short Milling Co. in view of Beekman to have an angle of repose less than 45 degrees to have a “passable” flowability and most preferably below 30 degrees. Poor flowability is associated with clotting so advantageously, having good flowability would achieve less clotting.
With regard to Claim 3, it is important to note this claim has product by process limitations, See MPEP 2113(I) "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process."
Regardless, Short Milling Co. is silent to the enzyme particles are prepared by spray drying.
Beekman teaches the enzyme particles are prepared by spray drying (page 4, lines 15-16) Beekman teaches spray drying is a method of producing a dry powder or dry particle from a liquid or a slurry which is known to a person skilled in the art (page 4, lines 17-18).
Therefore, Beekman impart reasoning for obviousness because the teaching shows that the claimed method of spray drying was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select the technique of spray drying because it would have been obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 5, Short Milling Co. teaches lipoxidase-bearing material constituting 5-85% of the total weight of the baking additive (page 2, lines 31-32).
With regard to Claims 6, Short Milling Co. teaches the enzyme is an oxidase (page 2, lines 31-32).
With regard to Claims 7 and 9, Short Milling Co. teaches the oil comprises an edible vegetable oil including sunflower oil and soybean oil (page 2, lines 99-108).
With regard to Claim 11, 12, and 17, Short Milling Co. teaches the diluent particle comprises calcium carbonate (page 3 lines 4-6). Short Milling Co. teaches Rather than a single extender material, a combination of two or more different extender materials can be employed (page 3, lines 11-14).
One with ordinary skill in the art would recognize calcium carbonate is a salt and has a density of 2711 kg/m3. See MPEP 2112.01(II) "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to Claim 13, Short Milling Co. is silent to the baking additive containing ascorbic acid.
Beekman teaches the baking additive comprising the enzyme granules usually comprises one or more further components which can include ascorbic acid used as an oxidant (page 6, lines 11-16).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Short Milling Co. in view of Beekman to incorporate ascorbic acid into the composition to include an oxidant (page 6, lines 11-16). It is well known in the art to use an oxidant to prevent or slow down oxidation.
associated with clotting so advantageously, having good flowability would achieve less clotting.
With regard to Claim 16, Short Milling Co. is silent to the enzyme particles having a mass median diameter (D50) of 100-200 µm.
Beekman teaches an enzyme granulate which can be used as an additive for baking (Page 6, lines 20-28). Beckman teaches the granulate consists of enzyme granule with 60% to 97% of the enzyme granules having a particle size of 63 to 224 µm (page 3, lines 30-35). Beekman teaches the enzyme particle size is adapted to the particle size of the carrier to ensure homogenous distribution (page 1, lines 32-33). Beekman teaches particle size is determined using sieve analysis (page 3 lines 34-35). One with ordinary skill in the art would recognize sieve analysis or sieve screening is utilized for the determination of mass median diameter as evidenced by Becker who teaches using sieve analysis to find the mass median diameter of a granule used as a baking additive (Example 2 page 47 lines 5-10). Therefore, given the particle size (diameter) taught by Beekman overlaps with the claimed mass median diameter and the same method taught by Beekman can determine the mass median diameter and the applicant fails to identify the criticality of the mass median diameter over the particle size (diameter), it can be reasonably concluded that Beekman discloses the claim property sufficiently that it does not contribute to an inventive step.
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Short Milling Co. in view of Beekman to include the particle size taught by Beekman to ensure a homogenous distribution with the carrier particle. This parameter can be easily adjusted through routine optimization. See MPEP 2144.05(II) Routine optimization.
With regard to Claims 21 and 22, Short Milling Co. is silent to the angle of repose.
Beekman teaches measurement of the angle of repose of a powder is based on the principle that a powder flows from a small aperture at the bottom of a glass container to form a conical shaped mountain. The angle of the slope of the "mountain" with the base line is a measure for the flowability (page 9, lines 34-37). Beekman teaches a degree of flowability (angle of repose) less than 30 is excellent, 31-35 is good, 36-40 is fair, and 41-45 is passable (Table 1). Beekman teaches addition of oil to fine-particle enzyme granules can cause clotting of the granulate which may result in poor flowability (page 2 lines 1-2).
Therefore, it would have been obvious to one with ordinary skill in the art before to modify Short Milling Co. in view of Beekman to have an angle of repose less than 45 degrees to have a “passable” flowability and most preferably below 30 degrees. Poor flowability is
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Short Milling Co. (GB 1114436) in view of Beekman et al. (WO 2019115669 A1), Ultrus (“Westhove Wheat TM80”), and Simonsen et al. (herein referred to as Simonsen, WO 2019234042 A1).
With regard to Claim 18, Short Milling Co. is silent to the diluent particles comprising sodium chloride or potassium chloride.
Simonsen teaches a solid enzymatic unit-dose article for use in baking (abstract). Simonsen teaches the dough may comprise flour derived from wheat that can used as a carrier (page 9 lines 4-6, page 20 Example 6) Simonsen teaches the powder contains dough ingredients which can consist of salts and more specifically sodium chloride or potassium chloride (page 2 lines 12-13, page 5 line 33).
Therefore, Simonsen imparts reasoning for obviousness because the teaching shows that salt, more specifically sodium chloride or potassium chloride, was a known ingredient in a baking additive containing enzymes using in conjunction with wheat flour and published at the time of filing which means it was within the general skill of one with ordinary skill in the art to select sodium chloride or potassium chloride as an ingredient in a baking additive containing enzymes in conjunction with wheat flour on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 19, Short Milling Co. is silent to the diluent particles comprising sodium chloride or potassium chloride, and a sugar binding agent.
Simonsen teaches a solid enzymatic unit-dose article for use in baking (abstract). Simonsen teaches the powder contains dough ingredients which can consist of salts and more specifically sodium chloride or potassium chloride (page 2 lines 12-13, page 5 line 33). In addition, Simonsen teaches the composition can comprise sugar (page 5 line 33) wherein the sugar may have the dual role of being both a dough ingredient and a "binding agent" (page lines 34-35).
Therefore, Simonsen imparts reasoning for obviousness because the teaching shows that salt, more specifically sodium chloride or potassium chloride, was a known ingredient in a baking additive containing enzymes while being used in conjunction with sugar as a binding agent and published at the time of filing which means it was within the general skill of one with ordinary skill in the art to select sodium chloride or potassium chloride with sugar as ingredients in a baking additive containing enzymes on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 20, Short Milling Co. is silent to the diluent particles comprising sucrose.
Simonsen teaches a solid enzymatic unit-dose article for use in baking (abstract). Simonsen teaches the powder contains dough ingredients which can comprise sugar (page 5 line 33) wherein the sugar may be sucrose (page 6 lines 11-16).
Therefore, Simonsen imparts reasoning for obviousness because the teaching shows that sucrose was a known ingredient in a baking additive containing enzymes and published at the time of filing which means it was within the general skill of one with ordinary skill in the art to select sucrose as an ingredient in a baking additive containing enzymes on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Response to Arguments
Applicant's arguments filed 19 November 2025 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to the non-enzymatic diluent particles having a Stokes diameter of 130-290 µM have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
With regard to applicants arguments in reference to the angle of repose, Short Milling Co. is silent to the angle of repose but Beekman teaches a degree of flowability (angle of repose) less than 30 is excellent, 31-35 is good, 36-40 is fair, and 41-45 is passable (Table 1). Thus, teaches an angle of repose less than 60 and provides ample motivation to modify Short Milling Co. Thus, applicants arguments with regard to the angle of repose are not found to be persuasive.
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.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792