DETAILED ACTION
Background
The amendment dated August 18, 2025 amending claim 1 has been entered. Claims 1-19 as filed with the amendment have been examined. In view of the amendment all outstanding claim objections have been withdrawn.
Claim 12 as filed with the amendment is improperly marked with underlined text at line 3, as a space before “water” and the term “with” in line 5 when it was amended and should be without any markings in the presentation of text. 37 C.F.R. 1.121(c)(3).
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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 18, 2025, has been entered.
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 3, 16 and 18 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.
Regarding instant claims 3, 16 and 18, in claim 3, at line 2, in claim 16 at line 4 and claim 18 at line 3 (three instances) the “substantially” is a relative term which renders the claim indefinite. The term “substantially free of inulin” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. How much inulin comprises a substantial amount is not clear.
The Office interprets the term “substantially free of inulin” in a biscuit or dough broadly to include a biscuit or dough that contains no added inulin or that contains an amount of inulin that does not impact in some unspecified way on the claimed biscuit or dough, and does not interpret the term “substantially free of” as having any specific limit.
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.
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.
Claim 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over US 6919098 B2 to Ratka et al. (Ratka) in view of US 2011/0104338 A1 to Coleman et al. (Coleman), both of record.
Regarding instant claims 1 and 6-7, Ratka at Abstract discloses a dough and biscuits made therefrom comprising an organic acid. At Table 1 on col. 10, lines 33-40, Ratka discloses the biscuit dough comprising 30 to 51 wt% flour, 5 to 28 wt% shortening, from 2 to 15 wt % of humectant, such as (at col. 7, lines 16-17) a sugar, and from 1 to 5 wt % of a leavening system comprising from 0.5 to 2.5 wt % acidic leavening agent which, at col. 8, lines is monocalcium phosphate hydrate or its anhydride (MCP or AMCP), and from 0.5 to 2.5 wt % basic leavening agent which, at col. 8, lines 10-15, is one or more bicarbonates. Ratka at col. 3, lines 52-64 discloses wheat flours having a coarser texture and having varied textures as well as combinations of wheat flours. Further, Ratka at col. 10, lines 1-8 discloses a dough comprising an organic acid to preserve color, including citric acid, ascorbic acid, malic acid and tartaric acid as in claim 6 in an amount effective to provide a pH in a range of between about 5 and about 8.5.
Further regarding instant claim 1, Ratka discloses a dough comprising (i) from 5 to 28 wt % of shortening which overlaps the claimed 15 to 30 wt % of fat disclosed in the dough; (ii) from 2 to 15 wt % of sugar, which overlaps the claimed 10 to 30 wt% of sweetener; and, (iii) as its acidic leavening agents from 1 to 5 g/30 to 51 g or about 2 g to about 16.6 g/ 100 g flour of bicarbonate ion and dihydrogen phosphate ion concentration, which overlaps the claimed total bicarbonate ion and dihydrogen phosphate ion concentration ranging from 4 g/100 g of flour to 6.5g/100g flour. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Ratka would have found it obvious to include in its biscuit the claimed amounts of fat, sweetener, one or more acids and total bicarbonate ion and dihydrogen phosphate ion concentration because Ratka discloses that it is desirable to use those amounts make a biscuit.
Ratka does not disclose an example of a dough or biscuit from a dough comprising a dihydrogen phosphate. However, the ordinary skilled artisan in Ratka would desire to use any of the acidic leavening agents disclosed at col. 8, lines 17-25 to trigger the release of carbon dioxide in the dough of Ratka. The Office considers a dihydrogen phosphate as claimed to include each of the monocalcium phosphate hydrate or its anhydride disclosed in Ratka.
Further, Ratka does not disclose an example of a dough comprising 0.25 to 2.0 wt % of material derived from one or more acids or salts thereof having a pKa of less than 6.5 as claimed. However, each of the citric acid, ascorbic acid, malic acid and tartaric acid and the pH range of 5 to 8.5 disclosed at col. 10, lines 1-8 of Ratka appear to comprise substantially the same things as the claimed acids in substantially the same amounts in the dough as claimed. Absent a clear showing as to how the pKa and the amount of the organic acids in the dough the Ratka having a pH of 5 to 8.5 differs from the acids or salts thereof and their amount in the dough as claimed, the Office considers the biscuit dough in Table 1 and col. 10, lines 1-8 of Ratka to include an acid or salt thereof having a pKa of less than 6.5 in the amount of from 0.25 to 2.0 wt % of the dough as claimed. See MPEP 2112.01.I.
Still further, Ratka does not disclose a dough comprising a flour that comprises a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour. However, Ratka discloses at col. 3, lines 39-42 its dough for use in making biscuits and crackers.
Coleman at [0031] and Table 1 accompanying discloses crackers comprising wheat flour, oil or fat, sweetener, water and leavening agent, wherein at [0032] Coleman discloses a combination of wheat flour with other flours, and, further, wherein at [0030] Coleman discloses the crackers having improved shelf-stability and organoleptic properties. Further, at Example 1 Coleman discloses crackers comprising fat, sugar as sweetener, water, 25.8 kg of flour and 19.5 kg graham flour, as well as calcium phosphate monobasic, which is a dihydrogen phosphate. The disclosed combination of graham flour and wheat flour in Coleman comprises a proportion of 19.5 kg/(19.5 + 25.8 kg) graham flour, or a weight ratio of about 43:57 of graham flour to wheat flour.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Coleman for Ratka to make its dough to comprise as flour a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour. Both references disclose dough comprising a combination of wheat flours, fat, sweetener and water as well as dihydrogen phosphates. The ordinary skilled artisan working in Ratka would have desired to use a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour as in Coleman to provide a desirable texture in a cracker as in Ratka which provides improved shelf-stability and organoleptic properties as in Coleman.
Regarding instant claims 2-5, the citric acid, ascorbic acid, malic acid and tartaric acid disclosed at col. 10, lines 1-8 of Ratka appear to comprise substantially the same things as the claimed acids. Absent a clear showing as to how the organic acids in the dough the Ratka differs from the claimed acids or salts thereof, the Office considers the biscuit dough in Table 1 and col. 10, lines 1-8 of Ratka to include an acid or salt thereof having a pKa ranging from 3.5 to 5.5 as in claim 2, a pKa of less than 4.0 as in claim 3, a solubility in water of at least 1 gram per gram of water at 20 °C as in claim 4, and a thermal decomposition temperature of at least 170 °C as in claim 5. See MPEP 2112.01.I.
Further regarding instant claim 3, the biscuit of Ratka as modified by Coleman as disclosed at Table 1 of Ratka does not disclose any ingredient that contains inulin or that “substantially” contains inulin.
Regarding instant claim 8, Ratka does not disclose a dough further comprising one or more acidic leavening agents in an amount ranging from about 0.5g/100g flour to 4g/100g flour. However, in view of the disclosure of multiple acidic leavening agents in a total amount of from about 2 g to about 16.6 g/100 g flour at col. 8, lines 17-26 of Ratka, it would have been obvious to include one dihydrogen phosphate along with 0.5 to 4 g/100 g flour of sodium glucono-delta lactone (col. 8, line 26) or a pyrophosphate in addition to a dihydrogen phosphate. An amount of 0.5 to 4 g/100 g flour plus 4 to 6.5 g/ 100 g flour, or 4.4 to 10.5 g/ 100 g flour lies within disclosed about 2 to about 16 g/ 100 g flour disclosed in Ratka, which discloses that it is obvious as desirable to use the claimed amounts of an acidic leavening agent. See MPEP 2144.05.I.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over US 6919098 B2 to Ratka et al. (Ratka) in view of US 2011/0104338 A1 to Coleman et al. (Coleman), as applied to claim 1 above, and further in view of US 2008/0280003 A1 to Coyle (Coyle), of record.
As applied to claim 1, Ratka at Table 1 on col. 10 and at col. 10, lines 1-8 as modified by Coleman at [0030]-[0032] and Table 1 discloses a biscuit made from a dough comprising 30 to 60 wt % of flour, fat, a sweetener, one or more acids or salts thereof having a pKa of less than 6.5 and total bicarbonate ion and dihydrogen phosphate ion concentration ranging from 4 g/100 g of flour to 6.5g/100g flour, wherein the flour comprises a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour.
Regarding instant claims 9-10, Ratka as modified by Coleman does not disclose a dough further comprising native wheat starch as in claim 9, or a biscuit comprising 15 to 35 wt % of inclusions.
Coyle discloses at Abstract batter compositions for making baked goods and comprising (at [0005]) a batter (“dough”) of flour, sweetener, fat, a leavening system and water. Coyle at [0079] discloses compositions comprising a flour replacement to limit enzymatic and oxidative reactions, including (at [0080)] native wheat starch. Further, Coyle at [0146] discloses baked good with additives including inclusions in the amount of about 1 to about 15 wt % of the dough composition, which the claimed range of 15 to 35 wt % overlaps. See MPEP 2144.05.I. The ordinary skilled artisan in Coyle would have found it obvious to include the claimed amount of inclusions comprising sweetener, colorant and acidulant as it discloses the desirability of using those amounts of inclusions in a biscuit.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Coyle for Ratka as modified by Coleman to include native wheat starch in its dough and to combine the dough with inclusions to make baked goods. All references are drawn to doughs for making baked goods comprising flour, fat and sweeteners. The ordinary skilled artisan working with Ratka would have desired in to include a native wheat starch in its dough as in Coyle to control or limit undesirable side reactions in the dough and would have desired to make its backed goods using 15 to 35 wt % of inclusions as in Coyle to improve the texture and flavor of its biscuits and enhance the range of flavors of the biscuits.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable US 6919098 B2 to Ratka et al. (Ratka) in view of US 2011/0104338 A1 to Coleman et al. (Coleman) and US 2008/0280003 A1 to Coyle (Coyle), as applied to claim 10 above, and further in view of US 2014/0220198 A1 to Konuklar (Konuklar), of record.
As applied to claim 10, Ratka at Table 1 on col. 10 and at col. 10, lines 1-8 as modified by Coleman at [0030]-[0032] and Table 1 and Coyle at [0146] discloses a biscuit made from a dough comprising 30 to 60 wt % of flour, fat, a sweetener, one or more acids or salts thereof having a pKa of less than 6.5, total bicarbonate ion and dihydrogen phosphate ion concentration ranging from 4 g/100 g of flour to 6.5g/100g flour and 15 to 35 wt% of inclusions, wherein the flour comprises a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour.
Ratka as modified by Coleman and Coyle does not disclose inclusions comprising sweetener, colorant and acidulant.
Konuklar at [0066] discloses gelled inclusions comprising a gellant (“gelling agent”), an acidulant, (at [0068]) a sweetener and other ingredients including at [0075] a colorant. At [0073] Konuklar discloses strawberry and apple cinnamon fruit pieces which would desirably include all of a sweetener, a colorant.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Konuklar for Ratka as modified by Coleman and Coyle to include as its inclusions an inclusion comprising sweetener, colorant and acidulant. All references disclosed sweetened baked goods made from dough comprising water, sweetener, flour, fat and leavening agents, including biscuits and baked goods. The ordinary skilled artisan in Ratka as modified by Coleman would have desired to include all of a sweetener, colorant and acidulant in the inclusions of Ratka as modified by Coleman so as to include as the inclusion of Coyle a sour or tangy fruit piece like that of Konuklar.
Claims 12-13 and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over US 6919098 B2 to Ratka et al. (Ratka) in view of US 2011/0104338 A1 to Coleman et al. (Coleman) and RU 2622722 C1 to Ivanova (Ivanova), of record.
All references to Ivanova refer to the previously provided Clarivate machine translation.
Regarding instant claim 12, Ratka at col. 2, lines 23-26 discloses a method for preparing a biscuit dough comprising blending all dry ingredients to form a mixture of dry ingredients and mixing with water to form a dough. At Table 1 on col. 10, Ratka discloses mixing flour, water, fat and sweetener as a humectant and acidic and basic leavening agents, including, respectively, one more acids or salts. At col. 11, lines 27-29 Ratka discloses mixing flour and dry ingredients and the water or wet ingredients including glycerin, the liquid as one or more sugars as a solution. Further, Ratka at col. 7, lines 16-23 discloses a humectant including corn syrup, which the Office considers to be a liquid comprising one or more sugars. And Ratka at col. 3, lines 52-64 discloses wheat flours having a coarser texture and having varied textures as well as combinations of wheat flours. Accordingly, the ordinary skilled artisan would have found it obvious in view of Ratka to include humectants as one or more sugars and combine them in or with water to form a solution to mix with flour to make a dough and bind the moisture in the dough while controlling the overall water content of the dough in Ratka (as at the Abstract and claim 9) to keep it the same as it would be when using a solid humectant.
Further regarding instant claim 12 and regarding instant claim 18, at col. 10, lines 1-8, Ratka discloses one or more of citric and malic acids (claim 18) as a color preservative; and, Ratka discloses one or more other acids comprising one or more of oxalic acid, acetic acid, tartaric acid and ascorbic acid. All of the Ratka disclosed acids are substantially identical to the claimed acids and are found to have a pKa of less than 5.0. See MPEP 2112.01.I. In addition, the biscuit of Ratka as disclosed at Table 1 of Ratka does not disclose any ingredient that contains inulin or that “substantially” contains inulin (claim 18).
However, Ratka does not disclose combining the water, one or more sugars, one or more oils, and one or more acids or salts thereof in water to form an acidic solution, and combining the acidic solution with flour to form a dough. Further, Ratka does not disclose a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour.
Ivanova at Substance on page 1 discloses a method for producing a biscuit as a semi-finished product comprising making biscuit dough by mixing the components at the first stage: mélange (butter and oil), granulated sugar, invert syrup, baking soda, table salt, emulsifier, glycerin, water, citric acid, potassium sorbate, vegetable fat and treacle to form an acidic solution, and then adding wheat flour at the second stage. At Effect on page 2, Ivanova discloses that the method increases the organoleptic properties of the finished product and preserves product shape during manufacturing and storage.
Coleman at [0031] and Table 1 accompanying discloses crackers comprising wheat flour, oil or fat, sweetener, water and leavening agent, wherein at [0032] Coleman discloses a combination of wheat flour with other flours, and, further, wherein at [0030] Coleman discloses the crackers having improved shelf-stability and organoleptic properties. Further, at Example 1 Coleman discloses crackers comprising fat, sugar as sweetener, water, 25.8 kg of flour and 19.5 kg graham flour, as well as calcium phosphate monobasic, which is a dihydrogen phosphate which is an acid salt. The disclosed combination of graham flour and wheat flour in Coleman comprises a proportion of 19.5 kg/(19.5 + 25.8 kg) graham flour, or a weight ratio of about 43:57 of graham flour to wheat flour.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ivanova for Ratka to combine the one or more sugars and one or more acids or salts thereof with the water or wet ingredients to make an acidic solution and mix it with flour to form a dough for making biscuits. All references disclose making dough for biscuits comprising water, sugar, fat and flour. The ordinary skilled artisan working in Ratka would have desired to include a sugar and one or more acids or salts thereof in the water or wet mixture of a dough to increase the organoleptic properties of the finished product and preserve product shape during manufacturing and storage as in Ivanova.
Further, before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Coleman for Ratka as modified by Ivanova to make its dough to comprise as flour a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour. All references disclose dough comprising a combination of flours, fat, sweetener and water as well as one or more acids or salts thereof. The ordinary skilled artisan working in Ratka and Ivanova would have desired to use a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour as in Coleman to provide a desirable texture in a cracker as in Ratka as modified by Ivanova which also provides improved shelf-stability and organoleptic properties as in Coleman.
Regarding instant claim 13, Ratka at Abstract discloses a dough and biscuits made therefrom comprising an organic acid. At Table 1 on col. 10, lines 33-40, Ratka discloses the biscuit dough comprising 30 to 51 wt % flour, 5 to 28 wt% shortening (“fat”), from 2 to 15 wt % of humectant, such as (at col. 7, lines 16-17) a sugar (“sweetener”), which the claimed amount of 10 to 30 wt% sweetener overlaps, and from 1 to 5 wt % of a leavening system comprising from 0.5 to 2.5 wt % acidic leavening agent which, at col. 8, lines is monocalcium phosphate hydrate or its anhydride (MCP or AMCP), and from 0.5 to 2.5 wt % basic leavening agent which, at col. 8, lines 10-15, is one or more bicarbonates. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, Ratka at col. 10, lines 1-8 discloses a dough comprising an organic acid to preserve color, including citric acid and malic acid in an amount effective to provide a pH in a range of between about 5 and about 8.5.
Further regarding instant claim 13, the claimed 15 to 30 wt % of fat overlaps the 5 to 28 wt % of shortening disclosed in the dough of Table 1 on col. 10 of Ratka. Further, the claimed 10 to 30 wt% of sweetener overlaps the 2 to 15 wt % of humectant disclosed in Ratka at Table 1. And the claimed total bicarbonate ion and dihydrogen phosphate ion concentration ranging from 4 g/100 g of flour to 6.5g/100g flour overlaps the 1 to 5 g/30 to 51 g or about 2 g to about 16.6 g/ 100 g flour of the bicarbonate ion and dihydrogen phosphate ion concentration disclosed in Table 1 of Ratka as its acidic leavening agents. See MPEP 2144.05.I. The ordinary skilled artisan in Ratka would have found it obvious to use the claimed amount of fat and sweetener in the claimed method of making a dough because Ratka discloses that such amounts of fat and sweetener are desirable for making a dough.
Still further regarding instant claim 13, Ratka does not disclose an example of a dough or biscuit from a dough comprising a dihydrogen phosphate. However, the ordinary skilled artisan in Ratka would desire to use any of the acidic leavening agents disclosed at col. 8, lines 17-25 to trigger the release of carbon dioxide in the dough of Ratka. The Office considers a dihydrogen phosphate as claimed to include each of monocalcium phosphate hydrate or its anhydride that are disclosed in Ratka.
Yet still further regarding instant claim 13, Ratka does not disclose an example of a dough comprising 0.25 to 2.0 wt % of material derived from one or more acids or salts thereof having a pKa of less than 6.5 as claimed. However, each of the citric acid, ascorbic acid, malic acid and tartaric acid and the pH range of 5 to 8.5 disclosed at col. 10, lines 1-8 of Ratka appear to comprise substantially the same things as the claimed acids in substantially the same amounts in the dough as claimed. Absent a clear showing as to how the pKa and the amount of the organic acids in the dough the Ratka having a pH of 5 to 8.5 differs from the acids or salts thereof and their amount in the dough as claimed, the Office considers the method wherein the biscuit dough is as disclosed in Table 1 and col. 10, lines 1-8 of Ratka to include an acid or salt thereof having a pKa of less than 6.5 in the amount of from 0.25 to 2.0 wt % of the dough as claimed. See MPEP 2112.01.I.
Regarding instant claims 16-17, the citric acid, ascorbic acid, malic acid and tartaric acid disclosed at col. 10, lines 1-8 of Ratka as modified by Ivanova and Coleman appear to comprise substantially the same things as the claimed acids. Absent a clear showing as to how the organic acids in the dough the Ratka differs from the claimed acids or salts thereof, the Office considers the biscuit dough in Table 1 and col. 10, lines 1-8 of Ratka to include an acid or salt thereof having a solubility in water of at least 0.3 gram per gram of water at 20 °C as in claim 16, a thermal decomposition temperature of at least 170 °C as in claim 5. See MPEP 2112.01.I. In addition, the biscuit of Ratka as disclosed at Table 1 of Ratka does not disclose any ingredient that contains inulin or that “substantially” contains inulin (claim 16).
Regarding instant claim 19, the ordinary skilled artisan would have found it obvious in view of Ivanova for Ratka to include its own citric or malic acid as an organic acid (col. 10, lines 1-8) in the manner of Ivanova to form a wet acidic solution in Ratka as modified by Ivanova. Further, the claimed dough that contains no inulin, includes the dough of Table 1 of Ratka that does not include any inulin in any ingredients
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over US 6919098 B2 to Ratka et al. (Ratka) in view of RU 2622722 C1 to Ivanova (Ivanova) and US 2011/0104338 A1 to Coleman et al. (Coleman) as applied to claim 13, above, and further in view of US 2008/0280003 A1 to Coyle (Coyle) and US 2014/0220198 A1 to Konuklar (Konuklar).
As applied to claim 13, Ratka at col. 2, lines 23-26, Table 1 on col. 10 and at col. 10, lines 1-8 as modified by Ivanova at Substance on page 1 and Coleman at [0030]-[0032] and Table 1 discloses a method of making a dough comprising method of combining water, one or more sugars, one or more oils, and one or more acids or salts thereof in water to form an acidic solution, the one or more acids or salts thereof, and combining the acidic solution with flour to form a dough, wherein the dough comprises 30 to 60 wt % of a flour that is a combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour, and the one or more acids or salts has a pKa of less than 6.5 and a total bicarbonate ion and dihydrogen phosphate ion concentration ranging from 4 g/100 g of flour to 6.5g/100g flour.
Ratka as modified by Ivanova and Coleman does not disclose from 15 to 35 wt% of the dough of inclusions (claim 14), and does not disclose inclusions comprising sweetener, colorant, gelling agent and acidulant as in claim 15.
Coyle discloses at Abstract batter compositions for making baked goods and comprising (at [0005]) a batter (“dough”) of flour, sweetener, fat, a leavening system and water. Coyle at [0146] discloses baked good with additives including inclusions in the amount of about 1 to about 15 wt % of the dough composition. The Office considers the about 15 wt % of inclusions of Coyle to overlap the claimed range of 15 to 35 wt %. See MPEP 2144.05.I.
Konuklar at [0066] discloses gelled inclusions comprising a gellant (“gelling agent”), an acidulant, (at [0068]) a sweetener and other ingredients including at [0075] a colorant. At [0073] Konuklar discloses strawberry and apple cinnamon fruit pieces as inclusions which would desirably include colorant.
Regarding instant claim 14, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Coyle for Ratka as modified by Ivanova and Coleman to combine its dough with from 15 to 35 wt % of inclusions, based on the weight of the dough to make baked goods. All references are drawn to doughs for making baked goods comprising flour, fat and sweeteners. The ordinary skilled artisan working with Ratka would have desired in to make its baked goods using inclusions as in Coyle to improve the texture and flavor of its biscuits and enhance the range of flavors of the biscuits.
Regarding instant claim 15, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Konuklar for Ratka as modified by Ivanova and Coleman to include as its inclusions an inclusion comprising sweetener, colorant, gelling agent and acidulant. All references disclosed sweetened baked goods made from dough made by combining water, sweetener, flour and fat, including biscuits and baked goods. The ordinary skilled artisan in Ratka as modified by Ivanova, Coleman and Coyle would have desired to include all of a sweetener, colorant, gelling agent and acidulant in the inclusions of Ratka as modified by Ivanova , Coleman and Coyle that combine in the dough an inclusion as in Coyle as a sour or tangy and chewy fruit piece of Konuklar.
Response to Arguments
The positions taken in the Remarks accompanying the amendment dated August 18 (Reply), with respect to claims 1-19 have been fully considered but are not found persuasive for the following reasons:
Regarding the positions taken in the Reply at page 5 alleging that the claimed “substantially free of inulin” is definite because the ordinary skilled artisan would understand that this means less than a substantial amount, or that it includes a trace amount or includes compositions in which inulin was not intentionally added, respectfully the position taken does not establish that the term substantially free of inulin is reasonably clear and definite to the ordinary skilled artisan. What is a trace or insubstantial amount is not clear. Further, the instant specification at page 8, 2nd to last paragraph includes hydrocolloids, which themselves may or may not comprise inulin.
Regarding the positions taken in the Reply at pages 5-6 alleging that Ratka does not disclose how to create improvements in biscuits with high acid content that yield baked goods having properties similar to the properties of lower-acid baked goods (e.g. coloration and spread during baking) respectfully, the alleged improvements have not been demonstrated. Further, Ratka at col. 10, lines 1-8 specifically discloses color preservative because of the presence of its acids.
Regarding the positions taken in the Reply at page 6 that Ratka does not disclose the claimed combination of graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour, the rejections rely on the combination of Ratka with Coleman and not on Ratka itself. Further, regarding the allegation that one cannot assume that the combination Coleman which discloses a cracker translates to biscuit dough, respectfully Ratka at col. 3, lines 36-44 discloses that its dough makes both crackers and biscuits. The Office finds that a biscuit or dough includes a sweetened, leavened cracker and its dough. So, the biscuits and dough therefor in Ratka and Coleman are each a sweet cracker containing leavening and its dough.
Regarding the positions taken in the Reply at page 6 that there is no reasoning provided as to why the ordinary skilled artisan in Ratka would use the claimed amount of graham flour as in Coleman, respectfully it is sufficient that Ratka at col. 3, lines 36-66 and Coleman each disclose crackers and doughs therefor comprising coarse wheat flour and that graham flour is a desirable form of coarse wheat flour.
Regarding the further position taken at pages 6-8 that Coleman does not indicate an improvement in shelf stability as in Ratka and that providing a desirable texture for Ratka “makes no sense, and is not a proper motivation to combine the references” or “does not set forth any sort of rationale providing a link between factual findings and the legal conclusion of obviousness”, respectfully the fact that the inventor may have recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Further, the rejection cites Ratka at col. 3, lines 52-64 which discloses the texture in question. Where, as here when the art itself provides the facts in question, the Office has no duty to do more to combine the references. Even just the different flavor of graham flour as in Coleman as a coarse wheat flour is sufficient motivation to combine Ratka and Coleman, to say nothing of the fact that references both disclose making desirable biscuits. In fact, the list of motivations provided in the Reply at pages 7-8 simply underscores this point: Both Ratka and Coleman disclose wheat and graham flour as coarse wheat flours to make a desirable biscuit or cracker; and both references disclose known elements as coarse wheat flours by use of which one predictably obtains a desirable biscuit or cracker. See MPEP 2143.
Regarding the positions taken in the Reply at page 8 alleging an improved spread as disclosed at [0013] of the instant specification, respectfully, this position is based on mere allegation even if is part of the Applicant’s disclosure; and, the biscuit of Ratka as modified by Coleman or Ratka as modified by Ivanova and Coleman appears to be substantially the same thing as the claimed biscuit. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997). See MPEP 2145.
Regarding the positions taken in the Reply at pages 8-10 alleging that the subject matter of claims 9-10 would have been non-obvious due to Coyle not only failing to provide a reason to modify Ratka, but also because Coyle teaches away from implementing its subject matter in a dough such as described by Ratka allegedly because Coyle discloses that a batter and a dough define distinct things with the batter being “less viscous and lacking gluten development”, respectfully Coyle at [0061] discloses that a batter is scoopable just like the of Ratka and at [0075] discloses batters comprising 20 to 40 wt% flour, which the 30 to 51 wt% of Ratka overlaps and the 30 to 60 wt% of flour in claims 1-11 and 13-19 also overlap. The facts do not bear out the alleged teaching away. Further, even if this rationale were somehow improper, which it is not the fact remains that Coyle at [0146] discloses inclusions well as particulates and flavor chips, both of which the Office considers as inclusions while Ratka at Table 2 on col. 14 discloses cheese pieces which the Office considers as flavor chips. Thus, inclusions in Coyle are a substitute for flavor chips which one expects to use to provide flavor and modify the texture of doughs.
Regarding the positions taken in the Reply at page 10 alleging that Ivanova does not draw a connection between the inclusion of sugar and acids or salts thereof in water and any organoleptic properties and/or shape, respectfully the Office disagrees. At Effect on page 2, Ivanova itself discloses that its method increases the organoleptic properties of the finished product and preserves product shape during manufacturing and storage; and the Office is entitled to use Ivanova for all it discloses! So, Ivanova at Substance on page 1 discloses adding liquid sweetener and fat to a liquid phase as a method of making dough; and Ratka discloses making dough as at col. 2, lines 23-26 by combining liquids and then solids and, further discloses at col. 5, lines 51-65 liquid oils as fats and at col. 9, lines 57-60 syrups and liquids as sweeteners. It is a routine matter for the ordinary skilled artisan to combine known liquids together as in Ratka and Ivanova with the expectation that the resulting dough provides improved organoleptic properties and/or shape.
Regarding the positions taken in the Reply at pages 10-11 attacking the combination of Ratka and Ivanova by suggesting that the combination of Ratka with art disclosing graham flour and wheat flour having a weight ratio of 40:60 to 60:40 graham flour to wheat flour was somehow a combination with Ivanova, respectfully the Reply appears confused between Coleman and Ivanova. The rejection merely uses the requisite formulation of combining Ratka as modified by Ivanova with Coleman because the rejection combined Ratka with Ivanova first and then combined that with Coleman. The rejection combines Ratka with Coleman, not Ivanova to show the obviousness of the claimed combination of combination of graham flour and wheat flour.
Regarding the positions taken in Reply at pages 8-11 alleging that it is not proper to combine Ratka with Coleman, these positions merely repeat positions already addressed and are taken as a general allegation of patentability. See 1.111(b).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US2014/0099421 A1 to Zhao at [0114] discloses a dough for a shelf-stable cracker or cookie, such as a graham cracker comprising about 40 to about 65 wt% of a stabilized flour, about 15 to about 25 wt% of at least one sugar, about 5 wt% to about 25 wt% of at least one fat and about 0.5 to about 1.5 wt% of a bicarbonate salt, wherein at Table 2 on page 14, the flour is treated with lactic acid in the amounts of 4250 ppm (0.425 wt%, based on the weight of the flour), 6038 ppm (0.604 wt%, based on the weight of the flour), 8500 ppm (0.850 wt%, based on the weight of the flour) and 10000 ppm (1 wt%, based on the weight of the flour).
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/ANDREW E MERRIAM/Examiner, Art Unit 1791