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 .
This office action is in regard to the application filed on September 11, 2022, and in response to Applicant’s Arguments/Remarks filed on April 13, 2026.
Status of Application
The amendment filed April 13, 2026, has been entered. Claims 1 and 6-8 are currently pending in the application. Claims 2-5 and 9 have been canceled. Claims 1 and 6-8 are hereby examined on the merits.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Miyata et al. (JP 2015154753) in view of Song et al. (CN 108739379; cited on PTO-892 dated March 14, 2025), herein after referred to as Miyata and Song.
Examiner’s note: citations of Miyata and Song refer to each respective machine translation.
Regarding claim 1, Miyata teaches a method for formulating a flour for noodles comprising:
mixing (i.e., blending) durum wheat flour (i.e., a first flour that is wheat flour) and roasted wheat flour (i.e., a second flour that is a second wheat flour) such that a blended flour is obtained [0023],
wherein the flour blend comprises 75-98 wt.% of the durum wheat flour (i.e., the first flour) and 2-25 wt.% of the roasted wheat flour (i.e., the second flour) (i.e., a blending ratio of 3:1-49:1) (claim 1).
The blending ratio range taught by Miyata overlaps with the claimed ratio range of 7:3-8:2, and where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Miyata is silent as to that the first flour is made from at least one of Zhengmai 366, Jimai 20 and Jimai 954072 and has a sedimentation value ≥ 46.0 mL and a dough development time ≥ 9.6 min, and the second flour is made from at least one of Lumai 1, Lumai 14, Qingfend 1 and Tainong 18. Miyata is also silent as to that the flour blend is for both bread and noodles.
Song, in the same field of invention, teaches a dual-purpose flour for both bread and noodles ([0015]-[0016]) that is made from either Zhengmai 366 and has a sedimentation value greater than or equal to 48 mL and a dough development time ≥ 10.5 min or Lumai 1. Song teaches that Zhengmai 366 and Lumai 1 are both wheat flours that are both suitable to be used in flour compositions for noodles and bread ([0071]-[0072]; [0080]; claim 2).
Therefore, as it was known in the art to produce noodle and bread flour with two wheat flours, it would have been obvious to one of ordinary skill in the art to have produced a blended flour with the flours as claimed by replacing the first and second wheat flours of Miyata with the Zhengmai 366 and Lumai 1 wheat flours, respectively, of Song, as Song teaches that the claimed flours are known to be used to produce both bread and noodles.
Regarding claim 6, modified Miyata teaches that the first flour (i.e., Zhengmai 366) has a sedimentation value ≥ 48.0 mL and a dough development time ≥ 10.5 min (Song: claim 2).
Regarding claim 7, modified Miyata teaches that the first flour (i.e., Zhengmai 366) has a sedimentation value ≥ 53.6 mL and a dough development time ≥ 11.9 min (Song: claim 3).
Regarding claim 8, modified Miyata teaches that the first flour is made from Zhengmai 366 as set forth above. Modified Miyata also teaches that the blending ratio by weight of the first flour to the second flour is 3:1 (Miyata: claim 1), which is outside of the claimed blending ratio of 7:3, but is close. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). The difference between the claimed ranges and the that of the prior art is virtually negligible absent any showing of unexpected results or criticality. See MPEP 2144.05.I.
Response to Arguments
Applicant's arguments filed April 13, 2026, have been fully considered but they are not persuasive.
Applicant argues that there is no motivation to combine the prior art references because Miyata does not teach a dual-purpose flour (Remarks, p. 5-8).
This argument is not persuasive. The prior art does not need to be modified for the same reason as the claimed invention. By using the flours of Song in the composition of Miyata, as Song teaches suitable flours for both bread and noodles, the flour made therefrom would also be suitable for both bread and noodles. The prior art does not need to explicitly teach that the reason for modification is to obtain a dual-purpose flour, but rather, the modification would result in a flour used for the claimed purposes. Per MPEP 2144.IV., the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.
Applicant argues that one of ordinary skill in the art would not be motivated to use the wheat varieties taught by Song because Song teaches them as inferior varieties (Remarks, p. 8).
This argument is not persuasive. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). See MPEP 2123. Merely because the prior art describes certain wheat varieties as inferior to other wheat varieties, does not mean that one of ordinary skill in the art would not have any motivation to use it. As long as it is suitable for use, there is sufficient motivation.
Applicant argues that the Office Action has not established why one of ordinary skill in the art would deviate from Miyata’s taught range where Miyata teaches a maximum of 25 mass% and instant claim 8 requires 30 mass% (Remarks, p. 8).
This argument is not persuasive. As stated in the rejection above and previously, there is a prima facie case of obviousness where ranges/amounts taught by the prior art are sufficiently close to the claimed ranges/amounts. A difference of only 5% is sufficiently close and a negligible difference, and thus, a prima facie case of obviousness exists. See MPEP 2144.05.I. There is also no showing by the applicant that this difference does indeed make a critical difference to the claimed invention.
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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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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