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 a Request for Continued Examination filed on December 12, 2025.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 12, 2025 has been entered.
Status of Application
The amendment filed December 12, 2025 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 8 have been amended. Claims 1 and 6-8 are hereby examined on the merits.
The previous 112(b) rejections of claims 1 and 6-8 have been withdrawn in view of applicant’s claim amendments.
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 amendment has overcome the 112(b) rejections of claims 1 and 6-8 from the previous office action and therefore these rejections have been withdrawn.
Applicant’s arguments with respect to claims 1 and 6-8 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.
The new ground of rejection relies on a new primary prior art reference, Miyata et al., to reject the claims at hand. While the same secondary prior art reference, Song et al., is used, applicant does not specifically challenge or argue its use. However, applicant does state that Song discusses breeding new types of wheat, arguing that Song teaches a fundamentally different approach to creating a flour than what is claimed. While Song does discuss breeding new types of wheat, Song also teaches using these wheats to produce flour and subsequently make bread and noodles from these flours. Thus, Song teaches the same, if not similar, approach to creating a flour as what is claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 8:00-5:00 EST.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791