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 .
Status of the Application
This 2nd Final Action vacates and replaces the office action filed July 14, 2025 to correct claims 19-21 being rejected under 35 USC 102 rather than remaining rejected under 35 USC 103. The prior art references herein remain the same.
Receipt of the Response and Amendment after Non-Final Office Action filed May 27, 2025 is acknowledged.
It is noted that Applicant has corrected the misnumbering of the claims by correcting the presence of two claim 15s.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 3-13, 15-23
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
2, 14
Amended claims:
1, 3, 12, 18, 20, 21
New claims:
22, 23
Claims currently under consideration:
1, 3-13, 15-23
Currently rejected claims:
1, 3-13, 15-23
Allowed claims:
None
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: although support for claim 22 is provided in the drawings (Fig. 3, element 112 is a single opening with a shape that corresponds to the shape of the snack bar through which the fillings are extruded), the specification does not does not provide support for the language of the claim.
Claim Objections
Claim 22 is objected to because of the following informalities:
Change “corresponds” to “corresponding”;
After “to the shape” add “of the snack bar”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 22 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 22 is a product-by-process claim. Therefore, patentability will be based on the product itself. Because the limitation of the fillings being extruded together through a single opening does not uniquely affect the structure of the final product, they are not limiting. Therefore, claim 22 fails to further limit the product of claim 12.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 12, 13, 15, 17, 18, 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rapaport (US 2001/0002267 A1)(IDS Reference filed 12/14/2022).
Claim 12 is a product-by-process claim. MPEP §2113 states “[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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
The structure imparted by the process of claim 12 is a snack bar with a non-flowable primary filling and a secondary filling that extends halfway deep in the primary filling and is visible from the outside of the primary filling.
Regarding claim 12, Rapaport teaches an individual cheesecake snack comprising a crust on the bottom of the filling ([0010]), a cheesecake filling ([0015], where cheesecake is understood in the art to be a non-flowable material) and a fruit filling that is in a depression running the length of the cheesecake bar ([0020], Fig. 2), where Fig. 2B shows groove 20 filled with stuffing that is exposed ([0024]).
Fig. 2B shows the secondary filling in trough 20 extending down through the primary filling to approximately half the depth of the primary filling.
Regarding claim 13, Rapaport teaches all elements of claim 12 as described above. Rapaport also teaches a crust as a base ([0010]).
Regarding claim 15, Rapaport teaches all elements of claim 12 as described above. Fig. 2B shows an embodiment of the cheesecake bar where the top of the cheesecake 12 appears smooth. Additionally, Fig. 2B shows the secondary filling in trough 20 being visible from the top, and the secondary filling is substantially flush with the primary filling.
Regarding claim 17, Rapaport teaches all elements of claim 12 as described above. Rapaport also teaches wherein the primary filling is a cheesecake (Abstract).
Regarding claim 18, Rapaport teaches all elements of claim 17 as described above. Rapaport also teaches wherein a secondary filling includes a fruit puree ([0011]).
Claim 22 is a product-by-process claim. MPEP §2113 states “[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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
The structure imparted by the process of claim 22 is a snack bar with a primary and secondary filling. Because the shape of the single opening in claim 22 is not specified, there is no additional structure imparted by the claim limitation. Therefore, claim 22 fails to provide any further limitations from what is claimed in claim 12. Because claim 12 is obvious over Rapaport as described above, claim 22 is also obvious.
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 1-7, 9-11, 19-21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Rapaport (US 2001/0002267 A1)(IDS Reference filed 12/14/2022).
Regarding claim 1, Rapaport teaches an individual cheesecake snack comprising a crust on the bottom of the filling ([0010]), a cheesecake filling ([0015], where cheesecake is understood in the art to be a non-flowable material) and a fruit filling that is in a depression running the length of the cheesecake bar ([0020], Fig. 2), where Fig. 2B shows groove 20 filled with stuffing that is exposed ([0024]). Fig. 2B of Rapaport shows an embodiment of the cheesecake bar where the top of the cheesecake 12 appears smooth. Additionally, Fig. 2B shows the secondary filling in trough 20 being visible from the top.
Although the filling in trough 20 of Fig. 2B is not flush the with the top of the primary filling, this limitation is merely an aesthetic design of the snack bar. MPEP §2144.04(I) states “The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.”, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Because the secondary filling being flush with the primary filling does not provide a mechanical difference to the product, the product of Rapaport is not patentably distinct from that of the claimed invention.
Regarding claim 3, Rapaport teaches all elements of claim 3 as described above. Fig. 2B shows the secondary filling in trough 20 extending down through the primary filling to approximately half the depth of the primary filling.
Regarding claims 4-6, Rapaport teaches all elements of claim 1 as described above.
Although Rapaport does not teach that the secondary filling extends within the primary filling in a repeating pattern (claim 4), that the repeating pattern is non-linear (claim 5), or that the repeating pattern is sinusoidal (claim 6), the pattern of the filling is merely an aesthetic design choice. MPEP §2144.04(I) states “Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.”, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Because the pattern of the secondary filling in the primary filling does not result in a materially different function, the snack bar of claims 4-6 is not patentably distinct from the cheesecake taught by Rapaport.
Regarding claim 7, Rapaport teaches all elements of claim 1 as described above. Rapaport also teaches that in cheesecakes, the crust may be a crumb crust, such as graham cracker ([0002]).
Regarding claim 9, Rapaport teaches all elements of claim 1 as described above. Rapaport also teaches wherein the primary filling is a cheesecake (Abstract).
Regarding claim 10, Rapaport teaches all elements of claim 1 as described above. Rapaport also teaches wherein a secondary filling includes a fruit puree ([0011]).
Regarding claim 11, Rapaport teaches all elements of claim 1 as described above. Rapaport also teaches that single serving snack bars are 2 to 3.5 inches long and 1.5 to 2.3 inches wide ([0024]).
Regarding claims 19-21, Rapaport teaches all elements of claim 12 as described above.
Although Rapaport does not teach that the secondary filling extends within the primary filling in a repeating pattern (claim 19), that the repeating pattern is non-linear (claim 20), or that the repeating pattern is sinusoidal (claim 21), the pattern of the filling is merely an aesthetic design choice. MPEP §2144.04(I) states “Claim was directed to an advertising display device comprising a bottle and a hollow member in the shape of a human figure from the waist up which was adapted to fit over and cover the neck of the bottle, wherein the hollow member and the bottle together give the impression of a human body. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.”, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Because the pattern of the secondary filling in the primary filling does not result in a materially different function, the snack bar of claims 19-21 is not patentably distinct from the cheesecake taught by Rapaport.
Regarding claim 23, Rapaport teaches all elements of claim 12 as described above. Fig. 2B of Rapaport shows an embodiment of the cheesecake bar where the top of the cheesecake 12 appears smooth.
Although the filling in trough 20 of Fig. 2B is not smooth, this limitation is merely an aesthetic design of the snack bar. MPEP §2144.04(I) states “The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.”, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Because the filling being smooth on top does not provide a mechanical difference to the product, the product of Rapaport is not patentably distinct from that of the claimed invention.
Claims 8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Rapaport (US 2001/0002267 A1)(IDS Reference filed 12/14/2022) in view of Megan (Megan, “Salted Caramel Browned Butter Cheesecake”, Foods of our Lives, posted June 17, 2011 [accessed online February 12, 2025] https://www.foodsofourlives.com/2011/06/salted-butter-caramel-cheesecake-with-chocolate-shortbread-crust/).
Regarding claim 8, Rapaport teaches all elements of claim 1 as described above.
Rapaport does not teach wherein the secondary filling is a flowable material.
However, in the same field of endeavor, Megan teaches a recipe for salted caramel browned butter cheesecake comprising pouring caramel sauce on a cheesecake (p. 3, step 19); if the caramel sauce is poured onto the cheesecake, it necessarily follows that the caramel sauce is a flowable material.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the cheesecake snack taught by Rapaport with the use of a flowable caramel sauce taught by Megan. One would be motivated to make this modification because a flowable material, such as caramel sauce, is easier to incorporate in a non-flowable material because it will naturally fill whatever shape is made in the primary filling.
Regarding claim 16, Rapaport teaches all elements of claim 12 as described above.
Rapaport does not teach wherein the secondary filling is a flowable material.
However, in the same field of endeavor, Megan teaches a recipe for salted caramel browned butter cheesecake comprising pouring caramel sauce on a cheesecake (p. 3, step 19); if the caramel sauce is poured onto the cheesecake, it necessarily follows that the caramel sauce is a flowable material.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the cheesecake snack taught by Rapaport with the use of a flowable caramel sauce taught by Megan. One would be motivated to make this modification because a flowable material, such as caramel sauce, is easier to incorporate in a non-flowable material because it will naturally fill whatever shape is made in the primary filling.
Response to Amendment
Claim Rejections – 35 U.S.C. §102 of claims 1-3, 7, 9-15, 17, and 18 over Rapaport: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that following the amendment of claim 1, Rapaport does not the secondary filling being flush with the primary filling, as the secondary filling of Rapaport is clearly below the top surface of the primary filling (Remarks, p. 6, ¶ 3 – p. 7, ¶ 1).
This argument has been fully considered. However, following the amendment to claim 1, the rejection of claim 1 as being anticipated by Rapaport has been withdrawn, and a new grounds of rejection entered. The new rejection over Rapaport as described above is adequate to reject the current claims.
Applicant argued that the method of claim 12 does impart a structural characteristic to the product. Applicant asserts that the shape/structure of the cheesecake filling of Rapaport is not impacted by the fruit filling, and as such, claim 12 is not anticipated by Rapaport (Remarks, p. 7, ¶ 2).
This argument has been fully considered. However, the Examiner maintains that the product of claim 12 is not patentably distinct from that of Rapaport. MPEP §2113 states “[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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Although the process of claim 12 requires the secondary filling to deform the primary filling, the resulting product would be indistinguishable from a primary filling that has a cavity formed and a secondary filling applied to the cavity. The rejection of claim 12 has been maintained.
Applicant argued that Rapaport does not anticipate claim 15 because the inner filling is not flush with the cheesecake in Rapoport. Applicant asserts that no part of the fruit or other stuffing is disclosed to be level with the top surface of the filling, and is not even partially flush (Remarks, p. 8, ¶ 3 – p. 9, ¶ 1).
This argument has been considered. However, the Examiner maintains that although Fig. 2B of Rapaport does not show the inner filling as being level with the cheesecake portion, the inner filling is substantially flush. Although there is a small gap between the inner filling and outer filling in Fig. 2B as illustrated by the Applicant, one of ordinary skill would recognize that the inner filling is close to the height of that of the cheesecake. Because the specification does not provide a definition for “substantially flush”, one of ordinary skill would recognize that the inner filling is close in height to that of the outer filling. Additionally, MPEP §2144.04(I) states “The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.”, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Because the secondary filling being flush with the primary filling does not provide a mechanical difference to the product, the product of Rapaport is not patentably distinct from that of the claimed invention.
Claim Rejections – 35 U.S.C. §103 of claims 8 and 16 over Rapaport and Megan: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that Rapaport leads away from a flowable secondary filling and that modifying the product of Rapaport to include a flowable secondary material would yield a messy product that is undesirable for the purposes of Rapaport (Remarks, p. 8, ¶ 2).
This argument has been considered. However, Rapaport specifically states that the stuffings do not flow when stored for 120 days ([0020]). Because the instant specification does not define what constitutes a flowable material, the broadest reasonable interpretation of the claim would include ingredients that only flow under certain conditions, such as under pressure asserted to fill the center cavity of the snack food or flow when heated. Therefore, one of ordinary skill in the art would recognize that a material that is flowable under certain conditions but stable during storage would be usable for the filling. Caramel is well known in the art to become more solid under decreased temperatures. Therefore, one of ordinary skill would have found it obvious to use a pourable caramel that would then solidify after cooling.
The rejections of claims 1, 3-13, and 15-21 have been maintained herein.
Claim Rejections of new claims 22 and 23: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that claim 22 and claim 23 are not taught by Rapaport or Megan (Remarks, p. 9, ¶ 2 – p. 11, ¶ 1).
This argument has been considered. However, the examiner respectfully disagrees that claims 22 and 23 are not taught by Rapaport for the reasons set forth in the above rejection.
Conclusion
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Zoe, “Chocolate-Ginger Marbled Cheesecake ‘Bars’”, Zoe Bakes, published April 29, 2009 [accessed online July 3, 2025] https://web.archive.org/web/20110220005929/https://zoebakes.com/2009/04/29/chocolate-ginger-marbled-cheese-cake-bars/ – teaches a smooth top snack product
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 7:30a-5:00p, F 8:00a-12:00p.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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