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
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 13 February 2026 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the objection to claim 15 has been withdrawn; (2) the 112(b) rejection of claim 15 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-18
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 15
New claims: None
Claims currently under consideration: 1-18
Currently rejected claims: 1-18
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 13 February 2026 has been entered.
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, 6, and 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over Bin et al. (WO 2013/009176 A1, cited on the IDS filed on 24 October 2022).
Regarding claim 1, Bin teaches a method of producing a multicoated edible snack product (p. 1, lines 23-25; p. 7, lines 8-16) comprising the steps of:
providing an edible core having an outer surface and formed of a raw material – Bin teaches, “providing a dried fruit core…The fruit core may be a piece of dried fruit, a part of a dried fruit of a mix of dried fruits assembled together to form a proper core. Optionally, additional ingredients may be mixed into the fruit core.” (p. 1, lines 27-32). The core necessarily has an outer surface. According to the instant specification at paragraph [0022], dried fruits are considered to be an edible raw core.
applying a first layer over the outer surface of the edible core, the first layer including first cookable components and water – Bin teaches “application of at least one layer of pre-coating material to the dried fruit core” (p. 1, lines 28-29). The pre-coating material comprises a material that will form into a crunchy layer after curing, and is typically based on starch or flour, although it may comprise other ingredients. The pre-coating material may be a powder material such as starch or flour, but may also be applied as a liquid material such as a dough or a batter.” (p. 2, lines 1-5). A dough or batter comprises water.
cooking the first layer to form a cooked first layer over the edible core and produce water vapor – Bin teaches that “the curing or [sic] the pre-coating into a crunchy coating is preferably a heat treatment, in particular roasting, baking, frying or deep frying.” (p. 2, lines 6-7). Roasting, baking, frying, and deep frying are known methods of cooking. Bin discloses baking temperatures in the range of 120-180°C (p. 7, lines 8-10). Heating a water-containing composition, such as the dough or batter of Bin, through such cooking necessarily results in the production of water vapor.
applying a second layer over the cooked first layer, the second layer formed of second cookable components that expand upon cooking – Bin teaches multiple coating layers and multiple baking steps (p. 7, lines 15-16), and “[o]ptionally, the steps of adding an edible adhesive to the fruit cores and subsequent adding a precoating material such as starch may be repeated in order obtain a multilayered coating. Such coatings may have different physical properties such as different expansion coefficients, colour and flavours. Such differences may be used to obtain different properties in taste, texture and appearance of the final product.” (p. 6, lines 13-20). Applying an additional coating of ingredients with increased expansion coefficients after a first baking step to form a hardened first layer is within the scope of the disclosure of Bin and reads on this claim limitation.
and cooking the second layer to form an expanded second layer that provides a greater volume to the snack product – Bin teaches that “[d]uring baking the precoating materials such as flour or starch expand and are converted into a crispy layer. During baking the final shape, size, taste, and texture of the product evolves.” (p. 6, lines 27-31). Therefore, cooking a second layer to form an expanded second layer as claimed is within the scope of the teachings of Bin. Where the second layer expands, the volume of the snack product is also increased.
Bin is silent regarding the claim language, “the water vapor from the cooked first layer resulting in a humidity gradient between the cooked first layer and the overlaying second layer that contributes to the second layer not adhering to the cooked first layer during the cooking and expansion of the second layer”.
Regarding such claim language, MPEP § 2111.04(I) states, “Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure.” In the present case, the recited clause does not require any step to be performed outside of cooking the first layer, applying a second layer, and cooking the second layer. These steps are taught by Bin as described above. Therefore, the recited clause does not further limit the claimed method. Rather, the recited clause describes the recognition of a latent property of the composition produced by the claimed method. Indeed, the instant specification at paragraph [0047] recognizes, “A considerable humidity gradient may exist between the first heating or cooking step…that cooks the at least a first coating layer 11 and the at least a second coating layer 12 applied to the first coated cores 10, which may inhibit both coatings 11, 12 not [sic] adhering to each other and facilitating expansion of the second compound layer coating 12 during the second heating or cooking process…”.
As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”.
It is recognized that Bin teaches cooling the baked product to below 50°C between additional coatings (p. 7, lines 8-16). Even so, evaporation occurs above room temperature, and 50°C is well above room temperature. Additionally, where the second layer may also be a dough or batter, a humidity gradient must exist between the two layers and would “contribute to” any non-adherence of the second layer as claimed.
Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.01(I).
Since Bin teaches all required steps of the claimed method, and the recited clause merely recognizes a latent property of the composition produced by the method, the claimed properties are presumed to be present, and claim 1 is rendered obvious.
Regarding claim 6, Bin teaches the method of claim 1 as described above.
As mentioned above, Bin teaches that curing the layers may be achieved by roasting, baking, frying or deep frying. (p. 2, lines 6-7) and that “[d]ifferent visual effects and texture sensations may be achieved using two, three or even more coating layers. Multiple layers of similar or different composition may be applied in order to achieve products having for instance a special visual appearance or a special texture giving a special palatial sensation” (p. 3, line 32-p. 4, lines 1-4), and “[t]he intermediate product may undergo multiple baking and coating steps, depending on the desired product.” (p. 7, lines 5-6). Bin further teaches that “[t]he pre-coating material may be a powder material such as starch or flour, but may also be applied as a liquid material such as a dough or a batter.” (p. 2, lines 3-5).
Bin does not specifically discuss that the step of cooking the first layer includes baking the first layer and the step of cooking the second layer includes frying the second layer.
However, MPEP § 2141.03(I) states, “‘A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.’ KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). Office personnel may also take into account ‘the inferences and creative steps that a person of ordinary skill in the art would employ.’ Id. at 418, 82 USPQ2d at 1396”. It is considered to be of the level of one of ordinary skill in the art to have recognized that since the methods of roasting, baking, frying, and deep frying are disclosed, and multiple rounds of applying layers and curing said layers are disclosed, that one could cure the layers by different means (i.e., baking one layer and frying another).
Therefore, it would have been obvious for one of ordinary skill in the art to devise an embodiment of Bin wherein the first layer is baked and the second layer is fried. One of ordinary skill in the art would have been motivated to do so in order to provide consumers with a coated snack product with alternative organoleptic properties. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Bin discloses multiple methods of curing multiple layers of coatings and the level of ordinary skill in the art would have been such that one would recognize that a different method could be applied to each layer to impart different organoleptic properties to each layer to achieve a desired outcome in the final product.
Claim 6 is therefore rendered obvious.
Regarding claim 10, Bin teaches the method of claim 1, wherein the edible core is selected from the group consisting of nuts, nut derivatives, fruits, dried fruits, fruit derivatives, and a combination or mixture of the foregoing – Bin discloses, “providing a dried fruit core…The fruit core may be a piece of dried fruit, a part of a dried fruit of a mix of dried fruits assembled together to form a proper core.” (p. 1, lines 27-32), and non-fruity ingredients such as nut particles may be added to the fruit core (p. 3, lines 9-10).
Claim 10 is therefore rendered obvious.
Regarding claim 11, Bin teaches the method of claim 1, wherein the step of cooking the first layer includes sealing the edible core – Bin teaches that pre-coated raisins were baked and cooled, resulting in a product with a hardened coating (p. 7, lines 8-11). Formation of this hardened coating reads on sealing the edible core.
Claim 11 is therefore rendered obvious.
Regarding claim 12, Bin teaches the method of claim 1, further comprising applying a binder layer over the edible core before the step of applying the first layer to enhance adherence of the cooked first layer to the edible core – Bin teaches, “In a first step, an adhesive liquid is added to the fruit cores. Suitable edible adhesive liquids include sugar water and syrups. The adhesive attaches to the fruit cores to yield adhesive-coated fruit cores. Subsequently, a precoating material such as flour or starch is added which attaches to the adhesive-coated fruit cores.” (p. 5, lines 27-30). The adhesive liquid is a binder layer to which the first layer coating is applied to enhance adherence of the hardened first layer to the edible core.
Claim 12 is therefore rendered obvious.
Regarding claim 13, Bin teaches the method of Claim 1, further comprising applying a flavor enhancer over the expanded second layer – “…the product can be finalized by adding for instance colorants, spices, flavouring, as fluids or powders.” (p. 7, lines 23-24).
Claim 13 is therefore rendered obvious.
Regarding claim 14, Bin teaches the method of claim 1 as described above.
Bin does not specifically discuss that the cooked first layer has a thickness and the expanded second layer has a thickness greater than the thickness of the cooked first layer.
However, in the embodiment described regarding claim 1, the hardened first layer, would inherently have a thickness, and the expanded second layer, due to its greater expansion properties relative to the first layer, would have a greater thickness than the thickness of the hardened first layer.
Therefore, claim 14 is rendered obvious with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claims 2-5 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Bin et al. (WO 2013/009176 A1, cited on the IDS filed on 24 October 2022) in view of Mochizuki et al. (US 4499113 A, cited on the IDS filed on 27 November 2023) and Decoding Delicious (Back to Basics: The Science of Frying. Decoding Delicious. 10 May 2013. Accessed on 12 March 2025 from https://web.archive.org/web/20190915173431/ https://www.decodingdelicious.com/the-science-of-frying/).
Regarding claims 2-5, Bin teaches the method of claim 1 as described above.
Bin teaches that curing the layers may be achieved by roasting, baking, frying or deep frying (p. 2, lines 6-7).
Bin does not discuss that the step of cooking the second layer includes cooking the second layer in an edible frying fluid to contribute to the formation of air bubbles between the expanded second layer and the cooked first layer (re: claim 2), wherein the step of cooking the second layer includes frying the second layer (re: claim 3), wherein the edible frying fluid is a cooking oil (re: claim 4), or wherein the step of cooking the second layer includes frying the second layer in a cooking oil to create air bubbles between the expanded second layer and the cooked first layer (re: claim 5).
However, Mochizuki teaches coating a core material with two layers of expandable starch material and then frying the coated core in a cooking oil to form a snack product with an expanded coating (col. 8, line 60 – col. 9, line 16, “Example 1”). This is a variation of the teachings of Bin wherein the coated core and baked first layer are coated with an expandable material and then fried to form an expanded second layer.
Decoding Delicious teaches that frying in oil results in faster heat transfer compared to baking (p. 1, ¶ 1), and this results in bubbles of rapidly escaping steam from the food (p. 2, ¶ 2). Decoding Delicious further teaches that adding batters or breadings protects the food from violent surface reactions of frying, retains moisture, and provides a pleasant flavor and texture (p. 4, ¶ 1). The image of fried battered fish (p. 4) shows bubbling beneath the batter where the coating has partially separated from the “core” after frying.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Bin with the teachings of Mochizuki and Decoding Delicious to fry the expandable second layer in a cooking oil to contribute to creating air bubbles between the expanded second layer and the cooked first layer. First, Bin teaches that the layers may be cured by roasting, baking, frying, or deep frying (p. 2, lines 6-7), and that a first and second layer may be formed as described regarding claim 1 above. Further, Mochizuki teaches frying a core material coated in expandable starchy layers in cooking oil (col. 8, line 60 – col. 9, line 16, “Example 1”). Decoding Delicious teaches that adding batter results in bubbling beneath the batter and partial separation of the coating from the “core” after frying (i.e., creating air bubbles between layers) (p. 4, image). One of ordinary skill in the art would have been motivated to do so in order to provide consumers with a coated snack product with alternative organoleptic properties. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Mochizuki teaches that a core with an expandable outside coating prepared in the disclosed way provides a preferred appearance, crispiness, texture, and taste (col. 8, lines 49-53, Table 3).
Claims 2-5 are therefore rendered obvious.
Regarding claim 15, Bin teaches a method of producing a multicoated edible snack product (p. 1, lines 23-25; p. 7, lines 8-16) comprising the steps of:
providing an edible core having an outer surface and formed of a raw material – Bin teaches, “providing a dried fruit core…The fruit core may be a piece of dried fruit, a part of a dried fruit of a mix of dried fruits assembled together to form a proper core. Optionally, additional ingredients may be mixed into the fruit core.” (p. 1, lines 27-32).
applying a first layer over the outer surface of the edible core, the first layer formed of first cookable components and water – Bin teaches “application of at least one layer of pre-coating material to the dried fruit core” (p. 1, lines 28-29). The pre-coating material comprises a material that will form into a crunchy layer after curing, and is typically based on starch or flour, although it may comprise other ingredients. The pre-coating material may be a powder material such as starch or flour, but may also be applied as a liquid material such as a dough or a batter.” (p. 2, lines 1-5). A dough or batter comprises water.
cooking the first layer to form a cooked first layer over the edible core and produce water vapor – Bin teaches that “the curing or [sic] the pre-coating into a crunchy coating is preferably a heat treatment, in particular roasting, baking, frying or deep frying.” (p. 2, lines 6-7). Roasting, baking, frying, and deep frying are known methods of cooking. Bin discloses baking temperatures in the range of 120-180°C (p. 7, lines 8-10). Heating a water-containing composition, such as the dough or batter of Bin, through such cooking necessarily results in the production of water vapor.
applying a second layer over the cooked first layer, the second layer formed of second cookable components that expand upon cooking – Bin teaches multiple coating layers and multiple baking steps (p. 7, lines 15-16), and “[o]ptionally, the steps of adding an edible adhesive to the fruit cores and subsequent adding a precoating material such as starch may be repeated in order obtain a multilayered coating. Such coatings may have different physical properties such as different expansion coefficients, colour and flavours. Such differences may be used to obtain different properties in taste, texture and appearance of the final product.” (p. 6, lines 13-20). Applying an additional coating of ingredients with increased expansion coefficients after a first baking step to form a hardened first layer is within the scope of the disclosure of Bin and reads on this claim limitation.
Bin does not specifically discuss frying the second layer in an edible frying fluid to form an expanded second layer and to create air bubbles between the expanded second layer and cooked first layer. Bin is silent regarding the claim language, “the water vapor from the cooked first layer resulting in a humidity gradient between the cooked first layer and the overlaying second layer that contributes to the second layer not adhering to the cooked first layer during the frying and expansion of the second layer” and “wherein the edible frying fluid contributes to the formation of air bubbles between the expanded second layer and the cooked first layer”.
Regarding frying the second layer to create air bubbles between the expanded second layer and cooked first layer, Mochizuki teaches coating a core material with two layers of expandable starch material and then frying the coated core in cooking oil to form a snack product with an expanded coating (col. 8, line 60 – col. 9, line 16, “Example 1”). This is seen to be a variation of the teachings of Bin wherein the coated core and baked first layer are coated with an expandable material and then fried to form an expanded second layer.
Decoding Delicious teaches that frying in oil results in faster heat transfer compared to baking (p. 1, ¶ 1), and this results in bubbles of rapidly escaping steam from the food (p. 2, ¶ 2). Decoding Delicious further teaches that adding batters or breadings protects the food from violent surface reactions of frying, retains moisture, and provides a pleasant flavor and texture (p. 4, ¶ 1). The image of fried battered fish (p. 4) shows bubbling beneath the batter where the coating has partially separated from the “core” after frying.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Bin with the teachings of Mochizuki and Decoding Delicious to fry the expandable second layer in an edible frying fluid (e.g., cooking oil) to contribute to creating air bubbles between the expanded second layer and the cooked first layer. First, Bin teaches that the layers may be cured by roasting, baking, frying, or deep frying (p. 2, lines 6-7), and that a first and second layer may be formed as described above. Further, Mochizuki teaches frying a core material coated in expandable starchy layers in cooking oil (col. 8, line 60 – col. 9, line 16, “Example 1”). Decoding Delicious teaches that adding batter results in bubbling beneath the batter and partial separation of the coating from the “core” after frying (i.e., creating air bubbles between layers) (p. 4, image). One of ordinary skill in the art would have been motivated to do so in order to provide consumers with a coated snack product with alternative organoleptic properties. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Mochizuki teaches that a core with an expandable outside coating prepared in the disclosed way provides a preferred appearance, crispiness, texture, and taste (col. 8, lines 49-53, Table 3).
Regarding the water vapor resulting in a humidity gradient that contributes to the second layer not adhering to the first cooked layer, and the edible frying fluid contributing to the formation of air bubbles between the layers, MPEP § 2111.04(I) states, “Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure.” In the present case, the recited clauses do not require any step to be performed outside of cooking the first layer, applying a second layer, and frying the second layer. These steps are taught by Bin, Mochizuki, and Decoding Delicious as described above. Therefore, the recited clauses do not further limit the claimed method. Rather, the recited clauses describe the recognition of latent properties of the composition produced by the claimed method. Indeed, the instant specification at paragraph [0047] recognizes, “A considerable humidity gradient may exist between the first heating or cooking step…that cooks the at least a first coating layer 11 and the at least a second coating layer 12 applied to the first coated cores 10, which may inhibit both coatings 11, 12 not [sic] adhering to each other and facilitating expansion of the second compound layer coating 12 during the second heating or cooking process…”. Additionally, paragraph [0048] recognizes, “Any edible cooking or frying fluid, for example cooking oil, utilized in the second cooking or heating process can optionally enter the product, and in addition to the previously discussed humidity, facilitate expansion of the second coating layer 12. Such cooking fluid can optionally cause bubbles, for example air bubbles, to form between the second layer and cooked first layer, so as to create a pleasurable sensation when biting into the final product.”.
As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”.
It is recognized that Bin teaches cooling the baked product to below 50°C between additional coatings (p. 7, lines 8-16). Even so, evaporation occurs above room temperature, and 50°C is well above room temperature. Additionally, where the second layer may also be a dough or batter, a humidity gradient must exist between the two layers and would “contribute to” any non-adherence of the second layer as claimed.
Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.01(I).
Since Bin, Mochizuki, and Decoding Delicious teach all required steps of the claimed method, and the recited clauses merely recognize latent properties of the composition produced by the method, the claimed properties are presumed to be present, and claim 15 is rendered obvious.
Regarding claim 16, Bin, Mochizuki, and Decoding Delicious teach the method of Claim 15.
Bin does not discuss that the edible frying fluid is a cooking oil.
However, Mochizuki teaches that the edible frying fluid is a cooking oil (col. 9, lines 10-16).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to fry the second layer in a cooking oil with the same motivation and with the same expectation of success as described regarding claim 15 above.
Claim 16 is therefore rendered obvious.
Regarding claim 17, Bin, Mochizuki, and Decoding Delicious teach the method of Claim 15.
Bin further teaches that the first pre-coating material has a different expansion coefficient during curing than the second pre-coating material (p. 3, lines 28-29). Bin further teaches that “[i]n a preferred embodiment, the pre-coating material comprises starch. The starch may be incorporated in a mixture and may comprise one or more suitable starches such as corn starch, wheat starch, tapioca starch, rice starch and potato starch, or hydrolyzed and otherwise modified derivatives thereof. The starch may be provided as an isolated starch product of starch mixture, but the starch may also be incorporated in its native flour, such as rice powder or wheat flower. The pre-coating material may be applied as a powder or in a liquid mixture as a batter or dough.” (p. 3, lines 16-22).
Bin does not specifically discuss that the second cookable components have a higher starch to flour ratio than the first cookable components to facilitate expansion of the second layer upon cooking.
However, Mochizuki teaches a process for producing a snack product with an expanded coating comprising a core material coated with first and second layers of starchy flours with different degrees of expandability that is then fried (Abstract). Mochizuki further teaches that decreasing the overall proportion of a less expandable mashed potato flour and increasing the overall proportion of a highly expandable pregelatinized waxy corn flour in the coating contributes to more expansion (77.5/22.5 potato:corn starchy flour ratio = 1.85 expansion ratio vs. 50/50 potato:corn starchy flour ratio = 3.86 expansion ratio) (col. 5, line 30 – col 6, line 2, Table 1). That is, the ratio of flour and starch is result-effective variable that governs expansion.
In the context of the present invention, the first and second layers of Mochizuki are seen as components of the claimed second layer as there is one cooking step after application of both layers (col. 2, lines 49-56). Mochizuki serves to demonstrate that different flours and starches in different proportions can be used to modulate the amount of expansion of the layer upon cooking. Hence, the teachings of Mochizuki serve as a guide for one of ordinary skill in the art in routine experimentation to determine suitable ratios of flour and starch that result in greater expansion of the claimed second layer compared to the first layer.
Therefore, since Bin teaches that the coating comprises flour and starch (p. 3, lines 16-22), and Mochizuki teaches modulating expansion using different starchy flours (col. 5, Table 1), it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the proportions of starch and flour (either as individual components, or by type of starchy flour) by routine experimentation using the teachings of Mochizuki to achieve the desired result of a higher starch (more expandable) to flour (less expandable) ratio in the second cookable components than in the first cookable components. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Mochizuki teaches that decreasing the overall proportion of a less expandable mashed potato flour and increasing the overall proportion of a highly expandable pregelatinized waxy corn flour contributes to more expansion (77.5/22.5 potato:corn starchy flour ratio = 1.85 expansion ratio vs. 50/50 potato:corn starchy flour ratio = 3.86 expansion ratio) (col. 5, line 30 – col 6, line 2, Table 1). These teachings are applicable to the first and second layers of the claimed invention.
Therefore, claim 17 is rendered obvious.
Regarding claim 18, Bin teaches the method of claim 1, and Bin, Mochizuki, and Decoding Delicious teach the method of claim 15.
Bin also teaches that the step of cooking the first layer forms a crunchy layer over the edible core – Bin teaches application of at least one layer of pre-coating material to a dried fruit core and curing the pre-coating material to form a coating layer on the dried fruit core (p. 1, lines 27-30). The pre-coating material comprises a material that will form into a crunchy layer after curing, and that “the curing or [sic] the pre-coating into a crunchy coating is preferably a heat treatment, in particular roasting, baking, frying or deep frying.” (p. 2, lines 1-7). Therefore, Bin teaches that cooking the first layer forms a crunchy layer over the edible core.
Claim 18 is therefore rendered obvious.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bin et al. (WO 2013/009176 A1, cited on the IDS filed on 24 October 2022) in view of Mochizuki et al. (US 4499113 A, cited on the IDS filed on 27 November 2023).
Regarding claim 7, Bin teaches the method of Claim 1 as described above.
Bin further teaches that the first pre-coating material has a different expansion coefficient during curing than the second pre-coating material (p. 3, lines 28-29). Bin further teaches that “[i]n a preferred embodiment, the pre-coating material comprises starch. The starch may be incorporated in a mixture and may comprise one or more suitable starches such as corn starch, wheat starch, tapioca starch, rice starch and potato starch, or hydrolyzed and otherwise modified derivatives thereof. The starch may be provided as an isolated starch product of starch mixture, but the starch may also be incorporated in its native flour, such as rice powder or wheat flower. The pre-coating material may be applied as a powder or in a liquid mixture as a batter or dough.” (p. 3, lines 16-22).
Bin does not specifically discuss that the second cookable components have a higher starch to flour ratio than the first cookable components to facilitate expansion of the second layer upon cooking (re: claim 7), wherein the second cookable components have a content of starch ranging from approximately 30% to 60% in weight and a content of flour ranging from approximately 10% to 40% in weight (re: claim 8), or that the first cookable components have a content of starch ranging from approximately 10% to 30% in weight and content of flour ranging from approximately 40% to 70% in weight (re: claim 9).
However, Mochizuki teaches a process for producing a snack product with an expanded coating comprising a core material coated with first and second layers of starchy flours with different degrees of expandability that is then fried (Abstract). Mochizuki further teaches that decreasing the overall proportion of a less expandable mashed potato flour and increasing the overall proportion of a highly expandable pregelatinized waxy corn flour in the coating contributes to more expansion (77.5/22.5 potato:corn starchy flour ratio = 1.85 expansion ratio vs. 50/50 potato:corn starchy flour ratio = 3.86 expansion ratio) (col. 5, line 30 – col 6, line 2, Table 1). That is, the ratio of flour and starch is result-effective variable that governs expansion.
In the context of the present invention, the first and second layers of Mochizuki are seen as components of the claimed second layer as there is one cooking step after application of both layers (col. 2, lines 49-56). Mochizuki serves to demonstrate that different flours and starches in different proportions can be used to modulate the amount of expansion of the layer upon cooking. Hence, the teachings of Mochizuki serve as a guide for one of ordinary skill in the art in routine experimentation to determine suitable ratios of flour and starch that result in greater expansion of the claimed second layer compared to the first layer.
Therefore, since Bin teaches that the coating comprises flour and starch (p. 3, lines 16-22), and Mochizuki teaches modulating expansion using different starchy flours (col. 5, Table 1), it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the amounts and proportions of starch and flour (either as individual components, or by type of starchy flour) by routine experimentation using the teachings of Mochizuki to achieve the desired result of a higher starch to flour ratio in the second cookable components than in the first cookable components, including the claimed starch and flour ranges in each of the cookable components. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Mochizuki teaches that decreasing the overall proportion of a less expandable mashed potato flour and increasing the overall proportion of a highly expandable pregelatinized waxy corn flour contributes to more expansion (77.5/22.5 potato:corn starchy flour ratio = 1.85 expansion ratio vs. 50/50 potato:corn starchy flour ratio = 3.86 expansion ratio) (col. 5, line 30 – col 6, line 2, Table 1). These teachings are applicable to the first and second layers of the claimed invention.
Therefore, claims 7-9 are rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 13 February 2026 have been fully considered, but they are not persuasive.
Applicant first argued that amended claim 1 is patentable over Bin because a word search of Bin fails to disclose the words “vapor”, “humidity”, “gradient”, “water vapor” or “humidity gradient”, and Bin does not disclose applying a second layer over the cooked first layer and cooking the second layer to form an expanded second layer, the water vapor from the cooked first layer resulting in a humidity gradient between the cooked first layer and the overlying second layer that contributes to the second layer not adhering to the cooked first layer during the cooking of the second layer (p. 10, ¶¶ 2-4). Applicant argued that Bin discloses cooling to below 50°C between any multiple baking steps, which would appear to preclude “the water vapor from the cooked first layer resulting in a humidity gradient between the cooked first layer and the overlying second layer” as in amended claim 1 (pp. 10-11, bridging ¶). Applicant alleged that by requiring a cooling down step, Bin teaches away from the claimed invention (p. 11, ¶ 2).
Applicant’s arguments have been considered, but they are not persuasive. As described in the rejection of claim 1 hereinabove, Bin discloses baking temperatures in the range of 120-180°C (p. 7, lines 8-10). Heating a water-containing composition, such as the dough or batter of Bin, through such cooking necessarily results in the production of water vapor. It is recognized that Bin teaches cooling the baked product to below 50°C between additional coatings (p. 7, lines 8-16). Even so, evaporation occurs above room temperature, and 50°C is well above room temperature. Additionally, where the second layer may also be a dough or batter, a humidity gradient must exist between the two layers and would “contribute to” any non-adherence of the second layer as claimed. The claimed features are a recognition of latent properties resulting from carrying out the method steps positively recited.
As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”. Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.01(I).
Since Bin teaches all required steps of the claimed method, the claimed properties are presumed to be present, and claim 1 is rendered obvious.
Regarding Applicant’s assertion that Bin teaches away from the claimed invention, MPEP § 2145(X)(D)(1) provides, “‘a reference does not teach away if it merely expresses a general preference for an alternative invention but does not criticize, discredit or otherwise discourage investigation into the invention claimed.’) (internal quotations omitted) (quoting DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009))”. Bin does not criticize, discredit, or otherwise discourage investigation into the invention claimed, and the conditions of Bin are suitable to the claimed invention. Applicant’s argument is therefore not persuasive.
Applicant argued that dependent claims 2-14 and 18, independent claim 15, and its dependent claims 16-18 are patentable for the same reasons as discussed with respect to claim 1 (p. 11, ¶¶ 4-6).
Applicant’s argument has been considered, but it is not persuasive for the same reasons as stated above regarding claim 1.
Claims 1-18 are rejected under 35 U.S.C. § 103 on the grounds presented hereinabove.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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