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 .
Restriction/Election
Applicant's election with traverse Group 1, Claims 1-3, 31-42, in the reply filed on 4/14/2026 is acknowledged. The traversal is on the ground(s) that the weight percentages in Claims 1 and Claim 43 are based on different products .This is not found persuasive because the method of Group 2 may produce a materially different product than the food of Group 1, and the food of Group 1 is not required to be produced by the method of Group 2.
The requirement is still deemed proper and is therefore made FINAL.
Claim 43-47 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
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.
Claim(s) 1-3, 31-42 are rejected under 35 U.S.C. 103 as being unpatentable over Strong (US 5498438).
Regarding Claim 1, Strong teaches a food product (Abstract) comprising 40-80% of nut meal (Column 17, Claim 4), 5-15% starch (Column 8, Lines 62-65) and a moisture content of less than 5% (Column 11, Line 59). The food has a density of 0.1-0.4 g/cm3 (or g/mL, Column 11, Lines 61-62). Note that Strong teaches that “individual” pieces have the density as claimed. Absent evidence to the contrary, the density of strong is interpreted to be the same as the apparent density (i.e. the density of an individual piece, with volume delimited by the contour of the pieces) as defined in the instant Specification (Page 16, Section 1.1).
Strong teaches the use of nut flours which pass through a 30-mesh screen (Column 8, Line 28), which is less than 0.6 mm, which lies within the claimed range of “less than 2 mm”. Strong teaches that the food may be in a stick shape, which is not a chip (Column 11, Line 59).
Strong additionally teaches pieces of nut less than 3/16th of an inch, or 4.8 mm (Column 4, Lines 30-32), which overlaps the claimed range of “greater than or equal to 2 mm”. Note that where Strong teaches the effects of larger pieces of nut, e.g. a specific visual appearance and texture (Column 4, Lines 52-55), it would have been obvious to have included any amount of the nut pieces of Strong, including at least 2% as claimed.
Regarding the limitation that the product be an “expanded [and] porous”, where Strong teaches the density and composition limitations according to the Claim, the product of Strong is interpreted to have an “expanded [and] porous” texture as claimed. Additionally, note that one having ordinary skill would interpret a product that was e.g., deep fried (Column 12, Lines 54-56) to expand and have internal pores.
Regarding the limitation that the product be “crispy”, Strong teaches that the product has a “crisp” texture (Column 3, Line 44).
Regarding the limitation of a “uniform texture throughout”, Strong teaches that the product is formed from a homogeneous, cohesive dough (Column 9, Lines 36-67). The cooked product of Strong is therefore interpreted to have a uniform texture.
Regarding Claims 2 and 3, Strong teaches the product as discussed above in regards to Claim 1, but does not discuss the porosity. However, given that Strong teaches the compositional and density limitations, the product of Strong is interpreted to meet the porosity limitation. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Regarding Claim 31, Strong teaches that the food has a density of 0.1-0.4 g/cm3 (or g/mL, Column 11, Lines 61-62). Note that Strong teaches that “individual” pieces of the food have the density as claimed. Absent evidence to the contrary, the density of strong is interpreted to be the same as the apparent density (i.e. the density of an individual piece, with volume delimited by the contour of the pieces) as defined in the instant Specification (Page 16, Section 1.1).
Regarding Claim 32, Strong teaches that the food has less than “about 30%” oil (Column 4, Lines 21-22). Where Strong teaches less than “about 30%” oil, and the instant Claim teaches an oil amount “equal” to 30%, the teaching of Strong is interpreted to both approach and overlap the claimed range.
Regarding Claim 33, Strong teaches a ratio of 6:1 to 2:1 for a fine:coarse ratio of nut meal (Column 8, Lines 30-31), which is 67-85% fine nut meal, which lies within the claimed range of “at least 10%”. Note that Strong teaches that a “fine” nut meal preferably passes through a 30 mesh (Column 8, Lines 25-27) screen, which has openings of 0.6 mm.
Additionally, where Strong speaks to the effects of fine nut meal, e.g. binding capacity and workability (Column 8, Lines 15-16), one of ordinary skill would have been able to have adjusted the amount of finely ground nut meal to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding Claims 34 and 35, Strong teaches that the food has a dimension of 1 ¼ inches (Column 12, Line 54), which is 31.8 mm. Note that the “thickness” of the food may be any dimension.
Regarding Claim 37, Strong teaches that the food may be in a stick shape cut from a sheet of uniform thickness, which is a prism (Column 11, Line 59). Note that a “prism” is any 3-dimensional shape with identical bases and parallelogram faces.
Regarding Claim 38, Strong teaches that the food comprises 40-80% nut meal (Column 17, Claim 4)
Regarding Claim 39, Strong teaches that the food comprises 5-15% starch (Column 8, Lines 62-65).
Regarding Claim 40, Strong teaches the addition of 1.8% salt (Column 13, Line 7).
Regarding Claim 41, Strong teaches embodiments which do not comprise sugar or gluten (Column 12, Example 1). Additionally, Strong teaches the use of peanuts, almonds, cashews, and walnuts (Column 4, Lines 7-9).
Regarding Claim 42, Strong teaches enrobing (which is covering) of the product (Column 11, Line 57).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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