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 response to amendment filed 12/9/25. Claims 1,5-9 are cancelled and claims 2,4 are cancelled. Claims 1,3,5-9 are pending.
The objection to the specification is withdrawn due to the amendment to the claims.
In the amendment, applicant identifies claim 2 as cancelled but the text of the claim is not crossed out or the claim deleted. Applicant also argues the claim in the response. It’s assumed that the claim is not cancelled. Clarification and correction are requested in the next response. If no correction is made in response to this office action, the claim will be treated as cancelled.
Claim Rejections - 35 USC § 102
Claim(s) 1-3,5,9 is/are rejected under 35 U.S.C. 102(a1) as being anticipated by Kao ( 2006/0222740).
For claims 1,5, Kao discloses gluten free cookie, biscuit or cracker comprising a gluten free flour, 5-50% pregelatinized rice starch, 5-15% fat and 5-20% sweetener. Kao discloses the cookie, biscuit or cracker also comprising a modified starch and the modified starch includes waxy corn, corn etc.. The modified starch can be in pregelatinized form and includes in amount of 0-40%. ( see paragraphs 0028,0035,0042, 0043) The claimed language comprising does not exclude additional ingredient.
( see paragraphs 0013-0015, 0033,0047).
For claim 2, Kao discloses the gluten free flour is rice flour. ( see paragraph 0014)
For claim 3, Kao discloses the cookie, biscuit or cracker comprising .1-1 monoglyceride which is an emulsifier. ( see paragraph 0033)
With respect to claim 9, the claim recites gluten free flour, starch and additive including hydrocolloid. Kao discloses the same combination . Thus, it’s inherent that the combination in Kao has the property of solvent retention capacity as claimed.
Claim Rejections - 35 USC § 103
Claim(s) 6-8 is/are rejected under 35 U.S.C. 102(a1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Kao in view of Papanastasiou ( 2014/0322390).
With respect to the particle size, this is a difference in processing in the selection of flour which does not determine the patentability of the product. In the end product of a biscuit, cookie or cracker, there is no property or characteristic to distinguish a product comprising the claimed particle sizes of flour. There is no way to tell if the cookie comprises flour particle of less than about 125 microns.
In any event, the claimed particle sizes are commonly found in flour. Papanastasiou discloses in paragraph 0036 that flour encompasses ground or milled substances that are not fine and contain particle size of 1-100 microns. Superfine powder refers to substances that can be less than 25 microns or less than 1 micron. The claimed particle sizes are typical of flour or superfine flour. It would have obvious to one of ordinary skill in the art to select any varying portion of particle sizes depending on the degree of fineness desired in the flour.
Response to Arguments
Applicant's arguments filed 12/9/25 have been fully considered but they are not persuasive.
In the response, applicant argues Kao completely fails to disclose or suggest use of pre-gelatinized corn starch instead teaching only a combination of rice flour, pregelatinized rice starch and modified rice starch. The examiner respectfully disagrees. Kao requires pregelatinized rice starch and modified rice starch. However, Kao is not completely silent on corn starch. In paragraph 0044, Kao discloses “ the gluten contained in corn is technically of a different molecular make-up than that in wheat. Most allergic reaction to gluten occurs from a wheat source”. Kao gives the rationale for including corn in a gluten free composition. Paragraph 0042 discloses the modified starch can be in pregelatinized form. While paragraph 0030 discloses modified rice starch, paragraph 0035 explicitly discloses “ modified starches can be made from tapioca, waxy corn, corn, waxy rice”. This disclosure in combination with the description on the modification being pregelatinized discloses pregelatinized corn starch or pregelatinized waxy corn starch. Furthermore, in paragraph 0034, Kao discloses additives may be added and the additives includes modified starch which can be selected from the starch source in paragraph 0035 and can be pregelatinized as disclosed in paragraph 0042. The additive can be added at levels of 1% to 7%. Thus, pregelatinized corn starch or pregelatinized waxy corn starch can be added as additive in addition to the modified rice starch and pregelatinized rice starch. The claims do not exclude additional ingredients. Applicant further argues only suggests a greater amount of pregelatinized starch when discussing cookies and the like as shown in the examples. This argument is not persuasive. Examples are only exemplified embodiments; they are not the totality of the disclosure. Kao discloses the modified starch can be included in amount of 0-40%. Also, modified starch adding as additive can be added in amount of 1 to 7%. The amounts are not limited to those in the examples. Applicant argues claims 2 and 5. Kao does disclose pregelatinized corn starch or pregelatinized waxy corn as explained above and clearly disclose rice flour.
Applicant further argues the feature in claim 9 is not inherent because the flour blends used within the bounds of invention were tested against other gluten-free flour and were shown to have not only different solvent retention capacities but also different physical properties. This argument is not persuasive because the testing is not against the blend disclosed in Kao. It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. in re Best, 195 USPQ 430, 433 (CCPA 1977), in re Spada, 15 USPQ2d 1655, 1658 ( Fed. Cir. 1990).
With respect to the 103 rejection, applicant states that claims 6-8 are amended to clarify “ was made from flour having the claimed size distribution”. The amendment does not change the scope of the claims because “ was made” is still a processing feature which does not determine the patentability of the product. There is no distinguishing parameter in the claim to distinguish between product made from flour having D10 of less than about 15 micrometer versus other product. Applicant argues the claimed distribution is neither arbitrary nor inherent in the prior art and would not have been obvious to those skilled in the art. Applicant points to the result shown in table 4. The milling of grain into flour having different particle sizes is known in the art as discussed in Pananastasiou. The flour can be coarse or superfine powder. Fine flour as used in example 3 is known. If a superfine flour is used that has particle size less than 25 microns, then the D10 would be less than 25, the majority of D90 and D50 would be less than 25. The claimed less than 125, less than 60 and less than 15 includes the particle size of superfine flour. The use of superfine flour would have been readily obvious to one skilled in the art if it's desired to have very smooth, fine flour even if one is not aware of any property associated with it. It’s a matter of choice.
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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February 10, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793