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 the pre-appeal decision. The finality of the office action mailed on 2/11/26 is withdrawn. Claims 1-3, 5-9 are pending.
The previous 102 rejection is withdrawn.
Claim Rejections - 35 USC § 103
Claim(s) 1-3,5,9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kao ( 2006/0222740) in view of Pilard ( FR 3062031) and Roussel ( EP 2949217)
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 obviously inherent that the combination in Kao has the property of solvent retention capacity as claimed.
Kao does not specifically disclose 3-10% pre-gelatinized corn starch as in claim 1.
Roussel discloses multi-texture cookies. Roussel teaches that the inclusion of pregelatinized corn starch provides softer dough texture and reduces degradation of the finished product throughout its shelf-life. ( see paragraph 0025)
Pilard discloses gluten-free pastries. The pastries comprises .2-4% pregelatinized corn starch. ( see page 4)
Kao discloses that additives including modified starch can be added and the level can be from 1-7. The starch includes corn and waxy corn and can be pregelatinized (paragraphs 0034, 0035,0042). Kao discloses the modified starch provides variation in dough properties and final texture. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add pregelatinized corn starch or pregelatinized waxy corn when desiring to alter the properties of the dough and final product. Adding pregelatinized corn starch to gluten free baked product is well known as shown in Pillard and Roussel. One skilled in the art would have also been motivated to add pregelatinized corn starch to obtain softer texture and enhance shelf stability as taught in Roussel. It would have been obvious to follow the guideline of Kao for the amount of additive and also Pilard for the amount of pregelatinized corn starch and to optimize to obtain the most optimum properties. Such parameter is well within the skill of one in the art through routine experimentation. Generally different in concentration does not establish patentability is absence of showing of unexpected result or criticality "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim(s) 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kao in view of Pilard and Roussel as applied to claims 1-3, 5,9 above, and further 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.
Conclusion
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September 10, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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