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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2 and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Regarding Claims 2 and 11, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-3, 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over Galvin (USPA 2019/0246651), in view of Christensen (2019), Domingues et al. (USPA 2017/0347671), and Becker (USPA 2013/0040016), all previously made of record.
Regarding amended Claims 1 and 3, Galvin teaches a dough configured to be baked by heat, as Galvin teaches a cookie dough that is baked (Paragraph 75), comprising: a gluten-free cereal flour, as Galvin teaches gluten-free cookie dough containing a mixture of gluten free flours, sweeteners such as cane sugar and coconut sugar, a shortening in an amount of about 15 to about 20% by weight of the dough and teaches two examples where shortening is present in an amount of 16% by weight (Galvin, Paragraphs 54 and 79-81), where the disclosed range and amount meets or renders obvious the claimed range of 14-16% by weight shortening. Gavin further teaches organic flaxseed meal and water (Example 1, Table 1), where the flaxseed meal and water is mixed together to produce a dilution which is set aside to soak (Example 1, Table 1, Paragraph 80). Galvin teaches flaxseed and water mixture can function as a binder and an egg substitute (Paragraph 26). Galvin does not specifically teach an emulsifier; however, Christensen teaches that flaxseed and water mixture can function well as an emulsifier in baked goods, just like eggs (Page 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the flaxseed meal and water binder to also function as an emulsifier in the cookie dough for the reasons taught in the prior art. Galvin in view of Christensen teaches the dough is shelf stable, moldable, edible, allergy-free and vegan (Paragraph 29), where the dough is edible both raw and baked (Paragraph 37), and where Galvin teaches the dough can be formed into blocks of various sizes and can be made into cookies after the dough has been made (Paragraphs 73 and 74), therefore teaching the dough is moldable.
Regarding amended Claim 1, Galvin in view of Christensen fails to teach where the dough further comprises vinegar. Galvin in view of Christensen teach an all-natural dough, as set forth above and teaches that the shortening used can include antibacterial, antifungal, and antiviral properties (Paragraph 30).
Domingues teaches a packaged shelf-stable, gluten-free dough (Paragraph 8) that can include one or more antimycotic agents to enhance microbial stability, and useful agents include vinegar, where such agents are used to inhibit growth of undesired yeasts and molds in the dough (Paragraph 49). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the all-natural shelf stable dough of Galvin in view of Christensen to have included other natural antimycotic agents such as vinegar, in order to exploit its natural inhibitory properties.
Regarding amended Claim 1, Galvin in view of Christensen and Domingues teach xanthan gum in the flour blend, where the xanthan gum is used as a protein binder and/or a gluten replacement that can hold the dough together (Galvin, Paragraphs 9 and 49), but do not specifically teach a thickener including guar gum.
Becker teaches of allergen-free compositions which can include cookie dough compositions (Paragraph 90, for example) and teaches that the Food Additives Council include guar gum and xanthan gum in a list of gluten-free food gums that have binding properties similar to eggs (Paragraph 68). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used either xanthan gum or guar gum as an egg-substitute for their art recognized binding properties in gluten-free and egg-free cookie dough. It is prima facie obvious to substitute one composition for another that is taught in the prior art to be used for the same purpose, when their equivalency is established or acknowledged by the prior art. See MPEP 2144.06 II.
Regarding amended Claim 2, Galvin in view of Christensen and Domingues are taken as cited above in the rejection of amended Claim 1 and teach an allergen free cookie dough (Galvin, Paragraph 37), and teach the cookie dough is all-natural, plant-based, vegan, allergen free and organic (Galvin, Paragraph 28), therefore teaching the dough does not include wheat proteins in light of the gluten-free teaching, does not include artificial colors and azo dyes in light of the all-natural and organic teaching, does not include eggs and milk, in light of the vegan teaching, does not include nuts, and it is understood to not contain sulfites in light of the all-natural teaching and in light of the fact that the disclosed cookie dough only requires a gluten free flour blend, flaxseed meal, water, shortening based on palm oil, sweetener (Galvin, Paragraph 8, for example), none of which naturally includes sulfites, but may not specifically teach the dough does not include the rest of the claimed allergens.
Becker teaches of allergen-free compositions that are free of the eight most common food allergens including gluten, dairy, eggs, soy, peanuts, tree nuts, fish, and shellfish (Paragraph 2) and teaches preparing allergen-free compositions using various ingredients that can be allergen free, such as soy-free shortening, shortening based on canola oil or safflower oil, gluten-free flour blends, sugar or sweeteners such as cane sugar, that are not nut-based, egg substitutes like flaxseed meal, gluten-free friendly binders or thickeners including xanthan gum, guar gum, etc., dairy free or soy free butters or shortening (Paragraphs 15, 60, 61, 64, 68, 75, 80), where the mixes can be made shelf-stable as well (Paragraph 83). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, for the allergy free cookie dough taught by Galvin in view of Christensen and Domingues to have been free of the claimed allergens, in light of the teachings of Becker, and the known most common food allergens and the suitable substitutions that can be used in order to prepare shelf-stable gluten free and allergen free dough for consumers suffering from food allergies.
Regarding amended Claim 6, as set forth above, Galvin in view of Christensen, Domingues and Becker teach shortening in an amount of about 15 to about 20% by weight of the dough and teaches two examples where shortening is present in an amount of 16% by weight (Galvin, Paragraphs 54 and 79-81), where the disclosed range and amount meets or renders obvious the claimed amount or ranges, as the recitation of “about 15%” by weight shortening provides for amounts below and above the claimed amount.
Regarding amended Claim 7, the claim reads the dough “may” be formed in one or more of a plurality of colors, therefore not requiring the dough to contain organic food coloring. Therefore, Galvin in view of Christensen, Domingues and Becker meet the claim.
Regarding amended Claim 8, Galvin in view of Christensen, Domingues and Becker teach the dough can be formed into blocks of various sizes and can be made into cookies after the dough has been made (Galvin, Paragraphs 73 and 74), therefore teaching the dough is moldable. Regarding the limitation of wherein the dough is configured to be molded into a can, this limitation is interpreted to mean that the dough composition is such that the dough can be molded in a can. Since Galvin in view of Christensen, Domingues and Becker teach forming the dough into blocks and cookies, it is understood to be configured to be molded in a can.
Regarding amended Claim 9, Galvin in view of Christensen, Domingues and Becker teach the dough is allergen-free and teach and render obvious nut-free doughs, therefore meeting the claimed limitation of being nut-free.
Claims 7 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Galvin (USPA 2019/0246651) in view of Christensen (2019), and Domingues et al. (USPA 2017/0347671), Becker (USPA 2013/0040016), and further in view of Dacey et al. (USPA 2016/0120191), all previously made of record.
Regarding amended Claim 7 and new Claim 11, Galvin in view of Christensen and Domingues and Becker are taken as cited above in the rejection of amended Claims 1-3 and 6-9 and teach or render obvious the dough comprising the claimed components, being free of the claimed allergens, is shelf-stable, moldable, edible, allergen-free, and vegan, does not include gluten and is nut-free, is configured to be molded in a can and is configured to be baked by heat, as recited in new Claim 11, but do not specifically teach the limitation of where the dough may be formed in one or more of a plurality of colors by blending organic food coloring in the dough. It is noted that Galvin does teach a gluten free cookie dough using organic ingredients (Paragraph 28) and teaches the desirability of using natural and organic ingredients for consumers (Paragraph 2).
Dacey teaches a gluten free cookie dough (Paragraph 13) and teaches where flavoring and coloring agents can be added to the dough to give a variety of desired properties, flavors and/or textures (Paragraph 32). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the dough of Galvin in view of Christensen and Domingues and Becker to have had added organic coloring agents in order to provide a particular desired property to the cookie dough, and for the coloring to have been organic, in light of Galvin’s teaching of the desirability of having natural and organic ingredients in foods for consumers.
Response to Arguments
The 112b rejection previously set forth has been withdrawn in light of Applicant claim amendment made. However, a new 112b rejection has been set forth above. Applicant first asserts that the Examiner did not reject Claim 3. The Examiner respectfully disagrees and refers Applicant to the first few lines of the previously set forth prior art rejection which has been made in bold above. The Examiner previously rejected Claims 1 and 3 together and indicated “Galvin teaches a dough configured to be baked by heat, as Galvin teaches a cookie dough that is baked (Paragraph 75), comprising: a gluten-free cereal flour, as Galvin teaches gluten-free cookie dough”. Therefore, the above addresses the limitation in Claim 1 of a gluten-free cereal flour and also addresses the limitation in Claim 3 of “wherein the dough does not contain gluten” in light of the teaching of a “gluten-free cookie dough”. Therefore, the Examiner maintains the position that Claim 3 was sufficiently addressed in the previous office action. Applicant’s arguments with respect to the pending and new claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument, as the Examiner has applied a new reference for the rejection of amended Claim 2 and new Claim 11. Applicant asserts that various ingredients and amounts in the claimed dough produce unexpected results and benefits. However, Applicant’s assertions of unexpected results are not commensurate in scope with the claims which do not recite any amounts of any ingredients with the exception of shortening, where such an amount is clearly taught by the prior art. Therefore, any assertions regarding the criticality of ingredients such as vinegar or guar gum in the dough are not persuasive as the claims do not require any particular amount of these components, and therefore could be present in minute amounts that would not expect to have any particular functional effect on the cookie dough. Therefore, to the extent of what is currently recited in the claims, the Examiner is not persuaded that Applicant’s claimed dough is patentable at this time and the office action is made final and deemed proper.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 3/2/2026