DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendment filed February 11, 2026 has been entered. Claims 7 has been cancelled. Claims 1, 3-6 and 8-22 are pending examination.
The amendment and remarks filed February 11, 2026 have been considered. Upon further consideration new grounds of rejection are set forth below. This action is non-final.
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.
Claims 1, 4, 6, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Pickford (US 6,613,370).
Regarding claims 1 and 14, Pickford discloses a breadcrumb coating for food products comprising flour and a gelling agent wherein the gelling agent is a cereal starch or tuber starch (Abstract, C1/L59-65, C2/L19-23, claims 1-2).
Pickford discloses a process of preparing the bread crumb comprising the steps of: pumping a slurry of the ingredients (i.e., flour, starch and water) is pumped into an extruder to produce pellet 2 to 3 cm in length and about 1 cm in diameter; (b) drying the pellets; and (c) milling the dry pellets to obtain a desired mesh size (C3/L20-41).
While Pickford discloses reducing the size of the bread crumb to a desired mesh size, the reference is silent with respect to the specifically claimed particle size distribution. However, given Pickford essentially allows for any particle size distribution desired, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted, in routine processing, the particle size and distribution of the milled bread crumbs taught by Pickford, to obtain a desired breadcrumb product.
While Pickford is silent with respect to moisture content, the reference discloses the breadcrumbs were made by extruding a hydrated slurry of the ingredients to produce pellets; drying the pellets in a continuous driers; discharging the pellets from the drier when completely dry; and milling the pellets to give a crumb of desired mesh size (C3/Example 2). Given Pickford discloses drying until the pellets are completely dry, intrinsically the resulting breadcrumbs would display a moisture content of less than 8%.
Regarding claim 4, Pickford discloses all of the claim limitations as set forth above. Pickford disclose the bread crumbs comprise emulsifier and sweetener (C3/L20-27).
Regarding claim 6, Pickford discloses all of the claim limitations as set forth above. Pickford discloses water is added to the mixture of flour, starch, emulsifier and sweetener to make a slurry (C3/L20-27).
Regarding claim 13, Pickford discloses all of the claim limitations as set forth above. Pickford disclose whole muscle pork, beef, chicken or fish coated with the bread crumb (C3/L42-50).
Claims 1, 3-6, 8, 9 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Rivner (US 2017/0265514 cited on IDS filed January 23, 2026).
Regarding claims 1, 3 and 22, Rivner discloses pellets (i.e., breadcrumbs -[0042])) comprising 50% of a primary component which is wheat (i.e., flour) and 10-45 wt% depolymerized starch ([0079]). Rivner discloses the pellets have a moisture content of 2-4 wt% ([0044], [0092]).
Rivner discloses the pellets are made in an extruder ([0047]). Rivner disclose the extruder die is chosen to provide pellets with a desired shape or size ([0048]). In addition, Rivner discloses the pellets can ground to make different sizes ([0013]-[0015]/Figures 5-7). Rivner discloses the ground pellets can be made into a range of size distributions ([0099]-[0102]). While Rivner does not disclose the claimed grain size distribution, the person of ordinary skill in the art would have been motivated to adjust, in routine processing, the size distribution of pellets, including the claimed distribution, to obtain a desired appearance while maintaining their functionality as a coating.
Regarding claim 4, Rivner discloses all of the claim limitations as set forth above. Rivner discloses the pellets can comprise emulsifier ([0076]).
Regarding claim 5, Rivner discloses all of the claim limitations as set forth above. While Rivner discloses pellets comprising emulsifier ([0076]), the reference is silent with respect to an amount. However, one of ordinary skill in would have been motivated to adjust, in routine processing, the amount of added emulsifier to effectively lubricate the dough as it passes through the extruder (i.e., lowering friction and energy consumption).
Regarding claim 6, Rivner discloses all of the claim limitations as set forth above. Rivner discloses that to prepare the pellets, water is added to the extruder feed stream (hydrating with a liquid consisting essentially of water - [0046]).
Regarding claim 8, Rivner discloses all of the claim limitations as set forth above. Rivner discloses the pellets have a water activity of less than about 0.25 ([0092]). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05).
Regarding claim 9, Rivner discloses all of the claim limitations as set forth above. Rivner is silent with respect to colorimetric analysis. However, given Rivner discloses a pellet (i.e., breadcrumb) composition substantially similar to the one presently claimed, inherently the pellets would display L, a and b values as presently claimed.
Claims 1, 3-6, 8-16, 18, 19 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Ohmura et al. (US 2019/0373927).
Regarding claim 1, Ohmura et al. disclose breadcrumbs comprising flour and starch (Abstract, [0027], [0033], [0055]/Examples). Ohmura et al. disclose breadcrumbs having a moisture content of 6 to 14% ([0028]). Ohmura et al. disclose the breadcrumbs have a grain size distribution wherein a proportion of breadcrumbs that have a grain size of 2.36 mm or more is 8-21 mass % and the proportion of breadcrumbs that have a grain size of less than or equal to 1.18 mm is 45 mass % or less.
While Ohmura et al. does not disclose the claimed grain size distribution, the person of ordinary skill in the art would have been motivated to adjust, in routine processing, the grain size distribution to obtain breadcrumbs with a desired appearance and texture while maintaining their functionality as a coating and ability to be shaken out of a shaker with holes of a given diameter.
Regarding claim 3, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. discloses mixing the main breadcrumb ingredients, including flour and starch, at a predetermined ratios with a predetermined amount of water to obtain a dough. ([0027], [0055]), Ohmura et al. is silent with respect to specific amounts.
While Ohmura et al. is silent with respect to the exact proportions of each ingredient, the person of ordinary skill in the art would have adjusted, in routine processing, the amount of flour and starch in the breadcrumb dough to obtain breadcrumbs with desired sensory profile including color, flavor and texture.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding claim 4, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. disclose the breadcrumbs comprise sugar (i.e., sweetener) and an emulsifier ([0027]).
Regarding claim 5, Ohmura et al. disclose all of the claim limitations as set forth above. While Ohmura et al. disclose typical breadcrumb ingredients include sugar and emulsifier, the reference is silent with respect to the amounts.
Ohmura et al. discloses mixing the main breadcrumb ingredients at a predetermined ratios with a predetermined amount of water to obtain a dough. While Ohmura et al. is silent with respect to the exact proportions of each ingredient, the person of ordinary skill in the art would have adjusted, in routine processing, the amount of sugar and emulsifier in the breadcrumb dough to obtain breadcrumbs with desired flavor and texture.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding claim 6, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. disclose the dough used to make the breadcrumbs comprises water ([0027], [0055]). Ohmura et al. disclose the breadcrumbs are made by mixing water with a mixture of flour and starch (i.e., premix – [0027], [0055])
Regarding claim 8, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. is silent with respect to water activity. Ohmura et al. disclose the breadcrumb composition of claim 1 having a moisture content of 6 to 14% ([0028]) and also disclose the breadcrumbs are dried ([0027]), inherently the breadcrumbs would display a water activity in the claimed rang of less than 0.55.
Regarding claim 9, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. is silent with respect to color. However, given Ohmura et al. disclose breadcrumbs comprising the same components as presently claimed, inherently the breadcrumbs would exhibit a colorimetric analysis as claimed.
Regarding claims 10, 12 and 14, Ohmura et al. disclose a method of preparing breadcrumbs comprising the steps of: (a) preparing a mixture of breadcrumb ingredients including flour, yeast (i.e., leavening agent), sugar, starch, table salt (i.e., refined salt), gluten, soybean powder, emulsifier, thickener, shortening, pigment and pH adjusting agent; (b) adding water to the mixture of breadcrumb ingredients and kneading to obtain a dough; (c) baking the dough to obtain a loaf of bread; (d) cooling the loaf of bread; and (e) crumbling (i.e., pulverizing) the bread loaf to obtain undried breadcrumbs ([0027], [0055]).
Ohmura et al. disclose the breadcrumbs have a grain size distribution wherein a proportion of breadcrumbs that have a grain size of 2.36 mm or more is 8-21 mass % and the proportion of breadcrumbs that have a grain size of less than or equal to 1.18 mm is 45 mass % or less.
While Ohmura et al. does not disclose the claimed grain size distribution, the person of ordinary skill in the art would have been motivated to adjust, in routine processing, the grain size distribution to obtain breadcrumbs with a desired appearance and texture while maintaining their functionality as a coating and ability to be shaken out of a shaker with holes of a given diameter.
Regarding claim 11, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. disclose drying the undried breadcrumbs ([0027]).
Regarding claim 13, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. disclose pork cutlets coated with the breadcrumbs ([0075]).
Regarding claims 15, 16 and 19, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. discloses mixing the main breadcrumb ingredients, including flour and starch, at a predetermined ratios with a predetermined amount of water to obtain a dough. ([0027], [0055]), Ohmura et al. is silent with respect to specific amounts.
While Ohmura et al. is silent with respect to the exact proportions of each ingredient, the person of ordinary skill in the art would have adjusted, in routine processing, the amount of flour and starch in the breadcrumb dough to obtain breadcrumbs with desired sensory profile including color, flavor and texture.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding claim 18, Ohmura et al. disclose all of the claim limitations as set forth above. While Ohmura et al. disclose typical breadcrumb ingredients include sugar, the reference is silent with respect to the amount.
Ohmura et al. discloses mixing the main breadcrumb ingredients at a predetermined ratios with a predetermined amount of water to obtain a dough. While Ohmura et al. is silent with respect to the exact proportions of each ingredient, the person of ordinary skill in the art would have adjusted, in routine processing, the amount of sugar in the breadcrumb dough to obtain breadcrumbs with desired flavor.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding claim 22, Ohmura et al. disclose breadcrumbs comprising flour and starch (Abstract, [0027], [0033], [0055]/Examples). Ohmura et al. disclose breadcrumbs having a moisture content of 6 to 14% ([0028]). Ohmura et al. disclose the breadcrumbs have a grain size distribution wherein a proportion of breadcrumbs that have a grain size of 2.36 mm or more is 8-21 mass % and the proportion of breadcrumbs that have a grain size of less than or equal to 1.18 mm is 45 mass % or less.
While Ohmura et al. does not disclose the claimed grain size distribution, the person of ordinary skill in the art would have been motivated to adjust, in routine processing, the grain size distribution to obtain breadcrumbs with a desired appearance and texture while maintaining their functionality as a coating and ability to be shaken out of a shaker with holes of a given diameter.
Ohmura et al. discloses mixing the main breadcrumb ingredients, including flour and starch, at a predetermined ratios with a predetermined amount of water to obtain a dough. ([0027], [0055]), Ohmura et al. is silent with respect to specific amounts.
While Ohmura et al. is silent with respect to the exact proportions of each ingredient, the person of ordinary skill in the art would have adjusted, in routine processing, the amount of flour and starch in the breadcrumb dough to obtain breadcrumbs with desired sensory profile including color, flavor and texture.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ
221.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Ohmura et al. (US 2019/0373927) as applied to claim 10 and further in view of Bellido et al. (“Measurement of dough specific volume in chemically leavened dough systems”, Journal of Cereal Science, Volume 49, Issue 2, March 2009, pp. 212-218).
Regarding claim 17, Ohmura et al. disclose all of the claim limitations as set forth above. Ohmura et al. disclose the yeast leavening process can be omitted and replaced by the step of expanding the dough using a leavening agent ([0027]). The reference is silent with respect to the replacement leavening agent.
Bellido et al. teach dough made with a chemical leavening agent (Abstract). Bellido et al. teach chemical leavening systems can leaven bread dough fast, more consistently and often times more conveniently than yeast (p. 212/1. Introduction). Bellido et al. teach sodium acid pyrophosphate and glucono-delta-lactone can successfully be used as chemical leavening agents for making bread (Abstract, p. 213/Table 1, p. 218/5. Conclusion).
Ohmura et al. and Bellido et al. are combinable because they are concerned with the same field of endeavor, namely bread making. Given Ohmura et al. disclose bread can be made by replacing yeast with another leavening agent, since Bellido et al. teach sodium acid pyrophosphate and glucono-delta-lactone have been used successfully for bread making, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used sodium acid pyrophosphate and glucono-delta-lactone, as taught by Bellido et al. as a leavening agent in the dough of Ohmura et al.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Ohmura et al. (US 2019/0373927) as applied to claim 10 and further in view of Blackwell (“Simple Homemade White Bread {made with butter!}”, Batter & Dough, https://ofbatteranddough.com/simple-homemade-white-bread-recipe/. February 2019, downloaded May 7, 2026).
Regarding claim 20, Ohmura et al. disclose all of the claim limitations as set forth above. While Ohmura et al. disclose a step of baking the dough, the reference is silent with respect to temperature and time.
Blackwell teaches a recipe for making white bread. Blackwell teaches making a dough and then baking at 375°F (i.e., preheated to a temperature of 190.5° C) for 35-45 minutes (see Recipe step 9). In the case where the claimed ranges overlap or lie inside the ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Ohmura et al. and Blackwell are combinable because they are concerned with the same filed of endeavor, bread produced using yeast as a leavening agent. Given Ohmura et al. is silent with respect to baking time and temperature, it would have been obvious to one of ordinary skill in the art to have baked the dough of Ohmura et al. at a temperature of 375°F (i.e., 190.5° C) for 35-45 minutes, as taught by Blackwell, with a reasonable expectation of success.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Ohmura et al. (US 2019/0373927) as applied to claim 11 and further in view of Pear Tree Kitchen (“Homemade Breadcrumbs”, https://peartreekitchen.com/breadcrumbs/, June 2019, downloaded May 7, 2026).
Regarding claim 21, Ohmura et al. disclose all of the claim limitations as set forth above. While Ohmura et al. disclose drying the undried breadcrumbs, the reference is silent with respect to drying temperature.
Pear Tree Kitchen teaches making homemade breadcrumbs by drying pulverized breadcrumbs from fresh bread and drying them out in an oven at a temperature of 225-250°F (i.e., about 107°C to 121°C- Drying Them Out).
Ohmura et al. and Pear Tree Kitchen are combinable because they are concerned with the same field of endeavor, namely, breadcrumbs made by pulverizing fresh bread and drying out the breadcrumbs using an oven. Given Ohmura et al. disclose drying breadcrumbs in an oven, it would have been obvious to one of ordinary skill in the art to have dried the bread crumbs of Ohmura et al. at a temperature in the range of 225°F to 250°F (i.e., about 107°C to 121°C- Drying Them Out), with a reasonable expectation of success.
Response to Arguments
Applicant’s arguments with respect to claims 1, 3-6 and 8-22 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
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