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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 15,17-20,35 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
There is no support in the instant spec for the new limitation “wherein the interior foodstuff is characterized by a vegetable-based or fruit-based composition in which the starch is primarily from the first interior component.”
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 15,17-20,35 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.
It is unclear “wherein the interior foodstuff is characterized by a vegetable-based or fruit-based composition in which the starch is primarily from the first interior component.” For example, does “primarily” mean 50%, 80%, etc.? No description is provided in the instant spec.
It is also unclear what is meant by the phrase “wherein the interior foodstuff is characterized by a vegetable-based or fruit-based composition”. For example, it is unclear what amount of fruit or vegetable are required to be considered “vegetable-based” or “fruit-based”.
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.
Claim(s) 15,17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilbur(US 5108772) in view of Willoughby(US 6171631).
Regarding claim 15, Wilbur teaches a product comprising an interior that comprises about 1 to over 90% puffable farinaceous doughs such as cereal grains or tuber flours or starches such as those of corn, wheat (hard or soft), rice, buckwheat, arrowroot, tapioca, potato, oat, barley, rye or any combination of two or more(col 5, line 16-24). This range overlaps the claimed less than 10% w/w and renders it obvious.
Wilbur teaches that the interior comprises a 5-20% moisture which is adapted to form a vapor when subjected to heating, wherein an increased pressure of the vapor when the profood item is subjected to heating causes a rupturing of the shell when the breakage threshold conditions is reached, inducing a sudden release of the vapor at a high pressure, resulting in puffing of the starch to produce the puffed food product(abstract, col 3, line 35-60; col 4, line 49-58).
Wilbur further teaches that the interior comprises a shell of methylcellulose characterized by a hardness and rigidity able to withstand breakage when subject to a temperature and pressure below breakage threshold conditions(abstract col 3, line 35-60).
Wilbur does not specifically teach the presence of fruit or vegetable in the interior. However, Willoughby teaches an expandable half-product is described comprising a starchy farinaceous material, wherein the starch molecules of the farinaceous material are unidirectionally aligned and form a matrix of randomly aligned starch molecules upon exposure to microwave radiation to form a puffed half-product having at least twice the dimensions of the unmicrowaved half-product(abstract). Willoughby teaches that the expandable half-product comprises fruit in an amount of 1-50%(col 3, line 57-65). It would have been obvious to include 1-50% fruit in with the composition of Wilbur as taught in Willoughby in order to provide a variety of foods and tastes to the consumers.
Wilber teaches 1-90% cereal grains and Willoughby renders obvious 1-50% fruit. Therefore, the fruit can comprise 50% of the interior while the grains comprise less than 50% of the interior. Since both fruit and grains comprise starch, more of the starch would be present from fruit than from grains, if the fruit is present in the higher amount of 50%.
Regarding claim 17, Willoughby teaches that the fruit can comprise grapes, strawberries or the like (col 3, line 57-65). It would have been obvious to use other fruits such as blueberries since they are similar to strawberries, thus being “or the like” as disclosed in Willoughby.
Regarding claim 18, Wilbur teaches a coating in the form of methylcellulose in order to confine expansion upon microwave heating. The coating has a thickness ranging from about 0.025 to 0.050mm(col 3, line 35-44). It would have been obvious to adjust the amount of methylcellulose in order to achieve the proper thickness and in order to confine expansion upon microwave heating.
Regarding claim 19, Wilbur teaches that the interior comprises starch and Willoughby renders obvious include fruits such as blueberries. Therefore, the interior foodstuff is not any of the group consisting of: dragees, chocolate covered nuts and fruit, frozen foods, processed cheese, nuggets, and crunchy nuts.
Regarding claim 20, Wilbur teaches that the interior foodstuff comprises 17.2% tapioca starch, a plant starch(table at top of col 10).
Claim(s) 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilbur(US 5108772) in view of Willoughby(US 6171631) further in view of Mottur(US 4517204).
Wilbur in view of Willoughby does not specifically teach that the first interior component further comprises a legume. However, Mottur teaches a reduced calorie puffed product made from corn, rice, oats, wheat, potatoes, legumes, and the like, or mixtures thereof. It would have been obvious to use legumes as the first interior component in Wilbur as taught in Mottur because Mottur teaches that legumes can be puffed into a low calorie product along with other grains, similar to the product of Wilbur.
Response to Arguments
Applicant's arguments filed 2/5/2026 have been fully considered but they are not persuasive.
The applicant argues that while Wilbur teaches 1 to 90% cereal grains, it does meet the claimed invention because it contains grains that are excluded in the present claims. However, first, grains are not entirely excluded and can be present in an amount of up to 10%.
Second, the present claims recite “less than 10% w/w interior of a second interior component selected from the group consisting of: dried sorghum, rice, corn, wheat, potato, cereals, and mixtures thereof” and do not recite all the starch components taught in Wilbur.
Specifically, Wilbur teaches a product comprising an interior that comprises about 1 to over 90% puffable farinaceous doughs such as cereal grains or tuber flours or starches such as those of corn, wheat (hard or soft), rice, buckwheat, arrowroot, tapioca, potato, oat, barley, rye or any combination of two or more(col 5, line 16-24). Therefore, the composition can comprise arrowroot or tapioca as the starch source and does not require dried sorghum, rice, corn, wheat, potato, cereals, and mixtures thereof.
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 KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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