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 .
DETAILED ACTION
Status of Claims
Receipt of Remarks/Amendments filed on 07/21/2025 is acknowledged. Claims 2-5, 11 and 15 are cancelled. Claims 1, 6-10, and 12-14 have been amended and are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Modified Rejection As Necessitated by the Amendment Filed 07/21/2025
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 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.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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, 6-8, and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Brandt (US 9,210,940 B2; Of record), in view of Guar Resources (Obtained on 05/07/2025 from URL: https://www.guarresources.com/guar-powder-every-kitchen-cabinet/, 08/06/2020; Of record), and Stewart et al. (Mol. Nutr. Food Res. 2006, 50, 971 – 976; Of record), hereinafter Stewart, and in view of Mudgil, D. (Partially Hydrolyzed Guar Gum: Preparation and Properties. In: Gutiérrez, T. (eds) Polymers for Food Applications. 2018, Springer, Cham. https://doi.org/10.1007/978-3-319-94625-2_20; Of record).
Regarding Claim 1, Brandt discloses a gluten-free baking mix comprising at least one gluten-free starch source and at least one gluten-free pentosan source, further comprising a sourdough comprising Lactobacilli, wherein the baking mix comprises a pentosan content of 5 to 20%, a starch content of 25 to 70%, and a protein content of 5 to 10% (Claim 1). Brandt teaches different baking mixes including Mix A comprising defatted rapeseed flour, corn starch and bean flour, and Mix G comprising 70% rice bran, 22% corn starch and 8% chickpea flour (Examples 1-3). Brandt further teaches that the results of baking bread may be improved by the addition of texture enhancing agents, such as carboxymethyl cellulose, hydroxypropyl methylcellulose, guar gum, xanthan gum etc.
However, Brandt does not teach partially hydrolyzed guar gum having a molecular weight of between 500,000 Da and 1,000,000 Da.
Guar Resources recognizes that many foods contain guar gum including gluten-free baked goods, and that it has the unique ability to improve texture and crumb structure while at the same time contributing to both dough yield and the extension of shelf life; It also serves as an excellent binding agent for ingredients found in gluten-free recipes (pp. 2-3). Furthermore, guar gum has many health benefits including lowering cholesterol and promoting weight loss (p. 5). Guar Resources describes how ingestion of guar gum aided in the relief of constipation by speeding the movement of partially hydrolyzed guar gum through (PHGG) the intestinal tract, and how PHGG improved symptoms in people suffering from irritable Bowel Syndrome, and reducing bloating (p. 6).
Stewart supports Guar Resources in curing the deficiency of Brandt. Stewart studied PHGG at four molecular masses (15, 20, 400, and 1100 kDa), and reports that the 400-kDa fraction produced the greatest concentrations of total short-chain fatty acid (SCFA) at 8 h and the highest amounts of butyrate at 24 h (Section 3.2 and 3.4). Stewart relates that SCFAs are known to be protective against chronic disease, and increased SCFA concentrations have been linked to depletion of pathogenic bacteria and decreased diarrhea; Butyrate improves colonic health by serving as the main fuel for colonocytes, and has been linked to decreased colon carcinogenesis (p. 974, last paragraph; p. 975, R. Col.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to try any of the texture enhancing agents recited by Brandt as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. See MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ2d 1385 (Supreme Court 2007). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Guar Resources and use PHGG as the guar gum in the baking mix taught by Brandt comprising corn starch and chickpea flour because Guar Resources has taught the suitability and advantages of using PHGG in gluten-free baked goods including improving IBS symptoms and reducing bloating. One skilled in the art would incorporate 400-kDa molecular weight guar gum because Stewart has taught that 400-kDa form would produce SCFAs and butyrate that improves colonic health. Because Stewart has studied 400 kDa and 1100-kDa, it is well within the skills of an ordinary artisan to study the PHGG having molecular weight between 400 kDa and 1100 kDa to determine optimum molecular weight. Additionally, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05.
Brandt teaches mixes comprising flours and starches, which necessarily means that they are in dry powder form (Example 1). Brandt has taught Mix G comprising 8% chickpea flour, rendering obvious the at least 4% (Example 3).
Brandt does not teach 1.5-5% partially hydrolyzed guar gum.
Mudgil teaches using PHGG for fiber fortification in wheat bread, wherein wheat flour was replaced with PHGG at the levels of 1–5%, reporting that PHGG at up to 3% made softer breads and improves bread characteristics (p. 540, Section 20.6.1). Mudgil also teaches dietary fiber fortification in wheat flour cookies, wherein partially hydrolyzed guar gum at the levels of 1–5% is used, and reported that cookies fortified with PHGG at 2.21% results in decrease in the hardness, spread ratio and overall acceptability due to the lowering of the gluten level (p. 540, Section 20.6.2).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Mudgil to Brandt, and start with the amount of PHGG for use in baked goods such as bread and cookies as taught by Mudgil, and optimize as needed. One of ordinary skill in the art would find it obvious to adjust the amount as a matter of experimentation and optimization. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding Claims 6 and 8, Brandt has taught Mix G comprising rice bran, which is both starchy and naturally gluten-free, chickpea flour, and corn starch (Example 3).
Regarding Claim 7, Brandt teaches the preparation of toast, with the dough comprising the baking Mix C, 10% of which was leavened with a rice sourdough starter (Col. 12, lines 46-57).
Regarding Claim 12, Brandt teaches using its mixes in preparing doughs which are gluten free (Examples 1-3; Claim 8).
Regarding Claim 13, Brandt teaches a method for producing a gluten-free bread, comprising: (a) providing the gluten-free baking mix, (b) preparing dough from said baking mix, and (c) baking free-form loaves of bread with said dough (Claim 8).
Regarding Claims 14, Brandt has taught Mix G comprising 8% chickpea flour, which is within the claimed range (Example 3).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Brandt, in view of Guar Resources, Stewart and Mudgil, as applied to Claim 1 above, and in view of Hussain et al. (J Food Sci Technol (March 2017) 54(3):650–658; Of record), hereinafter Hussain.
Regarding Claims 9, Brandt is silent on the resistant corn starch.
Hussain teaches that mixtures of starch/hydrocolloid such as carrageenan, xanthan gum, and guar gum, are used to improve the quality and stability of food formulations (Introduction). Hussain teaches the preparation of 5% dispersion of resistant cornstarch in water, and dispersion of LBG powder in water at 0.25, 0.50 and 1% (w/w); the starch/gum dispersion mixtures were prepared by gradually adding 5% resistant starch powder into fully-hydrated gum solutions (p. 651, R. Col.). Hussain reports that the mixture of resistant corn starch with locust bean gum and found a shift from an elastic to a more viscous nature (p. 654, L. Col.). The concentration of gum in the mixture correlated with the rheological and structural properties, and promoted variations of pasting properties of starch, indicating that the mixture can modify the structure and texture of products including dough used for baking (p. 657, Conclusion).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Hussain to that of Brandt and use resistant corn starch mixed with the gum in order to control the structure and texture of the dough. Obviousness is established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. See MPEP § 2143.01 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Brandt, in view of Guar Resources, Stewart, and Mudgil, as applied to Claim 8 above, and in further view of Hussain.
The teachings of Brandt, Guar Resources, Stewart, Mudgil, and Hussain regarding the components in the food composition have been set forth supra.
Regarding the claimed amounts in Claim 10:
of 45% to 55% of corn starch, Brandt teaches a generic starch content of 25 to 70% (Claim 1). Brandt also expressly teaches Mix A, which comprises 42% corn starch (Col. 12).
of 25% to 35% of rice flour, Brandt teaches Mix D, which comprises of 42% pregelatinized rice flour (Col. 12).
of 6% to 8% of chickpea flour, Brandt teaches Mix G, which comprises of 8% chickpea flour (Col. 14).
of 3% to 5% of resistant corn starch, Hussain teaches 5% dispersion of resistant cornstarch.
of 2% to 4% of sugar, Brandt teaches mixing sugar with the mixes, for example in a dough composition comprising 1,000 g of Mix C, 10% of which were previously leavened with a rice sourdough starter, 50 g baker's yeast, 50 g shortening, 30 g whole milk powder, 20 g salt and 20 g sugar (Col. 12, lines 45-49). By Examiner’s calculation, this amounts to ~2% sugar in the composition.
of 1 % to 3% of rice sourdough, Brandt expressly teaches 63 g rice starter in a sourdough, representing about 2% by Examiner’s calculation (Table in Cols. 15, 16, in the last sample #4).
of 1.5% to 3% of said partially hydrolyzed guar gum, Mudgil teaches 1–5% PHGG, and that PHGG at up to 3% made softer breads and improves bread characteristics (p. 540, Section 20.6.1).
As such, the prior art as a whole teaches all the amounts of the components in a food composition as claimed. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
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.
From the teachings of the references, it is apparent that one of ordinary skill in the art -would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments:
Applicant argued that Brandt does not teach PHGG with a MW of between 500,000-1,000,000; that none of the secondary references teach or suggest combining the claimed amount of PHGG having a molecular weight of between 500,000 and 1,000,000 with the amount of chickpea flour, as amended. The prior art also fails to disclose that such food compositions containing the claimed combination of PHGG and chickpea flour would have the advantages demonstrated in the comparative examples provided in the specification (Examples 3 and 4) when included in gluten free baked goods.
The Examiner has considered the argument but found it unpersuasive. First, Applicant is reminded that Brandt does not need to teach all the limitation in an obviousness rejection, i.e. not an anticipation rejection; Brandt teaches chickpea flour, and teaches a finite number of texturizing agents in bread-baking. Second, as stated in the above rejection and summarized herein, Guar Resources recognizes that many foods contain guar gum including in gluten-free baked goods, uniquely improving texture and crumb structure, and extending, and has many health benefits; Guar Resources particularly teaches how PHGG improved symptoms in people suffering from IBS. Therefore, there are many reasons to use PHGG that Guar Resources taught. Stewart provides the reason to use PHGG at molecular masses starting at 400 kDa because it produced the greatest concentrations of total short-chain fatty acid known to be protective against chronic disease. One would then modify to determine optimum molecular weight. Therefore, the prior art as a whole would provide the motivation which is the same as the instant claim in incorporating PHGG as claimed in gluten-free baked goods, which is taught to uniquely improving texture and crumb structure.
Additionally, Applicant is reminded that the prior art as a whole does not need to have the same motivation to combine PHGG and chickpea flour as the instant claim. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996)(“[T]he motivation in the prior art…does not have to be identical to that of the applicant to establish obviousness.” Further, “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls… [A]ny need or problem known in the field of endeavor at the time of the invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007).
Applicant argues that Guar Resources refers only to plain guar gum for the textural enhancement of gluten-free baked goods. PHGG is mentioned only in point 3 when referencing studies showing the effects of is a chemically treated partially hydrolyzed guar gum on constipation and irritable bowel syndrome. Applicant appears to allege hindsight reasoning.
PHGG is a type of guar gum, and is gluten free; the section where PHGG is mentioned is “Guar Gum Can Promote Digestive Health”. One skilled in the art would be further motivated to use PHGG over any other guar gum because, not only is it gluten free and would be compatible with gluten free baking, it also provides the additional advantage of relieving constipation and IBS.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant claims unexpected results/benefits using the claimed food composition comprising PHGG instead of guar gum.
Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. An unexpected property or result must actually be unexpected and of statistical and practical significance. The burden is on the applicant to establish the results are in fact unexpected, unobvious and of statistical and practical significance. See MPEP 716.02.
Applicant’s reliance upon the data provided in Figs. 1, and 3-4 to demonstrate that the instantly claimed composition is superior effects, i.e. provides better structure to bread, has been fully and carefully considered, but fails to be probative of nonobviousness of the instantly claimed subject matter. It is agreed that the data and evidence presented in the specification demonstrate that the claimed composition provides well-formed bread. However, the data fails to demonstrate that the results seen with this composition were unexpectedly greater than what would have already been expected by one of ordinary skill in the art at the time of the invention. Please see MPEP §716.02(b)[R-2], which states, “The evidence relied upon should establish ‘that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.’ Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992)”.
The fact that the skilled artisan can reasonably expect that the composition from the prior art would provide bread with good texture by incorporating PHGG in a bread with chickpea flour is clear evidence that that this property is already recognized in the prior art. Therefore, this property is not per se unexpected, but rather is comparable to what is already expected from the prior art. The establishment of a property that is also found in the prior art fails to provide a patentable distinction between the products and, therefore, is insufficient to rebut the evidence of obviousness. Please see MPEP §716.02(c)[R-2] (“Where the unexpected properties of a claimed invention are not shown to have a significance equal to or greater than the expected properties, the evidence of unexpected properties may not be sufficient to rebut the evidence of obviousness. [n re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977).”) In other words, though Applicant asserts that the allegedly unexpected effect(s) of the instantly claimed composition was unpredictable from the disclosure of the prior art, it remains that the prior art as a whole acknowledges a clear expectation of this property, and thus, predicted by the skilled artisan.
Conclusion
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792