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 status
The examiner acknowledged the amendment made to the claims on 12/03/2025.
Claims 1-6, 8-11 and 15-20 are pending. Claims 1-4, 8-11, 16-17 and 20 are currently amended. Claims 7 and 12-14 are newly cancelled. Claims 5, 6, 15 and 18-19 are previously presented. Claims 1-6, 8-11 and 15-20 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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.
Claims 1-6, 9 and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Chaney WO 2017/057823 A1 (hereinafter referred to as Chaney) in view of Nappen US Patent No. 4,232,052 (hereinafter referred to as Nappen) and ELI5, "Why do nuts and seeds taste significantly better after roasting them?" [Online], published 2021, [retrieved on 2026-02-04]. Retrieved from the Internet: <URL: https://www.reddit.com/r/explainlikeimfive/comments/mbb9f1/eli5_why_do_nuts_and_seeds_taste_significantly/?utm_source=share&utm_medium=web3x&utm_name=web3xcss&utm_term=1&utm_content=share_button> (hereinafter referred to as ELI5).
Regarding claims 1, 3-6, 9 and 15-20, Chaney teaches a flavor delivery system comprising a non-aqueous flavorant and an encapsulant which is comminuted seed sand nuts (e.g., flax, hemp, poppy, sesame, sunflower, pumpkin, hazel, macadamia, cashew, chestnut, pistachio, pine, walnut, almond, etc.), wherein the non-aqueous flavorant is flavor oils and flavoring aromatics and/or oils, oleosins, essence, and distillates such as spearmint oil, cinnamon oil, wintergreen oil, peppermint oil, mint oil, clove oil, bay oil, anise oil, eucalyptus oil, thyme oil, cedar leaf oil, nutmeg oil, allspice oil, sage oil, mace oil, almond oil, orange oil, lime oil, lemon oil, etc. (note that all those oils read on an essential oil of claim 6 or claim 19) (page 2, line 23-27; page 9, para.3-4 from the bottom; page 12, para. 1-2). Chaney further teaches the method of adding the flavorant to the encapsulant (Example 1-4). Chaney further teaches a food comprising an edible base and the flavor delivery system (page 5 bottom para. whole page 6 and 7) thus reads on the method of adding the flavor delivery system to an edible base. Chaney further teaches that flavor delivery system optionally comprises a preservative, gums, starches, dextrin, etc. (page 12 bottom para.). Chaney further teaches that the encapsulant protects the flavorant against oxidation and moisture thus the flavor delivery system has good oxidative stability (page 3 bottom para.; the para. that bridges pages 4 and 5), thus reading on claim 1 limitation about the superior oxidation stability of the flavor delivery system to the flavor alone, and the preamble of claim 16.
Chaney as recited above teaches that examples of the encapsulant are the comminuted sunflower seeds, macadamia nuts, pumpkin seeds, pistachio nuts, etc., and the non-aqueous flavorant is a liquid flavoring oil. Further, Chaney teaches that the delivery system may include 1-15% flavorant (page 11, 2nd para.). Such a proportion overlaps with or encompasses the ratio range as recited in claims 1 and 9. 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 I).
Chaney as recited above teaches that encapsulants are comminuted seeds and nut, but is silent regarding that the comminuted seeds and nuts are roasted.
Nappen teaches that powdered foodstuff that comprise ground nuts and seeds (e.g., almond, walnut, peanuts, pecan, sesame seeds, etc.) and a grinding agent (e.g., dextrin, starches or gum) can be used as carriers for flavors and aroma-producing oils (page 4, line 37-40; column 1, line 45-51, column 2, line 3-5). Further, Nappen includes the embodiment teaching that the nuts and seeds are roasted (Example V, e.g., roasted peanut).
ELI5 teaches that nuts and seeds taste significantly better after roasting, as a result of caramelization and Maillard reaction (the whole document).
Both Chaney and Nappen are directed to foodstuff that comprises comminuted nuts and seeds, and starches, gum, or dextrin for use as carriers for flavors and flavoring oils. Both Chaney and ELI5 are directed to nuts and seeds for food use. Further, Nappen teaches that comminuted roasted seeds and nuts can be used as the carriers, and ELI5 teaches that roasted nuts and seeds have improved taste than untoasted ones. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Chaney by using roasted nuts and seeds as the encapsulants with reasonable expectation of success, for the reason that prior art has established that first, roasted nuts and seeds after grinding can be used as carriers for flavors, and second, roasted nuts and seeds taste better than unroasted ones.
Regarding claim 2, the language about “are ground to form a paste or butter” is a product-by-process limitation, given that the claim is directed to a final flavor delivery system as opposed to a process of forming the flavor delivery system comprising grinding the seed or nut to form a paste or butter. In the instant case, Chaney teaches that seeds/nuts are ground (page 12, 2nd para). Although Chaney is silent regarding a paste or butter is formed as a result of grinding, the final flavor delivery system as disclosed by Chaney in view of Nappen and ELI5 comprises liquid flavor oil encapsulated in the ground roasted seeds/nuts thus is materially indistinguishable from the flavor delivery system as recited in instant claims. Therefore, prior art meets claim 2.
Claims 8 and 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Chaney in view of Nappen and ELI5 as applied to claim 1 above, and further in view of Weiser CA 2545116 A1 (hereinafter referred to as Weiser).
Regarding claims 8 and 10-11, Chaney in view of Nappen and ELI5 as recited above teaches that the encapsulants are the comminuted roasted sunflower seeds, macadamia nuts, pumpkin seeds or pistachio nuts, and the non-aqueous flavorant is a liquid flavoring oil. Further, Chaney teaches that the delivery system may include 1-15% flavorant (page 11, 2nd para.), thus being silent regarding the ratio of the flavorant to the comminuted seeds/nuts as recited in claims 8 and 10-11.
Weiser in the same field of endeavor teaches a scent compound that comprises a carrier and an active ingredient (page 4, the para. under “Summary of the invention”), wherein the carrier is ground seed (page 8, 2nd para.; page 9, first para.), and the active ingredient is a fragrance scent compound such as cinnamon oil, clove oil, lemongrass oil, peppermint oil, mint oil, etc. (the para. that bridges pages 10 and 11; page 10, 2nd para. from the bottom). Further, Weiser teaches that the ratio of carrier material to active ingredient may be varied to provide scent compounds having different odor emitting properties, for example, the carrier material and active ingredient may be combined in a ratio of 70% to 95 wt% carrier material and 5-30 wt% active ingredient (page 11, 2nd para.).
As such, prior art has recognized that the ratio of the flavorant to the carrier is a parameter of the flavorant emitting properties, and the ratio can be as high as 30: 70. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the ratio of the flavorant to the comminuted seeds/nuts in the range of 5:95 to 30-70 for desired flavorant emitting properties. The ratio as disclosed by Weiser encompasses those as recited in claims 8 and 10-11. 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 I).
Response to Arguments
Applicant's arguments filed 12/03/2025 have been fully considered and the examiner’s response is shown below:
The double patenting rejection, the 35 USC 112 rejection and 35 USC 102 rejection are withdrawn in view of the amendments made to claims 1 and 8-11, and the cancellation of claim 14.
Applicant argues on page 5 of the Remarks that cited arts fail to teach the feature of roasted nuts and seeds.
The argument is considered but found moot over the new ground of rejection set forth in the instant office action.
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 CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791