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 .
This office action was written in response to the Applicants Remarks filed 10/19/25. Claims 1-20 are pending and have been examined on the merits.
Withdrawn Rejections
The objection to claim 8 has been withdrawn due to the amendment to claim 15.
The 112(b) rejection of claim 14 due to the term “the sliced almonds”, has been withdrawn due to the amendment to the claim.
The 103(a) rejections of claims 1-5, and 7 over Kou et al. (US 2007/0048426) in view of Harris et al. (US 3,198,637) has been withdrawn due to the amendment to claim 1.
The 103(a) rejection of claim 6 over Kou et al. (US 2007/0048426) in view of Harris et al. (US 3,198,637) as applied to claim 1 above and in further view of Hikoe et al. (JP 2003021947) Machine Translation Feb 2023 has been withdrawn due to the amendment to claim 1.
The 103(a) rejections of claims 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Reichkitzer et al. (US 2014/0287101) have been withdrawn due to the amendment to claim 8.
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.
Claim 1 recites the limitation "the baked pressed ingredients" in line 21. There is insufficient antecedent basis for this limitation in the claim because there is no previous recitation of a pressing step.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 6 discloses “further comprising refrigerating the baked mixture for a predetermined time until hard”. However, claim 1 has been amended to recite a cooling step in a refrigeration chamber so it is unclear where claim 6 would fall or whether it adds anything further since there already a recitation of refrigeration after baking in in claim 1, and since it is know that refrigeration would harden the baked good. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Claim 14 is rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of claim 14 is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons: According to the claim, sliced almonds are selected from a group of at least one organic nut from a group of at least Brazil, cashew, macadamias, and pistachios other organic nuts.
These components do not all share a single structural similarity or are known in the art to be functionally equivalent (e.g. flour is not a functional equivalent of pectin). Therefore, the coating component is of indeterminate scope. Almonds are not Brazil nuts (scientifically a seed), cashew (scientifically a seed), macadamias (scientifically a seed), or pistachios (scientifically a drupe), or other organic nuts. Almonds are their own distinct genus of drupe.
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-5, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Smitten Kitchen 2010 https://smittenkitchen.com/2010/02/thick-chewy-granola-bars/#:~:text=Cool%20the%20bars%20in%20their,don't%20mind%20yours%20chunkier.
Regarding Claims 1, 2, 3, 4, 5, 7: Kou discloses a method of making a batter-like composition having 20 to 30% flour or flour replacement agent and that the flour replacement agent can be tapioca [0032; 0087]; having fat at 10% to 20% and where the fat can be coconut oil [0032; 0106]; sweetener that can be sugar in an amount of 10 to 20% [0032]; about 0.4 to about 2 % chemical leavening agent in the form of baking soda [0032; 0114]. Kou does not include lecithin and therefore renders the claim limitation of “lecithin-free” obvious. Kou discloses supplementing flour replacements with a source of protein and that collagen is a suitable protein supplement [0083]. Kou discloses protein supplements at 8% or less of the composition and also in amounts of up 30% [0089;0091]. Kou discloses using whole egg in the amount of up to 30% [0090]. Kou discloses flavor at .4 and .5% and flavors and particulates at up to 15% [0230; 0240]. Kou discloses salt at .7% [0221]. Kou discloses including particulates and inclusions, namely nuts [0156]. Kou discloses including flavor chips including chocolate chips [0156]. Kou discloses baking the mixture in an oven for a predetermined time [0075].
Kou does not disclose the mixing of the ingredients in the order recited. However the order of mixing ingredients is one that is based on the desire of one of ordinary skill in the art. A selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Kou does not explicitly disclose including vanilla extract.
Kou does not disclose baking and then forming shapes.
Smitten Kitchen discloses a method of making granola bars [1st page]. Smitten Kitchen discloses adding vanilla to the ingredient mixture to increase the flavor [1st page]. Smitten Kitchen discloses stirring ingredients together including nuts, pressing the ingredients in a square pan and then baking for a time and temperature [1st page]. Smitten Kitchen discloses cooling the baked bars [2nd page]. Smitten Kitchen discloses cutting after cooling [2nd page]. Smitten Kitchen discloses that the baked bars can be cooled by cooling in a refrigerator prior to cutting [pg. 2nd page].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of making a composition as in Kou to include vanilla as in Smitten Kitchen since Kou discloses the inclusion of flavor and since vanilla is a staple flavorant in baking and since Smitten Kitchen discloses the vanilla as improving the flavor of the bars.
Further it would have been obvious to modify the method of Kou to include baking, cooling, and then cutting as in Smitten Kitchen since the order of conducting cutting and baking would have been based on the desire of one of ordinary skill in the art and the selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results.
Regarding the amounts of ingredients, although Kuo does not explicitly disclose the claimed amounts one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Kuo overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Alternatively, regarding the amounts of the ingredients, the amounts are substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding the ingredients being an organic or non-GMO status, it would have been obvious to one of ordinary skill in the art to select organic or non-GMO ingredients based on the desired of one of ordinary skill and of their target consumer.
Regarding the source of the sugar being coconut sugar, the Kuo reference discloses sugar and the source of the sugar would have been based on the desire of one of ordinary skill.
Regarding the salt being Himalayan sea salt, the Kuo reference discloses salt and the source of the salt would have been based on the desire of one of ordinary skill.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Smitten Kitchen 2010 https://smittenkitchen.com/2010/02/thick-chewy-granola-bars/#:~:text=Cool%20the%20bars%20in%20their,don't%20mind%20yours%20chunkier as applied to claim 1 above and in further view of Hikoe et al. (JP 2003021947) Machine Translation Feb 2023.
Regarding Claim 6: Kou discloses as discussed above in claim 6. Kou does not disclose further comprising refrigerating the baked mixture for a predetermined time until hard.
Smitten Kitchen also discloses freezing after baking [2nd page].
Hikoe discloses freezing a baked composition [pg. 7; pg. 8].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kuo to include a freezing after baking step as in Hikoe in order to provide the bars in long term storage form and to further firm up the nutritional composition.
Claims 8-13 are rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Reichkitzer et al. (US 2014/0287101).
Regarding Claims 8, 9, 11: Kou discloses a method of making a batter-like composition having 20 to 30% flour or flour replacement agent and that the flour replacement agent can be tapioca [0032; 0087]; having fat at 10% to 20% and where the fat can be coconut oil [0032; 0106]; sweetener that can be sugar in an amount of 10 to 20% [0032]; about 0.4 to about 2 % chemical leavening agent in the form of baking soda [0032; 0114]. Kou discloses supplementing flour replacements with a source of protein and that collagen is a suitable protein supplement [0083]. Kou discloses protein supplements at 8% or less of the composition and also in amounts of up 30% [0089;0091]. Kou discloses using whole egg in the amount of up to 30% [0090]. Kou discloses spices and flavor at .4 and .5% and flavors and particulates at up to 15% [0156;0230; 0240]. Kou discloses salt at .7% [0221]. Kou discloses including particulates and inclusions, namely nuts [0156]. Kou discloses including flavor chips including chocolate chips [0156]. Kou discloses the composition as based on flour replacements (gluten free) and does not require the presence of lecithin.
Kou does not disclose the mixing of the ingredients in the order recited. However the order of mixing ingredients is one that is based on the desire of one of ordinary skill in the art. A selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Kou does not explicitly disclose including coconut slices.
Reichkitzer discloses food bars containing coconut flakes [0003; 0004; 0023; 0026]. Reichkitzer discloses additives or inclusions that are coconut flakes and that the coconut flakes 0 to 35% of the weight of the composition [0023].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Kou to include coconut flakes as in Reichkitzer since Kou discloses the inclusion of particulates in the composition and since coconut flakes would provide additional flavor and texture to the bar.
Regarding the amounts of ingredients, although Kuo does not explicitly disclose the claimed amounts one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Kuo overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Alternatively, regarding the amounts of the ingredients, the amounts are substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding the ingredients being an organic or non-GMO status, it would have been obvious to one of ordinary skill in the art to select organic or non-GMO ingredients based on the desired of one of ordinary skill and of their target consumer.
Regarding the source of the sugar being coconut sugar, the Kuo reference discloses sugar and the source of the sugar would have been based on the desire of one of ordinary skill.
Regarding the salt being sea salt, the Kuo reference discloses salt and the source of the salt would have been based on the desire of one of ordinary skill.
Regarding Claim 10: Kuo discloses as discussed above in claim 8. Kuo discloses the size and dimension of the composition as not critical and discloses the individual pieces in terms of ounces [0170]. Kuo discloses compact portion sizes [0212].
Reichkitzer discloses bars having dimensions as large as 4 in. x 3 in. or larger [0026].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Kuo to fit the dimensions of Reichkitzer to make a food bar based on the desired size of one of ordinary skill.
Regarding Claim 12: Kuo discloses as discussed above in claim 8. Kuo discloses cassava flour and it would have been obvious that the features of the cassava flour would have been cassava flour rich in carbohydrates and vitamin C, is gluten-free, lectin-free, and low in calories, fat, and sugar.
Regarding Claim 13: Kuo discloses as discussed above in claim 8. Kuo discloses including chocolate and it would have been obvious that this would have encompassed milk and dark chocolate. Reichkitzer discloses bars having milk chocolate or white chocolate [0013; 0023].
Claims 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Reichkitzer et al. (US 2014/0287101) and Smitten Kitchen 2010 https://smittenkitchen.com/2010/02/thick-chewy-granola-bars/#:~:text=Cool%20the%20bars%20in%20their,don't%20mind%20yours%20chunkier.
Regarding Claims 15, 16, 17: Kou discloses a method of making a batter-like composition having 20 to 30% flour or flour replacement agent and that the flour replacement agent can be tapioca [0032; 0087]; having fat at 10% to 20% and where the fat can be coconut oil [0032; 0106]; sweetener that can be sugar in an amount of 10 to 20% [0032]; about 0.4 to about 2 % chemical leavening agent in the form of baking soda [0032; 0114]. Kou discloses supplementing flour replacements with a source of protein and that collagen is a suitable protein supplement [0083]. Kou discloses protein supplements at 8% or less of the composition and also in amounts of up 30% [0089;0091]. Kou discloses using whole egg in the amount of up to 30% [0090]. Kou discloses spices and flavor at .4 and .5% and flavors and particulates at up to 15% [0156;0230; 0240]. Kou discloses salt at .7% [0221]. Kou discloses including particulates and inclusions, namely nuts [0156]. Kou discloses including flavor chips including chocolate chips [0156]. Kou discloses the composition as based on flour replacements (gluten free) and does not require the presence of lecithin.
Kou does not disclose the mixing of the ingredients in the order recited. However the order of mixing ingredients is one that is based on the desire of one of ordinary skill in the art. Further, a selection of any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Kou does not explicitly disclose including coconut slices.
Kou does not explicitly disclose pressed, baked, refrigerated, cut into predetermined size bars.
Reichkitzer discloses food bars containing coconut flakes [0003; 0004; 0023; 0026]. Reichkitzer discloses additives or inclusions that are coconut flakes and that the coconut flakes 0 to 35% of the weight of the composition [0023]. Reichkitzer discloses vanilla, cinnamon [0019].
Smitten Kitchen discloses a method of making granola bars [1st page]. Smitten Kitchen discloses adding vanilla to the ingredient mixture to increase the flavor [1st page]. Smitten Kitchen discloses stirring ingredients together including nuts, pressing the ingredients in a square pan and then baking for a time and temperature [1st page]. Smitten Kitchen discloses cooling the baked bars [2nd page]. Smitten Kitchen discloses cutting after cooling [2nd page]. Smitten Kitchen discloses that the baked bars can be cooled by cooling in a refrigerator prior to cutting [pg. 2nd page].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Kou to include coconut flakes as in Reichkitzer since Kou discloses the inclusion of particulates in the composition and since coconut flakes would provide additional flavor and texture to the bar.
It would have been obvious to modify the composition of Kou to include vanilla or cinnamon as in Reichkitzer since Kuo includes spices in its composition.
Further it would have been obvious to modify the composition of Kou to include it in pressed, baked, cooled, and cut form as in Smitten Kitchen in order to provide the bar in baked form
Regarding the amounts of ingredients, although Kuo does not explicitly disclose the claimed amounts one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Kuo overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Alternatively, regarding the amounts of the ingredients, the amounts are substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding the ingredients being an organic or non-GMO status, it would have been obvious to one of ordinary skill in the art to select organic or non-GMO ingredients based on the desired of one of ordinary skill and of their target consumer.
Regarding the source of the sugar being coconut sugar, the Kuo reference discloses sugar and the source of the sugar would have been based on the desire of one of ordinary skill.
Regarding the salt being sea salt, the Kuo reference discloses salt and the source of the salt would have been based on the desire of one of ordinary skill.
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 15 has been considered regarding its disclosure of pressed, baked, refrigerated and cut good.
“Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Regarding Claim 18: Kuo discloses as discussed above in claim 15. Kuo discloses including chocolate and it would have been obvious that this would have encompassed milk and dark chocolate. Reichkitzer discloses bars having milk chocolate or white chocolate [0013; 0023].
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 18 has been considered regarding its disclosure of refrigerated baked mixture.
“Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Regarding Claim 19: Kuo discloses as discussed above in claim 15. Kuo as modified discloses cut pieces as discussed above.
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 19 has been considered regarding its disclosure of cut baked pieces.
“Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Regarding Claim 20: Kuo discloses as discussed above in claim 15. Kuo discloses individually stored and packaged baked goods [0010; 0168; 0171].
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 20 has been considered regarding its disclosure of packaged baked good.
“Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process.” In re Thorpe, 777 F.2d 695, 698..
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Reichkitzer et al. (US 2014/0287101) as applied to claim 8 above and in further view of Caws et al. (US 2014/0030376).
Regarding Claim 14: Kuo as modified discloses as discussed above in claim 8 and discloses including nuts as discussed above.
Kuo does not disclose specific nuts as Brazil, cashews, macadamias, or pistachios.
Caws discloses a gluten-free ready to eat composition containing salt, vanilla, chocolate, eggs, sugar, nuts, baking soda, coconut oil [0019; 0020; 0032; 0033; 0052]; discloses bars that are 2 inches by 4 inches [0023]. Caws discloses including nuts which can be pistachio or cashews [0033].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Kuo to include pistachio or cashews as in Caws since they are less likely to trigger an allergic reaction and for the organoleptic properties of the nuts.
Response to Arguments
The objection to claim 8 has been withdrawn due to the amendment to claim 15.
The 112(b) rejection of claim 14 due to the term “the sliced almonds”, has been withdrawn due to the amendment to the claim.
The 103(a) rejections of claims 1-5, and 7 over Kou et al. (US 2007/0048426) in view of Harris et al. (US 3,198,637) has been withdrawn due to the amendment to claim 1.
The 103(a) rejection of claim 6 over Kou et al. (US 2007/0048426) in view of Harris et al. (US 3,198,637) as applied to claim 1 above and in further view of Hikoe et al. (JP 2003021947) Machine Translation Feb 2023 has been withdrawn due to the amendment to claim 1.
The 103(a) rejections of claims 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kou et al. (US 2007/0048426) in view of Reichkitzer et al. (US 2014/0287101) have been withdrawn due to the amendment to claim 8.
Applicants assert that Applicants invention is a fundamentally different design than what is described in Kou, Reichkitzer or with Caws.
In response to applicant's argument that Kou, Reichkitzer or with Caws is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the Examiner disagrees and maintains that the prior art references are from the same field of endeavor. They all include the formulation of batters and food bars.
The rejections of claims 8-14 have been maintained.
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 FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793