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 is in response to amendment filed 2/27/26. Claims 1,11,22-25 are amended and claims 6, 15,16,18-19,21 are cancelled. Claim 26 is added. Claims 1-5,7-14,17,20,22-26 are pending.
The previous 103 rejection of claims 11,13,17,20,22,23 over Turpin is withdrawn due to amendment. The Baier and Barnekow references are withdrawn from the rejection using O’dowd as the primary reference due to the amendment. A new reference is used.
Claim Rejections - 35 USC § 103
Claim(s) 1-5,8,9-14,17,20,25,26 is/are rejected under 35 U.S.C. 103 as being unpatentable over O’Dowd ( WO 2019/224299) in view of Kankaanpaa ( WO 96/22027) and the article by Adriana Harlan “ Paleo Baking: Working with Binders”.
For claims 1,11, O’Dowd discloses a method for making a food product and food product obtained from the method. The method comprises the steps of premixing and blending dry ingredients being used to form a base mix, adding binding agent to the base mix, mixing until the base mix is coated with the binding agent, molding, cutting into pieces and drying the pieces. The binder is prepared by mixing dry binder and liquid binder. The binder comprises water, oil, seed or nut paste in a range of about 1-50%. The food product comprises 45-95% particulate and 5-55% binder. The particulates include seed such as flaxseeds which is defatted. Defatted flaxseed indicates the fat is removed. The claimed amount of less than 30% includes 0. The particulates also includes ingredients such as nut, cereal and grain such as rice,amaranth, quinoa, dried pulses etc.. O’dowd discloses particulate food product also comprises puffed grain-based ingredients ( see page 2 lines 25-30, page 3 lines 10-15,page 5 lines 6-11, pages 6-7 7 lines,page 8 lines 21-33,pages 11-12, page 23)
For claims 10, 14 the food product is vegetarian and devoid of animal products because the particulates are selected vegetable sources ( see page 2 lines 25-30)
For claim 13, the food product is a snack bar. The food product can be shaped to a rectangle which is a bar ( see page 8 lines 16-20).
For claim 25, O’dowd discloses liquid binder ingredients means a binder recipe comprising one or more of water, oil and seed paste. ( see page 14 lines 15-20)
O’Dowd does not specifically disclose the amount of flaxseed, the particle size of the inclusions and the amount of fiber of the flaxseed as in claims 1, 11, the fat content as in claims 2,17 the form as in claim 3, the solid content as in claims 4, 26, the fiber content as in claim 5, the chickpea as in claims 8,20, the amount of sugar as in claims 9,12.
Kankaanpaa discloses a flax preparation. Kankaanpaa teaches flaxseeds are pressed and extracted to form pressed flax cake wherein the oil is removed. The amount of oil removed depends from the number of pressing. Kankaanpaa discloses the pressed cakes contains 25-30% fiber. However, the content of oil, protein and polysaccharide in flax vary significantly every crop year. Kankaanpaa discloses that the oil content of linseeds is generally over 38%. ( see page 1 and page 4)
Harlan teaches to use flaxdeed as binding agent. Flaxseed meal is added to wet ingredients to form a gel or can be mixed with water or another liquid to replace egg. Flaxseed meal can also be mixed with dry ingredient to act as binder.
O’Dowd discloses the particulates are used in amount of 45-95% and binder is used in the range of 5-55%. O’Dowd discloses on page 5 lines 32-35 that bind agent can be seed paste. As shown in Harlan, flaxseed is known to be used as binder. Thus, it would have been obvious to one of ordinary skill in the art to use flaxseed paste as the binding agent in O’Dowd . The use of flaxseed is totally compatible because O’Dowd discloses the use of flaxseed in the product. O’Dowd discloses to use defatted flaxseed. It would have been obvious to one of ordinary skill in the art to select any amount of fat remaining depending on the fat content desired. Since, O’Dowd discloses using defatted flaxseeds, it’s expected the fat content is low and one skilled in the art can readily determine the amount of fat remained depending on the fat content desired. It would have been obvious to use flaxseed presscake as disclosed in Kankaanpaa as a form of defatted flaxseed. Since the binder in O’Dowd contains water and it’s mixed with the base ingredients. It is obvious the flaxseed is hydrated in water. The solid content depends on the amount of flaxseed added and such amount can vary as explained above. Kankaanpaa discloses the amount of fiber in flaxseed can vary depending of the crop year. It would have been obvious to one of ordinary skill in the art to select any fiber content depending on the fiber content wanted in the product. It would have been obvious to one of ordinary skill in the art to vary the size of the particulates depending on the textural feel desired. O’Dowd discloses on page 12 that the size of the dry particulate ingredients is limited only by the ability to process the materials and the texture of the snack. It would have been obvious to use chickpea when such taste is desired. This would have been an obvious matter of choice. O’Dowd discloses that the food product contains less than 10% sugar. It would have been obvious to one of ordinary skill in the art to omit sugar or add very little sugar when desiring a non-sweet product.
Claim(s) 7,22-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over O’Dowd ( WO 2019/224299) in view of Kankaanpaa ( WO 96/22027) and the article by Adriana Harlan “ Paleo Baking: Working with Binders” as applied to claims 1-5,8,9-14,17,20,25,26 above, and further in view of Moore ( WO 2012/071491)
O’dowd doesn’t disclose the bulk density as in claims 7,22,24.
Moore discloses a method for making a quick-cook grain or pulse. The grains includes rice, quinoa and the pulses includes beans, chickpea. Moore discloses unpuffed grains and pulses have a bulk density of approximately 800 gram/L ( .8g/ml). Moore discloses the unpuffed grains and pulses can be lightly puffed to have a bulk density of 260-700g/L ( .26g/ml-.7g/ml) ( see paragraphs 21,22,25)
O’dowd discloses particles including grains such as quinoa, rice and pulse. As shown in Moore, unpuffed grains and pulse have a bulk density of .8g/ml. Thus, it’s obvious the particles disclosed in O’dowd have the bulk density as claimed. Moore also shown that the un-puffed grains and pulses can be slightly puffed to reduce the bulk density. It would have been obvious to one of ordinary skill in the art to puff the grain and pulse to reduce the bulk density when desiring to change the texture of the grain and pulse to have altered sensory taste. O’dowd disclose puffed grained can be included. Both the un-puffed density and puff density disclosed in Moore fall within the claimed range.
Response to Arguments
Applicant's arguments filed 2/27/26 have been fully considered but they are not persuasive.
In the response, applicant argues that O’dowd is silent as to 1-20% flaxseed and 80-99% inclusion. The examiner respectfully disagrees. The rejection clearly sets forth how the O’dowd meet the components of 1-20 flaxseed and 8-99% inclusion. Applicant argues the probability of selecting any one particular ingredients would be approximately .91%p; applicant goes on to list several different probabilities. The basis of this argument is unclear. Applicant does not explain how the probability is calculated. More importantly, the argument does not address the rejection because the claims are not directed to probability. The claims require certain proportion of ingredients and the rejection set forth the ingredients and the proportions. Applicant argues that one skilled in the art would have no motivation to make the specific selections and quantitative allocation of claim 1. 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). O’dowd clearly discloses the ingredients and the proportion.
Applicant further argues that claim 1 is amended to recite the flaxseed comprising less than 10% fat. The amendment does not change the position taken. O’dowd discloses using defatted flaxseeds. This means the fat is extracted from the flaxseeds. Kankaapaa discloses that flaxseeds have an oil content of generally over 38%. In obtaining defatted flaxseed, the total oil content can be removed or the oil can be partially removed. It would have been an obvious matter of choice to one skilled in the art to remove varying amount of fat depending on the fat content desired in the product. The disclosure of defatted flaxseed covers varying degree of fat removal. Applicant points to the data shown in figure 5. O’dowd discloses using defatted flaxseed. Even if one is not aware of any binding benefit with the fat content, it would have been obvious to use flaxseed content having varying fat content depending on the amount of fat desired in the product. It’s not necessary to show varying an ingredient for the same purpose as applicant.
Applicant further argues the unexpected results on the particle sizes and the claims are amended to particle size of 5-10 mm. The examiner maintains her position that changing particle sizes would have been an obvious matter of choice. It would have been obvious to one of ordinary skill in the art to vary the size of the particulates depending on the textural feel desired. O’Dowd discloses on page 12 that the size of the dry particulate ingredients is limited only by the ability to process the materials and the texture of the snack. Even if one is not aware of any binding benefit with the particle sizes, it would have been obvious to use varying sizes as O’dowd teaches the sizes can be varied depending on the texture wanted in the snack. It’s not necessary to show varying an ingredient for the same purpose as applicant.
The rejection over the Turpin reference will not be addressed because the rejection is withdrawn.
The argument directed at the Baier and Barnekow will not be addressed because the references are withdrawn due to the amendment limiting the types of inclusions.
Applicant further argues that O’dowd is silent as to hydrating the flaxseed in water. This argument is not persuasive. O’dowd discloses liquid binder ingredients means a binder recipe comprising one or more of water, oil and seed paste. ( see page 14 lines 15-20). Furthermore, the Harlan reference is relied upon to show the use of flaxseeds as binding agent and Harlan teaches to hydrate the flaxseed in water. The solid content of the hydrating mixture can vary depending on the amount of flaxseed and water used. Such parameter depends on the viscosity of the mixture wanted and can readily be determined by one skilled in the art through routine experimentation.
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.
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April 29, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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