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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/27/2026 has been entered.
Claims 1-12, 16-23 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
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.
Claims 1, 2, 4, 5, 10-12 and 17-23 are rejected under 35 U.S.C. 103 as being unpatentable over Burns (reference is made to the provided archival version excerpt, https://web.archive.org/web/20150515023711/https://food52.com/recipes/24289-high-energy-bars, 2015) in view of De Roode (WO 2017078519 A1).
Regarding Claims 1 and 10, Burns teaches a method for making an energy bar that comprising oats (which are a natural ingredient comprising protein, carbohydrates, fats, and fiber), honey, and date paste (Page 2, “Dry ingredients”, Page 3, “Wet Ingredients”). Note that where Burns teaches the use of honey and date paste, Burns therefore teaches a “natural binding agent” as claimed. The bar does not have a coating and does not contain polyols.
Regarding the limitation of “additional ingredients comprising vitamins and minerals”, Burns teaches the addition of other ingredients (e.g. mixed nuts) that contain vitamins and minerals.
Burns does not address the use of chicory root syrup.
De Roode teaches the use of chicory root syrup (Page 13, Lines 5-6) in a cereal bar product (Page 1, Line 1). De Roode teaches that chicory root syrup acts as a “binding syrup” (Page 3, Lines 22) in a cereal bar product, has good sensory properties and provides health benefits (Page 1, Lines 11-22).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize chicory root syrup in the product of Burns for some or all of the binding ingredients. One would have been motivated to make such a modification since De Roode teaches that chicory root syrup has health benefits and can act as a binder in a cereal bar product.
Modified Burns additionally does not address the use of 8-13% honey, 9-12% chicory root syrup, or 12-18% date paste. However, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art. Further, since Burns, De Roode, and the instant invention are directed towards food bars, and all of the claimed date paste, honey and chicory root syrup are taught as binding agents, the claimed amounts are not considered to provide an unexpected result.
Regarding Claim 2, Burns teaches that the bar is shaped in a “tray”, which is a mold (Page 2, Author notes, last paragraph). Burns does not specifically teach that the bars are cut. However, where Burns teaches that the final product is a “bar”, and additionally teaches that the product is cooled in an 11x17 tray, it would have been obvious to one of ordinary skill to cut the product of Burns into bars.
Regarding Claim 4, Burns teaches the use of grains (Page 2, “Dry Ingredients”).
Regarding Claim 5, Burns does not address a specific nutritional content of the bar. However, where modified Burns teaches the limitations of Claim 1, the method of modified Burns is interpreted to have the nutritional content as claimed.
Additionally, where Burns speaks to the effects of different nutritional components, e.g. carbohydrate and protein content that provide a “good solid kick” to an athlete, one of ordinary skill would have been able to have adjusted the nutritional content to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding Claims 11 and 12, Burns teaches that the ingredients are mixed “thoroughly (Page 2, Step 3), and that a well combined honey is desirable (Page 3, “Wet Ingredients”, Step 2). Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to combine the ingredients of the meal replacement bar, including the binding syrup, until dispersed “substantially homogeneously” as claimed.
Regarding Claim 17, Burns teaches the addition of nut butter (Page 2, “Dry Ingredients”, Step 2).
Regarding Claim 18, Burns does not address a specific nutritional content of the bar. However, where modified Burns teaches the limitations of Claim 1, the method of modified Burns is interpreted to have the nutritional content as claimed.
Additionally, where Burns speaks to the effects of different nutritional components, e.g. carbohydrate and protein content that provide a “good solid kick” to an athlete, one of ordinary skill would have been able to have adjusted the nutritional content to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding Claim 19, Burns does not teach the ingredients of the Claim.
Regarding Claims 20, the meal replacement bar of modified Burns comprises fewer than 20 ingredients.
Regarding Claim 21, the meal replacement bar of Burns comprises nine ingredients. The meal replacement bar of modified Burns, comprising chicory root syrup, comprises greater than nine ingredients. However, from In re Levin, 84 USPG 262 p. 34 : 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.
Regarding Claims 22 and 23, Burns does not address a specific nutritional content of the bar. However, where modified Burns teaches the limitations of Claim 10, the method of modified Burns is interpreted to have the nutritional content as claimed.
Additionally, where Burns speaks to the effects of different nutritional components, e.g. carbohydrate and protein content that provide a “good solid kick” to an athlete, one of ordinary skill would have been able to have adjusted the nutritional content to have arrived at the amounts as claimed through no more than routine experimentation.
Claims 3 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Burns in view of De Roode as applied to Claims 1 and 10, above, and further in view of Giles-Smith (https://www.todaysdietitian.com/milk-proteins-packing-a-powerful-nutritional-punch/)
Regarding Claim 3, Burns teaches the addition of skim milk powder and additionally teaches that the addition of protein is desirable (Page 2, Paragraphs 5 and 10) but does not specifically teach one of the protein sources as claimed.
Giles-Smith teaches that whey protein isolate and skim milk powder are both good sources of protein (Page 7, Paragraph 4-Page 8, Paragraph 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize whey protein isolate in the meal replacement bar of Burns to replace the skim milk powder. One would have been motivated to make such a modification since Giles-Smith teaches that both whey protein isolate and skim milk powder are good sources of protein.
Regarding Claim 16, Burns teaches the addition of skim milk powder and additionally teaches that the addition of protein is desirable (Page 2, Paragraphs 5 and 10) but does not specifically teach one of the protein sources as claimed.
Giles-Smith teaches that whey protein isolate and skim milk powder are both good sources of protein (Page 7, Paragraph 4-Page 8, Paragraph 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize whey protein isolate in the meal replacement bar of Burns to replace the skim milk powder. One would have been motivated to make such a modification since Giles-Smith teaches that both whey protein isolate and skim milk powder are good sources of protein.
Claims 6, 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Burns in view of De Roode and Palmer (US 2005/0002989, January 2005) and Food & Drink Business Europe (https://www.fdbusiness.com/pgp-launches-90-soy-protein-crisp/)
Regarding Claim 6, Burns teaches a method for making an energy bar that comprising oats (which are a natural ingredient), honey, and date paste (Page 2, “Dry ingredients”, Page 3, “Wet Ingredients”). Note that where Burns teaches the use of honey and date paste, Burns therefore teaches a “natural binding agent” as claimed. The bar does not have a coating and does not contain polyols.
Burns does not address the use of chicory root syrup.
De Roode teaches the use of chicory root syrup (Page 13, Lines 5-6) in a cereal bar product (Page 1, Line 1). De Roode teaches that chicory root syrup acts as a “binding syrup” (Page 3, Lines 22) in a cereal bar product, has good sensory properties and provides health benefits (Page 1, Lines 11-22).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize chicory root syrup in the product of Burns for some or all of the binding ingredients. One would have been motivated to make such a modification since De Roode teaches that chicory root syrup has health benefits and can act as a binder in a cereal bar product.
Modified Burns additionally does not address the use of 8-13% honey, 9-12% chicory root syrup, or 12-18% date paste. However, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art. Further, since Burns, De Roode, and the instant invention are directed towards food bars, and all of the claimed date paste, honey and chicory root syrup are taught as binding agents, the claimed amounts are not considered to provide an unexpected result.
Modified Burns does not discuss the addition of vitamins, minerals, or a “crisp containing natural protein”.
Palmer teaches a meal replacement bar product [0091 and 0099]. The bar comprises ingredients such as oats [0088] (which comprise protein, carbohydrates, and fiber) and fats [0068]. Palmer teaches that the bar comprises vitamins and minerals sufficient to provide 5-45% of RDI for vitamin and minerals [0085].
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to include vitamins and minerals as taught by Palmer in a meal replacement bar. One would have been motivated to make such a modification since Palmer teaches that vitamins and minerals are suitable for inclusion in a meal replacement bar.
Regarding the limitation that the vitamins and minerals be mixed into the binding syrup, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Burns teaches that the addition of protein is desirable (Page 2, Author notes, second to last paragraph) but does not address the use of protein crisps.
Food & Drink Business Europe (F&D) teaches that protein crisps deliver an optimum amount of soy protein, and are suitable for use in protein and energy bars.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a protein crisp as taught by F&D in the meal replacement bar of Palmer. One would have been motivated to make such a modification since F&D teaches that protein crisps are suitable for such an application.
Regarding Claim 7, Burns teaches that the bar is shaped in a “tray”, which is a mold (Page 2, Author notes, last paragraph). Burns does not specifically teach that the bars are cut. However, where Burns teaches that the final product is a “bar”, and additionally teaches that the product is cooled in an 11x17 tray, it would have been obvious to one of ordinary skill to cut the product of Burns into bars.
Regarding Claim 9, Burns teaches the use of grains (Page 2, “Dry Ingredients”).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Burns in view of De Roode and Palmer and Food & Drink Business Europe and applied to Claim 6, above, and further in view of Giles-Smith.
Regarding Claim 8, Burns teaches the addition of skim milk powder and additionally teaches that the addition of protein is desirable (Page 2, Paragraphs 5 and 10) but does not specifically teach one of the protein sources as claimed.
Giles-Smith teaches that whey protein isolate and skim milk powder are both good sources of protein (Page 7, Paragraph 4-Page 8, Paragraph 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize whey protein isolate in the meal replacement bar of Burns to replace the skim milk powder. One would have been motivated to make such a modification since Giles-Smith teaches that both whey protein isolate and skim milk powder are good sources of protein.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-12, 16-23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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