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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claim 16 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 09/30/2025.
Applicant's election with traverse of claims 1-15 in the reply filed on 09/30/2025 is acknowledged. The traversal is on the following ground(s):
The Group I claims herein are directed to a process of treating a leavened and baked product by injecting a post-oven sweetening and preservative solution; and the claim in Group II is directed to a leavened and baked product treated according to the process of Group I. The claims in each of Groups I and II require a leavened and baked product. In other words, both Groups of claims are inexorably linked, and no additional search burden would be present during examination. Any search relevant to Group I, the process of treating a leavened and baked product, would also be relevant to Group II.
This is not found persuasive because the technical feature of injected leavened baked product does not make a contribution over the prior art as discussed in the rejection below.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 14 and 15 are objected to because of the following informalities:
Claim 14 recites the following limitations:
The method of treating a leavened and baked product according to claim 1, further comprising the step of raising, post-baking, sugar content of the leavened and baked product to between 0.5% and 4.5%.
Claim 15 recites the following limitations:
The method of treating a leavened and baked product according to claim 1, further comprising the step of raising, post-baking, humidity of the leavened and baked product to between 0.9% and 3.2%.
It appears that the phrases related to the sugar content and humidity are incomplete. The sugar content and humidity are somehow increased, adjusted, etc.
Appropriate correction is required.
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.
Claims 1-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1 and 2, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 2-15 are included in the rejection because they depend from claim 1.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 4, 6-8 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Eijk et al (US 2012/0156326 A1).
In regard to claim 1, Eijk et al discloses preparing and baking a leavened product ([0019]).
In regard to the leavened product, Eijk et al discloses:
[0019] In another aspect, the instant invention relates to a process for producing a baked good with extended mold-free shelf life comprising the steps of baking said baked good and cooling said baked good to a temperature sufficiently low for yeast to survive; applying live yeast solution containing sugar fermented by this yeast to said baked good after baking; and packaging and storing said baked good in a closed bag. The baked good of the invention can take various forms. Said baked good include, but are not limited to bread, rolls, pita bread, donuts, croissants, tortillas, bagels and pizza crusts. The baked goods of the invention can be prepared in different ways including being baked in an oven or fried in a fryer. The baked good of the invention can be yeast raised or chemically leavened. In one aspect, the baked goods of the invention are sliced prior to packaging.
In regard to the “sweetening and preservative injectable solution”, Eijk et al discloses incorporating a yeast solution comprising yeast and sugar in the baked product ([0035], [0036]).
In regard to the injecting the “sweetening and preservative injectable solution” after baking, Eijk et al discloses that yeast solution comprising yeast and sugar could be injected into baked product ([0045]).
In regard to the recitation of “at the end of baking”, Eijk et al discloses “applying live yeast solution containing sugar fermented by this yeast to said baked good after baking” ([0019]).
Eijk et al discloses that the invention is intended to replace chemical preservatives ([0043]).
Therefore, Eijk et al anticipates claim 1.
In regard to claim 4, it is noted that claim 4 does not require the presence of polyalcohols in the sweetening solution. Claim 4 further expands the list of polyalcohols that are optional/alternative in claim 1.
In regard to claim 6, Eijk et al discloses that the yeast solution comprises about 5% by weight of alcohol ([0036]). (It is noted that a specific example in the prior art “about 5%” which is within claimed range “between 3% and 5%” anticipates the range).
In regard to claim 7, Eijk et al discloses that yeast solution may further contain propionate and sorbate (claim 7, [0043]).
In regard to claim 8, Eijk et al discloses that the yeast solution comprises yeast and sugar ([0036]). Hence, Eijk et al discloses 0% flavorings.
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim(s) 2-3 and 9-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eijk et al (US 2012/0156326 A1).
In regard to claim 2, Eijk et al does not specifically disclose sugars as claimed. However, Eijk et al discloses fermentable sugars ([0062]). Hence, one of ordinary skill in the art would have been motivated to include any known and widely available fermentable sugar in the composition such as glucose, fructose, saccharose, etc.
In regard to claim 3, Eijk et al does not disclose the concentration of simple sugars as claimed. However, Eijk et al teaches that a yeast solution comprising yeast and sugar could be incorporated as a part of sweetening composition such as jelly for jelly donuts ([0045]). In this case, the concentration of sugar in the composition would depend on the desired sweetness of the jelly. The particular concentration of simple sugars in this composition would depend on the personal preference of a consumer.
In regard to claim 9, Eijk et al does not disclose the water activity of the sweetening composition. The water activity of the composition would depend on particular ingredients and their concentrations.
In regard to claim 10, Eijk et al does not disclose injecting apparatus with plurality of needles. One of ordinary skill in the art would have been motivated to employ any conventional device providing desired level of the yeast solution incorporation.
In regard to claims 11 and 12, Eijk et al discloses cooling the baked product to an ambient temperature to avoid killing the yeast ([0046]).
Further in regard to the temperature recitations, it is noted that:
Generally, 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05, II A).
Further, regarding the temperature ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claim 13, Eijk et al discloses applying from 0.1 to 10% of yeast solution by weight of the baked good (Claim 66).
In regard to the adjustment of sugar content and “humidity” as recited in claims 14 and 15, it is noted that although the reference does not specifically disclose every possible quantification or characteristic of its product, these characteristics would have been expected to be as claimed absent any clear and convincing evidence and/or arguments to the contrary. The reference discloses the same starting materials and methods as instantly (both broadly and more specifically) claimed, and thus one of ordinary skill in the art would recognize that adjustment of sugar content and “humidity” among many other characteristics of the product obtained by referenced method, would have been an inherent result of the process disclosed therein. The Patent Office does not possess the facilities to make and test the referenced method and product obtain by such method, and as reasonable reading of the teachings of the reference has been applied to establish the case of obviousness, the burden thus shifts to applicant to demonstrate otherwise.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eijk et al (CN 101980612 A) as applied to claim 1 above and further in view of Schmidt (US 20040228957 A1).
In regard to claim 5, Eijk et al does not disclose the presence of polyalcohols. However, Eijk et al teaches that yeast solution comprising yeast and sugar could be incorporated as a part of sweetening composition such as jelly for jelly donuts, cream stuffing, or chocolate added to the baked goods ([0045]). Schmidt discloses using sugar alcohols as sugar substitutes in low carbohydrate foods:
[0019] Sugar alcohols are well-suited for use as sugar substitutes in low carbohydrate foods. They provide fewer calories (about a half to one-third less calories) than regular sugar because they are converted to glucose more slowly; they require little or no insulin to be metabolized and do not cause sudden increases in blood sugar. Thus, sugar alcohols do not cause the detrimental effects on diabetics that other carbohydrates cause. Examples of sugar alcohols include, but are not limited to, mannitol, sorbitol, xylitol, lactitol, isomalt, maltitol, erythritol, and hydrogenated starch hydrolysates (HSH). The total amount of sugar alcohol can comprise up to about 50% of the cream filling.
Schmidt discloses cream fillings containing polyalcohols such as maltitol, sorbitol, mannitol:
[0020] The cream filling generally comprises crystalline maltitol or crystalline sorbitol as the primary sugar alcohol. Additionally, maltitol solution may be used to improve the texture, moisture content and crystallization properties of the mixture. The concentration of sorbitol can vary depending on the desired texture, consistency and sweetness of the cream filling, but typically ranges from about 8% to about 22%.
[0022] The cream filling may also include a combination of various nutritive sweeteners. In one embodiment maltitol comprises about 80% of the sugar alcohol in the cream filling. In another embodiment, the cream filling also contains mannitol. Mannitol is a white, crystalline sugar alcohol added to processed foods for the purpose of thickening, stabilizing and sweetening. It is approximately 72% as sweet as sucrose and has a cool, sweet taste. Using mannitol in combination with maltitol or other sugar alcohols also varies and improves the texture, flavor and sweetness of the cream filling. Thus, the amount of mannitol, and its ratio with other sugar alcohols, depends on the desired texture, flavor and sweetness of the cream filling. In one embodiment, mannitol comprises up to about 10% of the cream filling. In another embodiment, mannitol comprises about 20% of the total sugar substitutes used. In one particular embodiment, the weight ratio of powdered mannitol to crystalline maltitol is about 1:3.5.
One of ordinary skill in the art would have been motivated to modify Eijk et al in view of Schmidt and to substitute at least part of sugar with sugar alcohols in order to provide a baked product with fewer calories that is also suitable for consumers suffering from diabetes.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lydecker (Panbriacone, Italy’s “Drunken Sweet Bread) discloses injecting panettone (leaved baked product) after baking, with a dessert wine like vin santo or passito or a spirit such as rum. Dessert wine contains considerable amount of sugars. Hence, Lydecker discloses injecting leavened baked product with sweetening solution after baking.
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/VERA STULII/Primary Examiner, Art Unit 1791