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 .
DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 3 April 2026 is acknowledged. The traversal is on the ground(s) that Claims 10-11 have been amended to depend from Claim 1. This is not found persuasive because while Claims 10-11 are dependent on Claim 1, Claims 10-11 are directed to a process for preparing the freeze-dried food snack of Claim1, where the shared technical features do not provide a contribution over the prior art as seen in the prior art rejection below.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 7 and 8 are objected to because of the following informalities: the claims appear to recite a Markush group without using Markush group language (see MPEP 2117). For the sake of clarity, the claim should be amended to recite “wherein the at least one fruit ingredient does not contain added sugar and is selected from the group consisting of banana, kiwi, grapefruit, blueberry, apple, mango, pear, strawberry, peach, raspberry, and combinations thereof” or like thereof. The amendment should be applied to claim 8 accordingly with respect to the vegetable ingredient. 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 1-3 and 5-8 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 Claim 1, the term “clean label” appears to be an industry term used to describe the ingredients within a food product; however, Applicant has not clearly defined the term “clean label” nor is there a regulatory or legal definition for the term “clean label” (https://fieldreport.caes.uga.edu/publications/B1476/clean-labeling-and-the-real-food-movement/). Therefore, the claim is indefinite because the term “clean label” is not clearly defined and it is not clear as to what is included or excluded by the term “clean label”. If Applicant intended for “clean label” to be defined as a product “devoid of any added sugar, gluten, preservatives, thickeners, artificial colors/flavors, emulsifiers, gums, whipping aids, additives, non-GMO and/or chemically synthesized materials” (page 2, lines 11-16 of the Specification), it is not clear if Applicant intends for each of the listed ingredients to be a negative limitation such that the freeze-dried aerated baby food snack is devoid of the ingredients listed above, especially since the claimed invention comprises “starch” which is a thickener, and egg whites which is a whipping aid.
Also, “the fruit ingredient or the vegetable ingredient” recited in lines 7-8 lacks sufficient antecedent basis. It appears Applicant intends to refer to the “at least one fruit ingredient” and “at least one vegetable ingredient”. Appropriate corrections are required. All subsequent recitations of “the fruit ingredient” and “the vegetable ingredients” should be corrected accordingly (Claims 5-8).
Claims 2, 3 and 5-8 are rejected based on their dependency on a rejected claim.
Regarding Claim 6, the claim recites the vegetable ingredient being present in an amount up to 20% w/w which is outside the claimed range recited in Claim 1. That is, Claim 1 recites “the fruit or the vegetable ingredient being present in the snack in an amount from 80-98% w/w” which does not encompass “up to 20% w/w”.
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.
Claim(s) 1-3, and 5-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peterson et al. (WO 2008/141229 A1) in view of Wurr et al. (CN 113194741 A- see machine generated translations).
Regarding Claims 1 and 3, Peterson discloses a freeze-dried aerated food snack (see abstract) that can be consumed by babies (consumers with restricted or under-developed oral motor skills or digestive function, page 1 lines 22-29) comprising:
egg white (page 3, lines 21-24);
starch (tapioca, corn and rice starch, see page 3, lines 17-19);
natural buffer (citric acid, step 2 of Example 1, page 5), and
at least one ingredient selected from the group consisting of a fruit ingredient, and at least one vegetable ingredient, and the fruit ingredient or the vegetable ingredient being present in the snack in an amount from 80-98% w/w (page 2 line 32-page3 line 4). While Peterson does not specifically indicate the percentages to be weight percentages, the percentages are construed as being weight percentages because Peterson measures the portions in weight (0.8-1.2 grams weight, step 10 of procedure, page 5) and there is no indication of a volume measurement especially Peterson is directed to an aerated product.
Peterson is silent to wherein the egg white is present in the snack in an amount from 0.5 to 1.5% w/w; wherein the snack has a dissolvability from 0.002 to 0.030 g/minute; and wherein the snack is clean label.
As to the egg white, Peterson discloses egg white as an emulsifier which is listed as a suitable equivalent to lactylated mono and diglycerides (see claim 2). Peterson also discloses lactylated mono and diglycerides being present in an amount of from 0.001 to 1% (see page 3 lines 13-16) to promote stabilization of the final aerated composition. Therefore, it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (See MPEP 2144.06).
As to the dissolvability, while Peterson is silent to defining the dissolvability in the unit as claimed, Peterson similarly suggest an aerated product that has been freeze-dried that is readily dissolvable to reduce the risk of choking hazards for consumers with restricted or under-developed oral motor skills or digestive functions which is verbatim in Applicant’s specification (see page 2 lines 2-4). Therefore, there is a reasonable expectation that Peterson’s dissolvability is at least similar or overlaps with the claimed range, especially since Peterson discloses the claimed ingredients in similar amounts.
As to the term “clean label” since Peterson discloses the claimed ingredients of egg white, starch, natural buffer, and vegetable or fruit, Peterson is construed to be a “clean label”.
If it can be construed that Peterson’s citric acid is not a “natural buffer”, Wurr is relied on to teach a fruit and/or vegetable snack product that is aerated (puffed, see abstract) and further comprising lemon (also required by Claim 3) as a suitable fruit ingredient, (see page 6, second to last paragraph). Similar to Peterson, Wurr is directed to an aerated dried snack product comprising fruit puree and can be present in the composition of at least about 50% (page 7, second paragraph). Therefore, since lemon juice comprises citric acid which is used by Peterson, and both Peterson and Wurr are directed to aerated snacks comprising fruit puree, it would have been obvious to one of ordinary skill in the art to further comprise lemon juice based on flavor preference.
Regarding Claim 2, Peterson further teaches wherein the starch is selected from the group consisting of tapioca starch and corn starch (page 3, lines 18-19), and the snack has a viscosity ranging from 1,000 to 100,000 centipoise which overlaps with the claimed range (Page 4 lines 10-14).
Regarding Claim 5, Peterson further teaches wherein the fruit ingredient is present in the snack in an amount from 80-98% w/w (page 3 lines 2-4).
Regarding Claim 6, Peterson is silent to wherein the vegetable ingredient comprises is present in the snack in an amount up to 20% w/w. Wurr is relied on to teach an aerated food product that comprising both fruits and vegetable components (“a combination of one or more fruit components with one or more vegetable components”, see page 6, fifth paragraph) where the fruit and or vegetable ingredients each can be provided in the amount of about 20% (see page 7, second paragraph). Therefore, since Peterson is directed to aerated fruit or vegetable products, it would have been obvious to one of ordinary skill in the art to combine fruits and vegetable into the composition and use known quantities of fruit or vegetables based on the desired flavors imparted by the fruit and or vegetable.
Regarding Claim 7, Peterson further teaches wherein the snack comprises the fruit ingredient, wherein the fruit ingredient does not contain added sugar and comprises apple and strawberry (see Example 1, page 5).
Regarding Claim 8, Peterson further teaches wherein the snack comprises the vegetable ingredient, wherein the vegetable ingredient comprises vegetable puree (see page 3 line 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights