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 on 2/24/26. Claims 1,3, 6,7,8,11 are amended and claim 2 is cancelled. Claims 1,3-14 are pending.
The previous 112 second paragraph rejection is withdrawn due to the amendment.
Claim Rejections - 35 USC § 112
Claim 3 is 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.
In claim 3, the recitation of “ preferably about 7:3 by weight” is vague and indefinite because the term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 3 recites the broad recitation of “ 6:4 to 8:2”, and the claim also recites “ about 7:3” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
It is noted that the limitation “ preferably about 7:3 by weight “ is not underlined. New limitation added to the claim needs to be underlined to be in compliance.
The rejection is necessitated by amendment.
Claim Rejections - 35 USC § 103
Claim(s) 1,3-5,7-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Martin ( 2006/0078660) in view of Kenneally ( 4738859).
For claim 1, Martin discloses a method of making a composite ready to bake dough product. Martin discloses an embodiment comprising the steps of providing two different dough strips, forming a base dough layer and disposing the dough strips on the base layer. The base dough layer can be a chocolate dough layer. The dough strips can be different from the base dough layer. A wide range of dough stripes having different characteristics, composition, texture, taste, shapes and /or colors. Martin discloses to form composite dough having different dough such as brownie dough or cookie dough. Martin discloses to bake the composite dough. Example 1 and 2 show brownie dough. The dough strips are equivalent to the claimed dough slabs. ( see paragraphs 0065, 0007,0033,0037, examples 1-2)
For claim 4, Martin discloses the dough may contain inclusions such as chocolate pieces. ( see paragraph 0050)
For claim 5, Martin discloses the multiple dough strips are formed by extrusion. ( see paragraph 0065)
For claim 7, Martin discloses the dough bar should have a moisture content from about 2 to about 25%.
For claim 8, Martin discloses a brownie dough comprising 11% flour or a brownie dough comprising 5% flour as shown in examples 1-2. ( see examples 1-2)
Martin does not specifically disclose the dough slabs are cookie dough, brownie dough, the mean diameter of the slabs and the ratio of brownie dough to cookie dough slabs as in claim 1, the thickness of the cookie slabs as in claim 2, the ratio as in claim 3, scattering chocolate chips across the cookie slabs layer as in claim 4, cutting the extrudate as in claim 5, the moisture content as in claim 7, the thickness of the brownie dough as in claims 9 and 14, pressing the composite dough as in claim 10, diving the composite into individual portion and packaging as in claim 11, packaged product as in claim 12 and the ratio as in claim 13.
Kenneally discloses a process for preparing cookie dough pieces. The process comprises forming a dough rope made of a single dough, depositing strings or strips onto the dough rope to form partial dough layer, pressing the strips and the dough rope, cutting the dough rope and baking the dough pieces. The dough strings having a generally circular cross-sectional shape has a diameter of about 2mm to 10mm or strips having a rectangular cross-sectional shape of width from about 5mm to about 20mm and a thickness of from about 1mm to 10mm. ( see col. 7 lines 48-62, col. 8,col. 10 lines 1-29)
For claim 1, Martin discloses composite dough with different dough layers. In the embodiment of placing dough strips on based dough layer, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to form the dough strips as cookie dough strips and the base dough as brownie dough depending on the taste, texture and flavor desired. Martin discloses the combination of brownie dough and cookie dough. It would have been obvious to one of ordinary skill in the art to follow the guideline of Kenneally to determine the diameter the dough strips and to adjust depending on the size of the dough base layer and the extent of coverage desired. Such parameter can readily be determined by one of ordinary skill in the art through routine experimentation. It would have been obvious to one of ordinary skill in the art to determine the ratio of the base layer and the dough strips depending on the taste and texture desired. For instance, if equal taste and texture are desired from the brownie and cookie dough, then it would have been obvious to use a 1 to 1 ratio or if it’s desired to have more pronounced taste and texture of the brownie dough, then it would have been obvious to have more brownie dough than cookie dough strips.
For claim 2, it would have been It would have been obvious to one of ordinary skill in the art to follow the guideline of Kenneally to determine the thickness the dough strips and to adjust depending on the size of the dough and the taste desired. Such parameter can readily be determined by one of ordinary skill in the art through routine experimentation.
For claims 3,13, it would have been obvious to one of ordinary skill in the art to determine the ratio of the base layer and the dough strips depending on the taste and texture desired. For instance, if equal taste and texture are desired from the brownie and cookie dough, then it would have been obvious to use a 1 to 1 ratio or if it’s desired to have more pronounced taste and texture of the brownie dough, then it would have been obvious to have more brownie dough than cookie dough strips.
For claim 4, it would have been obvious to one of ordinary skill in the art to scatter chocolate chips across the cookie dough strips when desiring further flavoring. Martin discloses inclusions such as chocolate pieces can be added to the dough.
For claim 5, it would have been obvious to one of ordinary skill in the art to cut the dough strip to appropriate size for layering over the dough base layer. Such parameter would have been readily obvious to one of ordinary skill in the art.
For claim 7, Martin discloses dough bar should have a moisture content from about 2-25%. Cookie dough moisture can vary depending on the type of cookie. It would have been obvious to one of ordinary skill in the art to determine the appropriate moisture content falling within the range allowed for in Martin through routine experimentation.
For claims 9,14, it would have been obvious to one of ordinary skill in the art to vary the thickness of the brownie dough layer depending on the size of the product being made and the taste desired. Such parameter can readily be determined by one of ordinary skill in the art.
For claim 10, it would have been obvious to one of ordinary skill in the art to press the dough strips to the base dough layer as taught in Kenneally to enhance the structure stability of the composite dough such that the strips do not peel away during handling.
For claims 11,12, it would have been obvious to one of ordinary skill in the art to divide the composite dough in Martin into individual portions as taught in Kenneally when desiring to make individual portions instead of a whole block as disclosed in Martin. One of skill in the art would have been motivated to form individual portion for ease of consumption. It would have been obvious to package the individual portion for distribution. Martin discloses to package the dough.
Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 as follows: 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.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Martin in view of Kenneally as applied to claims 1-5, 7-14 above, and further in view of Seyam ( 5492710)
Martin does not disclose adding pregelatinized starch.
Seyam discloses a cookie dough. Seyam teaches to add pregelatinized starch to obtain a tender, non-cohesive cake-like soft textured crumb structure in the cookie. ( see col. 5 lines 30-40)
It would have been obvious to one of ordinary skill in the art to add pregelatinized starch as taught in Seyam to the Martin dough when desiring to obtain the texture disclosed in Seyam.
Response to Arguments
Applicant's arguments filed 2/24/26 have been fully considered but they are not persuasive.
In the response, applicant argues that Martin does not disclose or suggest the use of a combination of brownie and cookie dough, instead describing the addition of food grade flavors or colors to form different dough. This argument is not persuasive. Martin explicitly discloses in paragraph 0033 the bakery dough includes brownie dough or cookie dough or both. In paragraph 0065, Martin discloses the strips can be may be of different compositions from each other and from the base layer. This disclosure would have readily suggested to one skilled in the art to have a base layer of chocolate dough considered as the brownie and strips of cookie dough on top. The claims do not recite any compositional parameter to define between brownie dough and cookie dough. Thus, any composite dough having a base dough layer and strips of dough over the based dough layer would meet the requirement of claim 1. Martin goes beyond the requirement of disclosing a composite dough having a base layer and strips of dough on top of the base layer. Even the addition of different food grade flavors or colors to form different dough as argued by applicant would still meet the requirement. Applicant inputs a difference into brownie dough and cookie dough where no limitation is recited in the claim to define a difference. Applicant further argues Martin provides no disclosure or suggestion that a combination as claimed need to be the starting point for forming a brookie on an industrial scale. The basis of the argument is unclear. There is no limitation in the claims on brookie on an industrial scale. The relevancy of the statement to the claims and the rejection is not understood.
Applicant refers to the Kenneally reference and argues that it doesn’t remedy the deficiency of Martin because Kenneally provides no disclosure or suggestion of individual cookie dough slabs which are not continuous but have a particular diameter. This argument is not persuasive. The Kenneally reference is only relied upon for teaching of exemplified diameter of dough strips. Martin discloses composite dough with different dough layers. In the embodiment of placing dough strips on based dough layer, it would have been obvious to one of ordinary skill in the art to follow the guideline of Kenneally to determine the diameter the dough strips and to adjust depending on the size of the dough base layer and the extent of coverage desired. Such parameter can readily be determined by one of ordinary skill in the art through routine experimentation. Applicant’s point between continuous and diameter is not understood. The claims do not exclude forming the dough strips by extruding continuously and there is no limitation in the claims on continuous or not continuous. Applicant further argues that Kenneally makes it clear that a major feature of the invention is that only a partial layer of additional dough is provided. This argument is not persuasive because Kenneally is not relied upon for such teaching. But, even if it does, the reference is still readable on claim 1 which recites “ substantially complete layer” which encompasses only partial covering. The claim does not require completely covering.
Applicant makes the same argument with respect to Martin. The examiner respectfully disagrees with applicant’s assertion. In the embodiment discloses in paragraph 0065, Martin discloses to place strips of dough on the base layer. There is no disclosure of hiding the strips of dough. Applicant points to figures 3-5. The figures are exemplified embodiment; they are not the only disclosure. The claims do not require complete covering. But, even if they do, the claims still do not define over Martin. Martin discloses in paragraph 0065 that the number of strips is not critical. Thus, it would have been obvious to one of ordinary skill in the art to vary the number of strips and the coverage depending on the dough content desired. Applicant argues modification of Martin to provide complete covering would change the principle of operation of Kenneally and/or render Kenneally unsuitable for its intended purpose. This argument is not persuasive because it lacks reasonable analysis. The Kenneally reference is only relied upon to teach exemplified diameter of dough strips. Furthermore, the Kenneally reference is not modified; thus, the principle of operation or intended purpose cannot be changed.
Applicant further argues neither Martin nor Kenneally provide any disclosure of suggestion of the problems with baking a cookie on a brownie surface nor the use of the cookie dough slabs as part of the solution to providing a homemade and non-industrial appearance for a brookie. This argument is not persuasive because it doesn’t commensurate in scope with the claims. There is no limitation on homemade and non-industrial appearance for a brookie. The claims do not define what constitute brownie or cookie dough or how they are differ. There is no limitation on properties of brownie or cookie dough. As argued above, the composite dough is just dough and dough strips. Martin goes beyond the limitation of the claims in disclosing dough and strips of different composition and including specifically brownie dough and cookie dough.
Applicant argues claim 6 on the same basis as claim 1. The argument is not persuasive as set forth above. Applicant’s statement that claim 1 is not anticipated by Blashing is confusing. It’s unclear what reference applicant is referring to and there is no anticipation rejection of claim 1.
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 LIEN THUY TRAN whose telephone number is (571)272-1408. The examiner can normally be reached Monday-Thursday.
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, Emily Le can be reached at 571-272-0903. 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.
April 30, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
Prosecution Insights