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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 8/18/26 has been entered.
Claims 1,3,4, 6-7,9-11 are amended and claims 2,5,8 are cancelled. Claims 1,3-4,6-7,9-14 are pending.
The previous 112 second paragraph is withdrawn due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 1,3-4,7,9-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Martin ( 2006/0078660) in view of Kenneally ( 4738859) and Blaschke ( 2002/0034572).
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 containing 11% flour or 5% flour. The dough strips are equivalent to the claimed dough slabs. Martin discloses the multiple dough strips are formed by extrusion. ( see paragraphs 0065, 0007,0033,0037,0065 examples 1-2)
For claim 4, Martin discloses the dough may contain inclusions such as chocolate pieces. ( see paragraph 0050)
For claim 7, Martin discloses the dough bar should have a moisture content from about 2 to about 25%.
Martin does not specifically disclose the dough slabs are cookie dough, brownie dough, the mean diameter of the slabs, the percent of flour of cookie dough, thickness, cutting the extrudate and the ratio of brownie dough to cookie dough slabs as in claim 1, the ratio as in claim 3, scattering chocolate chips across the cookie slabs layer as in claim 4, 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, dividing 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)
Blaschke discloses cookie dough comprising flour in the range from about 10-60%. Example 6 shows cookie dough comprising 38% and 33% flour. ( see example 6,paragraph 0025)
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. As shown in Blaschke, the amount of flour in cookie dough can vary. It would have been obvious to one of ordinary skill in the art to follow the guideline of Blaschke example 6 for cookie dough and to optimize depending on the taste and flavor desired. 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. 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 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 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, Blaschke as applied to claims 1,3-4,7,9-14 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 8/18/26 have been fully considered but they are not persuasive.
In the response, applicant argues the new limitation of the percent flour of the cookie dough. New reference is added to address the limitation. Applicant further argues that strips are continuous structures, not individual slabs formed by cutting an extrudate. The basis of this argument is not clear. Martin discloses forming strips by extrusion. If the strips are formed by extrusion, it’s obvious that it’s cut as the dough exits the extruder. The strips cannot be extruded and let go on forever if they are to be used as strips to for base layer of dough. This is a parameter that is well within the skill of in the art. There is no limitation in the claims on continuous or no holes.
Applicant further argues that Martin provides no disclosure or suggestion of a method in which the cookie dough is deposited on top of the brownie dough such that the cookie dough provides substantially complete layer across an upper surface of the brownie dough. This argument is not persuasive. This argument is not persuasive. Figure 2 in Martin show dough containing two different layers in which the top layer provides substantially complete layer across an upper surface of the lower dough layer. Martin further discloses in paragraph 0065 that the number of strips disposing on the base layer can vary and the number is not critical. This disclosure clearly suggests to one skilled in the art to use any varying number of dough strips to cover the base layer and one can readily use enough strips to cover the entire surface of the base layer if such configuration is wanted.
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. Applicant argues that Martin discloses the second dough is hidden from view along the bar edges. This is only 1 embodiment of Martin. It’s not the totality of the Martin disclosure. Martin discloses several different configurations. Figure 2 shows the configuration of top layer as complete layer across an upper surface of the lower layer.
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 points to column 5 of Kenneally to show that the dimension is not as claimed. The disclosure on column 5 is to produce a cookie of from about 50mm to about 105mm in diameter. Kenneally also discloses other diameter and thickness for dough strips as shown on col. 7 lines 48-65. 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 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. There is no relying on Kenneally to provide substantially complete covering layer because Martin discloses embodiment in which the top layer completely covering the bottom layer.
Conclusion
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September 19, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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