DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The status of the claims stands as follows:
Pending claims: 1-20
Withdrawn claims: 13-20
Claims currently under consideration: 1-12
Currently rejected claims: 1-12
Allowed claims: None
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-12) in the reply filed on 02/11/2026 is acknowledged. The traversal is on the ground(s) that Creighton does not teach dried fruit coated with a powdered flavorant wherein the flavorant has at least one flavor compound that contributes a characterizing flavor note other than saltiness or sweetness to the shelf stable food containing the coated dried fruit as now recited by amended claims 1 and 13.
This is not found persuasive because even though the inventions of Groups I and II require the technical feature of a shelf stable food comprising particulates bound by a set binder, wherein the particulates include dried fruit pieces having a powdered flavorant localized to a surface of the dried fruit pieces, the powdered flavorant is included in an amount of 0.1-20 wt.% of the dried fruit pieces, wherein the powdered flavorant has at least one flavor compound that contributes a characterizing flavor note other than saltiness or sweetness to the shelf stable food, this technical feature is not a special technical feature as it does not make a contribution of the prior art in view of BBC (“Cinnamon berry granola bars”, 2020, BBC Good Food, https://web.archive.org/web/20201118103925/https://www.bbcgoodfood.com/recipes/cinnamon-berry-granola-bars).
BBC teaches a shelf stable food (corresponding to granola bar) comprising 100 g dried fruit pieces (corresponding to dried cranberries) and 1 tsp of a powdered flavorant, wherein the powdered flavorant has a flavor compound that contributes a characterizing flavor note other than saltiness or sweetness to the shelf stable food (corresponding to ground cinnamon) (list under “Ingredients”). One tsp of ground cinnamon weighs about 2.6 g so that the granola bars of BBC contain 2.6 wt.% of powdered flavorant based on the weight of the dried fruit pieces. This amount of 2.6 wt.% falls within the claimed concentration of powdered flavorant. BBC teaches that the cinnamon and the dried fruit are thoroughly mixed (paragraph beside “Step 2”); therefore, the powdered flavorant would be localized to the surface of the dried fruit pieces as recited in present claims 1 and 13. BBC teaches that the shelf stable food further comprises a set binder (corresponding to the butter, honey, and sugar mixture) (paragraph beside “Step 2”).
Since the prior art is shown to disclose the technical feature recited by Groups I and II, the technical feature recited by Groups I and II is not considered to be a special technical feature as it does not make a contribution of the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claims 13-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Claim Objections
Claim 11 is objected to because “The method of claim 1, comprising a step of forming” should be read as “The method of claim 1, further comprising a step of forming”.
Appropriate correction is required.
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, 8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Evenson (US 2003/0170370).
Regarding claims 1 and 2, Evenson teaches a method of making a shelf stable food (corresponding to nutrient clusters), the method comprising: combining dried fruit pieces with a fluid binder; applying a powdered flavorant (corresponding to dry nutrient powder) to the sticky surface of the binder-coated dried fruit pieces to produce aggregates of powder-coated fruit pieces (corresponding to nutrient clusters) having powdered flavorant localized on the surface of the dried fruit pieces; and setting the structure of the fluid binder in the aggregate to form the shelf stable food (corresponding to curing the nutrient clusters to solidify the liquid binder to form dried solid nutrient clusters) [0024]-[0028], [0073]. Evenson teaches that the dried fruit pieces are covered in binder prior to applying the powdered flavorant. However, the “selection of any order of mixing ingredients is prima facie obvious”. See MPEP 2144.04.IV(C).
Evenson teaches that the powdered flavorant may comprise encapsulated red rice yeast [0039]. Therefore, the powdered flavorant has a flavor compound that contributes a characterizing flavor note other than saltiness of sweetness to the shelf stable food as recited in present claim 1; and the powdered flavorant is encapsulated as recited in present claim 2.
Evenson further teaches that the shelf stable food may comprise about 20 wt.% to 85 wt.% of the dried fruit [0037]; and about 15 wt.% to about 40 wt.% of the binder [0051]. Therefore, the shelf stable food may comprise about the powdered flavorant in an amount from greater than 0 wt.% to about 65 wt.%, which provides amounts of powdered flavorant relative to the amount of dried fruit pieces which overlap the claimed relative amount (e.g., a food comprising 40 wt.% dried fruit pieces and 4 wt.% powdered flavorant contains 10 wt.% powdered flavorant by weight of the dried fruit pieces).
Regarding claims 4 and 5, Evenson teaches the invention as described above in claim 1, including the fluid binder is at a temperature of 170-190°F [0075], which falls within the temperature ranges recited in present claims 4 and 5.
Regarding claims 8 and 10, Evenson teaches the invention as described above in claim 1, including the fluid binder may comprise fruit juice as one of the binding agents in the fluid binder [0051]-[0052]. Therefore, Evenson teaches that the fluid binder may comprise an acidulent as recited in present claim 8. Since the fluid binder may comprise of more than one binding agents, the fluid binder may comprise fruit juice in an amount from greater than 0 wt.% to less than 100 wt.%, which encompasses the concentration recited in present claim 10. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Claims 1, 3, 6-7, and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Clanton (US 8,367,143) in view of BBC (“Cinnamon berry granola bars”, 2020, BBC Good Food, https://web.archive.org/web/20201118103925/https://www.bbcgoodfood.com/recipes/cinnamon-berry-granola-bars).
Regarding claim 1, Clanton teaches a method of making a shelf stable food (corresponding to granola bar) (column 8, line 25), the method comprising: combining a powdered flavorant (corresponding to dried ground spices) with dried fruit to form a dry granola mix blend (column 3, lines 49-57). During the mixing process, the powdered flavorant would adhere to the surface of the dried fruit pieces so that dried fruit pieces would have the powdered flavorant localized to the surface of the dried fruit pieces, thereby producing powdered coated fruit pieces as presently claimed. Clanton teaches that the method further comprises: combining the powder-coated fruit pieces with a fluid binder (corresponding to sugar syrup binder) to form an aggregate (column 6, lines 12-14; column 7, line 65- column 8, line 2); and setting a structure of the fluid binder in the aggregate to form the shelf stable food (corresponding to baking the granola mixture) (column 8, lines 9-34).
Clanton teaches that the shelf stable food may contain many combinations of relative amounts of grains, nuts, and dried fruit depending on the taste and texture of the end product (column 3, lines 54-57). Since the amount of dried fruit in the food is dependent upon the desired taste and texture of the food, then consequently, the relative amount of other ingredients such as the powdered flavorant is also dependent upon the desired taste and texture of the food.
Clanton does not teach that the powdered flavorant is present in an amount of 0.1-20 wt.% of the dried fruit pieces.
However, BBC teaches a shelf stable food (corresponding to granola bar) comprising 100 g dried fruit pieces (corresponding to dried cranberries) and 1 tsp of a powdered flavorant, wherein the powdered flavorant has a flavor compound that contributes a characterizing flavor note other than saltiness or sweetness to the shelf stable food (corresponding to ground cinnamon) (list under “Ingredients”). One tsp of ground cinnamon weighs about 2.6 g so that the granola bars of BBC contain 2.6 wt.% of powdered flavorant based on the weight of the dried fruit pieces. This amount of 2.6 wt.% falls within the claimed concentration of powdered flavorant.
As the taste and texture of the shelf stable food are variables that can be modified, among others, by adjusting the relative amounts of ingredients in the shelf stable food, the relative amounts of ingredients in the shelf stable food would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed relative amounts of dried fruit and powdered flavorant in the shelf stable food cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation, the relative amounts of dried fruit and powdered flavorant in the shelf stable food of Clanton using an amount of 2.6 wt.% of powdered flavorant based on the weight of the dried fruit pieces disclosed by BBC as a guide to obtain the desired taste and texture (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). “[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.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
Regarding claim 3, Clanton teaches the invention as described above in claim 1, including the method comprising mixing the dried fruit and powdered flavorant together (corresponding to mixing the dry granola ingredients together) (column 3, lines 21-22). Mixing is a form of agitation which may result in some degree of delumping of ingredients and is thus considered to qualify as a delumping process. Therefore, Clanton is considered to disclose that he step of applying powdered flavorant to the surface of the dried fruit pieces is performed during a delumping process as presently claimed.
Regarding claims 6 and 7, Clanton teaches the invention as described above in claim 1, including the step of setting the structure of the fluid binder comprises heating the aggregate to a temperature of about 220-255°F (column 8, lines 32-36), which falls within temperature range recited in present claim 6 and overlaps the temperature recited in present claim 7. The selection of a value within the overlapping range renders the claimed temperature range obvious. MPEP 2144.05.I.
Regarding claim 11, Clanton teaches the invention as described above in claim 1, including the method further comprising a step of forming the aggregate into portions (column 9, lines 31-41).
Regarding claim 12, Clanton teaches the invention as described above in claim 1, including the shelf stable food is a granola product; and that granola may be brittle (column 1, lines 22-23, 37-39). A brittle texture is considered to produce a crunchy texture so that the granola product of Clanton is considered to be a crunchy snack food as recited by present claim 12.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Clanton (US 8,367,143) in view of BBC (“Cinnamon berry granola bars”, 2020, BBC Good Food, https://web.archive.org/web/20201118103925/https://www.bbcgoodfood.com/recipes/cinnamon-berry-granola-bars) as applied to claim 1 above, as evidenced by Dadant (“Which Acids are Present in Honey?”, 2026, Dadant, https://www.dadant.com/learn/which-acids-are-present-in-honey/).
Regarding claims 8 and 9, Clanton teaches the invention as described above in claim 1, including the fluid binder may comprise honey (column 6, lines 21-26; column 7, lines 14-15). Honey contains citric acid as evidenced by Dadant (page 3, whole paragraph). Therefore, the fluid binder of Clanton contains the acidulent citric acid as recited in present claims 8 and 9.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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