DETAILED ACTION
Background
The amendment dated May 21, 2026 amending claims 9 and 39 has been entered. Claims 1, 7-10, 12, 17-19, 22, 32 and 38 as filed with the amendment have been examined. Claims 2-6, 11, 14, 16, 21, 23-24, 27-28, 31, 33-37 and 40-45 have been canceled.
Claims 20 and 25 each are marked with incorrect status identifiers. Each claim should be accompanied with the status identifier “(Withdrawn - Previously presented)”. 37 CFR 1.121(c)(2).
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 .
Election/Restrictions
The restriction requirement dated December 16, 2025 states on page 4, paragraph 4 that claims 7 and 10 do not read on the recited bakery product, which is in error. Claims 7 and 10 do read on the recited bakery product.
Applicant's election with traverse of the species of a bakery product in the reply filed on March 13, 2026 is acknowledged. The traversal is on the ground(s) that the cited art of Rodriguez only teaches (native) potato protein. Patatin is a type of potato protein, with a specific effect. As such, the features of claim 1 are not found in Rodriguez. This is not found persuasive because Rodriguez at [0053]-[0054] discloses native potato protein which comprises patatin. The claims are open-ended and include things other than the things claimed, including other native potato proteins aside from patatin. The position taken that a specific effect of patatin distinguishes Rodriguez ignores the fact that the native potato proteins in Rodriguez comprise patatins and is stated as a conclusion or argument without supporting evidence. For that position to be effective, the claims would have to exclude potato proteins other than patatin, which they do not; and, Applicant would have had to provide evidence showing that patatins perform in a way that renders products containing them unobvious over the same product comprising native potato proteins. No such showing has been made
The requirement is still deemed proper and is therefore made FINAL.
Claims 13, 15, 20, 25-26, 29-30 and 39 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species of invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on March 13, 2026.
The elected species of a bakery product does not include the claimed batter or dough which is species that is distinctly presented in the instant specification at page 10 and is distinctly claimed. Accordingly, Claims 20 and 25 have been withdrawn from consideration by election of a bakery product species.
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 12-13, 15 and 17 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.
In claim 12, at line 2 the recited “cooling” is indefinite because it is not clear what is cooled or when the cooling occurs. Does Applicant mean to recite cooling a product?
In claim 17, at line 1, the recited food product “obtainable by” a specified method is indefinite. The phrase "obtainable by" renders the claim indefinite because it is unclear whether the method steps recited in the claim are part of the claimed invention or are required.
The Office interprets claim 17 as reciting a food product obtained by a method of making a food product.
Claims 13 and 15 are rejected as depending from a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 18 recites the same food product as is claimed in claim 17 and recites the exact same features as claim 17. Although claim 17 also includes “making the food product”, this does not limit claim 17 vis a vis claim 18 because it is not possible to make a food product without making the food product. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1, 7-9, 17-19, 22, 32 and 38 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US2017/0079287 A1 to Rade-Kukic et al (Rade-Kukic), as evidenced by Haynes, ed. CRC Handbook of Chemistry and Physics, 96th Edition, “Composition and Properties of Common Oils and Fats”, CRC Press LLC, 2016 (CRC).
Unless otherwise disclosed, all units of weight and mass are interpreted as interchangeable.
The Office interprets claim 17 as reciting a food product obtained by making a food product.
Regarding instant claims 1, 7 and 17-18, Rade-Kukic at Abstract discloses a gluten-free bread (“bakery product” as in claim 7) and a method for making a food product other than a meat substitute as a bakery product. In Example 7 at [0052]-[0053] and the accompanying Table, Rade-Kukic discloses a gluten-free bread bakery product comprising 5 parts by mass potato protein isolate available as Solanic protein isolate 306 (Aveba), water and 30 parts by mass of sunflower oil (“lipid”). As shown by CRC at 7-19, the lipid of Example 7 of Rade-Kukic comprises triglycerides (“fatty acid tri-esters of glycerol”) wherein the fatty acids in the lipid comprise substantially zero% by mass of fatty acids having a chain length of C12 or less (claims 1, 17 and 19). The Office considers the claimed native patatin as including the Solanic 306 protein isolate disclosed in Example 7 of Rade-Kukic. At [0053], Rade-Kukic discloses providing the mixture and making the food product.
Regarding instant claims 8 and 19, the bakery product bread disclosed in Example 7 of Rade-Kukic comprises no animal derived products.
Regarding instant claim 9, at [0053] Rade-Kukic discloses baking the mixture in Example 7 for 30 minutes at 190 °C.
Regarding instant claim 22, Example 7 of Rade-Kukic discloses at the accompanying Table making bread bakery product and a bakery product comprising water, the lipid, the native patatin and white rice flour (“flour”).
Regarding instant claims 32 and 38, as disclosed in Table 1 at page 27 of the instant specification the sunflower oil disclosed in Example 7 of Rade-Kukic comprises substantially zero% by mass of fatty acids having a chain length of C14 or less.
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.
Claims 10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over US2017/0079287 A1 to Rade-Kukic et al (Rade-Kukic), as evidenced by Haynes, ed. CRC Handbook of Chemistry and Physics, 96th Edition, “Composition and Properties of Common Oils and Fats”, CRC Press LLC, 2016 (CRC) as applied to claims 1 and 9, above, in view of US2007/0059413 A1 to Hartmann (Hartmann).
As applied to claims 1 and 9, Rade-Kukic in Example 7 at [0052]-[0053] and the accompanying Table discloses method of making a bread bakery product comprising 5 providing a mixture of water, native patatin and a lipid that comprises fatty acid tri-esters of glycerol wherein the fatty acids in the lipid comprise less than 2% by mass of fatty acids having a chain length of C12 or less, and wherein the quantity of lipid relative to native patatin, expressed as the weight ratio of lipid to native patatin, is 90:1 or less, and then making the food product by heating the food product to a temperature of at least 75 °C for a period of at least 1 minute.
Regarding instant claims 10 and 12, Rade-Kukic does not disclose homogenizing its mixture as in claim 10; and, further, Rade-Kukic does not disclose making a food product by cooling to a temperature of -35 to 20°C. However, Example 7 of Rade-Kukic discloses at the accompanying Table providing a mixture comprising water, the lipid, the native patatin, yeast and white rice flour, mixing the ingredients in a Hobart mixer, proofing the dough (“ripening the mixture”) and baking the mixture in Example 7 for 30 minutes at 190 °C.
Hartmann discloses at Abstract a frozen yeast-leavened bread product made from an extruded dough. Further, at [0017] Hartmann discloses homogeneously blending and kneading its mixture from Table 1 on page 2 before proofing. Further, Hartmann discloses at [0019] discloses dough from a variety of flours including gluten free and potato flours. In addition, Hartmann at [0038] discloses freezing its baked product and freezing a baked bread product in a conventional apparatus for freezing a bread product, including to a temperature of less than about 20 °F.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Hartmann for Rade-Kukic to homogenize its mixture to distribute the flour, oil and yeast and sugar before proofing and to refrigerate or freeze its baked bread to preserve it. Both references disclose methods of forming a food product other than a meat substitute as a mixture comprising gluten free flour and baking a bread from the dough. The ordinary skilled artisan in Rade-Kukic would have desired to blend its dough mix to make it more homogeneous to enable even proofing or ripening as in Hartmann and to refrigerate or freeze its bakery product for stable storage.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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