DETAILED ACTION
Amendments made January 20, 2026 have been entered.
Claims 1-16 are pending;
Claims 1-5 and 11-12 have been withdrawn.
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 .
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.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 13 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 13 recites that “the sauce component includes a cheese powder”. Although the disclosure as originally filled has support for the filling as including a cheese powder (see paragraph 21 and Tables 1A and B), there is no support found for the sauce component as including a cheese powder as claimed.
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.
Claim 14 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.
Claim 14 recites “the sauce component is a tomato-based sauce”. It is unclear as to what and would not be considered “tomato-based”. For example, it is unclear as to if the term requires that a tomato component be included in a certain percentage, such as over 50%, or greater than 90%, or some other number, or as to if the term requires the total of any tomato ingredients outweigh the other, non-tomato components, including water, or if the term has some other meaning.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Notes: One would understand that the claimed Bostwick viscosity was measured from 70-100F as described in the specification paragraph 13.
Claims 6, 9, 10, 13, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al (EP 1157613) in view of Christiansen et al (WO 2024/191727).
Regarding claim 6, Walter et al (Walter) teaches a method of producing a filled dough product comprising co-extruding a dough shell casing around a filling, wherein the filling is preferably a cheese filling that may contain a desired amount, such as 25-125% particulate material (abstract and paragraphs 12, 27, and 28). Thus, the remaining filling would comprise up to 75% of the filling, wherein it would have been obvious to adjust the amount of particulate to base component depending on the desired amount of particulate material as taught by Walter (paragraph 28).
Walter is silent to the cheese as a sauce component with a Bostwick consistency greater than 7cm as recited in claim 6, and to the sauce component as including starch in an amount configured to give the sauce a Bostwick consistency of greater than 7cm as recited in claim 10.
Christiansen et al (Christiansen) teaches of a functional cheese sauce that can be combined with various fillings, including discrete particulates, can be pressed or shaped, and which provides lubricity and desirable organoleptic properties for eating (abstract and paragraphs 29, 58, and 60). Christiansen teaches that the functional cheese sauce can be made from starch which contributes to binding the filling and provides lubricity to high throughout processing (paragraphs 30 and 40). Christiansen teaches that the sauce is flowable, with a Bostwick viscosity of 5-12cm at a temperature of about 68-74C, and that insufficient amounts of water can lead to a sauce that is not flowable and results in a filling composition that cannot maintain a shape and that exhibits negative breakage in the filling ingredient particles (paragraphs 31, 49, and 50). Christiansen teaches that the functional cheese sauce can flow between and around any pieces in the filling and act to bring the pieces together to form the filling (paragraph 54).
Regarding the cheese as a sauce component with a Bostwick consistency greater than 7cm as recited in claim 6, and to the sauce component as including starch in an amount configured to give the sauce a Bostwick consistency of greater than 7cm as recited in claim 10, it would have been obvious for the filling of Walter to be a starch containing sauce with a Bostwick viscosity of 5-12cm to provide lubricity, desirable organoleptic properties for eating, and/or flow between and around any pieces in the filling and act to bring the pieces together to form the filling in view of Christiansen. The prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art 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. Furthermore, it would have been particularly obvious to include starch within the filling, which would aid in the claimed Bostwick consistency as Christiansen teaches starch contributes to binding the filling and provides lubricity to high throughout processing.
Regarding claim 9, Walter teaches that the particulates include egg (paragraph 28).
Regarding claim 13, Walter teaches that the cheese in the filling includes grated parmesan cheese (Example 2, paragraph 42), which is considered to encompass or at least make obvious a cheese powder within the filling composition, including within the sauce as it could be carried therein.
Regarding claim 16, Walter teaches that the incorporation of water can be used in the filling to obtain proper lubricity and rheological properties to allow for filling flowability prior to extrusion and compressibility during extrusion (paragraph 31). Walter is not specific to an amount of water in the sauce component as recited in claim 16. Christiansen also teaches that insufficient amounts of water in the functional cheese sauce can lead to a sauce that is not flowable and results in a filling composition that cannot maintain a shape and that exhibits negative breakage in the filling ingredient particles (paragraph 31). Thus, it would have been obvious to one of ordinary skill in the art to adjust the water content of the sauce in order to obtain proper lubricity and rheological properties to allow for filling flowability prior to extrusion and compressibility during extrusion in view of Walter, and/or lead to a sauce that is flowable and results in a filling composition that can maintain a shape and that exhibits negative breakage in the filling ingredient particles in view of Christiansen. Thus, the claimed range is considered obvious as a result effective variable recognized in the art for providing flowability.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al (EP 1157613) in view of Christiansen et al (WO 2024/191727), further in view of Paluch (US 6,117,477) and Enz et al (US 2004/0161502).
As discussed above, Walter teaches a method of producing a filled product comprising co-extruding a dough shell casing around a filling. Walter is silent to the filling material with a dynamic viscosity of over 1000cP at about 30-40F as recited in claim 7, preferably between about 2000-3000cP as recited in claim 8.
Regarding the filling material with a dynamic viscosity of over 1000cP at about 30-40F as recited in claim 7, preferably between about 2000-3000cP as recited in claim 8, Paluch teaches in a process for coextrusion that it would be apparent to one of ordinary skill in the art that the proper Theological properties necessary for the extruder are being used, and that an absolute viscosity, i.e. dynamic viscosity, for extruded filling is preferably below 25,00CP at about 32-50C (column 2 lines 15-17, column 9 lines 43-45 and 63-65, and column 10 lines 1-8). Enz et al (Enz) teaches theological properties include dynamic viscosity (paragraph 8). Enz teaches that gelling agents can be used to obtain the desired rheology, and that some consumers prefer a running filling, wherein others prefer a thicker filling (paragraphs 10, 14, and 15). It would have been obvious to one of ordinary skill in the art to adjust the viscosity of the filling of Walter in view of Christiansen based on the extruder being used as taught by Paluch, and/or the desired rheology in view of Enz. It would have been further obvious for the dynamic viscosity to be below 25,000CP at about 32-50C as Paluch teaches it was a known and successful filling viscosity for coextrusion and that it would be apparent to one of ordinary skill in the art that the proper Theological properties necessary for the extruder are being used.
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al (EP 1157613) in view of Christiansen et al (WO 2024/191727), further in view of Cain et al (US 2021/0235741).
As discussed above, Walter teaches a method of producing a filled product comprising co-extruding a dough shell casing around a filling. Walter is silent to the sauce as tomato based as recited in claim 14, or the sauce as including tomato paste as recited in claim 15.
Cain et al (Cain) teaches that a variety of filled dough products including an outer dough crust and an inner filling of another material are known in the art, and that pizza rolls represent a popular option (paragraph 3). Cain teaches that co-extrusion is typically employed wherein a dough is extruded to surround a filling which can include various components such as sauces, cheese, meats, and the like (paragraph 3). Cain teaches that the filling includes tomato paste and cheese (Table 1).
Regarding the sauce as tomato based as recited in claim 14, as discussed above, the claimed term is unclear. Regardless, it would have been obvious for the filling of Walter to include tomato so that it would have a pizza flavor which was a popular option for co-extruded dough filled foods in view of Cain. It would have been further obvious for the sauce to be “tomato-based” in order for the tomato to be the dominate flavor of the filling. Although Walter preferably teaches of a cheese-based filling, Walter teaches that a filling containing no cheese, or only a small amount of cheese can be used (paragraph 27). It is noted that a reference is not limited to its preferred embodiments.
Regarding the sauce as including tomato paste as recited in claim 15, it would have been obvious for the filling of Walter to include tomato so that it would have a pizza flavor which was a popular option for co-extruded dough filled foods in view of Cain, wherein it would have been further obvious to use tomato paste as Walter exemplifies it as a tomato component for the pizza filling. To use a known ingredient to obtain the desired final product taste would have been obvious and within the purview of one of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed January 20, 2026 have been fully considered but they are not persuasive.
Applicant argues that as Walter intentionally teaches the use of solid shredded cheese in non-sauce form using little to no added water in its filling because excessive moisture, i.e. a wet filling may cause bridging of the extruder, wherein at most 5% added water is exemplified, there would be no motivation, absent hindsight, to achieve functional flowability in a cheese sauce with the addition of about 30-70% water as taught by Christiansen. This argument is not convincing. Although Walter does exemplify the product with shredded cheese and low levels of additional water, Walter also teaches that the incorporation of water can be used to obtain proper lubricity and rheological properties to allow for filling flowability prior to extrusion and compressibility during extrusion (paragraph 31). Thus, to add water and achieve flowability as detailed by Christiansen is obvious and based on the teachings of the references. A reference is not limited to its preferred embodiments and/or examples and must be considered for all that it teaches.
Applicant also argues that the melted cheese of Waler may not have the claimed Bostwick consistency. This argument is not convincing as the rejection was not over Walter alone, but rather Walter in view of Christiansen, wherein the teachings of Christiansen make obvious the claimed consistency for the reasons discussed above.
It is additionally noted that applicant provides a background of the invention in the remarks, wherein the problem sought out to solve by applicant was preventing the sauce and particulates from separating during processing; and Christiansen specifically teaches a sauce that binds the filling ingredients together to form a coherent filling, that can flow between and around any pieces and/or portions of the filling and act to bind the pieces and/or portions together (paragraphs 54, 72, and 74). As Christiansen teaches of binding the filling ingredients together, one would expect that no or at least less separation during processing occur, and thus the noted result appears expected over the teachings of the prior art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 9801393 teaches a Bostwick viscosity of 3-12, more preferably 8 makes it possible to obtain optimal flatness of a hydrated filling dosed in a semi-baked mixture (column 6 lines 19-25).
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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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