DETAILED ACTION
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 the application filed on October 6, 2023 The earliest effective filing date of the application is September 8, 2023.
Status of Application
Claims 1-8 are pending. Claims 1-8 are presented for examination.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it is less than 50 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 2 and 3 are objected to because of the following informalities:
Claim 2 recites “flaked to hull-less oats 15:85 to 80:20,” should read “flakes to hull-less oat is 15:85 to 80:20.”
Claim 3 recites “in step a), mixing is for,” should read “in step a), the mixing is for.”
Appropriate correction is required.
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.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Williams (“Gluten-Free Vegan Oatmeal Bread,” Rhian’s Recipes, July 2021) in view of Uotila (EP 1913818), herein after referred to as Williams and Uotila, respectively.
Regarding claims 1 and 6, Williams discloses a method of making a self-rising oat bread product, and the risen bread product made therefrom, the method comprising:
a) mixing rolled oats (i.e., hull-less oats), psyllium husks, and salt to produce a mixture of dry ingredients;
b) adding water to the dry ingredients and mixing to produce a dough;
c) transfer the dough into a loaf tin and press it into the tin (i.e., shaping the dough into a bread product); and
d) baking the bread product (p. 18 “Ingredients” and “Instructions”).
Williams is silent as to that the mixture also comprises oat flakes. As stated in the instant specification on p. 2, oat flakes are oats that include the hulls of the oat grain.
Uotila, in the same field of invention, teaches an oat bread that comprises two different forms of oat: oat flour and oat kernels (claim 1). Uotila also teaches that the oat flour may also be in the form of whole oats (i.e., hull-less oats) [0040]. The kernels taught by Uotila are considered to be the oat flakes (i.e., oats with hull intact) as instantly claimed, since Uotila teaches that oat kernels are processed into oat flour and/or rolled oats; part of this processing includes hulling (i.e., removing the hull) from the oat kernel [0040]. Therefore, the oat kernel of Uotila is considered to be an oat flake, or an oat that has the hull intact.
Uotila offers the motivation that the inclusion of the oat kernel in the bread product enables the binding of the liquid in the dough to the rest of the ingredients, thereby making a solid dough (Abstract). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated the oat kernels of Uotila into the mixture of Williams, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of creating a well-bound dough.
Regarding claim 2, modified Williams teaches that the ratio of oat flour (substituted with whole oats (i.e., hull-less oats)) to oat kernels (i.e., oat flakes) is 45:55 to 55:45 (Uotila: claim 4), which lies within the claimed ratio range of hull-less oats to oat flakes of 85:15 to 20:80.
Regarding claims 3 and 4, modified Williams is silent as to the mixing times for the mixing in steps a) and b). Modified Williams does offer the motivation that both mixing steps are completed until each step is well mixed (Williams: “How to Make this Gluten-Free Vegan Oatmeal Bread” and “Instructions”). One of ordinary skill in the art would have recognized that a well-mixed dough depends on the duration of the mixing. One of ordinary skill, through no more than routine experimentation, would have been able to have arrived at the claimed times for mixing ingredients and a dough to ensure the ingredients and dough, respectively, were well-mixed.
Regarding claim 5, modified Williams teaches that the baking is at 180°C (Williams: “Instructions”). Uotila teaches baking at 190 to 200°C [0053]. These temperatures are lower than the claimed temperature of about 210°C, but are close. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). The difference between the claimed temperature and the temperature of the prior art is virtually negligible absent any showing of unexpected results or criticality. See MPEP 2144.05.I.
Moreover, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where 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. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.II.A.
Regarding claim 7, modified Williams teaches a risen bread product comprising oat flakes, hull-less oats, psyllium husks, salt, and water as set forth above with regard to claims 1 and 6. Modified Williams also teaches that the bread product is free of any exogenously added leavening agent (Williams: “Ingredients”). As stated in the instant specification, exogenous leavening agents include yeast and baking soda (Specification: p. 3 lines 1-3), the bread of which taught by modified Williams does not include.
Regarding claim 8, modified Williams teaches a risen bread product consisting of oat flakes, hull-less oats, psyllium husks, salt, water, ground almonds, walnuts, and dried cranberries. The bread of modified Williams includes the additional ingredients of almonds, walnuts, and cranberries that are excluded by the instant claim.
However, it would have been obvious to one of ordinary skill in the art to have excluded the almonds, walnuts, and cranberries from the dough/bread, as these ingredients are not considered to be critical elements of a bread and a bread could be made successfully without these ingredients. One of ordinary skill would have had motivation to exclude these ingredients for a number of reasons, including nut allergies of the consumer and/or a dislike of the nuts and dried fruit.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 8:00-5:00 EST.
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, Nikki 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.
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.
/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791