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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 01/23/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 25-46
Withdrawn claims: None
Previously cancelled claims: None
Newly cancelled claims: None
Amended claims: 25, 36
New claims: 46
Claims currently under consideration: 25-46
Currently rejected claims: 25-46
Allowed claims: None
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.
Claims 25-46 are rejected under 35 U.S.C. 112(b) 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.
Claims 25 and 36 recites a ratio of slowly available glucose (SAG) content to total available starch (TAS) content of from abut 0.40:1 to about 0.52:1. However, the claims do not recite a unit of measurement associated with the ratio (e.g., weight ratio, volume ratio). Therefore, the claims are indefinite.
For the purpose of this examination, the ratio will be interpreted as being a weight ratio.
Claim 46 recites “the baked cereal product, wherein the grits”. However, claim 46 does not recite a claim from which to depend. Therefore, the claim is indefinite.
For the purpose of this examination, claim 46 will be considered to depend from claim 25.
Claims 26-35 and 37-45 are rejected by reason of dependency from claim 25 or claim 36.
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 25-45 are rejected under 35 U.S.C. 103 as being unpatentable over Okoniewska (WO 2014/152037; IDS citation) in view of Folz (WO 2012/120154; IDS citation).
Regarding claims 25, 35, and 36, and 45, Okoniewska teaches a baked cereal product (corresponding to biscuit) comprising a SAG content of greater than about 16 per 100 g of the baked product [0014]; a moisture level of about 0.5 wt.% to about 5 wt.% of the baked cereal product [0038]; and a water activity of less than about 0.3 [0015]. These values fall within the SAG content, moisture level, and water activity ranges recited in present claims 25 and 36. Okoniewska teaches that the product may comprise refined flour in an amount of about 30 wt.% to about 70 wt.% [0019], which falls within the refined flour concentration recited in present claims 25 and 36. Okoniewska teaches that the refined flour may be oat flour, corn flour, tapioca flour, sago flour, and/or legume flour [0018] as recited in present claims 25 and 36.
Okoniewska teaches that the product may further comprise whole grain flour in an amount of about 20 wt.% to about 95 wt.%; and that the whole grain flour may be selected from a list comprising whole grain oat flour and whole grain corn flour [0018], [0020]. This concentration does not fall within the concentration range of whole grain flour recited in present claims 25 and 36. However, Okoniewska at least suggests that the whole grain flour may be a mixture of whole grain flours wherein the mixture may contain whole grain flours other than oat and/or corn flours [0018], [0067]. Therefore, the amount of whole grain oat flour in a mixture of whole grain flours, wherein the mixture of whole grain flours in the baked cereal product is about 20 wt.% as recited by Okoniewska [0020], would be from an amount greater than 0 wt.% to an amount less than about 20 wt.%. Similarly, the amount of whole grain corn flour in a mixture of whole grain flours, wherein the mixture of whole grain flours in the baked cereal product is about 20 wt.% as recited by Okoniewska [0020], would be from an amount greater than 0 wt.% to an amount less than about 20 wt.%. The range of amount greater than 0 wt.% to an amount less than about 20 wt.% encompasses the concentration of whole grain flour recited in present claims 25 and 36.
Okoniewska teaches that the product may further comprise grain cuts and/or grits [0021]. Since Okoniewska discloses that the amount of refined flour in the product may be about 30 wt.% to about 70 wt.% [0019]; and the amount of whole grain flour in the product may be about 20 wt.% to about 95 wt.% [0020], a skilled practitioner would understand that the product may comprise up to about 50 wt.% of other ingredients including grain cuts and/or grits. This concentration range of up to about 50 wt.% encompasses the concentration of grain cut and/or grits recited in present claims 25, 35, and 36.
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.I.
Okoniewska teaches that the baked cereal product may be produced by a method comprising the steps of: (a) preparing a dough comprising the flours and grits and/or cuts; (b) forming the dough to provide a dough piece; and (c) baking the dough piece [0036]-[0038] as recited in present claim 36.
Okoniewska teaches that a higher content of SAG is associated with various health benefits [0002]; and that consumers desire food products with SAG [0008]. Okoniewska does not teach that its baked cereal product has a weight ratio of SAG to TAS of from about 0.40:1 to about 0.52:1 as recited in present claims 25 and 36.
However, Folz teaches a baked cereal product (corresponding to biscuit) comprising a refined flour and whole grain flour; and having a moisture content of 0.5-5 wt.% (page 6, lines 26-28; page 18, lines 25-26). Folz teaches that the product has a weight ratio of SAG to TAS of at least 0.40:1 to 0.80:1 (corresponding to (SDS/(SDS+RDS)) of at least 40 wt.% to at most 80 wt.%), wherein the maximum weight ratio of 0.80:1 is for digestibility of the product (page 5, lines 4-8). This disclosed weight ratio of SAG to TAS of at least 0.40:1 to 0.80:1 encompasses the claimed weight ratio. The selection of a value within the encompassing range renders the claimed weight ratio obvious. MPEP 2144.05.I. Folz also teaches that the baked cereal product has a SAG content of at least 15 g per 100 g of the baked cereal product (page 6, line 18).
It would have been obvious for a person of ordinary skill in the art to have modified the product of Okoniewska to have a weight ratio of SAG to TAS of 0.40:1 to 0.80:1 as taught by Folz. Since Okoniewska teaches a baked cereal product comprising refined and whole grain flours and having a SAG content of greater than about 16 per 100 g of the baked product [0014], [0019], [0020], but does not disclose a suitable weight ratio of SAG to TAS in the product, a skilled practitioner would have been motivated to consult an additional reference such as Folz in order to determine a suitable weight ratio of SAG to TAS for a baked cereal product comprising refined and whole grain flours and comprising a SAG content of greater than about 16 per 100 g of the baked product. Therefore, the claimed weight ratio is rendered obvious.
Regarding claims 26, 27, 37, and 38, Okoniewska teaches the invention as described above in claims 25 and 36, including the SAG content may be greater than about 20 g per 100 g of the product [0014], which falls within the range recited by present claims 26, 27, 37, and 38.
Regarding claim 28, Okoniewska teaches the invention as described above in claim 25, including the product is dough-based [0036].
Regarding claims 29, 30, 39, and 40, Okoniewska teaches the invention as described above in claims 25 and 36, including that the disclosed products are intended to retain their initial SAG content after baking [0008]-[0011], [0023]. Therefore, Okoniewska at least suggests that the post-baked SAG content of the product includes a range comprising 0% change from the SAG content of the dough prior to baking, thereby rendering the amounts recited in present claims 29, 30, 39, and 40 obvious. Further, the Office does not have laboratory facilities to test claim limitations drawn toward results of practicing the method as claimed. Accordingly, such a post-baked SAG content difference does not serve to distinguish the product as claimed from the prior art and are thus considered obvious to one having ordinary skill in the art.
Regarding claims 31, 32, 41, and 42, Okoniewska teaches the invention as described above in claims 25 and 36, including the product comprises protein in an amount of about 0.1 wt.% to about 20 wt.% of the product [0026]; and fat in an amount of about 0.1 wt.% to about 20 wt.% of the product [0028], which fall with the protein and fat ranges recited in present claims 31, 32, 41, and 42.
Regarding claims 33, 34, 43, and 44, Okoniewska teaches the invention as described above in claims 25 and 36, including the product may further comprise fruit and/or chocolate chips [0029] as recited in present claims 33, 34, 43, and 44.
Regarding claim 45, Okoniewska teaches the invention as described above in claim 44, including that the product may further comprise grain cuts and/or grits [0021]. Since Okoniewska discloses that the amount of refined flour in the product may be about 30 wt.% to about 70 wt.% [0019]; and the amount of whole grain flour in the product may be about 20 wt.% to about 95 wt.% [0020], a skilled practitioner would understand that the product may comprise up to about 50 wt.% of other ingredients including grain cuts and/or grits. This concentration range of up to about 50 wt.% encompasses the concentration of grain cut and/or grits recited in present claim 45. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Claim 46 is rejected under 35 U.S.C. 103 as being unpatentable over Okoniewska (WO 2014/152037; IDS citation) in view of Folz (WO 2012/120154; IDS citation) as applied to claim 25 above, and further in view of Bhattacharya (IN332DE2002A).
Regarding claim 46, Okoniewska teaches the invention as described above in claim 25, including that the product may further comprise grain cuts and/or grits [0021]; and that the particle size of the flakes, grains, and seed ingredients in the baked cereal product is dependent upon the desired texture of the final product [0056].
The prior art does not teach that the grits and/or cuts have a particle size from about 1 mm to about 2 mm
However, Bhattacharya teaches that cereal grits may have a particle size of 0.1-0.7 mm (page 12, 4th paragraph).
As the texture of the final baked cereal product is a variable that can be modified, among others, by adjusting the particle size of the grits and/or cuts, the particle size of the grits and/or cuts 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 particle size of the grits and/or cuts 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 particle size of the grits and/or cuts in the in the baked cereal product of Okoniewska by using a particle size of 0.1-0.7 mm disclosed by Bhattacharya as a guide to obtain the desired texture as taught by Okoniewska (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.).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 25-45 over Okoniewska: Applicant’s arguments and amendments have been fully considered and are considered to overcome the obviousness rejections over Okoniewska written in the Non-Final Office Action filed 12/05/2025. Therefore, those rejections are withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Okoniewska and Folz.
Applicant amended claims 25 and 36 to recite that the baked cereal product had a SAG to TAS ratio of from about 0.40:1 to about 0.52:1. Applicant argued that Okoniewska does not disclose a ratio of SAG to TAS or disclose that the ratio of SAG to TAS is important to the product formulation or processing (Applicant’s Remarks, pages 5-6, section II).
However, in the new grounds of rejection necessitated by the amendment of claims 25 and 36, claims 25 and 36 are rejected by the combination of Okoniewska and Folz. As described above in the claim rejections of claims 25 and 36, since Okoniewska teaches a baked cereal product comprising refined and whole grain flours and having a SAG content of greater than about 16 per 100 g of the baked product [0014], [0019], [0020], but does not disclose a suitable weight ratio of SAG to TAS in the product, a skilled practitioner would have been motivated to consult an additional reference such as Folz in order to determine a suitable weight ratio of SAG to TAS for a baked cereal product comprising refined and whole grain flours and comprising a SAG content of greater than about 16 per 100 g of the baked product. Folz teaches a baked cereal product (corresponding to biscuit) comprising a refined flour and whole grain flour; and having a SAG content of at least 15 g per 100 g of the baked cereal product (page 6, lines 18, 26-28; page 18, lines 25-26). Folz teaches that the product has a weight ratio of SAG to TAS of 0.40:1 to 0.80:1 (corresponding to (SDS/(SDS+RDS)) of at least 40 wt.% to at most 80 wt.%), wherein the maximum weight ratio of 0.80:1 is for digestibility of the product (page 5, lines 4-8). This disclosed weight ratio of SAG to TAS of 0.40:1 to 0.80:1 encompasses the claimed weight ratio. The selection of a value within the encompassing range renders the claimed weight ratio obvious. MPEP 2144.05.I.
Since the prior art has been shown to render the present claims obvious, the rejections of the claims stand as written herein.
New Claim 46: Applicant argued that Okoniewska does not disclose a particle size of grits and/or cuts and therefore, does not disclose the features of new claim 46 (Applicant’s Remarks, page 6, section III).
However, the features of claim 46 are rendered obvious by the combination of Okoniewska, Folz, and Bhattacharya. As described above in the rejection of claim 46, as the texture of the final baked cereal product is a variable that can be modified, among others, by adjusting the particle size of the grits and/or cuts (Okoniewska [0056]), the particle size of the grits and/or cuts 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 particle size of the grits and/or cuts 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 particle size of the grits and/or cuts in the in the baked cereal product of Okoniewska by using a particle size of 0.1-0.7 mm disclosed by Bhattacharya (page 12, 4th paragraph) as a guide to obtain the desired texture as taught by Okoniewska [0056].
Conclusion
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 P KERSHAW/Examiner, Art Unit 1791