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 .
Status of the Application
Receipt is acknowledged of the amendment and response filed 2/25/2026. Claims 1 and 6-19 are pending in the application. Claims 1.6-8 and 14 were amended, claims 2-5 were canceled and new claims 17-19 were added.
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.
Claim 1,14 and dependent claims 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.
Claim 1 recites “a snack product comprising from about 10% to about 40% of a starch base that is free of gluten and comprises (i) potato starch in an amount from about 10% to about 20% of the snack product and (ii) tapioca starch or corn starch in an amount from about 1% to about 15% of the snack product, such that a ratio of potato starch to the tapioca starch or corn starch is in a range of about 1:1 to about 3:” Claim 14 recites “A method of making a snack product comprising:a. providing a dry mix that includes from about 15% to about 60% of a starch base ingredient that is free of gluten and comprises (i) potato starch in an amount from about 10% to about 20% of the snack product and (ii) tapioca starch or corn starch in an amount from about 1% to about 15% of the snack product, such that a ratio of potato starch to the tapioca starch or corn starch is in a range of about 1:1 to about 3:1.”
The open-ended transitional phrase “comprises” does not preclude ingredients other than starch in the starch base from gluten free flours comprising starches as claimed, providing starch content from potato and tapioca in the claimed broad ratio. As starch components would not be discretely present in a finished snack products and would be a part of the structure of the product, and the claimed starches in a starch base are inherent in the corresponding flours, it is unclear whether the starch base comprises gluten free flours inherently containing starch. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Appropriate correction is required to enable a meaningful comparison with prior art.
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.
Claims 1,6-13 and 19, are rejected under 35 USC 103 as being unpatentable over Karwowski et al. (US 2008/003340 A1) on view of Barnett et al. (US2007/243301A1) cited in an IDS.
Regarding claim 1 Karwowski discloses a snack product comprising (example 2,
[0082]; claims 21-24) that is a snack product from about 10% to about 40% of a starch
base, from about 5% to about 20% of one or more vegetable substrates, from about
10% to about 45% one or more whole grain ingredients (Table 3), and from about 1 %
to about 4% moisture (Table 4, 2% ); wherein the snack product provides 10% or more
of vegetable material exclusive of potato and corn and at least 10% whole grains.
Karwowski does not specifically disclose a snack product has a bulk density in the claimed range. Barnett however discloses a snack product of similar composition prepared with starch, vegetable and grain ingredients that has a bulk density of 60-80g/L [0034] falling within the claimed range, which is considered a typical range for three dimensional snack foods of the claimed composition, absent evidence to the contrary.
Regarding claim 6-13,and 19 Karwowski discloses corn starch, potato starch, tapioca starch, rice starch, and modified or pregelatinized waxy starches such as those from waxy maize, sorghum, rice and mixtures thereof. These starch sources can be used singly or in combinations thereof. (cf. page 3, par. [0022]) and flours [0033]. It would have been obvious to one of ordinary skill in the art to select suitable starches for gluten-free products optimizing types and levels by experimentation to obtain desired texture and organoleptic properties in a finished snack product with a reasonable expectation of success.
One of ordinary skill in the art would have suitably adapted the amount of the one or more whole grain ingredients to obtain the desired properties, including nutritional properties of the snack product. The criticality of a ratio as claimed is not disclosed. Karwowski discloses whole grain yellow corn and whole grain rice flour (Table 3); One of ordinary skill in the art would suitably select a ratio of ingredients based on desired properties in an end product. Karwowski discloses adding exemplary amounts of 0.38 wt.% salt and 0.41 wt. % leavening agents (Table 3), flavoring and coloring agents. Karwowski further discloses that leavening agents are optional [0021], motivating one of ordinary skill in the art to if desired, omit these ingredients with a reasonable expectation of success.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
No unexpected coaction or cooperative relationship between the claimed ingredients that produces a new and useful function has been established in the instant case.
Claims 1, 6-13 and 19 are therefore prima facie obvious in view of the art.
Claim 14-18 are rejected under 35 USC 103 as being unpatentable over Barnett.
Regarding claim 14, Barnett discloses a method wherein a dry mix comprising a starch base ingredient, one or more vegetable substrates from a source other than potato or corn, whole grain ingredients (rice) and less than 5% of additives is extruded into pellets and fried (claims 1,5,6,8-12,16,18 and 21-23; Examples 1 and 4, fig 1). Steps include a) hydrating a rice flour admix in a pre-conditioner to make a rice meal; b) extruding said rice meal through an extruder into an extrudate at a low shear rate; c) cutting said extrudate into pellets; and d) drying said pellets to a moisture content of between about 9% and about 13% and frying (Example 4).
The extruded product in Barnett is in the form of sheet that is thinned out into a ribbon of predetermined thickness and cut into pellets of desired shape. One of ordinary skill in the art would suitably select extrusion die slot geometry based on the desired properties of an end product, with a reasonable expectation of success.
The bulk density of the product is 60-80g/L falling within the claimed range [0034].
Regarding claim 15 and 18, Barnett discloses prior to cutting , perforating the sheet and tempering/conditioning [0044] as claimed.
Regarding claim 16 and 17, Barnett does not specifically disclose joining two sheets prior to cutting so that after frying a three dimensional product is formed. Layering or laminating sheets of dough followed by cutting and frying to obtain three dimensional expanded snack products is a process known in the culinary art. The layered structure promotes steam-driven expansion during frying, as moisture trapped between adjacent sheets vaporizes and separates the layers. This physical mechanism enables the development of a expanded structure without the addition of leavening agents. It would have been obvious to one of ordinary skill in the art to have applied this known culinary method to produce an expanded three dimensional fried snack product without the use of leavening agents, with a reasonable expectation of success.
Claims 14-18 are therefore prima facie obvious in view of the art.
Response to Arguments
Applicant’s arguments in view of claim amendments have been considered, but are not commensurate in scope with the claimed invention. For the reasons discussed in the current office action.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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