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
Newly submitted claims 21-25 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: the newly added claims are directed to a method of using the formulation (dry and wet) by preparing a comestible and using the formulation in a plurality of recipes to reduce or eliminates a need for at least one ingredient in each recipe. The dry formulation may be used in a materially different process, such as using only with water, in which case no ingredient is replaced, or the wet formulation may be used alone without any other ingredients added.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-25 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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, 3, 5, 7-9, 12, 14, 16, 18, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2009/0317516 (Newsteder).
Regarding claim 1, Newsteder teaches a heterogeneous, pulverulent mixture comprising powdered egg white (an egg powder) and powdered skim milk (dairy solid). The pulverulent mixture (12) to which the egg powder and skim milk are added is considered an additive and may include a minimum of four components in granular form, such as cereals, leavening agents, crackers or cookies and wheat germ [0025, 0059]. Whole eggs may be used rather than just egg whites and whole milk may be used to replace skim milk [0066-0067]. Figure 2 illustrates a container for holding the pulverulent mixture and water may be added to form a batter and subsequent cooking on a hot surface [0058-0059]. Thus, the pulverulent mixture is in a dry, granular form and includes egg powder, dairy solids and additives. The mixture is capable of being used to form a comestible, such as pancakes or crepes, by cooking.
Regarding claims 1 and 5, the flavor enhancer is considered to be met by the addition of salt, which is present in Components 2, 3 and 4 [0032, 0035, 0038]. The flavor enhancer may also be met by the addition of sugar also present in Components 2, 3 and 4.
Regarding claim 3, as stated above, the mixture is in granular form [0024].
Regarding claim 7, the additives may include ingredients that affect texture, such as cereal and powdered milk [0028, 0035].
Regarding claim 8, ingredients may be added to provide color [0006, 0035].
Regarding claim 9, preservatives may be added [0035, 0039].
Regarding claims 12 and 14, Newsteder teaches an embodiment of the pulverulent mixture is in a pourable (liquid) form where the mixture has been combined with egg and milk [0063, Figure 6]. Additionally, adding water to the embodiment of Figure 2 discussed above would also result in a liquid form of the pulverulent mixture and also possess the egg and milk ingredient.
Regarding claim 16, Newsteder teaches that the pulverulent mixture may be combined with fruit juice. This would provide a wet culinary formulation having an additive of fruit juice.
Regarding claim 18, the additives may include ingredients that affect texture, such as cereal and powdered milk [0028, 0035].
Regarding claim 19, ingredients may be added to provide color [0006] and preservatives may be added [0035, 0039].
Claims 12, 14, 16, 18 and 19 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2022/0248729 (Kessler).
Regarding claims 12, 14, 16, 18 and 19, Kessler teaches a liquid egg composition comprising liquid egg and further includes water, milk and mixtures thereof in an amount up to about 40% of the total egg composition. Kessler teaches that the liquid egg composition may further include pepper, butter, spices, salts, coloring agents, and preservatives [0041]. Thus, Kessler teaches using the liquid egg composition with other food ingredients and the presence of salt, spices, butter, and/or pepper are considered to meet the claimed flavor enhancers. Kessler further teaches that the liquid egg composition may further comprise solid food particles such as cooked egg portions and have been found to provide organoleptic benefits in texture and product appearance [0020, 0022]. Thus, Kessler is seen to teach the presence of a texture enhancer in the form of a second egg. Kessler also teaches milk which is disclosed as a texture enhancer.
Response to Arguments
Applicant’s amendments overcome the 112(b) rejections. The rejection under 112(b) has been withdrawn.
Applicant’s amendments have overcome the 102(b) rejection over Augason Scrambled Egg Mix.
Applicant's arguments filed 09/02/2025 regarding Newsteder and Kessler have been fully considered but they are not persuasive.
Regarding the 102 rejection over Newsteder, applicant argues that Newsteder does not use the term “flavor enhancer” or a synonymous word to describe these substances and that consequently, a final product containing one or more of the substances will not have an improved taste. This argument is not persuasive as the claim is directed to a product and not to the use of said product. In other words, in order to meet the claimed product, the product of the prior art must be capable of said use. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Here, while Newsteder discloses the prepared mixture is used to form foods with or without the addition of other foods/ingredients, thus the material of Newsteder could be combined and used in recipes. Moreover, Newsteder teaches substitution of the prepared mixture for flour in an apple pie recipe. Specifically, Newsteder states in [0056] that “When one bakes an apple pie and replaces the flour with the present invention, the results are outstanding. The apple pie baked is really delicious and each slice (1/8 of a 9 inch pie) is like eating a wholesome breakfast with virtually no sugar, cholesterol, etc., provided the mix of the invention has powdered eggs and powdered milk as shown in the pre-mix bottles that only need water added. When replacing flour called from by a recipe with the mixture, it is not necessary to add egg whites and/or skim milk. Only a little egg white is needed as a binder, if at all. For instance, the pulverulent or dry powder mixture of the present invention may replace flour, which would otherwise go into forming the pie shell.” Thus, Newsteder indicates that the formulation may be used to replace flour with outstanding results. Also, [0069] states that the dry, heterogeneous, pulverulent mixture may replace flour in recipes. Thus, the formulation of Newsteder, whether in the wet or dry form, is seen to be capable of providing an improved taste and texture of a comestible. Regarding use of the term “flavor enhancer”, Newsteder uses both salt and sugar as well as other flavorings. Salt and sugar are indicated as flavor enhancers (instant claim 5), thus since the same materials are disclosed, they are expected to have the same properties (i.e., the same effect) regarding flavor enhancement. Additionally, the term “improve” is not defined and is considered to broadly encompass the tastes of a broad spectrum of consumers. The same argument applies to the texture enhancer. Since Newsteder discloses materials that are commensurate with the claimed texture enhancers, the limitation is seen to be met and the property/intended use capability is present. Additionally, the term “improve” with regard to texture is also not defined.
Regarding Kessler, applicant argues that the ingredients have to improve the flavor of the liquid egg composition and cannot merely affect the flavor of the liquid egg composition in an unexplained manner. This argument is not persuasive since Kessler is capable of the claimed use. Kessler teaches a liquid egg composition that may be combined with other solid food inclusions (considered comestibles) and results in unique viscosity and texture properties of the final product [0035]. Kessler teaches that the liquid egg composition may further include pepper, butter, spices, salts, coloring agents, and preservatives [0041]. Thus, the presence of salt, spices, and/or pepper are considered to meet the claimed flavor enhancers. Kessler further teaches that the liquid egg composition may further comprise solid food particles such as cooked egg portions and have been found to provide organoleptic benefits in texture and product appearance [0022]. Thus, Kessler is seen to teach the presence of a texture enhancer in the form of a second egg. Kessler also teaches milk which is disclosed as a texture enhancer. It is further noted that the extent of any improvement is not quantified or qualified. The presence of the ingredients disclosed by Kessler are reasonably expected to provide at least some affect on the flavor of the final product (combination with solid food inclusions) since the same or similar ingredients claimed are disclosed by Kessler. The argument regarding an “unexplained manner” is not persuasive as no clear definition is given to determine the extent of any improvement. Moreover, Kessler recognizes effects on viscosity and texture properties as well as effects on flavor.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793