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
Applicant’s election without traverse of claims 1-5 in the reply filed on 10/28/2025 is acknowledged. Claim 6 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/28/2025.
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.
Claims 1-5 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.
It is unclear how much vegetable shortening is required to be melted in order to meet the limitation “substantially most of the vegetable shortening is melted”.
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.
Claim(s) 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tu(Fluffy Condensed Milk Bread) in view of Land O Lakes(Butter Vs Shortening in Baking) and Vaughan(The Difference Between Active Dry Yeast and Instant Yeast Explained).
Regarding claim 1, Tu teaches a method of preparing bread dough comprising forming a dry mixture comprising yeast, flour, and salt and adding a wet mixture comprising whole milk, sweetened condensed milk, and egg(which contains egg yolk), and room temperature water(contained in the whole milk). Tu further teaches added softened butter to this mixture and mixing the combined mixture in order to distribute moisture evenly throughout the combined mixture(p.21-22).
Tu teaches the use of butter instead of shortening as claimed. However, Land O Lakes teaches that butter and shortening can be used interchangeably in baked foods as a one-to-one swap(p.1). It would have been obvious to substitute shortening for butter in Tu since Land O Lakes teaches that butter and shortening can be used interchangeably in baked foods as a one-to-one swap. It would have been obvious to heat the shortening, such that substantially most of the vegetable shortening is melted since Tu teaches the use of softened butter that would easily mix with the dry ingredients.
Tu does not specifically teach the presence of added sugar in the bread. However, since the bread composition is sweetened with condensed milk, it would have been obvious to include sugar in with the shortening mixture in order to provide the desired level of sweetness to the bread product.
Tu teaches the use of instant yeast and not active dry yeast. However, Vaughan teaches that instant yeast is already activated and can be added to dry ingredients while active dry yeast needs to be bloomed with warm water and sugar. Vaughan teaches that active dry yeast is beneficial because one can guarantee if it is still alive by blooming it in water before adding the other baking ingredients(p.1). It would have been obvious to use a mixture of active dry yeast, water, and sweetened condensed milk(which contains sugar) in order to guarantee that the yeast is still alive by blooming it in water before adding the other baking ingredients.
Tu teaches the same ingredients as claimed but does not specifically teach the order of mixing ingredients. However, Tu in view of Land O Lakes and Vaughan teaches of substantially the same product produced by substantially the same method as instantly claimed by applicant; where the claimed and prior art products are produced by substantially identical processes, a prima facie case of obviousness has been established. To switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”
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.
As such, the instant claims merely involve the use of common ingredients in predictable ways.
Regarding claims 2-4, Tu teaches resting the dough after combining but does not specifically teach a period of nine to eleven minutes, particularly 10 minutes. However, it would have been obvious to adjust the resting period in depending on the amount of rise desired in the dough and type of yeast used.
Regarding claim 5, Tu teaches mixing the combined mixture and kneading, including flipping the combined mixture(p.22).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791