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 in response to amendment filed on 9/16/25. Claims 48,52,54-55 are amended and claims 49,51,56,60-65 are cancelled. Claims 69-71 are added. Claims 48,50,52-55,57-59,66-71 are pending.
The previous 103 rejection over Heyo as the primary reference is withdrawn due to the amendment. The rejection over Pesheck is maintained and changed as followed due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 48,50, 52-55,57-59, 66-70 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pesheck ( 5576036) in view of Sosebee ( 2009/0196958), Hupfer ( 2010/0303956).
For claim 48, Pesheck discloses a method of making a baked pizza. The method comprises the steps of mixing a dough composition comprising flour,water, oil, yeast and one or more sugar, salt, emulsifier, flavorants etc, incorporating a crisping agent into the dough by physical pressing of the crisping agent into the dough, shaping the dough into pizza and cooking the pizza. The particulate crisping agent are present in amount of 20-95% by weight of coverage. The crisping agent includes grains, seed, breadcrumbs as well as any number of other processed or unprocessed composition. The crisping agent has particle sizes ranging from about 1mm to 7mm. Pesheck also discloses shortening such as animal and vegetable fat may be added as a tenderizer. ( see col. 2-5)
For claim 52, Pescheck discloses toppings including fruits, meat, vegetables etc.. ( see col. 5 line 65 through col. 6 line 30
For claim 53, Pesheck discloses a dough having a thickness in the range of 2-25mm and the dough includes open-face form such as pizza. ( see col. 3 lines 4-10, col. 6 lines 38-41)
For claims 54-55, Pesheck discloses a dough comprising about 55-70% flour, fat and oil in amount of about 10-35% and water in amount of about 0-50%. ( see col. 3 lines 4-42)
For claim 66, Pesheck discloses the pizza has crunchy texture after reheating. ( see col. 6 lines 45-67 and the examples.
For claim 69, Pesheck discloses leavening agent in amount of 0-3%. ( see col. 3 lines 49-57)
Pesheck does not specifically disclose fried or baked chips, fat chips, forming an outer layer around the pizza of fried or baked chips, melting of fat chips and the amount of crisping agent by weight of the dough as in claim 48, the fried or baked chips are corn chips as in claim 50, the fried or baked create a crunchy texture as in claim 57, the analysis as in claim 58, the peak force as in claim 59, the chips are flavored as in claim 67, the amount of fat chips as in claim 68 and the circular shape as in claim 70.
Sosebee discloses breading comprising crunchy corn ingredients. Sosebee discloses the breading is breadcrumbs comprising tortilla chips and the chips are flavored. The chips can be baked or fried. ( see paragraphs 0011-0013)
Hupfer discloses a crispy bread product including pizza crust type. The crust has a thickness of less than 12mm. Hupfer teaches to add fat flakes in amount of about 2 to 8%. The flat flakes are uniformly distributed throughout the formed dough product. The crust has a crispy bottom surface having a cracker-like crust. The fat flakes dispersed within the dough and melt during baking. ( see paragraphs 0004,0007,0008,0037)
Pesheck discloses the crisping agent includes any processed and unprocessed composition, breadcrumb etc. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use any crisping agent including the bread crumb comprising tortilla corn chip taught in Sosebee to obtain the unique corn flavor. When the bread crumb corn chips are present, it is obvious they provide the crunchy texture. It would have been obvious to one of ordinary skill in the art to analyze the crunchy texture by sensory evaluation because it is obvious to taste the product to analyze its texture. It would also have been obvious to vary the peak force by varying the amount of inclusions used to obtain varying texture. This would have been an obvious matter of preference depending on the textural feel desired. As to the amount of crumb based on the dough, Peschek discloses the crumbs are added to provide coverage of about 20-95%. This indicates almost the entire pizza crust can be provided with the crisping agents because about 95% of coverage is disclosed. To provide the coverage of crisping agent, it’s inherent that certain amount based on the dough is used. The claimed amount and the amount of percent coverage are just different ways of providing the amounts of crisping agent. Since Peschek discloses pizza crust as claimed, it’s expected the amount require to distribute the agent across the pizza would include amount within the range claimed. If not, it would have been within the skill of one in the art to determine the amount that is needed to provide the required coverage through routine experimentation. Generally, difference is concentration does not support patentability in absence of showing of criticality or unexpected result. Applicant has not established any criticality of the amount over Peschek. Since Peschek discloses coverage up to 95%, it is obvious the crisping agents are distributed throughout the pizza dough. Furthermore, the distribution throughout the pizza dough would have been a common logical deduction because it would be desirable to have the agent to be throughout the dough to give a uniform crunchy texture of the product instead of concentrating in just one portion. Peschek discloses shortening can be added. It would have been obvious to one of ordinary skill in the art to add the fat flaked disclosed in Hupfer when desiring to enhance the textural crispness of the crust. Both Peschek and Hupfer are directed to pizza crust that is reheated in microwave oven. Thus, the addition of the fat flakes is compatible and one skilled in the art would have been motivated to add the flakes to enhance the texture. It would have been obvious to one skilled in the art to follow the guideline of Hupfer for the amount of fat flakes. It would have been obvious to one of ordinary skill in the art to adhere the crisping agent to the outer rim of the crust to form a layer around the crust when desiring to have an outer crunchy layer on the rim as well as the surface. Such parameter would have been within the skill of one in the art as variation in pizza crust is a preference depending on taste desired. For example, Hupfer teaches to apply breadcrumbs to the bottom surface of the crust to provide additional crispiness ( paragraph 0045). Thus, one would readily apply the crisping agent to any surface when desiring the additional crispness on the area. Hupfer discloses the fat flakes melts during baking and Peschek discloses pressing the crisping agent into the dough. Thus, it’s obvious the melted fat migrates to the crisping agent. It would have been obvious to one of ordinary skill in the art to form a circular shape because that is a common shape for pizza.
Claim(s) 71 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pesheck in view of Sosebee and Hupfer as applied to claims48,50, 52-55,57-59, 66-70 above, and further in view of Spanier ( EPA 0141754) and Gulstad ( 3767421)
Pesheck in view of Sosebee and Hupfer does not disclose inactive dry yeast.
Spanier discloses bread dough mix. Spanier teaches the inclusion inactive dry yeast for taste or flavor. ( see page 8 lines 1-3)
Gulstad discloses pizza dough comprising chemical leavening agent and inactive dry yeast. ( see example IV)
Pesheck discloses leavening agents including chemical leavener and yeast. It would have been obvious to one of ordinary skill in the art to use inactive dry yeast as taught in Spanier and Gulstad when chemical leavening agents are used and the inactive dry yeast is added for flavoring and taste. Pizza dough comprising chemical leavening agent and inactive dry yeast is known as shown in Gulstad.
Response to Arguments
Applicant's arguments filed 9/16/25have been fully considered but they are not persuasive.
In the response, applicant points to the amendment in claim 48. The amendment does not define over the prior art and new references are added to address the new limitation. Applicant further argues that the coverage in Pesheck is a two dimensional surface areas which is fundamentally different from and not convertible to the three dimensional weight percentage of the entire dough. This argument is not persuasive. It’s not clear on what applicant means by three dimensional weight percentage. It’s unclear how an amount is three dimensional. The examiner maintains her position that the amount of crisping agent used is within the determination of one skilled in the art. Peschek discloses the crumbs are added to provide coverage of about 20-95%. This indicates almost the entire pizza crust can be provided with the crisping agents because about 95% of coverage is disclosed. To provide the coverage of crisping agent, it’s inherent that certain amount based on the dough is used. The claimed amount and the amount of percent coverage are just different ways of providing the amounts of crisping agent to be added to the dough. Since Peschek discloses pizza crust as claimed, it’s expected the amount require to distribute the agent across the pizza would include amount within the range claimed. If not, it would have been within the skill of one in the art to determine the amount that is needed to provide the required coverage through routine experimentation. Generally, difference is concentration does not support patentability in absence of showing of criticality or unexpected result. Applicant has not established any criticality of the amount over Peschek. Since Peschek discloses coverage up to 95%, it is obvious the crisping agents are distributed throughout the pizza dough. Furthermore, the distribution throughout the pizza dough would have been a common logical deduction because it would be desirable to have the agent to be throughout the dough to give a uniform crunchy texture of the product instead of concentrating in just one portion. Applicant argues that the position is conclusory and unsupported. The examiner respectfully disagrees. The conclusion is fully suggested by Peschek as the patent discloses to add crisping agent to the dough and discloses such percentage of coverage. It is obvious, certain amount of agent has to be added to cover the percentage of coverage. The distribution and amount can vary depending on the degree of crunchiness desired and such parameter can readily be determined by one skilled in the art through routine experimentation.
Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 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.
Applicant further argues that Sosbee does not teach incorporation of breading mix within the dough matrix. The Sosbee is not relied upon for teaching of incorporating breading mix into dough matrix because Pesheck already discloses such feature. The reference is only relied upon to teach different type of breading mix. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The argument over the Heyo reference is moot because the rejection of claim 48 over Heyo is withdrawn due to the amendment.
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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November 19, 2025
/LIEN T TRAN/Primary Examiner, Art Unit 1793