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 is in response to amendment filed on 3/25/26. Claims 1,11 are amended and claims 2-3,12-13 are cancelled. Claims 21-24 are added. Claims 1,4-11 and 14-24 are pending.
Upon further consideration, the previous 112 second paragraph rejection is withdrawn.
The 103 rejection is changed due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 1, 4-7,10,11,14-16,18,20-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roy ( 2005/0202143) in view of applicant’s admission of prior art and Debonte ( WO 2009017665).
For claims 1, 4,5,6,7, Roy discloses a fried confectionery food product comprising a fried batter. The batter is formed from dry mix mixed with water and food additives. The fried food product has a water activity of less than .85 to about .55. The fried food product has an enhanced shelf life of at least 40 days. At least 40 means 40 and beyond encompasses the claimed shelf life of greater than 3 months in claim 1, greater than 4 months in claim 6 and greater than 6 months in claim 7. The claimed water activity falls within the range disclosed in Roy. 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) ( see paragraphs 0023, 0026,0027,0028,0052, 0079, 0107)
For claim 10, Roy discloses the food product is a donut. ( see paragraph 0052)
For claims 11,14,15,16 Roy discloses a process of making the fried food product. The process comprises the steps of providing dry ingredients to form a dry mix, adding liquid ingredients to the dry mix, mixing the liquid and dry mix to form a batter, frying the batter to form the fried food product. The fried food product has a water activity of less than .85 to about .55. The fried food product has an extended shelf life of at least 40 days. At least 40 means 40 and beyond encompasses the claimed shelf life of greater than 3 months in claim 11, greater than 4 months in claim 16. The claimed water activity falls within the range disclosed in Roy. 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). For claim 18, Baird discloses forming a batter comprising the dry mixture and a moisture which include water. Other liquid ingredients can be added such as liquid egg yolks, egg white ( see paragraphs 0023, 0028-0038, 0107,0111-0114)
For claim 20, Roy discloses the fried food product is a donut. ( see paragraph 0052)
Roy does not disclose the oil and shelf life above frozen temperature as in claim 1, 11 and specifically adding water as an initial liquid component as in claim 18.
Applicant discloses in the background section on page 1 that fried doughnuts are stored at ambient temperature.
Debonte discloses frying donuts in DDA shortening which is a frying shortening comprising modified palm and cottonseed oils. The shortening comprises 46.5% saturated fat. ( see pages 22-23)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to fry the donuts in any known frying fat such as the one disclosed in Debonte. Since the shortening comprises saturated fat within the range claimed, it’s expected the melting point is within the claimed range. As to the fat absorption, Roy discloses the finished fried product based on total weight contains about 17-35% fat, of which about 80 to about 85% of the fat is absorbed fry fat. Thus, the oil absorption would be from minimum of 13.6 to maximum of 29.75%. The claims recite relative to the batter. The batter in the claims is fried batter which is the product. The specification also discloses “ by weight of the product”. Furthermore, It would also have been obvious to one of ordinary skill in the art to vary the percent of fat absorption depending on time of frying and the formulation depending on the fat content desired. Such parameter can be determined through routine experimentation. Roy does not disclose storing the fried donut at frozen temperature. It would have been obvious to one of ordinary skill in the art to store the donut at ambient temperature because this a known method for storing donut as disclosed in the background section of applicant’s disclosure. Furthermore, the Roy’s fried product is disclosed to have extended shelf life and has water activity falling within the claimed range. It’s obviously inherent the shelf life at the claimed temperature is present. It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA1977), in re Spada, 15 USPQ2d 1655, 1658 ( Fed. Cir. 1990). It would have been obvious to one of ordinary skill in the art to add water as the initial liquid to facilitate the mixing on ingredients because water has more moisture than other liquid ingredients such as egg.
Claim(s) 8-9, 17, 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roy in view of Debonte and applicant’s admission of prior art as applied to claims 1,4-7,10-11,14-16,18, 20-24 above, and further in view of Braisier ( 2012/0027886) and Lang ( 7666457).
For claims 8, 17, Roy discloses the fried food comprising dry mix including about 50-80% wheat flour, about 20-40% sugar, about .05-.7% hydrocolloid, about 2-30% vegetable shortening, about .01-4% emulsifier. Roy discloses the liquid ingredients including water, sugar alcohol and about .5 to about 8% humectant such as glycerol. ( see paragraphs 0056-0062,0080-0081, 0085-0087,0092,0099,0101)
Roy does not disclose the amount of wheat flour, the addition of antioxidant and enzyme as in claims 8,17 and the coating as in claims 9,19
Lang discloses the dry mix for donut. Lang discloses to add .00001-.1% enzyme. Example 4 discloses a formulation for cake donut mix. Lang teaches the addition of enzyme is to inhibit or prevent starch retrogradation ( see col 2 lines 55-67, col. 12)
Braisier discloses cake donut. Braisier teaches to add antioxidant to the batter and the batter is made by adding between 20-35% water to the dry ingredients. The dry ingredient comprises what flour in amount of between 30-50%. Braisier discloses covering the donuts with glaze, icing or sugar. ( see paragraphs 0029, 0135,0136,0175)
As shown in Braisier and Roy, the amount of flour used can vary. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to vary the amount of flour depending on the consistency and the type of batter desired. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to follow the guideline of Baisier for the amount of water and to adjust depending on the consistency desired. Generally, difference in concentration does not support patentability in absence of showing of criticality or unexpected result. It would have been obvious to add an antioxidant as taught in Baisier to help in stability as the donut contains fat. It would also have obvious to add enzyme as taught in Lang to prevent starch retrogradation which causes staling. It would have been obvious to follow the guideline of Lang for the amount of enzyme. Adding an additive for its art-recognized function would have been obvious to one skilled in the art. It would have been within the skill of one in the art to determine the proper amount of antioxidant through routine experimentation. It would have been obvious to one of ordinary skill in the art to add coating as disclosed in Braisier when desiring to add further flavoring and taste to the product.
Response to Arguments
Applicant's arguments filed 3/25/26 have been fully considered but they are not persuasive.
In the response, applicant argues Roy does not disclose fried in oil having a melting point of about 40-50 degrees C and about 35-60 saturated fat and an oil absorption of about 15-30%. This argument is not persuasive. The limitations were in previous claims 2,12 which were rejected over Roy in view of Debonte for the teaching of the oil having saturated fat content within the range claimed. With respect to the oil absorption, applicant argues the fat content in Roy is expressed as a percentage of the final product weight while the present claims define oil absorption relative to the initial batter weight. This argument is not persuasive. The claims do not recite “relative to the initial batter weight” as argued by applicant. The claims recite relative to the batter; the batter in the claims is the fried batter which is the product. Thus, the oil absorption is also based on the final product. Applicant argues Roy does not disclose the relationship between the initial batter weight and the final product weight nor the extent of moisture loss during frying. This argument is not persuasive because it does not commensurate with the scope of the claims. There is no relationship defined in the claims between initial batter weight, final product weight and moisture loss. Furthermore, Roy discloses the oil absorption of the finished bakery fried product which means all the factors affecting the oil absorption have already been considered.
Applicant argues Debonte does not remedy the deficiencies of Roy. The examiner respectfully disagrees. The Debonte is not relied upon for the teaching of percent of oil absorption. Roy already discloses the feature. Debonte discloses frying donuts in DDA shortening which is a frying shortening comprising modified palm and cottonseed oils. The shortening comprises 46.5% saturated fat. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to fry the donuts in any known frying fat such as the one disclosed in Debonte. Since the shortening comprises saturated fat within the range claimed, it’s expected the melting point is within the claimed range. Applicant argues that neither Roy nor Debonte contains a teaching or suggestion that frying oil should be selected based on melting point or that such properties are related to oil absorption, texture stability or shelf life performance. There is no feature in the claims connecting the selection of oil to any particular property. One skilled in the art can select an oil for the reason that it’s a known oil for frying donut. Roy discloses the oil absorption as claimed and has shelf stability. Furthermore, Debonte discloses that the oil containing 46.5% saturated fat comprises 1.7% trans fat. Thus, one skilled in the art would have been motivated to select the oil when desiring a fat with low percent of trans fat.
With respect to the claims 8,9, 17,19, applicant argues the claims based on their dependency from claims 1 and 11. The argument is not persuasive for reason set forth above. The Braisier and Lang are not relied upon for the teaching of the oil. The reason for incorporating the references is explained in the rejection and applicant does not argue the position taken.
Applicant argues the claimed invention is to a specific combination of oil properties and oil absorption. This argument is not persuasive. There is no correlation between the selection of oil and oil absorption in the claims. They are separate limitations that are addressed in the rejection.
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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June 3, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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