DETAILED ACTION
Amendments made March 30, 2026 have been entered.
Claims 1-9 and 11-17 are pending;
Claim 14 has been withdrawn.
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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 30, 2026 has been entered.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claim 7 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made March 30, 2026.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 17 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In the instant case claim 17 fails to further limit the claim from which it depends (claim 8 which depends on claim 1). Claim 17 recites that the barrier cream component is located between the layer of the biscuit and the layer of the honey caramel component. Claim 1, however already requires that the barrier cream is located between the biscuit and honey caramel component, and claim 8, which depends on claim 1 and from which claim 17 depends defines the biscuit component in the form of a layer and the honey caramel component in the form of a layer. Thus, claim 17 does not further limit the claim from which it depends as the limitations recited therein are already required. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Notes:
“Added sugar” refers to refined sugar such as sucrose, glucose and fructose and does not encompass naturally occurring sugar products such as honey, polysaccharides, oligosaccharides, or lactose naturally present in milk products (instant specification page 2 line 33 through page 3 line 6).
“Biscuit” refers to a flour-based baked food product (instant specification page 5 line 35).
“Low sugar” milk chocolate is one having less than 50% added/refined sugar selected from sucrose, glucose and fructose (instant specification page 3 lines 23-25).
Claims 1-3, 5-9, 11-13, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Schramm et al (US 2002/0150607) in view of Kortum et al (US 2008/0311279) and Provenzano, Maria (“Homemade Caramel with Sea Salt (no corn syrup)” From Scratch with Maria Provenzano May 2014 pages 1-27) and Pastry Girl (“Maple Syrup Caramel” eGullet Forums, Pastry & Baking September 2014 pages 1-6) and Maximilienne Van Damme (WO 2016/205677) and Coleman et al (US 8,486,469) and Beyer et al (US 5,741,505) and Lees and EB Jackson (“Sugar Confectionery & Chocolate Manufacture” Leonard Hill 1973 pages 124 and 125).
Regarding claims 1-3, 5-9, 11, 12, and 15, Schramm et al (Schramm) teaches a food bar comprising: a base layer; a top layer which is preferably a caramel; and a conventional coating, including chocolate which is generally from about 5-30% on all sides, i.e. enrobing the base and top layer (paragraphs 80, 83, 85, and 89 and claims 30, 31, and 40).
Regarding the bar as comprising a biscuit which has a grain inclusion as recited in claim 1, preferably wherein the inclusion comprises one or more whole grains selected from oats, rolled oats, wheat, barley, and quinoa as recited in claim 2, as noted above, the term “biscuit” has been defined as a flour-based baked food product (instant specification page 5 line 35). Schramm teaches that about 0-90% flour is employed to make food bars of the instant invention (paragraph 78), that ingredients including whole grain rolled oats, and granola can be included therein (paragraph 76), and that although it is preferred to use cold forming, any known procedure for preparing food bars may be used (paragraph 80). The examiner takes official notice that baking was a known procedure for forming food bars. Thus, although not preferred, the teachings of Schramm encompass a bar as comprising a biscuit with a grain inclusion selected from the group including whole grains, granola, and oats as claimed. It is noted that “nonpreferred disclosures can be used. A nonpreferred portion of a reference disclosure is just as significant as the preferred portion in assessing the patentability of claims.” In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960).
Regarding the food product as comprising a honey caramel component with 1-60% soluble fiber as recited in claim 1, preferably comprising 10-60% honey as recited in claim 3, or a soluble corn fiber or soluble fructooligosaccahride (FOS) as recited in claim 5, or 1-50% soluble fiber as recited in claim 6, or less than 50% sugar syrup as recited in claim 7, Schramm teaches the top layer of the food bar is preferably caramel which contains about 40-70% sweetener such as liquid sucrose or corn syrup (paragraph 85). Schramm is silent to the caramel as a honey caramel component with 1-60% soluble fiber as recited in claim 1, preferably comprising 10-60% honey as recited in claim 3, or a soluble corn fiber or soluble fructooligosaccahride (FOS) as recited in claim 5, or 1-50% soluble fiber as recited in claim 6, or less than 50% sugar syrup as recited in claim 7.
Maximilienne Van Damme (MVD) teaches obesity is a growing problem in the world that creates the need for low calorie alternatives to high calorie foods, including chocolates and caramels (abstract and paragraphs 1-3, 25, 39, 44, and 45). MVD teaches this can be achieved by replacing some or all, such as 10-90% of the sugar in a conventional food product with cellodedextrin which is a soluble fiber (paragraphs 21-23).
Coleman et al (Coleman) teaches a low-calorie nutrition energy bar with a core, caramel component, and compound coating chocolate layer (abstract and column 10 lines 20-23). Coleman teaches that the triple layer bars are a known configuration that were disadvantageous in their high sugar content, but which can be remedied with the use of soluble fiber to provide a product with excellent flavor and multi-textural properties (abstract, column 1 lines 5-30 and 34-44, column 5 lines 4-20). Coleman teaches that distributing the fiber into multiple components provides a desirable flavor and texture while providing increased fiber (column 2 lines 1-18). Coleman teaches that the caramel composition contains about 20-60% soluble fiber and the coating composition contains about 20-35% soluble fiber (column 2 lines 55-61). Coleman teaches especially useful fibers are inulin and FOS, which also have a number of desirable nutritional properties (column 3 lines 1-3 and column 7 lines 38-49). Coleman teaches that the caramel ingredient not only acts as a carrier for the fiber, but it also imparts a mild sweet flavor compatible with other flavors in the bar, can be used to modify firmness of the bar and impart lubricity (column 3 lines 12-16 and column 8 lines 63-67). Coleman teaches that the caramel is formed from a premix and the soluble fiber, wherein the premix comprises about 5-15% vegetable fat and about 25-60% corn syrup (column 8 lines 17-43).
Provenzano teaches caramel made with honey, instead of flat and overly sweet corn syrup (title and page 4). Provenzano teaches that honey adds layers of flavor, floral and rich (page 4).
Pastry girl teaches to make caramel with honey, simply replace the corn syrup (post, page 2).
It would have been obvious to one of ordinary skill in the art for the caramel layer of Schramm to be a high fiber caramel, including 20-60% soluble fiber and about 25-60% corn syrup, in order to overcome the known disadvantages of high sugar in triple layer bars and provide a product with excellent flavor and multi-textural properties in view of Coleman. It would have been further obvious for the soluble fiber to be inulin and/or FOS as Coleman teaches, they were especially useful and also have a number of desirable nutritional properties. The position is further supported as MVD teaches obesity was a growing problem in the world that creates the need for low calorie alternatives to high calorie foods, including caramels, which can be achieved by replacing some or all, such as 10-90% of the sugar in the conventional food product with soluble fiber. It would have been further obvious to replace the corn syrup (glucose syrup) with honey as Pastry girl teaches it is simple replacement, and Provenzano teaches it replaces a flat overly sweet ingredient with one that adds layers of floral and rich flavors. Thus, the product of the prior art would comprise a caramel with about 25-60% honey, wherein it would have been obvious to adjust the range of honey to corn syrup replacement based on the particular flavor desired.
Regarding the food product as comprising a barrier cream between the biscuit and honey caramel, wherein the barrier cream includes dairy butter, milk fat, or a mixture thereof as recited in claims 1 and 17, preferably wherein the barrier cream includes a ratio of a sugar to a fat of 1:5 to 5:1 as recited in claim 15, as discussed above, it would have been obvious for the product of Schramm to comprise a biscuit and honey caramel layer. Schramm is silent to a barrier layer between.
Kortum et al (Kortum) teaches edible compositions suitable as barrier layers in food stuff that prevent the transfer of moisture between the different food components (abstract). Kortum teaches that the compositions are distinguished from conventional compositions and pure fat barriers by simultaneously having: a pleasant taste without a waxy mouthfeel, having a good nutritional profile, lower water permeability and high moisture resistance (paragraphs 27-31). Kortum teaches that the composition comprises: sweet applications with up to 60% added sugar (paragraphs 37, 72, and 75) and 25-60% total fat which is from the dairy ingredient and/or the fat component which comprises cocoa butter or milk fat in the form of butter or anhydrous milk fat (paragraphs 41-48, 68, and 70 and Table 1). As the barrier layer is a mixture comprising fat, it is considered to encompass a barrier cream as claimed.
Beyer et al (Beyer) teaches that food bars with cookies, i.e. biscuits, topped with caramel and coated with chocolate have a somewhat limited shelf life due to water migration from the caramel to the cookie which results in poorer product quality (column 12 line 66 through column 13 line 5).
It would have been obvious for the food bar of Schramm to comprise a barrier layer between the biscuit and caramel as Beyer teaches that water migration occurred between biscuits and caramel and reduced shelf life and product quality. It would have been obvious for the barrier layer to be a barrier cream component including up to 60% added sugar and 25-60% fat, and thus a ratio of sugar to fat within the claimed range, as Kortum teaches said barrier layer simultaneously has a pleasant taste without a waxy mouthfeel, a good nutritional profile, lower water permeability and high moisture resistance.
Regarding the chocolate component as comprising 1-30% soluble fiber as recited in claim 1, wherein the chocolate is a low sugar milk chocolate having less than 30% added sugar selected from sucrose, glucose and fructose as recited in claim 11 or a low sugar chocolate comprising one or more dietary fiber selected from dextrin, inulin, and fructo-oligosaccharide (FOS) as recited in claim 12, as discussed above, Schramm teaches of a product comprising a chocolate coating (paragraph 89). Schramm is silent to the chocolate composition.
Lees teaches that chocolate coatings were known to contain about 47.6% or 46% sugar (Table 39, page 125), wherein the amount of sugar should be increased to match an increase in fat for dark chocolate, and lowered for milk chocolate (page 124). Thus, it would have been obvious for the chocolate coating of Schramm to contain known compositional ingredient amounts for chocolate coatings as taught by Lees, including about 46% or 47.6% sugar.
Furthermore, MVD teaches obesity was a growing problem in the world that creates the need for low calorie alternatives to high calorie foods, including chocolates, which can be achieved by replacing some or all, such as 10-90% of the sugar in the conventional food product with cellodedextrin which is a soluble fiber (paragraphs 21-23). Thus, it would have been obvious for the 46% or 47.6% sugar in the chocolate as taught by Schramm in view of Lees to be replaced in full or in part with cellodextrin, a soluble dextrin fiber, in order to provide for needed lower calorie alternative. It would have been further obvious for the degree of replacement to depend on the desired caloric reduction in the caramel component. Thus, the teachings of the prior art make obvious a product comprising chocolate with up to 30% cellodextrin, which is a soluble dextrin fiber, wherein the chocolate is a low sugar chocolate and has less than 30% added sugar selected from sucrose, glucose, and fructose.
Regarding the biscuit as having a water activity of less than 0.6 as recited in claim 1, Schramm is not specific to the water activity of the biscuit, however in the art water activity is used as a value for measuring the moisture content of a food component relative with respect to transfer of moisture (see paragraph 4 of Kortum). Water activity was known to range from 0-1, wherein 0 means there is no moisture available for transfer. As Schramm teaches that the food bar, which includes the biscuit preferably contains 0-3% or no moisture in order to prevent decomposition (paragraph 98), it would have been expected or at least obvious for the bar components of Schramm, including the biscuit to have a low water activity, including one within the claimed range of less than 0.6. Thus, the product as claimed is considered encompassed or alternatively obvious over the teachings of the prior art. The position is further supported as Kortum shows that biscuits were low water activity foods (paragraph 81).
Regarding claim 13, as discussed above, Schramm teaches food bars for nutritional benefit comprising: a base, caramel layer, and a desired chocolate coating which is preferably from about 5-30% (paragraphs 85 and 89), wherein it would have been obvious to have a barrier layer between the caramel and biscuit for improved shelf stability. Schramm teaches food bars, which have one or more layers, have a desirable taste, can provide nutrition with improved patient compliance, and can be prepared in a cost-effective manner with standard equipment (paragraphs 15, 32, and 92).
Coleman teaches a low-calorie nutrition energy bar with a core, caramel component, and compound coating chocolate layer (abstract and column 10 lines 20-23). Coleman teaches that the triple layer bars provide a product with excellent flavor and multi-textural properties (abstract, column 1 lines 5-30 and 34-44, column 5 lines 4-20). Coleman teaches that the caramel ingredient not only acts as a carrier for the fiber, but it also imparts a mild sweet flavor compatible with other flavors in the bar, can be used to modify firmness of the bar and impart lubricity (column 3 lines 12-16 and column 8 lines 63-67).
Thus, the food product would comprise about 5-30% chocolate coating as it was a desirable amount as taught by Schramm. It would have been obvious for the barrier cream as taught by Schramm in view of Kortum to be used in an effective amount to provide an effective barrier. Thus, the product of the prior art would comprise less than about 70% up to less than 95% of the biscuit and caramel. It would have been obvious to one of ordinary skill in the art to adjust the amount of each respective layer based on the desired flavor and/or texture to be imparted from that specific component. As Coleman teaches that triple layer bars provide multi-textural properties, this would have been an obvious suggestion of the prior art. For example, it would have been obvious to adjust the amount of the caramel layer based on the desired amount of the flavor, firmness, and impart lubricity in view of Coleman; or when more of a biscuit flavor was desired in the product, it would have been obvious to include a greater quantity of biscuit in the product. As Schramm teaches of the caramel and bar, but does not restrict the amount by which they are included in the final product to adjust the amount of each respective component for the desired flavor is not seen as critical.
Regarding claim 16, as discussed above it would have been obvious for the caramel component of Schramm to be a honey caramel. Schramm further teaches a layer of the honey over, i.e. covering one or more sides of the biscuit layer as the top layer is placed onto extruded bars before application of an outside coating (Figure 1 and paragraphs 80-81, 83, 85, 88, and 92).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Schramm et al (US 2002/0150607) in view of Kortum et al (US 2008/0311279) and Provenzano, Maria and Pastry Girl and Maximilienne Van Damme and Coleman et al and Beyer et al and Lees and EB Jackson, further in view of Quaker (“Ingredients & Substitutions – Oats” September 27, 2020 https://www.quakeroats.com/cooking-and-recipes/baking-101/welcome-to-baking-101/ingredients-and-substitutions#:~:text=When%20baking%2C%20you%20may%20substitute,is%20not%20recommended%20for%20baking. Page 1).
As discussed above the teachings of Schramm encompass a biscuit comprising a grain inclusion. Schramm further teaches that the optional ingredients, i.e. the grain inclusion, are included in an amount depending on the desired color, flavor, nutritional content, or other benefit desired (paragraph 76), and that the flour is employed from 0-90% (paragraph 78)..
Schramm is not specific to the grain inclusion as present in the biscuit from 5-50% as recited in claim 4.
Quaker teaches oatmeal cookies are one of the most favored flavors of cookies for both kids and adults. Quaker teaches that oats add fiber, texture, and a mild nutty flavor to baked goods. Quaker teaches that when baking you can substitute oats for up to one third the amount of flour. Page 1, Oats, paragraphs 1 and 2.
It would have been obvious for the biscuit of Schramm to specifically comprise oats as Quaker teaches that they can be substitute for flour in baked goods and add fiber, texture, and a mild nutty flavor that is favored. It would have been further obvious to adjust the amount of said grain based on the desired fiber, texture, and flavor to be imparted into the biscuit in view of Schramm. To add a known ingredient for its known and intended function would have been obvious and well within the purview of one of ordinary skill in the art.
Response to Arguments
Applicant’s arguments filed March 30, 2026 have been considered but are not convincing.
Applicant argues that the cited references do not teach or suggest a biscuit with a water activity of less than 0.6 as recited in amended claim 1. This argument is not convincing to withdraw the rejections. As discussed above, although Schramm is not specific to the water activity of the biscuit, the product as claimed is considered encompassed or alternatively obvious over the teachings of the prior art. In the art, water activity is used as a value for measuring the moisture content of a food component relative with respect to transfer of moisture (see paragraph 4 of Kortum). Water activity was known to range from 0-1, wherein 0 means there is no moisture available for transfer. As Schramm teaches that the food bar, which includes the biscuit preferably contains 0-3% or no moisture in order to prevent decomposition (paragraph 98), it would have been expected or at least obvious for the bar components of Schramm, including the biscuit to have a low water activity, including one within the claimed range of less than 0.6. The position is further supported as Kortum shows that biscuits were low water activity foods (paragraph 81); US 2002/0192344 shows conventional biscuits in multilayer bars have a water activity of less than 0.6 (abstract and paragraph 45); and WO2014157608 teaches that foods having a water activity of less than 0.4 include those having water contents of less than 7% such as cookies, biscuits, wafters, and crackers.
Applicant argues that Schramm does not teach each of the components of the Markush group recited in claim 2. This argument is not convincing as the claim only requires one or more of the recited components.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2002/0192344 shows conventional biscuits in multilayer bars have a water activity of less than 0.6 (abstract and paragraph 45).
WO2014157608 teaches that foods having a water activity of less than 0.4 include those having water contents of less than 7% such as cookies, biscuits, wafters, and crackers.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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