DETAILED ACTION
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 .
Applicant's submission filed on 4/21/20206 has been entered as compliant. Elected claims 3 and 6 have been cancelled, elected claims 1, 4-5, 8-10 have been amended in the current application. Elected claims 1-2, 4-5 and 7-10 are examined in the current application.
Claim Rejections - 35 USC § 103
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 4-5 and 7-10 are rejected under 35 U.S.C. 103 as being unpatentable over IDS reference to JPH10191877 A to Nakano et al., hereinafter Nakano ( cited in IDS of 10/27/25 and document provided by applicant with Espace.net machine translation) in view of cited art to WO 2021/042162 A to Lewis et al., hereinafter Lewis.
Regarding claim 1, Nakano teaches, a dough composition for expanded food, the composition (abstract and para 17, 35-36, 43-44 and table 1) comprising at least the following ingredients and not substantially comprising a wheat-derived protein (Para 10 where without flour is taught and protein ingredient in para 14 is based on milk, also see para 18 and 23):
(a) a milk protein comprising a protein derived from a milk-fermented product (para 14 describes protein may comprise “yoghurt”), wherein the milk protein is in a proportion of 90 mass% or more based on the total protein (Para 35, Table 1 and para 43, where all the protein is milk-based protein and other than starch and water all the other listed ingredients are listed in para 29, where no added proteins are listed);
(b) a starch (in addition to Para 35-36 and 43, Table 1, see para 22 and 25-26); and
(d) water(in addition to Para 35-36, 43, see para 35 and Table 1), wherein the dough composition is expanded by heat treatment to form a support matrix.
Regarding the limitation that “dough is subjected to heat treatment to cause the dough to expand and form a support matrix”, see para 36 where baking is taught , also see figures 1(a) and (b), and para 38 where expanded dough-based product is taught as recited in claim 1.
Regarding (c) a leavening agent Nakano teaches of including leavening agent in para 22 and swelling agent in para 15 and 29, but does not list it in the Table 1, especially examples B-E) that the leavening agent is “yeast”. Leavening agents are known in the art and yeast is a known leavening agent (e.g. para 36 of Lewis teaches yeast as a known leavening agent; also see para 31). It would have been obvious to one of ordinary skill in the art before the time of the effective filing date of the invention to include yeast as leavening agent. The ordinary artisan would have been motivated to modify Nakano at least for the purpose of including a leavening agent like yeast that is capable of providing a desired flavoring to the product (see para 36 of Lewis).
Regarding claim 2, Nakano teaches the dough composition for expanded food according to claim 1, wherein (a) the milk protein is at least one member selected from the group consisting of casein and whey protein (see para 43, where cream cheese is taught and Para 28 where it is taught that casein is present in cream cheese).
Regarding claim 4, Nakano teaches a dough composition for expanded food according to claim 1, wherein the dough composition comprises one or more edible compositions that comprise (a) the milk protein, and at least one of the edible compositions is a milk-fermented product (para 27-28, yogurt and Para 43 of cream cheese and para 27 and 28 provides coagulation/ fermentation)
Regarding claim 5, Nakano teaches a dough composition for expanded food according to claim 1,wherein (b) the starch is at least one member selected from the group consisting of natural starches and processed starches (see para 25-26 and 43 where tapioca and sweet potato starches are taught).
Regarding claim 7, Nakano as applied to claim 1, teaches inclusion of thickening agent (Para 22, 35, 43 where starch is taught). Nakano does not designate any component as (e) thickener as recited in claim 7. However, thickening agents, like gelatinizing starches, gums etc., were known to be included in dough compositions for baked products as is taught by Lewis. Lewis in para 17 teaches adding thickeners including gums (para 16 of Lewis), In para 87, Lewis discloses that the gums help a dough to resist spreading before cooking occurs and that yeast flavors and leavens the bread product. Thus inclusion of gums, in dough is well known in the art before the effective filing date of the invention. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include thickeners like gums as is taught by Lewis. The ordinary artisan would have been motivated to modify Nakano at least for the purpose of including in its dough composition gums to add to its dough composition to stabilize it against spreading or losing its desired shape before cooking or baking as is taught in para 87 of Lewis.
Regarding claim 8, Nakano teaches a dough composition for expanded food according to claim 1, which does not substantially comprise a processed rice product (see para 43 where egg is 25-26 where rice component is taught and para 35-36 where heating is taught, also see para 43 and Table 1).
Regarding claim 9, Nakano teaches a dough composition for expanded food according to claim 1,which further does not comprise at least one member selected from the group consisting of eggs and egg-derived ingredients (see para 43 where egg is not taught, also see para 18 and 23 where it is clearly stated that no eggs are used as raw material so that people who are allergic to eggs can consume the product).
Regarding claim 10, Nakano teaches a dough composition for expanded food according to claim 1, which comprises each of the ingredients in the following proportions:
Nakano teaches, a dough composition for expanded food, the composition (abstract and para 17, 35-36, 43-44 and table 1) comprising water, starch, milk protein.
Regarding component (d) water: 30 to 70 mass% ( Para 35, Table 1, compositions B-E where 47-48% moisture content of dough is taught, also Para 12, where general composition of dough has water content ranging from 35-60 % by weight of dough), which falls in the claimed range.
Regarding component e, i.e. thickener 0-30 mass%, which includes 0 mass%, i.e., the thickener component is not required or is an optional ingredient. Further, thickening agents, like gelatinizing starches are present in the dough compositions as taught by Nakano (see para 22, 35, 43 of Nakano where starch is taught)..
Regarding components (a) and (b) of claim 10, based on the water content and extrapolation of para 12 and 35 and Table 1, it follows that milk product comprising protein and starch product as taught by Nakano total to a range from 40-65% from extrapolating from para 12 and 52-53% based on extrapolation of Table 1, compositions B-E.
Regarding the protein content, milk product that contains protein as applied to claim 1(Para 35, Table 1 and para 43, where all the protein is milk based protein and other than starch and water all the other listed ingredients are listed in para 29, where no added proteins are listed), thus the milk product which can be cream cheese, casein, casein sodium (Para 27-28), is being considered as a protein product.
Regarding the relative proportion of (a) and (b) as taught by Nakano, proportion of milk component, is 10-150 parts by weight relative to 100 parts by weight of starchy raw material (Para 30-31). Also see Table 1 compositions B-E where the relative proportion of milk product varies from 25-150 parts by weight relative to 100 parts by weight of starchy raw material, where the relative proportion of protein and starch both amount to a total of 40-65% and typically, 52-53% by weight (see extrapolation above from para 30-31 and table 1/para 35), and based on the relative amounts of protein and starch components, it follows that both protein and starch components are present in the dough of expanded food product in claimed proportions of 10 to 30 mass% of protein and 2 to 25 mass % of starch. Further attention is invited to para 31 of Nakano where the advantages of including starch and protein in desired ranges are related to fluidity, moldability, workability and puffability of dough. Too little protein the dough is less workable and less fluid, so it has deteriorated puffability, but too much protein then the dough becomes easy to burn (Para 31 od Nakano). Therefore, it follows to adjust the protein and starch content to achieve a workable dough that also puffs and bakes well. One of ordinary skill in the art before the effective filing date of the invention would have knowledge to adjust the dough components where protein is 10-150 parts as for every 100 parts of starch, such that, the protein content in the range of 10 to 30 mass% and starch content in the range 2 to 25 mass % of starch. The ordinary artisan would have been motivated to modify Nakano at least for the purpose of including in its dough composition based on the teaching of para 31 of Nakano, at least to achieve a dough that is fluid, moldable, workable and puffs and does not burn during baking.
Regarding (c) a leavening agent Nakano as modified by Lewis for claim 1 teaches yeast as the leavening agent. Lewis para 12 and 72 teach leavening agents including sodium bicarbonate or baking soda, which have similar function to yeast. Lewis teaches 1-6% by weight of alkali, gas forming alkali, like sodium bicarbonate or baking soda, a leavening agent (para 18 of Lewis), which has values in the claimed range and overall range overlaps the claimed range of leavening agent. Thus, inclusion of leavening agent in dough in claimed ranges is well known in the art before the effective filing date of the invention at least as taught by Nakano in para 22 and Lewis, para 12, 72 and 18. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to include yeast as leavening agent in the range as claimed, especially small amounts such as 0.05 mass %. The ordinary artisan would have been motivated to modify Nakano at least for the purpose of including in its dough composition at least a small quantity of a flavoring leavening agent such as yeast (para 36 of Lewis).
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Response to Arguments
Applicant's arguments of 4/21/2026 have been fully considered. In view of amendment to claim 10, the objection to claim 10 has been withdrawn. Applicant's remaining arguments are related to rejection of claim 1 and it’s dependent claims have been fully considered but they are not persuasive. Applicant argues regarding the amended required of using "yeast as leavening agent" of claim 1 in that "when yeast is employed as a leavening agent, a fermentation step becomes necessary, which inherently complicates the manufacturing process of a puffed food product". (especially see page 6-7 of applicant's response). This argument is not persuasive. The rejection now refers to para 36 of Lewis which provides reasons why using yeast when not necessarily contemplated may still be pursued such as "some desirable bread flavors may occur during baking where yeast is present". Note that claim 1 does not require that no other leavening agent is used because the claimed "dough composition" is "comprising" "yeast as a leavening agent"; the "comprising" denoting other leavening agents are possible. As such, the allegation that "Lewis specifically teaches away" (see page 7) is not persuasive..
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 JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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