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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 8/17/2026 has been entered.
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) 1-3,5-8,10-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dombroski(WO 2018067373) in view of Han(Sun-Flour:Make Your Own Gluten-Free Sunflower Seed Flour).
Regarding claims 1,2,7,8, Dombroski teaches a foodstuff comprising a food coating on its exterior surface, wherein said food coating comprises(table 8)
i)between 50 to 90% legume flour such as peanut flour and water, which combined makes a legume(peanut) paste(para 82 and 93).
ii)between 0.2 and 2% liquid oil such as high oleic sunflower oi, soybean oil, and peanut oil(para 93, table 9)
Dombroksi teaches coating the foodstuff such that the it “contains no leaking” after being heated to a temperature of 37C for three minutes. Therefore, it would have been obvious to maximize the percent of exterior foodstuff, e.g. 100%, in order to prevent leaking from the foodstuff upon heating.
Dombroksi teaches that the coating can contain a variety of flours(para 66) and that the coating can provide a crispy texture(para 87) but is silent on the use of sunflower flour. However, Han teaches that sunflower flour is gluten free, rich in protein, and is mildly sweet and nutty yet neutral enough to use in many baked goods(p.2). It would have been obvious to use sunflower flour in the coating of Dombroksi since it provides a crispy texture and is gluten free, rich in protein, and is mildly sweet and nutty yet neutral enough to use in many baked goods. It would have been obvious to adjust the amount of sunflower flour present depending on the desired level of crispiness.
Dombroksi does not specifically teach that the food coating comprises between 3% and 18% of liquid oil. It is apparent, however, that the instantly claimed between 3% and 18% and that taught by Dumbroski are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Furthermore, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the amounts of liquid oil in the coating in order prevent leakage from the chocolate foodstuff.
Dombroski is silent on a liquid oil: flour ratio of between 3:2 to 1:3. However, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the ratio of liquid oil to flour in order to prevent leakage from the foodstuff upon heating.
Furthermore, it would have been obvious to adjust the amount of sunflower flour present depending on the desired level of crispiness.
Regarding claims 3,15, Dombroski teaches that the foodstuff comprises chocolate and does not require any animal or animal-derived products for the foodstuff or the coating(paragraph 51).
Regarding claim 5, Dombroski teaches the foodstuff and coating of claim 1, wherein the foodstuff can be chocolate and the oil such as sunflower oil can comprise unsaturated fat(table 9, para 51). Therefore, one of ordinary skill in the art would expect the composition of the prior art to have the properties of the claimed invention, including amounts of saturated fat.
Regarding claim 6, Dombroski is silent on the particle size of the flour. However, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the particle size of the flour in order to prevent leakage from the foodstuff upon heating.
Regarding claims 10, 17 and 19, Dombroksi does not specifically teach that the sunflower flour is partially defatted and comprises about 45% protein, about 12% fibres and about 12% fat. However, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the amounts of fat, protein, and fiber in the sunflower flour through defatting in order prevent leakage from the chocolate foodstuff.
Regarding claims 11-14, Dombroski in view of Han renders obvious the composition of claim 1. Dombroski teaches that the coating comprises legume paste(legume flour and water) with liquid oil and flour. While Dombroski teaches alternating layers as an embodiment, it is only mentioned as a preferred embodiment, and a general coating is taught comprising all wet and dry ingredients(claim 1). As such, it would have been obvious to form the coating by mixing legume paste(legume flour and water) with liquid oil and flour using conventional devices such a high shear mixer. It would have been obvious to adjust the order to adding ingredients and to refine the mixture in order to provide an effective coating that prevents leakage from the foodstuff when heated to 37C for three minutes.
Regarding claim 16 and 18, Dombroski teaches a foodstuff comprising a food coating on its exterior surface, wherein said food coating comprises(table 8)
i)between 50 to 90% legume flour such as peanut flour and water, which combined makes a legume(peanut) paste(para 82 and 93).
ii)between 0.2 and 2% liquid oil such as high oleic sunflower oi, soybean oil, and peanut oil(para 93, table 9)
Dombroksi teaches coating the foodstuff such that the it “contains no leaking” after being heated to a temperature of 37C for three minutes. Therefore, it would have been obvious to maximize the percent of exterior foodstuff, e.g. 100%, in order to prevent leaking from the foodstuff upon heating.
Dombroksi teaches that the coating can contain a variety of flours(para 66) and that the coating can provide a crispy texture(para 87) but is silent on the use of sunflower flour. However, Han teaches that sunflower flour is gluten free, rich in protein, and is mildly sweet and nutty yet neutral enough to use in many baked goods(p.2). It would have been obvious to use sunflower flour in the coating of Dombroksi since it provides a crispy texture and is gluten free, rich in protein, and is mildly sweet and nutty yet neutral enough to use in many baked goods. It would have been obvious to adjust the amount of sunflower flour present depending on the desired level of crispiness.
Dombroksi does not specifically teach that the food coating comprises between 3% and 12% of liquid oil. It is apparent, however, that the instantly claimed between 3% and 12% and that taught by Dumbroski are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Furthermore, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the amounts of liquid oil in the coating in order prevent leakage from the chocolate foodstuff.
Response to Arguments
Applicant's arguments filed 8/17/2026 have been fully considered but they are not persuasive.
The applicant argues that Dombroksi teaches between 0.2 and 2% oil and does not specifically teach that the food coating comprises between 3% and 18% of liquid oil. It is apparent, however, that the instantly claimed between 3% and 18% and that taught by Dumbroski are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Furthermore, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the amounts of liquid oil in the coating in order prevent leakage from the chocolate foodstuff.
The applicant argues that Dombroski is silent on a liquid oil: flour ratio of between 3:2 to 1:3. However, Dombroksi teaches that the purpose of the coating is to prevent leakage when the chocolate foodstuff is heated to a temperature of 37C(para 5). Therefore, it would have been obvious to adjust the ratio of liquid oil to flour in order to prevent leakage from the foodstuff upon heating.
Furthermore, it would have been obvious to adjust the amount of sunflower flour present depending on the desired level of crispiness.
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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