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 .
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 1-7, 9-11, 13-25 are pending and rejected.
Claim Objections
Claims 1 and 23 are objected to because of the following informalities:
Claim 1 recites the limitation, “anti-oxidation protection” on the last two lines of the claim. In light of Applicant’s specification it is clear that Applicant is intending for the coating to provide oxidation protection or an antioxidation effect, and not protection against anti-oxidation. For example, Applicant’s specification discloses that the coating reduces the degree of oxidation (page 2, lines 27-29) and the coating when applied fully provides maximum anti-oxidation effect (see page 3, lines 7-8). In view of this the claim limitation should be amended to recite, “an anti-oxidation effect” or similar language.
Claim 23 recites, “the shapes of the plurality of hollow portions” (see line 4). It appears that this limitation should recite, “the shape of the plurality of hollow portions.” Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 19 is rejected 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.
Claim 19 refers to “a maximum radial dimension of the fixing end of the bar-like body being less than “a maximum radial dimension of an outwardly extending dimension of the food portion.” It is not clear if the recitation of “a radial dimension” is intending to define a shape of the fixing end of the bar-like body and the food portion to specifically be circular or whether the claim is intending to generically refer to an “outward” dimension from a center of the bar-like body and the food portion. That is, on page 3, lines 23-24 the specification refers to the food product which can be circular, square, triangular or elliptical in cross section and in view of this, the above limitations are not clear as to whether they are intending to refer to a circular or elliptical cross-section or whether they are merely intending to refer to an outwardly extending dimension.
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.
Claims 1-7, 9, 13-15, 17, 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Kasprzak (“Blossom to Step: Homemade Kind Bars, chewy and Nutty”) in view of “Sweet 2 Eat Baking,” (i.e. “Sweet”) USDA National Nutrient Database for Standard Reference, (i.e. “USDA”), “Health Connection WholeFoods”(i.e. “Health” and Veganbaking and in further view of Harrington (“Granola Treat Pops”) and Archibald (US 20040166206) and in further view of van Haren (EP 3597050) and in further view of Eppell (US 2703286), Jensen (US 20130216677), Ziegler (US 20020045004) and McReynolds (US 3784714).
Regarding claims 1, 2, 4, 6, 15 and 24, Kasprzak teaches, a snack food, wherein the snack food comprises a food portion comprising chopped nuts, seeds, grains such as rice or millet, and chopped dried fruit; (see page 10 under “Ingredients”).
Kasprzak also teaches nuts such as almonds and pecans, as recited in claim 2; the grains can include rice and millet (see page 10, under “Ingredients’), as recited in claim 4; and dried fruit such as dried cranberries and dried mango, can be included in the food portion (see page 10, under “Ingredients”), as recited in claim 6.
Kasprzak also teaches that the food portion is bound into a solid body by means of a food binder that includes syrup (see page 10, lines 1-3 at the top of the page, under “Ingredients”: “brown rice syrup” or “glucose syrup”), as recited in claims 1 and 15.
Regarding the at least one type of chopped nuts, the at least one type of chopped grains and the at least one type of chopped dried fruit comprise at least 51% of a total weight of the food portion,” it is noted that Kasprzak teaches that there can be a total of two and one third cups (2 ⅓) of the chopped nuts and seeds; chopped dried fruit and the grains (see page 10, under “Ingredients”). Kazprzak teaches that the additional ingredients include one third cup (⅓) brown rice syrup or glucose syrup and where the two tablespoons of crystallized ginger or unsweetened coconut flakes are optional. Therefore, the total amount of the food ingredients as part of the food portion is two and two third cups total (2 ⅔), of which 2 ⅓ cups is the at least one type of chopped dried fruit, the at least one type of grains and the at least one type of chopped nuts - which equates to 87.5% (2 ⅓ divided by 2 ⅔) of the food portion comprising the chopped nuts, the grains and the chopped dried fruit. In view of the only remaining ingredient being one third (⅓) cup of syrup, it would have been obvious to one having ordinary skill in the art that Kazprzak is teaching at least 51% of a total weight of the food portion comprises the chopped nuts, chopped dried fruit and grains.
If it could have been construed that Kazprzak did not specifically teach the claimed “at least 51% of a total weight of the food portion comprises the at least one type of chopped nuts, the at least one type of chopped grains and the at least one type of chopped dried fruit, then it is noted that the “Sweet 2 Eat Baking,” (i.e. “Sweet”) USDA National Nutrient Database for Standard Reference, (i.e. “USDA”), “Health Connection WholeFoods”(i.e. “Health”) and Veganbaking have been relied on as discussed below:
“Sweet” teaches that 1.5 cups of slivered almonds can weigh about 165g (see page 2, where 1 cup equals 110g and ½ cup equals 55 g), such that Kasprzak’s 1.5 cups of almonds can weigh about 165g.
“USDA” teaches that about 1/3 cup of dried cranberries is about 40 grams, such that Kasprzak’s ½ cup of dried cranberries equates to about 60 g (see page 2 under “Common Measures” at the bottom of the page): 40g/(1/3cup) x 0.5 cup) = 60g;
“Health” teaches that 1 cup of puffed brown rice is about 20g (see page 4: “20g (approx. 1 cup)”), such that Kasprzak’s 1/3 cup of puffed brown rice equates to about 6.66g (20g/cup x 1/3 cup).
Veganbaking teaches that 1.5 tablespoons of brown rice syrup weight about 28 grams (see page 2 under “Sweeteners By Weight”). One tablespoon equates to about 1/16 of a cup (0.0625). Therefore, Kasprzak’s teaching of 1/3 cup of brown rice syrup equates to about 99.5g of brown rice syrup (28g/1.5 Tbsp x (16 Tbsp/1c) x (1/3c)).
Therefore, the total of these ingredients is about 331.16g and the nuts, dried fruit and grain is 69.8% by weight of Kasprzak’s food portion: 231.66/331.16 = 69.9%, which is at least 51% of a total weight as claimed.
Claim 1 differs from Kasprzak in specifically reciting that the snack food is wrapped at one end of a bar-like body.
However, Harrington teaches, a snack food, wherein the snack food comprises a bar-like body (see the stick as shown in the figure on page 4, where “bar-like” has been interpreted to mean any elongated support stick) and a food portion wrapped at one end of the bar-like body (see the food portion on the figure on page 4), which food portion can comprise nuts, grains and dried fruit (see page 5, last line, “pecans” onto page 6, which discloses almonds, craisins and yogurt covered raisins and see page 7, step 3), Harrington also teaches that the food portion is bound into a solid body by means of a food binder (see page 4, steps 2 and 3, which disclose using butter and marshmallows as a binder).
Archibald also teaches a snack food which can comprise dried fruits (see paragraph 15), in combination with grains (see paragraph 62) and nuts (paragraph 39, “walnuts, peanuts, almonds, hazelnuts….”) and where the grains and nuts can be in pieces (see paragraph 58). Archibald teaches that such snack foods can be wrapped around a stick or handle so that the consumer can avoid touching the product without the use of external material such as the torn packaging (See paragraph 122).
Both Harrington and Archibald are thus teaching food portions wrapped at one end of a bar-like body for the art recognized purpose of avoiding having to touch the product with one’s hands. To therefore modify Kasprzak and to wrap the food portion onto one end of the bar-like body would have been obvious to one having ordinary skill in the art, for the purpose of also preventing a consumer from having to directly touch the food portion in order to consume said food portion - and which also appears to be the function of Applicant’s bar-like body.
Claim 1 differs from Kazprzak in specifically reciting that the food portion comprises at least one type of chopped grains.
Van Haren teaches round ball shaped or bar-shaped food products that comprises cereal, dried fruit and nuts (see paragraph 1 and 3) and where the cereal, dried fruit and nuts are all held together using a binder (see at least, paragraph 12 and 33). The food can comprise a mixture of cereal, dried fruit and nuts (see paragraph 16) all of which can be comminuted (i.e. chopped) to have a particle size such as between from 0.04-4mm (see paragraph 25 and 26). Van Haren teaches that such sizes can increase the density of the product while also allowing for reduction in the amount of binder while also providing improved binding of the food components (see paragraph 25, lines 10-13). Van Haren teaches a variety of nuts and seeds, as disclosed at paragraphs 16-17,19; a variety of dried fruits, as disclosed at paragraph 18; and a variety of grains as disclosed at paragraphs 21-22.
It is additionally noted that Archibald teaches a snack food which can comprise dried fruits (see paragraph 15), in combination with grains (see paragraph 62) and nuts (paragraph 39, “walnuts, peanuts, almonds, hazelnuts….”) and where the grains and nuts can be in pieces (see paragraph 58).
To therefore modify Kasprzak and to chop the grains as part of Kasprzak’s snack food, would have been obvious to one having ordinary skill in the art, for the purpose of increasing the density of the product while also allowing for reduction in the amount of binder while also improving the binding of the food components, especially when including additional food components as taught by van Haren.
Claim 1 differs from the above combination in specifically reciting, a coating is applied to a surface of the food portion, a viscosity of the coating is less than 1500 cps and the coating being configured to provide anti-oxidation protection to the food portion.
Eppell teaches foodstuff coatings for foods such as food bars (see column 1, lines 53-57; column 2, lines 50-56) which can have a viscosity of 10 cps (see column 2, lines 57-77) for the purpose of providing an edible protective coating to the food (see column 2, lines 50-51). Because Eppell teaches that the coatings are edible protective coatings that can impart strength, and resistance to grease penetration or exudation (see column 1, lines 30-43) and prolongs the keeping qualities of the coated product (see column 4, lines 33-35), it would have been obvious to one having ordinary skill in the art that Eppell’s teachings would have encompassed providing some degree of protecting against oxidation. Jensen teaches coatings for snack bars (paragraph 12 and 74) which coating can have a viscosity such as 1-20 cps (see paragraph 63) for maintaining the processability of the coating during industrial applications (see paragraph 18).
To therefore modify the combination and provide a coating that has a viscosity of 10cps or 1-20cps as taught by Eppel or Jensen would have been obvious to one having ordinary skill in the art, based on conventional viscosities for applying edible, protective coatings on food bars which can extend the shelf life of the snack food, and for maintaining the requisite processability of the coating during industrial applications of the coating on to food bars.
If it could have been construed that Eppell and Jensen’s disclosure did not teach that the coating is configured to provide an anti-oxidation effect, then it is further noted that Ziegler (US 20020045004) teaches coating compositions for foods for the purpose of protecting the product from degradation by moisture and/or oxidation (see paragraph 3 and 28) and which coating can have a viscosity of less than 150cps (see paragraph 30).
McReynolds (US 3784714) further teaches that including calcium stearate to a coating composition used for foods, can be useful for improving moisture and oxygen protection from the coating (see the abstract).
To therefore modify the combination and to provide a protective coating useful for extending the keeping qualities and for providing protection from oxidation such as by also including calcium stearate as part of the coating and in view of Ziegler’s teachings, would have been obvious to one having ordinary skill in the art, for the purpose of extending the keeping qualities of the snack food, as already suggested by Eppell.
Regarding claim 3, which recites “a particle size of the chopped nuts is 1 mm to 5 mm,”; claim 5, which recites, “a particle size of the chopped grains is 1 to 3 mm” and claim 7, which recites, “a particle size of the chopped dried fruit is not greater than 5 mm,” the claim differs from Kasprzak in this regard.
However, van Haren teaches particle sizes for the food component, which can be grains, nuts and dried fruit (see paragraph 26 and paragraph 22, “grains”) can in total have an average diameter of 2mm, which falls within the range of claims 3, 5 and 7. Van Haren also teaches a range of particle sizes such as 0.04-4mm or in any mixed version thereof (see paragraph 25, lines 12-16) for the purpose of increasing density, reducing the amount of binder and providing improved binding. To therefore modify Kasprzak and use particle sizes for chopped nuts, chopped grains and chopped dried fruit, such as 2mm would have been obvious to one having ordinary skill in the art for increasing the density of the product, reducing the amount of binder needed and for improving the binding of the various components that can be included as part of the snack.
Claim 9 differs in reciting the coating is prepared from chocolate or yogurt. Claim 13 differs in reciting the coating is fully or partially wrapped on the food item. Claim 14 differs in reciting that the coating is partially wrapped on the food portion and the partially wrapped coating comprises a coating on only half of the food portion or comprise a strip-shaped coating wrapped on the food portion at intervals.
Archibald teaches that the food product can also have a coating drizzled onto the top layer, including chocolate coatings, icing and confectionary fat coatings (see paragraph 83). Archibald further teaches either complete enrobing the food product in a coating, or partially enrobing the food product in a coating (see paragraph 84), thus teaching a fully or partially wrapped coating on the food portion, as recited in claim 13 and where the partial enrobing also includes drizzling (see paragraph 83) which would obviously have also suggested and read on a “strip-shaped” coating at intervals, as recited in claim 14. Regarding claim 9, Archibald teaches a coating that can comprise chocolate (see paragraph 84).
To therefore modify Kasprzak and to provide the coating as also comprising chocolate and as a strip-shaped coating or a full or partial wrapping of the food portion, would have been obvious to one having ordinary skill in the art, for the purpose of providing added flavor and taste appeal to the food portion while also providing some degree of oxidation protection via the coating.
Regarding claim 17, it would have been obvious to one having ordinary skill in the art that Kasprzak’s teachings of cutting a square mass into bars suggests a square cross section. If it could have been construed that this was not the case, then it is further noted that a cross-section of Harrington’s food portion would have been circular (see the figure on page 4, which shows a spherical shape). Since both Kasprzak and Harrington teach food portions comprising nuts, dried fruit and grains, to modify Kasprzak and to use a circular cross-sectional shape, would have been obvious to one having ordinary skill in the art, as an obvious change in shape that would have been a matter of engineering and/or design.
Regarding claim 25, Kasprzak teaches that the snack can comprise seeds, but claim 25 differs from Kasprzak in specifically reciting that the seeds include sesame seeds.
However, van Haren teaches food bars that can also comprise nuts and seeds and fruit (see paragraph 17-19) and where the seeds can include sesame seeds (see paragraph 19). Since Kasprzak already teaches including seeds, to modify the combination and to include sesame seeds would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, such as for achieving a particular flavor and nutritional profile to the snack.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kasprzak as the primary reference, and in further view of Qvyjt (US 20100166921) and Medvedev (UA 135431 U).
Regarding claims 10 and 11, it is noted that limitation of “prepared by mixing composite white chocolate and strawberry powder” and “prepared by mixing composite white chocolate, yogurt powder and citric acid” are seen to be product by process limitations. Since the claims are directed to a product and not the method of making, the structure implied by the claims are mixture comprising white chocolate and strawberry powder and a mixture comprising white chocolate, yogurt powder and citric acid.
Regarding claims 10-11, in view of Archibald, the combination teaches coatings can be made from, “any of the foods noted above” with preferred coatings including chocolate coatings and confectionary fat coatings as well as dried or powdered ingredients and powdered fruit coatings (see paragraph 83). By reciting “any of the foods noted above, Archibald appears to suggest foods such as chocolate and white chocolate chips and yogurt chips including strawberry yogurt chips as disclosed at paragraph 39). By disclosing powdered fruit flavorings, and where one of the types of fruits can be strawberries (see paragraph 39 and 83), Archibald is teaching and suggesting a powdered or particulate strawberry topping as part of the coating.
Regarding claim 10, if it could have been construed that Archibald was not specific in this regard then claim 10 differs in specifically reciting the coating comprises white chocolate and strawberry powder; and regarding claim 11, the claim differs in specifically reciting the coating comprises white chocolate, yogurt powder and citric acid.
It is noted that Medvedev teaches coatings for fruit and nut bars, that can include white chocolate and natural flavor yogurt (see example 1). Medvedev also teaches that it has been known to use citric acid and strawberry as a food preservative and flavoring (see page 2 of the machine translation, last paragraph), thus encompassing the components as recited in claims 10 and 11. Qvyji teaches coatings for food bars (see the abstract) which can comprise strawberry powder, yogurt powder (see the abstract and paragraph 34) and citric acid (see paragraph 58). Qvyjt also teaches chocolate as part of the coating (see paragraph 52). Therefore, the prior art teaches that it has been conventional to provide a coating to a fruit, nut and grain bar, which coating can be any of a variety of flavors, including white chocolate, and yogurt and strawberry and where the coatings can also provide an anti-oxidation effect.
To therefore modify the combination and to use a mixture of these components as taught by Medvedev and Qvyji as part of the coating would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, based on the desired flavor to be imparted to the coating, since all of the above recited ingredients have been known in the art to be mixed as a composite to provide a particular flavor to a coating applied to fruit, nut and grain bars.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Kasprzak as the primary reference, and in further view of Newberry (US 20130034635) and Farris (US 5489444).
Regarding claim 16, in view of Harrington teaching a spherical shape to the food portion, the combination suggests a circular or elliptical cross section to the food portion. In view of this, it would have been obvious to one having ordinary skill in the art that the reference is teaching a radial dimension of the food portion.
Claim 16 differs from the combination as applied to claim 1 above, in specifically reciting that a radial dimension of the food portion is 40 mm to 45 mm.
However, Newberry teaches dimensions for foods on a stick, such as a diameter of about 3 inches (which equates to about 76mm) or about 38mm in a radial dimension (see paragraph 16). This is seen to be close to the claimed radial dimension of 40-45mm. Farris also teaches a food product that is supported on a stick, which can have a length of between 3.75-4.75 inches (i.e. 95-120mm)(column 4, lines 38-42) and which shape can be like an oval (see figure 1) and therefore suggesting circular or elliptical cross section and a radial dimension of about 47mm (i.e. the length 95mm/2). The art thus teaches that a radial dimension encompassing the claimed radial dimension has been conventionally used for food portions positioned on a support stick and therefore it would have been obvious to one having ordinary skill in the art that the particular size of the snack food would have been capable of being routinely varied based on factors such as preference and stability on the stick, which would have been an obvious matter of engineering and/or design to one having ordinary skill in the art. Furthermore, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed difference cannot be seen to be patentably distinct from the prior art device (see MPEP 2144.04(IV)(A).
Claims 18 and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1, above which relies on Harrington as the primary reference, and in further view of Paparo (US 20050136158 cited on IDS) or Skokowski (US 1929906).
Regarding claim 18, it would have been obvious to one having ordinary skill in the art that Harrington’s bar-like body has a fixing end connected to the food portion and an other end is configured to be a grasping end.
Claim 18 differs from the combination as applied to claim 1 in specifically reciting, wherein the bar-like body is of a flat bar structure.
Regarding claims 21 and 22, the claims differ from the combination as applied to claim 1 in specifically reciting that the fixing end has a hollow portion, as recited in claim 21 and wherein the hollow portion of claim 21 is circular, as recited in claim 22.
Claim 23 differs in specifically reciting at the fixing end comprises a plurality of hollow portions, each hollow portion of the plurality of hollow portions including a shape and the shapes of the plurality of hollow portions are combined into a specific pattern.
However, Paparo also teaches a stick (see figure 2D and paragraph 10), which stick has “a hollow” circular portion, and has a plurality of hollow portions in a pattern (see figure 2D), which hollow portions, which are useful for affixing the food product to the stick (see paragraph 25 and 52). Paparo teaches that the support can be like a tongue depressor, thus suggesting a flat bar structure with a fixing end and a grasping end. Skokowski teaches a flat bar structure having one end configured to be a fixing end connected to the food portion and the other end a grasping end (see figure 1), where the fixing end has “a hollow portion” (see figure 5, item 9) that is circular, as recited in claims 21-22. Skokowski also teaches wherein at least two hollow portions are provided (see figure 2 and 3, item 9) and shapes of the plurality of hollow portions are combined into a specific pattern (see figures 2 and 3). Skokowski teaches that the holes help to anchor the food to the support stick (see page 1, lines 88-96).
To modify the combination and use another conventional type of bar-like body as taught by Paparo or Skokowski, would have been obvious to one having ordinary skill in the art, for the purpose of improving the anchoring of the snack food onto the stick.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18 and 21-23, above which relies on Kasprzak as the primary reference, and in further view of Block (US 20150150278) or Jones (US 2950200).
Claim 19 differs from the combination as applied to claim 18 in specifically reciting wherein a thickness direction of the bar-like body is in a same direction as a thickness direction of the food portion, and a maximum radial dimension of the fixing end of the bar-like body is less than a maximum radial dimension of an outwardly extending dimension of the food portion.
Regarding a maximum radial dimension of the fixing end of the bar like body being less than a maximum radial dimension of an outwardly extending dimension of the food portion, the combination as applied to claims 18 and 21-23 teaches that the bar-like body has a radial dimension such as that which has been defined by the circular openings as taught by Skokowski and Paparo, a maximum radial dimension of the bar-like body would obviously have been smaller than that of the food since the food portion surrounds the fixing end of the bar-like body.
Regarding a thickness direction of the bar-like body is in a same direction as a thickness direction of the food portion, it is noted that Block teaches a thickness of the food portion (see figure 3, item 20) is in a same direction as a thickness of the bar-like body (see figure 3, item 12). Block also teaches a maximum radial dimension of the fixing end would have been smaller than a maximum radial dimension of an outwardly extending dimension of the food portion (see figure 7a).
Jones also teaches “a thickness direction” of the bar like body (see figure 1, item 18) would have been in a same direction as “a thickness” of some portion of the food portion 10.
To therefore modify the combination and provide a thickness direction of the bar like body to be in a same direction as a thickness direction of the food portion, and where a maximum radial dimension of the fixing end is smaller than a maximum radial dimension of an outwardly extending dimension of the food portion would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on conventional dimensions and aesthetic configurations for food portions on sticks.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18, above which relies on Kasprzak as the primary reference, and in further view of Shefet (US 20090040746) and Hofmeyr (US 20100151091).
Claim 20 differs from the combination, as applied to claim 18 in specifically reciting wherein the grasping end is triangular.
It is noted however, that Shefet teaches novelty stick holds for foods on sticks (see the abstract), which grasping end can have any shape including triangular (see paragraph 48 and figure 7). As shown in figure 15E, the grasping end is also triangular. Hofmeyr (US 20100151091) also teaches that the grasping end of a support stick on which a food portion is affixed can take various shapes for marketing purposes and for ergonomic purposes (i.e. for handling of the stick) (see figures 2-2d and paragraph 41), which ergonomic purposes also appears to be the function of the claimed triangular grasping end.
To modify the combination and use other shapes for the grasping end would therefore have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design based on other shapes commonly used for a grasping end of a stick used to support food thereon.
Response to Arguments
On pages 9-10 of the response, regarding Harrington, Applicant urges that the present specification refers to a granola bar that is directed to a nutritional, health-focused product using a binder that can bind nuts, grains and fruits while maintaining structural integrity, firmness and shelf stability and providing more nutritional value, and which is therefore in contrast to marshmallow-based binders that provide soft, elastic and an aerated confectionary texture with no nutritional value, such that one of ordinary skill in the art would have been dissuaded from applying a marshmallow-based binder to a granola-bar formulation. Applicant urges that marshmallow-based binders do not operate within the field of health-oriented granola or nutrition bars and is therefore non-analogous art.
These arguments are not persuasive to overcome the rejection as presented in this Office Action, which does not rely on Harrington to teach the binder. It is also noted that Applicant’s arguments are not commensurate in scope with the claims, because the claims recite “the food binder including honey or syrup” without providing any additional specificity. Since both honey and marshmallow based binders include sugar, for example, it would have been obvious to one having ordinary skill in the art that both types of binders would have provided some degree of nutritional value. Furthermore, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Harrington is seen to be in the field of the inventor’s endeavor or at least reasonably pertinent to the problem with which the inventor was concerned because the reference is teaching a snack food with nuts, grains and fruit which is bound together with a binder and provided on a stick for ease of consumption (see page 5, lines 25-27). Furthermore, Applicant’s specification does not discuss the food as being in the field of “health-oriented granola” but rather refers to the field of “snack foods” which are provided on a stick for interestingness of eating and also achieves health and hygiene (see page 1, lines 20-24) and also providing “rich nutrition” (page 4, line 15) and where nutrient-dense components predominate the formula. In this regard, Harrington teaches providing grains, nuts and fruit as part of the snack food such that the reference’s disclosure of marshmallow as a binder is not seen to outweigh the snack food also comprising a similar type of granola or nutrition bar secured to a stick for ease of consumption.
On page 10 of the response, regarding Archibald, Applicant urges that the honey binder disclosed in the reference functions adequately only in a loose, whole-piece structure and would not consider it suitable for a more compact, chopped-particle bar.
This argument is not seen to be sufficient to overcome the rejection as presented in this Office Action, necessitated by the amendment to the claims. It is further noted however, that there is not seen to be sufficient evidence that a honey binder would not have been suitable for a food product comprising particulates. It is additionally noted that the claims do not provide any specificity with regard to a degree of compactness.
On page 10 of the response, regarding Archibald, Applicant urges that Archibald describes a conventional bar intended to be consumed in a horizontal orientation and not supported by a stick.
This argument is not persuasive because at paragraph 122, Archibald teaches that the food bar can be formed around one or more sticks or handles, so that the consumer can avoid touching the product.
Further on pages 10-11 of the response, Applicant urges that the claimed invention’s wrapping of the food portion at one end of a bar-like body introduces gravitational and shear forces not encountered in the cited reference and the binder must therefore provide sufficient integrity to prevent downward slippage, sagging or separation when the bar is held vertically, such that a binder suitable for loose aggregation of a whole piece bar such as that of Archibald would not be considered adequate for a chopped, densely packed bar.
These arguments are not persuasive, because Archibald teaches providing the snack bar on a stick at paragraph 122 and this is similar to Applicant. Additionally, in further view of Harrington, the prior art teaches and suggests that one can support a snack food that comprises fruit, grains and nuts on a bar like body and the prior art further teaches a binder that can hold a combination of chopped nuts and fruits, and grains in a “compact configuration” as taught by Kasprzak, such that it would have been obvious to one having ordinary skill in the art to have similarly provided Kasprzak’s food bar on a stick for the art recognized purpose of making it easier and more hygienic to consume. Furthermore, it is noted that all the claim requires is a binder that includes honey or syrup, and the prior art teaches such a binder. Regarding how the snack food can be held for consumption, this is an intended use that the prior art would have been capable of.
On page 11 of the response, Applicant urges that in a chopped, compacted bar mounted on a stick, the binder must infiltrate small interstitial spaces, distribute load more evenly and maintain integrity under vertical gravitational forces such that a person of ordinary skill would not be motivated to apply the honey-binder system of the references to the present invention because doing so would not resolve and may exacerbate the stability issues present in a vertically oriented, compacted bar on a stick.
These arguments are not persuasive because Applicant’s arguments do not provide sufficient evidence to support these arguments and because the prior art teaches the claimed type of binder and where the binder is used for binding the food portion into a solid body.
On pages 11-12 of the response, Applicant urges that the prior art does not teach that the at least one type of chopped nuts, the at least one type of chopped grains and the at least one type of chopped dried fruit comprise at least 51% of a total weight of the food portion” and “a coating is applied toa surface of the food portion, a viscosity of the coating being less than 1500cps and the coating being configured to provide anti-oxidation protection to the food portion.”
These arguments are not persuasive in view of the new grounds of rejection necessitated by the amendment to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Benesh (US 20220338525) teaches food bars that can also comprise nuts and seeds and fruit (see paragraph 134 and 135) and where the seeds can include sesame seeds (see paragraph 74).
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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/VIREN A THAKUR/Primary Examiner, Art Unit 1792