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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-11 in the reply filed on December 1, 2025 is acknowledged.
Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on December 1, 2025.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-15
Withdrawn claims:
12-15
Claims currently under consideration:
1-11
Currently rejected claims:
1-11
Allowed claims:
None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code on page 7. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
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 11 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 11 recites “preferably wherein said food product is a bakery or patisserie product, more preferably wherein said bakery or patisserie product is a cake, even more preferably a cream cake or a sponge-type cake.” This limitation renders the claim indefinite because it is unclear whether the recitation following “preferably” are required by the claim or merely exemplary. For the purposes of examination, it is presumed that everything following “preferably” is not presently required by the claimed invention.
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 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024).
Regarding claim 1, Kaplan teaches a sweetener (Abstract) comprising:
Corn dextrin (i.e., a modified starch) in an amount of at least 15% by weight ([0031]), which encompasses the claimed range of “between 20.0 and 80.0%”;
Oligofructose (i.e., a fructan) in an amount of at least about 30% by weight ([0031]), which overlaps with the claimed range of “between 20.0 and 70.0%”;
Protein in an amount of at least 1.5% by weight (which overlaps with the claimed range of “between 0.50% and 10.0%”, where the protein is selected from potato (i.e., a tuber), bean (i.e., a legume), or soy (i.e., an oilseed) protein ([0027]-[0028]);
Wheat flour (i.e., a starch product) in an amount of less than 6% by weight ([0090]), which overlaps with the claimed range of “between 0.50 and 20.0%”.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The preamble recitation “a powdered sugar replacer” is interpreted as the intended use of the claimed invention. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). Because the body of the claim fully sets forth the composition of the claim, the preamble is not considered a limitation.
Regarding claim 11, Kaplan teaches the powder sugar replacer according to claim 1. Kaplan also teaches that the sweetener may be used in a confectionary product (i.e., a food product; [0005]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024) in view of Boxe (Blaszczak-Boxe, Agata. “What does ‘natrual’ really mean on food labels?”, CBS News, published June 16, 2014 [accessed online February 24, 2026]).
Regarding claim 2, Kaplan does not teach wherein the sugar replacer comprises at most 0.010% (w/w) of artificial ingredients and/or synthetic chemicals.
However, in the same field of endeavor, Boxe teaches that the FDA considers a product natural if there are no artificial or synthetic ingredients (p. 1, ¶ 3), and that many consumers believe that “natural” products are better or healthier than others (p. 1, ¶ 1).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Kaplan by not including any artificial or synthetic ingredients (i.e., 0%, which falls within the claimed range of “at most 0.010% w/w”) as taught by Boxe. One of ordinary skill would have been motivated to make this modification because Boxe teaches that consumers believe that natural products are better and healthier than others (p. 1, ¶ 1). Thus, one of ordinary skill would have excluded artificial or synthetic ingredients so that the powder sugar replacer would be more appealing to consumers.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024) in view of Soylent (“Why Soy Protein”, Soylent, version from August 20, 2019 [accessed online February 25, 2026]).
Regarding claim 3, Kaplan does not teach wherein the one of more protein product(s) are gel-forming proteins and/or have a protein content of at least 30.0% (w/w).
However, in the same field of endeavor, Soylent teaches of a protein product using soy protein isolate that comprises 90-95% protein (p. 2, ¶ 3), which falls within the claimed range of “at least 30.0% (w/w)”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the protein portion of Kaplan to use soy protein isolate taught by Soylent. One of ordinary skill would be motivated to make this motivation because Soylent teaches that soy protein isolate has excellent bioavailability and has a smooth texture a taste, resulting in optimal flavor profile (p. 3, ¶ 3-4).
Claims 4-7 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024) in view of Kinoshita (WO2019017312A1)(IDS Reference filed 01/08/2024).
Regarding claims 4 and 5, Kaplan teaches the powder sugar replacer of claim 1 as described above.
Kaplan does not teach including the powder sugar replacer of claim 1 in a cake mix or cake premix (claim 4) or a dough or better product (claim 5).
However, in the same field of endeavor, Kinoshita teaches of bakery foods being developed by replacing sugar with sweeteners other than sugar ([0004]) and that bakery foods include cake (i.e., cake mix; claim 4) and dough (claim 5) ([0011]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Kaplan by including the sweetener in bakery foods as taught by Kinoshita. One of ordinary skill would have been motivated to make this modification because Kinoshita teaches that bakery foods have a strong demand for reduced sugar content ([0003]) and Kaplan teaches of a low-calorie nutritious sweetener (Abstract).
Regarding claims 6 and 7, Kaplan does not teach wherein the dough or batter product further comprises flour, egg or egg products, and optionally one or more of a leavening agent, fat, and a sweetening agent.
Kinoshita teaches that in an embodiment where the baking product is a cake, the batter comprises flour and eggs ([0039]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Kaplan with the addition of the ingredients taught by Kinoshita to arrive at the claimed bakery product. One of ordinary skill would have been motivated to make this modification because Kinoshita teaches that bakery foods have a strong demand for reduced sugar content ([0003]) and Kaplan teaches of a low-calorie nutritious sweetener (Abstract).
Regarding claim 10, Kaplan does not teach that the dough or batter product does not comprise a sweetening agent in addition to the powdered sugar replacement.
However, in the same field of endeavor, Kinoshita teaches that in recipes, the entire amount of sugar used was replaced with a sugar substitute ([0058]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the invention of Kaplan to make a batter product according the Kinoshita that comprises only the sugar substitute of Kaplan and no other sweetener such as sugar. One of ordinary skill would have been motivated to make this modification because Kaplan teaches that low calorie sugar substitutes prolong satiety sensation ([0004]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024) in view of Kinoshita (WO2019017312A1) (IDS Reference filed 01/08/2024) as applied to claim 7 above, and further in view of Van Haesendonck (US 20170280733 A1).
Regarding claim 8, Kaplan teaches:
Corn dextrin (i.e., a modified starch) in an amount of at least 15% by weight ([0031]), which overlaps with the claimed range of “3.0 and 22.0% (w/w)”;
Protein in an amount of at least 1.5% by weight (which overlaps with the claimed range of “between 0.20% and 13.9%”, where the protein is selected from potato (i.e., a tuber), bean (i.e., a legume), or soy (i.e., an oilseed) protein ([0027]-[0028]);
Wheat flour (i.e., a starch product) in an amount of less than 6% by weight ([0090]), which overlaps with the claimed range of “between 0.50 and 20.0%”.
Kaplan does not teach wherein the cake batter is a cream type cake batter comprising between 15.0 and 30.0% (w/w) of flour, between 5.0 and 30.0% (w/w) of fat, between 7.0 and 25.0% (w/w) of eggs or egg products, between 3.0 and 18.0% (w/w) of one or more fructan(s), optionally one or more enzyme(s) and/or one or more reducing agent(s), or water up to 100.0% (w/w).
Regarding wherein the cake batter is a cream type cake batter comprising between 15.0 and 30.0% (w/w) of flour, between 5.0 and 30.0% (w/w) of fat, between 7.0 and 25.0% (w/w) of eggs or egg products, and water up to 100.0% (w/w), Van Haesendonck teaches a cream cake recipe comprising ([0139], Table 8):
17 w% flour, which falls within the claimed range of “between 15.0 and 30.0% (w/w)”;
16 w% rapeseed oil (i.e., a fat), which falls within the claimed range of “between 5.0 and 30.0% (w/w)”;
18.8 w% pasteurized whole eggs, which falls within the claimed range of “between 7.0 and 25.0% (w/w)”;
12 w% water (which one of ordinary skill would recognize as being added to bring the composition to 100% w/w).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kaplan to include the ingredients of Van Haesendonck to arrive at a cream cake product. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding the composition comprising between 3.0 and 18.0% (w/w) of one or more fructan(s), Kinoshita teaches a cake batter comprising between 0.1% and 10% by weight of inulin (i.e., a fructan; [0008]), which overlaps with the claimed range of “3.0 and 18.0% w/w”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kaplan with the use of inulin (i.e., a fructan) as taught by Kinoshita. he claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kaplan (US 2019/0335785 A1)(IDS Reference filed 01/08/2024) in view of Kinoshita (WO2019017312A1) (IDS Reference filed 01/08/2024) as applied to claim 7 above, and further in view of Seasoned Advice (“Why does a cake recipe call for 2 tbsp of water?”, post by User28762 on Seasoned Advice, last edited Jun 16, 2020 [accessed online February 9, 2026] https://cooking.stackexchange.com/questions/54489/why-does-a-cake-recipe-call-for-2-tbsp-of-hot-water).
Regarding claim 9, Kaplan teaches:
Corn dextrin (i.e., a modified starch) in an amount of at least 15% by weight ([0031]), which overlaps with the claimed range of “3.0 and 22.0% (w/w)”;
Protein in an amount of at least 1.5% by weight (which overlaps with the claimed range of “between 0.20% and 13.9%”, where the protein is selected from potato (i.e., a tuber), bean (i.e., a legume), or soy (i.e., an oilseed) protein ([0027]-[0028]);
Wheat flour (i.e., a starch product) in an amount of less than 6% by weight ([0090]), which overlaps with the claimed range of “between 0.50 and 20.0%”.
Kaplan does not teach the product being a sponge-type cake batter or comprising between 7.0 and 30.0% flour, between 10.0 and 45.0% of eggs or egg products, between 3.0 and 18.0% of one or more fructans, or water up to 100%.
However, in the same field of endeavor, Kinoshita teaches that the sponge cake batter comprises:
22 weight% cake flour, which falls within the claimed range of “between 7.0 and 30.0% (w/w); and
16 weight% egg yolk and 24 weight% egg white (a total of 40% egg products), which falls within the claimed range of “between 10.0 and 45.0% (w/w)”.
Between 0.1% and 10% by weight of inulin (i.e., a fructan; [0008]), which overlaps with the claimed range of “3.0 and 18.0% w/w”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kaplan with the addition of the ingredients taught by Kinoshita to arrive at a sponge cake batter. One of ordinary skill would have been motivated to make this modification because Kinoshita teaches that bakery foods have a strong demand for reduced sugar content ([0003]) and Kaplan teaches of a low-calorie nutritious sweetener (Abstract).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the composition comprising water up to 100%, Seasoned Advice discloses a sponge cake recipe that calls for water, and that cake batter is too thick when the water is omitted (p. 2, Answer).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kaplan and Kinoshita with the addition of water. One of ordinary skill would have been motivated to make this modification because Seasoned Advice discloses that omitting the lead to a cake that wasn’t airy enough (p. 2, Answer). Although Seasoned Advice does not explicitly state that water is added to 100% of the batter, one of ordinary skill would recognize that adding water until the batter reaches the desired consistency would be equivalent to adding water to 100%.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793