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 .
Restriction/Election
Applicant’s election without traverse of Group I, and a snack product comprising a rice starch base, in the reply filed on 1/28/2026 is acknowledged. Claims 5 and 8-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claims 1-4, 6-7 are 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.
Claims 1 and 3 recite a percentage. It is unclear whether the basis is intended to be weight of the snack product, w/v, or some other meaning.
Claims 2, 4, 6, and 7 depend from independent Claim 1 and are therefore also rejected.
Claim 6 recites the limitation of a vegetable substrate that is “free of…pre-cooked flours”. It is unclear if this is intended to exclude any vegetable substrate exposed to heat via, e.g. drying.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 2, 6, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Barnett (US 2007/0243301 A1)
Regarding Claims 1 and 2, Barnett teaches a snack product [0002] with a density of 60-80 g/L [0034].
The snack comprises 70% rice and rice flour, 15% starch, 10% tomato powder (which is a “real vegetable”) [0053] and less than 2% moisture by weight [0060]. Note that Barnett teaches a tomato powder derived from a whole vegetable [0023], which is a “real vegetable”.
Regarding Claim 6, Barnett teaches a vegetable powder derived from a dried whole vegetable [0023], which is not decorticated or pre-cooked.
Regarding Claim 7, Barnett teaches the use of vegetable powders such as powdered carrot, broccoli, cucumber, celery, green pepper, green beans, and onion [0021].
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.
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.
Claim(s) 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Barnett in view of Benson (US 3539356 A).
Regarding Claims 3 and 4, Barnett teaches that the snack comprises 50-99% of rice flour [0036], 0-30% of secondary ingredients [0036] such as native starch [0010], and 0.5% of an emulsifier [0036]. Barnett does not address the addition of a gluten-containing material such as wheat flour.
Benson teaches the preparation of a snack product (Abstract) comprising rice flour (Column 4, Example 1). Benson teaches that corn, rice, wheat, potatoes, and sweet potatoes are “typical” materials to prepare snack product doughs (Column 1, Lines 64-67). Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to substitute some amount of wheat flour, e.g. 10%, for the rice flour of Barnett. One would have been motivated to make such a modification since Benson teaches that both wheat and rice flour are common components of snack products. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Barnett in view of Ying (“Nutrient-Dense Shelf-Stable Vegetable Powders and Extruded Snacks Made from Carrots and Broccoli”, DOI: 10.3390/foods10102298, September 2021).
Regarding Claims 6 and 7, Barnett teaches the snack product as discussed above in regards to Claim 1 but does not discuss whether the vegetable powder is precooked or decorticated.
Ying teaches that vegetable (such as carrot and broccoli) powders used in snack foods (Abstract) can be made without cooking from whole vegetables (Page 3, Figure 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize a vegetable powder as taught by Ying (such as carrot or broccoli powder) in the process of Barnett. One would have been motivated to make such a modification since Ying teaches that such vegetable powders are suitable in the production of snack products.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
