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 .
The amendment filed 4/2/2026 has been entered. Claims 1-15 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Stanton (US 2011/0183059, July 2011) in view of Reuter-Sandquist (“Open Resources for Nursing (Open RN)”, Chippewa Valley Technical College, https://www.ncbi.nlm.nih.gov/books/NBK599380/table/ch6basicnursing.T.water_content_in_foods/, 2022)
Regarding Claim 1, Stanton teaches a refrigerated batter [0031] comprising 10-40% moisture [0014] and having a shelf life of greater than 112 days [0094], which overlaps the claimed range. The batter comprises 10-50% of humectants such as fruit purees, glycerine, and sugar [0042]. Note that the amount of humectant provided by Stanton is sufficient to provide for the fruit puree of part a., the glycerin of part e., and the sugar of part c. The batter additionally comprises 10-60% [0038] of farinaceous materials such as flour, which encompasses the claimed range. The batter additionally comprises 5-30% fat [0013], which encompasses the claimed range, and 0-3% leavening [0014], which encompasses the claimed range.
Note that the sugar of Stanton taught at [0042] refers to added sugar. Stanton does not specifically address the total content of the sugar. However, since Stanton teaches a batter which encompasses and overlaps the claimed ingredients and composition, the product of Stanton is interpreted to have a total sugar content as claimed.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I. Additionally, note that it would have been obvious to have selected amounts of fruit puree, glycerin, and sugar that lie within the claimed ranges (e.g. 25% fruit puree, 20% sugar, and 5% glycerin), since Stanton teaches that the claimed amounts and ingredients are appropriate for addition to a batter.
Stanton additionally teaches that percentages are weight percentages [0013].
Stanton does not specifically address the amount of moisture in the fruit puree.
Reuter-Sandquist teaches that the amount of water in fruits such as bananas and apples ranges from 70-89% (Table 6.2).
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 fruit puree in the composition of Stanton with the moisture content as claimed. One would have been motivated to make such a modification since Reuter-Sandquist teaches that such moisture content is typical for fruits.
Regarding Claim 2, Stanton teaches the use of fruit purees but does not specifically discuss the use of banana or apple puree. However, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize banana or apple puree as the fruit puree of Stanton. One would have been motivated to make such a modification since banana and apple are fruits commonly incorporated into batters intended for baking.
Regarding Claim 3, Stanton teaches a packaged, refrigerated batter comprising fat as discussed above in regard to Claim 1 but does not specifically discuss the fat having a Mettler Dropping Point of 100-140 °F.
However, given that the instant Specification [0028] teaches fats such as palm kernel oil, soybean oil, lard, algae oil, butter, canola oil, peanut oil, and coconut oil as appropriate fats in either solid (e.g., shortening) or liquid form, and given that Stanton teaches the use of palm kernel oil, coconut oil, butter, peanut oil, lard, soybean oil, and canola oil in either solid (e.g. shortening) or liquid form, the fat of Stanton is interpreted to have the Mettler Dropping Point at 100-140 °F as claimed.
Regarding Claim 4, Stanton teaches the addition of 0-8% starch (Page 5, Table 2), which encompasses the claimed range.
Regarding Claim 5, Stanton teaches that the starch may be pre-gelatinized (Page 5, Table 2).
Regarding Claim 6, Stanton teaches that the batter comprises 0-15% eggs [0056], which encompasses the claimed range.
Regarding Claim 7, Stanton teaches that the batter comprises 10-40% moisture [0014], which encompasses the claimed range.
The batter comprises 10-50% of humectants such as fruit purees, glycerine, and sugar [0042]. Note that the amount of humectant provided by Stanton is sufficient to provide for the fruit puree of part a., the glycerin of part e., and the sugar of part c, e.g. 22% fruit puree, 3% glycerin, and 25% sugar.
Note that in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I. Additionally, note that it would have been obvious to have selected amounts of fruit puree, glycerin, and sugar that lie within the claimed ranges (e.g. 25% fruit puree, 20% sugar, and 5% glycerin), since Stanton teaches that the claimed amounts and ingredients are appropriate for addition to a batter.
The batter additionally comprises 10-60% [0038] of farinaceous materials such as flour, which encompasses the claimed range of part b. The batter additionally comprises 5-30% fat [0013], which encompasses the claimed range of part d., and 0-3% leavening [0014], which encompasses the claimed range of part f. Stanton teaches that the batter comprises 0-15% eggs [0056], which encompasses the claimed range of part g. Stanton teaches the addition of other ingredients, such as preservatives at 0-1% [0044], which lies within the claimed ranges of part h.
Note that where Stanton teaches the claimed ingredients in the claimed ranges, it would have been obvious to have provided a composition consisting of the claimed ingredients. Note that Stanton requires the addition of 0.5-2% gelatin, which lies within the claimed range of “other ingredients”.
Regarding Claim 8, Stanton teaches the addition of inclusions [0058] which are particulates, such as nuts, chocolate, or flavored bits.
Regarding Claims 9 and 10, Stanton teaches that the batter may be packaged in a chub [0063].
Regarding Claims 11-12, Stanton teaches a method for preparing a batter which is packaged in a chub, which is a “squeezable package” [0061]. The batter is prepared and then placed in a chub [0067]. Note that it would have been obvious to have utilized a plastic chub according to Claim 12, since chubs are known in the art to commonly be formed from plastic.
Stanton teaches that refrigerated batter [0031] may comprise 10-40% moisture [0014] and having a shelf life of greater than 112 days [0094], which encompasses the claimed moisture and overlaps the claimed shelf life.
The batter comprises 10-50% of humectants such as fruit purees, glycerine, and sugar [0042]. Note that the amount of humectant provided by Stanton is sufficient to provide for the fruit puree of part a., the glycerin of part e., and the sugar of part c.
Note that in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I. Additionally, note that it would have been obvious to have selected amounts of fruit puree, glycerin, and sugar that lie within the claimed ranges (e.g. 25% fruit puree, 20% sugar, and 5% glycerin), since Stanton teaches that the claimed amounts and ingredients are appropriate for addition to a batter.
Note that the sugar of Stanton taught at [0042] refers to added sugar. Stanton does not specifically address the total content of the sugar. However, since Stanton teaches a batter which encompasses and overlaps the claimed ingredients and composition, the product of Stanton is interpreted to have a total sugar content as claimed.
The batter additionally comprises 10-60% [0038] of farinaceous materials such as flour, which encompasses the claimed range or part b. The batter additionally comprises 5-30% fat [0013], which encompasses the claimed range of part d, and 0-3% leavening [0014], which encompasses the claimed range of part f.
Regarding Claims 13 and 14, the batter is prepared and then placed in a chub [0067]. Stanton does not specifically address a period of time between forming the batter and placing it into the package. However, absent evidence to the contrary, the batter of Stanton is interpreted to be immediately placed into the package after forming. The batter is thus packaged within a time period which lies within the claimed ranges of Claims 13 and 14.
Claims 1 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Marshall (https://www.yahoo.com/lifestyle/tried-pillsburys-banana-bread-batter-103000790.html, July 2023), taken with evidentiary references of Walmart.com (https://www.walmart.com/ip/Pillsbury-Banana-Bread-Batter-Cut-Squeeze-Package-30-oz/2135380542) and Reuter-Sandquist, in view of Stanton (US 2011/0183059, July 2011).
Regarding Claims 1 and 15, Marshall teaches a packaged composition comprising a batter. The batter comprises oil (palm oil and canola oil), glycerin, flour, banana puree, sugar, and leaveners (Page 2, “What is Pillsbury Banana Bread Batter”?). The composition is refrigerated and has a shelf life of 124 days (see evidentiary reference of Walmart.com, “Specs”), which is interpreted to meet the limitation of a shelf life of “about” 120 days at 40 °F. Additionally, note that the amount of water in fruits such as bananas and apples ranges from 70-89% (Reuter-Sandquist, Table 6.2). The banana puree of Marshall is therefore interpreted to have 70-89% moisture, which lies within the claimed range.
Marshall does not specifically address the moisture content, the amount of fruit puree, flour, added sugar, total sugar, fat, glycerin, or leavening base.
Stanton teaches a refrigerated batter [0031] comprising 10-40% moisture [0014] and having a shelf life of greater than 112 days [0094], which overlaps the claimed range. The batter comprises 10-50% of humectants such as fruit purees, glycerine, and sugar [0042]. Note that the amount of humectant provided by Stanton is sufficient to provide for the fruit puree of part a., the glycerin of part e., and the sugar of part c. The batter additionally comprises 10-60% [0038] of farinaceous materials such as flour, which encompasses the claimed range. The batter additionally comprises 5-30% fat [0013], which encompasses the claimed range, and 0-3% leavening [0014], which encompasses the claimed range.
Note that the sugar of Stanton taught at [0042] refers to added sugar. Stanton does not specifically address the total content of the sugar. However, since Stanton teaches a batter which encompasses and overlaps the claimed ingredients and composition, the product of Stanton is interpreted to have a total sugar content as claimed.
Note that Stanton additionally teaches that percentages are weight percentages [0013].
Note that in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I. Additionally, note that it would have been obvious to have selected amounts of fruit puree, glycerin, and sugar that lie within the claimed ranges (e.g. 25% fruit puree, 20% sugar, and 5% glycerin), since Stanton teaches that the claimed amounts and ingredients are appropriate for addition to a batter.
Stanton teaches that such a batter composition produces a high quality product [0032].
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to formulate a batter with the moisture content, the amount of fruit puree, flour, added sugar, total sugar, fat, glycerin, and leavening base as claimed. One would have been motivated to make such a modification since Stanton teaches that such a batter produces a high-quality product.
Note that Stanton is not relied upon for the claimed ingredients, only the amount of ingredients. The disclosure of Stanton in regard to hydrocolloids [0037] is in regard to addition of a minor ingredient (0.1-5%, [0036]) affecting packaged batter stiffness.
Response to Arguments
Applicant’s arguments filed 4/2/2026 with respect to claim(s) 1-14 have been considered, and are considered persuasive. The claimed moisture content of the fruit puree according to independent Claim 1, and the term “consisting of” in Claim 7, are addressed as set forth above.
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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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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