Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
This office action is in response to amendment filed 8/10/26. Claims 21,27,29,31 are amended. Claims 21-29,31-34 are pending.
The previous 112 first and second paragraph rejections are withdrawn due to the amendment.
Claim Rejections - 35 USC § 103
Claims 21-29,31-34 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable Kao et al ( 2006/0222740) , Trop ( 4451491),Atwell et al ( 2009/0092716), Silver ( 5492712), Rudie ( 2007/0160728) and Paeschke ( 2008/0085354) .
For claims 21, 24, 29,31 Kao et al disclose a gluten free dough comprising 10-90% rice flour, 0-40% modified rice, 5-15% shortening, protein in amount of 5-15%, .5-2% dry yeast, .1-1% monoglyceride which is an emulsifier, 1-7% hydrocolloids such as xanthan gum, guar gum, etc.. The dough may be leavened by chemical leavener or yeast or both. Example 5 shows the use of both yeast and chemical leavener. ( see paragraphs 0013-0024,0027, 0029,0033,0034,0049,0050 and examples 1 and 5)
For claims 22-23, 32,33,34, Kao discloses the dough is used to make baked products such as pizza crust. Thus, the dough is a pizza dough and the forming of pizza crust inherently requires sheeting of the dough which would give sheeted dough (see paragraph 0053)
For claim 25, Kao discloses the dough includes pregelatinized rice starch which meets the claimed limitation of starch derived from gluten-free grain. ( see paragraph 0028)
For claims 26, 27,Kao discloses the dough comprising whole egg and skim milk powder which are protein sources. The protein can be selected to be free of dairy product. ( see paragraph 0033)
For claim 28, Kao discloses the dough comprising additive such as enzymes. ( see paragraph 0034)
Kao does not disclose the amount of water and the individual amounts of gum as in claims 21,29 and 31 and the amount of yeast as in claim 30.
Paeschke discloses an agglomerate of hydrocolloids including a combination of two hydrocolloids agglomerating with a second hydrocolloids. The blend of hydrocolloids includes gums such as xanthan, guar gum, gum Arabic, gellan gum etc.. The second hydrocolloids includes gums such as xanthan gum, guar gum, gum arabic, carob gum , gellan gum etc.. The agglomerated hydrocolloids is added to dough to improve organoleptic properties, delay hydration and improve processability of the dough containing the hydrocolloids. The agglomerated hydrocolloids can comprise from about 10-99.95% of hydrocolloids and 1-50% of the agglomeration can be added to foods. ( see paragraphs 0006,0012,0016-0018,0041,0043,0046,0064,0087)
Atwell et al disclose gluten-free bakery products. Atwell et al disclose that possible ingredients in the products besides gluten-free flours includes gums, xanthan gum, guar gum, gelatin, eggs, sweetener chemical leavening agents including baking powder and baking powder etc... Most approaches to formulating gluten-free products involve the use of starches, dairy products, gums and hydrocolloids and other non-gluten proteins. ( see paragraphs 0073-0074)
Silver discloses a gluten-free dough for pasta product. Silver teaches to add a stabilizers and the quantity of stabilizer or stabilizers utilized depends on the level of gluten in the flour used and the strength of the stabilizer. The stabilizers are selected from guar gum, gum Arabic, xanthan gum, pectin, locust bean gum, carrageenan etc and combination thereof and are present in an amount of .01-5 w/w%. For example , a combination of .4-.8% guar gum and .2-.4% xanthan gum can be used. ( see col. 1)
Trop et al disclose a dry mix for baked products such as bread that is gluten free. Trop discloses the mix contains gluten-substitute gums such as xanthan gum, guar gum, locust bean gum, carboxymethylcellulose. ( see col. 2 lines 21-50, col. 3 lines 45-63)
Rudie discloses gluten-free food products including bean flour. In table 3, Rudie discloses dough for bread including pinto bean flour, rice flour and cellulose gums. The dough contains xanthan gum, methylcellulose and sodium carboxymethylcellulose.
It’s known in the art as shown in Atwell, Silver, Rudie and Trop, to use combination of gums in dough product to improve the properties of dough lacking in gluten or to improve properties and processability of dough in general as shown in Paeschke. As generally known in the art and disclosed in Trop(col. 2 lines 10-16), it is the gluten protein in wheat flour that gives the proper structure and taste to baked products made from wheat flour. It is well known in the art as shown in Kao, Trop , Atwells, and to use different types of gum and combination of gums are known to be used as gluten-substitute in dough containing gluten-free flour. It’s also known to use combination of three gums as shown in Paeschke to improve processability and properties of the dough. All the prior art discloses different gums, including all of the gums claimed. It would have been obvious to one skilled in the art to add combination of different gums including guar gum, xanthan gum and gum arabic , because all the three gums are disclosed in the prior art to be used in dough containing gluten-free flour and to improve properties of dough in genenal, in preparation of the Kao dough to enhance the structure and taste of the baked product prepared from the dough containing gluten-free flour and to obtain enhanced processability of the dough while forming the product. The selection of the combination of gums from all the gum disclosed in the prior art would have been an obvious matter of preference. Kao et al teach the levels of gum can be used in amounts of 1-7 , Trop et al disclose the range can be from .5-5% and Silver discloses the amount can range from .01-5%; it would have been obvious to one skilled in the art to follow the guideline of Kao, Trop and Silver for the amounts of gums to use. It would have been obvious to use a mixture of gums as taught in Rudie because such mixture is shown to be effective in preparing doughs for baked products that lack gluten-containing flour or gluten protein. It would have been obvious to one skilled in the art to determine the amounts of each gum component within the ranges disclosed in Kao to obtain the most optimum product through routine experimentation. It would have been obvious to one of ordinary skill in the art to select any portion of the disclosed ranges including the instantly obtained ranged from the ranges disclosed in the prior art references, particularly in view of the fact that “ The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set for percentage ranges is the optimum combination of percentages “(In Re Peterson 65 USPQ2d1379(CAFC2003). Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation ( In re Aller, 220 F.2d454,456 ,105 USPQ 233,235(CCPA). As shown in the examples in Kao, the amount of water and yeast can vary depending on the type of baked products. It would have been within the skill of one in the art to determine the appropriate amount of water and yeast through routine experimentation depending on the type of baked product and taste and texture desired.
Response to Arguments
Applicant's arguments filed 8/10/26 have been fully considered but they are not persuasive.
In the response, applicant submits an affidavit to establish criticality and show unexpected resulted for the claimed ranges of gums.
The affidavit is not persuasive. Pages 2-9 of the affidavit describe different measurements. The data which is aiming to show unexpected result is in table 4. However, the data is not persuasive of evidence of unexpected result. Table 4 shows the difference in C1 and C4 when guar gum is replaced with locust bean gum and table 5 shows the difference in baked volume reduction and shrink in baked diameter when guar gum, xanthan gum and gum Arabic is replaced with locust bean gum. It is unclear why locust bean gum is chosen as a comparative gum. The prior art in the rejection does not disclose any preference to locust bean gum. It cannot be concluded from the data if replacement with other gum such as pectin or carrageenan would produce the same result shown in tables 4 and 5. There are many different gums known in art such as pectin, carboxymethycellulose, pectin, carrageenan, agar et.. A comparative showing against just 1 gum is not a fair representation of possibility to establish evidence of unexpected result. Furthermore, the testing of different combinations of gums as possible usage to obtain most optimum properties in a dough when it is known that combination of gums are used to improve the processability of the dough would have been expected to be within the skill of one in the art through routine experimentation. This testing would have been readily apparent to one skilled in the art, especially in view of the teaching of Paeschke. Paeschke discloses an agglomerate comprising a combination of three gums which includes xanthan gum, guar gum and gum Arabic. The agglomerated hydrocolloids are added to dough to improve organoleptic properties, delay hydration and improve processability of the dough containing the hydrocolloids. Paeschke discloses in paragraph 0091 that properties such as stickiness, viscous, crumbliness etc.. are crucial is the processing of dough. The addition of gums is used to improve the dough lay time which in turn prevents the removal of moisture and facilitate dough processing. The effects of the gum on mixing, stiffness, crumbliness, stickiness as measured and shown in the affidavit is known. Since the gums are obtained from different sources, they will be expected to have different properties. The gums are also expected to behave differently in different types of dough products. Paeschke discloses the combination of gums can be added to a variety of products such as breads, tortillas, crackers , pretzels etc.. It would have been within the skill of one in the art to test different combinations to obtain the most optimum characteristics in the intended dough product. The combination of guar gum, xanthan gum and gum Arabic is known as disclosed in Paeschke and Paeschke discloses the advantage of using such combination in dough to improve processability. Kao teaches the hydrocolloids are used in amount of 1-7%; one skilled in the art can readily determine the amount of individual gum to be within that range. For instance, if the low end point of 1% is used and it’s desired to have equal contribution of each of the three gums, it would have been obvious to use .33% of each.
Page 11 describes testing where compositions where guar, xanthan and gum Arabic are used outside of the claimed range. Guar gum is used at level of .05 and 2, xanthan as .05 and 2 and gum Arabic as .05 and 1.5. Pages 12-16 describe different characteristics and show pictures. The tables on pages 18-20 show different measurements. The showing is not persuasive. The data points tested are not a fair representation of the whole ranges. Only two amounts were tested. Such small samples are inconclusive to show criticality. For example, there is no way to know if the same results would be obtained if .01, .02. , .6, 1.7 etc… are selected. The affidavit does not have any explanation for why .05 and 2 are selected. It is difficult to tell the differences in the photographs on pages 13,14,16 and 17.. Page 29 concludes that small deviation outside of the claimed ranges for the gum produces a dough with poor rheological properties. However, the amounts chosen to be tested is not a small deviation from the range; .05 would not be considered as small deviation from .3 or 2 to be small deviation from 1.5. A small deviation would likely be more in the range of .28, .25 etc.. or 1.55 or 1.6 etc.. Also, page 5 of the affidavit recites the composition of the testing dough. The testing of 1 singular dough composition is not deemed to be sufficient to give an overall conclusion of the dough claimed. For instance, the dough described on page 5 contains 2.10% protein from a claimed range of 2-20% protein, 53% flour from 35-65%; the same problem is noted for other ingredients. It’s cannot be determined if the results given in the affidavit will be obtained if the dough contains 20% protein and 35% flour.
In conclusion, what the affidavit characterizes as criticality and unexpected result are actually testing parameters that would have been within the skill of one in the art. Gums are well known to be added to dough to aid in processing of the dough and enhancing the final properties of the baked product obtained from the dough. All the claimed gums are known to be used in the dough as shown in the prior art and the total amounts of the gums to use is known. The use of combination of three gums and their advantage is well documented in Paeschke. The determination of the amount of each gum to use would only require routine experimentation of testing each gum so that the optimum properties in the dough are obtained. The experimentation is not undue because gums are well known to use in dough for specific purposes and the general amounts are known as clearly shown in the prior art.
In the response, applicant argues that the selection of the three gums would be extremely difficult to arrive at and data in the declaration demonstrate that locust bean gum cannot be used as a substitute. This argument is not persuasive. The affidavit is not persuasive. It’s unclear why locust bean gum is used as the main focus point. None of the prior art discloses any preference for locust bean gum. The gum is disclosed as a possibility among other gums. Paeschke discloses combination of three gums including xanthan gum, guar gum and gum Arabic. There is no disclosure of a preferred advantage or preference for locust bean gum. Applicant argues Paeschke does not teach that a gluten-free dough composition should specifically include guar gum, xanthan gum and gum Arabic. While Paeschke does not disclose specifically gluten-free dough, Paeschke discloses the combination of three gums and the advantage obtained by adding the combination to a dough to obtain improve properties. The reference is not used alone and is used as secondary teaching. It would have been obvious to one skilled in the art to add the combination disclosed in Paeschke to the Kao dough to obtained the advantages disclosed in Paeschke. Kao teaches the hydrocolloids are used in amount of 1-7%; one skilled in the art can readily determine the amount of individual gum to be within that range. For instance, if the low end point of 1% is used and it’s desired to have equal contribution of each of the three gums, it would have been obvious to use .33% of each. Applicant argues that Kao teaches away from using the combination of gums as claimed. The examiner respectfully disagrees. Kao explicitly discloses adding hydrocolloids and the amounts that can be added. The disclosure of free from gums is only an embodiment. It’s not the total teaching. All other secondary references are used to show the well-known concept in the art of adding gums to dough products.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIEN THUY TRAN whose telephone number is (571)272-1408. The examiner can normally be reached Monday-Thursday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
October 9, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
Prosecution Insights