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 1-3 in the reply filed on 3/31/26 is acknowledged.
Claims 4-6 are withdrawn from consideration as being directed to non-elected invention.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 2-3 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.
In claim 2, the limitation “ processed butter” is vague and indefinite because it’s unclear what is intended by the term “ processed” ( for prior art application, it’s treated as just “ butter”). The limitation “ wherein the pastry composition has a butterfat content of 0%” is vague and indefinite. The composition comprises “ 1.7-2%” processed butter which is disclosed on page 11 of the instant specification to contain 30% or more butterfat. Thus, it’s unclear what is intended by “ 0% butterfat”. According to the description, the composition comprises at minimum .51% butterfat ( 1.7/100 X 30).
In claim 3, the limitation “ semi-chocolate” is vague and indefinite because it’s unclear what is intended. ( for prior art application, it’s assumed that semi-sweet chocolate is intended because that is a common known chocolate type)
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 is/are rejected under 35 U.S.C. 102(a1) as being anticipated by Zanaglio ( 2017/0006882).
For claim 1, Zaaglio discloses pastry composition comprising margarine rolled in. The margarine is a vegetable margarine. Thus, it’s free from butter fat. The composition is subjected to baking. Thus, the margarine is capable of baking. ( see paragraphs 0029, 0051, 0055,0016-0019)
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a1) as being anticipated by Park ( KR 100911998) evidence by the article “ Clarify the differences between butter and margarine” by Kit Chapman.
Park discloses a pastry composition comprising margarine. The composition is subjected to baking. Thus, the margarine is capable of baking. The limitation “ margarine rolled in” is interpreted just as margarine because there is no limitation defining rolled in. The article discloses that margarine is made of vegetable oil. Thus, it’s evidence that the margarine disclosed in Park is free from butter fat.
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.
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Park (KR 100911998) in view of Sakurada ( 2016/0302428).
For claim 2, Park discloses the pastry composition comprising 20-60% flour, 10-40% margarine, 1-20% liquid, 1-20% sugar, .1-5% powdered milk, .1-2% salt and .1-4% flavor. Fragrance such as vanilla flavor, butter flavor can be added. ( see abstract, page 4)
Park does not disclose the liquid is purified water, maltose powder and powdered sugar, processed butter, cinnamon powder, emulsifier and colorant as in claim 2, the chocolate as in claim 3.
Sakurada discloses pastry composition. Sakura discloses saccharides including maltose powder, powder sugar can be used. The composition also includes chocolate, emulsifier and other additives. ( see paragraphs 0028, 0029)
Different types of sugar can be added to pastry composition as shown in Sakurada. It would have been obvious to one of ordinary skill in the art to add maltose powder and powder sugar as part of the sugar component in the Park composition when desiring to obtain different flavor and taste provided by the sugar. It would have been obvious to determine the amount to be within the range of sugar disclosed in park. It would have been obvious to use purified water as the liquid component because water is a common liquid to use in dough and it would have been to use a purified one to ensure the safety of the product. Park discloses to add butter flavor. Thus, it would have been obvious to one of ordinary skill in the art to add butter to obtain butter flavor. It would have been obvious to add butter in the range of .1-4% allowed for the flavor. It would also have been obvious to add cinnamon powder when cinnamon flavor is wanted. It would have been obvious to cinnamon flavoring in the range of .1-4% allowed for the flavor. It would have been obvious to add colorant when desiring to add color to the composition. This parameter would have been an obvious matter of preference and one skilled in the art can readily determine the amount depending on the extent of color desired. Emulsifier is a well-known additive for pastry dough composition as shown in Sakurada. Adding an additive for its art-recognized function would have been obvious to one skilled in the art. It’s with the skill of one in the art to determine the proper amount through routine experimentation. As to the 0% butterfat, the limitation is indefinite as explained above. For prior art, it’s interpreted as little amount of butterfat is present through the addition of butter as the instant specification discloses processed butter comprising at least 30% butterfat. The amount of flavor allowed for in Park .1-4%; thus, the amount of butterfat through the addition of butter flavor is small. It would have been obvious to add chocolate as taught in Sakurada when desiring a chocolate pastry. The amount to add depends on the chocolate intensity wanted and can readily be determined by one skilled in the art. The type of chocolate such as semi-sweet or sweet or non-sweet etc.. depends on the sweetness intensity desired and can be selected as an obvious matter of preference.
Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Conclusion
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May 26, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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