DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 06/11/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. §112(b) rejection of claim 9 has been withdrawn; (2) the 35 U.S.C. §102(a)(1) rejections of claims 1, 3-9, and 11-13 over Lee have been withdrawn; and (3) the 35 U.S.C. §102(a)(1) rejections of claims 1-2 over Na have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-3, 5-17
Withdrawn claims: 14-15
Previously cancelled claims: None
Newly cancelled claims: 4
Amended claims: 1, 3, 5, 7, 9
New claims: 16-17
Claims currently under consideration: 1-3, 5-13, 16-17
Currently rejected claims: 1-3, 5-13, 16-17
Allowed claims: None
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-3, 5-13, and 16-17 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites that the seasoned laver is “amorphously cut laver”. However, while the [18] of the present specification recites that the seasoned laver is amorphous laver and that the laver is prepared by cutting, neither the specification or the claims as originally filed mention cutting the laver into an amorphous form. Therefore, the phrase “amorphously cut laver” comprises new matter.
Claims 2-3, 5-13, and 16-17 are rejected by reason of dependency from claim 1.
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 1-3, 5-13, and 16-17 are rejected under 35 U.S.C. 112(b) 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 1 recites that the seasoned laver is “amorphously cut laver”. However, it is unclear as to whether: (A) the laver prior to mixing with other ingredients is amorphous; (B) the laver at some point after mixing with the other ingredients is amorphous; or (C) amorphous is with regard to the shape of the laver. Therefore, the claim is indefinite.
Claims 2-3, 5-13, and 16-17 are rejected by reason of dependency from claim 1.
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, 3, 5-9, 11-13, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR 20200125794A; English translation relied on for citations; previously cited) in view of Jessica (Jessica, “Healthy Homemade Sugar Free Marshmallows”, 2017, Desserts With Benefits, https://dessertswithbenefits.com/healthy-homemade-sugar-free-marshmallows/).
Regarding claims 1 and 17, Lee teaches a laver snack (corresponding to black snack bar) comprising: (a) roasted seasoned laver; (b) a binder; and (c) solid supplementary ingredients (corresponding to rice, beans, sesame seeds, cranberries, blueberries, and/or nuts) [0013], [0015], [0017], [0046], [0049], [0052]-[0053]. Lee teaches that the binder may comprise a combination of saccharides (corresponding to the saccharides found in marshmallow, oligosaccharides, honey, starch syrup, cassava, sorbitol, and/or maltodextrin) and a gelling agent (corresponding to cassava and/or oligosaccharides, and the gelling agent found in marshmallow) [0013], [0049], [0053]. Lee teaches that ingredients are mixed and then shaped [0051]; and shows that the resulting snack bar may be cut into a cube wherein the seasoned laver appears to have an amorphous shape (pictures of Examples 1-2 in Table 4 at [0088]). Therefore, Lee is considered to render the claimed “amorphously cut laver that is roasted or fried” obvious.
Lee also teaches that the binder may comprise marshmallow in an amount of 200-300 parts by weight of the binder such as 232 parts by weight [0018]-[0019], [0049]. Lee teaches that the snack may comprise the seasoned laver, solid supplementary ingredients, and binder in a weight ratio of the ratio of (a) the combined weights of seasoned laver and solid supplementary ingredients to (b) the weight of the binder provides a weight ratio of (a) to (b) of from 1:1 to 1:5 [0020], such as 1:2.9 (corresponding to the combination of the puffed rice, black beans, sesame seeds laver, cranberries, and blueberries comprising 275 parts by weight of the laver snack; and the combination of the butter, marshmallow, oligosaccharide, honey, and cassava comprising 789 parts by weight of the laver snack) [0046], [0049], [0053]. As such, Lee teaches that the concentration of marshmallow in the snack may be 22 wt.% [0046], [0049], [0053]. Lee also teaches that the snack is beneficial to health [0022]-[0023].
Lee does not teach that the snack comprises gelatin in an amount of 3-20 parts by weight based on 100 parts by weight of the laver snack as recited in present claims 1 and 17.
However, Jessica teaches a marshmallow comprising gelatin, wherein the concentration of gelatin in the marshmallow is about 8 wt.% (corresponding to gelatin comprising 40 g of the total amount of ingredients calculated using weights of ingredients provided in the recipe and weights provided by knowledge in the art (i.e., weights of water, vanilla paste, stevia extract, salt, and arrowroot starch)) (page 5, list under the heading “Ingredients”). Jessica also teaches that the marshmallow is a healthy version of a marshmallow (page 1, 1st paragraph).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the present invention to have modified the marshmallow of Lee to be the marshmallow of Jessica. Since Lee teaches that its healthy snack comprises marshmallow [0018]-[0019], [0049], [0053], but does not disclose the composition of a marshmallow, a skilled practitioner would have been motivated to consult an additional reference such as Jessica in order to determine a suitable marshmallow composition for inclusion in a healthy snack. Since Jessica teaches that the marshmallow may comprise gelatin, the prior art renders present claims 1 and 17 obvious.
Since Lee teaches that the concentration of marshmallow in the snack may be 22 wt.% and Jessica teaches that the concentration of gelatin in the marshmallow is about 8 wt.%, the combination of prior art discloses a concentration of gelatin in the snack to be about 2 wt.%, which equates to about 2 parts by weight of gelatin based on 100 parts by weight of the laver snack. This amount is considered to render the claimed gelatin concentration recited in present claim 1 obvious as a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). MPEP 2144.05.I. Furthermore, the concentration of marshmallow in the snack may be higher than the concentration used in the example described in [0046], [0049], [0053] of Lee, and thus the concentration of gelatin in the snack of the combined prior art may be greater than about 2 wt.%.
Regarding claim 3, Lee teaches the invention as described above in claim 1, including the binder comprising the gelling agent may further comprise modified starch (corresponding to maltodextrin) [0013].
Regarding claim 5, modified Lee teaches the invention as described above in claim 1, including the saccharides are any one or more selected from the group consisting of sucrose (corresponding to the sucrose in honey), starch syrup, maltose, glucose (corresponding to the maltose and glucose found in honey), sorbitol, and erythritol (Lee [0013], [0049], [0053]; Jessica, page 5, list under heading “Ingredients”).
Regarding claim 6, Lee teaches the invention as described above in claim 1, including the saccharides are oligosaccharide; and that the snack comprises 29.9 parts by weight of oligosaccharide based on 100 parts by weight of the laver snack (corresponding to 318 parts by weight oligosaccharide based on 1064 parts by weight of total ingredients in the snack) [0046], [0049], [0053]. This concentration falls within the claimed concentration of saccharides.
Regarding claims 7 and 8, Lee teaches the invention as described above in claim 1, including the solid supplementary ingredients are dried grains (corresponding to puffed rice) as recited in present claim 7; and that the snack comprises 9.4 parts by weight of dried grains based on total 100 parts by weight of the laver snack (corresponding to 100 parts by weight puffed rice based on 1064 parts by weight of total ingredients in the snack) [0046], [0049], [0053]. This concentration falls within the claimed concentration of solid supplementary ingredients recited in present claim 8.
Regarding claim 9, Lee teaches the invention as described above in claim 1, including the ratio of (a) the combined weights of seasoned laver and solid supplementary ingredients to (b) the weight of the binder provides a weight ratio of (a) to (b) of from 1:1 to 1:5 [0020], such as 1:2.9 (corresponding to the combination of the puffed rice, black beans, sesame seeds laver, cranberries, and blueberries comprising 275 parts by weight of the laver snack; and the combination of the butter, marshmallow, oligosaccharide, honey, and cassava comprising 789 parts by weight of the laver snack) [0046], [0049], [0053] . This weight ratio falls within the claimed weight ratio.
Regarding claims 11, 12, and 13, Lee teaches the invention as described above in claim 1, including the laver snack has an average springiness of 69% (corresponding to a springiness of 0.69±0.08); an average hardness of 28,477.52 g (corresponding to a hardness of 28477.52±7459.39); and an average cohesiveness of 0.49 (corresponding to a cohesiveness of 0.49±0.09) ([0078], Example 2 on Day 0 in Table 2). These values fall within the ranges recited by present claims 11, 12, and 13.
Regarding claim 16, modified Lee teaches the invention as described above in claim 1, including that agar may be used as a substitute for the gelatin in the marshmallow (page 13, 1st response from “Jessica” near top of page; page 18, 1st response from Jessica near top of page). One would have been motivated to make this substitution because it is a simple substitution of one known element for another to obtain a predictable result (KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007)). See MPEP § 2143.I(B). Since Lee teaches that the concentration of marshmallow in the snack may be 22 wt.% and Jessica teaches that the concentration of gelatin in the marshmallow is about 8 wt.%, the combination of prior art discloses a concentration of gelatin in the snack to be about 2 wt.%. By substituting agar for gelatin, the amount of agar in the snack would also be about 2 wt.%, which equates to about 2 parts by weight of agar based on 100 parts by weight of the laver snack, which falls within the claimed agar concentration. Furthermore, the concentration of marshmallow in the snack may be higher than the concentration used in the example described in [0046], [0049], [0053] of Lee, and thus the concentration of agar in the snack of the combined prior art may be greater than about 2 wt.%.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR 20200125794A; English translation relied on for citations; previously cited) in view of Jessica (Jessica, “Healthy Homemade Sugar Free Marshmallows”, 2017, Desserts With Benefits, https://dessertswithbenefits.com/healthy-homemade-sugar-free-marshmallows/) as applied to claim 1 above, and further in view of Kim (Kim, D., “[Weekender] Five Wonders of Jindo Island”, 2014, Korea Herald, https://www.koreaherald.com/article/3637639#:~:text=Savory%20and%20nutritious%20stone%20laver,help%20prevent%20cancer%20and%20dementia.).
Regarding claim 2, Lee teaches the invention as described above in claim 1, including the snack comprises seasoned laver prepared by processing laver in a seasoned form (corresponding to roasting) [0017]. Lee teaches that the snack is beneficial to health [0022]-[0023] as components in the laver within the snack reduce the risk of heart disease, stroke, and the development of adult diseases [0007].
Lee does not teach that the laver is a stone laver as recited in present claim 2.
However, Kim teaches that stone laver is popular due to it being low in calories, high in minerals, and having the ability to treat diarrhea and inflammation and prevent cancer and dementia (page 1, paragraph beginning “Also known as “beauty food””).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the present invention to have modified the laver of Lee to be stone laver as taught by Kim. Since Lee teaches that its snack comprises seasoned laver having health benefits, but does not specify such a laver, a skilled practitioner would have been motivated to consult an additional reference such as Kim in order to determine a suitable laver for preparing health seasoned laver, thereby rendering the claim obvious.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR 20200125794A; English translation relied on for citations; previously cited) in view of Jessica (Jessica, “Healthy Homemade Sugar Free Marshmallows”, 2017, Desserts With Benefits, https://dessertswithbenefits.com/healthy-homemade-sugar-free-marshmallows/) as applied to claim 1 above, and further in view of Cho (Cho et al., “Health Functionality and Quality Control of Laver (Porphyra, Pyropia): Current Issues and Future Perspectives as an Edible Seaweed”, 2019, Marine Drugs, 18, 14, doi:10.3390/md18010014; previously cited).
Regarding claim 10, Lee teaches the invention as described above in claim 1, including the seasoned laver is roasted dried laver [0017]; and that the laver is combined with binder ingredients such as honey and starch syrup [0019]. Honey and starch syrup contain water; and honey is a humectant. Therefore, honey and starch syrup have the ability to increase moisture content of the composition in which they are included.
Lee does not teach that the laver in the laver snack has a moisture content of at least 5 wt.%.
However, Cho teaches that primary dried, secondary dried, roasted, and seasoned laver may have a maximum moisture content of 14 wt.%, 7 wt.%, 5 wt.%, and 5 wt.%., respectively (page 5, paragraph under section 2.2). These values provided ranges of moisture content which overlap the claimed moisture content. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges 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 percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the present invention to have modified the laver in the laver snack of Lee to have a moisture content as taught by Cho. Since Lee teaches that its seasoned laver is roasted dried laver [0017] but does not disclose a moisture content of the laver, a skilled practitioner would have been motivated to consult an additional reference such as Cho in order to determine a suitable moisture content for such laver. Furthermore, the practitioner would recognize that, by combining the seasoned laver with ingredients that may increase the moisture content of laver in the laver snack, the moisture content of the laver in the laver snack may be above the moisture contents recited in Cho. For these reasons, the combination of prior art renders the claimed moisture content obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claim 9: Applicant amended the claim to fully address the rejection. Therefore, the rejection is withdrawn.
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 1, 3-9, and 11-13 over Lee; claims 1-2 over Na: Applicant’s amendments have been fully considered and are considered to overcome the anticipation rejections of claims 1-9 and 11-13.
Applicant canceled claim 4, thereby mooting its rejection. Applicant amended claim 1 to recite that the gelling agent is gelatin or agar in specified amounts. Applicant argued that neither Lee nor Na anticipates the claimed gelling agent as now recited in present claim 1 (Applicant’s Remarks, page 4, 1st-4th paragraphs under “The Pending Claims Are Not Anticipated”).
In the new grounds of rejection necessitated by the amendment of the claims, neither Lee nor Na is considered to anticipate the claims. Na is longer cited as a prior art. The claimed features of the snack recited in present claims 1, 3, 5-9, and 11-13 are now rendered obvious by the combination of Lee and Jessica, wherein Lee discloses that its snack may comprise marshmallow and Jessica discloses marshmallow containing gelatin or agar. The combination of these teachings is shown to render the claimed gelling agents and their amounts recited in present claim 1 obvious.
Since the claims now stand rejected over a new combination of prior art, Applicant’s arguments are moot, and the rejections of the claims stand as written herein.
Claim Rejections -35 U.S.C. §103 of claim 10 over Lee and Cho: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Cho fails to remedy the aforementioned deficiency of Lee in relation to amended claim 1 (Applicant’s Remarks, page 5, 1st-4th paragraphs).
However, in the new grounds of rejection necessitated by the amendment of the claims, the claimed features of the snack recited in present claim 1 are now rendered obvious by the combination of Lee and Jessica. As such, Cho continues to be relied for its teaching regarding the additional features of present claim 10.
Applicant then argued that the cited prior art fails to render obvious the unexpectedly superior properties resulting from the claimed amounts of gelatin and agar. Applicant pointed to Table 7 and Table 9 of the present specification as demonstrating improvements in hardness, cohesiveness, and springiness due to the claimed amounts of gelatin and agar being present in the snack (Applicant’s Remarks, page 5, 5th paragraph – page 6, 2nd paragraph).
However, the samples in Tables 7 and 9 merely show the hardness, cohesiveness, and springiness in samples comprising the claimed amount of gelatin or agar. The samples do not compare the inventive samples (i.e., samples containing the claimed amounts of gelatin or agar) to any samples not comprising the claimed amount of gelatin or agar. As such, it is unclear as to what sample/composition serves as the basis from which to determine that the claimed amounts of gelatin and agar improve hardness, cohesiveness, and springiness. It is also unclear as to how it is unexpected that the amount of gelatin or agar influence hardness, cohesiveness, and springiness of the composition in which gelatin or agar is contained since it is known in the art that gelling agents such as gelatin and agar influence hardness, cohesiveness, and springiness of the composition in which the gelatin or agar is contained. Furthermore, “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” MPEP §716.02(d)II. For at least these reasons, Applicant’s arguments regarding unexpected results are not supported.
Since the claims now stand rejected over a new combination of prior art and Applicant’s arguments are shown to be unpersuasive, the rejections of the claims stand as written herein.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/K.P.K./Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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