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 .
Response to Amendment
Those objections and rejections that have not been repeated in this Office Action have been withdrawn.
Claims 1-7, 11-17 and 19-24 are currently pending and rejected.
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.
Claims 1-4, 6, 7 and 11-15 are rejected under 35 U.S.C. 103 as being unpatentable over Stanton (US 20110183059 cited on IDS) in view of Kou (US 20080063751) and in further view of Hay (US 5340598), Hahn (US 6217929) Ekanayake (US 6056984) Boldon (US 6391366), Horstman (US 20070110869) and Crawford (US 20100034933) and in further view of Sugisawa (US 4777057), Canadian Grain Commission and Bellido (US 20160135472).
Regarding claims 1 and 13, Stanton teaches a refrigerated or frozen place-and-bake cake product (see paragraph 3, 31-35 which discloses refrigerated or frozen products that can be used to make muffins. Applicant’s specification refers to muffins as a cake product - see paragraph 21 as filed), the product comprising portions of an uncooked dough with a water activity of less than 0.85 (see paragraph 42 which teaches a water activity of 0.92 or less thus encompassing the claimed range, and paragraph 68 specifically teaching 0.80 which falls within the claimed range).
Stanton teaches that the uncooked dough having a dough phase (see paragraph 22) in an amount of about 75% to 100% (Stanton teaches that the dough composition can be the uncooked product thus encompassing 100% of the product).
Stanton teaches that there can be a flour component that can comprise wheat flour and corn flour, and the combination can be used at 10-60%, which thus encompasses the claimed ranges of about 11% to about 22% wheat flour and about 6.5% to about 13% corn flour (see page 5, Table 2 and see paragraph 39 which discloses wheat flour and paragraph 59 which discloses an additional other ingredient to improve color, flavor or quality, such as “corn flour”). Stanton also teaches examples of a muffin using 25% flour, which can be construed as “about 22%” or at least, close to “about 22%” (see Table 4).
Stanton teaches that there can be a pregelatinized starch component in an amount of 0.1-8% (see paragraph 40) which encompasses the claimed range of, “about 0.4% to about 3.3% by weight of the dough phase.” Additionally, on page 6, Table 4, Stanton also teaches pregelatinized corn starch being used at 1.5%, which falls within the claimed range.
Stanton further teaches a gum component in an amount of 0.1-5% (See Table 2 below paragraph 60, “Hydrocolloids”), where using 0.1wt% falls within the claimed range of 0.07% to about 0.33%. The gums that can be used can include xanthan gum and a second gum (see paragraph 36) such that the overlapping of the claimed range presents a prima facie case of obviousness (MPEP 2144.05).
Stanton teaches fats that can be used at 5-30% (see Table 2 below paragraph 60), which encompasses the claimed fat content of from about 12% to about 20% by weight of the dough phase and the fat content comprising a fat that is solid at room temperature (see Table 1 below paragraph 51 which teaches that 12-42% can be solid at 20°C, which can be construed as room temperature and that 4-31% can be solid at 25°C, which can also be construed as room temperature). Stanton also teaches on page 6, Table 4, that the fat component can be used at 18.1% (the total of shortening and margarine), and therefore falls within the claimed range. Stanton also teaches a fat that is solid at room temperature, such as shortening (see paragraph 49). This is analogous to Applicant’s specification at paragraph 32 which discloses that shortening is generally considered a fat that is solid at room temperature.
Stanton teaches sucrose as a humectant at 10-50% and therefore encompasses the claimed at least 15% by weight of the dough phase (see paragraph 42).
Stanton teaches an egg solids component (see table 4, where dried whole egg is used at 3% as part of a texturizing agent (paragraph 56).
Stanton also teaches a dairy solids, such as milk solids as part of a texturizing agent (paragraph 56).
Stanton teaches a leavening system in an amount of 0-3% which encompasses the claimed range of about 0.4% to about 0.7% by weight of the dough phase (see Table 2 and paragraph 54).
Stanton also teaches a moisture content of 10-40%, which encompasses the claimed range of 15-25% (see Table 2 and paragraph 43).
Stanton encompasses the claimed amounts of wheat and corn flour, pregelatinized starch component, gum, fat, sucrose, egg solids and egg white solids, dairy solid, leavening system and moisture content. As such a prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness (see MPEP 2144.05(I)). Furthermore, since Stanton is also teaching a refrigerated or frozen place-and-bake cake product (see page 7, claim 2) and also teaches that there can be changes to the composition (see paragraph 80), it would have been obvious to one having ordinary skill in the art to have experimented within Stanton’s ranges to achieve the desired properties to the cake product, commensurate with the specific type of produce desired (see also MPEP 2144.05(II)(A) which discloses that “[W]here 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.”).
Nonetheless, Claim 1 differs from Stanton specifically reciting the specific ranges of the claimed wheat and corn flour, sucrose, the egg solids and egg white solids; the dairy solids, leavening system and the moisture content.
Regarding the flour component, Kuo (US 20080063751) teaches products such as cakes and muffins (see paragraph 3 and 15) which can comprise wheat flour in amounts such as 20-40% for the purpose of providing and maintaining its structure while preventing dryness and allowing expansion (see paragraph 55).
Since Stanton is not limiting as to the particular amount of wheat flour that can be used, it would have been obvious to one having ordinary skill in the art to have used wheat flour at 20%, for example, for providing the desired structure while preventing dryness and allowing for expansion.
Regarding the amount of corn flour, Hay (US 5340598) also teaches dough based products to produce baked goods (see at least, the abstract), where corn flour can be used at 10% for example, for enhancing the color and affecting the texture of the product (see column 7, lines 4-13).
Since Stanton already suggests using corn flour as an additional component useful for improving color, flavor or quality (see paragraph 59), it would have been obvious to one having ordinary skill in the art to have modified Stanton and to have included 10% corn flour, for example, for the purpose of providing an added color to the product, as well as for achieving a desired texture to the product.
Regarding the specific amount of sucrose, Hahn (US 6217929) further teaches sugars such as sucrose used at 20-40%, for example, is useful for the purpose of sweetening the product and for reducing the amount of free water in the composition to therefore lower the water activity (see column 3, lines 17-44). This is similar to what Stanton already teaches regarding the use of sucrose at paragraph 42. Therefore, it would have been obvious to one having ordinary skill in the art to have modified Stanton and to use 20-40% sucrose for the purpose of lowering the water activity and providing a desired degree of sweetness.
Regarding the specific amount of egg solids, it is noted that the limitation of, “the egg solids component comprising egg white solids in an amount of 0.7 to about 1.5% by weight of the dough phase also reads on the egg white solids component as a whole being present at 0.7-1.5%.
In this regard, Boldon (US 6391366) teaches similar types of ready to cook cake products (the abstract) which can use liquid eggs at 1% for providing desirable structuring, emulsification and nutritional benefits (see column 8, lines 30-35) and where the liquid eggs can be replaced in whole with dried egg solids or egg fractions in solid form such as egg white solids (see column 8, lines 30-42) and therefore teaches using egg solids comprising egg white solids at 1% by weight of the composition. Ekanayake (US 6056984) teaches using 2% egg white as part of a cake product (see column 14, lines 57-58) and where the egg or egg white can be also be adjusted to amounts within the range of 0-10% or about 2% (see column 10, lines 9-20) for achieving the desired structure to the product (see column 2, lines 4-5).
To therefore modify Stanton who already suggests using egg solids, and to use 1% egg white solids as suggested by Boldon and Ekanayake, would have been obvious to one having ordinary skill in the art for the purpose of providing a desired degree of structuring, emulsification and nutritional benefits to the product.
Regarding the amount of dairy solids, Horstman (US 20070110869) teaches products for making cake products (paragraph 30) where the composition can include dry milk solids at 4% for aiding in the structuring of the finished baked goods (see paragraph 78). Since Stanton already encompasses using dry milk solids for the cake product, it would have been obvious to one having ordinary skill in the art to use amounts such as 4%, as taught by Horstman for the purpose of also aiding in the structuring of the finished product.
Regarding the amount of the leavening system, Stanton teaches on page 6, Table 4 a combination of baking soda and SALP at 0.88% which is seen to be close to the claimed upper limit of about 0.7%. Nonetheless, Ekanayake teaches using, for example, 0.5% of a leavening system (column 10, lines 25-26) which uses similar types of leavening agents for similar types of products as those of Stanton, such as a cake product used to make a muffin (see Ekanayake Example 1; column 4, lines 26-36; see Stanton paragraph 53). To therefore modify Stanton and use known amounts of a leavening system, as taught by Ekanayake would have been obvious to one having ordinary skill in the art, for the known purpose of imparting the desired volume and lightness to the cake product upon baking (see Stanton paragraph 53).
Regarding the specific amount of moisture, Stanton teaches one example which comprises 12.1% water (see Table 4 on page 6), which is seen to be close to the claimed endpoint of “about 15%.” Nonetheless, Crawford (US 20100034933) teaches ready to bake cake products (see at least, the abstract and paragraph 8-9) which can comprise a moisture content such as 20% (See paragraph 9 and Table 1 and 2 on pages 8-9). Crawford also teaches that too much water can also cause the product to become very runny (see paragraph 3). Ekanayake (US 6056984) teaches flour based products can comprise about 20% moisture for achieving the desired consistency and texture to the product (see column 10, lines 39-44). To therefore modify Stanton and to provide a moisture content of 20% for example, would have been obvious to one having ordinary skill in the art from preventing Stanton’s ready to bake cake product from, prior to baking, being runny at elevated temperatures.
Further regarding claim 13, it is noted that Stanton teaches that the product can include purees (see paragraph 42, “fruit purees”) but claim 13 differs in specifically reciting, “a fruit or vegetable mash or puree in an amount of about 5% to about 18% by weight of the dough phase.
Crawford teaches ready to bake cake products such as muffins, as already discussed above, and which cake products can also include a fruit or vegetable puree as a flavorant, in an amount such as 6% or 11% (see paragraphs 31-32).
To therefore modify the combination and include an amount of a flavorant mix within Stanton’s cake product, such as a fruit or vegetable puree at 6% or 11% as taught by Crawford would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on one’s preferences for a particular flavor to be imparted to the cake product.
Claims 1 and 13 differ from the above combination in specifically reciting that the uncooked dough has a peak positive force of about 200 g to about 1500 g.
Sugisawa (US 4777057) teaches a packaged dough product (see the abstract) where the peak force of the dough can be between 18-470 Brabender units (BU) is useful for enabling easy shaping as well as for providing the proper hardness and shortness of a finished product (see column 2, line 64 to column 3, line 2). Canadian Grain Commission teaches that 1 BU is equivalent to a 1.25 gram load (i.e. 1.25 gram-force) (see page 2/9 to page 3/9: 500-gram load equals 400 Brabender units.”). It is noted that Bellido (US 20160135472) discloses that firmness is the same as hardness and is a peak force during compression (paragraph 62).
In view of these teachings, Sugisawa’s teaching of 470 BU is equivalent to a peak force of about 587.5 grams, which falls within the claimed range.
The prior art thus recognized that the peak force of the dough (i.e. the hardness and therefore the degree of stretching before breaking) is useful for achieving the requisite workability and formability of the dough and teaches values within the range of 200-1500g such as 587.5g. To therefore modify Stanton such that the dough has a peak positive force of 587.5g would have been obvious to one having ordinary skill in the art, for the purpose of achieving the desired formability and hardness to the dough.
Regarding claims 2-3, Stanton encompasses using a combination of xanthan gum, carrageenan and locust bean gum, but does not specifically recite using xanthan gum and one or both of carrageenan and locust bean gum. Stanton can be construed by one of ordinary skill in the art to suggest using a combination of all three of these gums.
Crawford teaches that xanthan gum and locust bean gum can be used as a texturing agent (see paragraph 56) in combination with another gum such as carrageenan (see paragraph 55), where carrageenan is useful for ensuring that the cake product is non-flowable at ambient temperatures and is substantially stabilized (see paragraph 20 and 52).
To therefore modify Stanton and specifically include carrageenan together with xanthan gum and locust bean gum, would have been obvious to one having ordinary skill in the art for providing the desired texture and non-flowability properties to the cake product prior to cooking.
Regarding claim 4, Stanton teaches the inclusion of potato starch (see paragraph 40).
Regarding claim 6, Stanton teaches including for example, 2% to about 25% inclusions (i.e. particulates) (see paragraph 58).
Regarding claim 7, Stanton teaches individual portions like round or hex pucks (see paragraph 31 and 61).
Stanton also suggests portion sizes such as approximately 2 oz (see paragraph 78) which can equate to approximately 56g. While this is not specific as to being about 20 to about 40g, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed product and a product having the claimed relative size would not perform differently than the prior art product, the claimed product was not patentably distinct from the prior art product. Nonetheless, it is noted that Boldon (US 6391366) teaches ready to bake cake products can be sized into 20g portions for baking (see column 11, lines 3-14), such that it would have been obvious to one having ordinary skill in the art to have modified Stanton and to have provided 20g portions, for example, as an obvious matter of engineering and/or design, based on one’s preference for the particular size of each portion.
Regarding claims 11 and 12, the combination applied to claim 1 teaches xanthan gum, carrageenan and locust bean gum.
Regarding the Claim 11 limitation of, “a weight ratio of xanthan gum to second gum of about 1:2 to about 1:3” and the claim 12 limitation of, “the second gum comprises carrageenan and locust bean gum at a weight ratio of carrageenan to locust bean gum of about 1:0.5 to 1:1”, Crawford teaches that xanthan gum and locust bean gum can be used as a texturing agent (see paragraph 56) in combination with another gum such as carrageenan (see paragraph 55), where carrageenan is useful for ensuring that the cake product is non-flowable at ambient temperatures and is substantially stabilized (see paragraph 20 and 52). Crawford teaches that carrageenan can be used at about 0.2wt% (paragraph 55) and gums such as xanthan gum can be used at 0-0.1% and that locust bean gum can be used at 0-0.1% (see paragraph 56 which discloses amounts for xanthan gum separate to locust bean gum).
Therefore, Crawford is encompassing the claimed ratio xanthan gum to a second gum of 1:2 and 1:3 (i.e. 0-0.1% xanthan to about 0.2% carrageenan; and 0-0.1%xanthan to about 0.2% carrageenan + 0-0.1% locust bean gum). Crawford is therefore also suggesting an amount of carrageenan to locust bean gum that can be 2:1 (or 1:0.5). Crawford is also teaching that the amounts of these gums can be modified (see paragraph 55 and 56)
To therefore modify the combination and to use a ratio of xanthan gum to a second gum of 1:2 and to use a combination of carrageenan to locust bean gum at a ratio of 2:1, would have been obvious to one having ordinary skill in the art, for providing the desired texture and non-flowability properties to the cake product prior to cooking.
Regarding claim 14, in view of Crawford the combination teaches using a fruit or vegetable puree such that it would have been obvious that a puree would have provided some amount of moisture.
Regarding claim 15, in view of Crawford, the combination teaches known types of fruit or vegetables used as part of a puree can be apples (see paragraph 32) such that it would have been obvious to one having ordinary skill in the art to have included a fruit puree that comprises apples as an obvious matter of engineering and/or design, based on one’s preferences for a particular flavor to be imparted to the cake product.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Stanton as the primary reference, and in further view of Wareing (US 20190343133).
Regarding claims 4-5, Stanton teaches that fiber can be included in the product (paragraph 57).
Claims 4-5 differ from the combination, as applied to claim 1 in specifically reciting that the dough phase further comprises potato starch or soluble corn fiber (claim 4), and that the potato starch or soluble corn fiber are included in an amount of up to 3% by weight of the dough phase (claim 5).
Wareing teaches including resistant soluble dextrin fiber (see paragraph 147-148) which is also known as soluble corn fiber (see paragraph 142) in bakery products (see paragraph 1) in amounts such as 3% (see paragraph 134, 244) for providing positive prebiotic nutritional benefits (see paragraph 150).
Since Stanton already suggests including fiber, it would therefore have been obvious to one having ordinary skill in the art to have modified Stanton and to include 3% soluble corn fiber, as taught by Wareing, for the art recognized purpose of providing positive, prebiotic nutritional benefits to the cake product.
Claims 16, 17, 19 and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Stanton (US 20110183059) in view of Kou (US 20080063751) and in further view of Hay (US 5340598), Hahn (US 6217929), Ekanayake (US 6056984), Boldon (US 6391366), Horstman (US 20070110869) and Crawford (US 20100034933) and in further view of Murphy (US 5403610), Domingues (US 20070092603) and “Seasoned Advice” and in further view of Sugisawa (US 4777057), Canadian Grain Commission and Bellido (US 20160135472).
Regarding claim 16, Stanton, Kou, Hay, Hahn, Ekanayake, Boldon, Horstman and Crawford as applied to claims 1 and 13 above teaches a dough phase comprising the claimed water activity, wheat flour, corn flour, pregelatinized starch component, fruit or vegetable puree or mash, gum, fat, sucrose, egg solids, dairy solids, leavening system and moisture, as recited in steps “ci” to “cx.”
Further regarding claim 16 and steps e-f, Stanton also teaches forming the uncooked dough into portions (see paragraph 31 and 61 which teaches individual round or hex pucks); refrigerating or freezing the portions (see paragraph 33-34) and packaging of the portions (see paragraph 63, the batter can be placed in bakable packaging where the consumer simply places the entire unit directly into the oven). Therefore, Stanton is teaching and suggesting packaging the formed portions and freezing or refrigerating the portions.
Regarding step “a” it is initially noted that Stanton teaches using xanthan gum as well as a second gum; wheat flour and corn flour and also teaches a fat that is solid at room temperature, such as shortening (see paragraph 49). This is analogous to Applicant’s specification at paragraph 32, which discloses that shortening is generally considered a fat that is solid at room temperature.
Claim 16 differs from Stanton in specifically reciting,
“a. combining a flour component, the flour component including a wheat flour and a corn flour,11 and a gum component with wet ingredients to form a first mixture, where the flour component comprises wheat flour and corn flour, the gum component comprises xanthan gum and a second gum, and the wet ingredients comprise water, a fruit or vegetable mash or puree, or any combination thereof;
b. combining the first mixture with dry ingredients to form a second mixture, the second mixture comprising sucrose, an egg solids component, a dairy solids component, and a leavening system; and
c. combining the second mixture with a fat that is solid at room temperature.”
Kou teaches that it has been conventional to provide a setting agent comprising xanthan, locust bean gum and carrageenan (paragraph 12 and 108) and where it has been desirable to hydrate the setting agent and combine it with flour (see paragraphs 31 and 32) and therefore is teaching and suggesting wet ingredients comprising water being combined with a flour component. Ekanayake further evidences that it has been conventional to hydrate the gum component using water (see column 15, lines 15-17). Kou further teaches that a second mixture can be formed by mixing the above first mixture with sucrose, egg solids, dairy solids and a leavening system (see paragraph 32, where sweetener, fiber, a leavening system and fat component can be added to the first mixture) - i.e. dry ingredients. Kou does not provide any specificity as to the particular order of adding the fat component, and as such, it would have been obvious to one having ordinary skill in the art to have added the fat component to the second mixture that comprises sucrose, egg solids, dairy solids and a leavening system, as an obvious rearrangement of the particular steps, for the similar purpose of producing an uncooked dough having a dough phase. That is, it would have been equally obvious to one having ordinary skill in the art to have combined the gum component that includes wet ingredients such as water, with flour to form a first mixture, and then add sucrose as the sweetener and the chemical leavening system to form a second mixture and then to add the fat component last. Furthermore, Murphy (US 5403610) teaches combining wet ingredients, and then adding to said wet ingredients, flour and the remaining dry ingredients (see column 6, lines 13-22) and further teaches that hydrating the gums is useful for controlling moisture migration, and preserving moisture related softness and/or mouthfeel and to impart lubricity to the product while also being able to retain increased moisture in the baked good without substantially increasing the water activity of the baked good (see column 1, line 57 to column 2, lines 2). This teaches and suggests the desirability of first hydrating the gum component and that the wet ingredients including water would have been combined with flour and to this mixture can be added dry ingredients. Domingues (US 20070092603) also teaches hydrating flour to initiate development of dough, then adding minor ingredients and where the total of the dough ingredients can be added in the different stages with different amounts of mixing and at one or more different mixing speeds to provide a uniform distribution of the ingredients in the composition (see paragraph 101) and where additional ingredients can be combined sequentially over two or more mixing stages (see paragraph 97). In view of Kou, Murphy and Domingues, it would have been obvious to one having ordinary skill in the art to have first hydrated the gum and then added and hydrated flour using wet ingredients such as water for the purpose of allowing the flour to develop and to allow the gums to control moisture migration, preserve moisture related softness and/or mouthfeel and to impart lubricity to the product while also being able to retain increased moisture in the baked good without substantially increasing the water activity of the baked good.
To subsequently add dry ingredients such as sucrose, egg solids, dairy solids and a leavening system would have been obvious to one having ordinary skill in the art because the prior art teaches adding a combination of dry ingredients to a wet mixture, as taught by Murphy. Regarding adding a fat that is solid at room temperature, it is noted that the claim does not specify if the addition of the fat occurs at room temperature but rather, only specifies that the fat has the property of being solid at room temperature. Nonetheless, “Seasoned Advice” teaches that it has been desirable to add the fat last when making a flour based dough product so as to prevent the fat from inhibiting gluten formation and because the fat can hinder water absorption (see page 2).
To therefore modify the combination and to add the fat component to the mixture of wet and dry ingredients would have been obvious to one having ordinary skill in the art for the purpose of preventing the fat from inhibiting any desired gluten formation and to prevent the fat from hindering water absorption.
Claim 16 differs from the above combination in specifically reciting that the uncooked dough has a peak positive force of about 200 g to about 1500 g.
Sugisawa (US 4777057) teaches a packaged dough product (see the abstract) where the peak force of the dough can be between 18-470 Brabender units (BU) is useful for enabling easy shaping as well as for providing the proper hardness and shortness of a finished product (see column 2, line 64 to column 3, line 2). Canadian Grain Commission teaches that 1 BU is equivalent to a 1.25 gram load (i.e. 1.25 gram-force) (see page 2/9 to page 3/9: 500-gram load equals 400 Brabender units.”).
Bellido (US 20160135472) discloses that firmness is the same as hardness and is a peak force during compression (paragraph 62).
In view of these teachings, Sugisawa’s teaching of 470 BU is equivalent to a force of about 587.5 grams, which falls within the claimed range.
The prior art thus recognized that the peak force of the dough (i.e. the hardness and therefore the degree of stretching before breaking) is useful for achieving the requisite workability and formability of the dough and teaches values within the range of 200-1500g such as 587.5g. To therefore modify Stanton such that the dough has a peak positive force of 587.5g would have been obvious to one having ordinary skill in the art, for the purpose of achieving the desired formability and hardness to the dough.
Regarding claim 17, Stanton teaches that the pregelatinized starch can be corn starch (see page 6, Table 4) and therefore reads on the recited “corn starch.”
Regarding claim 19, Horstman teaches that the pregelatinized starch can be construed as part of the dry ingredients of a mix (see paragraph 77). In view of this and since the prior art also teaches first combining the wet ingredients and then adding dry ingredients as taught by Murphy, it would have been obvious to one having ordinary skill in the art to have included pregelatinized starch as part of the dry ingredients used in the second mixture.
Regarding claim 21, Stanton teaches inclusions included in the product (see paragraph 58). Since the reference teaches particulates such as nuts and chocolate, it would have been obvious to one having ordinary skill in the art to have distributed the particulates throughout the dough phase for providing more uniform distribution such that each portion had an adequate amount of particulates.
Regarding claim 22, Crawford teaches that particulates are combined with the wet mixture (i.e. the first mixture) (see paragraph 65). Since Stanton is already teaching adding inclusions to the mixture, to therefore modify the combination and to add particulates to the first mixture, to which has been added dry ingredients, would have been obvious to one having ordinary skill in the art for the known purpose of mixing the wet ingredients and to which dry ingredients are subsequently added for producing a homogeneous dough.
Regarding claim 23, “Seasoned Advice” teaches that it has been desirable to add the fat last when making a flour based dough product so as to prevent the fat from inhibiting gluten formation and because the fat can hinder water absorption (see page 2). In view of this, it would have been obvious to one having ordinary skill in the art to have added particulates prior to adding the fat (i.e. before combining the second mixture with the fat) for the same purpose of preventing the fat from inhibiting gluten formation and hindering water absorption.
Regarding claim 24, it is further noted that the limitation of, “combining the second mixture and the fat with the particulates” is not seen to specifically limit the order of combining of the second mixture with the fat and the particulates. In view of this, the claim is also rejected for the same reasons as discussed above with respect to claim 23. Furthermore however, since the prior art teaches adding particulates such as nuts and chocolate chips to a wet mixture that also comprises eggs, water and oil, it is not seen that patentability can be predicted on the specific point at which the particulates were added as such a modification would have been an obvious rearrangement of the particular point at which particulates were added for necessarily achieving a dough comprising particulates. Therefore, selection of any order of adding the particulates is prima facie obvious in the absence of new or unexpected results (see MPEP 2144.04(IV)(C)).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 16 above, and in further view of O’Connor (US 20070286933) and Jones (“Important Mixing Techniques for Baking”)
Claim 20 differs from the combination as applied to claim 16 in specifically reciting one or more of the combining steps are performed at a temperature of about 60°F to about 80°F.
O’Connor teaches known mixing temperatures for a combination of dried egg, leavening agent, sugar and wheat flour can be about 70°F (see page 18, table 15.1). Jones teaches that temperatures such as 68-70°F can help to keep solid fats and proteins plastic and “more stretchy” so that they can expand to their full potential (see page 2 of 4, “Ingredient temperatures”). Jones also teaches on page 2 that having fat at cool room temperature (i.e. 68-70°F) can create minute tears or pockets in the fat where bubbles can form and expand and to prevent the fat from re-solidifying and then preventing homogenous dough (see under “Creaming Method, first three paragraphs).
To therefore modify the combination and to mix the fat, for example, at a temperature of 68-70°F would have been obvious to one having ordinary skill in the art, for the purpose of allowing the fats and proteins to expand to their full potential and to allow for the proper texture and homogeneity when producing the dough.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 21 above, and in further view of Seyam (US 5492710).
Further regarding claim 24, it is noted that Seyam teaches that to a mixture that comprises flour, sucrose, gum, water, dried egg white can be added inclusions as a last step in the process (see column 9, stage 3 and column 9, lines 30-43 where the stage 3 ingredients are added last). Seyam further teaches adding flavor chaps as the last ingredient for the purpose of avoiding smearing the flavor chips or pieces into the dough (see column 7, lines 13-16). Seyam also teaches including other additives such as egg (see column 6, line 12) which would also have obviously provided fat to the mixture prior to adding the inclusions.
Since Stanton and the combination already teach the step of combining the second mixture with a fat, and further teach adding inclusions to the mixture, to therefore modify the combination and to combine the second mixture and the fat with the particulates would have been obvious to one having ordinary skill in the art for the purpose of avoiding smearing of the flavor chips or pieces into the dough as well as being an obvious rearrangement of the particular point at which particulates were added for necessarily achieving a dough comprising particulates. Therefore, selection of any order of adding the particulates is prima facie obvious in the absence of new or unexpected results (see MPEP 2144.04(IV)(C)).
Response to Arguments
On pages 9-10 of the response, Applicant urges that the combination does not teach or suggest that the uncooked dough has a peak positive force of about 200 g to about 1500 g.
These arguments are moot in view of the new grounds of rejection, necessitated by the amendment to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kim (US 20120148720) teaches that a dough’s hardness is one of the physical properties affecting doughiness and formability (see paragraph 37) and that a hardness of 6N is desirable for providing the desired doughiness and formability (see paragraph 38 and figure 1). A hardness of 6N equates to about 611 grams.
Arfsten (US 20130280377) teaches an uncooked dough comprising flour, water, fat, egg, leavening agent and sugar (see paragraph 15) and where the hardness of the dough can be adjusted to be, for example between 6-7N (611-713g) (see figure 2 and paragraph 94) for the purpose of providing the desired workability and processability (see paragraph 37).
Schroder (US 20170127688) teaches strengthening of the gluten network in dough (see paragraph 72) which can lead to increased volume and provide the desired texture (paragraph 20, 59, 73). Schroder further teaches the dough can show a force of 600 BU, or 611g (see paragraph 411). Figure 8B further teaches values which appear to about 1000 BU or 1250g.
Ferrari (US 20170164627) discloses that hardness of a dough product is the maximum peak force during compression (paragraph 158).
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).
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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