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 .
Election/Restrictions
Applicant elected claims 1-15 and 17 in the reply filed 2/27/2026, with traverse.
Claims 16 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 2/27/2026.
The applicant argues that US 2018/0317501 (LAMMERS et al.) does not teach the special technical feature of expanding baked products in an oven, as claimed. It is argued that LAMMERS et al. uses an extruder or mixer and not an oven.
While the applicant argues that the extruder of LAMMERS is distinct from the oven of the present invention, the oven of claim 16 requires multiple features not required in the process of claims 1-15 such as heating devices, sensors and control units specifically limited or linked to the baking chamber, whereas the breadth of the process claims make no such distinctions.
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.
Claim 15 is 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.
Claim 15 recites that the process comprises solubilizing under pressure the at least one foaming agent in the food dough (4) comprises: putting said at least one foaming agent under pressure in a solubilization and baking chamber (3) of the oven (1) containing the food dough (4). However, it is not clear whether the solubilization and baking chamber are separate sections or that the putting said at least one foaming agent under pressure in a solubilization also occurs in the baking chamber. The claim is interpreted as the solubilization and additional process steps all occur in the baking chamber.
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, 2 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by United States Patent Applications Publication No. 2018/0317501 (LAMMERS) (see IDS of 3/7/2024).
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At the outset, it is noted that the present specification broadly defines an oven as a device that includes a baking chamber but that also can have different partitions. Paragraph [0094] of the published version of this specification (i.e., US 2024/0381878) indicates the solubilization and baking chamber can be partitioned.
Paragraph [0094] is as follows:
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Thus, the term oven in the claims is interpreted as an apparatus that can have multiple sections or partitions and that one of those sections is a baking chamber.
LAMMERS also teaches an apparatus that contains multiple sections or partitions (abstract and Fig. 2).
LAMMERS teaches the baking/solidification/stabilization of the dough occurs in an oven per [0040] and [0090]. Thus, the food dough must be placed in an oven i.).
Lammers also teaches ii.) solubilizing at least one foaming agent (i.e., a gas such as CO2 [0097]) in the food dough placed in the oven [0090].
LAMMERS teaches iii.) releasing the pressure so as to obtain an expanded food dough in that [0090] teaches that the gas dissolution takes place in section 1 , the relaxation at a nozzle 25 on the end side to an extruder 3 takes place in section 2 , and the foam stabilization/baking in a heating chamber takes place in section 3 (see also [0118]-[0123]).
LAMMERS teaches iv.) extracting the expanded baked food product from the oven in that the product is removed from the apparatus [0124]. The appearance of the final product appears in Fig. 4. Additionally, [0137] discusses the attained food product pore diameter and density of the final product that has been extracted from the oven.
As to the wherein the process further comprises: baking the food dough (4) in said oven (1) to obtain and expanded dough, this occurs during the process. LAMMERS also teaches the stabilization of results from the baking food dough [0090] and [0123].
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LAMMERS teaches that the baking and processing of the steps occurs as the baked good process through sections i.) to iii.). Thus, the baking of the food dough is at least partially concurrent with steps ii.) to iii.).
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Lammers also teaches ii.) solubilizing at least one foaming agent (i.e., a gas such as CO2 [0097]) in the food dough placed in the oven [0090].
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.
Claim(s) 3-9, 11, 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Applications Publication No. 2018/0317501 (LAMMERS) (see IDS of 3/7/2024).
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LAMMERS is cited for the reasons noted above. Additionally, it would have been obvious to repeat the process, including steps ii.) and iii.) based on the amount of expansion and type of product needed.
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As to claims 4-5, LAMMERS teaches that foaming agents used such as carbon dioxide or nitrous oxide can be used [0055]. LAMMERS teaches that the foaming agent is dissolved in the subcritical state in the dough matrix and that a suitable combination of shear, temperature, dwell time and pressure can be used [0035]. It would have bene obvious vary the parameters of time and/or pressure based on the they type of foaming agent used and shear and temperature being used, as taught by LAMMERS.
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As to claims 6-12 and 17, LAMMERS teaches that the foaming agent is dissolved in the dough matrix and that a suitable combination of shear, temperature, dwell time and pressure can be used [0035].
As to the pressures, times, and isobar phase, LAMMERS does not specifically mention these parameters, but does teach in [0035] to [0037] that a suitable combination of shear, temperature, dwell time and pressure, preferably for carbon dioxide (CO2) can range from 10 bar≤p<73.8 bar (i.e. <the critical pressure of (CO2) at a temperature of<31° C.
As alternative to carbon dioxide (CO2), noxious gas (N2O) can be dissolved as gas in the subcritical state at pressures of preferably 10 bar≤p<72.4 bar and a temperature of <36.4° C. A dwell time of preferably between 30s and 300s.
As to the baking step, the baking occurs in section 3/ heating chamber portion of the LAMMERS apparatus at 200oC [0123].
It would have been obvious vary the parameters of time, isobar phase and/or pressure based on the type of foaming agent, shear and temperature being used, as taught by LAMMERS.
Moreover, Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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LAMMERS teaches that the product can be produced without yeast [0067].
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LAMMERS teaches that the food dough proceeds through sections 1 to 3 [0078]-[0085] which naturally provides a support plane.
Claims Free of Prior Art
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Claim 15 is free of prior art as the prior art such as LAMMERS does not teach a process wherein solubilization via pressurization and the release of that pressure to form bubbles in a food dough all occur in a heating chamber of an apparatus/oven.
Relevant Prior Art Not Relied Upon
US 3,499,766 teaches a puffed cereal. Expansion of the puffed cereals occurs via a gun or oven (col. 5, lines 55-65).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791