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 .
Information Disclosure Agreement
The information disclosure statement filed February 11, 2026 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Objections
Claim 5 is objected to because of the following informalities: The recitation “wherein the whole grain is of whole oats” should read “wherein the whole grain is whole oats”. Appropriate correction is required.
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 15 and 27 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.
Claim 15 recites the limitation “wherein the flavoring composition comprises between about 50 wt% and about 80 wt% of the weight of the flavoring composition”. There is no subject of the limitation recited in the instant claim. For the purposes of examination, the limitation will be interpreted as the flavoring composition comprising oil between 50 and 80 wt% of the flavoring composition due to the deletion of the subject “oil” in the original listing of the claims.
Claim 27 recites the limitation “The edible product of claim ,”. This recitation lacks a claim upon which the instant claim depends. For the purposes of examination, claim 27 will be interpreted as dependent upon claim 20, due to the recitation of the limitation of a flavoring composition.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 3-4, 7-8, 11-12, 15-16, 30, 32-33, 36-37 are rejected under 35 U.S.C. 103 as being unpatentable over Caws (US 2014/0030376 A1).
With respect to Claims 1 and 11, Caws teaches a gluten-free, ready-to-eat food composition [0002] comprising puffed millet and puffed rice and/or oats and a flavoring, [0013] wherein the composition can be extruded. [0044] In a specific example, 11 cups of puffed millet, about 231 grams, 0.5 cups maple syrup, about 157.5 grams, and 1/3 cup of vegetable oil, about 75.7 grams, are combined to form a snack food. This results in about 50% puffed millet, and about 34% flavoring in the form of maple syrup. [0049-50] The example given does not teach extruding the composition, but in light of the Caws teaching of extrusion, it would have been obvious to implement extrusion as a method of production.
This embodiment reads on the limitation of an extruded, puffed, grain-based core of between about 30-50%, wherein there is at least one whole grain in an amount of at least 25 wt% and a flavoring composition constituting up to about 70%. Additionally, Caws teaches the use of peanut butter, among other flavorants, applied as a dressing and/or topping, [0035] which reads on the flavoring composition covering the external surface and at least partially absorbed by the puffed core.
MPEP 2144.06 II states, “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art”. Peanut butter would have been an obvious substitution for maple syrup as taught by Caws, and it therefore would have been obvious to have used about the same amount, that is 34%.
This embodiment lacks an at least one additional grain, different from the whole grain, but the teaching of Caws allows for a second grain in the form of oat or rice. [0013] Caws does not explicitly teach an amount of second grain that would be incorporated, but the recitation of between about 30-75 wt% amounts to routine optimization of the instant invention. According to MPEP 2144.05 II, “[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”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in order to produce an edible product comprising an extruded, puffed, grain-based core of between about 30-50 wt% and a flavoring of up to about 70 wt%, wherein the core comprises at least one whole grain in an amount of at least about 25 wt% and at least one additional grain, different from the whole grain, comprising between about 30 and 75 wt%, thereby rendering claim 1 obvious.
With respect to Claims 3-4 and 7-8, Caws teaches the invention recited in claim 1, as described above. Additionally, Caws teaches the whole grain can comprise puffed millet, rice, oats, or combinations thereof. [0013] Additionally, Caws teaches incorporating corn [0034] and corn starch. [0036] Therefore, Caws renders claims 3-4 and 7-8 obvious.
With respect to Claim 12, Caws teaches the invention recited in claim 1, as described above. Additionally, Caws teaches the use of peanut butter as a flavorant, applied as a dressing or topping, [0035] and it would have been obvious to substitute for the maple syrup at 34%, [0050] as described above, in the rejection of claim 1.
Additionally, 34% is about 35%, and MPEP 2144.05 II states, “[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”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws to produce the edible food composition taught in claim 1, wherein peanut butter is incorporated in at least 35%, thereby rendering claim 12 obvious.
With respect to Claim 15, Caws teaches the invention recited in claim 1, as described above. Additionally, the rejection of claim 1 teaches the use of peanut butter as a flavorant. The instant specification discloses, “As peanut butter typically comprises about 50% peanut solids and about 50% oil (e.g. peanut oil), the peanut butter can function as a flavoring agent within a carrier edible fluid, or can function both as a flavoring agent and carrier edible liquid”. [Pg. 5, Par. 4]
MPEP 2112 II states, “There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference”. The peanut butter taught by Caws would have possessed the same inherent characteristics as the peanut butter in the instant claims, including that of an oil composition of about 50%.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws to produce an edible product according to claim 1, wherein the flavoring composition comprises between about 50 and 80 wt%, thereby rendering claim 15 obvious.
With respect to Claim 16, Caws teaches the invention recited in claim 1, as described above. Additionally, Caws teaches the use of natural or artificial sweeteners, between the range of about 1 to about 80 wt%. [0032] About 1 wt% is interpreted to include up to about 0.3 wt%. MPEP 2144.05 I states, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in order to produce an edible composition according to claim 1 comprising up to about 15% natural sweetener and up to about 0.3% artificial sweetener, thereby rendering claim 16 obvious.
With respect to Claim 30, Caws teaches a gluten-free, ready-to-eat food composition [0002] comprising puffed millet and puffed rice and/or oats and a flavoring, [0013] wherein the composition can be extruded. [0044] In a specific example, 11 cups of puffed millet, about 231 grams, 0.5 cups maple syrup, about 157.5 grams, and 1/3 cup of vegetable oil, about 75.7 grams, are combined to form a snack food. [0048] This results in about 50% puffed millet, and about 34% flavoring in the form of maple syrup. [0049-50] This embodiment reads on the limitation of an extruded, puffed, grain-based core of between about 30-50%, wherein there is at least one whole grain in an amount of at least 25 wt%.
This embodiment lacks an at least one additional grain, different from the whole grain, but the teaching of Caws allows for a second grain in the form of oat or rice. [0013] Caws does not explicitly teach an amount of second grain that would be incorporated, but the recitation of between about 30-75 wt% amounts to routine optimization of the instant invention. According to MPEP 2144.05 II, “[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”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in order to produce an edible product comprising an extruded, puffed, grain-based core of between about 30-50 wt%, wherein the core comprises at least one whole grain in an amount of at least about 25 wt% and at least one additional grain, different from the whole grain, comprising between about 30 and 75 wt%, thereby rendering claim 30 obvious.
With respect to Claims 32-33 and 36-37, Caws teaches the invention recited in claim 30, as described above. Additionally, Caws teaches the use of whole grains in the form of puffed millet, oats, and rice. [0013] Additionally, Caws teaches incorporating corn [0034] and corn starch. [0036] Therefore, Caws renders claims 32-33 and 36-37 obvious.
Claims 9-10, 20-22, 25-27, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Caws (US 2014/0030376 A1) in view of Chatel et al. (US 2012/0040072 A1).
With respect to Claims 9 and 10, Caws teaches the invention recited in claim 8, as described above, but is silent to percentages of the components therein. Additionally, the invention taught by Caws is gluten-free. [0002]
Chatel et al. teaches an extruded food product comprising whole oat, whole corn, and rice flour, wherein the whole oat flour is present at 12%, the whole corn flour is present at 36%, and the rice flour is present at 8%. [0029-30] The amount of whole corn material lies within the range recited in claim 9, and the difference between the rice and oat materials taught in Chatel et al. and the instant claim amounts to routine optimization. MPEP 2144.05 II states, “[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”. It would have been obvious to have optimized the amount of each grain added to the composition to obtain the best organoleptic properties in the final product.
Caws and Chatel et al. exist within the same field of endeavor in that they teach a method of processing whole grains into edible foods. Where Caws teaches a method of using puffed whole grains with a flavored coating, Chatel et al. teaches the use of a variety of whole grain flours in the interest of an extruded food. Additionally, one would have been motivated to use the teaching of Chatel et al. due to the superior quality of the compositions taught. [0016]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in view of Chatel et al. to produce the invention recited in claim 8, wherein the puffed core comprises between 25-40% whole oats, 20-40% corn, and 20-40% rice, and is gluten free, thereby rendering claims 9 and 10 obvious.
With respect to Claim 20, Caws teaches a gluten-free, ready-to-eat food composition [0002] comprising puffed millet and puffed rice and/or oats and a flavoring, [0013] wherein the composition can be extruded. [0044] In a specific example, 11 cups of puffed millet, about 231 grams, 0.5 cups maple syrup, about 157.5 grams, and 1/3 cup of vegetable oil, about 75.7 grams, are combined to form a snack food. This results in about 50% puffed millet, and about 34% flavoring in the form of maple syrup. [0049-50] The example given does not teach extruding the composition, but in light of the Caws teaching of extrusion, it would have been obvious to implement extrusion as a method of production.
These teachings render obvious an extruded, puffed, grain-based core, wherein there is at least one whole grain in an amount of at least 10 wt% and a flavoring composition constituting up to about 70%. Additionally, Caws teaches the use of peanut butter, among other flavorants, applied as a dressing and/or topping, [0035] which reads on covering the external surface and at least partially absorbed by the puffed core.
MPEP 2144.06 II states, “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art”. Peanut butter would have been an obvious substitution for maple syrup as taught by Caws, and it therefore would have been obvious to have used about the same amount, that is 34%.
Chatel et al. teaches an extruded food product comprising whole oat, whole corn, and rice flour, wherein the whole oat flour is present at 12%, the whole corn flour is present at 36%, and the rice flour is present at 8%. [0029-30] The amount of whole corn material lies within the range recited in the instant claim.
Caws and Chatel et al. exist within the same field of endeavor in that they teach a method of processing whole grains into edible foods. Where Caws teaches a method of using puffed whole grains with a flavored coating, Chatel et al. teaches the use of a variety of whole grain flours in the interest of an extruded food. Additionally, one would have been motivated to use the teaching of Chatel et al. due to the superior quality of the compositions taught. [0016]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in order to produce an edible product comprising an extruded, puffed, grain-based core, wherein the core comprises at least one whole grain in an amount of at least 10 wt% and at least one additional grain, different from the whole grain, of between about 20-40 wt%, and a flavoring of up to about 70 wt%, thereby rendering claim 20 obvious.
With respect to Claims 20-22 and 25, Caws in view of Chatel et al. teaches the invention recited in claim 20, as described above. Additionally, Caws teaches the whole grain can comprise puffed millet, rice, oats, or combinations thereof. [0013] Additionally, Caws teaches incorporating corn [0034] and corn starch. [0036] Therefore, Caws renders claims 20-22 and 25 obvious.
With respect to Claim 26 and 38, Caws in view of Chatel et al. teaches the inventions recited in claim 25 and 37, as described above. Additionally, Chatel et al. teaches an extruded food product comprising whole oat, whole corn, and rice flour, wherein the whole oat flour is present at 12%, the whole corn flour is present at 36%, and the rice flour is present at 8%. [0029-30]
The amount of whole corn material lies within the range recited in claim 9, and the difference between the rice and oat materials taught in Chatel et al. and the instant claim amounts to routine optimization. MPEP 2144.05 II states, “[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”. It would have been obvious to have optimized the amount of each grain added to the composition to obtain the best organoleptic properties in the final product.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in view of Chatel et al. to produce the invention recited in claim 8, wherein the puffed core comprises between 25-40% whole oats, 20-40% corn, and 20-40% rice, and is gluten free, thereby rendering claims 26 and 38 obvious.
With respect to Claim 27, Caws in view of Chatel et al. teaches the invention recited in claim 20, as described above. Additionally, Caws teaches the use of peanut butter as a flavorant. [0035] Caws teaches the flavor can be maple syrup, [0019] and can be incorporated at about 34%. [0050] MPEP 2144.06 II states, “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art”. Peanut butter would have been an obvious substitution for maple syrup as taught by Caws, and it therefore would have been obvious to have used about the same amount, that is 34%.
Additionally, 34% is about 28%, and MPEP 2144.05 II states, “[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”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Caws in view of Chatel to produce the edible food composition taught in claim 20, wherein peanut butter is incorporated in about 15-28%, thereby rendering claim 27 obvious.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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