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 .
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 12-22 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, new claims 12, 15, 16, 17, 18, 19, all recite particular ranges or limitations and then also recite “preferably” or “more preferably” or “particularly” more narrow ranges or limitations in the same claims. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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 12-22 are rejected under 35 U.S.C. 103 as being unpatentable over Taillade et al. (USPN 6,465,027) in view of “Cultures for Health” NPL (2018), the latter made of record by Applicant.
Regarding new Claims 12-14, Taillade teaches a stabilized, ready to use leaven or sourdough (Column 3, lines 35-65), where the leaven is seen as “live” because Taillade teaches it provides viable lactic bacteria (Column 4, lines 1-10). Taillade teaches liquid leaven as Taillade teaches the liquid preparations of microorganisms are used for seeding the mixture of non-malted flour and water in order to constitute the leaven and also teaches that when the liquid leaven is packaged in important volumes, the leaven is stabilized by means of a classic food grade stabilizing agent such as xanthan gum (Column 7, lines 55-65 and Column 8, lines 10-15), therefore meeting the limitation of a liquid leaven and also teaches making it in the form of a paste with water in order to produce the liquid dough for the leaven (Column 9, lines 19-25).
Taillade does not specifically teach the leaven is a mixture of 55-75% liquid leaven and 25-45% of mucilaginous seeds by weight, where the mucilaginous seeds are chosen from the claimed mixtures recited in new Claim 13. As set forth above, Taillade teaches preparation of a sourdough leaven.
“Cultures for Health” NPL teaches that when baking with sourdough to make gluten free breads, it is important to include a binding agent to replace the binding action of gluten with other binders, where suitable binders include psyllium husks, xanthan gum, guar gum, chia seeds, flax seeds, where xanthan gum is a commonly used binder in gluten-free baking but some people react negatively to it. NPL teaches that chia seeds are becoming increasingly popular as a health food for its high quantities of omega 3 fatty acids and protein and the mucilaginous properties of chia bake it an excellent addition to gluten free baking, as chia provides binding and structure where gluten-free foods may be lacking (Pages 1-2). NPL also teaches that flax seeds have a long history as a food and fiber source, and that much like chia seed, flax produces a mucilaginous gel when mixed with water, which lends structure and binding to gluten-free baking, as well as for its high content of fat and fiber (Page 4). Therefore, where it was desired to use the sourdough leaven of Taillade in gluten-free baking, and to potentially replace the xanthan gum taught by Taillade with another known binder/stabilizer, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used flax or chia seeds in place of the xanthan gum as a stabilizer/binder in the leaven for its art recognized functional and health benefits.
While the prior art does not specifically teach a claimed ratio of liquid leaven to mucilaginous seeds in the leaven mixture, given the art recognized functionality of the mucilaginous seeds, it would have been well within the skill of one of ordinary skill in the art to determine the optimum ratio of leaven and binder/stabilizer in order to prepare gluten-free sourdough baked goods having the desirable binding and structure. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific ratio of liquid leaven to mucilaginous seeds by weight involves only routine skill in the art. MPEP 2144.05 II.
Regarding new Claim 15, Taillade in view of “Cultures for Health” NPL teach the leaven is stable for at least 2 months at 4̊C (Taillade, Column 4, lines 10-15), which is close to the claimed limitation of storage life of at least 9 weeks, where a disclosure of “at least 2 months”/8 weeks at the claimed temperature as claimed would be reasonably expected to not be substantially different from the claimed storage life of at least 9 weeks at the same temperature. Furthermore, it has been found that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I. Therefore, since the prior art teaches the leaven is stable for at least 8 weeks at the same temperature as claimed, one of ordinary skill in the art would have reasonably expected similar stability at 9 weeks at the same temperature, absent any teachings to the contrary.
Regarding new Claim 16, Taillade in view of “Cultures for Health” do not require any texture additives (Taillade, Column 3, lines 50-65).
Regarding new Claims 17-19, Taillade in view of “Cultures for Health” are taken in combination in the rejection of Claim 12 and renders obvious the claimed leaven mixture. Taillade in view of “Cultures for Health” further teach taking the leaven and fermenting in at about 30̊C for 20 to 30 hours until a baker’s leaven or sourdough is obtained and which is stable during storage (Taillade, Column 9, lines 25-40), where Taillade in view of “Cultures for Health” are taken as cited above and render obvious the storage stability of the leaven for at least 9 weeks, as set forth in the rejection of Claim 15 and at 4̊C. The prior art teaches fermenting the leaven at a temperature within the claimed range, but does not specifically teach fermenting for as long as claimed. However, it is submitted that it would have been well within the skill of one of ordinary skill in the fermentation and sourdough art to have determined the optimal amount of fermentation time, depending on the extent of fermentation desired in the final leaven.
Such optimization would have been the result of routine optimization and experimentation for one of ordinary skilled in the fermentation and sourdough art.
Regarding new Claims 20-22, Taillade in view of “Cultures for Health” NPL teach and render obvious the leaven as recited in Claim 12 and teaches that the thus obtained leaven enables making a leavened bread, thus a bakery product, after 6 hours of fermentation of a dough seeded with the said leaven added at about 15% with respect to the flour used (Taillade, Column 12, lines 1-5). Therefore Taillade in view of “Cultures for Health” NPL in combination teach and render obvious a bakery product containing 5 to 15% by weight of the live leaven as an initial composition before baking, the percentage expressed as a baker’s percentage, as baker’s percentage is known in the baking art as % by weight of flour, and also teach the claimed method of preparing a bakery product, comprising incorporating the live leaven into an initial composition of the bakery product before baking, where the live leaven is incorporated at a rate of 5 to 15% by weight, the percentage being expressed as a baker’s percentage.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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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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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 2/19/2026