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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 07/14/2026 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of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. 112(b) rejections have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-17
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 2, 4, 14, and 15
Amended claims: 1, 5, and 13
New claims: None
Claims currently under consideration: 1, 3, 5-13, 16, and 17
Currently rejected claims: 1, 3, 5-13, 16, and 17
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3, 5-12, 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Frost et al. (U.S. 6,656,516 B1) in view of Siems et al. (U.S. 3,870,803), Hosoya et al. (U.S. 2006/0078664 A1), and Forrest et al. (U.S. 2018/0168172 A1).
Regarding claim 1, Frost et al. discloses a method for preparing bread crumbs (C1, L8-L11; C5, L24-L29), the method comprising (i) preparing a primary dough by mixing the raw materials of the primary dough (C5, L27), which comprises flour, yeast, and water (C4, L49-L54), (ii) preparing bread by heating the dough (C5, L28), and (iii) grinding the prepared bread (C5, L29).
Frost et al. does not specifically disclose subjecting the primary dough to a first resting period of 12-30 hours at a temperature in the range of 20-30°C, preparing a second dough via addition of flour, salt, and water to the rested primary dough, where the flour portion of the primary and secondary doughs is at a mixing ratio between 5:5 to 7:3, or subjecting the second dough to a second resting period.
However, Siems et al. discloses that bread suited for producing bread crumbs may be produced by a “sponge dough” method (C2, L32-L34, L53-L55), wherein an initial dough is formed with flour, yeast, and water (C3, L1-L4). The dough is then allowed to ferment before being mixed with remaining ingredients, such as flour, salt, and water (C3, L4-L7). The dough is then allowed to redevelop (C3, L7-L8).
It would have been obvious to one having ordinary skill in the art producing bread crumbs according to Frost et al. to produce the cooked bread material via a sponge dough method that involves the preparation of a first dough that is rested before being used to form a second dough that is further rested and ultimately used in the preparation of the bread material. First, Frost et al. discloses that the produced bread products are preferably bread crumbs (C3, L4-L6) and further indicates that the necessary structural properties of the dough may be achieved by producing the bread material via “most traditional bread-making processes…by mixing the dough under wholly conventional conditions” (C3, L10-L13). A skilled practitioner would thus be motivated to consult Siems et al. for clarification regarding conventional production methods for such bread crumbs. The instruction in Siems et al. that bread crumbs may be best produced via a sponge dough method (C2, L53-L55) renders the use of such a method in the production of bread crumbs as in Frost et al. obvious. The disclosed sponge dough method involves the formation of an initial dough with flour, yeast, and water that is then allowed to ferment before being mixed with remaining ingredients, such as flour, salt, and water and further redeveloped (C3, L1-L8), which renders obvious the claimed steps of subjecting the primary dough to a first resting period, preparing a second dough via addition of flour, salt, and water to the rested primary dough, and subjecting the second dough to a second resting period.
As for the length of the first resting period, Hosoya et al. discloses the first fermentation period of the sponge dough method may occur “for a period of time long enough to ensure sufficient fermentation”, where addition of sugars allows for a shorter fermentation time ([0047]-[0048]). Forrest et al. discloses the fermentation time for a first dough produced according to a sponge dough method may be as high as 18 hours ([0098]).
It would have been obvious to one having ordinary skill in the art to perform a first resting period for a time in the range of 12-30 hours. Since Frost et al. discloses a preference for low sugar content that may undergo a Maillard reaction (C3, L31-L47) and the composition of Siems et al. comprises sugars (C3, L1-L7), a skilled practitioner would further consult Hosoya et al. and Forrest et al. for further information regarding suitable parameters for the first resting step. Since Hosoya et al. discloses the first fermentation period may occur “for a period of time long enough to ensure sufficient fermentation”, where addition of sugars allows for a shorter fermentation time ([0047]-[0048]), the resting period is considered a result-effective variable subject to optimization, together with the sugar concentration. MPEP 2144.05 II. The preference in Frost et al. for a low sugar content would motivate lengthening of the fermentation period. The disclosure of Forrest et al. that such a period may be as long as 18 hours ([0098]) suggests such a time period is within the ordinary skill in the art and would thus be obvious. Accordingly, the claimed resting period of 12-30 hours would be obvious to a skilled practitioner.
As for the temperature of the first resting period, Hosoya et al. discloses the first resting period for producing bread via the sponge dough method as being at a temperature of 26-29°C ([0048]), which renders the claimed range of 20-30°C obvious.
As for the flour mixing ratio between the primary and secondary doughs, Hosoya et al. discloses that the amount of flour used in the sponge should be 50-80% by mass of the total flour in the overall dough ([0047]), which would include a ratio of 1:1 that falls within the claimed range. The claimed range of 5:5 to 7:3 would thus be obvious.
As for claim 3, Hosoya et al. discloses the inclusion of skim milk powder in the raw material portion of the second dough ([0045], [0061]). Frost et al. discloses bread crumb as comprising coloring agents (C6, L37-L39), which renders the addition of a colorant to any intermediate mixture in producing the bread crumb obvious, including the secondary dough.
As for claim 5, Siems et al. discloses that a suitable crumb comprises at least 50% by weight of crumb components that range from 3 (6.7 mm) – 14 (1.40 mm) mesh in size (C3, L.19-L37). Use of a 14 mesh screen falls within the claimed range, thus rendering the claimed range obvious.
As for claim 6, Frost et al. discloses the yeast concentration as ranging from 1-10% (C4, L49-L54). Hosoya et al. discloses that fermentation “for a shorter period of time” may yield “a young sponge” that lacked “fermentation stability and mechanical tolerance” and that fermentation “for a longer period of time” may result in an “overfermented old sponge” ([0048]). Hosoya et al. discloses fermentation times of 3-6 hours ([0048]). The degree of fermentation is thus interpreted as being a feature that may be optimized via manipulation of process parameters. A skilled practitioner would recognize that in order to perform fermentation for a time period as long as that taught in Forrest et al. of 18 hours ([0098]) then lowering of the yeast concentration would slow fermentation accordingly. A range of yeast concentration lower than that disclosed in Frost et al. of 1-10% is thus considered obvious as a parameter that may be manipulated in order to lengthen the fermentation time. The claimed yeast concentration of 0.1-0.5 parts by weight per 100 parts by weight of the total primary dough would therefore be obvious to a skilled practitioner.
As for claim 7, the claiming of a ratio between two components without requiring any minimal concentration of either renders the ratio inconsequential. In other words, the ratio may be met by infinitesimal concentrations of components that are essentially imperceptible upon consumption of the food product and that have no apparent effect. As such, any ratio between two components would be obvious, including the claimed ratio between the skim milk powder and the colorant of 200:1 to 10:1.
As for claim 8, Frost et al. discloses the raw materials of the dough components do not comprise glucose, sugar (sucrose), fructose, or maltose (C3, L31-L47; C4, L49-L54; C5, L13-L16).
As for claim 9, Frost et al. (as modified by the additionally cited prior art references) discloses bread crumbs prepared by the method (C5, L25; C6, L30).
As for claim 10, Frost et al. discloses that browning during frying is minimized due to reduction of reducing sugars in the dough (C2, L60-L65). Frost et al. further discloses that “the level of browning may be predetermined by adding back a defined amount of a standard flour (e.g., wheat flour) and/or fine fraction flour” (C4, L66 – C5, L1). The degree of browning is thus considered a result-effective variable that may be optimized as desired, ranging from wherein no browning occurs to where maximum possible browning occurs. MPEP 2144.05 II. The claimed change in color lightness of 10-40% upon heating “once or twice” is thus considered obvious to a skilled practitioner.
As for claim 11, Frost et al. discloses heating at a temperature in the range of 160-190°C for 0.5-5 minutes (C3, L48-L54; C6, L23-L24).
As for claim 12, the same rationale detailed previously in relation to claim 10 applies herein, such that any achievable coloration is considered obvious due to the degree of browning being a result-effective variable subject to optimization. The claimed color lightness of 50 to 60 after heating is thus considered obvious.
As for claim 16, Frost et al. discloses breadcrumbs and food products incorporating those products (C1, L8-L11). Frost et al. further describes foods coated in breadcrumbs that are removed from a freezer and fried (C1, L12-L16). Frost et al. thus effectively discloses a frozen food comprising the bread crumbs.
As for claim 17, the same rationale detailed previously in relation to claim 13 applies herein, such that any achievable coloration is considered obvious due to the degree of browning being a result-effective variable subject to optimization. The claimed color lightness of 50 to 60 after heating is thus considered obvious.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Frost et al. (U.S. 6,656,516 B1) in view of Hosoya et al. (U.S. 2006/0078664 A1).
Regarding claim 13, Frost et al. discloses bread crumbs comprising flour, yeast, salt, and water (C4, L49-L54), and colorant (C6, L37-L39). Frost et al. further discloses heating the bread crumbs at a temperature in the range of 160-190°C for 0.5-5 minutes (C3, L48-L54; C6, L23-L24).
Frost et al. does not disclose the bread crumb as comprising skim milk powder or the color lightness as decreasing by 10-40% upon heating, wherein the bread crumbs have a color lightness (L value) of 50-60 after heating once or twice.
However, Hosoya et al. discloses the addition of skim milk powder to a dough ([0045], [0061]).
It would have been obvious to one having ordinary skill in the art to add skim milk powder to the dough of Frost et al. used in producing bread crumbs. Frost et al. discloses the bread crumbs may comprise texturizing additives and/or food additives (C6, L37-L40). A skilled practitioner would be motivated to consult Hosoya et al. for instruction regarding typical additives in dough products. Since Hosoya et al. disclose the addition of skim milk powder to a dough, the inclusion of skim milk powder as a food additive in the bread crumb product of Frost et al. would be obvious to a skilled practitioner.
As for the color change, Frost et al. discloses that browning during frying is minimized due to reduction of reducing sugars in the dough (C2, L60-L65). Frost et al. further discloses that “the level of browning may be predetermined by adding back a defined amount of a standard flour (e.g., wheat flour) and/or fine fraction flour” (C4, L66 – C5, L1). The degree of browning is thus considered a result-effective variable that may be optimized as desired, ranging from wherein no browning occurs to where maximum possible browning occurs. MPEP 2144.05 II. The claimed change in color lightness of 10-40% to an L value of 50-60 upon heating “once or twice” is thus considered obvious to a skilled practitioner.
Response to Arguments
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1-12 based on amendment to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 1-12, 16, and 17 over Frost et al., Siems et al., Hosoya et al., and Forrest et al.; and claims 13-15 over Frost et al. and Hosoya et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that a skilled practitioner would not have been motivated to modify the method of Siems et al. to have a resting period longer than six hours (Applicant’s Remarks, p. 4, ¶7).
However, Hosoya et al. states: “the mixed sponge may be fermented…for a period of time long enough to ensure sufficient fermentation, for example, but not limited to, 3 to 6 hours” ([0048]). Hosoya et al. teaches detrimental effects may occur whether the fermentation is too long or too short ([0048]), which further supports the determination that the resting period is properly deemed a result-effective variable subject to optimization. Examiner maintains that adequate motivation was detailed for modifying Siems et al. according to the instruction in Hosoya et al.
Applicant further argued that Forrest et al. indicates that a time at high as 18 hours is not preferred due to requiring an additional processing step (Applicant’s Remarks, p. 4, ¶7).
However, Forrest et al. indicates the additional process steps are merely characteristic of the “sponge and dough” process ([0098]), which was shown to be obvious to incorporate based on the instruction in Siems et al. Further, MPEP 2123 II states: “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” Examiner thus maintains that Forrest et al. is properly relied on in deeming the claimed time period obvious.
Applicant next asserted that the claimed mixing ratio was critical (where flour with a ratio of 40% and 80% exhibited inferior characteristics), which was alleged as overcoming the obviousness determination (Applicant’s Remarks, p. 5, ¶2 - ¶4).
However, Hosoya et al. discloses an example wherein the flour portions in the sponge and dough are at a ratio of 70:30 ([0061]), which undermines Applicant’s assertion of criticality.
Applicant then argued that the claimed method produces unexpected results in the form of bread crumbs with higher preference scores for organoleptic properties than a control bread crumb produced by the straight bread crumb method (Applicant’s Remarks, p. 6, ¶2).
However, MPEP 716.02(d) states: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’” The present claims do not require sufficient limitations to be commensurate in scope with the asserted data (e.g., yeast/flour/water concentrations, flour type, second resting parameters, exclusion of ingredients or treatment steps that may affect the asserted organoleptic properties), which is consequently insufficient to overcome the obviousness determination.
The rejections of claims 1, 3, 5-13, 16, and 17 have been maintained 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.
Claims 1, 3, 5-13, 16, and 17 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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