DETAILED ACTION
Background
The amendment dated June 01, 2024 (amendment) amending claims 1, 3-23, 25-26, 28 and 30 and canceling claims 24, 27, 29 and 31 has been entered. Claims 1 and 3-23 as filed with the amendment have been examined. Claims 2, 25-26, 28 and 30 have been withdrawn from consideration.
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’s election of the invention of Group I, claims 1 and 3-23 drawn to a method of manufacturing a snack food pellet in the reply filed on April 27, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 2, 25-26 , 28 and 30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on April 27, 2026.
Drawings
The drawings are objected to because in Figure 2 the labels on the x and y axes (respectively, “Dimension 1” and “Dimension 2”) do not include valid, clear units. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1 and 3-23 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.
In claim 1, at line 10 the term “standard conditions” defining a relative method of making a pellet is indefinite because no such standard conditions are specified or implied in the claims. Further, the differences between such “standard conditions” and the claimed dough, extruding the dough, forming the extrudate into pellets and drying the pellets are not clear. In all cases where the claims demand any comparison, a valid comparison must be statistically determinate, such as, for example, by isolation of one variable that differs between the invention and the comparison to include valid reasons to explain the need for any additional differences between the inventive method and the comparative method.
The Office considers the term “standard conditions” to include any method of manufacturing a snack food pellet.
Regarding instant claims 3, 4, 8, 12, 15 and 18, claim 3, at lines 3-4 and each of claim 4 at line 4, claim 8, at line 4-5, claim 12, at lines 3-4, claim 15, at lines 4-5 and claim 18, at lines 4-5 recites the limitation of a temperature of an extruder "relative to the temperature of an extruder" for a high added sodium dough. There is insufficient antecedent basis for this temperature limitation in the claim. The claims nowhere recite the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium or any other methods of processing the dough comprising at least about 950 mg of added sodium.
The Office interprets the claimed extruder temperature in extruding a dough comprising at least about 950 mg of added sodium to be any temperature that is less than the extruder temperature in extruding the dough of claim 1.
Regarding instant claims 3, 5, 9, 13, 15 and 18, claim 3, at lines 6-7 and each of claim 5 at line 2, claim 9, at line 4-5, claim 13, at lines 2-4, claim 15, at lines 7-8 and claim 18, at lines 7-8 recites the limitation a speed of an extruder relative to "the speed of an extruder" for processing a high added sodium dough There is insufficient antecedent basis for this speed limitation in the claim. The claims nowhere recite the speed of an extruder used to extrude a dough comprising at least about 950 mg of added sodium or any other methods of processing the dough comprising at least about 950 mg of added sodium.
The Office interprets the claimed extruder speed of extruding a dough comprising at least about 950 mg of added sodium to be any speed that is less than the extruder speed in extruding the dough of claim 1.
Regarding instant claims 3, 6 and 10, claim 3, at lines 9-10, claim 6, at line 2, and claim 10, at lines 4-5 recites a moisture content relative to “the moisture content” of a high added sodium dough. There is insufficient antecedent basis for this moisture content limitation in the claim. The claims nowhere recite the moisture content of a dough comprising at least about 950 mg of added sodium or any other methods of processing the dough comprising at least about 950 mg of added sodium. An amount of sodium does not define an amount of moisture.
The Office interprets the claimed moisture content of a dough comprising at least about 950 mg of sodium to be any moisture content that is greater than the moisture content of the dough of claim 1.
Regarding instant claims 3, 7 and 11, claim 3, at lines 12-13 and claim 11, at lines 3-5 recites an amount of injected steam relative to the "amount of injected steam” in a high added sodium dough. There is insufficient antecedent basis for this amount of steam limitation in the claim. The claims nowhere recite the amount of injected steam in preconditioning a dough comprising at least about 950 mg of added sodium or any other methods of processing the dough comprising at least about 950 mg of added sodium.
The Office interprets the claimed amount of injected steam in preconditioning a dough comprising at least about 950 mg of sodium to be any amount of injected steam that is less than the amount of injected steam in the dough of claim 1.
In claim 23, at lines 10-11 the term “comparable pellet comprising at least about 950 mg of added sodium per 100 g of pellets” is indefinite because the composition of a comparable pellet is indeterminate. Further, the differences between a comparable pellet and the claimed pellet is not clear. In all cases where the claims demand any comparison, a valid comparison must be statistically determinate, such as, for example, by isolation of one variable that differs between the invention and the comparison to include valid reasons to explain the need for any additional differences between the inventive pellet and the comparative pellet.
The Office would consider a comparable pellet that is the same as the inventive pellet except that it is made from a dough comprising at least about 950 mg of added sodium and is processed in the same way as the inventive pellet except for one claimed method step or control that is indicated as inventive.
Claims 14, 16-17 and 19-22 are rejected as depending from a rejected base claim.
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, 3-21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over US2011/0305800 A1 to Iannazzo et al (Iannazzo).
The Office considers the term “standard conditions” to include any method of manufacturing a snack food pellet. The Office considers the term “comparable pellet comprising at least about 950 mg of added sodium per 100 g of pellets” in claim 23 to include any snack food pellet having the requisite amount of added sodium.
Regarding instant claims 1, 17, 21 and 23, Iannazzo at the Abstract discloses methods for preparation of cooked grain products having reduced sodium levels by forming them into pellets, including (at [0027]) cereal and snack food pellets (“method for manufacturing a reduced or zero added sodium expandable snack food pellets” in claims 1 and 23). At [0015]-[0019], Iannazzo discloses cooking a dry blend of cereal with 25 to 35 wt% moisture and about 50 to 140 mg sodium per ounce/dry grain to gelatinize the starch in the cereal (“dough comprises grain based starch” in claim 17) to provide a dough comprising 50-140 mg sodium in 28.34 g grain and 10-14 g water or about 38.3 to 42.3 g of dough, which is about 125 to about 350 g added sodium per 100 g of dough which the claimed less than about 300 mg of added sodium per 100 g of dough in claims 1 and 23 lies within and the recited less than about 250 mg added sodium per 100 g dough in claim 21 overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Iannazzo would have found it obvious to add the claimed amount of sodium to its dough because Iannazzo discloses a desirable dough for a snack or ready to eat cereal that comprises the claimed amount of sodium.
Further, Iannazzo at [0046] discloses extruding the dough through a low pressure extruder (“extruding to produce an extrudate”) and into a pelletizer (“forming the extrudate into pellets’) and then (at [0047]) drying the pellets. Because the recited standard conditions of claim 21 include any conditions of forming a pellet from a dough and because a comparable pellet includes any pellet made from a dough comprising at least about 950 mg of added sodium, the Office considers the method wherein the manufacturing conditions are controlled to increase the expansion ratio of the pellet by about 5% to about 45% relative to the same pellet manufactured under standard conditions in claim 1 and the method wherein the manufacturing conditions are controlled to provide a pellet having an expansion ratio which is about ± 10of the expansion ratio of a comparable pellet comprising at least about 950 mg of added sodium per 100 g of pellets in claim 23 to include the method of making the pellet disclosed in Iannazzo at [0015]-[0019] and [0046]-[0047].
Regarding instant claim 3, the Office interprets the claimed extruder temperature in extruding a dough comprising at least about 950 mg of sodium to be any temperature that is less than the extruder temperature in extruding the dough; further, the Office interprets the claimed extruder speed of extruding a dough comprising at least about 950 mg of sodium to be any speed that is less than the extruder speed in extruding the dough; still further, the Office interprets the claimed moisture content of a dough comprising at least about 950 mg of sodium to be any moisture content that is greater than the moisture content of the dough; and the Office interprets the claimed amount of injected steam in preconditioning a dough comprising at least about 950 mg of sodium to be any amount of injected steam that is less than the amount of injected steam in the dough. Iannazzo at [0042] discloses extruder cooking its dough and discloses steam preconditioning its dough before extrusion, with cooking at temperatures of (at [0043]) 121 to 149°C; and, at [0040] Iannazzo discloses that better results are obtained when a dough containing 25 to 30 wt% moisture is pelletized, wherein (at [0020]) the pellets made therefrom have a moisture content of about 8 to 15 wt%. Accordingly, the Office considers the claimed increased temperature of an extruder, decreased moisture content of the extruder and increase amount of injected steam in the extruder to include the disclosed temperature of an extruder, moisture content of the dough and amount of injected steam in Iannazzo at [0040], [0042] and [0043].
Regarding instant claims 4, 6-8, 10-12 and 20, the Office considers the method for manufacturing a snack food pellet of Iannazzo and the claimed method for manufacturing to be substantially the same thing. Accordingly, absent a clear showing as to how the method of Iannazzo differs from that as claimed, the Office considers the method of Iannazzo at [0040], [0042], [0043], [0046] and [0047] to include a method wherein increasing the temperature of the extruder decreases the bulk density of the snack food by about 5% to about 30%; and/or increases the expansion ratio of the snack food pellet by about 5% to about 30% as in claim 4; a method wherein decreasing the moisture content of the dough decreases the bulk density of the snack food by about 5% to about 15% as in claim 6; a method wherein increasing the amount of injected steam decreases the bulk density of the snack food by about 5% to about 20%; and/or increases the expansion ratio of the snack food pellet by about 5% to about 40% as in claim 7; a method wherein the temperature of the extruder is increased by about 5% to about 45% relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough as in claim 8; a method wherein the moisture content of the dough is decreased by about 0.5 wt% to about 6 wt %, relative to a dough comprising at least about 950 mg of added sodium per 100 g of dough as in claim 10; a method wherein amount of steam injected is increased by about 1% to about 20%, relative to the amount of injected steam used to precondition a dough comprising at least about 950 mg of added sodium per 100 g of dough as in claim 11; a method wherein the temperature of the extruder is increased by about 5 °C to about 50 °C relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough as in claim 12; and, a method wherein increasing the temperature and/or speed of the extruder and/or decreasing the moisture content of the dough and/or increasing the amount of injected steam lowers the glass transition temperature such that the extrudate has a lower glass transition temperature than the dough as in claim 20. See MPEP 2112.01.I.
Regarding instant claims 5, 9 and 13, while the Office considers optional limitations including the speed of an extruder the claims themselves do not require them.
Regarding instant claims 14 and 16, Iannazzo at [0033] discloses a dough comprising potato starch as in claim 14 . In view of disclosure in the instant specification at page 21, the Office considers the claimed pellet having a heterogeneous starch-based matrix as in claim 16 to include the pellet disclosed at [0033] of Iannazzo.
Regarding instant claim 15, the Office considers the recited increased temperature and speed of the extruder to include any temperature and any speed. Further, the Office considers the claimed manufacturing conditions controlled by (i) increasing the temperature of the extruder by at least about 15%, relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough to include the temperature of an extruder disclosed in Iannazzo at [0043] for treating a dough comprising a potato starch as disclosed in Iannazzo at [0033].
Regarding instant claim 18, the Office considers the recited increased temperature and speed of the extruder to include any temperature and any speed. Further, the Office considers the claimed manufacturing conditions controlled by (i) increasing the temperature of the extruder by at least about 15%, relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough to include the temperature of an extruder disclosed in Iannazzo at [0043] for treating a dough comprising a grain based starch as disclosed in Iannazzo at [0015]-[0019].
Regarding instant claim 19, Iannazzo at [0015]-[0019] discloses a dough comprising a grain based starch as in claim 17. In view of disclosure in the instant specification at page 21, the Office considers the claimed pellet having a homogeneous starch-based matrix to include the pellet disclosed at [0015]-[0019] of Iannazzo.
Claims 1 and 3-23 are rejected under 35 U.S.C. 103 as being unpatentable over WO99/51111 to Wen et al. (Wen).
The Office considers the term “standard conditions” to include any method of manufacturing a snack food pellet. The Office considers the term “comparable pellet comprising at least about 950 mg of added sodium per 100 g of pellets” in claim 23 to include any snack food pellet having the requisite amount of added sodium.
Regarding instant claims 1, 14, 17 and 23, Wen at the Abstract discloses methods for preparation of a snack and its half-product from a flour blend and water (“providing a dough”) by extrusion and drying (“extruding to produce an extrudate”) and then drying. At page -4-, 2nd to last full paragraph, Wen discloses that a half-product includes pellets (“method of forming the extrudate into pellets”). At page -4-, 1st full paragraph, Wen discloses formulating a dough composition resistant to the shear and processing conditions encountered in the extruder; pre-hydrating of flour by steam and water injection; (3) extruding the dough to produce a half-product having certain visco-elastic properties; and (4) drying the extrudate which includes a half-product. At page -5-, item 1, Wen discloses a rice flour in the dough (“dough comprises grain based starch” in claim 17) and at page -6- 3rd full paragraph, Wen discloses the dough further comprising potato starch (claim 14).
Because the recited standard conditions of claim 1 include any conditions of forming a pellet from a dough and because the recited comparable pellet includes any pellet made from a dough comprising at least about 950 mg of added sodium, the Office considers the method wherein the manufacturing conditions are controlled to increase the expansion ratio of the pellet by about 5% to about 45% relative to the same pellet manufactured under standard conditions in claim 1 and the method wherein the manufacturing conditions are controlled to provide a pellet having an expansion ratio which is about ± 10 of the expansion ratio of a comparable pellet comprising at least about 950 mg of added sodium per 100 g of pellets in claim 23 to include the method of making the pellet disclosed in Wen at Abstract, page -4-, 1st full paragraph, page -4-, 2nd to last full paragraph, page -8-, item 3 and page -8-, item 4 2nd paragraph.
Further, and regarding instant claims 21 and 22, Wen at page -8-, item 3 discloses that its salt included potassium and calcium chloride each of which includes zero added sodium (claims 21 and 22) and discloses (at page -8-, item 4, 2nd paragraph) that its preferred leavening includes potassium carbonate and calcium carbonate.
Wen does not provide an example of a dough comprising less than about 300 mg added sodium per 100 g of dough. However, the ordinary skilled artisan in Wen would have found it obvious in Wen to add the claimed amount of sodium or no sodium in or to its dough because Wen at page -8-, item 3 and page -8-, item 4, 2nd paragraph discloses a desirable salt and leavening in a dough for making a snack that comprises zero sodium.
Regarding instant claim 3, the Office interprets the claimed extruder temperature in extruding a dough comprising at least about 950 mg of sodium to be any temperature that is less than the extruder temperature in extruding the dough; further, The Office interprets the claimed extruder speed of extruding a dough comprising at least about 950 mg of sodium to be any speed that is less than the extruder speed in extruding the dough; still further, the Office interprets the claimed moisture content of a dough comprising at least about 950 mg of sodium to be any moisture content that is greater than the moisture content of the dough; and the Office interprets the claimed amount of injected steam in preconditioning a dough comprising at least about 950 mg of sodium to be any amount of injected steam that is less than the amount of injected steam in the dough. Wen at page -4-, 1st full paragraph discloses extruder cooking its dough and discloses steam preconditioning its dough before extrusion. Accordingly, the Office considers the claimed increased amount of injected steam in the extruder to include the amount of injected steam in Wen at page -4-, 1st full paragraph.
Regarding instant claims 4-6, 8-10 and 12-13, while the Office considers optional limitations including increasing the temperature of an extruder, increasing the speed of an extruder and decreasing the moisture content of a dough; however, the claims themselves do not require them.
Regarding instant claims 7, 11 and 20, the Office considers the method for manufacturing a snack food pellet of Wen and the claimed method for manufacturing to be substantially the same thing. Accordingly, absent a clear showing as to how the method of Wen differs from that as claimed, the Office considers the method of Wen to include a method wherein increasing the amount of injected steam decreases the bulk density of the snack food by about 5% to about 20%; and/or increases the expansion ratio of the snack food pellet by about 5% to about 40% as in claim 7; a method wherein amount of steam injected is increased by about 1% to about 20%, relative to the amount of injected steam used to precondition a dough comprising at least about 950 mg of added sodium per 100 g of dough as in claim 11; and, a method wherein increasing the temperature and/or speed of the extruder and/or decreasing the moisture content of the dough and/or increasing the amount of injected steam lowers the glass transition temperature such that the extrudate has a lower glass transition temperature than the dough as in claim 20. See MPEP 2112.01.I.
Regarding instant claims 14 and 16, Wen at page -6- 3rd full paragraph, Wen discloses the dough further comprising potato starch. In view of disclosure in the instant specification at page 21, the Office considers the claimed pellet having a heterogeneous starch-based matrix as in claim 16 to include the pellet disclosed in Wen.
Regarding instant claims 15 and 18, the Office considers the recited increased temperature and speed of the extruder to include any temperature and any speed. Further, Wen at page -2-, 1st full paragraph discloses known extrusion methods including high temperature extrusion and extrusion at high screw speeds and that (at page -1-, 3rd full paragraph that barrel temperature and screw speed influence the expansion volume (”expansion ratio”) of a pellet. The ordinary skilled artisan would have found it obvious in Wen to increase extruder temperature or screw speed to more readily prepare its damage resistant dough for expansion because Wen discloses that increasing extruder temperature or screw speed will increase the ability of a pellet to expand in a shorter processing time. The Office considers the claimed manufacturing conditions controlled by (i) increasing the temperature of the extruder by at least about 15%, relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough in claim 15; and also the claimed manufacturing conditions controlled by (i) increasing the temperature of the extruder by at least about 15%, relative to the temperature of an extruder used to extrude a dough comprising at least about 950 mg of added sodium per 100 g of dough in claim 18 to include the temperature and speed of an extruder disclosed in Wen page -2-, 1st full paragraph for treating a dough comprising a potato starch (Wen page -6- 3rd full paragraph) and comprising grain based starch (Wen at page -5-, item 1).
Regarding instant claim 19, Wen at page -5-, item 1, Wen discloses a rice flour in the dough (“dough comprises grain based starch”). In view of disclosure in the instant specification at page 21, the Office considers the claimed pellet having a homogeneous starch-based matrix to include the pellet disclosed at [0015]-[0019] of Wen.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over US2011/0305800 A1 to Iannazzo et al (Iannazzo) as applied to claim 1 above, and further in view of US5080914 to Birch et al. (Birch).
As applied to claim 1, Iannazzo at the Abstract, [0015]-[0019], [0040], [0042], [0043], [0046] and [0047] discloses a method for manufacturing a reduced or zero added sodium expandable snack food pellet comprising providing a dough, extruding the dough to produce an extrudate, forming the extrudate into pellets and then drying the pellets, wherein the manufacturing conditions are controlled to increase the expansion ratio of the pellet.
Iannazzo does not disclose a dough comprising zero added sodium per 100 g of dough.
Birch discloses at Abstract methods of making an expandable pellet for use in making a snack product wherein, at col. 1, lines 60-62 the pellet comprises a salt substitute. At col. 3, lines 4-14, Birch discloses methods for making its pellets comprising extruding its dough, pelletizing the extrudate and drying the pellet. Further, at col. 1, lines 40-59 the pellet is a core made from tapioca starch as well as potato, corn and/or rice starch having a moisture content of 12 to 16 wt%.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Birch for Iannazzo to use a salt substitute as its salt and thereby produce a dough comprising zero added sodium per 100 g of dough. Both references disclose methods of making snack food pellets comprising reduced or zero added sodium. The ordinary skilled artisan in Iannazzo would have desired to substitute its sodium salt with a known salt substitute as in Birch to provide for the flavor development of its dough.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H 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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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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