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 Objections
Claims 8 and 18 are objected to because of the following informalities:
Regarding claim 8, claim 8 recites “the volume of the frozen dough” in line 3. Since the claim recites “proofed frozen dough”, in order to remain consistent, the claim should be changed to recite “the volume of the proofed frozen dough”.
Regarding claim 18, claim 18 recites “mixing the water, flour and first yeast for a first period of time”. In order to improve the form of the claim the claim should changed to “mixing the water, the flour and the first yeast for a first period of time”.
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 4, 7, and 11-20 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.
Regarding claim 4, claim 4 recites “the proofed frozen dough comprises about 1wt% to about 8wt% of the spent yeast component”. It is noted that claim 1 recites “A proofed dough consisting of”. The use of “comprising” to further limit a “consisting of” claim renders the scope of the claims unclear (See MPEP 2111.03).
Regarding claim 7, claim 7 recites “the proofed frozen dough comprises about 0.1 to about 2wt% of the preserved yeast component”. It is noted that claim 1 recites “A proofed dough consisting of”. The use of “comprising” to further limit a “consisting of” claim renders the scope of the claims unclear (See MPEP 2111.03).
Regarding claim 11, claim 11 recites “proofing the dough” in line 11 and “freezing the dough” in line 13. It is unclear what “the dough” in each instance is referring to, the “dough composition” or something else, since the claim does not recite “proofing the dough composition” and “freezing the dough composition”.
Regarding claim 11, claim 11 recites “proofing the dough, wherein during proofing the first yeast is spent and the second yeast is preserved” in lines 11-12. It is unclear if the proofing in “wherein during proofing the first yeast is spent and the second yeast is preserved” is referring to the proofing of “proofing the dough”, because the claim does not recite “(b) proofing the dough, wherein during the proofing the first yeast is spent and the second yeast is preserved”.
Regarding claim 11, claim 11 recites “(c) freezing the dough after proofing” in line 13. It is unclear if “proofing” is the same as or different from the proofing in step b, since the claim does not recite “freezing the dough after the proofing”.
Regarding claim 12, claim 12 recites “during proofing” in line 2. It is unclear if the “proofing” in claim 12 is referring to the proofing recited in claim 11 or a different proofing, since the claim does not recite “during the proofing…”.
Regarding claim 13, claim 13 recites “during proofing” in line 2. It is unclear if the “proofing” in claim 13 is referring to the proofing recited in claim 11 or a different proofing, since the claim does not recite “during the proofing…”.
Regarding claim 14, claim 14 recites “the dough ingredients comprise about 1% to about 8% of the first yeast”. It is noted that claim 11 recites “the dough ingredients consisting of”. The use of “comprising” to further limit a “consisting of” claim renders the scope of the claims unclear (See MPEP 2111.03).
Regarding claim 15, claim 15 recites “the dough ingredients comprise about 0.1% to about 2% of the second yeast”. It is noted that claim 11 recites “the dough ingredients consisting of”. The use of “comprising” to further limit a “consisting of” claim renders the scope of the claims unclear (See MPEP 2111.03).
Regarding claim 19, claim 19 recites “during or after proofing but before freezing”. It is unclear if the “proofing” and the “freezing” is referring to the proofing and freezing in claim 11. In order to overcome the rejection, the claim can be amended to “during or after the proofing but before the freezing”.
Regarding claims 19 and 20, each of claims 19 and 20 recites “the dough”. It is unclear what “the dough” is referring to the “dough composition” of claim 11 or something else.
Regarding claim 20, claim 20 recites “shaping and cutting the dough to produce a pizza crust prior to proofing”. It is unclear if the “proofing” recited in claim 20 is the same as or different from that recited in claim 11.
Regarding claim 20, claim 20 recites “freezing the pizza crust”. It is unclear if the freezing step of claim 20 is the same as or different from that already recited in claim 11.
Claims 16-18 are rejected by virtue of their dependence on a rejected base claim.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-9 and 11-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 11,178,881. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, ‘881 discloses a proofed dough according to claim 1 (‘881, claim 1).
Regarding claim 2, ‘881 discloses claim 2 (‘881 claim 3).
Regarding claim 3, ‘881 discloses claim 3 (‘881 claim 1).
Regarding claim 4, ‘881 discloses claim 4 (‘881 claim 2).
Regarding claim 5, ‘881 discloses claim 5 (‘881 claim 5).
Regarding claim 6, ‘881 discloses claim 6 (‘881 claim 6).
Regarding claim 7, ‘881 discloses claim 7 (‘881 claim 7).
Regarding claim 8, ‘881 discloses claim 8 (‘881 claim 9).
Regarding claim 9, ‘881 discloses claim 9 (‘881 claim 10).
Regarding claim 11, ‘881 discloses claim 11 (‘881 claim 13).
Regarding claim 12, ‘881 discloses claim 12 (‘881 claim 14).
Regarding claim 13, ‘881 discloses claim 13 (‘881 claim 15).
Regarding claim 14, ‘881 discloses claim 14 (‘881 claim 16).
Regarding claim 15, ‘881 discloses claim 15 (‘881 claim 17).
Regarding claim 16, ‘881 discloses claim 16 (‘881 claim 18).
Regarding claim 17, ‘881 discloses claim 17 (‘881 claim 19).
Regarding claim 18, ‘881 discloses claim 18 (‘881 claim 20).
Regarding claim 19, ‘881 discloses claim 19 (‘881 claim 13).
Regarding claim 20, ‘881 discloses claim 20 (‘881 claim 22).
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,070,039. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, ‘039 discloses a proofed dough according to claim 1 (‘039, claim 1).
Regarding claim 2, ‘039 discloses claim 2 (‘039 claim 3).
Regarding claim 3, ‘039 discloses claim 3 (‘039 claim 8).
Regarding claim 4, ‘039 discloses claim 4 (‘039 claim 2).
Regarding claim 5, ‘039 discloses claim 5 (‘039 claim 5).
Regarding claim 6, ‘039 discloses claim 6 (‘039 claim 6).
Regarding claim 7, ‘039 discloses claim 7 (‘039 claim 7).
Regarding claim 8, ‘039 discloses claim 8 (‘039 claim 9).
Regarding claim 9, ‘039 discloses claim 9 (‘039 claim 10).
Regarding claim 10, ‘039 discloses claim 10 (‘039 claim 1).
Regarding claim 11, ‘039 discloses claim 11 (‘039 claim 13).
Regarding claim 12, ‘039 discloses claim 12 (‘039 claim 14).
Regarding claim 13, ‘039 discloses claim 13 (‘039 claim 15).
Regarding claim 14, ‘039 discloses claim 14 (‘881 claim 16).
Regarding claim 15, ‘039 discloses claim 15 (‘039 claim 17).
Regarding claim 16, ‘039 discloses claim 16 (‘039 claim 18).
Regarding claim 17, ‘039 discloses claim 17 (‘039 claim 19).
Regarding claim 18, ‘039 discloses claim 18 (‘039 claim 20).
Allowable Subject Matter
It is noted that according to the Specification, "spent yeast" refers to yeast that has gone through an active metabolic phase in proofing and is no longer viable (see PGPUB paragraph [0027]). The Specification defines "preserved yeast" as "not used" during proofing, but, instead, "reserved during proofing." (see PGPUB paragraph [0056]). The Specification describes "proofing" as a final fermentation step before baking in the preparation of yeast-leavened baked goods and that unless overwise specified “proofing” as used here refers to a full proofing step (see PGPUB paragraph [0030]). The specification describes “proofed dough” as a dough that is in its final shape and ornamental design and has undergone a proofing step and is ready to bake (see PGPUB paragraph [0031]).
The closest prior art of record Goedeken US 2003/0104100 and Lee US 6,835,397 fails to teach a proofed frozen dough including a preserved yeast component. Therefore, the prior art fails to teach claims 1 and 11 as a whole.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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