DETAILED ACTION
Background
The amendment dated January 07, 2026 (amendment) amending claims 20, 34 and 38-39, canceling claim 36 and adding new claims 43-44 has been entered. Claims 20-35, 37-39 and 43-44 as filed with the amendment have been examined. Claims 1-19, 36 and 40-42 have been canceled.
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
Claim 38 is objected to because of the following informalities:
In claim 38, at line 4 before “untreated vegetable” insert --an --.
Appropriate correction is required.
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.
Claims 20-26, 29, 31-35 and 43-44 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0251877 A1 to Levin et al. (Levin) in view of US 2006/0246202 A1 to Karwowski et al. (Karwowski), of record.
Regarding instant claims 20-21 and 31-32, Levin discloses at Abstract an expanded snack product (“food snack”) comprising a pelletized expandable base of a flour, grain or starch (“starchy material”) and inclusions (“macroparticles”) of vegetables or fruits (“vegetable material” as recited in claim 21). At [0013], Levin discloses its food snack as a chip (“having the form of, or the function of, a potato chip”). At [0018]-[0022], Levin discloses inclusions including (at [0019]-[0020]) garlic, onion, kale, broccoli, carrot, bell pepper, green beans, spinach, beets (“beetroot”) (all as in claim 31), as well as (at [0021]) banana, berries, apple, cherry (all as in claim 32) and their combinations. Further, Levin discloses at [0025] that the macroparticle inclusions may comprise up to 50 wt% of the mixture of inclusions and the starchy material and that they can have a variable size, including a dimension that is larger than a pellet (“at least some of the macroparticles being visible to the naked eye”). At [0034] Levin discloses mixing the starchy material and inclusions of vegetable material and gelatinizing and expanding the mixture to form the snack food. At [0017], the food may be expanded as much as 1000% or greater.
The Office considers the recited food snack comprising “macroparticles dispersed inside a starchy material” to include the food snack disclosed at [0034] of Levin.
Further, the Office considers the recited macroparticles “derived from” a fresh and/or raw vegetable material to include vegetable materials comprising macroparticles that have been processed before their use as a raw material, including by drying, blanching, frying or cooking. The term “derived from” includes virtually any number or kind of deriving steps. The recited macroparticles also include, but are not limited to, macroparticles of a fresh and/or raw vegetable material used directly as a raw material in gelatinizing as stated in the instant specification at page 12, lines 18-21.
Still further, and regarding instant claims 25, 26 and 44, the total amount of up to 50 wt% of vegetable material macroparticles in the food snacks of Levin at [0025] overlaps each of the recited between 30 to 65 wt% of vegetable material based on the weight of the food snack as in claim 20; between 30 to 50 wt% of vegetable material as in claim 25; between 35 to 45 wt% of vegetable material as in claim 26; and the between 30 to 65 wt% of macroparticles by weight of the food snack as in claim 44. 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 Levin would have found it obvious for its food snack to comprise the claimed amount of starchy material because Levin discloses that the claimed amount of starchy material makes a desirable food snack chip.
Yet still further, and regarding instant claims 22-24, Levin does not disclose a food snack that has a density of about 0.04 to 0.65 g/cc as in claim 20; and, further does not disclose a food snack wherein the macroparticles have a specified length of between 1.5 and 5 mm as in claim 20, or greater than 2 mm as in claim 22, or greater than 3 mm as in claim 23, or between 3 mm and 5 mm as in claim 24. However, Levin discloses at [0025] that its inclusions of vegetable material have a variable size, including a dimension that is larger than a pellet. Further, the Office considers the food snack of Levin at [0017] discloses its food snack expanded as much as 1000% or greater as being substantially the same expanded food snack comprising the same starchy material and vegetable material as claimed. Accordingly, absent a clear showing as to how the density of the food snack of Levin differs from as claimed, the Office considers the food snack of Levin at [0017] to comprise a food snack of the claimed density of about 0.04 to 0.65 g/cc as in claim 20. See MPEP 2112.01.I.
The Office considers the claimed vegetable material macroparticles having a specified length of between 1.5 and 5 mm as in claim 20, or greater than 2 mm as in claim 22, or greater than 3 mm as in claim 23, or between 3 mm and 5 mm as in claim 24 as including a vegetable material comprising least one or two vegetable material macroparticles have the claimed length.
Karwowski at Abstract discloses composite snacks which at [0031] comprise a chip-like food snack comprising (at [0032]) a fruit or a vegetable and (at [0033]) cooked cereal grains that comprise a gelatinized starchy material and which are made from (at [0038]) pelletized intermediates. Further, Karwowski at [0079] discloses pellets as having a size of about 1/8th to ¼ inch (about 3.5 mm to about 6.5 mm), which the claimed length of between 1.5 and 5 mm overlaps. See MPEP 2144.05.I.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Karwowski for Levin to include a vegetable material having a length between 1.5 mm and 5 mm, of greater than 2 mm, of greater than 3 mm or of between 3 mm and 5 mm. Both references disclose chip like food snacks comprising macroparticles of a vegetable material dispersed in a starchy material. The ordinary skilled artisan in Levin would have desired to include in its food snack a vegetable material having at least some macroparticles having the claimed length because Levin discloses the macroparticles having at least the size of a pellet which desirably is from about 3.5 to about 6.5 mm.
Regarding instant claims 29, 34, 35 and 43, Levin at [0017] discloses that its gelatinized starchy material comprises wheat, potato (claim 34), corn, rice, and other flours, starches or grains (“cereals” as in claim 34). Further, at [0024] Levin discloses suitable grains as including quinoa (claim 29), buckwheat, amaranth and chia (claim 34), including ancient grains such as barley and oats (claim 35). The ordinary skilled artisan in Levin would have desired to use the claimed grains in its food snacks because it discloses such grains or their flours as desirable starchy materials for use in making its food snacks.
Regarding instant claim 33, Levin does not disclose a vegetable material that comprises a combination of one of: carrot and onion; sugar beet and mint; bell pepper and spring onion; pumpkin and rosemary; and, spinach and garlic. However, at [0018] Levin discloses combinations of vegetable materials including (at [0019]-[0020]) spinach, beets, carrots, as well as herbs and spices as onions and, garlic, herbs, including rosemary and is a non-limiting disclosure. The ordinary skilled artisan in Levin would have found it obvious to combine any vegetable material for which it discloses a combination is desirable, including carrot and onion and spinach and garlic.
Claims 27-28, 30 and 38-39 are rejected under 35 U.S.C. 103 as being unpatentable over US 2014/0322392 A1 to Haskins et al. (Haskins), of record.
Regarding instant claims 30 and 38-39, Haskins discloses at Abstract a cracker or (at [0027]) a chip comprising (at FIG 1A) inclusions which food snack (at [0006]) before baking or frying comprises a dough ("intermediate unexpanded gelatinized product for a food snack"). Haskins at [0007] discloses blending or mixing macroparticle inclusions and starchy material to form a dough (“each of said macroparticles dispersed in said gelatinized starchy material”). Further, Haskins discloses at [0016] the dough comprising macroparticles of at least one vegetable material including carrots, legumes or zucchini as inclusions visible to the naked eye and which at [0023] have a size of -3+10 US standard mesh sieve size. The Office interprets a vegetable material having a -3+10 US standard mesh sieve size as having a maximum particle size of from 2 mm to 6.73 mm and all sizes in between, which anticipates the claimed at least some having length of from 1.5 to 5 mm (claims 38-39) with at least some macroparticles being greater than 3 mm (claim 39). At [0034], Haskins discloses that its dough intermediate comprises unexpanded gelatinized starchy material from wheat flour (“cereal” in claim 38). Further, at Example 2 in Table 2 and at [0048]) Haskins discloses as a starchy material both wheat or grain flour and potato starch (claim 30 as “tubers” as in claim 38) in a dough that comprises 32 wt% of the vegetable material macroparticles.
The Office considers the claimed intermediate unexpanded gelatinized product “for use in making a food snack having the form of, or the function of, a potato chip” to include the dough of Haskins because there is nothing structural about the recited intermediate that distinguishes it over the dough of Haskins. See MPEP 2111.02.II.
The Office considers the recited macroparticles “derived from an untreated vegetable starting material” or at least one such material to include vegetable materials comprising macroparticles that have been processed before use as in Haskins, including by drying, blanching, frying or cooking. The term “derived from” includes virtually any number or kind of deriving steps starting from untreated vegetable material. Moreover, a “starting material” in the recited context refers to the macroparticles prior to being derived rather than to a macroparticle starting material used as in the recited claims. Also, the recited macroparticles include, but are not limited to, macroparticles of a fresh and/or raw or untreated vegetable material used directly in gelatinizing as stated in the instant specification at page 12, lines 18-21.
Haskins does not provide a specific example of vegetable material macroparticles other than sweet potatoes dispersed in its starchy material. However, the ordinary skilled artisan would have found it obvious in view of Haskins to blend any of its vegetable material its macroparticles disclosed at [0016] with its starchy material before gelatinization so that the macroparticles are dispersed in said gelatinized starchy material. Haskins discloses that such vegetable material macroparticles make a desirable intermediate for a food snack.
The Office considers the claimed “at least some” vegetable material macroparticles having a specified length of between 1.5 and 5 mm as in claims 38 and 39 and greater than 3 mm as in claim 39 as including a vegetable material comprising least one or two vegetable material macroparticles have the claimed length.
Regarding instant claims 27, 28 and further regarding instant claim 30, Haskins at [0024] discloses food snacks having a thickness of from 0.08 to 0.2 inches (2 to 5 mm) and made of laminated dough in (at [0035]) 3 to 5 layers. Each layer of starchy material in the food snack of Haskins has a thickness of from 0.4 mm (2 mm/5 layers) to 1.6 mm (5 mm/ 3 layers) which the claimed between 0.8 to 1.5 mm in claim 27 overlaps and the claimed 0.4 to 0.9 mm in claims 28 and 30 lies within. 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 Haskins would have found it obvious to make its intermediate unexpanded gelatinized product for a food snack having the claimed thickness in one or more layers as Haskins discloses such thicknesses as desirable for making a dough intermediate for a food snack.
Claim 37 is rejected under 35 U.S.C. 103 as being unpatentable over US 20130251877 A1 to Levin et al. (Levin) in view of US 2006/0246202 A1 to Karwowski et al. (Karwowski), as applied to claim 20 above, and further in view of “Spinach, raw - Nutrition Facts and Information” downloaded on 10/08/24 from https://web.archive.org/web/20160317202116/https://www.medindia.net/nutrition-data/spinach-raw.htm (2016) (Spinach), of record.
As applied to claim 20, Levin at Abstract, [0013], [0017], [0018]-[0022], [0025] and [0034] as modified by Karwowski at [0079] discloses a food snack having the form of, or the function of, a potato chip comprising from 30 to 65 wt% of macroparticles of at least one vegetable material derived from a fresh and/or raw vegetable material that are visible to the naked eye, having a length of from 1.5 to 5 mm and that are dispersed in at least one starchy material.
Levin as modified by Karwowski does not disclose a food snack that comprises a spinach vegetable material that includes a content of iron (Fe) between 50 mg/kg and 75 mg/kg, total phosphorus (P) between 1000 mg/kg and 1700 mg/kg, magnesium (Mg) between 500 mg/kg and 800 mg/kg, and potassium (K) between 8000 mg/kg and 13000 mg/kg. However, Karwowski at [0033] discloses a vegetable material comprising spinach and (at [0112]) discloses vitamins and minerals as additives including iron. Still further, Karwowski discloses at [0059] quick cooking agents in corn starchy material snacks comprising from 0.1 to 3 wt% of the corn as disodium phosphate (MW 152 and which is about 20 wt% phosphorus). And, at [0059] Karwowski discloses serving sizes of up to 50 g.
Spinach at page 5 discloses that 100 g of spinach has a content of iron of 2.71g or 27.1 mg/kg, phosphorus (P) of 49 mg or 490 mg/kg, magnesium (Mg) of 79 mg or 790 mg/kg, and potassium (K) of 558 mg or 5580 mg/kg. Further, Spinach at page 5 discloses that the US RDA for Fe is 2.71 mg/15% or 18 mg/day, for Mg is 79 mg/19.75% or about 400 mg/day, for P is 49 mg/4.9% or 1000 mg/day and for K is 558 mg/16% or about 3500 mg/day.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Spinach and Karwowski for Levin to include iron, K and Mg as mineral supplements in its food snack to make it as nutritious as spinach. All references are drawn to food snacks comprising a vegetable material and a starchy material in gelatinized form. The ordinary skilled artisan working in Levin would have desired to use the corn, spinach, phosphate additives, vitamins and supplemental minerals of the Karwowski snack to improve the variety, flavor and nutrition of the Levin food snacks containing vegetable materials so that the nutrition of the snacks match the nutrition of spinach as in Spinach or so that they match to the US RDA of each of Fe, Mg, P and K in a serving of its food snack.
Accordingly, the food snack having the nutrition of spinach as in Levin as modified Karwowski including Mg supplements to match the nutrition of spinach in the overall snack contains 790 mg/kg Mg which anticipates the claimed 500 to 800 mg/kg Mg. Further, a 50 g serving of a food snack having up to the US RDA as in Levin as modified by Karwowski to include iron and potassium supplements has up to 18 mg Fe/50 g or up to 360 mg Fe/kg, has up to 3500 mg/50 g of K or up to 70,000 mg/kg K. Still further, a food snack of Levin as modified by Karwowski having, for example, 50 wt% spinach and 50 wt% starchy material as corn comprises up to 1.5 wt% (50% of 3 wt%) of a disodium phosphate quick cooking agent or up to 20% of 1.5 wt% or up to 0.3 wt% or up to 3000 mg/kg P. All of the claimed ranges of Fe (50 to 75 mg/kg), P (1000 to 1700 mg/kg) and K (8000 to 13000 mg/kg) lie within the ranges disclosed in Levin as modified by Karwowski, and as evidenced by Spinach. See MPEP 2144.05.I.
Response to Arguments
In view of the amendment dated January 07, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 27, 30, 34 and 38 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for reciting in the same claim a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation 34 and 38 as “one of tubers; cereals; and plants; and materials derived therefrom”, and also “one of tubers, cereals and plants including buckwheat, quinoa, amaranth and chia and materials derived therefrom”;
The rejections of claims 20-26, 29 and 30-36 under 35 U.S.C. 103 as being unpatentable over US 11291226 B1 to Shah et al. in view of US 2006/0246202 A1 to Karwowski et al., and as evidenced by US2013/0136830 A to Ganjyal et al.;
The rejections of claims 27-28, 30 and 38-39 under 35 U.S.C. 103 as being unpatentable over US 11291226 B1 to Shah et al. in view of US 2006/0246202 A1 to Karwowski et al.; and,
The rejections of claim 37 under 35 U.S.C. 103 as being unpatentable over US 11291226 B1 to Shah et al. in view of US 2006/0246202 A1 to Karwowski et al. and “Spinach, raw - Nutrition Facts and Information” downloaded on 10/08/24 from https://web.archive.org/web/20160317202116/https://www.medindia.net/nutrition-data/spinach-raw.htm (2016), as evidenced by US2013/0136830 A to Ganjyal et al. (Ganjyal).
The positions taken in the remarks accompanying the amendment dated January 07, 2026 (Reply) with respect to claims 20-26, 29 and 30-36 and the art of Shah or Karwowski and the art of Ganjyal does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding Haskins and the Remarks accompanying an earlier Reply dated May 13, 2025, the Office acknowledges that at [0006] Haskins discloses macroparticles smeared on the surface of a product. However, Haskins at [0007] and [0034] discloses blending or mixing macroparticle inclusions and starchy material to form a dough. In such a method, each of said macroparticles is dispersed in said gelatinized starchy material; and this is consistent with the disclosure in Haskins. Rather than having macroparticles not dispersed in the starchy material, the visible Haskins macroparticles are exposed to the surface of a product as would any visible macroparticles in any product, including the claimed food snack and intermediate product. The smearing referred to in Haskins naturally results from the sheeting disclosed in Haskins at [0035]-[0036].
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.
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/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791