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 .
Election/Restrictions
Applicant's election with traverse of the Group I invention, claims 1, 2, 5, 7- 9, 11, 14, 44 and 45 in the reply filed on August 3, 2026 is acknowledged. The traversal is on the ground(s) that there is not a serious search burden if restriction was not required. This is not found persuasive because analysis used to determine whether the Office may require restriction differs in national stage applications submitted under 35 U.S.C. 371 (unity of invention analysis). Under the unity of invention analysis, the Examiner is not required to demonstrate a serious search burden.
The Examiner notes the claims have been amended to overcome the requirement for unity of invention mailed June 3, 2026. However, restriction between Group I (claims 1, 2, 5, 7- 9, 11, 14, 44 and 45) and Group II (claims 25-27, 29-32, 34 and 46) is still required under 35 U.S.C. 121 and 372 as set forth below:
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Groups I and II lack unity of invention because even though the inventions of these groups require the technical feature of a filling comprising at least one leguminous flour and at least one solid fat, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Rodriguez et al. (WO 2021/151630 A1 – IDS filed February 12, 2026). Rodriguez et al. teach a filling composition comprising a structuring agent wherein the structuring agent is a flour from a non-wheat grain, e.g., legumes (p. 4/L1-p. 6/L2) and at least one solid fat (p. 7/L4-5, p. 8/L27-35) .
The requirement is still deemed proper and is therefore made FINAL.
Claims 25-27, 29-32, 34 and 46 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on August 3, 2026.
Claim Rejections - 35 USC § 103
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, 2, 5, 7-9, 11, 14, 44 and 45 are rejected under 35 U.S.C. 103 as being unpatentable over Strong (EP 251630 A) in view of Rodriguez et al. (WO 2021/151630 A1 – IDS filed February 12, 2026).
Regarding claims 1, 2, 5, 7, 9, 10, 11, 14 and 45, Strong discloses a process of making a co-extruded filled cookie comprising the steps of: (a) forming a casing composition (i.e., dough) by mixing dry ingredients (e.g., sugar, flour, protein, starch – p. 18) and separately forming a filling composition (p. 19-20); (b) feeding the casing composition and filling into a cooker-extruder barrel (p. 18-21); (c) coextruding the casing composition with the filling to produce an external casing having a tubular pipe-like shape and internal filling (i.e., filled rope-p.22); (d) cutting and crimping (i.e., sealing) the coextruded product to product co-extruded filled cookies (wherein the tubular pip-like shaped product can be crimped at both ends – p. 5, p. 22-23); and (e) passing the co-extruded filled cookie pieces through an oven set at a temperature of between 121⁰C and 177⁰C (i.e., cooking and drying -p.24).
While Strong discloses passing the co-extruded filled cookie pieces through an oven, preferably at a temperature of between 121⁰ and 177⁰C (i.e., 250⁰-350⁰F) to dry and make the product crips, the reference is silent with respect to higher temperatures. However, one of ordinary skill in the art prior to the effective filing date of the present application would have been motivated to adjust, in routine processing the temperature of the oven and time of cooking to make the process faster while maintaining a desired level of crispness.
Strong discloses a filling composition comprising sugar and fat wherein the filling composition comprises less than 20% water and at least one solid fat (p. 13, p. 35/Table VIII, p. 39/Table XII).
While Strong disclose a filling composition comprising oil absorbing material such as proteins and starches and emulsifiers (p. 12), the references is silent with respect to a filling comprising at least one leguminous flour.
Rodriguez et al. teach a fat-based filling composition, intended for use in composite foods, having a low SFA content, good shelf life properties (i.e., low oiling out) and having a firm texture, and a creamy and pleasant mouthfeel (p. 2/L15-19, p. 3/L21-23). Rodriguez et al. teach the fat-based filling composition comprises a blend of fats and a structuring agent (Abstract). Rodriguez et al. disclose the structuring agent comprises flour wherein the flour is a non-wheat flour from pulses, including pea or chickpeas (p. 5/L50-p. 6/L13). Rodriguez et al. disclose the filling has a fat content in the range of 15% to 50% by weight wherein the fat comprises at least one solid fat and at least one liquid fat (p.6/L48-p. 7/L5). Rodriguez et al. disclose wherein the solid fat is present in an amount between 10 and 40% by weight of the filling and the liquid fat is present between 0.5 and 30% by weight of the filling (p.8/L34-51).
Strong and Rodriguez et al. are combinable because they are concerned with the same field of endeavor, namely composite food products comprising filling compositions. It would have been obvious to one of ordinary skill in the art to have used the filling taught by Rodriguez et al. in the co-extruded filled cookie product of Strong to make a composite food product with better shelf stability, i.e., less oiling out, and more healthful, i.e. less SFA content while maintaining creamy and pleasant mouthfeel.
Regarding claim 8, modified Strong discloses all of the claim limitations as set forth above. Rodriguez et al. teach the fat-based filling may comprise more than one non-wheat flour (p. 5/L50-p. 6/L13).
Regarding claim 44, modified Strong discloses all of the claim limitations. Rodriguez et al. does not require the fat-based filling comprises peanut or almond flour.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
