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 Rejections - 35 USC § 102/103
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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 1-4 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Han (US 2013/0156893 A1; June 20, 2013).
Regarding claims 1 and 6, Han discloses a non-fried, non-extruded expanded snack food comprising a plant-base substrate (“heat treated whole green banana puree” [0139]), an emulsifier (“lecithin powder”, Table 4), and starch (“Starch”, Table 4). Han teaches that the snack food product comprises a rigid matrix having an expanded structure comprising cellular voids (“typical cracker foam structure” of Figures 7b, [0140]). As Han teaches that the cracker has a foam structure, the cracker of Han is considered to comprise a cellular void structure as foam is known in the art to comprise voids, which is further shown in Figure 7b.
Han further teaches that the plant-based substrate comprising one or more fruits and/or vegetables (e.g. banana, [0139]) and has no more than 20 wt% of the substrate in powdered or granulated form (e.g. banana puree, 0% in powdered form).
While the examiner notes that Table 4 has “heat treated whole green banana powder” listed as the ingredient and not “puree”, the examiner considers this an error. Example 7 in Han is directed towards a “Banana Puree Cracker” and uses the heat treated whole green banana puree prepared according to Example 1, which does not involve a process of forming the puree into a powder. Example 7 recites “puree” multiple times throughout, and never recites powder. Example 8 uses a powder and makes clear throughout that a powder is used. Therefore, a skilled person would recognize that the use of the word “powder” in Table 4 is in error, and puree is meant.
Alternatively, Han teaches that a cracker can be made using at least one of green banana powder, green banana puree, green plantain powder, green plantain puree, yellow plantain power, and yellow plantain puree ([0110]). Therefore, it would have been obvious to one of ordinary skill in the art to use puree instead of powder as either/or can be used when making a cracker as taught by Han.
Regarding claim 2, Han teaches that the one or more fruits and/or vegetables are fresh (e.g. fresh green banana, Example 1, [0139]).
Regarding claim 3, Han teaches that the plant-based substrate does not comprise more than 15 wt% potato (Example 7, Table 4). Options (a) and (c) are recited in the alternative and therefore not required to be met as option (b) has been met.
Regarding claim 4, Han teaches that the snack food product comprises 36% by weight banana (Example 7, Table 4), therefore falling within the claimed range of 15-70% plant-based substrate based on the weight of the snack food product.
Regarding claim 7, Han teaches that the snack food has a moisture content of 1.58 wt% (Table 5), thus falling within the claimed range of 0.5 to 5 wt%.
Regarding claim 8, Han teaches that the starch can be modified starch (e.g. gelatinized starch) ([0116]).
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.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Han (US 2013/0156893 A1; June 20, 2013) as applied to claim 1 above, and further in view of Eisner (US 2018/0160708 A1; June 14, 2018).
Regarding claim 5, as stated above with respect to claim 1, Han teaches that the snack food comprises an expanded rigid matrix having cellular voids. Han, however, fails to teach the cellular structure having a pore size distribution as claimed.
Eisner teaches an expanded fruit and/or vegetable product comprising puree (See Figures, [0064]). Eisner further teaches that the water content of the raw materials have a crucial influence on the structure and crispiness of the dried product, since it has an effect on pore formation, pore size and pore distribution ([0046]). Eisner teaches that average pore diameters for desired crispiness and texture range from 15 to 400 um ([0114]).
Therefore, as Eisner teaches that pore size distribution is directly related to moisture content, it would have been obvious to one of ordinary skill in the art to vary the amount and type of raw materials to result in a desired pore size distribution, which affects the structure and crispiness of the product. This is merely routine experimentation and would have been obvious to one of ordinary skill in the art to vary the ingredients and processing conditions to result in a desired pore size distribution.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Han (US 2013/0156893 A1; June 20, 2013) as applied to claim 1 above.
Regarding claim 9, Han teaches that snack food has a density of 1.41 g/ml (Table 5), which is higher than the claimed density of 0.05-0.1 g/ml.
However, it would have been obvious to one of ordinary skill in the art to vary the process for making the cracker, such that more pores, or voids, are created, which would result in a lower density. It would have been obvious to expand the cracker more depending on the desired texture, thus resulting in more voids and a lower density. This is merely routine experimentation and would have been obvious to one of ordinary skill in the art depending on the desired texture and structure of the cracker.
Regarding claim 10, Han teaches a batter for making a non-fried, non-extruded expanded snack food product according to claim 1, wherein the batter comprises:
36 wt% plant-based substrate (“heat treated whole green banana puree” [0139]), thus falling within the claimed range of 20-95%,
1 wt% emulsifier (“lecithin powder”, Table 4), thus falling within the claimed range of 0.3-2.5%, and
20 wt% starch (“Starch” and “waxy starch”, Table 4), thus falling within the claimed range of 8-25%.
With respect to the moisture content, Han teaches that whole green banana comprises 78-82% moisture ([0095]), but fails to specifically teach the moisture content of the batter comprising the heat treated whole green banana puree.
However, as Han teaches a puree, which is known to have a moisture content and teaches that whole green banana comprises 78-82% moisture, it would have been obvious to one of ordinary in the art that the batter of Example 7 in Han would comprise a similar moisture content as that of the whole green banana (e.g. 78-82%), as the whole green banana is merely blended into puree form.
Further, it would have been obvious to one of ordinary skill in the art to vary the heat treatment process to result in a banana puree having a desired moisture content to give the batter a desired moisture content, which ultimately effects the texture of the final product. . This is merely routine experimentation that is well within the ordinary skill in the art.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
Prosecution Insights