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
Claim 11 is objected to because of the following informalities: insert “; and” after the word shear in step d). Change step e) to recite “repeat step c) as needed.” 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 1-14 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 1, the recitation of step a. “mixing a powdered fat and one or more other food ingredients other than liquid oil, and/or a fat composition different from liquid oil” renders the claim indefinite. It is not clear if the powdered fat is mixed with one or more other food ingredient and/or a fat composition different from liquid oil or if the powdered fat is mixed with one or more other food ingredients other than liquid oil and fat compositions different than liquid oil. With respect to the prior art mixing of powdered fat with one or more food ingredients including a fat composition different from liquid oil would meet the claim limitation.
Regarding claim 6, the recitation of steps a) –c) render the claim indefinite. It is not clear if the recited steps are in addition to the steps of claim 1 or if the steps are repeated with step (d) further limiting the process of claim 1.
Regarding claim 8, the recitation “wherein the obtained food product is a filling that is applied to a first biscuit, cookie, cracker or wafer and optionally a second biscuit, cookie, cracker or wafer on top of the filling is added to make a filled biscuit, cookie, cracker or wafer” renders the claim indefinite. It is not clear if Applicant intends to claim an additional step of applying or adding the filling obtained in step b to a biscuit, cookie, cracker or wafer or if the limitation s merely a recitation of intended use.
Regarding claim 9, the recitation “wherein the steps of applying filling to a first biscuit, cookie, cracker or wafer and optionally adding a second biscuit, cookie, cracker or wafer on top ofc the filing is repeated several times, to have one or more biscuit, cookie, cracker or wafer layer and fillings between a top and bottom biscuit, cookie, cracker or wafer” renders the claim indefinite. Given claim 8, from which claim 9 depends, does not recite a step of applying filing to a first, biscuit, cookie, cracker or wafer, there is no antecedent basis for the term “the steps of applying filling . . .”.
Regarding claim 10, the recitation “wherein sweeteners, bulking agents, powdered fat and optionally liquid oil and/or fat composition and/or other food ingredients are tempered at a temperature in the range of 10⁰ to 60⁰C, and the process steps are carried out at this temper temperature” renders the claim indefinite. It is not clear if Applicants are intending to claim wherein sweeteners, bulking agents, powdered fat along with other food ingredients are required as part of the filling or wherein all food ingredients and optionally liquid oil and/or fat composition are tempered.
Regarding claim 11, the recitation of step a. “mixing of food ingredients other than fat and liquid oil, and/or optionally a fat composition and/or a liquid oil” renders the claim indefinite. It is not clear what “fat or liquid oil” components are excluded from mixing. How can fat and liquid oil be excluded from mixing with food ingredient but also be mixed with food ingredients? With respect to the prior art, step a) including mixing food ingredients optionally with a fat composition or a liquid oil.
Moreover, with regarding claim 11, the recitation of step c) add optionally other food ingredient other than liquid oil to a) and apply shear d) add a powdered fat to c) and apply shear e) Repeat c) as need” renders the claim indefinite. It is unclear if steps d) and e) are required if step c) is not conducted. Step c) is optional.
Claims 2-5, 7, 12 and 13 are rejected because they are dependent from a rejected base claim.
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 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Arfsten et al. (US 2014/0154394- IDS filed October 11, 2024).
Regarding claims 1 and 4-6, Arfsten et al. disclose a method of preparing a filling comprising the steps of: (a) mixing an encapsulated liquid oil ( i.e. powdered fat) with the remaining ingredients of the filling composition including a solid fat (i.e., one or more other food ingredients other than liquid oil); (Abstract, [0025], [0041]-[0044], [0068], [0077], [0091]-[0100]). Arfsten et al. disclose mixing can be carried out by conventional mixing, refining and/or aeration methods, for instance using standard industrial mixing apparatus (i.e. applying shear – [0062],[0078]). Arfsten et al. disclose the addition of free liquid oil is optional ([0077]).
Arfsten et al. disclose wherein the filling is a biscuit filling, a wafer filling, a cracker filling or a cake filling ([0002], [0068], [0080]).
Regarding claim 2, Arfsten et al. disclose all of the claim limitations as set forth above. Arfsten et al. disclose the remaining ingredient of the filling composition can be powder, for example cheese powder, skimmed milk powder, or whey powder ([0092]-[0098]/Examples).
Regarding claim 3, Arfsten et al. disclose all of the claim limitations as set forth above. Arfsten et al. disclose liquid oil is added as part of the filling composition. While Arfsten et al. does not disclose adding the liquid oil after mixing the encapsulated liquid oil with the remaining ingredients of the filling composition, selection of any order of mixing ingredient is prima facie obvious in the absence of new or unexpected results – MPEP §2144.04 IV C).
Regarding claim 7, Arfsten et al. disclose all of the claim limitations as set forth above. Arfsten et al. disclose the remaining ingredients of the filling composition (i.e., food ingredients other than liquid oil) may be sugar (i.e., sweetener, salt (i.e., spice), or solid fat (i.e., fat composition-[0091]-[0098]/Examples).
Regarding claim 8, Arfsten et al. disclose all of the claim limitations as set forth above. Arfsten et al. disclose the filling is intended for use with biscuits, crackers or wafers ([0002], [0068], [0080]).
Regarding claim 9, Arfsten et al. disclose all of the claim limitations as set forth above. While Arfsten et al. only disclose the use of the filling for biscuits, crackers or wafers, mere duplication of the process steps to create a multi-layered product has not patentable significant unless a new and unexpected result is produced. I would have been obvious to one of ordinary skill in the art to have repeated the filling process on, for example a cookie to produce a multi-layered cookie and filling product.
Regarding claim 10, Arfsten et al. disclose all of the claim limitations as set forth above. Given Arfsten et al. disclose a process of preparing fillings at ambient temperature (i.e., no temperature increase or decrease is claimed) inherently the remaining ingredients in the filling are tempered at ambient temperature (i.e., about 20⁰C) and utilized in the process at ambient temperature (i.e., about 20⁰C –[0091-[0100]/Examples).
Regarding claim 11, Arfsten et al. disclose a method of preparing a filling for biscuits, crackers or wafers comprising the steps of: (a) mixing an encapsulated liquid oil ( i.e. powdered fat) with the remaining ingredients of the filling composition including a solid fat (i.e., one or more other food ingredients other than liquid oil); (Abstract, [0025], [0041]-[0044], [0068], [0077], [0091]-[0100]). Arfsten et al. disclose mixing can be carried out by conventional mixing, refining and/or aeration methods, for instance using standard industrial mixing apparatus (i.e. applying shear – [0062],[0078]).
While Arfsten et al. does not disclose adding the encapsulated liquid oil after mixing the r remaining ingredients of the filling composition, selection of any order of mixing ingredient is prima facie obvious in the absence of new or unexpected results – MPEP §2144.04 IV C).
Regarding claims 12 and 13, Arfsten et al. disclose all of the claim limitations as set forth above. Arfsten et al. disclose the prepared filling composition has a fat content in the range of 5 to 70% (w/w)([0065]). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05).
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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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
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