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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on November 7, 2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 1 and 12 are objected to because of the following informalities:
Claim 1 recites the limitation “the composition” in line 3. It appears the claim should recite “the dough composition” in order to maintain consistency with “A dough composition” recited in Claim 1, line 1.
Claim 12 recites the limitation “the one or more crispy protein inclusions” in line 2. It appears the claim should recite “the crispy protein inclusions” in order to maintain consistency with “crispy protein inclusions” recited in Claim 8, line 6.
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 8-9, 11-16, 18-23 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 pre-AIA the applicant regards as the invention.
Claim 8 recites the limitation “SFSS” in line 1. It is unknown what this means.
Claim 15 recites the limitation “SFSS: in line 1. It is unknown what this means.
Clarification is required.
Claims 9, 11-14, 16, and 18-23 are rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-2, 4, 7-8, 11, 14-16, 18, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al. US 2005/0220961 in view of Wonschik et al. US 2016/0183578 as further evidenced by Kusch et al. US 3,513,023 in further view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”).
Regarding Claim 1, Cox et al. discloses a dough composition (‘961, Paragraph [0002]) for making a shelf stable (excellent storage stability) (‘961, Paragraph [0044]), indulgent, soft baked snack product (‘961, Paragraphs [0006] and [0019]) having reduced sugar levels (‘961, Paragraph [0010]). The fat in the dough is of plant origin (‘691 Paragraph [0031]), which has reduced saturated fat. The dough composition comprise a flour component, a fat component consisting of sunflower oil (‘961, Paragraph [0031]), and a sucrose free sugar component (‘961, Paragraphs [0010] and [0015]).
Cox et al. discloses the sucrose free sugar component (‘961, Paragraph [0010]) comprising a long chain sugar complex comprising oligofructose complexes (‘961, Paragraph [0020]). However, Cox et al. is silent regarding the oligofructose complex of the sugar complex to include an isolated fructose.
Wonschik et al. discloses a composition for modifying the taste of a sweetener, sweetness enhancer, and/or a consumable product (‘578, Paragraph [0002]) wherein the consumable product comprises flour, baking powder, baking soda, emulsifier, crystalline fructose, inulin, and oligofructose (‘578, Paragraph [0225]). Kusch et al. provides evidence that it was known in the food and beverage art that all of the known processes for the production of crystalline fructose serve for the isolation and purification of fructose by crystallization (‘023, Column 1, lines 33-46), i.e. crystalline fructose is considered to be isolated fructose.
Both Cox et al. and Wonschik et al. are directed towards the same field of endeavor of baked consumable food products. Both baked consumable food products of Cox et al. and Wonshik et al. are sweetened with at least one sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener used in Cox et al. and incorporate isolated fructose in the form of crystalline fructose as taught by Wonschik et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Wonschik et al. teaches that there was known utility in the food and beverage art to utilize isolated fructose in the form of crystalline fructose as a sweetener in baked food products.
Further regarding Claim 1, Cox et al. discloses inclusions of any suitable size including a range of about 4 mm to about 10 mm (‘961, Paragraph [0036]), which falls within the claimed inclusion size of greater than 3 mm in size. Where the claimed inclusion size ranges encompasses inclusion size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). However, Cox et al. modified with Wonschik et al. is silent regarding the dough composition comprising crispy protein inclusions.
Hennessy discloses a baked cookie comprising crispy rice cereal inclusions (Hennessy, Pages 3-5).
Both modified Cox et al. and Hennessy are directed towards the same field of endeavor of dough composition used to make soft baked snack products. Both dough compositions of modified Cox et al. and Hennessy contain inclusions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the dough composition of modified Cox et al. and incorporate crispy protein inclusions in the form of crispy rice cereal as taught by Hennessy based upon the desired flavor profile and mouthfeel (crunchiness) desired by a particular consumer in the final soft baked snack product.
Regarding Claim 8, Cox et al. discloses a reduced SFSS (excellent storage stability) (‘961, Paragraph [0044]), indulgent, soft baked snack product (‘961, Paragraphs [0006] and [0019]) comprising a flour component, a fat component consisting of sunflower oil (‘961, Paragraph [0031]), and a sucrose free sugar component (‘961, Paragraphs [0010] and [0015]).
Cox et al. discloses the sucrose free sugar component (‘961, Paragraph [0010]) comprising a long chain sugar complex comprising oligofructose complexes (‘961, Paragraph [0020]). However, Cox et al. is silent regarding the oligofructose complex of the sugar complex to include an isolated fructose.
Wonschik et al. discloses a composition for modifying the taste of a sweetener, sweetness enhancer, and/or a consumable product (‘578, Paragraph [0002]) wherein the consumable product comprises flour, baking powder, baking soda, emulsifier, crystalline fructose, inulin, and oligofructose (‘578, Paragraph [0225]). Kusch et al. provides evidence that it was known in the food and beverage art that all of the known processes for the production of crystalline fructose serve for the isolation and purification of fructose by crystallization (‘023, Column 1, lines 33-46), i.e. crystalline fructose is considered to be isolated fructose.
Both Cox et al. and Wonschik et al. are directed towards the same field of endeavor of baked consumable food products. Both baked consumable food products of Cox et al. and Wonshik et al. are sweetened with at least one sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener used in Cox et al. and incorporate isolated fructose in the form of crystalline fructose as taught by Wonschik et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Wonschik et al. teaches that there was known utility in the food and beverage art to utilize isolated fructose in the form of crystalline fructose as a sweetener in baked food products.
Further regarding Claim 8, Cox et al. discloses inclusions of any suitable size including a range of about 4 mm to about 10 mm (‘961, Paragraph [0036]), which falls within the claimed inclusion size of greater than 3 mm in size. Where the claimed inclusion size ranges encompasses inclusion size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). However, Cox et al. modified with Wonschik et al. is silent regarding the soft baked snack product comprising crispy protein inclusions.
Hennessy discloses a baked cookie comprising crispy rice cereal inclusions (Hennessy, Pages 3-5).
Both modified Cox et al. and Hennessy are directed towards the same field of endeavor of soft baked snack products. Both soft baked snack products of modified Cox et al. and Hennessy contain inclusions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the soft baked snack product of modified Cox et al. and incorporate crispy protein inclusions in the form of crispy rice cereal as taught by Hennessy based upon the desired flavor profile and mouthfeel (crunchiness) desired by a particular consumer in the final soft baked snack product.
Regarding Claim 15, Cox et al. discloses a method of preparing a reduced fat, sodium, and/or sugar levels (reduced sucrose and fat) (‘961, Paragraphs [0015] and [0032]) shelf stable, indulgent, soft baked product (‘961, Paragraph [0016]). The fat in the cookie dough is of plant origin (‘691, Paragraph [0031]), which has reduced saturated fat. The method comprises preparing a dough composition including a flour component, a fat component consisting of sunflower oil (‘961, Paragraph [0031]), and a sucrose free sugar component (saccharide system used in a cookie dough substantially free of sucrose) (‘961, Paragraphs [0010] and [0029]) including oligofructose (‘961, Paragraph [0020]), and baking the dough composition (‘961, Paragraphs [0033] and [0045]).
Cox et al. discloses the sucrose free sugar component (‘961, Paragraph [0010]) comprising a long chain sugar complex comprising oligofructose complexes (‘961, Paragraph [0020]). However, Cox et al. is silent regarding the oligofructose complex of the sugar complex to include an isolated fructose.
Wonschik et al. discloses a composition for modifying the taste of a sweetener, sweetness enhancer, and/or a consumable product (‘578, Paragraph [0002]) wherein the consumable product comprises flour, baking powder, baking soda, emulsifier, crystalline fructose, inulin, and oligofructose (‘578, Paragraph [0225]). Kusch et al. provides evidence that it was known in the food and beverage art that all of the known processes for the production of crystalline fructose serve for the isolation and purification of fructose by crystallization (‘023, Column 1, lines 33-46), i.e. crystalline fructose is considered to be isolated fructose.
Both Cox et al. and Wonschik et al. are directed towards the same field of endeavor of baked consumable food products. Both baked consumable food products of Cox et al. and Wonshik et al. are sweetened with at least one sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener used in Cox et al. and incorporate isolated fructose in the form of crystalline fructose as taught by Wonschik et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Wonschik et al. teaches that there was known utility in the food and beverage art to utilize isolated fructose in the form of crystalline fructose as a sweetener in baked food products.
Further regarding Claim 15, Cox et al. discloses inclusions of any suitable size including a range of about 4 mm to about 10 mm (‘961, Paragraph [0036]), which falls within the claimed inclusion size of greater than 3 mm in size. Where the claimed inclusion size ranges encompasses inclusion size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). However, Cox et al. modified with Wonschik et al. is silent regarding the method comprising preparing the dough composition to include crispy protein inclusions.
Hennessy discloses a baked cookie comprising crispy rice cereal inclusions (Hennessy, Pages 3-5).
Both modified Cox et al. and Hennessy are directed towards the same field of endeavor of methods of making soft baked snack products from a dough composition. Both methods of modified Cox et al. and Hennessy comprise a step of incorporating inclusions into a dough composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the method of modified Cox et al. and incorporate crispy protein inclusions in the form of crispy rice cereal as taught by Hennessy based upon the desired flavor profile and mouthfeel (crunchiness) desired by a particular consumer in the final soft baked snack product.
Regarding Claims 2 and 16, Cox et al. discloses the flour component comprising about 20% to about 40% of the dough composition (‘961, Paragraph [0029]), which falls within the claimed amount of flour component of at least 20% of the dough composition. Where the claimed flour component concentration of the dough composition encompasses flour component concentration of the dough composition ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Regarding Claims 4, 11, and 18, Wonshcik et al. discloses the sucrose free sugar component comprising a flavor modulator that enhances sweetness upfront and a flavor modulator that enhances long lasting sweetness (‘578, Paragraphs [0009] and [0139]).
Regarding Claims 7, 14, and 23, Cox et al. discloses adding additional inclusions which are sugar free (sugar free chocolate chips) in forming the dough composition (‘961, Paragraphs [0057]-[0061]).
Claims 5, 12, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al. US 2005/0220961 in view of Wonschik et al. US 2016/0183578 as further evidenced by Kusch et al. US 3,513,023 in further view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”) as applied to claim 1 or claim 8 or claim 20 above in further view of Chungah “Brown Butter White Chocolate Rice Krispie Treats” <https://web.archive.org/web/20170825184127/https://damndelicious.net/2012/05/22/brown-butter-white-chocolate-rice-krispie-treats/> (herein referred to as “Chungah”).
Regarding Claims 5, 12, and 19, Hennessy discloses the crispy protein inclusions including crisps or puffs (rice Krispies) (Hennessy, Pages 3-6). However, Cox et al. modified with Wonschik et al. and Hennessy is silent regarding the crisps or puffs having a white chocolate coating.
Chungah discloses crispy protein inclusions (rice Krispies) including crisps or puffs having a white chocolate coating (Chungah, Pages 7-10).
Cox et al. discloses incorporating inclusions as are well known in the art into the dough (‘961, Paragraph [0036]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the inclusions of Cox et al. to be crispy protein inclusions including crisps or puffs having a white chocolate coating as taught by Chungah based upon the desired flavor profile and ingredients by a particular consumer.
Claims 6, 9, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al. US 2005/0220961 in view of Wonschik et al. US 2016/0183578 as further evidenced by Kusch et al. US 3,513,023 in further view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”) as applied to claim 1 or claim 8 or claim 20 above in further view of Kime “How to crush Rice Krispies” <http://cooklikeyourgrandmother.com/how-to-crush-rice-krispies/> (published March 24, 2014) (herein referred to as “Kime”).
Regarding Claims 6, 9, and 20, Cox et al. discloses the inclusions being sized from about 4 mm to about 10 mm (‘961, Paragraph [0036]), which encompasses the claimed inclusion size of from about 5 mm to about 8 mm. Where the claimed inclusion size ranges encompasses inclusion size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Hennessy discloses the inclusions being crispy protein inclusions (Hennessy, Pages 3-5). However, Cox et al. modified with Wonschik et al. and Hennessy is silent regarding the crispy protein inclusions being in the form of particulates.
Kime discloses crispy protein inclusions in the form of particulates (crushed rice Krispies).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the crispy protein inclusions of Cox et al. that contains the rice Krispies of Hennessy to be particulates in the form of crushed rice Krispies as taught by Kime based upon the desired mouthfeel and crunchiness of the baked good.
Claims 13 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Cox et al. US 2005/0220961 in view of Wonschik et al. US 2016/0183578 as further evidenced by Kusch et al. US 3,513,023 in further view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”) as applied to claim 8 or claim 15 above in further view of Hay Jr. et al. US 5,340,598.
Regarding Claims 13 and 22, Cox et al. modified with Wonschik et al. and Hennessy is silent regarding the snack product comprising a sweet coating including maltodextrin.
Hay Jr. et al. discloses a coated baked good such as cookies (‘598, Column 1, lines 6-8) wherein the liquefied coating formulation comprising an adhesive or binding agent such as maltodextrins to help the coating material bind to the baked goods when the baked goods are dipped in the coating slurry (‘598, Column 17, lines 37-48).
Both modified Cox et al. and Hay Jr. et al. are directed towards the same field of endeavor of baked goods such as cookies. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the snack product of baked cookies disclosed by modified Cox et al. and incorporate a sweet coating including maltodextrin onto the cookie as taught by Hay Jr. et al. based upon the desired sweetness and mouthfeel of the baked good.
Further regarding Claim 22, although Hay Jr. et al. does not explicitly teach the order of applying the sweet coating after baking the dough composition, the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Cox et al. US 2005/0220961 in view of Wonschik et al. US 2016/0183578 as further evidenced by Kusch et al. US 3,513,023 in further view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”) as applied to claim 15 above in further view of Hamel “Cookie chemistry” <https://www.kingarthurbaking.com/blog/2016/03/14/cookie-chemistry-2> (published March 14, 2016) (herein referred to as “Hamel”).
Regarding Claim 21, Cox et al. discloses baking the dough composition at the appropriate temperature (‘961, Paragraph [0004]). However, Cox et al. modified with Wonschik et al. and Hennessy is silent regarding baking the dough composition at a temperature below 170°C for more than 15 minutes.
Hamel discloses a method of making cookies comprising flour comprising the steps of baking for 23 minutes at 325°F to make chocolate chip cookies wherein lower moisture sugar (granulated) and fat (vegetable shortening) and a longer slower bake than normal produces light crunchy cookies (Hamel, Page 3) wherein the baking time and temperature and interaction between sugar, fat, and flour influences the chocolate chip cookie texture (Hamel, Page 5). The disclosure of baking for 23 minutes at 325°F falls within the claimed baking time of 15 minutes and baking temperature of below 170°C (equivalent to below 338°F), respectively.
Both modified Cox et al. and Hamel are directed towards the same field of endeavor of methods of making baked cookies from a dough composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Cox et al. and bake the cookies for the claimed baking time at the claimed baking temperature as taught by Hamel since where the claimed baking time and baking temperature of the dough composition encompasses baking times and baking temperatures of the dough composition ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the baking time and baking temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such baking time and baking temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the baking time and baking temperature of the dough composition used to make the cookie of modified Cox et al. based upon the desired cookie texture as taught by Hamel (Hamel, Page 5).
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 1-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-20 of copending Application No. 18/864,149 (reference application) in view of Hennessy “These Super Chewy Rice Krispies Cookies Are the Delicious Mash Up I Didn’t Know I Needed” <https://www.thekitchn.com/rice-krispies-cookies-review-23190410> (published June 24, 2021) (herein referred to as “Hennessy”) and Cox et al. US 2005/0220961. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1-20 of the copending ‘149 application discloses a dough composition for making a shelf stable, indulgent, soft baked snack product having reduced saturated fat, sodium and/or sugar levels wherein the dough composition comprises a flour component, a fat component consisting of sunflower oil, and a sucrose free sugar component including isolated fructose. Claims 1-20 of the copending ‘149 application is silent regarding crispy protein inclusions greater than 3 mm in size. Hennessy discloses a baked cookie comprising crispy rice cereal inclusions (Hennessy, Pages 3-5). Cox et al. discloses inclusions of any suitable size including a range of about 4 mm to about 10 mm (‘961, Paragraph [0036]), which falls within the claimed inclusion size of greater than 3 mm in size. Where the claimed inclusion size ranges encompasses inclusion size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the dough composition of Claims 1-20 of the copending ‘149 application and incorporate crispy protein inclusions in the form of crispy rice cereal as taught by Hennessy based upon the desired flavor profile and mouthfeel (crunchiness) desired by a particular consumer in the final soft baked snack product.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Anna “Vegan Sunflower Oil Chocolate Chip Cookies” <https://www.cookiemadness.net/2017/05/30/vegan-sunflower-oil-chocolate-chip-cookies/> (published May 30, 2017) discloses a dairy free, egg free chocolate chip cookie recipe comprising flour and sunflower oil and baked at 350°F for about 12-13 minutes for larger cookies or 10 minutes depending on the size of the cookies (Anna, Pages 4-5).
Kat “Super Fudgy Healthy Brownies” <https://theloopywhisk.com/2019/01/09/super-fudgy-healthy-brownies/> (published January 9, 2019) discloses a gluten free and dairy free brownie comprising almond flour, coconut oil, and eggs (Kat, Pages 18-19) wherein coconut sugar is used instead of white sugar to make them as refined sugar free (Kat, Page 7).
Emily “The Best Healthy Brownies (Gluten/Dairy/Sugar Free)” <https://prettypies.com/low-carb-brownies/> (published January 27, 2022) discloses a sugar free gluten free dairy free brownie comprising almond flour, flaxseed egg replacer, allulose monkfruit, a neutral oil, and sugar free chocolate chips (Emily, Page 10) wherein allulose has no after taste and is not a sugar alcohol (Emily, Page 11) wherein the brownie is baked at 350 degrees for 28-31 minutes (Emily, Pages 14-15).
Ameden “Turn your favorite cookie recipe into cookie bars” <https://www.kingarthurbaking.com/blog/2018/09/10/transform-your-favorite-cookie-recipe> (published September 10, 2018) discloses baked cookies cut into bars (Ameden, Page 6).
Fisher et al. “Chocolate Chip Rice Krispies Treat Cookies” <https://www.spoonforkbacon.com/chocolate-chip-rice-krispies-treat-cookies/> (published November 28, 2012) discloses a method of making chocolate chip rice Krispies cookies comprising unsalted butter, sugar, egg, flour, baking soda, salt, rice Krispies cereal, chocolate chips, and marshmallows, the method comprising the steps of mixing the ingredients together to form a mixture and baking the mixture at 350°F for 10 to 12 minutes or until the cookies being to brown (Fisher et al., Pages 6-8).
Mims “Chocolate Chunk Cookies With Coconut Sugar and Puffed Rice” <https://www.latimes.com/recipe/chocolate-chunk-cookies-coconut-sugar-and-puffed-rice> (published December 4, 2019) discloses baked chocolate chip cookies comprising puffed rice (Mims, Pages 3-4).
Rodriguez et al. US 2017/0332677 discloses an extruded foodstuff product comprising a coating disposed over the external surface of the casing component wherein the coating includes maltodextrin (‘677, Paragraph [0191]).
Forny et al. US 2017/0231235 discloses a coated bakery product wherein the coating comprises maltodextrin gum (‘235, Paragraph [0017]).
Haas et al. US 2010/0015295 discloses a method for preventing staling in baked goods wherein the baked good has reduced drying and enhanced tenderness over an extended storage time at room temperature (‘295, Paragraph [0003]) wherein the baked good is fully enrobed with a secondary lipid based coating or a chocolate (‘295, Paragraph [0005]) wherein the baked good is a cookie cake or other baked good (‘295, Paragraph [0007]) wherein the secondary lipid based coating is a compound coating comprising cocoa and maltodextrin sweetener (‘295, Paragraph [0010]).
Piispa et al. US 2021/0307348 discloses a bakery product comprising dough comprising flour in an amount of from 30 to 60% by weight (‘348, Paragraph [0061]).
Demeurisse US 2020/0154718 discloses a cooked food product formed from a cooking composition, dough or batter (‘718, Paragraph [0036]) wherein the cooking composition includes cookies (‘718, Paragraph [0041]) wherein the dough composition for forming a baked food product comprises 20 to 70 wt% flour (‘718, Paragraphs [0118]-[0119]).
Domingues et al. US 2017/0347671 discloses a gluten free dough composition comprising at least one gluten free flour source in an amount of at least 35% by weight of the composition (‘671, Paragraph [0008]) and at least one fat source that affects the spread of the dough during baking (‘671, Paragraph [0035]) wherein the dough composition is applied in a baking application to produce cookies or brownies (‘671, Paragraph [0055]) and baked in an oven for a sufficient amount of time to fully cook the product (‘671, Paragraph [0058]) wherein the dough is shelf stable for at least about 90 days under refrigerated conditions, i.e. the dough remains microbial safe and maintains a desired texture, appearance, and taste that produces a baked product having a desired taste, texture, and mouthfeel (‘671, Paragraph [0059]).
Dacey et al. US 2016/0120191 discloses a gluten free flour mixture present in a ready to bake gluten free cookie dough in an amount from about 25% to about 30% by weight of the dough (‘191, Paragraph [0015]).
Couttenye et al. US 2013/0287920 discloses a soft baked foodstuff such as cookies and brownies (‘920, Paragraph [0002]) wherein the moisture content and/or water activity of post baked foodstuff is used to characterize whether a post baked foodstuff is considered to be soft baked (‘920, Paragraph [0034]) wherein the flour content of the dough used to make soft baked foodstuffs is in the range of about 20% to about 40% (‘920, Paragraph [0041]) wherein the lipids used in the dough is a liquid fat at room temperature such as sunflower oil (‘920, Paragraph [0042]).
Watts et al. US 2010/0303987 discloses a baked product such as cookies (‘987, Paragraph [0001]) wherein a typical cookie mix (dough) comprises 20-55% soft flour, 10-50% sugar, 2-20% fat, 0-10% egg and/or milk solids, and 10-20% water and a raising agent, e.g. sodium bicarbonate (‘987, Paragraph [0027]).
Karwowski et al. US 2010/0303991 discloses baking times and temperatures varies for different dough or batter formulations, oven types and in general cookie and brownie baking times range from about 2.5 minutes to about 15 minutes and baking temperatures range from 93 degrees C to 371 degrees C (‘991, Paragraph [0076]).
Brooks et al. US 2010/0303957 discloses brownies made with algal flakes having about a 64% reduction in the fat content when compared to conventional brownies (‘957, Paragraph [0316]).
Brooks et al. US 2010/0303961 discloses a method of inducing satiety by providing microalgae based foods containing high levels of dietary fiber and/or low saturation triglyceride oil (‘961, Paragraph [0009]) by administering a food product comprising microalgal biomass combined with one or more additional edible ingredients (‘961, Paragraph [0010]) wherein the food product is a baked good (‘961, Paragraph [0012]) such as brownies and cookies (‘961, Paragraph [0031]) wherein the algal flour is used in baked goods in place of conventional fat sources, e.g. oil, butter, or margarine and eggs having a longer shelf life and retaining their original texture longer than conventional baked goods produced without algal flour (‘961, Paragraph [0176]).
Brooks et al. US 2010/0303989 discloses microalgae derived flour containing varying levels of primarily monounsaturated triglyceride oil which flours have healthy oil delivery attributes and are used as oil and fat replacements (‘989, Paragraph [0009]) wherein the algal flour is used in baked goods such as cookies and brownies (‘989, Paragraph [0175]) which algal flour is combined with an intermediate dough that can then be baked (‘989, Paragraph [0180]) wherein algal biomass is incorporated into virtually any food composition (‘989,Paragraph [0236]) wherein brownies with algal flour are baked for 27-28 minutes (‘989, Paragraph [0312]) wherein the algal flour is an effective replacement for butter and eggs in a baked good recipe and produces a product similar in texture, taste, and appearance (‘989, Paragraph [0313]).
Brooks et al. US 2010/0297296 discloses a baked food product comprising microalgal biomass in the form of microalgal flour wherein the food has reduced fat, reduced cholesterol, and increased fiber content and reduces eggs, butter, animal fat, and saturated oils in favor of healthy oil containing microalgae biomass and oils including lower calorie foods (‘296, Paragraphs [0009]-[0010]) wherein the algal biomass is incorporated into virtually any food composition including baked goods such as brownies and cookies (‘296, Paragraph [0234]).
Brooks et al. US 2010/0297323 discloses a microalgae containing gluten reduced and gluten free finished food composition having reduced cholesterol and healthier oil content than existing gluten free foods (‘323, Paragraph [0009]).
Jurgens et al. US 2018/0110233 discloses a method for reformulating a baked food product comprising providing a dough or batter, the food product having a reduced sugar content compared to a corresponding reference food product containing sugar (‘233, Paragraph [0012]) wherein the baked food product is cookies (‘233, Paragraph [0085]) wherein part of a sugar in the baked product is replaced with a polyol and a fructooligosaccharide (‘233, Paragraphs [0019]-[0020]) wherein the oligosaccharide is inulin (‘233, Paragraph [0038]) wherein the product has a reduced monosaccharide/reduced fructose content (‘233, Paragraph [0066]).
Alexandre US 2008/0138472 discloses a high fiber cookie containing inulin and resistant starch having significantly low calorie, fat, and sugar content and substantial fiber (‘472, Paragraph [0001]) wherein inulin is a source of fiber having health benefits if incorporated into cookies wherein inulin is a soluble fiber which has prebiotic properties (‘472, Paragraph [0002]) wherein the inulin is combined with flour to produce the high fiber cookie dough (‘472, Paragraph [0027]) wherein the total amount of flour in the composition is from about 20% to about 80% by weight based upon the weight of the dough (‘472, Paragraph [0028]) wherein the dough is preblended with the inulin (‘472, Paragraph [0045]).
Andrews et al. US 2007/0128340 discloses a coating comprising maltodextrin (‘340, Paragraph [0074]).
Engels et al. US 2005/0260308 discloses a coated oven baked food product (‘308, Paragraph [0001]) wherein the coating comprises maltodextrin (‘308, Paragraph [0055]).
Sapnier et al. US 5,114,704 discloses a viscous liquefied coating formulation comprising a surfactant, an effective polysaccharide gum, a binding agent, a starch carrier, and a hydrogenated vegetable oil.
Schuppan et al. US 2007/0009639 discloses a method of making baked foods with a barrier that can reduce lipid and moisture migration to provided up to a week of added shelf life (‘639, Paragraph [0006]) wherein the barrier comprises maltodextrin instead of sugar which barrier covers the surface area to reduce moisture migration (‘639, Paragraph [0011]).
Gonzalez et al. US 2016/0192688 discloses fructose-oligosaccharide (FOS) and inulin are found naturally in Jerusalem artichoke, burdock, chicory, leeks, onions, and asparagus and may be isolated from these crops (‘688, Paragraph [0025]).
Jonniaux et al. US 6,518,047 discloses an isolated and purified enzyme with inulinolytic activity having use for the degradation of inulin or inulin containing plant material such as the production of fructose syrups and the production of oligomers of fructose.
Ertl et al. US 2015/0010965 discloses isolated D-fructose in crystalline form.
Caimi et al. US 5,908,975 discloses crystalline fructose requires that fructose syrup is isolated from ion exchange columns.
Liaw et al. US 5,047,088 discloses a method of producing crystalline fructose by crystallizing from a solution to make an isolated crystalline fructose.
Day US 4,643,773 discloses several routes have been utilized to isolate and separate fructose as a crystalline component.
De Mendonca Ferreira et al. US 2004/0231662 discloses crystalline fructose is composed of orthorhombic crystals which are white, odorless, and hygroscopic wherein anhydrous crystalline or dissolved fructose is used in baked goods such as cookies
Bonnass-Gahot et al. US 6,312,750 discloses a sweet snack partly or totally coated with a white chocolate coating.
Blaschke et al. US 6,280,783 discloses a dough containing inclusions of any edible size from about 4 mm to about 10 mm wherein white chocolate compound coatings are used in the form of morsel, pellets, or chunks.
Arora et al. US 2014/0154362 discloses a confectionery coating or shell inhibiting moisture migration out from a core wherein the shell is white chocolate (‘362, FIG. 2) (‘362, Paragraph [0051]).
Hareyama et al. US 2013/0011524 discloses a white chocolate material liquefied under heat and applied to the surface of a porous food immersed in the liquid white chocolate material to coat the food (‘524, Paragraph [0035]) wherein the porous food is a baked confectionary (‘524, Paragraph [0013]) made from a dough (‘524, Paragraph [0038]).
Maningat et al. US 2010/0255172 discloses a white sugar free coating.
Bisson et al. US 4,744,993 discloses a puffed crispy product used in the food industry (‘993, Column 1, lines 33-37) and liquid white chocolate coating for ice lollies (‘993, Column 7, lines 6-20).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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, Erik Kashnikow can be reached at 571-270-3475. 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.
/ERICSON M LACHICA/Examiner, Art Unit 1792
Prosecution Insights