DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
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 1-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 9-16, 19, and 30-35 of U.S. Patent No. 11/013,239. Although the claims at issue are not identical, they are not patentably distinct from each other because in the instant 18/927,088 application, claim 1 recites “A baked product made from a non-laminated dough comprising:100 wt% flour, based on weight of flour; up to 34 wt% lipid source, based on weight of flour; at least 32 wt% water, based on weight of flour; one or more chemical leavening agents; yeast; a dairy ingredient; and, shortening chips; wherein the baked product has a gluten content of 10 wt% to 20 wt%, the shortening chips comprise a fully hydrogenated vegetable oil and have a Mettler Dropping Point from 130°F to 170°F, and the baked product comprises air cells”; wherein claim 7 recites the Mettler Dropping Point is from 160°F to 170°F; wherein claim 10 recites the air cells have a better structure and higher volume than a comparative baked product; wherein claim 11 recites the air cells are generated by the shortening chips upon melting during baking; wherein claim 12 recites the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen; where claims 1 and 23 of U.S. Patent No. 11/013,239 recite “A frozen, non-laminated dough formulated to increase in height by at least 100% when baked as compared to a height of said frozen dough prior to baking, said frozen dough formed by the process of: (a) mixing flour, a lipid source, chemical leavening agent, yeast, dairy ingredient, and water to form a dough, said dough having a gluten content of 10% to 20% weight, said dough comprising by weight percent flour: 100% flour, up to 34% lipid source, and at least 32% water; (b) adding shortening chips to said dough after the step of mixing, wherein the dough further comprises shortening chips, wherein said shortening chips include a fully hydrogenated vegetable oil; (c) mixing said shortening chips in said dough for 30 seconds to 3 minutes resulting in the dough comprising shortening chips that are distributed in the dough, not fully disintegrated after said mixing, and have a Mettler Dropping Point of between 130° F. and 170° F.; (d) resting said dough for 5 to 50 minutes at 70° F. to 80° F. after said shortening chips have been mixed in said dough to allow said dough to rise by the formation of gas cells that include gas in said dough; (e) subjecting said rested dough to a high stress sheeting process to at least partially expel said gas in said gas cells that were formed during said step of resting without destroying all of the gas cells, said high stress sheeting process including 2 to 5 compression steps to reduce a height of said rested dough prior to said high stress sheeting process by at least 80%; and, (f) without proofing said dough after said sheeting process, freezing said dough to form said frozen dough”; wherein said frozen dough is formulated to cause further gas generation during baking of said frozen dough to cause expansion of said gas cells formed during said step of resting.
Although the patented claims do not require the product in baked form, it does refer to the effects and state of product when the non-laminated dough is baked.
Regarding instant claims 2-6, 8, 9; and claims 2-6, and 30, 31, 34, 35, of 11/013,239 they recite:
The instant claim 2 recites wherein the chemical leavening agents comprise delay-action chemical leavening agents, coated chemical leavening agents, or combinations thereof so as to cause the chemical leavening agents to primarily react during baking; as recited in claim 2 of U.S. 11/013,239
The instant claim 3 recites wherein the non-laminated dough of claim 1, wherein the dough further comprises 0.2 wt% to 1.6 wt% of a dough conditioner, wherein the dough conditioner comprises hydrophilic colloids comprising one or more compounds selected from the group consisting of carrageenan, guar gum, locust bean gum, alginate, xanthan gum, methylcellulose, carboxy-methylcellulose, ethylcellulose, hydroxy-propylmethylcellulose, and microcrystalline cellulose as recited in claim 3 of U.S. 11/013,239.
The instant claim 4 recites wherein the dough further comprises 0.05 wt% to 0.5 wt% of an emulsifier, wherein the emulsifier comprises one or more compounds selected from the group consisting of lecithin, hydroxylated lecithin, monoglycerides of fatty acids, diglycerides of fatty acids, polyglycerides of fatty acids, polyoxyethylene ethers of fatty esters of polyhydric alcohols, fatty esters of polyhydric alcohols, polyglycerol esters of monoglycerides, polyglycerol esters of diglycerides, monoesters of glycols, diesters of glycols, propylene glycol monopalmitate, succinoylated monoglycerides, esters of carboxylic acids, glycerol lacto palmitate, glycerol lacto stearate, calcium stearoyl lactylates, sodium stearoyl lactylates, diacetyl tartaric esters of fatty acids, and diacetyl tartaric acid ester of monoglyceride; as recited in claim 4 of U.S. 11/013,239.
The instant claim 5 recites wherein the dairy ingredient comprises one or more ingredients selected from the group consisting of cheese, cheese substitute, whey, casein, and milk fat; as recited in claim 5 of U.S. 11/013,239.
The instant claim 6 recites wherein the dough further comprises 1.5 wt% to 2 wt% bread crumb product; as recited in claim 6 of U.S. 11/013,239.
The instant claim 8 recites wherein the fully hydrogenated vegetable oil is soybean oil; as recited in claims 30 and 34 of U.S. 11/013,239.
The instant claim 9 recites wherein the Mettler Dropping Point is 160°F; as recited in claims 31 and 35 of U.S. 11/013,239.
Regarding instant claims 13-26; and claims 9-16, 19, 32, and 33 of 11/013,239 they recite:
The instant claim 13 wherein the baked product is a pizza crust or a roll; as recited in claim 9 of U.S. 11/019,239 where it recites “A frozen, non-laminated pizza dough formulated to increase in height by at least 100% when baked as compared to a height of said frozen dough prior to baking”, “and therefore renders obvious a baked pizza dough.
The instant claims 14, 20, 23, 24, 25, and 26 recites a pizza crust made from non-laminated pizza dough wherein the dough comprises 100 wt% flour, based on weight of flour; up to 34 wt% lipid source, based on weight of flour; at least 32 wt% water, based on weight of flour; 0.05 wt% to 0.5 wt% emulsifier, based on weight of flour, claim 20 recites wherein the Mettler Dropping Point is 160 to 170° F, claim 23 recites wherein the pizza crust comprises air cells; claim 24 recites wherein the air cells have a better structure and higher volume than a comparative pizza crust; claim 25 recites wherein the air cells are generated by the shortening chips upon melting during baking;
claim 26 recites wherein the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen; as recited in claim 9 of U.S. 11/019,239.
The instant claim 15 recites wherein the dough conditioner comprises hydrophilic colloids comprising one or more compounds selected from the group consisting of carrageenan, guar gum, locust bean gum, alginate, xanthan gum, methylcellulose, carboxy- methylcellulose, ethylcellulose, hydroxy-propylmethylcellulose, and microcrystalline cellulose as recited in claims 10 and 12 of U.S. 11/019,239.
The instant claim 16 recites wherein the emulsifier comprises one or more compounds selected from the group consisting of lecithin, hydroxylated lecithin, monoglycerides of fatty acids, diglycerides of fatty acids, polyglycerides of fatty acids, polyoxyethylene ethers of fatty esters of polyhydric alcohols, fatty esters of polyhydric alcohols, polyglycerol esters of monoglycerides, polyglycerol esters of diglycerides, monoesters of glycols, diesters of glycols, propylene glycol monopalmitate, succinoylated monoglycerides, esters of carboxylic acids, glycerol lacto palmitate, glycerol lacto stearate, calcium stearoyl lactylates, sodium stearoyl lactylates, diacetyl tartaric esters of fatty acids, and diacetyl tartaric acid ester of monoglyceride as recited in claim 11 of U.S. 11/019,239.
The instant claim 17 recites wherein the dough further comprises 1.5 wt% to 2 wt% bread crumb product; as recited in claims 13 and 14 of U.S. 11/019,239.
The instant claim 18 recites wherein the dairy ingredient comprises one or more ingredients selected from the group consisting of cheese, cheese substitute, whey, casein, and milk fat as recited in claims 15 and 16 of U.S. 11/019,239.
The instant claim 19 recites wherein the dough comprises by wt% flour: flour 100%, gluten 1-4%, compressed yeast 2-10%, deactivated yeast 0.1 -0.5%, sugar 1-3%, vegetable oil up to 5%, cheese and/or 1-5%, imitation cheese, chemical leavening agent 1-3%, salt 1-3%, water 45 75%; as recited in claim 19 of U.S. 11/019,239.
The instant claim 21 recites, wherein the fully hydrogenated vegetable oil is soybean oil; as recited in claim 32 of U.S. 11/019,239.
The instant claim 22 recites, wherein the Mettler Dropping Point is 160°F as recited in claim 33 of U.S. 11/019,239.
Claims 1-12, 14-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 9-16, 19, and 30-35 of U.S. Patent No. 12/161,123. Although the claims at issue are not identical, they are not patentably distinct from each other because in the instant 18/927,088 application claim 1 recites A baked product made from a non-laminated dough comprising:100 wt% flour, based on weight of flour; up to 34 wt% lipid source, based on weight of flour; at least 32 wt% water, based on weight of flour; one or more chemical leavening agents; yeast; a dairy ingredient; and, shortening chips; wherein the baked product has a gluten content of 10 wt% to 20 wt%, the shortening chips comprise a fully hydrogenated vegetable oil and have a Mettler Dropping Point from 130°F to 170°F, and the baked product comprises air cells; wherein claim 7 recites the Mettler Dropping Point is from 160°F to 170°F; wherein claim 10 recites the air cells have a better structure and higher volume than a comparative baked product; wherein claim 11 recites the air cells are generated by the shortening chips upon melting during baking; wherein claim 12 recites the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen; where claims 1, 7, and 21 of U.S. Patent No. 12/161,123 recite 1. A non-laminated dough comprising: 100 wt % flour, based on weight of flour; up to 34 wt % lipid source, based on weight of flour; at least 32 wt % water, based on weight of flour; one or more chemical leavening agents; yeast; a dairy ingredient; and, shortening chips; wherein the dough has a gluten content of 10 wt % to 20 wt %, the shortening chips comprise a fully hydrogenated vegetable oil, and the shortening chips have a Mettler Dropping Point from 160° F. to 170° F; wherein the fully hydrogenated vegetable oil is soybean oil (claim 7); . Although the patented claims do not require the product in baked form, it does refer to the effects and state of product when the non-laminated dough is baked.
Regarding instant claims 2-6, 8, 9; and claims 2-8 of 12/161,123 they recite:
The instant claim 2 recites wherein the chemical leavening agents comprise delay-action chemical leavening agents, coated chemical leavening agents, or combinations thereof so as to cause the chemical leavening agents to primarily react during baking; as recited in claim 2 of U.S. 12/161,123
The instant claim 3 recites wherein the non-laminated dough of claim 1, wherein the dough further comprises 0.2 wt% to 1.6 wt% of a dough conditioner, wherein the dough conditioner comprises hydrophilic colloids comprising one or more compounds selected from the group consisting of carrageenan, guar gum, locust bean gum, alginate, xanthan gum, methylcellulose, carboxy-methylcellulose, ethylcellulose, hydroxy-propylmethylcellulose, and microcrystalline cellulose as recited in claim 3 of U.S. 12/161,123.
The instant claim 4 recites wherein the dough further comprises 0.05 wt% to 0.5 wt% of an emulsifier, wherein the emulsifier comprises one or more compounds selected from the group consisting of lecithin, hydroxylated lecithin, monoglycerides of fatty acids, diglycerides of fatty acids, polyglycerides of fatty acids, polyoxyethylene ethers of fatty esters of polyhydric alcohols, fatty esters of polyhydric alcohols, polyglycerol esters of monoglycerides, polyglycerol esters of diglycerides, monoesters of glycols, diesters of glycols, propylene glycol monopalmitate, succinoylated monoglycerides, esters of carboxylic acids, glycerol lacto palmitate, glycerol lacto stearate, calcium stearoyl lactylates, sodium stearoyl lactylates, diacetyl tartaric esters of fatty acids, and diacetyl tartaric acid ester of monoglyceride; as recited in claim 4 of U.S. 12/161,123.
The instant claim 5 recites wherein the dairy ingredient comprises one or more ingredients selected from the group consisting of cheese, cheese substitute, whey, casein, and milk fat; as recited in claim 5 of U.S. 12/161,123.
The instant claim 6 recites wherein the dough further comprises 1.5 wt% to 2 wt% bread crumb product; as recited in claim 6 of U.S. 12/161,123.
The instant claim 8 recites wherein the fully hydrogenated vegetable oil is soybean oil; as recited in claim 7 of U.S. 12/161,123.
The instant claim 9 recites wherein the Mettler Dropping Point is 160°F; as recited in claim 8 of U.S. 12/161,123.
Regarding instant claims 14-26; and claims 9-20, 25 and 26 of U.S. 12/161,123 they recite:
The instant claims 14, 20, 23, 24, 25, and 26 recites a pizza crust made from non-laminated pizza dough wherein the dough comprises 100 wt% flour, based on weight of flour; up to 34 wt% lipid source, based on weight of flour; at least 32 wt% water, based on weight of flour; 0.05 wt% to 0.5 wt% emulsifier, based on weight of flour, claim 20 recites wherein the Mettler Dropping Point is 160 to 170° F, claim 23 recites wherein the pizza crust comprises air cells; claim 24 recites wherein the air cells have a better structure and higher volume than a comparative pizza crust; claim 25 recites wherein the air cells are generated by the shortening chips upon melting during baking;
claim 26 recites wherein the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen; as recited in claim 9 of U.S. 12/161,123.
The instant claim 15 recites wherein the dough conditioner comprises hydrophilic colloids comprising one or more compounds selected from the group consisting of carrageenan, guar gum, locust bean gum, alginate, xanthan gum, methylcellulose, carboxy- methylcellulose, ethylcellulose, hydroxy-propylmethylcellulose, and microcrystalline cellulose as recited in claim 10 of U.S. 12/161,123.
The instant claim 16 recites wherein the emulsifier comprises one or more compounds selected from the group consisting of lecithin, hydroxylated lecithin, monoglycerides of fatty acids, diglycerides of fatty acids, polyglycerides of fatty acids, polyoxyethylene ethers of fatty esters of polyhydric alcohols, fatty esters of polyhydric alcohols, polyglycerol esters of monoglycerides, polyglycerol esters of diglycerides, monoesters of glycols, diesters of glycols, propylene glycol monopalmitate, succinoylated monoglycerides, esters of carboxylic acids, glycerol lacto palmitate, glycerol lacto stearate, calcium stearoyl lactylates, sodium stearoyl lactylates, diacetyl tartaric esters of fatty acids, and diacetyl tartaric acid ester of monoglyceride as recited in claims 11 and 12 of U.S. 12/161,123.
The instant claim 17 recites wherein the dough further comprises 1.5 wt% to 2 wt% bread crumb product; as recited in claims 13 and 14 of U.S. 12/161,123.
The instant claim 18 recites wherein the dairy ingredient comprises one or more ingredients selected from the group consisting of cheese, cheese substitute, whey, casein, and milk fat as recited in claims 15 and 16 of U.S. 12/161,123.
The instant claim 19 recites wherein the dough comprises by wt% flour: flour 100%, gluten 1-4%, compressed yeast 2-10%, deactivated yeast 0.1 -0.5%, sugar 1-3%, vegetable oil up to 5%, cheese and/or 1-5%, imitation cheese, chemical leavening agent 1-3%, salt 1-3%, water 45 75%; as recited in claims 17 and 18 of U.S. 12/161,123.
The instant claim 21 recites, wherein the fully hydrogenated vegetable oil is soybean oil; as recited in claims 19 and 25 of U.S. 12/161,123.
The instant claim 22 recites, wherein the Mettler Dropping Point is 160°F as recited in claims 20 and 26 of U.S. 12/161,123.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-7, 10-13, and 22 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sadek et al. (US 2004/0213883) in view of Goedeken et al. (US 2005/0129821) and Callaghan et al. (US 2,686, 721).
Regarding Claims 1 and 7: Sadek discloses a dough that contains a majority or 100% flour, chemical leavening, yeast, cheese (dairy ingredient), 25 to 75% water, 1 to 10% lipids; solid fats including shortening materials [0007; 0010; 0035; 0039]. Sadek does not disclose laminating the dough and therefore discloses a non-laminated dough. Sadek discloses a baked product [abstract].
Sadek does not disclose that the gluten content of the dough is 10-20% by weight of flour.
Although Sadek discloses adding shortening, it does not disclose fully hydrogenated shortening chips and does not disclose chips have a Mettler Dropping Point of 130°F to 170°F; Mettler Dropping Point of 160°F to 170°F (claim 7).
Goedeken specifically discloses flour containing gluten at up to 16% [0039], salt .1% to about 10% [0017; 0046], water about 15% to 35% [0040], compressed yeast at 1 to 12 percent [0035], dried yeast and any form of yeast at 1 to 12 percent [0051], sugar about 2% to about 15% [0045]; oil about 15% to 35% [0040]; chemical leavening agent up to 2.5% [0021; 0053].
Callaghan discloses incorporating into pie crust dough, shortening having a low melting point and also incorporating harder shortening flakes or pellets in a flour mix [claims 1-6]. Callaghan discloses that the Wiley melting point of the shortening chips is between 125°F and 145°F and particularly discloses 135°F to 145°F [col. 2, lines 15-45]. Callaghan discloses that the shortening is made up of fully hydrogenated vegetable oil [col. 2, lines 44-47].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include the gluten content of Goedeken and the yeasts of Goedeken in order to keep the gluten at levels used for non-FTO doughs [Goedeken 0036; 0039].
Further, it would have been obvious to one of ordinary skill in the art to modify Sadek to include or substitute the fully hydrogenated vegetable shortening chips of Callaghan in the dough composition disclosed in Sadek because the shortening chips with a melting point of between 125°F and 145°F would have provided a level of flakiness and tenderness to the finished product [col. 3, lines 55-75].
Regarding Claim 2: Sadek discloses as discussed above in claim 1. Sadek discloses encapsulated leavening agents [0036].
Regarding Claim 3: Sadek discloses as discussed above in claim 1. Sadek discloses food gums and hydrocolloids at 0.2 to 5% and that the food gums and hydrocolloids can be carrageenan, guar, locust bean gum, alginate, xanthan, methylcellulose, and hydroxyl-propylmethylcellulose [0030; 0039].
One having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the amounts taught by Sadek overlap the instantly claimed ranges and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 4: Sadek as modified discloses as discussed above in claim 1. Sadek discloses emulsifiers at 1 to 10% and that the emulsifiers can be monoglycerides, diglycerides [0031].
Further, the amounts are substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding Claim 5: Sadek discloses as discussed above in claim 1. Sadek discloses that the dairy ingredient can be cheese [0032].
Regarding Claim 6: Sadek discloses as discussed above in claim 1. Sadek discloses adding breadcrumbs to improve the processing of the dough and the quality of the dough after baking [para 0026].
Although Sadek does not disclose that the amount of crumb added it would have been obvious to one having ordinary skill in the art at the time of the invention to apply bread crumbs in an amount needed to achieve the desired effect which is the improvement of the quality of the dough during processing and the finished product after baking.
Regarding Claims 10-12: Sadek as modified discloses as discussed above in claim 1. Sadek discloses that the crust is well formed and well raised [abstract; 0007; 0019; 0053]. Although Sadek does not disclose wherein the air cells have a better structure and higher volume than a comparative baked product (claim 10); wherein the air cells are generated by the shortening chips upon melting during baking (claim 11); wherein the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen (claim 12).
However, since Sadek as modified discloses all of the components of the pizza crust it would have been obvious that the product would have contained the recited features. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 13: Sadek discloses as discussed above in claim 1. Sadek discloses crust and rolls as a baked product [abstract].
Claim 6 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sadek et al. (US 2004/0213883) in view of Goedeken et al. (US 2005/0129821) and Callaghan et al. (US 2,686, 721) as applied to claim 1 above in view of Yamauchi JP2000245331A Machine Translation.
Regarding Claim 6: Sadek as modified discloses as discussed above in claim 1. Sadek discloses adding breadcrumbs to improve the processing of the dough and the quality of the dough after baking [para 0026]. Sadek does not disclose that the dough contains breadcrumbs at 1.5% to 2%.
Yamauchi discloses breadcrumbs in dough at 1 to 10% [pg. 3, lines 8-12, 20-23].
At the effective filing date of the invention, it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include the breadcrumbs of Sadek at 1 to 10% as in Yamauchi.
Although Yamauchi does not explicitly disclose 1.5% to 2% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yamauchi overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 8, 9, and 21, 22 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sadek et al. (US 2004/0213883) in view of Goedeken et al. (US 2005/0129821) and Callaghan et al. (US 2,686, 721) as applied to claims 1 and 14 above in view of Unger et al. (CA 2573014 ).
Regarding Claims 8 and 21: Sadek as modified discloses as discussed above in claims 1 and 14. Sadek discloses shortening which is known in the art to be made of hydrogenated oil. However, Sadek does not disclose that the shortening is fully hydrogenated soybean oil.
Unger discloses shortening in dough and that it can contain shortening that is fully hydrogenated soybean oil [pg. 3, lines 8-12, 20-23].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include fully hydrogenated soybean oil as the shortening as in Unger in order to provide a non-trans fat to the composition.
Regarding Claims 9 and 22: Sadek as modified discloses as discussed above in claims 8 and 21. Callaghan discloses that the Wiley melting point of the shortening chips is between 125°F and 145°F.
Although Callaghan does not disclose a Mettler Dropping Point of 160°F, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the melting point to a higher melting point in order for the shortening to hold shape until baking, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Claims 14-16, 18-26 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sadek et al. (US 2004/0213883) in view of Goedeken et al. (US 2005/0129821), Callaghan et al. (US 2,686, 721), Gulstad et al. (US 3,767,421), and Unger et al. (CA 2573014).
Regarding Claims 14-16 and 21: Sadek discloses a dough that contains a majority or 100% flour, chemical leavening, yeast, cheese (dairy ingredient), 25 to 75% water, 1 to 10% lipids; solid fats including shortening materials [0007; 0010; 0035; 0039]. Sadek discloses emulsifiers at 1 to 10% and that the emulsifiers can be monoglycerides, diglycerides [0031]. Sadek discloses food gums and hydrocolloids at 0.2 to 5% and that the food gums and hydrocolloids can be carrageenan, guar, locust bean gum, alginate, xanthan, methylcellulose, and hydroxyl-propylmethylcellulose [0030; 0039]. Sadek does not disclose laminating the dough and therefore discloses a non-laminated dough. Sadek discloses encapsulated leavening agents [0036]. Sadek discloses that the dough can be pizza dough [0012].
Sadek does not disclose that the gluten content of the dough is 10-20% by weight of flour.
Although Sadek discloses encapsulated leavening agents, it does not disclose that the encapsulated agent has a melting point greater than 70-80°F.
Although Sadek discloses adding shortening, it does not disclose fully hydrogenated shortening chips and does not disclose chips have a Mettler Dropping Point of 130°F to 170°F.
Goedeken discloses a frozen, sheeted dough containing flour, a fat source (lipid source), chemical leavening agents and encapsulated chemical leavening agents, yeast, dairy products, dough conditioner [para. 0011, 0043, 0044, 0049, 0051]. Goedeken specifically discloses flour containing gluten at up to 16% [0039], salt .1% to about 10% [0017; 0046], water about 15% to 35% [0040], compressed yeast at 1 to 12% [0035], dried yeast and any form of yeast at 1 to 12% [0051], sugar about 2% to about 15% [0045]; oil about 15% to 35% [0040]; chemical leavening agent up to 2.5% [0021; 0053]. Goedeken also discloses that the lipid can be derived from fats and shortenings including soybean oil, corn oil, canola oil, sunflower oil, animal fats and hydrogenated vegetable oils [0043].
Callaghan discloses incorporating into pie crust dough, shortening having a low melting point and also incorporating harder shortening flakes or pellets in a flour mix [claims 1-6]. Callaghan discloses that the Wiley melting point of the shortening chips is between 125°F and 145°F and particularly discloses 135°F to 145°F [col. 2, lines 15-45]. Callaghan discloses that the shortening is made up of fully hydrogenated vegetable oil [col. 2, lines 44-47].
Gulstad discloses encapsulated chemical leavening agents coated with a coating that melts at 110 to 120°F [col. 4, lines 30-40].
Unger discloses shortening in dough and that it can contain shortening that is fully hydrogenated soybean oil [pg. 3, lines 8-12, 20-23].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include fully hydrogenated soybean oil as the shortening as in Unger in order to provide a non-trans fat to the composition.
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include the gluten content of Goedeken and the yeasts of Goedeken in order to keep the gluten at levels used for non-FTO doughs [Goedeken 0036; 0039].
Further, it would have been obvious to one of ordinary skill in the art to modify Sadek to include or substitute the fully hydrogenated vegetable shortening chips of Callaghan in the dough composition disclosed in Sadek because the shortening chips with a melting point of between 125°F and 145°F would have provided a level of flakiness and tenderness to the finished product [col. 3, lines 55-75].
Further it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include fully hydrogenated soybean oil as the shortening as in Unger in order to provide a non-trans fat to the composition.
Regarding the amounts of the ingredients, although Goedeken does not explicitly disclose the claimed amounts of yeasts, gluten levels, water, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Goedeken overlaps the instantly claimed ranges and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 18: Sadek discloses as discussed above in claim 14. Sadek discloses that the dairy ingredient can be cheese [0032].
Regarding Claim 19: Sadek discloses as discussed above in claim 14. Sadek discloses sugar at 2% [0058]. Sadek discloses salt at 1% [0058]. Sadek discloses cheese at 3% [0058]. Sadek discloses soybean oil at 4% [0058]. Sadek discloses chemical leaving at 1% [0058].
Sadek does not disclose compressed yeast 2 - 10% and deactivated yeast 0.1-0.5%.
Goedeken discloses a frozen, sheeted dough containing flour, a fat source (lipid source), chemical leavening agents and encapsulated chemical leavening agents, yeast, dairy products, dough conditioner [para. 0011, 0043, 0044, 0049, 0051]. Goedeken specifically discloses flour containing gluten at up to 16% [0039], salt .1% to about 10% [0017; 0046], water about 15% to 35% [0040], compressed yeast at 1 to 12% [0035], dried yeast and any form of yeast at 1 to 12% [0051], sugar about 2% to about 15% [0045]; oil about 15% to 35% [0040]; chemical leavening agent up to 2.5% [0021; 0053].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include the gluten content of Goedeken and the yeasts of Goedeken in order to contribute to the leavening of the dough during freezing and to keep the gluten at levels used for non-FTO doughs [Goedeken 0036; 0039].
Further the Examiner notes, In re Levin 84 USPQ 232, which takes the position that "new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing no one else ever did the particular thing upon which the applicant asserts his right to patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.”
Regarding Claims 20 and 22: Sadek as modified discloses as discussed above in claim 14. Callaghan discloses that the Wiley melting point of the shortening chips is between 125°F and 145°F.
Although Callaghan does not disclose a Mettler Dropping Point of 160°F, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the melting point to a higher melting point in order for the shortening to hold shape until baking, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Regarding Claims 23-26: Sadek as modified discloses as discussed above in claim 14. Sadek discloses that the crust is well formed and well raised [abstract; 0007; 0019; 0053]. Although Sadek does not disclose wherein the pizza crust comprises air cells (claim 23); wherein the air cells have a better structure and higher volume than a comparative pizza crust (claim 24), wherein the air cells are generated by the shortening chips upon melting during baking (claim 25); wherein the baked product has a height that is at least a 100% greater than the non-laminated dough when frozen (claim 26).
However, since Sadek as modified discloses all of the components of the pizza crust it would have been obvious that the product would have contained the recited features. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claim 17 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sadek et al. (US 2004/0213883) in view of Goedeken et al. (US 2005/0129821), Callaghan et al. (US 2,686, 721), Gulstad et al. (US 3,767,421), and Unger et al. (CA 2573014 ) as applied to claim 14 and in further view of Yamauchi JP2000245331A Machine Translation.
Regarding Claim 17: Sadek discloses adding breadcrumbs to improve the processing of the dough and the quality of the dough after baking [para 0026]. Sadek does not disclose that the dough contains breadcrumbs at 1.5% to 2%.
Yamauchi discloses breadcrumbs in dough at 1 to 10% [pg. 3, lines 8-12, 20-23].
At the effective filing date of the invention, it would have been obvious to one of ordinary skill in the art to modify the composition of Sadek to include the breadcrumbs of Sadek at 1 to 10% as in Yamauchi.
Although Yamauchi does not explicitly disclose 1.5% to 2% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yamauchi overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Conclusion
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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