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
Claims 1, 3 and 8 are objected to because of the following informalities:
Claim 1 recites, “the top and bottom bread portions”: on lines 3-4. For matters of form, this limitation should be amended to recite, “the top bread portion and the bottom bread portion.”
Claim 1 recites, “the outer perimeter edges” on line 5. For matters of form, this limitation should be amended to recite, “the outer perimeter edge of the top bread portion and the bottom bread portion.”
Claim 3 recites, “wherein the dough comprises flour and, in baker's percentages based on the flour content, at least the following ingredients: about 0.01% to about 0.5% maltogenic amylase; about 0.05% to about 1.5% amyloglucosidase; about 50% to about 70% water; and about 1% to about 8%% oil.”
Since claim 3 depends from claim 1, which already recites flour, maltogenic amylase, amyloglucosidase and water, for matters of form, claim 3 should be amended to recite, “wherein the dough comprises, in baker’s percentages based on the flour content, about 0.01% to about 0.5% of the maltogenic amylase; about 0.05% to about 1.5% of the amyloglucosidase; about 50% to about 70% of the water; and about 1% to about 8%% oil.”
Claim 8 recites, “the top and bottom bread portions,” on lines 8-9. For matters of form, this limitation should be amended to recite, “the top bread portion and the bottom bread portion.”
Claim 8 recites, “the outer perimeter edges” on line 10. For matters of form, this limitation should be amended to recite, “the outer perimeter edge of the top bread portion and the bottom bread portion.”
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 1-18 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.
Claim 1 recites the limitation, “each bread portion having” on line 4, which lacks proper antecedent basis. It is not clear whether this is referring to the top bread portion and the bottom bread portion or some other bread portion. This rejection can be overcome by amending the limitation to recite, “the top bread portion and the bottom bread portion both having”
Claim 1 recites the limitation, “the bread portions pinched” on lines 4-5, which lacks proper antecedent basis. This rejection can be overcome by amending the limitation to recite, “the top bread portion and the bottom bread portion are pinched…”
Claim 3 recites, “about 1% to about 8%% oil.” Claim 3 depends from claim 1, which recites “about 0.5% to about 10% fat.” It is not clear whether oil is intending to refer to “the fat” or is in addition to the fat.
Claims 4 and 17 recite, “each bread portion having” and “an outer perimeter edge.” These limitations are not clear as to what bread portions are being referred to and is not clear whether “an outer perimeter edge” is intending to be a different edge from that already recited in claim 1 and 8. Therefore, the limitations lack proper antecedent basis. This rejection can be overcome by amending the claim to recite, “wherein the outer perimeter edge of each of the top bread portion and the bottom bread portion is in the shape of a triangle.”
Claim 8 recites the limitation, “each bread portion having” on line 9, which lacks proper antecedent basis. It is not clear whether this is referring to the top bread portion and the bottom bread portion or some other bread portion. This rejection can be overcome by amending the limitation to recite, “the top bread portion and the bottom bread portion both having”
Claim 8 recites the limitation, “the bread portions pinched” on lines 9-10, which lacks proper antecedent basis. This rejection can be overcome by amending the limitation to recite, “the top bread portion and the bottom bread portion are pinched…”
Claim 11 recites, “wherein the formed tray comprises a first and second cavity each with a sandwich disposed therein.” It is not clear whether one of the first and/or second cavity each comprising a sandwich is intending to refer to the same sandwich and cavity as already recited claim 8 or some other cavity and sandwiches. That is, claim 8 already recites, “a sandwich disposed within the at least one cavity” such that it is not clear whether the claim 11 recitation of “first and second cavity each with a sandwich” is overlapping with the claim 8 recitation or whether claim 11 is in essence reciting three sandwiches.
Claims 2, 5-7, 9, 10, 12-16 and 18 are rejected based on their dependence to a rejected 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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over “Smucker’s AwayFromHome” (referred to as “Smucker’s”) in view of Eberhart (US 20040208962) and in further view of Moller (WO 2021160812).
Regarding claim 1, “Smucker’s AwayFromHome” teaches a sandwich comprising two stacked baked bread components that are pinched together at their peripheries and comprises a filling and which is refrigerated (see page 1-3 which show the sandwich structure and page 4 teaching a refrigerated sandwich).
If it could have been construed that “Smucker’s AwayFromHome” was not clear on the sandwich being made from a baked bread component, and having a top and bottom bread portion in a stacked configuration, with a filling located therebetween and where each bread portion has an outer perimeter edge and that the bread portions are pinched together along the outer perimeter edges, then it is noted that:
Eberhart (US 20040208962) teaches a sandwich comprising a filling (figure 1 and 5, items 22 and 30; paragraph 47 disclosing items 22 and 30 are a filling) and a baked bread component having a top and bottom bread portion in a stacked configuration and a filling between the top and bottom bread portions (see figure 1 and 5, item 10, 12, 22, 30 and the abstract and paragraph 47 which discloses items 10 and 12 are baked bread) and each bread portion having an outer perimeter edge and the bread portions are pinched together along the outer perimeter edges to enclose the filling therebetween (see figure 1, item 40, 42 and paragraph 54).
Eberhart also teaches that the sandwich is an UNCRUSTABLES sandwich with added protein (see paragraph 7) and therefore is teaching a similar sandwich as that of “Smucker’s,” who also teaches that the sandwich is a good source of protein (see page 5 of the reference).
To therefore modify “Smucker’s” and to use a baked bread component having their outer perimeter edges pinched together would have been obvious to one having oirndary skill in the art, based on known expedients for how to seal together two bread portions of a ready to eat sandwich.
Regarding the bread component comprising flour, it would have been obvious that “Smucker’s”’ and Eberhart’s bread portion would have comprised flour.
Claim 1 differs in specifically reciting, “the baked bread component is prepared from a dough comprising flour and a leavening agent, and, in baker's percentages based on the flour content, at least the following ingredients: about 0.005% to about 1% maltogenic amylase; about 0.01% to about 2% amyloglucosidase; about 45% to about 75% water; and about 0.5% to about 10% fat.”
Claim 3 differs in specifically reciting, “wherein the dough comprises flour and, in baker's percentages based on the flour content, at least the following ingredients: about 0.01% to about 0.5% maltogenic amylase; about 0.05% to about 1.5% amyloglucosidase; about 50% to about 70% water; and about 1% to about 8%% oil.”
However, Moller teaches bread that comprises flour (see page 14, lines 2-6) and a leavening agent (page 14, lines 28-31), fat (page 15, line 4) and water (see page 21, line 25). Moller further teaches that the bread can further comprise 1650 Agu of an amyloglucosidase and 2500 Manu of a maltogenic amylase (see page 20, line 27 to page 21, line 8). Moller further teaches that 2500 Manu is equivalent to 250ppm of maltogenic amylase per kg of flour (see page 13, lines 10-21) and therefore is teaching that the bread is prepared from a dough that would comprise 0.025% maltogenic amylase- which falls within the range of claim 1 and 2. Moller also teaches that 1650 Agu is equivalent 500ppm of amyloglucosidase per kg of flour (see page 10, lines 24-29 and page 10, line 24 to page 11, line 6) and therefore is teaching that the bread is prepared from a dough that would comprise about 0.05% amyloglucosidase, which falls within the range of claims 1 and 3.
Moeller teaches that maltogenic amylase and amyloglucosidase used in the above amounts has been advantageous for reducing the sugar content of the product while still allowing for the necessary sugar molecules required for fermentation (see page 5, lines 13-25) while being able to reduce the amount of added sugar and overall sugar content of the product so as to reduce overall sugar consumption while also providing the desired sweetness intensity and good taste to the bread as well as reducing the cost produce of the product while also avoiding synthetic or perceived unnatural additives (see page 1, lines 4-25). Moeller teaches that the product can be bread used for sandwiches (see page 19, lines 24-27). Moeller further teaches that the dough can comprise 1000g of water per 2000g of flour (see the table between pages 23-24 disclosing 2000 total of wheat and white flour) and therefore teaches about 50% water. Moeller also teaches that fat, such as rapeseed oil, can be used at about 50g or 50/2000 = 2.5% based on the flour content (see the table between pages 23-24 disclosing 50g rapeseed oil). Example 5 on page 33 also teaches water and fat amounts that are within the ranges as recited in claims 1 and 3.
Since Moeller is teaching baked bread and since “Smucker’s” and Eberhart are teaching that the sandwich is made from baked bread (see Eberhart at least, the abstract), it would have been obvious to one having ordinary skill in the art to modify the Smucker’s/Eberhart combination and to use a bread made from dough comprising flour, a leavening agent, water, fat, maltogenic amylase and amyloglucosidase, as taught by Moeller for the purpose of providing lowering the added sugar content in bread for health purposes while still allowing for the necessary sugar molecules required for fermentation and while still being able to provide the desired sweetness intensity and good taste to the bread as well as reducing the cost produce of the product while also avoiding synthetic or perceived unnatural additives.
Regarding claim 2, in view of Eberhart the combination teaches that the filling is a nut butter filling (see paragraph 47, “nut butter such as”). “Smucker’s” also teaches a nut butter filling as shown on page 1 (“peanut butter”).
Regarding claim 4, the claim differs from “Smucker’s” in specifically reciting that each bread portion has an outer perimeter edge in the shape of a triangle.
Eberhart further teaches that the sandwich can be triangular instead of the disclosed circular shape, as shown in figure 1 (see paragraph 47). To therefore modify Smucker’s and to change the shape of the sandwich such that the perimeter edge is in the shape of a triangle would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on conventional shapes for sandwiches comprising a filling sealed between the pinched perimeter edges of two stacked baked bread components.
Regarding claim 5, in view of Eberhart the combination teaches that the filling need not include a fruit-based condiment, because the filling can comprise a nut butter together with a jelly product that is not fruit based, such as honey, butter, syrup or other toppings (see paragraph 9 defining “jelly” and paragraph 47). To therefore modify Smucker’s to exclude a fruit-based condiment as part of the filling would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design and based on taste preferences.
Regarding claim 6, in view of Moller, the combination teaches that the dough includes 0 to less than 1% added sugar (see Moller page 2, lines 23-24; page 4, line 30 to page 5, line 7).
Regarding claim 7, in view of Moller the combination teaches that a leavening agent is yeast (page 14, lines 28-31).
Claims 8-9 and 12-15, 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over “Smucker’s AwayFromHome” (referred to as “Smucker’s”) in view of Eberhart (US 20040208962) and Moller (WO 2021160812) and in further view of Kristy (“5 Tips for Packing Lunches” – referred to as “Kristy”), Hlathein (CA 2319887) and White (US 20210094745).
Regarding claim 8, the combination of “Smucker’s”, Eberhart and Moller as applied to claims 1-7 has been incorporated herein to teach a refrigerated sandwich compromising a baked bread component comprising a stacked top and bottom bread portion with a filling therebetween and where the edges of the top and bottom bread portions are pinched together along the perimeter to enclose the filling. In view of Eberhart and Moller as applied to claim 1, the combination further teaches the dough composition from which the baked bread component is prepared.
Claim 8 differs from the “Smucker’s,” Eberhart and Moller combination in specifically reciting that the refrigerated sandwich is a packaged refrigerated sandwich product comprising, “a formed tray comprising at least one cavity and an upper peripheral flange; a sandwich disposed within the at least one cavity; and a lidding material attached to the upper peripheral flange to enclose the sandwich in the formed tray.”
It is noted however, that Kristy teaches a sandwich that is similar to the sandwich taught by the “Smucker’s”/Eberhart/Moller combination and that it has been conventional to package the sandwich in a formed tray comprising at least one cavity and an upper peripheral flange with the sandwich disposed within the at least one cavity (see page 5 and 6 of 19). There is also a lidding material which would obviously have been attached to the upper flange to enclose the sandwich in the formed tray (see the lid as shown on pages 5 and 6 of 19). Kristy teaches a tray that allows for additional foods to be packaged for consumption together with the sandwich. Hlathein also teaches a ready to eat food kit (see the abstract), which can comprise a stacked bread component (see figures 1-3, item 14 and page 3, line 27-30; page 4, lines 20-22) placed within a cavity (see figure1, item 22) of a formed tray (figure 1, item 12 and page 4, lines 22-24) and there is a lidding material (figure 1, item 24) sealed to a flange of the tray (see figure 1 and page 5, lines 10-16) and where the package can be refrigerated for facilitating further preservation (see page 5, line 17). Hlathein therefore teaches that the bread components can be part of a ready-to-eat meal. White has been relied on to further teach that it has been conventional to provide a formed tray (see figure 1 and paragraph 65) comprising at least one cavity (see figure 1, item 12, 16 and 30) for packaging a sandwich (see the abstract and paragraph 35) and can comprise another cavity comprising condiments to be consumed with the sandwich (see paragraph 5, 35-36, 67).
To therefore modify the “Smucker’s”/Eberhart/Moller combination and to package the sandwich in at least one cavity of a formed tray, the tray comprising an upper peripheral flange and a lidding material attached to the flange to enclose the sandwich, as taught by Kristy, Hlathein and White would have been obvious to one having ordinary skill in the art for the purpose of being able to further include additional complementary food products together with the sandwich.
Regarding claim 9, in view of Hlathein, the combination further teaches that the lidding material is a flexible film hermetically sealed to the upper peripheral flange of the formed tray for being able to preserve the contents (see Hlathein figure 1 and page 5, lines 10-16). To therefore modify the combination and to use a lidding film would therefore have been obvious to one having ordinary skill in the art, for the purpose of providing further protection to the contents for preservation purposes.
Regarding claims 13, 14, 17 and 18, the claims are rejected for the same reasons as discussed above with respect to claims 6, 2, 4, and 7, respectively.
Regarding claim 12, the claim differs from “Smucker’s” in specifically reciting that the sandwich does not include a fruit-based condiment enclosed by the pinched perimeter of the first and second bread portions.
However, Eberhart teaches that the filling need not include a fruit-based condiment, because the filling can comprise a nut butter together with a jelly product that is not fruit based, such as honey, butter, syrup or other toppings (see paragraph 9 defining “jelly” and paragraph 47). To therefore modify Smucker’s to exclude a fruit-based condiment as part of the filling would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design and based on taste preferences.
Regarding claim 15, “Smucker’s” teaches on page 1 that the nut butter filling can be peanut butter. Eberhart also teaches that the nut butter can be peanut butter (see paragraph 47).
Claims 10 and 16 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 8 above, which relies on “Smucker’s AwayFromHome” (referred to as “Smucker’s”) as the primary reference, and in further view of “Cook and Eat with Chef DJ” (referred to as Chef DJ) and in further view of Lamp (US 20020146490) and Chappell (US 20130122138).
Regarding claims 10, Hlathein further teaches a second cavity with a condiment disposed therein (see page 4, lines 24-26 and figure 1, item 20). White further teaches a condiment packaged in a second cavity of the formed tray (see figure 1, item 30) and the condiment is associated with the sandwich (see paragraph 5, 35-36, 67).
It is further noted that Chef DJ teaches a sandwich comprising a filling (see pages 1-4 and the closed captioning disclosing a nut butter filling) and where the two bread portions of the sandwich are crimped together at their peripheral edge (see pages 5-6 and the closed captioning disclosing clamping the edges closed). Chef DJ further teaches on page 9 that the sandwich can be dipped in “that jelly” which is shown on pages 3, 7 and 8 of the reference to be a grape jelly. This further teaches the condiment being a fruit jelly as recited in claim 16.
It is noted that Lamp and Chappell have only been relied on as further evidence that it has been conventional to package a jam or jelly together with a bread based product, within a multicompartmental package. Lamp teaches a refrigerated package (see the abstract and paragraph 9) and which package comprises a formed tray with at least one cavity (see figure 4, item 20; paragraph 23) and a lidding film encloses the contents of the tray (see paragraph 24). It would have been obvious to one having ordinary skill in the art that the film would have been attached at the flange of the tray to enclose the contents (see figure 4). Lamp further teaches that at least one cavity comprises a baked bread product (see figure 4, item 10 and paragraph 23: “fully baked breadstick products”) with an additional compartment for condiments to be consumed with the bread product (see paragraph 23, “separate packages of condiments or other food products to be consumed with the breadstick product.”). Lamp also teaches that examples of condiments that can be consumed with the bread product are jam and jelly (see paragraph 23, “jam, jelly”).
Chappell further teaches a refrigerated package (see paragraph 43) comprising a formed tray having at least one cavity (figure 1, item 16) and a second cavity (figure 1, item 14) and where the tray has a flange (figure 1, item 22) to which is sealed a lidding film (see figure 2, item 30 and paragraph 91, 101). The second cavity can comprise a condiment to be consumed with the food in the first cavity (see paragraph 27, 94) such as a viscous fruit sauce or fruit puree (see paragraph 13, 15, 16, 105), which would have been obvious to one having ordinary skill in the art can encompass a fruit jelly or jam. Chappell further teaches that the food to be consumed with the condiment can be finger foods (see paragraph 104, last sentence) as well as a baked products and waffles and combinations of various foods (see paragraph 26). Lamp and Chappell teach bread and baked products that are desirably packaged together with a condiment that can be consumed with the bread and baked product.
Since the combination already teaches a formed multicavity tray including additional foods to be consumed in combination with the sandwich, it would therefore have been obvious to one having ordinary skill in the art to modify the combination include a second cavity comprising a condiment disposed therein such as grape jelly, as taught by Chef DJ, for the purpose of providing additional food components that can be consumed together with the sandwich.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 8 above, which relies on “Smucker’s AwayFromHome” (referred to as “Smucker’s”) as the primary reference, and in further view of Gear Heads (“The Best Bento-Style Lunchboxes for an Organized Packed Lunch”) and Na (WO 2017010584).
Regarding Na (WO 20170150584) a machine translation has been relied on.
Regarding claim 11, the combination as applied to claim 8 teaches a first, second and third cavity. Further regarding claim 11, in view of Hlathein the combination teaches a cavity with a condiment disposed therein (see page 4, lines 24-26 and figure 1, item 20). In view of White the combination teaches a condiment packaged in a cavity of the formed tray (see figure 1, item 30) and which condiment is associated with the sandwich (see paragraph 5, 35-36, 67).
Claim 11 differs from the combination, as applied to claim 8, in specifically reciting that there is, “a first and second cavity each with a sandwich disposed therein.”
“Gear Heads” teaches a formed tray comprising at least a first, second and third cavity and where the first and second cavity can comprise bread components therein (see the figure showing a first and second cavity with a sandwich/bread product therein). Na further teaches a formed tray (figure 3, item 100/200) comprising multiple cavities (see figure 3) and wherein more than one cavity can comprise a sandwich therein (see page 11 of the machine translation, see the 5th paragraph: “at least one receiving space (220) can be formed to store various foods such as …sandwiches”).
Since the combination already teaches a formed tray with multiple cavities and also teaches that such a tray can comprise separate compartments that each hold a sandwich (see “Gear Heads”) to therefore modify the combination to package a second sandwich in a second cavity would therefore have been obvious to one having ordinary skill in the art based on known configurations for how to package sandwiches as part of a multi-component food package and for known purposes such as desirably keeping both sandwiches separated from each other such that they are prevented from inadvertently moving around while in the package.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
“Facebook” teaches a formed tray comprising at least one compartment that contains a sandwich and further comprises a second cavity containing a condiment (see the cup containing a spread).
BentOnBetterLunches further teaches a formed tray comprising at least one cavity that contains a sandwich comprising two stacked baked bread portions with a nut butter filling there-between and further comprises a second cavity containing a condiment (see the cup containing caramel dip).
“Mommy + Me Lunch Box” teaches a compartmented formed tray comprising a sandwich and a condiment (see the image on page 2: “Apple butter-filled sandwich pocket”; “yogurt with sprinkles”).
“DIS Boards” discloses that UNCRUSTABLES are known to also be refrigerated (see page 2 of 8 and the entries by “luvtogo12” and “dkcha” teaching storing the sandwiches in the fridge).
Perrine (US 6231898) discloses a sandwich comprising a first and second bread portion (figure 1 and 2, item 12 and 14) and between which is a filling (Figure 2, item 16). The bread portions are pinched together at their peripheries (see figure 2 and 3, item 44) and the sandwich can be frozen or chilled thus teaching a refrigerated sandwich (column 3, lines 34-36).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
