DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/3/2025 has been entered.
Continuing Applications
A patent granted on a continuation, divisional, or continuation-in-part application that was filed on or after June 8, 1995, will have a term which ends twenty years from the filing date of earliest application for which a benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) regardless of whether the application for which a benefit is claimed under 35 U.S.C. 120, 121, or 365(c) was filed prior to June 8, 1995. MPEP 2701 [R-10.2019].
Notes and Interpretations
As pointed out in the previous office action, it does not appear that in the context of the claims, there is a patentable distinction between the terms “material”, “ingredient” and “ingredient materials”. The broadest reasonable interpretation of the term “ingredient” generally means something that enters into a compound or is a component part of any combination or mixture. As such, an ingredient is inherently a “material” or an “ingredient material”. As such, it appears that in the context of the claims, every substance that reads on “material” also reads on an “ingredient” or “ingredient materials” as the substance is part of the product and hence necessarily an ingredient. For the purposes of this office action, the broadest reasonable interpretation is that any substance or component that is part of the claimed product can read on a “material” or an “ingredient” or an “ingredient material”.
Again, as pointed out in the previous office action, the specification does not provide any special definition for a “composite material” and as such, the broadest reasonable interpretation used will be any material made of more than one component. This is consistent with the typical definition of a composite which is defined as "made of separate elements", i.e. made of more than one element.
Claim 395 recites, “comprises a selection from the group comprising a candy, ….” (See lines 2-3, emphasis added). The use of “comprise” in conjunction with “comprising” (each has been underlined) creates an open group within an open group; i.e. the selection does not have to be limited to the recited list but can be other ingredient materials as well, thus creating infinite choices. Although not insolubly indeterminate, this is a very broad recitation and reads on almost any material. Claim 408 also has similar issue as described above for claim 395.
Claim Objections
Claims 405 (and its dependent claims) are objected to because of the following informalities:
Claim 405 recites, “comprising combining comprising an ingredient material” without reciting “combining” with what. Although not insolubly ambiguous, it makes the claim less clear. For the purposes of this office action, it will be assumed that the above recitation is equivalent of “comprising combining comprising an ingredient material”. If applicant does not agree with the above, applicant is requested to explain what is the difference between the claim recitation and the equivalent recitation provided above.
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 384, 392, 395, 408, 418-421, 424, and 433-437 and 447 are rejected under 35 U.S.C. 112, second paragraph as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Base claims 418 and 433 recite “creating synergy or working together” without providing any parameters that enable distinguishing between a structure that comprises creating synergy vs. one that does not comprise creating synergy (or distinguishing between a structure that comprises “working together” vs one that does not comprise “working together”); and dependent claims 419-421, 424, and 434-437 and 447 recite similar requirements. The term "synergy" is a relative term, which renders the claim indefinite. The term "synergy" or “working together” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The terms “synergy” as well as “working together” as recited are qualitative terms and the specification does not provide any objective criteria to determine whether “synergy” has been attained or not; or how to determine if combining materials is such that they are “working together”.
Similarly, “sustaining stress” (recited in claims 419, 421 and 436) is also a relative term without quantifying what the stress is makes it impossible to determine if a given structure can sustain the stress; for example to a point where it inhibits breakage. For example, as the support is not shown broken in Musher, it can be said that at least under some very low load conditions, breakage of the support is inhibited. As such, it is not possible to determine which structure “comprises synergy” or is capable of “sustaining stress” or whether it is capable of inhibiting breakage of the support, making the claims indefinite. Given that metes and bounds of the claim cannot be determined, for the purposes of this office action, the limitation “synergy” will not be considered and it will be assumed that, “synergy” manifests in any structure. Further, it will be assumed that “sustaining stress” includes ability to sustain even infinitesimally small stress, which all materials are capable of sustaining and as such, capable of “inhibiting breakage of the support”.
Claim 384 recites “ingredient material comprises a selection from the group comprising a candy, a nut…..and comprising a discernable part thereof” (emphasis added), which is an improper Markush grouping. By using the open term “comprising” in a Markush grouping, the claim is made to encompass more alternatives that what is recited. However, it is unclear what other alternatives applicant contemplates as being included in the grouping, thus making the claim indefinite. Note that the proper format for a Markush grouping is “ingredient material comprises consists of …..”.
Claims 392, 395, 408 also have similar used “comprising” with “and” in a Markush group.
A full discussion about Markush groupings and how they should be expressed can be found in MPEP 2117. Further, the applicant has previously argued that applicant’s intention is for the claim to be broad and that breadth is not necessarily indefiniteness, it must be noted that no matter how broadly one claims one’s invention, the terms used in in the claims must be clear. Cf. In re Packard, 751 F.3d 1307 (Fed. Cir. 2014).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 383-389, 392-409, 411-413, 415-420, and 422-446 are rejected under 35 U.S.C. 102(b) as being anticipated by Musher (US 2217700) of prior record, hereinafter Musher.
Regarding claim 383, Musher teaches a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising an ingredient material (such as one of “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 394, Musher teaches a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising a composite material (i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22), said composite material comprises an ingredient material (“an ingredient” reads on any material that is part of the “composite material” - such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22). Also see (Page 1: Column 1, lines 37-46 and Column 2 lines 40-55) and (Page 4: column 1, line 72 to Column 2, line 23 and figures 1-6).
Regarding claim 403, Musher teaches a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising a comestible (such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22) and means for making said support (Page 1: Column 1, lines 37-46 and Column 2 lines 40-55; also Page 4: column 1, line 72 to Column 2, line 23 and figures 1-6).
Regarding claim 405, Musher teaches a method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising combining comprising an ingredient material (see claim objection above).
Regarding claim 412, Musher teaches a method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising including comprising an ingredient material (i.e. combining an ingredient material with other multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 426, Musher teaches a method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising combining comprising two ingredient materials (i.e. a material made of at least two ingredient materials or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22). Note that heating (which was previously claimed but is no longer claimed) is also taught (page 1, Right column, lines 15-26, which describes baking and frying which comprise heating; also see heating described in page 3, Right column, lines 32-44) for any potential future amendments of claims.
Regarding claim 429, Musher teaches a method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising making a composite material (i.e. material made of at least two or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22) said composite material comprises an ingredient material (it is inherent that a composite material comprises “an ingredient material”).
Regarding claim 384, Musher teaches that said ingredient material comprises a selection that may be a nut (page 3, Right column, lines 14-22) or a potato material (such as “potato chips” described on page 3, Right column, lines 32-40) that inherently comprises a discernable part (as each material disclosed is distinct and can be recognized as being different from others).
Regarding claim 385, Musher teaches that an ingredient material comprises said support (inherent as the support cannot be devoid of “an ingredient material”).
Regarding claim 386, Musher teaches that said ingredient material comprises at least one ingredient in said support (also inherent as an ingredient material functions both as a material and an ingredient for the support).
Regarding claim 387, Musher teaches that the support further comprising an ingredient material in said support (because Musher also teaches additional ingredients such as two or more ingredient materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 388, Musher teaches that the two ingredient materials comprise said support (i.e. a material made of two or more ingredient materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claims 389, Musher teaches further comprising an ingredient material in said support (i.e. a third ingredient material in said support, which is disclosed by Musher as Musher teaches the support is made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 392, Musher teaches the support comprises said ingredient comprises a discernable part, wherein said discernable part comprises a discernable material (as each material disclosed is distinct and can be recognized as being different from others; and multiple such materials are disclosed such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).Note that the broadest reasonable interpretation of “discernable part” is a part that can be recognized as separate or distinct.
Regarding claim 393, Musher teaches said support further comprising at least one coating on at least a part of said ingredient material (“coating” described on page 2, Left column, lines 33-42).
Regarding claim 395, Musher teaches that said ingredient material comprises a selection that may be a nut (page 3, Right column, lines 14-22) or a potato material (such as “potato chips” described on page 3, Right column, lines 32-40) that inherently comprises a discernable part (as each material disclosed is distinct and can be recognized as being different from others).
Regarding claim 396, Musher teaches that an ingredient material comprises said composite material (i.e. the ingredient material is made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 397, Musher teaches that that comprising two ingredient materials comprises said composite material (i.e. comprising at least two ingredient materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22)
Regarding claim 398, Musher teaches that two ingredient materials comprise said composite material (i.e. material made of at least two or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 399, Musher teaches that said composite material comprises at least one ingredient in said support (inherent as the support comprises the composite material, and composite material inherently comprises an ingredient).
Regarding claim 400, Musher teaches the support for a frozen comestible wherein said composite material comprises said support (i.e. the support comprises at least two ingredient materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22)
Regarding claim 401, Musher teaches the support further comprising an ingredient material in said composite material (inherent as composite material comprises more than one ingredient material).
Regarding claim 402, Musher teaches the support further comprising a selection from the group comprising a supported ingredient material and a supported comestible (as Musher discloses composite material which has multiple materials or ingredients such as “flakes, or shreds” or “raisins, or nuts” that are comestibles and also discloses structures such as “laminations” that provide support as described on page 3, Right column, lines 14-22).
Regarding claim 404, Musher teaches the support further comprises a comestible (such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22) and a means for supporting said comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31; also various ingredient materials are combined to be held together and as such, support each other).
Regarding claim 406, Musher teaches combining comprising two ingredient materials comprises said method of making said support (i.e. said support is made by combining two or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 407, Musher teaches that combining two ingredient materials comprises said method of making said support (i.e. said support is made by combining two or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 408, Musher teaches that said combining comprising an ingredient material comprises a selection that is at least mixing at least a part of said ingredient material (see the teaching of “mixed with them” various materials such as “powdered milk, cinnamon…” as described on page 3, Right column, lines 14-32).
Regarding claim 409, Musher teaches that combining an ingredient material further comprising combining comprising an ingredient material and said two ingredient materials (i.e. said support is made by combining three or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 411, Musher teaches that said method of making a support comprises combining comprising two ingredient materials (i.e. said support is made by combining multiple materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 413, Musher teaches that combining said ingredient material comprised combining comprising two ingredient materials (i.e. said support is made by combining more than one materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 415, Musher teaches that said method of making a support comprises including comprising two ingredient materials (i.e. said support is made by combining two or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 416, Musher teaches the method further comprising coating at least part of said ingredient material (“coating” and it’s materials are described in Right column, lines 33-42).
Regarding claim 417, Musher teaches said including comprising an ingredient material further comprises combining said ingredient material ( i.e. at least said ingredient among the multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” is combined with others, as described on page 3, Right column, lines 14-22).
Regarding claim 418, Musher teaches that said combining said ingredient material further comprise creating synergy or working together (also, see the associated 35 USC 112, 2nd paragraph rejection related to recited “creating synergy”).
Regarding claim 419, Musher teaches the method wherein said creating synergy (see 35 USC 112, 2nd paragraph rejection) further comprises said ingredient material sustaining stress (also, see the associated 35 USC 112, 2nd paragraph rejection related to recited “creating synergy” and “sustaining stress”).
Regarding claim 420, Musher teaches that said combining said ingredient material comprises combining comprising two ingredient materials (i.e. any two ingredient materials of the multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” is combined with others, as described on page 3, Right column, lines 14-22).
Regarding claim 422, Musher teaches that said including comprising an ingredient material comprises processing said ingredient material (inherent as the act of combining itself reads on “processing”; further it is processing that makes the ingredient materials in the examples of final form shown in Figures 1-6).
Regarding claim 423, Musher teaches that said combining an ingredient material comprises making an ingredient in said support (i.e. making by combining with other ingredients to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 424, Musher teaches the method further comprising supporting comprising a selection from the group comprising a comestible and comprising an ingredient material (i.e. said support is made by combining multiple ingredient materials that include comestibles to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 425, Musher teaches the method further comprising supporting comprising a selection from the group comprising a comestible and comprising an ingredient material (i.e. said support is made by combining multiple ingredient materials that include comestibles to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 427, Musher teaches that said combining comprising two ingredient materials comprises said method of making said support (i.e. the support is made of at least two ingredient materials or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 428, Musher teaches the method further comprising supporting comprising a selection from the group comprising a comestible and an ingredient material (i.e. said support is made by combining multiple ingredient materials that include comestibles to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 430, Musher teaches that said making a composite material comprises combining said ingredient material (i.e. said support is made by combining materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 431, Musher teaches that combining said ingredient material comprises said method of making said composite material (i.e. said support is made by combining three or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 432, Musher teaches a method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) comprising combining comprising an ingredient material (such as one of “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 4-22), comprises combining comprising at least a part of said ingredient material (page 3, Right column, lines 4-22), and Musher also teaches method of making said composite material (i.e. said support is made by combining three or more materials to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claims 433-437, Musher teaches the claimed method of making a support (such “framework structure” described in column 1, lines 9-14; or “unit structure” described in page 3, Left column, line 70 to Right column, line 13, lines 25-32 and lines 58-70) comprising a comestible (such as one of “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 4-22) for a frozen comestible (such as ice cream – see page 1, column 1, lines 9-14 or “frozen confection” described on page 3, Right column, lines 25-31) including a composite material with two or more ingredients, or by combining an ingredient material (including part thereof), as explained earlier, which are capable of sustaining stress (note that the magnitude of stress is not defined and as such, it reads on any stress, even if infinitesimally small) and inhibiting breakage of the support (as evidenced by Musher’s support not being shown broken). Also, see the associated 35 USC 112, 2nd paragraph rejection related to recited “creating synergy or working together”, “sustaining stress” and “creating synergy comprises inhibiting breakage of the support”.
Regarding claim 438, Musher teaches that said support comprises two ingredient materials (a composite material discloses multiple ingredient materials such as “flakes, or shreds” or “raisins, or nuts” that are comestibles, as described on page 3, Right column, lines 14-22).
Regarding claim 439, Musher teaches the support further comprising a supported ingredient material (as the ingredient material forms the support, also composite material discloses multiple materials or ingredients such as “flakes, or shreds” or “raisins, or nuts” that are comestibles and also discloses structures such as “laminations” that provide support as described on page 3, Right column, lines 14-22).
Regarding claim 440, Musher teaches the support further comprising an ingredient material is said support (inherent as the support cannot be devoid of “an ingredient material”); also composite material discloses multiple materials or ingredients such as “flakes, or shreds” or “raisins, or nuts” that are comestibles and also discloses structures such as “laminations” that provide support as described on page 3, Right column, lines 14-22).
Regarding claim 441, Musher teaches the method further comprising supporting comprising a selection from the group comprising a comestible and an ingredient material (i.e. said support is made by combining multiple ingredient materials that include comestibles to form a composite material; i.e. a material made of multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 442, Musher teaches the method further comprising freezing said ingredient material (as the support, including all of its ingredient materials also undergo freezing to produce the frozen confection described by Musher – see page 2, Left column, lines 44-51 which describes a “frozen product”; also see page 4 right column, lines 17-23 which describes a “freezing procedure”).
Regarding claim 443, Musher teaches the method wherein said coating further comprises a candy or a nut (“binders or coating” may include sugar, as described on page 2, left column, lines 33-42 and lines 67-75; or chocolate or nuts, as described in page 3, right column, lines 14-31).
Regarding claim 444, Musher teaches the method further comprising freezing the support (as the support, including all of its ingredient materials also undergo freezing to produce the frozen confection described by Musher – see page 2, Left column, lines 44-51 which describes a “frozen product”; also see page 4 right column, lines 17-23 which describes a “freezing procedure”).
Regarding claim 445, Musher teaches the support comprising two ingredient materials comprises said support (i.e. the support is formed by at least two or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 446, Musher teaches said composite material comprises two ingredient materials (i.e. comprising at least two ingredient materials or multiple materials such as “flakes, or shreds, or laminations” and other materials such as “powdered milk, cinnamon” or “raisins, or nuts” as described on page 3, Right column, lines 14-22).
Regarding claim 447, Musher teaches that said combining said ingredient material further comprise creating synergy or working together (also, see the associated 35 USC 112, 2nd paragraph rejection related to recited “creating synergy”).
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.
Claim 421 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher in view of Mercer et al (US 4563358) of prior record, hereinafter Mercer.
Regarding claim 421, Musher teaches that said ingredient material comprising sustaining stress comprises said method of making said support wherein combining two ingredient materials comprising materials like sugars and chocolate (Page 3, Right Column, lines 14-45; and page 4, Left Column, lines 11-11) which may provide increased strength (Column 1, lines 1-11), but does not teach comprising “caramel”. Mercer teaches that in a comestible it is known to use chocolate material in conjunction with caramel (Col. 7, lines 56-68), wherein the caramel can provide a substantially rigid base for the chocolate (Col. 4, lines 33-40; also see Col. 2, lines 67-Col. 3, line 2). It would have been obvious to one of ordinary skill in the art at the time of the invention so that the method further comprises including comprising a caramel. The ordinary artisan would have been motivated to modify Musher at least for the purpose of using a known confectionary material like caramel that is known to provide a rigid base (Col. 4, lines 33-40; also see Col. 2, lines 67-Col. 3, line 2 of Mercer) and is known to be used in conjunction with chocolate (as explained above).
Response to Arguments
Applicant has presented arguments under the title "Remarks" on pages 10-19 of applicant's response of 12/22/2025. The following is the response to those arguments. Note that each page of applicant's response has two page numbers; for example. the first page of remarks has "p.11" on the top as part of a FAX header and a page number of "10" shown below it - this response refers to the lower page number (i.e. 10 in the above example page number).
On page 10, under the heading “The Next Office Action Cannot be Made Final” applicant alleges that examiner has not answered questions about what “Standard” of “Claim Interpretation” is being used. This argument is not persuasive. The cited statute for 35 U.S.C. 112 rejections (see page 4 of office action of 6/10/2025) clearly states that claims must be such that they “particularly point out and distinctly claiming the subject matter, which applicant regards as his invention” and on pages 4-6 explains why specific claim terms do not meet the requirement. Applicant must provide specific arguments regarding these issues. For the argument related to “Broadest Reasonable Interpretation”, as it applies to claim interpretation for this specific case, it has been addressed in Patent Board Decision of 8/2/2022 for the current application (especially see, page 7, last paragraph to page 8, last paragraph).
On pages 10-11, under the heading “Notes and Interpretation” applicant objects to the interpretation of the term “material”, “ingredient” and “ingredient materials”, which appear in multiple claims, and also refers to term “composite material”. Applicant states “Examiner does not state exactly in which claim”. This argument is not persuasive. The term appears in several claims and the reference is to all claims in which these terms occur; e.g. see all base claims such as claims 383, 394, 405, 412, 426, 429 and 433 (see claims of 9/8/2025). Examiner has provided the “customary meaning” in absence of any clarification in the specification. Note that above issues are substantially similar to those addressed in Patent Board Decision of 8/2/2022 (especially see, page 6, first paragraph to page 10, first paragraph).
In the section titled “Claim Objections” on pages 11-12, applicant argument about objection to claim 405 is why that because claim 405 has been characterized as not being clear but still “not insolubly ambiguous”, it is incorrect to object to such as claim. Thus, applicant appears to imply that until and unless claims are “insolubly ambiguous”, there is no need to address any issues raised, such as issues that merit claim objections to better clarify the claims. This argument is not persuasive. Applicant must address the specific issues raised in claim objections, review examiner’s interpretation and if there is disagreement, clarify what is applicant’s interpretation of the claim (supported by specific arguments). Without such action on part of applicant, examiner has no choice but to interpret the claim as outlined in the claim objection. Note that there is not just a claim objection with respect to claim 405; it has also been rejected.
In the section titled “35 USC Section 112, Second Paragraph” starting on pages 12-17 of applicant’s response, applicant asserts that recitations “creating synergy or working together” (see page 13, 2nd last paragraph) are not indefinite because “Examiner has shown no evidence that Applicant’s invention is something different from what is defined in the claims” (see page 13, 1st 3 paragraphs of applicant’s response). This argument is not persuasive because examiner has explained why terms are indefinite because it is not clear that what they mean, and hence it cannot be determined if they are “something different from what is” allegedly “defined” in the claims. As such, this issue is similar to the one addressed in Patent Board Decision of 8/2/2022 for the current application (especially see page 3, 1st paragraph to page 5, last paragraph). As for claim 421 reciting “comprising a caramel” (see page 16, 2nd paragraph of applicant’s response), it does not resolve the indefiniteness issue above; and also a rejection of claim 421 was provided in the previous office action.
On pages 16-17 of applicant’s response, applicant argues that 35 USC 112, 2nd paragraph rejection of claim 384 is incorrect because “Claims 384 and 392, 395, and 408 do not recite Markush language” (especially see page 16, last 2 paragraphs of applicant’s response). This argument is not persuasive. The rejection clearly explains the same and refers to MPEP 2117, and applicant has not discussed why that does not apply. Applicant has simply alleged that the language used is not “Markush”. . As such, applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. If one were to accept that the language is not Markush language, then the recitation “comprises a selection from the group comprising a candy…..” creates a group that can comprise anything because of the use of “comprising” not only for “selection” but also for “the group”, thus creating an open ended group. If applicant goes on the record that this is the case, then the 35 USC 112, 2nd paragraph rejection can be withdrawn.
In the section titled “35 USC Section 102” on pages 18-25, applicant makes several allegations but does not present any specific arguments. For example, applicant alleges that rejection of claim 383 is not valid as Musher does not mention “ingredient material” (see page 19), and that rejection of claim 394 is not valid as Musher does not mention “a composite material anywhere” (see page 19). on page 14. Several similar allegations are made without any specific arguments. On page 19, last 2 paragraphs to page 21, 3rd paragraph, applicant interprets various parts of Musher without stating how they are relevant to specific claims. Referring to page 21, last paragraph, it appears applicant is arguing that if something is referred to as “framework structure” it precludes the structure from acting as a support. That argument is not persuasive as these two words are not mutually exclusive. The fact that Musher teaches a variation where “flakes can be eliminated entirely” (see page 21, last paragraph) does not imply that Musher does not teach variations where flakes are not eliminated. Applicant lists various parts of Musher (see pages 22-23) and alleges they make Musher’s disclosure indefinite such that it cannot teach applicant’s claimed invention, but fails to show how any of those parts are relevant to any specific claim or what the indefiniteness is. Note that simply disclosing multiple options is not indefinite. As such, applicant’s allegation that Musher is “too ambiguous” (see page 23 is unsupported.
On page 23, last paragraph, applicant argues about claim 443 that “Examiner has rejected different features in the recited claims using the same feature found in Musher”. This argument is not persuasive. Referring to claim 443 (which depends from claim 393, which in turn depends from base claim 383), it simply defines what said coating may comprise; i.e. “said coating further comprises….” and the “coating” is on “at least a part of said ingredient material” of the support. So, the support must have at least one ingredient material and something coated on it. Rejection of claim 383 lists ingredient materials as one of flakes, or shreds or laminations, and rejection of claim 443 list at least one of sugar or chocolate or nuts as the coating further comprising a candy or a nut. As such, applicant’s allegation that “Examiner has rejected different features in the recited claims using the same features found in Musher” is not persuasive.
Additional allegations of Musher not teaching “ingredient material” or “composite material” or “creating synergy” or “sustaining stress” (see page 24, last paragraph of applicant’s response) are similar to previous allegations that have been already addressed. As explained earlier, applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
In the section titled “35 USC Section 103” (see page 25 of applicant’s response), no new argument is presented and is based on dependence from other claims such as “Claim 421 is a dependent claim ultimately recited under 412”. As such, a separate response is not required.
In summary, all arguments presented by the applicant have been considered but they are not persuasive, as outlined above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JYOTI CHAWLA/Primary Examiner, Art Unit 1791