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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 30, 2026 has been entered.
Claims 45-53, 80, 81 and 84-98 are pending examination. Claims 54-79, 82, 83 and 99 were previously withdrawn.
Claim Objections
Claims 54-79, 82, 83 and 99 are objected to because of the following informalities:
The status indicators for claims 54-79, 82 and 83 should indicate that the claims are withdrawn. These claims are directed to a non-elected invention. Appropriate correction is required.
In addition, given claim 99 dependents from a withdrawn claim (claim 67), the status indicator for this claim should also indicate it is withdrawn.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
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.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 85 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As amended claim 85 recites wherein said ingredient material comprises a selection from the group comprising a mixed ingredient material, a layered ingredient material, a molded ingredient material, a warmed ingredient material, comprising a combination thereof. There is not support in the present specification or claims as originally filed to claimed the new limitation of “a warmed ingredient material” or a “processed ingredient material.”
Claims 46, 51, 53, 80, 81, 85-89 and 91 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 46 recites “at least one selection from the group comprising". Ex parte Markush sanctions claiming a genus expressed as a group consisting of certain specified materials. Inventions in metallurgy, refractories, ceramics, pharmacy, pharmacology and biology are most frequently claimed under the Markush formula but purely mechanical features or process steps may also be claimed by using the Markush style of claiming. See Ex parte Head, 214 USPQ 551 (Bd. App. 1981); In re Gaubert, 524 F.2d 1222, 187 USPQ 664 (CCPA 1975); In re Harnisch, 631 F.2d 716, 206 USPQ 300 (CCPA 1980). It is improper to use the term "comprising" instead of "consisting of." Ex parte Dotter, 12 USPQ 382 (Bd. App. 1931). (MPEP 2173.05(h)) The instant claims should recite “at least one selection from the group consisting of" instead of “comprising”. Appropriate correction is required.
Claim 46 recites that the ingredient material is selected from a group comprising, inter alia, “comprising a discernable part thereof”. The phrase “comprising a discernable part thereof’ is not a material and therefore it is unclear what materials are intended to read on this limitation. Appropriate correction is required.
Claim 51 recites “wherein comprising two ingredient materials comprise said support”. It is not clear what Applicant is attempting to limit. Does Applicant intend to claim wherein the support comprises two ingredient materials? Appropriate correction is required.
Regarding claim 53, the recitation “further comprising a supported comestible, an ingredient material, an alignment device, a combination thereof, or combinations thereof” renders the claim indefinite. It is not clear what the difference is between “combination thereof” and “combinations thereof” is.
Regarding claims 80 and 91, the recitation “further comprising a supported comestible, an ingredient material, a combination thereof, or combinations thereof” renders the claim indefinite. It is not clear what the difference is between “combination thereof” and “combinations thereof” is.
Claim 81 recites “further comprising an ingredient material in said support.” It is not clear if the “ingredient material” comprising an ingredient material in support is the same or in addition to the ‘ingredient material” of claim 49.
Claim 85 recites “wherein said ingredient material comprises said composite material” and claim 86 recites wherein an ingredient material comprises said composition material.” It is not clear how “said” or “an” ingredient material would comprise the composite material if claim 84 already requires the composite material comprises an ingredient material. Is the ingredient material of claim 85 or claim 86 different from that of claim 84? Clarification is requested.
Regarding claim 85, the recitation “comprising a combination thereof and comprising combinations thereof” renders the claim indefinite because it is not clear what the difference is between the two phrase. Both require a combination of ingredients.
Claim 87 recites “wherein comprising two ingredient materials comprise said composite material.” Given claim 84, from which claim 87 ultimately depends already recites that the support comprises a composite material, said composite material comprises an ingredient material, it is not clear if Applicant is attempting to claim that the composite comprises an additional ingredient material beyond the one already required or two additional ingredient materials. Clarification is requested.
Claims 88 and 89 recite “wherein said composite material comprises said support.” It is not clear how the composite material could comprise the support when claim 84, from which 96 and 89 ultimately depend, requires that the support comprises a composite material.
Claim 93 recites “[t]he support of claim 52, further comprising an ingredient material in said support. It is not clear how the ingredient material in said support is different than the two ingredient materials of claim 52.
Claim 98 recitation “wherein said composite material comprises said support.” It is not clear how the composite material can comprise the support when the support is made of an ingredient material and the composite material can also be part of the composite material.
Claims 47-50 and 81 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 47-50 and 81 recite that an ingredient material comprises the support. However, claim 45, from which claims 47-50 and 81 ultimately depend, already recites that the support comprises an ingredient material. Therefore, claims 47-50 and 81 fail to further limit the claims from which they depend.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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 45-53, 80, 81, 84-93 and 95-97 10291339are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Nabisco (“You’ll Find Quality in our Corner”, 1968, https://www.flickr.com/photos/vintage_dish/2669559316, downloaded 5 March 2020).
Regarding claims 45-52, 81, 84-89, 92, 93, 95-97, Nabisco disclose crackers (i.e. supports) used to carry various edible (i.e. comestible) toppings (see photo). Given Nabisco disclose the support is a cracker, since crackers comprise a range of ingredients, including for example, a grain flour and salt, it follows that the support comprises an at least one ingredient material (e.g., two ingredient materials). Specifically, with regards to claim 84, a cracker is considered a composite material.
Alternatively, regarding claim 45, Nabisco disclose a tray (i.e. support) used to carry crackers (i.e. comestibles) (see photo). Given Nabisco disclose a tray, it necessarily follows that the tray would comprise at least one ingredient material (e.g. wood, plastic, aluminum). Claim 45 does not require the support is edible.
Regarding claims 53, 80, 90 and 91, Nabisco disclose all of the claim limitations as set forth above. Nabisco also disclose a cracker (i.e. support) comprising, for example, red pepper, caviar, black olive, green olive (i.e. ingredient material) (see photo).
[AltContent: textbox ([img-media_image1.png])]Claims 45-53, 80, 81 and 84-96 are rejected under pre-AIA 35 U.S.C. 102(b) as being clearly anticipated by Hackett (US 2,160,730).
Regarding claims 45-52, 81, 84-89, 92, 93, 95 and 96, Hackett discloses a support for a comestible comprising a core (1) of edible composite candy material which comprises two or more ingredients. (Col. 1, lines 26-55, Fig. 1)
Regarding claims 53, 80, 90 and 91, Hackett discloses all of the claim limitations as set forth above. Hackett also discloses the support of Hackett comprises a supported popcorn ball. (Col. 1, lines 7-11).
Regarding claim 94, Hackett discloses all of the claim limitations as set forth above. Hackett discloses that to make the support (i.e., core), water, glucose and sugar are heated together to make a syrup (C1/L46-55). Hackett discloses the syrup is mixed with beaten egg whites to make a composition stiff enough to be formed into cores (C1/L46-55). Hackett disclose chopped nuts or other particulates can be mixed in with the syrup and egg white mixture (C1/L46-55). Since, for example, chopped nuts are considered an ingredient material and they are mixed into the syrup and egg white mixture they would be considered coated.
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.
Claims 45-53 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 125 and 132 of copending Application No. 10/347,018. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 125 and 132 of copending Application No. 10/347018 are directed to a support comprising candy which is a species of the broad genus, ingredient material, which reads on the present claims 45-53.
Claims 45-53 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 27-41 of copending Application No. 14/705921. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 27-41 of copending Application No. 14/705921 are directed to a support comprising a supported composite material (i.e. comestible) (specifically claims 27, 33 and 34) which reads on the present claims 45-53. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed January 30, 2026 have been fully considered but they are not persuasive.
Claim Objections-
Applicant submit the restriction of the method claims from the apparatus claims should be withdrawn.
After a final requirement for restriction, the applicants, in addition to making any reply due on the remainder of the action, may petition to the Director to review the requirement. Petition may be deferred until after final action on or allowance of the claims to the invention elected, but must be filed not later than appeal (38 C.F.R. 1.144 Petition from requirement for restriction MPEP §1.144).
Regarding claim 85, Applicant submits the phrase “a combination thereof” can pertain to a specific combination while “combinations thereof” refers to multiple combinations.
In this case, the phrase should read only “and combinations thereof.” See rejection of claim 85 under 35 U.S.C. 112, second paragraph set forth above.
Double Patenting-
Applicant continues to argue there is a double patenting rejection with copending Application No. 10/291,339.
In this case, the Final Rejection mailed November 3, 2025 does not include a double patenting rejection with copending Application No. 10/291,339. U.S. Application No. 10/291,339 is the present and pending application.
The nonstatutory double patenting rejections of claims 45-53 as being unpatentable over claims 125 and 132 of copending Application No. 10/347,018 and claim 45-53 as being unpatentable over claims 27-41 of copending Application No. 14/705921 are properly maintained.
Rejections under 35 U.S.C. 112-
Please see previous response mailed November 3, 2025 which is incorporated by reference.
Rejection under 35 U.S.C. 102-
Please see all previous responses which are incorporated by reference.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759