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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/6/2025 has been entered.
General
Claims 101-137 presented on 10/6/2025 are pending, product claims 101-127 and 133-137 are examined and claims 128-132 are non-elected as these claims are directed to non-elected invention of a method of making a kit for the construction of supported frozen comestibles have been withdrawn from consideration. Applicant is referred to office actions of 11/27/2019 for details and is also referred to office actions 3/31/2020 and 12/20/2022 for addressing the issue regarding the withdrawn claims 128-132.
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
Claim 108 recites “ingredient material”. 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”.
Claim 110 recites “a composite material”. 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.
Issues of Non-Compliance of Amendment
Applicants submission of amendments continues to raise issues of non-compliance as the amendments to claims in the latest submission of 10/6/2025 (similar to the earlier claims listing of 3/17/2025) does not provide proper status identifiers for claims 128-132 as these claims are directed to non-elected invention of a method of making a kit for the construction of supported frozen comestibles, which was addressed in the office action of 11/27/2019. The status identifiers raise issues of non-compliance under 37 CFR 1.121. Properly made amendments to the claim where any and all amendments need to reflect any changes (additions and deletions) from last entered claims and correct status identifiers of non-elected claims, which are amended should be (withdrawn, currently amended) and claims that have not been amended should be designated as (withdrawn, previously presented).
Applicant is sincerely requested to comply with the rules of making proper amendments as presented under 37 CFR 1.121 in order to expedite prosecution. For the purpose of this office action, claims 128-132 will be considered to have the status identifier “withdrawn”.
Claim Rejections - 35 USC § 112 (second paragraph)
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 112, 123, 127, 134, and 137 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 112 still recites "comprises a selection from the group comprising... ". (emphasis added). Claims 123, 127 and 137 also still recite similar limitations. Given that the defined group is open-ended (as evidenced by "group comprising"), the group may contain any number of other members(including anything not recited in the claim) thus making the recitation" said variety comprises a selection from the group comprising... " indeterminate. For the purposes of this office action, the above recitation will be considered equivalent of "said variety comprises a selection from the group consisting of... “
Claim 134 still recites the limitations "whimsical or silly shape or design". These limitations are subjective terms as something that might appear "whimsical or silly" to one may not be "whimsical or silly" to another. As such, it is unclear what the meets and bounds of the term "whimsical or silly" are. These terms are 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 described by these terms. For the purposes of this office action, any shape or design will be considered to read on "whimsical or silly shape or design".
Claim Rejections - 35 USC § 103
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 of this title, 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 negatived by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 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.
Claims 101,102, 112-114,121,123, 126-127 and 133-137 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher (US 2217700) of prior record, hereinafter Musher, in view of Moreau (US 4943063) of prior record, hereinafter Moreau.
Regarding claims 101, Musher teaches a product (described as "framework structure" or "support" in Col. 1, lines 9-17; of the total 14 Col. of text) for the construction of one or more supported frozen comestibles comprising a comestible (such as "ice cream" described in Col. 1, lines 9- 12) and comprising a support (the ability to function as a support is described as "framework structure" or "support" in Col. 1, lines 9-17) for said comestible. Although Musher teaches a product "for the construction of one of one or more supported frozen comestibles", Musher does not specifically use the term "kit". Moreau teaches that variety kits as a feature of confectionary comestible kits are known in the art (Col. 1, lines 41-49 and Col. 3, lines 51-58}. Further, the term kit is used for a set or collection of related materials that can be used for or a specific purpose. It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that the said product is a kit. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a product that is a kit thus potentially making it more interesting for children or other consumers (see Moreau, Col. 1, lines 41-49).
Regarding claim 133, Musher, as modified above, teaches that said kit comprises a support (as explained earlier, the ability to function as a support is described as "framework structure" or "support" in Col. 1, lines 9-17). Further, Musher also teaches that the support may comprise an inedible or edible material (Col. 10, lines 47-53 which describes that support may not only be “edible” but also “wooden”).
Regarding claim 102, Musher teaches said support comprises a comestible (such as "sugar" and edible "flakes" described in Col. 2, lines 40-55).
Regarding claim 112, Musher, as modified above, teaches that the kit for the construction of one or more supported frozen comestibles of claim 101 wherein said one or more supported frozen comestibles comprises a candy (Col. 2, lines 40-55 of Musher).
Regarding claim 113, Musher teaches a product (described as "framework structure" or "support" in Col. 1, lines 9-17} for the construction of one or more supported frozen comestibles comprising a comestible (such as "ice cream" described in Col. 1, lines 9- 12) and comprising a support (the ability to function as a support is described as "framework structure" or "support" in Col. 1, lines 9-17) for said comestible. Musher does not specifically use the term "kit". Moreau teaches that variety kits as a feature of confectionary comestible kits are known in the art (Col. 1, lines 41-49 and Col. 3, lines 51-58). Further, the term kit is used for a set or collection of related materials that can be used for or a specific purpose. It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that the said product is a kit or a variety kit. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a product that is a kit thus potentially making it more interesting for children or other consumers (see Moreau, Col. 1, lines 41-49).
Regarding claims 114, 121 and 136, Musher, as modified above, teaches (as recited in claim 114) that said support comprises a comestible (such as "sugar'' and edible "flakes" described in Col. 2, lines 40-55), wherein said comestible further comprises (as recited in claim 121) an ingredient material (such as "sugar" described in Col. 2, lines 40-55; also inherent as a comestible inherently comprises at least an ingredient material), wherein (as recited in claim 136) said kit comprises a support (the ability to function as a support is described as "framework structure" or "support" in Col. 1, lines 9-17).
Regarding claim 123, Musher, as modified above, teaches that said one or more frozen supported comestibles comprises a candy (Col. 2, lines 40-55 of Musher).
Regarding claim 126, Musher teaches substantially the claimed structure but does not specifically state that said kit "comprises storability at room temperature". However, the recitation of "storability at room temperature" is only a statement of the inherent properties of the claimed product. The structure or process recited in Musher is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,433 (CCPA 1977}. Also, see MPEP 2112.01. Note that claim 126 does not recite minimum time of room temperature storage and as such is very broad, as almost all common confection materials can be stored at room temperature for at least very short periods of time.
Regarding claim 127, Musher does not specifically teach the term "kit" or that said "kit comprises variety" such as a variety of design. Moreau teaches variety kits as a feature of confectionary comestible kits are known in the art (Col. 1, lines 41-49 and Col. 3, lines 51-58). Further, the term kit is used for a set or collection of related materials that can be used for or a specific purpose . It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that the said product is a kit or a variety kit with a variety of designs. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a product that is a kit with variety of designs thus potentially making it more interesting for children or other consumers (see Moreau, Col. 1, lines 41-49).
Regarding claim 134, Musher teaches that said kit comprises a whimsical or silly shape or design (see 35 USC 112, 2nd paragraph rejection above).
Regarding claim 135, Musher, as modified above, teaches that said kit further comprises for the construction of one or more frozen supported comestibles (such as "ice cream" described in Col. 1, lines 9- 12).
Regarding claim 137, Musher, as modified above, teaches that said ingredient material comprise a candy (Col. 2, lines 40-55 of Musher).
Claims 103-104 and 115 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher and Moreau, as applied to claims 101 & 102; and 113-114 above, and further in view of Chan (US 6177110) of prior record, hereinafter Chan.
Regarding claim 103, Musher teaches substantially the claimed structure including that said comestible comprises candy (Col. 2, lines 40-55) but does not specifically state that the candy is "homogenous or pressed" candy. Chan teaches that it is known in the art to use a pressed candy to support a confection (Col. 1, lines 28-35). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that the candy is "pressed" candy. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a common type of candy, that can easily be pressed in complex shapes in a mold (see “molds” described in Col. 1, line 1 – Col. 2, line 18 of Chan) of the desired shape, for making a support which can provide desired shape and strong support (see Col. 3, lines 39-56 of Chan that teaches “strong connection”).
Regarding claim 104, Musher, as modified above, teaches that said pressed candy comprises said support (Col. 1, lines 9-17 of Musher).
Regarding claim 115, Musher teaches substantially the claimed structure including that said comestible comprises candy (Col. 2, lines 40-55) but does not specifically state that the candy is ""homogenous or pressed" " candy. This limitation has already been addressed in claim 103.
Claims 105-106, 108-110 and 116-120 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher and Moreau, and Chan as applied to claims 103 and 115, further in view of Cherukuri (US 5087460) of prior record, hereinafter Cherukuri.
Regarding claims 105-106, Musher, as modified above, teaches substantially the claimed kit but does not teach that said pressed candy (i.e. material of said support) further comprises "a moisture impervious stearate in said pressed candy, said moisture impervious stearate insulates at least one ingredient of said pressed candy from moisture" (as recited in claim 105), wherein "said moisture impervious stearate comprises a magnesium stearate" (as recited in claim 106). Cherukuri (US 5087460) teaches that suitable ingredients in coating of confection to block moisture from other ingredients of the confection includes magnesium stearate (Col. 15, lines 37-40). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said pressed candy (i.e. material of said support) further comprises a moisture impervious stearate in said pressed candy, said moisture impervious stearate insulates at least one ingredient of said pressed candy from moisture, said moisture impervious stearate comprises a magnesium stearate. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a known additive in the coating for alleviating deleterious effects of moisture (by insulating from moisture) on other ingredients that are covered by the coating, wherein the additive (such as magnesium stearate) is safe for food consumption and has to be added in very small amount (Col. 15, lines 45-46 of Cherukuri) thus preventing excessive after taste.
Regarding claim 108, Musher, as modified above, teaches that said pressed candy further comprises an ingredient material (such as "sugar" described in Col. 2, lines 40-55 of Musher; also inherent as any comestible inherently comprises at least an ingredient material).
Regarding claim 109, Musher, as modified above, teaches that said ingredient material comprises said support (i.e. support described in Col. 2, lines 40-55 of Musher).
Regarding claim 110, Musher, as modified above, teaches that said pressed candy further comprises a composite (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 116-117, respectively, they are substantially similar to claims 105- 106, respectively, and hence the same respective rejections apply.
Regarding claims 118 and 119, Musher, as modified above, teaches substantially the claimed kit but does not teach that said pressed candy (i.e. material of said support) further comprises "a coating comprising a moisture impervious stearate on at least a portion of” said pressed candy. Cherukuri (US 5087460) teaches that suitable ingredients in coating of confection to block moisture from other ingredients of the confection includes magnesium stearate (Col. 15, lines 37-40). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said pressed candy further comprises "a coating comprising a moisture impervious stearate on at least a portion of” said pressed candy. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a known additive in the coating for alleviating deleterious effects of moisture (by insulating from moisture) on other ingredients that are covered by the coating, wherein the additive (such as magnesium stearate) is safe for food consumption and has to be added in very small amount (Col. 15, lines 45-46 of Cherukuri) thus preventing excessive after taste.
Regarding claim 120, all limitations have been addressed in claims 105-106 (also see rejection of claim 122 with respect to Cherukuri), including "a coating comprising a moisture impervious stearate", and with such a coaling, said support "further comprises a self-contained moisture impervious support" (as the "moisture impervious stearate" is part of the support itself).
Claims 107 and 122 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher and Moreau, as applied to claim 102 and 114 above, further in view of Cherukuri.
Regarding claim 107, Musher, as modified above, teaches substantially the claimed kit but does not teach that said support further comprises "a coating comprising a moisture impervious stearate on at least a part of said comestible''. Cherukuri teaches that suitable ingredients in coating of confection to block moisture from other ingredients of the confection includes magnesium stearate (Col. 15, lines 37- 40). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said support further comprises "a coating comprising a moisture impervious stearate on at least a part of said comestible". The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a known additive in the coating for alleviating deleterious effects of moisture on other ingredients that are covered by the coating, wherein the additive (such as magnesium stearate) is safe for food consumption and has to be added in very small amount (Col. 15, lines 45-46 of Cherukuri) thus preventing excessive after taste.
Regarding claim 122, Musher, as modified above, teaches substantially the claimed kit but does not teach that said comestible further comprises "a moisture impervious stearate in said comestible, said moisture impervious stearate insulates at least one ingredient of said comestible from moisture " Cherukuri teaches that suitable ingredients in coating of confection to block moisture from other ingredients of the confection includes magnesium stearate (Col. 15, lines 37-40). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said comestible further comprises a moisture impervious stearate in said comestible, said moisture impervious stearate insulates at least one ingredient of said comestible from moisture. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a known additive in the coating for alleviating deleterious effects of moisture (by insulating from moisture) on other ingredients that are covered by the coating, wherein the additive (such as magnesium stearate) is safe for food consumption and has to be added in very small amount (Col. 15, lines 45-46 of Cherukuri) thus preventing excessive after taste.
Claims 111 and 124-125 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Musher and Moreau, as applied to claims 101 and 113, further in view of Bower (US 2672268) of prior record, hereinafter Bower.
Regarding claim 111, Musher teaches substantially the claimed structure but does not teach that said one or more supported frozen comestibles further comprise "a packaging comprising a vacuum". Bower teaches that many foods can be kept well during the period from packing by manufacturer to use by the user by vacuum packages (Col. 2, lines 23-28). It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said one or more supported frozen comestibles comprise a packaging comprising a vacuum. The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a packaging technology for said comestible that is known to decrease spoilage and hence maintain comestible in edible state during the period from packing by manufacturer to use by the user.
Regarding claims 124-125, Musher teaches substantially the claimed structure but does not teach that said one or more frozen supported comestibles further comprises "an airtight packaging" {as recited in claim 124), or “a packaging comprising a vacuum" (as recited in claim 125). Bower teaches that many foods can be kept well during the period from packing by manufacturer to use by the user by vacuum packages (Col. 2, lines 23-28), which is a type of airtight packaging. It would have been obvious to one of ordinary skills in the art at the time of the invention to modify Musher so that said kit comprises "an airtight packaging" {as recited in claim 124), or “a packaging comprising a vacuum" " (as recited in claim 125). The ordinary artisan would have been motivated to modify Musher for at least the purpose of using a packaging technology said comestible that is known to decrease spoilage and hence maintain comestible in edible state during the period from packing by manufacturer to use by the user.
Response to Arguments
Applicant has presented arguments under the title "Remarks" on pages 9-30 of applicant's response of 10/6/2025. 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.10" on the top as part of a FAX header and a page number of "9" shown below it - this response refers to the lower page number (i.e. 9 in the above example page number).
Applicant's arguments filed 10/6/2025have been fully considered but they are not persuasive for reasons outlined below.
On page 9, 1st three paragraphs, applicant appears to highlight some issues, likely as a summary, but does not provide any specific arguments.
On page 9, under the heading “Status Identifiers”, applicant urges that “claims 128-132 have proper status identifiers” and contends that “There is nothing on the record that states examination of claim 128-132 would be a burden”, while referring to “previous arguments”. This argument is not persuasive. Please refer to response to a similar argument on page 15, last paragraph, that continues on page 16, of the last office action of 7/7/2025. Applicant has not addressed the issues of status identifiers as explained on page 2, last paragraph, which continues on page 3 of the previous office action of 7/7/2025. It appears applicant is traversing the restriction but such traversal does not require to change the current status of the claims; i.e. “withdrawn”. Applicant’s current argument is substantially similar to that already addressed in previous office actions and as explained in previous office actions, examiner submits that referring to restriction requirement of 8/27/2004, section 3 (see page 2, last paragraph) establishes why the inventions are “distinct”. Having established the distinctness, the office action explains why there is a serious search and/or examination burden if restriction is not required, by clarifying that because of such distinct nature, they have acquired a separate status in the art, as they have recognized divergent subject matter in section 4 of the restriction requirement of 8/27/2004 (see page 3, 1st paragraph). To further clarify and to provide more background, refer to office action of 3/31/2020, page 2, that explains that applicant has already elected product claims and non-elected method claims in the restriction response of 9/29/2004 . Applicant later added method claims again and the same were restricted based on election by original presentation (see page 2 of Office Action of 3/31/2020). Also see response to similar argument on page 12, 3rd paragraph (the paragraph just above the heading “Conclusion”) in office action of 12/20/2022.
On pages 9-11, under the heading “35 USC Section 112, first paragraph”, applicant argues about corresponding rejections of “claims 103-106, 110 and 115-119” which were previously rejected because of recitation of “pressed, compressed or tablet”. However, applicant has amended base claims 103 and 115, and also their dependent claims now require “homogenous or pressed,
On pages 11-13, under the heading “35 USC Section 112, second paragraph”, applicant urges that claims can be indefinite under 35 USC 112, 2nd paragraph only if the words “insolubly ambiguous” have been used (especially see first paragraph under the heading on page 11). This argument not persuasive. More specifically, the 35 USC 112, 2nd paragraph rejection clearly states the legal basis for the rejection and applicant has not shown that this is incorrect. Further, applicant has also failed to address issues of claim language raised in the rejection; for example, the rejection raises the issues related to claim 127 that recites "comprises a selection from the group comprising... ". (emphasis added) and applicant fails to address the issues raised. Thus, applicant fails to present any specific arguments against the issues raised. 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 As for the issue raised under “to further clarify”, (see page 12, especially 2nd paragraph), it was a typographical error and would require “group consisting of x, y and z” to be definite; and this typographical error has been corrected. The assertion that above claims have been rejected merely by the word “Note” rather than using the term “rejected” (see page 11, last paragraph, that also continues on page 12, also see page 12, last paragraph that continues on page 13) is not persuasive. The word “Note” is simply used to explain the rejection, whereas the rejection statement is in the paragraph just above it (e.g., in the previous office action of 7/7/2025, see 3rd paragraph on page 5)
From page 12, last paragraph, to page 13, applicant argues regarding claim 134 that examiner has not established why the terms “whimsical” and “silly” are indefinite. Applicant urges that the Specification gives many examples that are understood by a person having ordinary skill in the art to be whimsical or silly. This argument is not persuasive because the specification fails to provide a definition of whimsical or silly that would provide some standard or measure to ascertain the scope of these terms. It appears applicant is equating enablement for the claim language with definiteness. Applicant does not dispute that a formal definition of whimsical and silly has not been provided, but rather argues that the Figures and portions of the Specification cure that omission. Whereas the specification provides examples, there is no standard provided by the applicant in the specification to ascertain when a structure is considered “whimsical” or “silly” within the meaning of the claim. Also see page 4, 2nd last paragraph to page 5, 2nd paragraph, of Patent Board Decision of 7/13/2022 for current application.
In the section titled “35 USC Section 102” on pages 14, applicant assets all claims are “novel”. However, there are currently no rejections currently under 35 USC Section 102.
In the section titled “35 USC Section 103” on pages 14-30, applicant argues that rejection of the claims are “unclear”. Applicant urges Musher is “invalid” (see page 14) or “Non-sensical” (see page 16). Applicant further argues that Musher cannot be modified for the teaching of a “kit” as it would make Musher “unsatisfactory for its intended purpose” (see page 14, last paragraph) because Moreau “is not frozen” (see page 15 of applicant’s response) and would lead to “melting of the primary frozen confection of Musher” (see page 16). This argument is not persuasive. Moreau is not introduced for teaching of frozen comestible – it is introduced for missing teaching of “kits” in comestibles – frozen or not. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Further, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
On page 16, applicant characterizes combination of Musher and Moreau is “Non-sensical” and on pages 16-30 tries to outline differences between the references and the claimed invention. It appears that applicant has concluded that Musher and Moreau are non-analogous art. This argument is not persuasive. To be considered analogous art, a reference must either be from the same field of endeavor or reasonably pertinent to applicant’s problem. In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). In this case, Musher and Moreau are direction to confections and methods of making them and are therefore in the same field of endeavor as applicant’s frozen comestible kit. Musher and Moreau are also reasonably pertinent to applicant’s problem of providing a kit for children to create a nutritious and fun snack or festive party favor (see page 10 of the specification).
On pages 16-18, applicant argues that Moreau does not teach a “kit”. This argument is not persuasive. For example, claim 101 recites “a kit for construction of one or more supported frozen comestibles”. As claim 101 does not recites any structural features that are part of the kit, the recitation of “a kit” is very broad. The specification describes that “comestible kits” include any number of molds to create the bodies of the comestible and edible support in various shapes (see page 81 of the specification). As such, a kit can reasonably be interpreted as “a set of collection of related materials that can be used for a specific purpose”. Also see page 4, 2nd last paragraph to page 5, last paragraph, to page 8, 1st paragraph, as well as page 9, 2nd paragraph, of Patent Board Decision of 7/13/2022 for current application (i.e. application 10/350,934)
On pages 18-19, applicant argues that Musher’s does not teach that “cereal framework structure is his support” (see page 19, especially 2nd paragraph) because a consumer cannot hold the cereal “framework structure” as it is inside the ice cream (see page 19, especially 3rd paragraph) and because the term “support” is “mentioned merely twice in his Patent” (see page 21, especially 2nd paragraph). These arguments are not persuasive. The framework structure of Musher is either partly outside the frozen comestible or is attached to a part that is outside the frozen comestible, and as such consumer can hold the support. Nevertheless, the only requirement is to provide support such as by reinforcement – claims do not require ability to hold. The number of times the word “support” is mentioned, whether twice or more, shows that the teaching is present. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., ability to hold a support) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
On page 20, applicant alleges the claimed invention as “Unobvious” because Moreau does not disclose “a kit”. This argument is not persuasive. Claim 101 recites “a kit for construction of one or more supported frozen comestibles”. As claim 101 does not recites any structural features that are part of the kit, the recitation of “a kit” is very broad. The specification describes that “comestible kits” include any number of molds to create the bodies of the comestible and edible support in various shapes (see page 81 of the specification). As such, a kit can reasonably be interpreted as “a set of collection of related materials that can be used for a specific purpose”. Also see page 4, 2nd last paragraph to page 5, last paragraph, to page 8, 1st paragraph, as well as page 9, 2nd paragraph, of Patent Board Decision of 7/13/2022 for current application.
On pages 21-26, applicant lists various parts of Musher, and concluding they are “unclear” because “These terms have a different and unclear meaning” (see page 23, especially last paragraph) making Musher “invalid” (see page 24, especially 2nd paragraph), while repeating some earlier arguments like Moreau support is “NOT FROZEN” (see page 25, especially last paragraph) and that “a kit is not taught by any of the references” (see page 26) . However, applicant fails to show what exactly is unclear in the context of a specific claim. 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.
On pages 26-28, applicant lists various parts of Musher the disclosure, but does not explain how they apply to a specific claim; for example “being anchored within said frozen confection” (see item 16 on page 28). However, applicant does not explain how this somehow overcomes any of the rejections on record.
On page 29, applicant argues that the claimed invention provides “unexpected results”. However, no evidence has been provided to substantiate applicant’s mere argument of unexpected results. In re Schulze, 346 F. 2d 600, 602 (CCPA 1962). Also see page 10, especially 3rd paragraph, of Patent Board Decision of 7/13/2022 for current application (i.e. application 10/350,934). Note that assertions such as “kit further promotes leaning and self-reliance for small children” (see page 29, last paragraph) do not constitute “unexpected results”.
Applicant’s response has multiple allegations without specific arguments being provided to support the allegations. 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.
Conclusion
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791