DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendment to the claims filed 12/30/25 have overcome the claim rejections under 35 U.S.C. 112(b) set forth in the last Office action mailed on 8/5/25 of claim 16 in regards to the limitation of “container held at ambient temperature”. Independent claim 16 has been amended to require the limitations of: “using a spray nozzle operating at 40 to 45 degrees Centigrade or a spinning disc applicator operating at 30 to 40 degrees Centigrade”, and “wherein the method produces a product that provides an audible cracking experience wherein cracking of the shell of first solid fat-based edible composition is audible when the frozen dessert is at -18 degrees centigrade and squeezed with a force typical for unassisted manual squeezing, and wherein when the product is first opened the presence of the shell or the ribbons prevents the lid from suffering cracking when the container is deformed.” Claims 20, and 22-23 have been canceled, and claim 24 has been newly added.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/27/26 was filed after the mailing date of the last Office action on 8/5/25. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Definitions
The following definitions have been identified in the instant specification:
Deformable container: a container that may be visibly deformed by a consumer squeezing the external surface of the container. The container returns to exactly its original state after being deformed [p.4, l.28-36]. The plastic material used for the container are; plastic material selected from the group consisting of polypropylene, polyethylene, polyethylene terephthalate, polystyrene and mixtures thereof [p.6, l.28-30].
Solid fat-based edible composition: chocolate (dark chocolate, white chocolate, milk chocolate), a chocolate analogue, or a fruit- fat composition [p.5, l.1-3].
Chocolate: is not intended to be limited to compositions that can legally be described as chocolate in any particular country but includes any products having the general character of chocolate and includes chocolate-like materials that comprise fats other than cocoa butter [p.5, l.3-6].
Chocolate analogue: means chocolate-like fat-based confection compositions made with fats other than cocoa butter [p.5, l.7-9].
First, second or third fat-based edible composition: these fat-based edible compositions can be different or can all be the same fat-based edible composition [p.5, l.17-19].
Frozen confection: a confection made by freezing a pasteurized mix of ingredients such as water, fat, sweetener, protein (normally milk proteins), and optionally other ingredients such as emulsifiers, stabilizers, colors and flavors. Frozen confections may be aerated. Frozen confections include ice cream, frozen yoghurt the like [p.5, l.21-25].
Slot: means, for the purposes of this invention, any elongated shape and is not
limited to purely rectangular shapes [p.6, l.10-11], and includes broadly longitudinally shaped apertures [p.16, l.32-33].
Sugars: refers exclusively to digestible mono- and di-saccharides [p.15, l.5].
Aerated: means that gas has been intentionally incorporated into the product [p.15, l.32-33].
Claim Objections
Claim 16 is objected to because of the following informalities:
On claim 16, step (i), line 3, the term “snozzle” should read “nozzle”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16, 18, 21, 24, 4-5, 7-9, and 11-14 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 16 recites “wherein cracking of the shell of first solid fat-based edible composition is audible when the frozen dessert is at -18 degrees centigrade and squeezed with a force typical for unassisted manual squeezing, and wherein when the product is first opened the presence of the shell or the ribbons prevents the lid from suffering cracking when the container is deformed”. The claim is indefinite because it is unclear what specific value of force is considered “a force typical for unassisted manual squeezing”, as different individuals (i.e., panelists) would have different squeezing grip strength. Furthermore, while there is support and disclosure in the specification for the limitation of the force typical for unassisted manual squeezing being from 3.5 to 7 kg on page 23, Table 3a, if claim 16 was to be interpreted as the force typical for unassisted manual squeezing being from 3.5 to 7 kg, then it is not clear how new claim 24 which recites “The method of claim 16, wherein the force typical for unassisted manual squeezing is from 3.5 to 7 kg.” would further limit independent claim 16.
Claims 18, 21, 24, 4-5, 7-9, and 11-14 are rejected by virtue of their dependance on a base rejected claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 16, 11, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira et al [JP H08140583 A], hereinafter Akira, in view of Amend et al. [US 20150157042 A1], hereinafter Amend, Dyks et al. [US 20080038420 A1], hereinafter Dyks, Haj Hassan et al. [US 20150150276 A1], hereinafter Haj Hassan, and Dilley et al. [US 20110262599 A1], hereinafter Dilley, and the evidentiary reference of Arampongpun et al. [US 20110086144 A1], hereinafter Arampongpun (for claim 4).
Regarding claim 16, Akira teach a method of manufacturing a frozen dessert comprising a plastically deformable container [Title, Abstract, 0005, 0012] including;
applying a first solid fat-based edible composition to the interior surface of the plastically deformable container thereby to form the shell [0006 and 0013, Example 1];
dosing the filling into the shell, the filling comprising the frozen confection [0006 and 0013, Example 1, line 111];
applying the third solid fat-based edible composition to an upper surface of the filling thereby to form the lid for the shell and enclose the filling [0006 and 0013, Example 1, lines 112-113]; and
freezing the product of step (ii) or step (iii) [0013, Example 1, lines 106-109 and 111-112], wherein the frozen confection is extruded into the shell using a nozzle [0020, lines 184-185].
Akira does not teach:
- more than one ribbon of a solid fat based edible composition;
using a spray snozzle operating at 40 to 45 degrees Centigrade or a spinning disc applicator operating at 30 to 40 degrees Centigrade;
the filling comprising the frozen confection and the second solid fat-based edible composition, dosing of the frozen confection setting the shell;
wherein the second solid fat based composition is co-extruded into the shell with the frozen confection using a nozzle comprising a plurality of apertures dispensing alternately frozen confection and second solid fat based composition; wherein the feed apertures for the second solid fat based composition form slots;
Regarding step (i):
Amend teaches methods for making coated frozen confectionery products by co-extrusion of a frozen confection and a coating substance [Abstract]. Amend further teach that coating substances such as fat-based edible compositions are applied with a spray nozzle [0004] at temperatures of 30-40°C [0005], (equivalent to using a spray snozzle operating at 40 to 45 degrees Centigrade).
Regarding the more than one ribbon of a solid fat based edible composition, the filling comprising the frozen confection and the second solid fat-based edible composition of step (ii), and step (iv):
The system of Amend’s invention includes a nozzle comprising a frozen confection product channel (ice cream channel) and at least one coating supply channel (and a fat based composition channel, equivalent to a nozzle with a plurality of feed apertures) [Abstract], wherein the coating substance may be a fat based substance (equivalent to the filling comprising the frozen confection and the second solid fat-based edible composition, and dispensing alternately frozen confection and second solid fat based material) [0024], for producing a thick spiral of frozen confection (ice cream) with the fat base coating substance (equivalent to more than one ribbon of a solid fat based edible composition) partly buried forming layers (equivalent to the feed apertures for the fat based composition form slots) [0022 and 0093].
Regarding the dosing of the frozen confection setting the shell of step (ii):
Amend disclose that fat based coating materials in liquid form, quickly cool down and solidify when getting in contact with a frozen confection (dosing of the frozen confection setting the shell) that is typically at a temperature of -4°C [0005], (equivalent to dosing of the frozen confection setting the shell, because one of ordinary skill in the art would also recognize the setting of the shell would occur when the fat based material in unset state comes in contact with the frozen confection during dosing due to the lower temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include more than one ribbon of a solid fat based edible composition (second solid fat-based edible composition), using a spray snozzle operating at 40 to 45 degrees Centigrade to apply the first solid fat based edible composition to the interior surface of the plastically deformable container, the filling comprising the frozen confection and the second solid fat-based edible composition (ribbon of a solid fat based edible composition), dosing of the frozen confection setting the shell, and wherein the second solid fat based composition is co-extruded into the shell with the frozen confection using a nozzle comprising a plurality of apertures dispensing alternately frozen confection and second solid fat based composition; wherein the feed apertures for the second solid fat based composition form slots as taught by Amend, in the method of Akira, since Akira already teach contacting the fat based material with the frozen confection so that the fat based composition solidifies [Akira, 0020, lines 188-191] which would provide for the setting/hardening of a fat based coating (chocolate) to form a shell because the fat based composition hardens instantly when it comes in contact with the ice cream due to the lower temperatures [Akira, 0021, lines 195-196], but simply taught this setting of the fat based composition poured on top of the frozen confection (the instantly claimed third fat based composition “lid”). It would further have been obvious to one having ordinary skill in the art because Amend teach that this would provide a method where the setting of the first fat based edible composition for making the shell occurs when it comes in contact with the ice cream (dosing of the frozen confection setting the shell) [Amend, 0005], thus adding convenience to the method of Akira since the shell of fat based material would be set or hardened by contacting (dosing) the ice-cream to form a hard shell, eliminating the extra steps and parts in Akira’s device/method of cooling with water to set the initial fat based material shell. It would have been obvious to one having ordinary skill in the art because Akira teaches that the use of a nozzle having a plurality of feed apertures would allow for the production of a fat based covered confection comprising layers of thick spirals or more than one ribbon of the fat based composition with adjustable thickness in one single dosing step and in a continuous flow to create the desired fat based composition (chocolate) structures enclosed in a receptacle [Amend, 0090-0091 and 0093-0094].
Modified Amend teaches the method of manufacturing the frozen dessert discussed above, but are silent regarding:
the lid having a thickness of at least 0.5 mm and at most 5 mm; and
Dyks teaches methods and devices for stamping chocolate coated frozen confection products such as ice cream bars and ice creams [0020-0023], wherein the thickness of the “lid” coating layer is from 0.5 mm to 5 mm [0033].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a coating having a thickness of at least 0.5 mm and at most 5 mm as taught by Dyks, in the method of modified Akira, since Akira in view of Amend already teach the fat based coating substance thickness may be adjusted (therefore the feed aperture for the second fat based composition may be adjusted) [Amend, 0019], but simply did not mention a specific thickness. Further, Dyks teaches that the use of these thickness for coating layers of fat based edible compositions would not only provide attractive coated frozen confections but also coatings that are suitable for being embossed and are liked by consumers [Dyks, 0023 and 0054].
Modified Amend teaches the method of manufacturing the frozen dessert discussed above, but are silent regarding:
wherein the method produces a product that provides an audible cracking experience wherein cracking of the shell of first solid fat-based edible composition is audible when the frozen dessert is at -18 degrees centigrade and squeezed with a force typical for unassisted manual squeezing, and wherein when the product is first opened the presence of the shell or the ribbons prevents the lid from suffering cracking when the container is deformed.
Regarding the frozen dessert being at -18 degrees centigrade:
Haj Hassan teaches aerated chocolate compositions [Title]. The aerated chocolate composition is placed in a freezer at a temperature of -18°C to harden the product, in a manner similar to coating an ice cream product [0048].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a method of manufacturing frozen desserts that includes freezing the desserts at -18°C as taught by Haj Hassan, in the method of modified Akira, so that the frozen dessert product such as coated ice cream products hardens rapidly [Haj Hassan, 0048], and also provide frozen dessert products that are solid at room temperature, yet melt rapidly in the mouth to give the smooth mouth feeling to the consumer [Haj Hassan, 0001].
Regarding the audible cracking experience, when the frozen dessert is squeezed with a force typical for unassisted manual squeezing:
Dilley teaches coating compositions for frozen confections [Title], where the coating composition is a fat based edible composition [Abstract]. The disclosure teach a frozen dessert to be coated with the fat based coating composition being cooled at a temperature of -18°C [0045]. The invention teach Examples 1-3, which are according to the invention [0039, Table 1, Table 3], providing good brittleness and firmness, snap [0049], or snap on biting [0003], due to crystallization of the fat during the fat setting/hardening time, which is the time at which the coating develops an audible crack (equivalent to an audible cracking experience) on biting (when an unassisted force is applied) [0002].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a method that includes freezing the dessert at -18°C prior to coating with the fat composition as taught by Dilley, in the method of modified Akira, because Dilley teaches that the use of this temperature parameters for freezing are associated with fat crystallization such as setting time to make coating compositions of fat based materials [Dilley, Abstract, 0001] for manufacturing frozen confection products that have an audible crack on biting [Dilley, 0002]. Moreover, since the same materials (frozen confection filling, with fat based ribbons “second fat based composition”, inside a fat based shell “first fat based composition”, and covered with fat based layer “lid” or “third fat based composition” having the same thickness of at least 0.5 mm and at most 5 mm ) are being used in the method of modified Akira, is expected that the product would provide the claimed audible cracking experience wherein cracking of the shell of first solid fat-based edible composition is audible when the frozen dessert is at -18 degrees centigrade and squeezed with a force typical for unassisted manual squeezing, and wherein when the product is first opened the presence of the shell or the ribbons prevents the lid from suffering cracking when the container is deformed.
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).
It is additionally noted that the prior art must only be capable of an audible cracking when the frozen dessert is at -18 degrees centigrade and squeezed with a force “typical” for unassisted manual squeezing and when the product is first opened, the presence of the shell or the ribbons would prevent the lid from suffering cracking when the container is deformed.
Regarding claim 4, modified Akira teach the methods and concepts as explained in claim 16 rejection above, but does not explicitly recites the shell has a yield strength of 1-20 MPa.
Dilley teach fat based coating compositions for frozen confections [Title and Abstract]. The disclosure teach various examples where the fat based coating (shell) of an ice cream that was tempered at -18°C have yield strengths of from 9.6 MPa for sample E, up to 22.1 MPa for sample A and samples 1, 2 and 3 having yield strengths of 13.9 MPa, 18.7 MPa and 17.5 MPa respectively [Dilley, 0045-0046 and Table 3, page 4]. Moreover, the evidentiary reference of Arampongpun, directed to a process for coating frozen confections with a fat based coating such as chocolate [Arampongpun, 0012], disclose that adjusting rheological properties of the coating material such as viscosity and yield stress in order to achieve the desired thickness of the coating is known in the art [Arampongpun, 0041], thus teaching that it has been conventional to adjust yield stress of fat based coatings such as chocolate.
Akira and Dilley are both considered to be analogous to the claimed invention because they are in the same field of frozen confections comprising fat based composition coatings. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Akira to incorporate the teachings of Dilley and provide fat based compositions for coating frozen confections with the yield strength as taught by Dilley, wherein adjusting rheological properties of the coating material such as viscosity and yield stress is known in the art in order to achieve the desired thickness of the fat based coating as evidenced by Arampongpun, would provide coatings with good brittleness and firmness [Dilley, 0049].
Regarding claim 11, modified Akira teach the frozen dessert with a first, second and third fat based composition, where said fat composition is chocolate [Abstract].
Regarding claim 21, see claim 16 rejection above, where Akira teach filling the inside of the container containing the fat based material with ice cream [Akira, 0006 and 0013, Example 1], and modified Akira in view of Amend teach that fat based coating materials in liquid form, quickly cool down and solidify when getting in contact with a frozen confection (dosing of the frozen confection setting the shell) that is typically at a temperature of -4°C [Amend, 0005]. And one of ordinary skill in the art would recognize the setting of the shell would occur when the fat based material in unset state comes in contact with the frozen confection during dosing due to the lower temperature.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Anthony Fenn et al. [US 20010048962 A1], hereinafter Fenn.
Regarding claim 5, modified Akira teach the methods and concepts as explained in claim 16 rejection above, but does not explicitly recites the shell has a work of fracture of 0.0004 to 0.002 J at the serving temperature of -18°C.
Fenn teaches a process for the production of a frozen food product [Abstract]. One preferred embodiment of the invention includes a crispy frozen confection such as soft ice cream core coated with a layer of the composition of the invention to form an ice cream surrounded with a crispy layer [0052]. While Fenn does not explicitly recites a work of fracture of 0.0004 to 0.002 J at -18°C, Fenn does teach adjusting the thickness to obtain the desired fracture behavior, which can also be measured by preparing layers of varying thickness and determining at which minimum thickness fracture behavior occurs (as disclosed on p.20-22 and Figs. 1-4 of the instant specification, where chocolate strips are prepared and tested) or calculated from the Young's Modulus [0025].
While Fenn is silent with regards to the work of fracture of 0.0004 to 0.002 J at -18°C as claimed, Fenn does not teach an upper or lower limit for fracture behavior and one of ordinary skill in the art would have recognized that with higher/lower thickness a higher/lower fraction behavior of the coating composition can be achieved, therefore, absent any evidence of criticality, it would have been obvious to one of ordinary skill in the art to adjust the thickness of the coating composition in order to obtain the desired work of fracture in the final frozen confection product. Since Amend already also teach adjusting thickness of the ice cream coating [Amend, 0019].
Claim(s) 7-9 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Ricco et al. [US 20150164106 A1], hereinafter Ricco, and the evidence of Sadaji et al. [JP 2011182765 A], hereinafter Sadaji, (for claim 8).
Regarding claim 7, Akira teach using more than one fat based compositions (first fat based material for coating the container interior walls and the second fat based material for coating the top of the ice cream), modified Akira in view of Amend teach the frozen confection and a coating substance, wherein the coating substance may be a fat based substance [Amend, 0024], and produced by a nozzle comprising at least one coating supply channel (equivalent to a nozzle with a plurality of feed apertures for producing more than one fat based ribbon) [Amend, Abstract], for producing a thick spiral of frozen confection (ice cream) with the fat base coating substance [Amend, 0092-0093], (equivalent to more than one ribbon of a solid fat based edible composition). And Akira in view of Dyks teach the thickness of a fat based coating layer is from 0.5 mm to 5 mm [Dyks, 0033], but do not explicitly teach ribbons having a thickness of at least 0.5 mm (claim 7).
Ricco teach a frozen confectionery product with layered structure [Title], methods and apparatus for manufacturing the same, wherein the frozen confectionery is produced by extrusion through an apparatus equipped with a nozzle that comprise at least one ice cream passage and at least one chocolate passage and each comprising at least one inlet and outlet ports. The ice cream and chocolate outlet ports provided in the nozzle have elongated cross sections and are configured in parallel to each other to form annular or helical (ribbons) chocolate layers [Abstract]. One embodiment teach the nozzle comprise at least two chocolate outlet ports to produce two chocolate helixes [0017-0019], wherein the fat based composition (chocolate) layers may have a thickness preferably between 500 µm and 3500 µm (0.5 mm to 3.5 mm) [0039].
Akira and Ricco are both considered to be analogous to the claimed invention because they are in the same field of frozen confections comprising fat based compositions. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Akira to incorporate the teachings of Ricco and provide a method and apparatus comprising a nozzle configured to extrude ice cream with at least two fat based composition ribbons or helixes of a desired thickness, since Akira already teach using a plurality of fat based materials through the process, since Akira in view of Amend already teach the fat based coating substance thickness may be adjusted [Amend, 0019]. Doing so would provide methods to produce frozen confectionery products comprising layers/ribbons/helixes of fat based chocolate compositions with the desired thickness in order to achieve layers that are crunchy and desired by consumers [Ricco, 0037-0039 and 0054].
Regarding claims 8-9, modified Akira teach the methods and concepts as explained above but does not explicitly teach the width of the fat based ribbons (claim 8), or the ribbons of the fat based composition present in the frozen dessert in the amounts of 2-10% v/v (claim 9). However, Ricco disclose the spiral shaped fat based composition thickness contained in the frozen confection may be added, designed or applied according to the type and/or dimensions of the container in which the product is packaged [0040], and based on the different fat based composition recipe used [0039, 0054]. And the evidentiary reference of Sadaji teach a frozen dessert with a chocolate helix having a certain width, wherein said width of each spiral is about the same distance from the outer peripheral part of the frozen confectionery to the central part [Sadaji, 0023], thus a larger diameter container would have a wider ribbon and a smaller diameter container would have a narrower ribbon (i.e., the width of the ribbons or spiral bands would vary based on the diameter of a cylindrical tub or container).
While Ricco is silent with regards to the specific width of the fat based composition ribbons being at least 5 mm and volume of 2-10% v/v, Ricco does not teach an upper limit and one of ordinary skill in the art would have recognized that with different fat based composition recipes and different packaging containers, the size and width of the fat based ribbons would also be different, therefore, absent any evidence of criticality, it would have been obvious to one of ordinary skill in the art to adjust the width and/or volume of the fat based ribbons based on the fat based composition recipe and/or size and shape of the container used for packaging the frozen desert and in relation to the volume of ice cream in order to obtain a well-balanced product [Ricco, 0040]. Since Ricco teach adjustability of thickness of ribbons based on container dimensions and shape which is a matter of choice (MPEP 2144.04 IV. A. and B.), and/or fat based composition recipe used to achieve a desired crunchiness, which is routinely determinable (MPEP 2144.05 II. A.), and Sadaji evidenced the width of ribbons may be from the outer surface to the center of the frozen dessert which will provide different width and volume variations in the frozen dessert.
Regarding claim 18, as applied to claim 16 above, modified Akira teach the frozen dessert with a first, second and third fat based composition, where said fat composition is chocolate [Abstract]. Akira does not explicitly recites the word disc for the chocolate lid or cover, however, Akira does teach coating the top of the ice cream with chocolate (equivalent to forming a chocolate lid as claimed) to form said chocolate coated ice cream [0006 and 0013, Example 1]. And further Ricco disclose the frozen confection product being extruded into a cylindrical tub [Ricco, 0053-0054 and Fig.4].
It would have been obvious to one of ordinary skill in the art to incorporate the cylindrical tub of Ricco into the invention of Akira, since Akira does not limit the shape of the container, but simply did not mention the lid is in form of a disc, since pouring melted chocolate on top of the ice cream as taught by Akira [0013], where the ice cream is contained in a cylindrical tub as taught by Ricco [Ricco, 0053-0054 and Fig.4], would produce a lid as a chocolate disc. Since choice of the container shape would have been a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant (MPEP 2144.04 IV. B).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Smith [WO 2015036878 A1], hereinafter Smith.
Regarding claim 12, modified Akira teach the methods and concepts as explained above but is silent regarding the frozen confection specific heat capacity being 2500 to 3600 J/kg/K.
Smith teaches methods for preparation of a confectionery product comprising a chocolate shell having a viscous filling which is deposited into the shell through a nozzle [Abstract]. The disclosure teach that specific heat capacity is the amount of energy (in Joules) required to heat a mass (in kilograms) of material by one Kelvin (K). In one embodiment the invention teach the confectionery material may have a specific heat capacity of up to 2500 J/kg/K [Smith, p.2, lines 30-33].
Akira and Smith are both considered to be analogous to the claimed invention because they are in the same field of confectionary products comprising fat based compositions as shells or coating with fillings. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Akira to incorporate the teachings of Smith and provide a product with a desired specific heat capacity. Doing so would provide confectionery products which are resistant to elevated temperatures and will not melt easily. Since Smith disclose the specific heat capacity is related to the amount of energy needed to heat a material by one Kelvin [Smith, p.2, lines 30-33], and one of ordinary skill in the art would be motivated to increase or adjust this value particularly when producing frozen confections to prevent or reduce product damage by heat.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Bartkowska et al. [US 20140113034 A1], hereinafter Bartkowska.
Regarding claim 13, modified Akira teach the methods and concepts as explained above in claim 16 rejection, but is silent regarding the frozen confection having an overrun of 40 to 150%.
Bartkowska teaches receptacles such as cones or cups suitable for frozen confections [0029]. The disclosure teach that frozen confections may be aerated such as ice cream, sherbet, sorbet, milk ice, water ice, frozen yogurt and the like, which typically have an overrun of from 20 to 150% [0036].
Akira and Bartkowska are both considered to be analogous to the claimed invention because they are in the same field of frozen confectionary products. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Akira to incorporate the teachings of Bartkowska and provide a product with an overrun of from 40 to 150% as claimed. Doing so would provide a wide variety of frozen desserts such as ice cream, sherbet, sorbet, milk ice, water ice and frozen yogurt [Bartkowska, 0036].
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Aldred et al. [US 20070196538 A1], hereinafter Aldred.
Regarding claim 14, modified Akira teach the methods and concepts as explained above but is silent regarding the frozen confection having an ice content of 35 to 55% at -18°C.
Aldred teaches frozen composition comprising ice particles and methods for preparing said products [Abstract]. The process disclosed in the invention teach manipulating the ice phase of the product in order to produce frozen products that are softer than the equivalent products having the same ingredients and ice content and made by conventional processes [0002]. The invention teach Experiment 3, squeezable ice products with an ice content of 52% at -18°C and Example 1, spoonable ice cream products with an ice content of 35% at -18°C [Aldred, p.8, 0103, 0106 Tables].
Akira and Aldred are both considered to be analogous to the claimed invention because they are in the same field of frozen food products. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Akira to incorporate the teachings of Aldred and provide a method to manipulate the ice phase and ice content. Doing so would provide products with soft texture, improved spoonability and/or scoopability when taken straight from the freezer at -18°, as well as products that can be squeezed out of the package by hand at -18°C, which is of advantage to the consumer as it allows immediate consumption [Aldred, 0003, 0104].
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akira, in view of Amend, Dyks, Haj Hassan and Dilley as applied to claim 16 above, and further in view of Odier et al. [FR 2838298 A], hereinafter Odier, and the evidence of Kurisu et al. [JP H08126476 A], hereinafter Kurisu.
Regarding claim 24, modified Akira teach the methods and concepts as explained above but is silent regarding the force typical for unassisted manual squeezing being from 3.5 to 7 kg.
Odier teaches a packaged food product, where the food product is a breakable food product (product 2) such as chocolate (fat based composition) [Odier, p.3, par.5], wherein said food product 2 or chocolate (fat based composition) have a breaking force of from 25-50 N (2.5-5.1 kg-f) [Odier, p.3, par.6]. Further the evidence of Kurisu disclose a frozen confection coated with a fat based edible composition [Kurisu, Abstract], where the breaking strength of the frozen confection coated with a fat based edible composition depends on various factors such as the thickness of the frozen confection and the Brix of the raw material liquid to provide frozen confection coated with a fat based edible compositions having a breaking strength of 0.8 kg or more or 0.9 kg or more [Kurisu, 0015, 0017, 0018, 0020], and Table 1 of Kurisu shows a Comparative Example having a thickness of 18mm and a breaking strength of 3.75 kg [Kurisu, Table 1].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the desired breaking strength wherein the force typical for unassisted manual squeezing is between the claimed range as taught by Odier and evidenced by Kurisu, in the method of modified Akira, because Odier teaches that chocolate (fat based compositions) have a typical or known breaking force of from 2.5-5.1 kg-f [Odier, p.3, par.6] (which is a range that falls within the claimed range), and because Kurisu teaches that the breaking strength of frozen confection coated with a fat based edible compositions may be modified by selecting the thickness and/or the Brix of the frozen confection coated with a fat based edible composition [Kurisu, 0015, 0017, 0018, 0020], and one of ordinary skill in the art would have recognize the selection of various thickness and/or Brix values depending on the particular frozen confection coated with a fat based edible compositions application, the shape, size, ingredients used and/or the desired final texture of the finished product.
Response to Arguments
Applicant's arguments filed 12/30/25 have been fully considered but they are not persuasive.
The rejection has been modified as necessitated by the amendments to the claims.
On page 9 of the Remarks, Applicant urges that Akira does not teach a product having an audible cracking experience and that there is no motivation in any of the prior art combined with Akira to manufacture said product providing an audible cracking sound when the deformable container is squeezed without fracturing the lid.
In response to Applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, as explained above, modified Akira in view of Dilley teaches a frozen dessert to be coated with the fat based coating composition being cooled at a temperature of -18°C [Dilley, 0045], providing for products having good brittleness and firmness, snap [Dilley, 0049], or snap on biting [Dilley, 0003], due to crystallization of the fat during the fat setting/hardening time, which is the time at which the coating develops an audible crack (equivalent to an audible cracking experience) on biting (when an unassisted force is applied) [Dilley, 0002, 0039, Table 1, Table 3], and Dyks teaches chocolate coated frozen confection products such as ice cream bars and ice creams [Dyks, 0020-0023], wherein the thickness of the coating layer is from 0.5 mm to 5 mm [Dyks, 0033]. Therefore, since the same materials (frozen confection filling, with fat based ribbons “second fat based composition”, inside a fat based shell “first fat based composition”, and covered with fat based layer “lid” or “third fat based composition” having the same thickness of at least 0.5 mm and at most 5 mm are being used in the method of modified Akira, it would have been reasonable to expect that the product would provide the claimed audible cracking experience wherein cracking of the shell of first solid fat-based edible composition is audible when the frozen dessert is at -18 degrees centigrade and squeezed with a force typical for unassisted manual squeezing, and wherein when the product is first opened the presence of the shell or the ribbons prevents the lid from suffering cracking when the container is deformed.
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).
On page 9, par.4, Applicant urges the Examiner relies on hindsight analysis.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). 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).
Moreover, in response to Applicant’s argument that the Examiner’s rejection is based on hindsight because the prior art references relied upon do not teach an audible cracking sound when the deformable container is squeezed without fracturing the lid, a person of ordinary skill is also a person of ordinary creativity, not an automaton, and in many cases will be able to fit teachings of multiple patents together like pieces of a puzzle (See MPEP § 2141.03). That is, a person of ordinary skill in the art would be able to combine the teaching of Amend of more than one ribbon of a second solid fat based edible composition co-extruded with the frozen confection, a first fat-based edible compositions applied with a spray nozzle at temperatures of 30-40°C to the interior of a deformable container, dosing of the frozen confection setting the shell of said first fat-based edible composition, wherein the dosing of the frozen confection and second fat based composition ribbons are extruded from a nozzle with a plurality of feed apertures for the fat based composition form slots, and dispensing alternately frozen confection and second solid fat based material, the teachings of Dyks of the thickness of the “lid” coating layer is from 0.5 mm to 5 mm, the teachings of Haj Hassan of freezing the dessert to a temperature of -18°C, and the teachings of Dilley of a frozen dessert to be coated with the fat based coating composition being cooled at a temperature of -18°C, providing good brittleness and firmness, snap, or snap on biting , due to crystallization of the fat during the fat setting/hardening time, which is the time at which the coating develops an audible crack, into the method of Akira, in such a way that production of a frozen dessert product that provides an audible cracking experience when an unassisted manual force is applied would have been achieved with a reasonable expectation of success, as there are more ways than those proposed by Applicant to combine the references. Thus, the rejection of claim 16 as obvious over Akira in view of Amend, Dyks, Haj Hassan and Dilley is maintained.
The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/L.E.D./Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792