DETAILED ACTION
Background
The amendment dated December 30, 2025 (amendment) amending claims 1, 9 and 29, and adding new claims 30-31 has been entered. Claims 1-2, 4-5, 9-11, 19-20, 22 and 24-31 as filed with the amendment have been examined. Claims 3, 6-8, 12-18, 21 and 23 have been canceled. In view of the amendment, all outstanding objections have been withdrawn.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim 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 2, 20 and 28 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.
The recited amount of scalenohedral calcium carbonate particles in claims 2 and 20 is indefinite because the claim does not provide a basis or denominator for the recited amount. Is the amount of scalenohedral calcium carbonate particles based on the weight of the finished edible coating, a coating composition used to make a coating layer, one or the four sections of coating, an individual coating layer or some other total weight?
The Office interprets the amount of scalenohedral calcium carbonate particles as a wt%, based on the total weight of the finished edible coating.
Claim 28 recites a first section of a finished edible coating comprising corn syrup and sucrose syrup, which is confusing and indefinite. Does the recited first section coating comprise a syrup, or does it comprise the dried solids from the syrup?
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 5 and 20 are rejected under 35 U.S.C. 103 as unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins), all of record, and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph).
The Office considers that any particle size distribution may arbitrarily be divided into any number of particle size ranges at any one or more cut off points in the distribution, such as, for example, 1 μm with the amount of particles of any size range, e.g. the size of less than 1 µm having its own independent median mean or average particle size.
The Office interprets the claimed value “b* that is close to zero” to include any b* value of an edible coating of from about +10 to about -10 as disclosed in the instant specification at page 15, lines 29-31.
Regarding instant claim 1, Reed discloses at Abstract a hard coated gum having a finished edible coating and a shelf-stable gum containing the coating. At Examples 3 and 4 on col. 9, lines 1-18 Reed discloses a finished edible coating as formed from one or more coating layers of sugar syrup (“syrup layers”) in water and containing a whitener as titanium dioxide, wherein the finished edible coating is free from a dispersant and a binder. Further, Reed discloses that each of the one or more of layers of the coating in its Examples 3 and 4 is made of a coating that comprises about 65 wt% solids and is sugar as palatinose, the whitener and water.
The Office considers the claimed finished edible coating that imparts opacity and/or white color properties to include the hard-panned coating of Reed. Further, the Office considers the claimed finished edible coating having a b* value close to zero as including the white finished edible coating of Examples 3 and 4 of Reed and made from a syrup comprising sugar (“composition that includes a sugar syrup”), water, whitener and sweetener. The Office interprets the claimed “b* value close to zero” as being any b* value at or less than a magnitude of 10 as disclosed in the instant specification at page 15, lines 27-31.
Further, the Office considers the claimed finished edible coating formed from syrup layers that include a first section configured to adhere to an edible core, and a second section that includes one or more layers built up from applications of the sugar syrup to include the finished edible coating on the gum of Examples 3 and 4 of Reed. Reed discloses a working first section edible coating that adheres to its edible gum core with a working second section edible coating as a built up section formed from one or more syrup layers.
Reed does not disclose scalenohedral calcium carbonate particles as a whitener in a finished edible coating; does not disclose a finished edible coating comprising from about 1 wt-% to about 30 wt-% of the scalenohedral calcium carbonate particles to impart opacity and/or white color properties to the finished edible coating; and, does not disclose scalenohedral calcium carbonate particles wherein about 20 to about 50 wt-% of the scalenohedral calcium carbonate particles have a median particle size ranging from about 0.5 µm to about 1 µm as in claim 1. Additionally, Reed does not disclose a finished edible coating or food product containing an edible coating wherein the syrup layers include four sections, wherein the first section is built up from applications of the composition that includes the scalenohedral calcium carbonate particles, wherein a second section includes one or more layers built up from applications of the composition that includes the scalenohedral calcium carbonate particles in a higher sugar syrup to scalenohedral calcium carbonate weight percentage ratio than a sugar syrup to scalenohedral calcium carbonate weight percentage ratio associated with the composition applied in the first section, wherein a third section includes one or more layers built up from applications of the composition that includes a sugar syrup and one or more colorants, and wherein a fourth section is an outer section including a polish and which is free from the scalenohedral calcium carbonate particles.
In addition, Reed does not disclose a finished edible coating wherein the scalenohedral calcium carbonate particles are present in an amount of from about 10 to about 15 wt-%, by weight of the finished edible coating as in claim 2, or in an amount of from about 1 wt-% to about 10 wt-%, by weight of the finished edible coating as in claim 20.
Schad at the Figure on the left hand side and col. 3, line 66 to col. 4, lines 1-3 depicts scalenohedral calcium carbonate particles (at col. 2, lines 3-5) of a precipitated calcium carbonate as high opacity opacifying agents suitable for use in coating compositions (at col. 19, lines 50-54) for pan coating substrates as (at col. 3, line 30) food confectionary items. Schad at col. 7, line 55 to col. 15, line 17 discloses coatings comprising at least about 15 wt% and less than about 30 wt% precipitated calcium carbonate opacifier particles. Further, Schad discloses in Example 26 coating compositions comprising about 26 wt% of opacifying agent as scalenohedral calcium carbonate particles. In addition, in the bottom 8 Examples of Table 4 on cols. 28-29, Schad discloses finished edible coatings comprising top coats (“outer sections”). Schad also discloses at col. 16, lines 28-40 that the top coats enhance gloss (“include a polish”) and can comprise less than about 0.5 wt% of colorant, which includes no colorant, and that is free of scalenohedral calcium carbonate particles overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I.
Robbins at Abstract discloses a hard panned coating and confections coated therewith (food products as confectionary products). At [0034], Robbins discloses the coating comprising a plurality of first coating layers formed from sugar (“syrup layers”) and a food-grade calcium carbonate as (at [0052]) a precipitated calcium carbonate having (at [0078]) a median particle size of 1 µm or less, e.g., 0.7 µm or less and, further discloses at [0034] a second coating layer as a plurality of coating layers formed from syrup layers of one or more compositions that includes a sugar syrup and one or more colorants (“a third section of one or more layers built up from a composition that includes a sugar syrup and one or more colorants”). Robbins discloses at Example 1 at [0098] coatings compositions for use in coloring or coating chocolate lentils, wherein Robbins at [0099] discloses each of the plurality of layers of the first coating formed from a sugar syrup coating composition that includes 10 wt% of the calcium carbonate based on the weight of the coating composition. Robbins at [0079] discloses coating compositions having from at least 1 wt% and up to 15 wt% of calcium carbonate, based on the weight of the coating composition and which has (at [0069]) 60 to 80 wt.% of sugar solids to give a coating having from (1 part in 80+1 parts or) about 1.25 wt% to (15 parts in 60+15 parts or) about 20 wt.% precipitated calcium carbonate particles as solids in a composition for forming one or more syrup layers or from 80:1 to 60:15 parts total sugar syrup to precipitated calcium carbonate particles. The Robbins coating at [0098] comprises 5 layers of the coating composition comprising calcium carbonate particles and 17 layers of a third section of one or more syrup layers formed from a composition that includes a sugar syrup and multiple colorants, and also includes a fourth section coating or polish comprising polishing gum and wax.
The Office considers the claimed finished edible coating formed from syrup layers that include a first section configured to adhere to an edible core, a second section that includes one or more layers built up from applications of the sugar syrup, a third layer formed from a composition that includes a sugar syrup and one or more colorants, and a fourth section that is free of any carbonate particles to include the coated confectionary product disclosed at [0098] of Robbins.
Ben-Yoseph at [0030] discloses a chocolate confection center 102 (FIG. 1) having a sugar shell coating 108 or finished edible coating thereon via a panning process in a plurality of layers. Ben-Yoseph discloses its finished edible coating comprising an opaque sugar layer 114 including the white color additive proximate the center (“first section”), and having thereon a transitional layer (“second section”), and a colored layer 104 (“third section”) coated thereon. Further, at [0031] Ben-Yoseph discloses that its second section transitional layer has a diluted content of colorant, including a white color additive. At [0009], Ben-Yoseph discloses a faster coating process to enable partial drying of each panning layer before or during the coating of the next layer.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Schad for Reed to employ scalenohedral calcium carbonate particles as precipitated calcium carbonate particles in the finished edible coating of Reed in the amounts disclosed in Schad. Both references disclose whitened hard-panned coatings for edible substrates comprising calcium carbonate. The ordinary skilled artisan working in Reed would have desired to increase the degree of opacity and gloss in its coating by using in its coating syrup the scalenohedral calcium carbonate particles as in Example 26 of Schad. Further, Reed at col. 9, lines 14-18 discloses subsequent syrup coatings without whitener to give a 33 wt% dry coating with a 10 wt% dry coating comprising the whitener, while Schad at col. 16, lines 38-49 discloses top coats that include a polish and that are free of colorant or scalenohedral calcium carbonate particles as an opacifier. Accordingly, it would have been obvious in view of Schad for Reed to form a finished edible coating that comprises one or more layers formed from one or more syrup layers with scalenohedral calcium carbonate particles as whiteners and that comprises a fourth section or outer section including a polish and which is free from the scalenohedral calcium carbonate particles.
Regarding the claimed amounts scalenohedral calcium carbonate particles in claims 1-2, the resulting coatings Reed in Examples 3 and 4 as modified by Schad at Example 26 comprise one or more layers formed from a composition that includes a sugar syrup and an amount of scalenohedral calcium carbonate particles, and one or more layers in the finished edible coating of Schad having one or more top coat layers comprising compositions that are free of the scalenohedral calcium carbonate particles, thus lowering the overall content of scalenohedral calcium carbonate particles in the finished edible coating. Still further, the at least one layer of the Reed as modified by Schad at col. 14, line 64 to col. 15, line 17 finished edible coating layer comprises at least about 15 wt% and less than about 30 wt% precipitated calcium carbonate opacifier particles, which the claimed finished edible coating containing about 10 to about 15 wt% in claim 2 overlaps. See MPEP 2144.05.I. The ordinary skilled artisan in Reed as modified by Schad would have found it obvious to use the claimed amount of scalenohedral calcium carbonate particles because Schad discloses that such an amount is desirable for making an opacified confectionary coating.
Further, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Robbins at [0099] for Reed to include a third section in its finished edible hard-panned coating which comprises a coating formed from one or more sugar syrup compositions that includes colorant. Both references disclose hard-panned coatings for confectionary products comprising an inorganic opacifiers or whiteners. The ordinary skilled artisan in Reed as modified by Schad at Example 26 would have desired to slightly modify the color of its opaque confectionary coating as in Robbins to improve the overall whiteness of the coating or slightly change the tint of the coating in any desired fashion. Accordingly, as Reed at col. 3, lines 55-57 discloses a colorant or coloring agent in a hard panned coating, the Office considers the Reed as modified by Robbins at [0098]-[0099] finished edible coating to comprise a coating in four sections wherein a third section coating comprises one or more colorant and the first, second and fourth sections of the coating do not comprise a colorant. Still further, the Office considers the claimed finished edible coating wherein the second section is between the first section and the third section, and wherein the third section is between the second section and the fourth section to include the finished edible coating of Reed as modified by Robbins.
In addition, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Robbins for Reed as modified by Schad to use scalenohedral calcium carbonate particles having a median particle size of 1 µm or less as in Robbins. All references disclose finished edible coatings for confectionary products made by pan coating and comprising whiteners. The ordinary skilled artisan would have desired to use the scalenohedral calcium carbonate particles of Schad having the particle size of Robbins to insure a homogeneous distribution of the particles in any coating layer. The Office considers the claimed about 20 to about 50 wt-% of the scalenohedral calcium carbonate particles having a median particle size ranging from about 0.5 µm to about 1 µm in claim 1 to include a composition of scalenohedral calcium carbonate particles having a median particle size of 1 µm, as approximately 50 % (half fraction) of the composition has a particle size of less than 1 µm, the largest particles in that half fraction have a 1 µm particle size, and the median particle size in the half fraction is less than 1 µm.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ben-Yoseph for Reed to apply a second section or layer over a first section or layer of its finished edible coating whereby the second section composition includes the scalenohedral calcium carbonate particles in a higher sugar syrup to scalenohedral calcium carbonate weight percentage ratio than a sugar syrup to scalenohedral calcium carbonate weight percentage ratio associated with the composition applied in the first section or base sugar layer. Both references disclose finished edible coatings on a confectionary center made by panning coating of sugar layers in several sections comprising white or opacifying and then color layers. The ordinary skilled artisan in Reed would have desired to include a first section as a base sugar layer containing more scalenohedral calcium carbonate particles than in the second section of the finished edible coating using the method Ben-Yoseph to create opacity in the coating base and thereby reduce the amount of scalenohedral calcium carbonate particles or opacifier needed in the finished edible coating.
Regarding instant claim 5, both the finished edible coating as the first coating layers and the whole of the hard panned coating of Reed as modified by Schad at Examples 3 and 4 of Reed comprising scalenohedral calcium carbonate particles as in Schad at Example 26 would be expected to have excellent whiteness as disclosed at Table 4 of Schad. Thus, the finished edible coatings of Example 3 or 4 of Reed as modified by Schad and Robbins (at [0099]) appear to have substantially the same L* and C* values as claimed. Accordingly, absent a clear showing as to how the lightness value L* and the chroma value C* of the Reed as modified by Schad coating differs from that of the as claimed, the Office considers the Reed Example 3 or 4 coating as modified by Schad to have the claimed lightness value L* and chroma value C* that are increased by about 1 compared to the values of an edible coating that does not contain an opacifier as in claim 5. See MPEP 2112.01.I.
Regarding instant claim 20, an opacifying coating in Examples 3 and 4 of Reed comprising a first section configured to adhere to an edible core, a built up first or second section and containing an opacifier as modified by Schad at col. 14, line 64 to col. 15, line 17 and comprising in the overall coating 15 to 30 wt% of scalenohedral calcium carbonate particles. Further, Robbins at [0098] discloses suitable hard pan coatings comprising the color coating compositions and polish coatings in the same amount as or more than the scalenohedral calcium carbonate particle containing opacifying coatings of Reed as modified by Schad. Accordingly, the finished edible coating of Reed as modified by Schad and modified as in Robbins at [0098] comprising a third section formed from a composition that includes a sugar syrup and one or more colorants and fourth section including a polish that is free of scalenohedral calcium carbonate particles will comprise 7.5 to 15 wt% of the scalenohedral calcium carbonate particles in the finished edible coating whenever the third and fourth sections of the coating comprise the same amount of solids as the first and second sections of the coating, which the claimed 1 to 10 wt% of the scalenohedral calcium carbonate particles overlaps. See MPEP 2144.05.I. The ordinary skilled artisan in Reed as modified by Schad and Robbins would have found it obvious to use the claimed amount of scalenohedral calcium carbonate particles in its overall coating because Robbins discloses that the claimed amount of calcium carbonate particles makes a desirable coating for confectionary substrates.
Claims 9-11, 22 and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins) and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph).
The Office considers that any particle size distribution may arbitrarily be divided into any number of particle size ranges at any one or more cut off points in the distribution, such as, for example, 1 μm with the amount of particles of any size range, e.g. the size of less than 1, µm having its own independent median mean or average particle size.
The Office interprets the claimed value “b* that is close to zero” to include any b* value of an edible coating of from about +10 to about -10 as disclosed in the instant specification at page 15, lines 29-31.
Regarding instant claims 9-11 and 22, Reed discloses at Abstract a hard coated gum having a “finished edible coating” and a shelf-stable gum containing the coating (a “food product containing an edible coating” as a “confectionary product” in claim 10 and wherein the hard coated gum is a “hard-panned candy” in claim 11). At Examples 3 and 4 on col. 9, lines 1-18, Reed discloses a finished edible coating as formed from one or more coating layers of sugar syrup (“syrup layers”) in water and containing a whitener as titanium dioxide, wherein the finished edible coating is free from a dispersant and a binder. Further, Reed discloses that each of the one or more of layers of the coating in its Examples 3 and 4 is made of a coating that comprises about 65 wt% solids of a composition of the sugar palatinose, the whitener and water. The coatings in Examples 3 and 4 of Reed have only a whitener and are free from a colorant (claim 22).
Regarding instant claims 9 and 22, the Office considers the claimed finished edible coating that imparts opacity and/or white color properties to include the hard-panned coating of Reed. Further, the Office considers the claimed finished edible coating having a b* value close to zero and the claimed finished edible coating having an a* value of from about -2.5 to 0 (claim 22) as including the white finished edible coating of Examples 3 and 4 of Reed and made from a syrup comprising sugar (“composition that includes a sugar syrup”), water, whitener and sweetener. The Office interprets the claimed “b* value close to zero” as being any b* value at or less than a magnitude of 10 as in the instant specification at page 15, lines 27-31.
The Office considers the claimed finished edible coating of claim 9 formed from syrup layers that include a first section configured to adhere to an edible core, and a second section that includes one or more layers built up from applications of the sugar syrup to include the finished edible coating on the gum of Examples 3 and 4 of Reed. The claims make no distinction between the finished edible coating formed from one or more syrup layers the claimed first section and in the claimed second section; and Reed discloses a working first section edible coating that adheres to its edible gum core with a working second section edible coating as a built up section formed from one or more syrup layers.
Reed does not disclose scalenohedral calcium carbonate particles as a whitener in a food product containing an edible coating; does not disclose a finished edible coating comprising from about 1 wt-% to about 30 wt-% of the scalenohedral calcium carbonate particles to impart opacity and/or white color properties to the finished edible coating; and, does not disclose scalenohedral calcium carbonate particles wherein about 20 to about 50 wt-% of the scalenohedral calcium carbonate particles have a median particle size ranging from about 0.5 µm to about 1 µm. Additionally, Reed does not disclose an edible coating or food product containing an edible coating wherein the syrup layers include four sections, wherein the first section is built up from applications of the composition that includes the scalenohedral calcium carbonate particles, wherein a second section includes one or more layers built up from applications of the composition that includes the scalenohedral calcium carbonate particles in a higher sugar syrup to scalenohedral calcium carbonate weight percentage ratio than a sugar syrup to scalenohedral calcium carbonate weight percentage ratio associated with the composition applied in the first section, and wherein a fourth section is an outer section including a polish and which is free from the scalenohedral calcium carbonate particles.
In addition, and regarding instant claims 24 and 25, Reed does not disclose L* values for its finished edible coatings of at least about 65 as in claim 9. Further, Reed does not disclose a finished edible coating wherein each of the one or more syrup layers that includes scalenohedral calcium carbonate particles is prepared from a composition that includes a sugar syrup and has a ratio of total sugar syrup to scalenohedral calcium carbonate particles of from 88:12 to 90:10 as in claim 9. And Reed does not disclose a food product as a “snack food” in claim 24; or a confectionary product that is a “chocolate product” as in claim 25.
Schad at the Figure on the left hand side and col. 3, line 66 to col. 4, lines 1-3 depicts scalenohedral calcium carbonate particles (at col. 2, lines 3-5) of a precipitated calcium carbonate as high opacity opacifying agents suitable for use in coating compositions (at col. 19, lines 50-54) for pan coating substrates as (at col. 3, line 30) food confectionary items. Schad at col. 7, line 55 to col. 15, line 17 discloses coatings comprising at least about 15 wt% and less than about 30 wt% precipitated calcium carbonate opacifier particles. Further, Schad discloses L* values for the edible coatings in Example 26 at Table 4 on col. 28, all of which are above 89; and, in addition, Schad discloses in Example 26 coating compositions comprising about 26 wt% of opacifying agent as scalenohedral calcium carbonate particles. In addition, in the bottom 8 Examples of Table 4 on cols. 28-29, Schad discloses finished edible coatings comprising top coats (“outer sections”). Schad also discloses at col. 16, lines 28-40 that the top coats enhance gloss (“include a polish” in claims 1 and 9) and can comprise less than about 0.5 wt% of colorant, which includes no colorant, and that is free of scalenohedral calcium carbonate particles overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Schad would have found it obvious to include no colorant in its top or fourth section coating because Schad discloses that it is desirable for confection coating topcoats to include no colorant.
Robbins at Abstract discloses a hard panned coating and confections coated therewith (food products as confectionary products). At [0034], Robbins discloses the coating comprising a plurality of first coating layers formed from sugar (“syrup layers”) and a food-grade calcium carbonate as (at [0052]) a precipitated calcium carbonate having (at [0078]) a median particle size of 1 µm or less, e.g., 0.7 µm or less and, further discloses at [0034] a second coating layer as a plurality of coating layers formed from syrup layers of one or more compositions that includes a sugar syrup and one or more colorants (“a third section of one or more layers built up from a composition that includes a sugar syrup and one or more colorants”). Robbins discloses at [0079] syrup coating layers comprising 7 to 12 wt% of precipitated calcium carbonate particles the total weight of the coating composition, which the claimed coating from a composition of sugar (at [0069]) comprising 60 to 80 wt% sugar, or a ratio of sugar to particles of 60:12 to 80:7, which is normalized at 100 parts to 83.3:16.6 to about 92:8 and which the 88:12 to 90:10 in claim 9 lies within. See MPEP 2144.05.I. In addition, Robbins discloses at Example 1 at [0098] coatings compositions for use in coloring or coating chocolate lentils (food products as hard-panned candy in claim 11 and as a chocolate product in claim 25), wherein further (at [0099]) each of the plurality of layers of the first coating formed from a sugar syrup composition includes an opacifier. The Robbins coating at [0098] comprises 5 layers of the coating composition comprising calcium carbonate particles and 17 layers of a third section of one or more syrup layers formed from a composition that includes a sugar syrup and multiple colorants, and also includes a fourth section coating comprising polishing gum and wax.
The Office considers the claimed finished edible coating formed from syrup layers that include a first section configured to adhere to an edible core, a second section that includes one or more layers built up from applications of the sugar syrup, a third layer formed from a composition that includes a sugar syrup and one or more colorants, and a fourth section that is free of any carbonate particles to include the coated confectionary product disclosed at [0098] of Robbins.
Ben-Yoseph at [0030] discloses a chocolate confection center 102 (FIG. 1) having a sugar shell coating 108 or finished edible coating thereon via a panning process in a plurality of layers. Ben-Yoseph discloses its finished edible coating comprising an opaque sugar layer 114 including the white color additive proximate the center (“first section”), and having thereon a transitional layer (“second section”), and a colored layer 104 (“third section”) coated thereon. Further, at [0031] Ben-Yoseph discloses that its second section transitional layer has a diluted content of colorant, including a white color additive.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Schad for Reed to form an edible coating that comprises one or more layers formed from one or more syrup layers with scalenohedral calcium carbonate particles in an edible coating that comprises a fourth section or outer section including a polish and which is free from the scalenohedral calcium carbonate particles. Reed at col. 9, lines 14-18 discloses subsequent syrup coatings or top coats without whitener to give a 33 wt% dry coating containing whiteners, which the Office considers as including opacifiers; and, Schad at col. 16, lines 38-49 discloses top coats that include a polish and that are free of colorant or scalenohedral calcium carbonate particles as an opacifier.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Schad and Robbins for Reed to include in the edible coating for its food product scalenohedral calcium carbonate particles as precipitated calcium carbonate particles in a ratio of total sugar syrup to scalenohedral calcium carbonate particles of from 88:12 to 90:10 in the finished edible coating of Reed. All references disclose whitened hard-panned coatings from sugar syrups for edible substrates comprising calcium carbonate. The ordinary skilled artisan working in Reed would have desired to increase the degree of opacity and gloss in its coating by using in its coating syrup an amount scalenohedral calcium carbonate particles as in Reed at [0069] and [0079] to provide a coating comprising from 8 to 10 wt% of the particles.
Further, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Robbins at [0099] for Reed to include a first section as a base sugar layer containing more scalenohedral calcium carbonate particles than in the second section of the finished edible coating and to include a third section in its finished edible hard-panned coating which comprises a coating formed from one or more sugar syrup compositions that includes a colorant. Both references disclose hard-panned coatings for confectionary products comprising an inorganic opacifiers or whiteners. Further, the ordinary skilled artisan in Reed would have desired to modify the color of its opaque confectionary coating as in Robbins to improve the overall whiteness of the coating or slightly change the tint of the coating by include a colorant in a third section of the coating having no whitener or opacifier as in Robbins.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Robbins for Reed as modified by Schad to use scalenohedral calcium carbonate particles having a median particle size of 1 µm or less as in Robbins. All references disclose finished edible coatings for confectionary products made by pan coating and comprising whiteners. The ordinary skilled artisan would have desired to use the scalenohedral calcium carbonate particles of Schad having the particle size of Robbins to insure a homogeneous distribution of the particles in any coating layer. The Office considers the claimed about 20 to about 50 wt-% of the scalenohedral calcium carbonate particles having a median particle size ranging from about 0.5 µm to about 1 µm, to include a composition of scalenohedral calcium carbonate particles having a median particle size of 1 µm, as approximately 50 % (half fraction) of the composition has a particle size of less than 1 µm, wherein the largest particles in that half fraction have a 1 µm particle size, and the median particle size in the half fraction is less than 1 µm.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ben-Yoseph for Reed to apply a second section or layer over a first section or layer of its finished edible coating whereby the second section composition includes the scalenohedral calcium carbonate particles in a higher sugar syrup to scalenohedral calcium carbonate weight percentage ratio than a sugar syrup to scalenohedral calcium carbonate weight percentage ratio associated with the composition applied in the first section or base sugar layer. Both references disclose finished edible coatings on a confectionary center made by panning coating of sugar layers in several sections comprising white or opacifying and then color layers. The ordinary skilled artisan in Reed would have desired to include a first section as a base sugar layer containing more scalenohedral calcium carbonate particles than in the second section of the finished edible coating using the method Ben-Yoseph to create opacity in the coating based and thereby reduce the amount of scalenohedral calcium carbonate particles or opacifier needed in the finished edible coating.
The hard pan coatings of Reed at Examples 3 and 4 and as modified by Schad at Example 26 having a polish from a topcoat fourth section and, further as modified by Robbins at [0098] or [0099] having at least one colorant coat layer (third section) and a wax polish appear to be substantially the same composition as claimed finished edible coating and the claimed food product containing an edible coating. Accordingly, absent a clear showing as to how the L* value of the coating in Examples 3 or 4 of Reed as modified by Schad at Example 26 and Robbins at [0099] differs from that of the claimed finished edible coating, the Office considers the claimed finished edible coating having an L* value of at least about 65 to include the coating of Reed as modified by Schad and Robbins.
Regarding instant claims 24-25, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Robbins at [0084] for Reed to coat a confectionary food product comprising chocolate (“chocolate product” in claim 25) and/or nuts or fruit (“snack” food in claim 24). Both references disclose hard pan coatings for confectionary products made from sugar and comprising a whitener or opacifier. The ordinary skilled artisan in Reed would have desired to impart improved shelf stability and a crunchy candy texture to a coated substrate by coating a nut, snack food, confection or chocolate product center as in Robbins.
Claims 4 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins) and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph) as applied to claim 1, above, as evidenced by Specialty Minerals ViCALity Light product data sheet”, Specialty Minerals ViCALity Light product data sheet, 2000, pg. 1-2, Brenntag.com (ViCALity), of record.
Be advised that the Office considers that any particle size distribution may arbitrarily be divided into any number of particle size ranges at any one or more cut off points in the distribution, such as, for example, 1 μm with the amount of particles having a size of less than 1 µm having its own independent median, mean or average particle size.
As applied to claim 1, Reed at Examples 3 and 4 as modified by Schad at Example 26 and Table 4, Robbins at [0069], [0079] and [0099] and Ben-Yoseph at [0030] discloses finished edible coatings prepared as one or more syrup layers from a sugar syrup and including four sections wherein one section adheres to an edible core, one section comprises scalenohedral calcium carbonate particles, one section comprises a colorant, and one section is free from scalenohedral calcium carbonate particles and the second section that includes a higher weight ratio of the scalenohedral calcium carbonate particles than the first section. The Reed as modified by Schad, Robbins and Ben-Yoseph finished edible coatings impart opacity or white color and the edible coating comprises scalenohedral calcium carbonate particles in the amount of from about 1 to about 30 wt% of the finished edible coating, and wherein about 20 to about 50 weight % of the particles have a median particle size of from 0.5 to 1 μm.
Regarding claims 4 and 19, Reed, Schad, Robbins and Ben-Yoseph do not disclose from about 20 to about 50 weight % of a total amount of the scalenohedral calcium carbonate particles have a median particle size of from about 1 to about 3 μm as in claim 4. Further, Reed, Schad, Robbins and Ben-Yoseph do not disclose a remainder of the total amount of scalenohedral calcium carbonate particles having a median particle size of about 5 μm as in claim 19.
The scalenohedral calcium carbonate particle compositions shown in Reed as modified by Schad, Robbins and Ben-Yoseph and those in ViCAlity appear to be the same precipitated scalenohedral calcium carbonate particles with varying particle sizes. Schad at col 3, line 65 to col. 4, line 2 and ViCAlity at page 1 both disclose precipitated scalenohedral calcium carbonate particles. Further, ViCAlity at page 2, left-hand column in the chart entitled “Typical Physical Properties” discloses a particle size distribution having a mode peak at 2.0 µm. ViCAlity also discloses a regular particle size weight distribution wherein the width of the upper half and the width of the lower half of a distribution are equal to each other.
Accordingly regarding instant claim 4, regardless of the median particle size selected, which is arbitrarily selected anywhere in the distribution, ViCAlity discloses that half of the number of particles in its distribution having any selected median particle size, such as 3 µm, would have a particle size greater than that average particle size; and, because bigger particles weigh more than smaller particle, less than 50 wt% of the particles disclosed in ViCAlity would have a particle size of 3 µm or less, while a small percent of the particles will have a particle size of less than 1 µm. Accordingly, in a distribution of particles having a median particle size of 3 µm in ViCAlity, from about 10 wt% to about 50 wt% will have a median particle size of from about 1 to about 3 µm as in claim 4.
Regarding instant claim 19, ViCAlity at page 2, right-hand, bottom Table discloses a weight average particle size distribution as a regular parabolic bell curve having a sharp lower end cut-off at 1 µm, a sharp cut-off at some point above 5 µm and which extends from scalenohedral calcium carbonate particles of 1 μm in size and includes scalenohedral calcium carbonate particles of above 5 µm in size. Accordingly, a fraction of the largest particles in the ViCAlity particle distribution has a median particle size of about 5 µm as in claim 19.
The Office considers the precipitated scalenohedral calcium carbonate particles of ViCAlity comprising a regular distribution of particles comprising and having median particle sizes selected from 1 μm or more and up to 5 µm to be the same as the claimed scalenohedral calcium carbonate particles. Accordingly, absent a clear showing as to how the particle size distribution of the scalenohedral calcium carbonate particles in Reed as modified by Schad, Robbins and ViCAlity differs from that of the scalenohedral calcium carbonate particles as claimed, the Office considers the scalenohedral calcium carbonate particles of Reed as modified by Schad, Robbins, Ben-Yoseph and ViCAlity to have a median particle size such that a total amount of about 20 to about 50 weight % of a total amount of the scalenohedral calcium carbonate particles have a median particle size of from about 1 μm to about 3 μm as in claim 4 and a remaining portion of the particles having a median particle size of about 5 μm as in claim 19. See MPEP 2112.01.I.
Claims 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins) and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph) as applied to claim 1 above, and further in view of WO 2007/076170 A2 to Yang (Yang), of record.
As applied to claim 1, Reed at Examples 3 and 4 as modified by Schad at Example 26 and Table 4, Robbins at [0069], [0079] and [0099] and Ben-Yoseph at [0030] and [0031] discloses finished edible coatings prepared as one or more syrup layers from a sugar syrup and including four sections wherein one section adheres to an edible core, one section comprises scalenohedral calcium carbonate particles, one section comprises a colorant, and one section is free from scalenohedral calcium carbonate particles and the second section that includes a higher weight ratio of the scalenohedral calcium carbonate particles than the first section. The Reed as modified by Schad, Robbins and Ben-Yoseph finished edible coatings impart opacity or white color and the edible coating comprises scalenohedral calcium carbonate particles in the amount of from about 1 to about 30 wt% of the finished edible coating, and wherein about 20 to about 50 weight % of the particles have a median particle size of from 0.5 to 1 μm.
Reed, Schad, Robbins and Ben-Yoseph do not disclose a coating comprising chocolate as in claim 26 and does not disclose a chocolate applied directly to an edible core as in claim 27.
Yang at Abstract discloses multilayered confectionary products comprising a core and (at [0039]) multiple shells wherein (at [0045]) the core can comprise gum, candy or chocolate, and each shell can comprise a compound coating or chocolate. At [0017], Yang discloses that coating shells can be used to prevent oil migration. At Example 1 on page 19, Yang discloses a gum having one or more pan coating layers and a chocolate layer as part of the coating.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Yang for Reed as modified by Schad, Robbins and Ben-Yoseph to include chocolate in its coating. All references disclose candy or gum comprising shell candy coatings, including panned coatings. The ordinary skilled artisan working in Reed would have desired to include chocolate in one or more layers of a coating on candy, gum or chocolate to add to the available flavor combinations for a given product, while including at least one hard pan shell coating as in Reed under a chocolate layer or over it, including as a layer applied directly to an edible core to prevent oil migration from chocolate layers into other shell layers or into the core layer as in Yang. Because chocolate can melt or bleed , the ordinary skilled artisan in Reed as modified by Schad, Robbins and Ben-Yoseph would have desired to put a chocolate layer directly on a center both to enable formation of a shell and as a matter of obvious rearrangement of coating layers or sections because Yang discloses at [0045] that any shell or coating can comprise chocolate; and (at [0017]) Yang discloses that coating shells can be used to prevent oil migration which would include melting.
Claims 28 and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins) and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph) as applied to claim 1 above, and further in view of US2009/0304856 A1 to Chitikov et al (Chitikov).
Claim 30 recites a ratio of sucrose syrup, corn syrup and scalenohedral calcium carbonate particles without defining the solids level in the syrup. The Office interprets each of the recited corn syrup and sucrose syrup broadly to include any solids level up to 100 wt% solids.
As applied to claim 1, Reed at Examples 3 and 4 as modified by Schad at Example 26 and Table 4, Robbins at [0069], [0079] and [0099] and Ben-Yoseph at [0030] and [0031] discloses finished edible coatings prepared as one or more syrup layers from a sugar syrup and including four sections wherein one section adheres to an edible core, one section comprises scalenohedral calcium carbonate particles, one section comprises a colorant, and one section is free from scalenohedral calcium carbonate particles and the second section that includes a higher weight ratio of the scalenohedral calcium carbonate particles than the first section. The Reed as modified by Schad, Robbins and Ben-Yoseph finished edible coatings impart opacity or white color and the edible coating comprises scalenohedral calcium carbonate particles in the amount of from about 1 to about 30 wt% of the finished edible coating, and wherein about 20 to about 50 weight % of the particles have a median particle size of from 0.5 to 1 μm.
Regarding instant claims 28 and 30, Reed as modified by Schad, Robbins and Ben-Yoseph does not disclose a first section of an edible coating that is made from a composition of a sucrose syrup, a corn syrup and scalenohedral calcium carbonate particles in a ratio of 75:5:20 by weight percent (wt%) as in claim 28 or that comprises as the coating composition for making the first section a sucrose syrup, a corn syrup and scalenohedral calcium carbonate particles in a ratio of 75:5:20 by weight percent (wt%) as in claim 30. However, Reed at col. 3, lines 21-30 discloses coatings made from syrups wherein the coatings comprise 50 to 100 wt% of isomaltulose, a sugar, and discloses at col. 6, lines 12-21 discloses coatings comprising softeners. The claimed amount of 75 wt% sucrose syrup and sucrose lies within the range disclosed in Reed. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Reed would have found it obvious to use a coating composition and make a first section coating comprising the claimed amount of a sugar syrup because Reed discloses that such an amount makes a desirable confectionary coating syrup and coating.
Chitikov at Abstract discloses coated chewing gum made from coatings comprising sugar syrup, wherein at [0031] plasticizers or softeners in the gum include corn syrup and comprise from 0.5 to 15 wt%, within which range the claimed 5 wt% of corn syrup lies. Chitikov discloses at [0040] the coating comprising sweetener, including sucrose. Further, Chitikov at [0039] discloses that the gum may comprise a coating in the amount of from 20 to 75 wt% of the gum; and, further, discloses (at [0040]) corn syrup as a panning modifier. The 0.5 to 15 wt% of corn syrup in a gum includes the amount in the coating composition and product, within which the claimed 5 wt% lies. See MPEP 2144.05.I. The ordinary skilled artisan in Chitikov would have found it obvious to use the claimed amount of corn syrup in its gum coating syrup and in the finished coating because Chitikov discloses that the claimed amount of corn syrup is suitable as a panning coating modifier.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Chitikov for Reed, Schad, Robbins and Ben-Yoseph to use sucrose syrup as in Chitikov and include an amount of 5 wt% corn syrup in the first section of its edible coating as in claim 28 and in the coating composition applied to make the first section coating as in Chitikov as in claim 30. All references disclose candy or gum comprising shell candy coatings, including panned coatings. The ordinary skilled artisan would have desired to use the claimed amount of scalenohedral calcium carbonate particles and corn syrup and to use sucrose syrup as its sugar to make an edible coating for a food product as in Chitikov which discloses that desirable gum and candy coatings comprises the claimed amount of corn syrup as plasticizer and panning modifier and comprise sucrose as a sweetener.
Regarding instant claim 31, Robbins discloses at [0079] syrup coating layers comprising 7 to 12 wt% of precipitated calcium carbonate particles the total weight of the coating composition, which the claimed coating from a composition of sugar (at [0069]) comprising 60 to 80 wt% sugar, or a ratio of sugar to particles of 60:12 to 80:7, which is normalized at 100 parts to 83.3:16.6 to about 92:8 and which the claimed 90:10 lies within. See MPEP 2144.05.I. In view of Ben-Yoseph at [0030] which discloses using less opacifier in a second coating section than in a base or first section, the ordinary skilled artisan in Reed as modified by Robbins would have found it obvious to use the coating syrup as in Robbins having a 90:10 weight ratio of the sucrose syrup of scalenohedral calcium carbonate particles as in Schad to form a second coating section as a transition from a white layer to a color layer or other subsequent layer without calcium carbonate as in Ben-Yoseph.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over US 5248508 to Reed et al. (Reed) in view of US 9492395 B2 to Schad et al. (Schad), US 2015/0374009 A1 to Robbins (Robbins) and WO2018/156715 A1 to Ben-Yoseph et al. (Ben-Yoseph) as applied to claim 1 above, and further in view of US2016/0015054 A1 to Stawski et al. (Stawski), of record.
As applied to claim 1, Reed at Examples 3 and 4 as modified by Schad at Example 26 and Table 4, Robbins at [0079] and [0099] and Ben-Yoseph at [0030] and [0031] discloses finished edible coatings prepared as one or more syrup layers from a sugar syrup and including four sections wherein one section adheres to an edible core, one section comprises scalenohedral calcium carbonate particles, one section comprises a colorant, and one section is free from scalenohedral calcium carbonate particles and the second section that includes a higher weight ratio of the scalenohedral calcium carbonate particles than the first section. The Reed as modified by Schad, Robbins and Ben-Yoseph finished edible coatings impart opacity or white color and the edible coating comprises a ratio of total sugar syrup to scalenohedral calcium carbonate particles of from 88:12 to 90:10, and wherein about 20 to about 50 weight % of the particles have a median particle size of from 0.5 to 1 μm.
Reed as modified by Schad, Robbins and Ben-Yoseph does not disclose an example of a first section of an edible coating wherein the first section includes 30 applications, wherein 15 applications of the at least one syrup layer which includes the scalenohedral calcium carbonate particles, wherein the 15 applications of the at least one syrup layer are dried before a second 15 applications are applied and dried, and wherein the second section includes one or more layers built up from 5 equal applications of the composition that includes the scalenohedral calcium carbonate particles.
Stawski at FIG. 1 discloses an edible coating as a panned syrup coating for a confection comprising several layers. At [0041], Stawski discloses that the first section and second section, as well as any subsequent coating section can be coated in from 1 to 20 layers as desired in any application.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Reed, Schad, Robbins and Ben-Yoseph to form and edible coating wherein the first section includes 15 applications of the at least one syrup layer which includes the scalenohedral calcium carbonate particles, wherein the 15 applications of the at least one syrup layer are dried before an additional 15 applications are applied and dried, and wherein the second section includes one or more layers built up from 5 equal applications of the composition that includes the scalenohedral calcium carbonate particles. All references disclose candy or gum comprising shell candy coatings, including panned coatings. The ordinary skilled artisan in Reed would have desired to dry any coating layer after coating it and forming subsequent layers in the same manner to prevent them from running together. Further, the ordinary skilled artisan would desire to form any number of layers of a base layer, an opaque layer, a color layer and a top layer for any desired purpose, including at least 15 layers in a first section and at least 5 layers in a second section. The claimed coating layers are each panned in the same way from the same syrup to make the same confectionary coating, as is routine in the art of Reed, Schad, Robbins, Ben-Yoseph and Stawski.
Response to Arguments
In view of the amendment dated December 30, 2025 (amendment), the following outstanding rejections have been withdrawn as moot:
The rejection of claim 29 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to a number of coating applications in a first section.
Regarding the position taken in the remarks accompanying the amendment dated December 30, 2025 (Reply) at pages 8-10 alleging that the art does not disclose a scalenohedral calcium carbonate particles, respectfully Reed, Ben-Yoseph and Robbins were not cited as anticipating, but were combined with Schad to evidence the obviousness of using scalenohedral calcium carbonate particles as an opacifier. The Reply does not question the propriety of that combination.
Regarding the position taken in the Reply at pages 9-10 that somehow the rejection admits that Ben-Yoseph does not disclose in its base sugar layer 110 a first section coating containing opacifier or calcium carbonate particles, respectfully the doctrine of prosecution history estoppel does not apply during prosecution. In any case, even taking everything the Reply states in this regard as true, Ben-Yoseph at page 10 and [0030] discloses the base sugar layer 110 as optional. Further, as stated in the rejection Ben-Yoseph at [0030] discloses in its closest embodiment a base opaque layer 114 or opaque sugar layer as its first section.
Regarding the position taken in the Reply at pages 10-11 that the art does not disclose intentionally varying the weight ratio of scalenohedral calcium carbonate particles to sugar syrup in different coating layers, the Office respectfully disagrees. Ben-Yoseph at [0030] discloses its finished edible coating comprising an opaque sugar layer 114 including the white color additive proximate the center (“first section”), and having thereon a transitional layer 115 (“second section”), and a colored layer 104 (“third section”) coated thereon. Further, at [0031] Ben-Yoseph discloses that its second section transitional layer has a diluted content of colorant, including a white color additive. Further, Robbins at [0079] discloses an overall opacifier content encompassing 1 to 15 wt% of the coating. Because the ordinary skilled artisan in Reed, Robbins and Ben-Yoseph build up coatings in sections to give an overall opacifier content, it is routine in the art for the ordinary skilled artisan to vary the level of scalenohedral calcium carbonate particles as opacifier from layer to layer with the largest proportion in the first section of the coating to meet the overall content of scalenohedral calcium carbonate particles from Robbins. Further, regarding coating composition and coating section concentrations in claim 31, generally, differences in concentration of the opacifier as scalenohedral calcium carbonate particles will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05.II.A.
Conclusion
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/ANDREW E MERRIAM/Examiner, Art Unit 1791