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
Those objections and rejections that are not repeated in this Office Action have been withdrawn.
Claims 1-5, 8-10, 12-14, 19-40 and 42-49 are currently pending and rejected.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 45 and 47 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 45 recites, “sealing the mold with a lidding material to enclose the chewing gum product within the mold, after heat tempering and prior to shipment of the chewing gum product.”
This limitation is not reasonably supported by Applicant’s original disclosure. On page 13, paragraph 46-47, the specification as filed refers to molten gum deposited into molds and blister sheets which are sealed and then heat tempered (aged at 26-28°C). Therefore, the above limitation to claim 45 presents new matter.
Claim 47 recites, “wherein the gum base comprises at least one of saturated fats and waxes having a melting point above 30°C, and wherein at least one of saturated fats and waxes remains crystalline during the heat tempering at the temperature of between 25°C-30°C.” This limitation raises an issue of new matter, because the specification as filed does not support “at least one of saturated fats and waxes having a melting point above 30°C.” That is, this limitation refers to a range that is outside the bounds of Applicant’s original disclosure. At best, paragraph 25 as filed refers to saturated fats and/or microcrystalline waxes having a melting point in the range of 50-60°C. Additionally, paragraphs 24 and 51 refer to crystals and crystallization but these portions of the specification as filed do not specifically recite that at least one of saturated fats and waxes remains crystalline during heat tempering. Therefore, the limitation is new matter.
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.
Claims 1-5, 8, 9, 19-35 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Kabse (US 20080166449) in view of Bang-Madsen (US 20110064783) and Liu (WO 2017015031) and in further view of Sengupta (US 20200178558) and in further view of Lyzenga (US 20200390123).
Regarding claims 1 and 19, Kabse teaches a method of producing a chewing gum product comprising, preparing a chewing gum composition comprising at least a gum base, a flavor and at least two sugar alcohols, during a mixing step (see paragraph 106; see Table 11, on page 56, where at least two sugar alcohols are used in example 25, 26, 28 for instance, together with a gum base, and flavor; see also paragraph 12 which teaches mixing saccharide components with a gum base).
Kabse teaches heating and holding the chewing gum composition at a temperature sufficient to form a molten chewing gum composition that can be deposited because at paragraph 498, Kabse teaches a molten gum composition which is then tempered on a belt (see also, At paragraph 403, Kabse further teaches that the gum composition is in a molten state: “…candy and gum base are partly or wholly in a molten state…”).
Kabse further teaches depositing the molten chewing gum composition, because at paragraph 498, Kabse teaches that the molten composition is deposited onto a belt or table.
Regarding the step of, “heat tempering the deposited chewing gum composition at a temperature of between 25°C-30°C for a heat tempering time that is reduced by at least 20% compared to tempering the deposited chewing gum composition at 20°C, wherein the heat tempering time is at least 2 days and less than 10 days,” at paragraph 498 Kabse teaches tempering of the deposited chewing gum composition but Kabse is not specific or limiting as to the particular heat tempering time and temperatures.
Therefore, the claim differs in the specific temperature for the heat tempering being between about 25-30°C for a heat tempering time of at least 2 days and less than 10 days.
However, Bang-Madsen (US 20110064783) teaches chewing gum compositions that comprise a chewing gum base (paragraph 206), two sugar alcohols (paragraph 210) and a flavor (paragraph 207) that have been stored for one week (i.e. 7 days) (see paragraph 113) using temperatures such as 25-30°C for the purpose of adjusting the release of flavor from the gum (see paragraph 115). That is, Bang-Madsen is teaching a step of heat tempering because the reference is teaching storing the gum under controlled conditions, and which controlled conditions can use temperatures such as 25-30°C. Liu (WO 2017015031) also evidences that storage of a chewing gum that can comprise a gum base, at least two sugar alcohols (paragraph 61) and flavors (paragraph 59) under controlled conditions and for more than 7 days (see paragraph 69 – 3-4 weeks) can be construed as tempering because the reference is teaching aging or tempering under controlled conditions, for achieving the desired texture (paragraph 69). Additionally, Sengupta (US 20200178558) has been further relied on to teach that it has been conventional to use tempering temperatures for chewing gum compositions, such as from 25°C-75°C (see paragraph 101-103) for providing a degree of hardening to the chewing gum (see paragraph 102: “Holding either the confectionery mass or confectionery sheet at an elevated temperature and an ambient or target humidity for any length of time increases the hardness of the confectionery compared to a conventionally manufactured confection”; see also paragraphs 94, 95, 101-103). Therefore, the prior art as a whole is teaching and suggesting tempering temperatures and times within the claimed range.
Therefore, it would have been obvious to one having ordinary skill in the art that the prior art is suggesting elevated temperatures such as 25-30°C for controlled storage of a chewing gum composition and where the gum can be exposed to such conditions for 7 days for the purpose of controlling the flavor release of the gum and which storage would also have achieved a desired hardness and texture to the gum. Like Bang-Madsen, Kabse also teaches flavor release in the gum (see Kabse paragraph 44). Therefore, one having ordinary skill in the art would have been motivated to modify Kabse and use conditions such as heat tempering at 25-30°C for 7 days for the purpose of achieving the desired texture to the gum was well as for controlling the flavor release from the gum.
Regarding the limitation of, “the heat tempering step forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product” it is noted that since the prior art is teaching a similar composition with similar heat tempering conditions, it would have been reasonable for one having ordinary skill in the art to have expected the prior art to also have formed some degree of crust so as to allow for the completion of the tempering step during some form of shipping of the chewing gum product.
Further regarding the forming of a crust, Sengupta teaches that the presence of crystalline fats and wax such as petroleum wax contribute to forming a crust (i.e. hardening of the gum) (see paragraphs 2, 22-24, 48, 83, 89, 94 and 95). This is further supported by Liu at paragraph 69 where tempering can maintain not less than 50% of the crystallinity of fats and oils for achieving the desired texture. Kabse also teaches the desirability to control the degree of crunch (see paragraph 419, 423) thus teaching and suggesting the formation of a crust.
Additionally, Lyzenga (US 20200390123) also teaches that conditioning of the chewing gum has been useful for increasing the hardness so as to make the chewing gum less susceptible to damage (see paragraph 3, 22).
Therefore, it would have been obvious to one having ordinary skill in the art to have used the heat tempering as taught by the prior art to also harden and form a crust for ensuring that the deposited chewing gum retained its shape and was less susceptible to damage.
Further regarding the new limitation of, “wherein tempering of the chewing gum product is completed at ambient conditions during shipment,” Lyzenga (US 20200390123) teaches that it has been desirable to condition chewing gum (paragraph 22) while in a package (see paragraph 77; see paragraph 152) for increasing manufacturing efficiency (see paragraph 3) and is therefore suggesting some degree of tempering during some form of shipping since the packaged product would be transported (i.e. shipped). Lyzenga teaches that this can make the manufacturing process more efficient (see paragraph 3) and where conditions that can be used for completing the tempering can occur after packaging (see paragraph 152). Lyzenga also therefore encompasses tempering being completed at any point after being packaged including some type of shipping/transport of any degree. Sengupta also teaches that after a heat tempering, (see figure 8 and 9, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours; paragraph 107), there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89), thus reading on some form of ambient conditions. Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the combination such that there is additional tempering at ambient conditions during shipping would have been obvious to one having ordinary skill in the art for the purpose of making the manufacturing of the chewing gum more efficient.
Regarding claims 2-5, 8 and 9 in view of the prior art teaching tempering times within the range of at least 2 days and less than 10 days and temperatures such as 25°C and 30°C, the combination teaches total tempering times and temperatures that would also have been reasonably expected to reduce total tempering time by at least 20-60%.
Regarding claim 20, Kabse teaches at paragraph 498 that after tempering, the chewing gum composition can be cut and then wrapped. This teaches that no additional heat tempering is “required” after the heat tempering. It is further noted that the limitation of “does not require additional heat tempering” does not positively recite excluding additional tempering from being performed.
Regarding claims 21-25, it is noted that a limitation of “the chewing gum requires additional tempering” does not mean that these steps are performed in the claimed process, but rather also reads on the additional tempering occurring at some other point in time. Therefore, the prior art is seen to be capable of performing an additional tempering.
In any case, it is noted that Sengupta further teaches multiple passes of heat treatment of a chewing gum base (see figure 9, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours) and after this heat treatment, there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89). Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the Kabse combination and to use additional tempering step that is at ambient conditions of 20°C and between about 18 to about 30% for less than one week and which occurs after heat treatment would have been obvious to one having ordinary skill in the art, for the purpose of controlling the hardness of the chewing gum.
Further regarding claim 25, it is noted that as the combination teaches tempering at ambient temperatures and as the claim does not specifically recite an active demolding step, it is seen that the chewing gum product as taught by the combination would also have been capable of being demolded without distortion or deformation.
Regarding claims 26-28, Kabse teaches that the chewing gum composition can comprise two sugar alcohols or three sugar alcohols and can comprise a sugar alcohol such as sorbitol (see Table 11, example 25, 26).
Regarding claim 29, example 25 and 26 of Kabse, suggests a combination of xylitol and sorbitol (see Table 11).
Regarding claims 30-32, examples 25 and 26 of Kabse suggest a blend of xylitol and isomalt, as well as a binary blend of sorbitol and isomalt, and a blend of erythritol and xylitol (see Table 11). It is noted that claims 29-32 do not limit the sugar alcohol component of the chewing gum composition to only be the two sugar alcohols of the binary blend. Kabse also teaches at paragraph 106-107 that any polyol composition may be included as bulking and sweetening agents (see paragraph 98, 102, 293-294) and to therefore modify Kabse’s examples to use a combination of two or three sugar alcohols, and a binary blend of xylitol and any of sorbitol, isomalt or erythritol as well as a combination of sorbitol and isomalt would have been obvious to one having ordinary skill in the art, for the purpose of achieving the desired bulk sweetness of the chewing gum composition.
Regarding claim 33-35, examples 25 and 26 of Kabse teach two sugar alcohols that can be present at a ratio of 1:1 (see table 11, 20% of erythritol and 20% xylitol), which thus falls within the range as recited in claims 33-35.
Regarding claim 40, Kabse teaches that the chewing gum composition can also comprise high intensity sweeteners (see paragraph 96).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above which relies on Kabse (US 20080166449) as the primary reference, and in further view of Cervenka (US 20170156365) and Detalle (US 20210093562) and as further evidenced by Wu (Surface and Interfacial Tensions of Polymers, Oligomers, Plasticizers and Organic Pigments).
Regarding claim 10, Kabse449 teaches depositing the heated gum composition onto a belt.
Claim 10 differs from the Kabse449 combination in specifically reciting that the molten chewing gum is deposited into a molding device wherein the molding device or a coating layer on a surface of the molding device comprises low surface tension material, less than 35 mN/m.
Cervenka (US 20170156365) teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product. Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448).
To therefore modify the Kabse449 combination and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product.
Further regarding the molding device or a coating layer on a surface of the molding device comprising a low surface tension material, less than 35 mN/m, it is noted that Applicant’s specification discloses at paragraph 52 on page 16 as filed that materials having a surface tension of less than 35 mN/m include fluoropolymers such as polytetrafluroethylene, silicone and polypropylene.
In view of this, it is noted that Detalle teaches that the molds can be made from polypropylene (see paragraph 338). Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448). Furthermore, Wu teaches that polypropylene is known to have a surface tension of less than 35, mN/m, such as between 29.4-30.1 (see page 525, Table 2). Further on page 524, Wu teaches that silicone surfaces are known to have a surface tension of 20 or 26 mN/m (see Table 1 on the top right). This is further supported by pages 531-532, which teaches polysiloxanes with a surface tension that is less than 35 mN/m.
Therefore, the combination teaches and suggests molding devices into which molten chewing gum can be deposited for shaping which would have been expected to have had a surface tension of less than 35 mN/m.
To modify the combination and to use materials for the mold/blister pack such as polypropylene as well as silicone would have been obvious to one having ordinary skill in the art based on conventional packaging materials for depositing and packaging molten chewing gum as well as for preventing sticking of the gum to the mold.
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above which relies on Kabse (US 20080166449) as the primary reference, and in further view of Hoang (US 20200178557).
Claims 12-14 differ from Kabse combination in specifically reciting the heat tempering occurs at a relative humidity of less than 50%, less than 35% or less than 20%, respectively.
Hoang teaches heat tempering of chewing gum using a relative humidity of 7-45% (see paragraph 68). Hoang teaches that such low humidity can result in a chewing gum producing having a soft core and a friable coating (see paragraph 87). It is noted that at paragraph 89, Sengupta also suggests a relative humidity of 7-45%.
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Kabse’s tempering conditions to use a relative humidity that is less than 20%, for example, for the purpose of facilitating providing the desired softness/hardness of the chewing gum core and the texture of the coating.
Claims 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above which relies on Kabse (US 20080166449) as the primary reference, and in further view of Cervenka (US 20170156365) and Detalle (US 20210093562).
Regarding claim 36, Kabse teaches depositing the heated gum composition onto a belt but claim 36 differs from the Kabse combination in specifically reciting deposition of the molten chewing gum composition on a conveyor belt.
Claim 37-39 differ in specifically reciting that the surface onto which the molten chewing gum composition is deposited is a mold (claim 37), that is part of the consumer packaging (claim 38) and is a blister of a blister pack (claim 39).
Cervenka teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product. Kabse teaches that the chewing gum product can be packaged in blister packs (see paragraph 448).
To therefore modify Kabse combination and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product.
Claims 42, 43 and 46-49 are rejected under 35 U.S.C. 103 as being unpatentable over Kabse (US 20080166449) in view of Cervenka (US 20170156365) and Detalle (US 20210093562) and in further view of Bang-Madsen (US 20110064783), Liu (WO 2017015031) and Sengupta (US 20200178558). Inchem (“Paraffin Wax”), MacLeod (US 3573933 cited on PTO892 mailed 10/20/2023) and “HCI Microcrystalline Wax” (cited on PTO892 mailed 10/20/2023) have been relied on as evidence.
Regarding claim 42, Kabse teaches a method of producing a chewing gum product comprising, preparing a chewing gum composition comprising at least a gum base, a flavor and at least two sugar alcohols, during a mixing step (see paragraph 106; see Table 11, on page 56, where at least two sugar alcohols are used in example 25, 26, 28 for instance, together with a gum base, and flavor; see also paragraph 12 which teaches mixing saccharide components with a gum base).
Kabse teaches heating and holding the chewing gum composition at a temperature sufficient to form a molten chewing gum composition that can be deposited because at paragraph 498, Kabse teaches a molten gum composition which is then tempered on a belt (see also, At paragraph 403, Kabse further teaches that the gum composition is in a molten state: “…candy and gum base are partly or wholly in a molten state…”).
Kabse further teaches depositing the molten chewing gum composition, because at paragraph 498, Kabse teaches that the molten composition is deposited onto a belt or table. Kabse’s chewing gum product would obviously have had a three-dimensional shape.
Claim 42 differs from the above combination in specifically reciting, depositing the molten chewing gum composition into a mold defining the three-dimensional shape.
Cervenka teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79) and where the mold also defines the three-dimensional shape (see figure 1A, 1B).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product. Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448).
To therefore modify Kabse449 and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product into a particular three dimensional shape would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product and thus making the process more efficient.
At paragraph 498 Kabse teaches tempering of the deposited chewing gum composition but is not specific or limiting as to the particular heat tempering time and temperatures.
Claim 42 differs from the above combination in specifically reciting, “heat tempering the deposited chewing gum composition at a temperature of between 25°C-30°C for a heat tempering time of at least 2 days and less than 10 days,”
Regarding heat tempering, Bang-Madsen (US 20110064783) teaches chewing gum compositions that comprise a chewing gum base (paragraph 206), two sugar alcohols (paragraph 210) and a flavor (paragraph 207) that have been stored for one week (i.e. 7 days) (see paragraph 113) using temperatures such as 25-30°C for the purpose of adjusting the release of flavor from the gum (see paragraph 115). That is, Bang-Madsen is teaching a step of heat tempering because the reference is teaching storing the gum under controlled conditions, and which controlled conditions can use temperatures such as 25-30°C. Liu (WO2017015031) also evidences that storage of a chewing gum that can comprise a gum base, at least two sugar alcohols (paragraph 61) and flavors (paragraph 59) under controlled conditions and for more than 7 days (see paragraph 69 – 3-4 weeks) can be construed as tempering because the reference is teaching aging or tempering under controlled conditions, for achieving the desired texture (paragraph 69). Additionally, Sengupta (US 20200178558) has been further relied on to teach that it has been conventional to use tempering temperatures for chewing gum compositions, such as from 25°C-75°C (see paragraph 101-103) for providing a degree of hardening to the chewing gum (see paragraph 102: “Holding either the confectionery mass or confectionery sheet at an elevated temperature and an ambient or target humidity for any length of time increases the hardness of the confectionery compared to a conventionally manufactured confection”; see also paragraphs 94, 95, 101-103). Therefore, the prior art as a whole is teaching and suggesting tempering temperatures and times within the claimed range.
Therefore, it would have been obvious to one having ordinary skill in the art that the prior art is suggesting elevated temperatures such as 25-30°C for controlled storage of a chewing gum composition and where the gum can be exposed to such conditions for 7 days for the purpose of controlling the flavor release of the gum and which storage would also have achieved a desired hardness and texture to the gum. Like Bang-Madsen, Kabse also teaches flavor release in the gum (see Kabse paragraph 44). Therefore, one having ordinary skill in the art would have been motivated to modify Kabse and use conditions such as heat tempering at 25-30°C for 7 days for the purpose of achieving the desired texture to the gum was well as for controlling the flavor release from the gum.
Regarding the limitation of, “wherein the heat tempering forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product having the three-dimensional shape, and wherein the chewing gum product retains the three-dimensional shape without distortion or deformation upon removal from the mold,” it is noted that since the prior art is teaching a similar composition with similar heat tempering conditions, it would have been reasonable for one having ordinary skill in the art to have expected the prior art to also have formed some degree of crust so as to allow for the completion of the tempering step during some form of shipping of the chewing gum product.
Further regarding the forming of a crust, Sengupta teaches that the presence of crystalline fats and wax such as petroleum wax contribute to forming a crust (i.e. hardening of the gum) (see paragraphs 2, 22-24, 48, 83, 89, 94 and 95). This is further supported by Liu at paragraph 69 where tempering can maintain not less than 50% of the crystallinity of fats and oils for achieving the desired texture. Kabse also teaches the desirability to control the degree of crunch (see paragraph 419, 423) thus teaching and suggesting the formation of a crust.
Therefore, it would have been obvious to one having ordinary skill in the art to have used the heat tempering as taught by the prior art to also harden and form a crust for ensuring that the deposited chewing gum retained its shape and was less susceptible to damage.
Further regarding the gum retaining its three-dimensional shape without distortion or deformation upon removal, since the prior art combination is teaching a crust that has been formed on the chewing gum product as a result of tempering, it would have been reasonable to expect that the product would also have retained its shape upon removal from the mold, especially since this would also have been commensurate with how one removed the tempered chewing gum product from the mold.
Regarding claim 43, in view of Detalle, the combination teaches that the mold is a blister of a blister pack, which would obviously have formed part of consumer packaging for the chewing gum product (See figure 1A, 1B and paragraphs 76-79).
Regarding claim 46, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that the crust would have been thicker than a crust that would form on the deposited chewing gum composition at 20°C for an identical heat tempering time.
Regarding claim 47, Kabse teaches that the gum base can also comprise high melting point waxes such as candelilla and petroleum wax (see paragraph 88) and can also comprise fats such as beef tallow, which is inherently a saturated fat with a crystalline structure (see paragraph 88), as well as microcrystalline wax (see paragraph 92) which is also disclosed by Applicant. INCHEM evidences that petroleum wax, such as paraffin wax is a crystalline solid with a melting point that is greater than 30°C. MacLeod evidences that microcrystalline wax used in a gum base for chewing gum compositions can have a melting point of 130°F-140°F (i.e. 54-60°C), as well as between 130-170°F (54-76°C) (column 3, lines 26-41), for flexibility of the chewing gum (column 2, lines 43-49). “HCI Microcrystalline Wax” evidences that microcrystalline wax are also known to have a melting point of 62-66°C (see the bottom of page 1).
Regarding claim 48, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that the heat tempering time would have been reduced by at least 20% compared to a time required to temper the deposited chewing gum composition at 20°C to form a crust of tempered material of an identical thickness.
Regarding claim 49, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that “upon” removal the chewing gum product would not leave a visible residue on the mold. This is further supported by Sengupta further teaching that the purpose of the conditioning process is to provide a hardness to the gum and that higher hardness to the gum can be achieved using a heat hold prior to another conditioning (see paragraph 123). Sengupta further teaches increased crystallization can achieve a higher increase in hardness (see paragraph 137). Since Kabse also teaches the desire to form a harder crust (see at least, paragraph 48, “initial harness similar to hard candy”) such that it would have been reasonable for one having ordinary skill in the art to also have resulted in no visible residue upon removal from a mold.
Claim 44 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 42 above, and in further view of Wu (Surface and Interfacial Tensions of Polymers, Oligomers, Plasticizers and Organic Pigments).
Claim 44 differs from the combination as applied to claim 42 above in specifically reciting that the mold or a coating layer on a surface of the mold comprises a material having a surface tension of less than 35 mN/m.
It is noted that Applicant’s specification discloses at paragraph 52 on page 16 as filed that materials having a surface tension of less than 35 mN/m include fluoropolymers such as polytetrafluroethylene, silicone and polypropylene.
In view of this, it is noted that Detalle teaches that the molds can be made from polypropylene (see paragraph 338). Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448). Furthermore, Wu teaches that polypropylene is known to have a surface tension of less than 35, mN/m, such as between 29.4-30.1 (see page 525, Table 2). Further on page 524, Wu teaches that silicone surfaces are known to have a surface tension of 20 or 26 mN/m (see Table 1 on the top right). This is further supported by pages 531-532, which teaches polysiloxanes with a surface tension that is less than 35 mN/m.
Therefore the combination teaches and suggests molds into which molten chewing gum can be deposited for shaping which would have been expected to have had a surface tension of less than 35 mN/m.
To modify the combination and to use materials for the mold/blister pack such as polypropylene as well as silicone would have been obvious to one having ordinary skill in the art based on conventional packaging materials for depositing and packaging molten chewing gum as well as for preventing sticking of the gum to the mold.
Claim 45 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 42 above, and in further view of Lyzenga (US 20200390123).
Regarding claim 45, the combination as applied to claim 42 is suggesting heat tempering while in a mold.
Claim 45 differs from the combination as applied to claim 42 in specifically reciting, “sealing the mold with a lidding material to enclose the chewing gum product within the mold, after heat tempering and prior to shipment of the chewing gum product; and shipping the chewing gum product, wherein tempering of the chewing gum product is completed at ambient conditions during shipment of the chewing gum product.”
Lyzenga (US 20200390123) teaches that it has been desirable to further condition a chewing gum (paragraph 22) while in a sealed package (see paragraph 77; see paragraph 152) for increasing manufacturing efficiency (see paragraph 3) and is therefore suggesting some degree of tempering during some form of shipping since the packaged product would be transported (i.e. shipped). Lyzenga teaches that this can make the manufacturing process more efficient (see paragraph 3) and where any temperature conditions can be used for completing the tempering after packaging (see paragraph 152). Lyzenga also therefore encompasses tempering being completed at any point after being packaged including some type of shipping/transport of any degree. Sengupta also teaches that after a heat tempering, (see figure 9, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours), there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89), thus reading on some form of ambient conditions. Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the combination which teaches heat tempering after depositing into the mold and to then seal the mold and subsequently further temper at ambient conditions during shipping would have been obvious to one having ordinary skill in the art for the purpose of making the manufacturing of the chewing gum more efficient.
Claims 1-5, 8, 19-28 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Bang-Madsen (US 20110064783) in view of Liu (WO 2017015031) and Sengupta (US 20200178558) and in further view of Lyzenga (US 20200390123).
Regarding claims 1 and 19, Bang-Madsen teaches chewing gum compositions that comprise a chewing gum base (paragraph 206), two sugar alcohols (paragraph 210) and a flavor (paragraph 207) which are mixed together during a mixing step (see paragraph 155) and which mixture has been heated and held at a temperature to form a molten chewing gum composition (see paragraph 155), which molten composition is deposited (see paragraph 286 – discharged at 120°C). At paragraph 113-115, Bang-Madsen teaches storing the deposited chewing gum composition for one week (i.e. 7 days) (see paragraph 113) using temperatures such as 30°C for the purpose of adjusting the release of flavor from the gum (see paragraph 115). That is, Bang-Madsen is teaching a step of heat tempering because the reference is teaching storing the gum under controlled conditions, and which controlled conditions can use temperatures such as 25-30°C.
It is further noted that Liu (WO 2017015031) and Sengupta (US 20200178558) provide further evidence that Bang-Madsen’s teachings encompass a heat tempering step, because Liu teaches chewing gum products that can be tempered for more than 7 days (see paragraph 69 - 3 or 4 weeks), for achieving the desired texture. Liu teaches chewing gum compositions with a gum base, as well as at least two sugar alcohols (paragraph 61) and flavors (paragraph 59). Liu also evidences that storage of a chewing gum under controlled conditions can be construed as tempering because the reference is teaching aging or tempering under controlled conditions (paragraph 69).
Sangupta teaches at paragraphs 101-102 that there is a treatment station that holds a chewing gum composition at a temperature between 25-75°C or 30-65°C, for the purpose of controlling the hardening of the chewing gum composition (see paragraph 102: “Holding either the confectionery mass or confectionery sheet at an elevated temperature and an ambient or target humidity for any length of time increases the hardness of the confectionery compared to a conventionally manufactured confection”; see also paragraphs 94, 95, 101-103) thus further suggesting that Bang-Madsen’s teachings would also provide heat tempering of the chewing gum composition.
Therefore, the prior art as a whole is teaching and suggesting tempering temperatures within the claimed range.
Regarding the limitation of, “wherein the heat tempering step forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product,” since the prior art is teaching a similar composition with similar heat tempering conditions, it would have been reasonable for one having ordinary skill in the art to have expected the prior art to also have formed some degree of crust so as to allow for the completion of the tempering step during some form of shipping of the chewing gum product.
Further regarding the forming of a crust, Sengupta teaches that the presence of crystalline fats and wax such as petroleum wax contribute to forming a crust (i.e. hardening of the gum) (see paragraphs 2, 22-24, 48, 83, 89, 94 and 95). This is further supported by Liu at paragraph 69 where tempering can maintain not less than 50% of the crystallinity of fats and oils for achieving the desired texture. Bang-Madsen also teaches using waxes and fats for controlling the texture of the chewing gum (see paragraph 205).
Lyzenga (US 20200390123) also teaches that conditioning of the chewing gum has been useful for increasing the hardness to make the chewing gum less susceptible to damage (see paragraph 3, 22).
Therefore, it would have been obvious to one having ordinary skill in the art to have used the heat tempering as taught by Bang-Madsen to also harden and form a crust for ensuring that the deposited chewing gum retained its shape and was less susceptible to damage.
Further regarding the new limitation of, “the tempering of the chewing gum product is completed at ambient conditions during shipment,” the claim differs from the above combination in this regard.
However, Lyzenga (US 20200390123) teaches that it has been desirable to further condition chewing gum (paragraph 22) while in a package (see paragraph 77; see paragraph 152) and is therefore suggesting some degree of tempering during some form of shipping since the packaged product would be transported (i.e. shipped). Lyzenga teaches that this can make the manufacturing process more efficient (see paragraph 3) and where any temperature conditions can be used for completing the tempering after packaging (see paragraph 152). Lyzenga also therefore encompasses tempering being completed at any point after being packaged including some type of shipping/transport of any degree. Sengupta also teaches that after a heat tempering, (see figure 8 and 9, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours; paragraph 107), there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89), thus reading on some form of ambient conditions. Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the combination such that there is additional tempering at ambient conditions during shipping would have been obvious to one having ordinary skill in the art for the purpose of making the manufacturing of the chewing gum more efficient.
Regarding claims 2-5, 8 and 9 in view of Bang-Madsen teaching heat tempering times within the range of at least 2 days and less than 10 days and temperatures such as 25°C and 30°C, the combination teaches total tempering times and temperatures that would also have been reasonably expected to reduce total tempering time by at least 20-60%.
Regarding claim 20, at paragraph 107-115 and 132, Bang-Madsen that a packaging step is occurring after the storage at controlled temperatures and therefore encompasses no additional heat tempering is “required” after the heat tempering. It is further noted that the limitation of “does not require additional heat tempering” does positively recite excluding additional heat tempering from being performed.
Regarding claims 21-25, it is noted that a limitation of “the chewing gum requires additional tempering” does not mean that these steps are performed in the claimed process, but rather also reads on the additional tempering occurring at some other point in time. Therefore, the prior art is seen to be capable of performing an additional tempering.
In any case, it is noted that Sengupta further teaches multiple passes of heat treatment of a chewing gum base (see figure 8, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours) and after this heat treatment, there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89). Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the Bang-Madsen combination and to use additional tempering step that is at ambient conditions of 20°C and between about 18 to about 30% for less than one week and which occurs after heat treatment would have been obvious to one having ordinary skill in the art, for the purpose of controlling the hardness of the chewing gum.
Further regarding claim 25, it is noted that as the combination teaches tempering at ambient and as the claim does not specifically recite an active demolding step, it is seen that the chewing gum product as taught by the combination would also have been capable of being demolded without distortion or deformation.
Regarding claims 26-28, Bang-Madsen teaches that the chewing gum composition can comprise two sugar alcohols or three sugar alcohols including maltitol and erythritol (see paragraph 210).
Regarding claim 40, Bang-Madsen teaches that the chewing gum composition can also comprise emulsifiers or high intensity sweeteners (see paragraph 155).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above which relies on Bang-Madsen (US 20110064783) as the primary reference, and in further view of Cervenka (US 20170156365) and Detalle (US 20210093562) and as further evidenced by Wu (Surface and Interfacial Tensions of Polymers, Oligomers, Plasticizers and Organic Pigments).
Regarding claim 10, the claim 10 differs from the Bang-Madsen combination in specifically reciting that the molten chewing gum is deposited into a molding device wherein the molding device or a coating layer on a surface of the molding device comprises low surface tension material, less than 35 mN/m.
Cervenka teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product.
To therefore modify the combination and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product.
Further regarding the molding device or a coating layer on a surface of the molding device comprising a low surface tension material, less than 35 mN/m, it is noted that Applicant’s specification discloses at paragraph 52 that materials having a surface tension of less than 35 mN/m include fluoropolymers such as polytetrafluroethylene, silicone and polypropylene.
In view of this, it is noted that Detalle teaches that the molds can be made from polypropylene (see paragraph 338). Furthermore, Wu teaches that polypropylene is known to have a surface tension of less than 35, mN/m, such as between 29.4-30.1 (see page 525, Table 2). Further on page 524, Wu teaches that silicone surfaces are known to have a surface tension of 20 or 26 mN/m (see Table 1 on the top right). This is further supported by pages 531-532, which teaches polysiloxanes with a surface tension that is less than 35 mN/m.
Therefore the combination teaches and suggest molding devices into which molten chewing gum can be deposited for shaping which would have been expected to have had a surface tension of less than 35 mN/m.
To modify the combination and to use materials for the mold/blister pack such as polypropylene as well as silicone would have been obvious to one having ordinary skill in the art based on conventional packaging materials for depositing and packaging molten chewing gum as well as for preventing sticking of the gum to the mold.
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above which relies on Bang-Madsen (US 20110064783) as the primary reference, and in further view of Hoang (US 20200178557).
Claims 12-14 differ from Bang-Madsen in specifically reciting the heat tempering occurs at a relative humidity of less than 50%, less than 35% or less than 20%, respectively.
Hoang teaches heat tempering of chewing gum using a relative humidity of 7-45% (see paragraph 68). Hoang teaches that such low humidity can result in a chewing gum producing having a soft core and a friable coating (see paragraph 87). It is noted that at paragraph 89, Sengupta also suggests a relative humidity of 7-45%.
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Bang-Madsen’s tempering conditions to use a relative humidity that is less than 20%, for example, for the purpose of facilitating providing the desired softness/hardness of the chewing gum core and the texture of the coating.
Claims 29-35 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 and 26 above, which relies on Bang-Madsen (US 20110064783) as the primary reference, and in further view of Kabse (US 20080166449).
Regarding claims 29-32, Bang-Madsen teaches combinations of sugar alcohols including xylitol and isomalt as non-limiting examples (see paragraph 210).
Claims 29-32 differ in specifically reciting a blend of xylitol and sorbitol, xylitol and isomalt; sorbitol and isomalt and erythritol and xylitol, respectively.
Kabse teaches a combination of xylitol and sorbitol (see Table 11).
Regarding claims 30-32, examples 25 and 26 of Kabse suggest a blend of xylitol and isomalt, as well as a binary blend of sorbitol and isomalt, and a blend of erythritol and xylitol (see Table 11). It is noted that claims 29-32 do not limit the sugar alcohol component of the chewing gum composition to only be the two sugar alcohols of the binary blend. Kabse also teaches at paragraph 106-107 that any polyol composition may be included as bulking and sweetening agents (see paragraph 98, 102, 293-294) and to therefore modify Bang-Madsen to use a combination of two or three sugar alcohols, and a binary blend of xylitol and any of sorbitol, isomalt or erythritol as well as a combination of sorbitol and isomalt would have been obvious to one having ordinary skill in the art, for the purpose of achieving the desired bulk sweetness of the chewing gum composition.
Regarding claims 33-35, the claims differ from Bang-Madsen in the specifically claimed ratio of the two sugar alcohols.
However, examples 25 and 26 of Kabse teach two sugar alcohols that can be present at a ratio of 1:1 (see table 11, 20% of erythritol and 20% xylitol), which thus falls within the range as recited in claims 33-35.
To therefore modify Bang-Madsen to use a combination of two or three sugar alcohols, and a binary blend of xylitol and any of sorbitol, isomalt or erythritol as well as a combination of sorbitol and isomalt would have been obvious to one having ordinary skill in the art, for the purpose of achieving the desired bulk sweetness of the chewing gum composition.
Claims 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above which relies on Bang-Madsen (US 20110064783) as the primary reference, and in further view of Kabse (US 20080166449), Cervenka (US 20170156365) and Detalle (US 20210093562).
Regarding claim 36, the claim differs from Bang-Madsen in specifically reciting depositing the heated gum composition onto a conveyor belt.
Claim 37-39 differ in specifically reciting that the surface onto which the molten chewing gum composition is deposited is a mold (claim 37), that is part of the consumer packaging (claim 38) and is a blister of a blister pack (claim 39).
Kabse teaches that it has been conventional to deposit a molten chewing gum composition onto a belt for tempering (see paragraph 498). Cervenka teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product. Kabse teaches that the chewing gum product can be packaged in blister packs (see paragraph 448).
To therefore modify Bang-Madsen, and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product.
Claims 42, 43 and 46-49 are rejected under 35 U.S.C. 103 as being unpatentable over Bang-Madsen (US 20110064783) in view of Cervenka (US 20170156365) and Detalle (US 20210093562) and in further view of Liu (WO 2017015031) and Sengupta (US 20200178558). Inchem (“Paraffin Wax”), MacLeod (US 3573933 cited on PTO892 mailed 10/20/2023) and “HCI Microcrystalline Wax” (cited on PTO892 mailed 10/20/2023) have been relied on as evidence.
Regarding claim 42, Bang-Madsen teaches chewing gum compositions that comprise a chewing gum base (paragraph 206), two sugar alcohols (paragraph 210) and a flavor (paragraph 207) which are mixed together during a mixing step (see paragraph 155) and which mixture has been heated and held at a temperature to form a molten chewing gum composition (see paragraph 155), which molten composition is deposited (see paragraph 286 – discharged at 120°C). At paragraph 113-115, Bang-Madsen teaches storing the deposited chewing gum composition for one week (i.e. 7 days) (see paragraph 113) using temperatures such as 30°C for the purpose of adjusting the release of flavor from the gum (see paragraph 115). That is, Bang-Madsen is teaching a step of heat tempering because the reference is teaching storing the gum under controlled conditions, and which controlled conditions can use temperatures such as 25-30°C.
It is further noted that Liu and Sengupta provide further evidence that Bang-Madsen’s teachings encompass a heat tempering step, because Liu teaches chewing gum products that can be tempered for more than 7 days (see paragraph 69 - 3 or 4 weeks), for achieving the desired texture. Liu teaches chewing gum compositions with a gum base, as well as at least two sugar alcohols (paragraph 61) and flavors (paragraph 59). Liu also evidences that storage of a chewing gum under controlled conditions can be construed as tempering because the reference is teaching aging or tempering under controlled conditions (paragraph 69).
Sangupta teaches at paragraphs 101-102 that there is a treatment station that holds a chewing gum composition at a temperature between 25-75°C or 30-65°C, for the purpose of controlling the hardening of the chewing gum composition (see paragraph 102: “Holding either the confectionery mass or confectionery sheet at an elevated temperature and an ambient or target humidity for any length of time increases the hardness of the confectionery compared to a conventionally manufactured confection”; see also paragraphs 94, 95, 101-103) thus further suggesting that Bang-Madsen’s teachings would also provide heat tempering of the chewing gum composition.
Therefore, the prior art as a whole is teaching and suggesting tempering temperatures within the claimed range.
Regarding the limitation of, “the heat tempering step forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product,” it is noted that since the prior art is teaching a similar composition with similar heat tempering conditions, it would have been reasonable for one having ordinary skill in the art to have expected the prior art to also have formed some degree of crust so as to allow for the completion of the tempering step during some form of shipping of the chewing gum product.
Further regarding the forming of a crust, Sengupta teaches that the presence of crystalline fats and wax such as petroleum wax contribute to forming a crust (i.e. hardening of the gum) (see paragraphs 2, 22-24, 48, 83, 89, 94 and 95). This is further supported by Liu at paragraph 69 where tempering can maintain not less than 50% of the crystallinity of fats and oils for achieving the desired texture. Bang-Madsen also teaches using waxes and fats for controlling the texture of the chewing gum (see paragraph 205).
Claim 42 differs from the above combination in specifically reciting, depositing the molten chewing gum composition into a mold defining the three-dimensional shape.
Cervenka teaches deposition of a melted chewing gum product onto a conveyor belt or packaging material for subsequent treatment/solidification (see paragraph 7). Cervenka teaches that this can be advantageous for reducing the equipment necessary for producing the finished packaged chewing gum product (see paragraph 1). Cervenka further teaches that the process can also include tempering of the chewing gum product after the depositing (see paragraph 8). Detalle also teaches packaging of chewing gums (see the abstract), where the conveyor can also be a mold that forms a blister of a blister pack (see figure 1A, 1B and paragraphs 76-79) and where the mold also defines the three-dimensional shape (see figure 1A, 1B).
Both Cervenka and Detalle are directed to producing and packaging a chewing gum product. Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448).
To therefore modify the combination and to use a conveyor that comprises blisters of a blister pack that can shape/mold the chewing gum product three dimensional shape would thus have been obvious to one having ordinary skill in the art, for the purpose of reducing the processes/steps required for producing a packaged chewing gum product and thus making the process more efficient.
Regarding the limitation of, “wherein the heat tempering forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product having the three-dimensional shape, and wherein the chewing gum product retains the three-dimensional shape without distortion or deformation upon removal from the mold,” it is noted that since the prior art is teaching a similar composition with similar heat tempering conditions, it would have been reasonable for one having ordinary skill in the art to have expected the prior art to also have formed some degree of crust so as to allow for the completion of the tempering step during some form of shipping of the chewing gum product.
Further regarding the forming of a crust, Sengupta teaches that the presence of crystalline fats and wax such as petroleum wax contribute to forming a crust (i.e. hardening of the gum) (see paragraphs 2, 22-24, 48, 83, 89, 94 and 95). This is further supported by Liu at paragraph 69 where tempering can maintain not less than 50% of the crystallinity of fats and oils for achieving the desired texture; thus further teaching and suggesting that Bang-Madsen’s storage conditions would also have formed a crust.
Further regarding the gum retaining its three-dimensional shape without distortion or deformation upon removal, since the prior art combination is teaching a crust that has been formed on the chewing gum product as a result of tempering, it would have been reasonable to expect that the product would also have retained its shape upon removal from the mold, especially since this would also have been commensurate with how one removed the tempered chewing gum product from the mold.
Regarding claim 43, in view of Detalle, the combination teaches that the mold is a blister of a blister pack, which would obviously have formed part of consumer packaging for the chewing gum product (See figure 1A, 1B and paragraphs 76-79).
Regarding claim 46, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that the crust would have been thicker than a crust that would form on the deposited chewing gum composition at 20°C for an identical heat tempering time.
Regarding claim 47, Bang-Madsen teaches that the gum base can also comprise high melting point waxes such as candelilla and petroleum wax (see paragraph 164 and 205), which are inherently crystalline and have a melting point that is greater than 30°C. Bang-Madsen further teaches at paragraph 205 that the wax can be microcrystalline wax or petroleum, which is also disclosed by applicant. INCHEM evidences that petroleum wax, such as paraffin wax is a crystalline solid with a melting point that is greater than 30°C. MacLeod evidences that microcrystalline wax used in a gum base for chewing gum compositions can have a melting point of 130°F-140°F (i.e. 54-60°C), as well as between 130-170°F (54-76°C) (column 3, lines 26-41), for flexibility of the chewing gum (column 2, lines 43-49). “HCI Microcrystalline Wax” evidences that microcrystalline wax are also known to have a melting point of 62-66°C (see the bottom of page 1).
Regarding claim 48, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that the heat tempering time would have been reduced by at least 20% compared to a time required to temper the deposited chewing gum composition at 20°C to form a crust of tempered material of an identical thickness.
Regarding claim 49, since the prior art combination teaches similar tempering conditions as recited in claim 42, while also teaching a similar chewing gum composition comprising a gum base, a flavor and two sugar alcohols that are in a molten state and then deposited and conditioned, it would have been reasonable to expect that “upon” removal the chewing gum product would not leave a visible residue on the mold. This is further supported by Sengupta further teaching that the purpose of the conditioning process is to provide a hardness to the gum and that higher hardness to the gum can be achieved using a heat hold prior to another conditioning (see paragraph 123). Sengupta further teaches increased crystallization can achieve a higher increase in hardness (see paragraph 137) such that it would have been reasonable for one having ordinary skill in the art to also have resulted in no visible residue upon removal from a mold.
Claim 44 are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 42 above which relies on Bang-Madsen as the primary reference, and in further view of Wu (Surface and Interfacial Tensions of Polymers, Oligomers, Plasticizers and Organic Pigments).
Claim 44 differs from the combination as applied to claim 42 above in specifically reciting that the mold or a coating layer on a surface of the mold comprises a material having a surface tension of less than 35 mN/m.
It is noted that Applicant’s specification discloses at paragraph 52 on page 16 as filed that materials having a surface tension of less than 35 mN/m include fluoropolymers such as polytetrafluroethylene, silicone and polypropylene.
In view of this, it is noted that Detalle teaches that the molds can be made from polypropylene (see paragraph 338). Kabse449 teaches that the chewing gum product can be packaged in blister packs as well as molds that are made of silicone and combinations thereof (see paragraph 448). Furthermore, Wu teaches that polypropylene is known to have a surface tension of less than 35, mN/m, such as between 29.4-30.1 (see page 525, Table 2). Further on page 524, Wu teaches that silicone surfaces are known to have a surface tension of 20 or 26 mN/m (see Table 1 on the top right). This is further supported by pages 531-532, which teaches polysiloxanes with a surface tension that is less than 35 mN/m.
Therefore the combination teaches and suggests molds into which molten chewing gum can be deposited for shaping which would have been expected to have had a surface tension of less than 35 mN/m.
To modify the combination and to use materials for the mold/blister pack such as polypropylene as well as silicone would have been obvious to one having ordinary skill in the art based on conventional packaging materials for depositing and packaging molten chewing gum as well as for preventing sticking of the gum to the mold.
Claim 45 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 42 above which relies on Bang-Madsen as the primary reference, and in further view of Lyzenga (US 20200390123).
Regarding claim 45, the combination as applied to claim 42 is suggesting heat tempering while in a mold.
Claim 45 differs from the combination as applied to claim 42 in specifically reciting, “sealing the mold with a lidding material to enclose the chewing gum product within the mold, after heat tempering and prior to shipment of the chewing gum product; and shipping the chewing gum product, wherein tempering of the chewing gum product is completed at ambient conditions during shipment of the chewing gum product.”
Lyzenga (US 20200390123) teaches that it has been desirable to further condition a chewing gum (paragraph 22) while in a sealed package (see paragraph 77; see paragraph 152) for increasing manufacturing efficiency (see paragraph 3) and is therefore suggesting some degree of tempering during some form of shipping since the packaged product would be transported (i.e. shipped). Lyzenga teaches that this can make the manufacturing process more efficient (see paragraph 3) and where any temperature conditions can be used for completing the tempering after packaging (see paragraph 152). Lyzenga also therefore encompasses tempering being completed at any point after being packaged including some type of shipping/transport of any degree. Sengupta also teaches that after a heat tempering, (see figure 9, item 100, paragraph 102 - elevated treatment at 25-75°C for up to 6 hours), there can be an additional tempering (see figure 8, item 85) that can be performed at 20°C (see paragraph 91) for less than one week (see paragraph 96) at a relative humidity of 7-45% or about 18 to about 30% (see paragraph 89), thus reading on some form of ambient conditions. Sengupta teaches that this subsequent conditioning can also be useful for controlling the hardness of the chewing gum (see paragraph 95).
To therefore modify the combination which teaches heat tempering after depositing into the mold and to then seal the mold and subsequently further temper at ambient conditions during shipping would have been obvious to one having ordinary skill in the art for the purpose of making the manufacturing of the chewing gum more efficient.
Response to Arguments
On pages 13-15 of the response, Applicant urges that the cited references do not teach that the heat tempering forms a crust of tempered material on an outer surface of the deposited chewing gum composition to form the chewing gum product. Applicant urges that the formation of a crust of tempered material on an outer surface as recited is a specific structural phenomenon in which a layer of crystallized material forms on the outer surface and progressively thickens inward over time and is not the same as general hardening or an overall hardness increase. Therefore, Applicant urges that there is no evidence in the cited references that a crust of tempered material on the outer surface would necessarily result from the conditions described.
The examiner respectfully disagrees because Kabse is teaching a composition that is similar to that claimed and the combination is using tempering conditions similar to the conditions claimed. Kabse also teaches similar amounts and types of sugar alcohols as recited in claims 26-35, such that there is not seen to be a sufficient showing that a crust would not have formed by treating Kabse’s chewing gum composition at the temperatures suggested by Bang-Madsen and Sengupta.
On pages 15-16 of the response, Applicant urges that no reference teaches following the heat tempering with additional tempering at ambient conditions. Applicant urges that Lyzenga identifies pre-packaging conditioning as a manufacturing inefficiency so as to eliminate conditioning entirely such that all intentional conditioning occurs while the comestible structure in in the package. Therefore, Applicant is urging that the proposed modification would render the method of Lyzenga unsatisfactory for its intended purpose of increasing manufacturing efficiency by eliminating conditioning. Applicant also urges that Lyzenga is teaching the opposite of the claimed method which is reciting deliberate heat tempering to form a crust of tempered material on an outer surface before shipping, such that that one of ordinary skill in the art cannot follow Lyzenga’s teaching to skip conditioning, and the other references’ teachings to perform multi-day conditioning.
These urgings are not sufficient to overcome the rejection because the rejection does not rely on modifying Lyzenga but rather relies on what Lyzenga would have suggested to one having ordinary skill in the art. 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). In this instance, Sengupta is already teaching providing two conditioning steps: a first heated conditioning and a subsequent ambient conditioning step. Lyzenga is teaching that after depositing and sealing the chewing gum composition within a package, that the chewing gum composition can be conditioned to as to increase the efficiency of the packaging process. Therefore, it would have been obvious to one having ordinary skill in the art to have used Lyzenga’s teachings and suggests and to continue Sengupta’s ambient conditioning within the package, because Lyzenga teaches that this can further increase the production efficiency. Further regarding the completion of tempering during shipping, it is respectfully noted that this reads on any form and degree of shipping such that it would have encompassed the prior art teachings.
On page 17 of the response, Applicant urges that the two-stage process is a designed method in which heat tempering is performed for a specific duration sufficient to form a crust and then the heat tempering is deliberately discontinued and the product is shipped with the remaining tempering completing at ambient conditions during distribution.
These arguments have been considered but are not sufficient to overcome the rejection because the prior art is teaching and suggesting heat tempering together with tempering at ambient conditions, as evidenced by Sengupta.
On pages 17-18 of the response, Applicant urges that heat tempering at 26-28°C accelerates crust formation to produce a crust thickness of 1.25+/-0.25mm, representing a 33% increase in crust growth and that heat tempering at the claimed temperatures of 26-28°C also allowed for better demolding.
This urging is not sufficient to overcome the rejection because the claims do not recite a specific thickness achieved but rather, only discuss the relative thickness such that it would have been reasonable to expect that a composition having similar ingredients as claimed and treated using similar conditions would have achieved similar results to what has been claimed. Example 3 also does not appear to discuss a second conditioning at ambient conditions after the heat conditioning. It is also noted that the data appears to encompass that ambient conditions can also achieve a crust thickness that could be greater than that of the oven conditions. That is, the ambient thickness can be 0.96mm +/- 0.16mm which can result in a thickness of 1.12mm, whereas the oven conditions can also result in a crust thickness of 1.03mm (i.e. 1.28mm-0.25mm).
Further on page 18 of the response, Applicant urges that one of ordinary skill in the art would have expected that lower temperatures favor crystallization to produce faster tempering but the current specification demonstrates that elevating the temperature reduces the required tempering time which is contrary to what might be expected. Applicant urges that the cited references do not recognize or predict this result.
It is noted however, that 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). In this instance, the prior art is teaching the temperature and time conditions which would have been expected to achieve similar results, absent a sufficient showing to the contrary.
Applicant’s arguments on pages 19-22 have been considered but are not sufficient to in view of the new grounds of rejections necessitated by the amendment to the claims.
On page 20 of the response, Applicant urges that Kabse does not disclose heat tempering a deposited molten chewing gum composition in a mold at 25-30°C for 2-10 days.
However, the Kabse teaches tempering a deposited molten chewing gum composition and the combination further teaches heat tempering a deposited chewing gum composition for within the claimed time period. While Kabse does not specifically teach that this heat tempering occurs within a mold, using a mold as the surface to which the chewing gum composition has been deposited would have been obvious to one having ordinary skill in the art for the purpose of combining multiple steps together to reduce the time to package, as further suggested by Cervenka and Detalle.
On page 20 of the response, Applicant urges that Bang-Madesn’s storage for flavor migration does not teach or suggest a molten chewing gum composition deposited into a mold, heat tempering in the mold to form a crust or the product retaining a three-dimensional shape upon removal.
These urgings are not sufficient to overcome the rejection because the combination would obviously have taught a three-dimensional shape upon depositing into the mold, as taught by Cervenka and Detalle. Since Bang-Madsen also teaches a chewing gum composition similar to the claimed composition and with similar treatment conditions it would have been reasonable to expect that using Bang-Madsen’s treatment conditions for Kabse’s chewing gum composition would also have resulted in the forming of a crust of tempered material.
On page 21 of the response, Applicant urges that Sengupta discloses a short duration treatment and not the multiday heat tempering.
It is noted however, that the reference has not been relied on for the specific heat tempering, but rather, that it has been recognized in the art to condition a chewing gum composition to achieve a particular hardening of the gum and therefore a texture to the gum.
On page 21 of the response, regarding Lyzenga, Applicant urges that the reference does not teach the claimed heat tempering or the retention of a three-dimensional shape without distortion upon removal from the mold.
These arguments are not sufficient because the reference has not been relied on for specifically heat tempering and because it would have been reasonable to expect that the prior art chewing gum compositions, which are similar to the claimed composition, and which are treated in a similar manner would have performed similarly.
On pages 21-22 of the response, regarding Cervenka, Applicant urges that the reference does not teach the claimed heat tempering and discloses that tempering may be eliminated.
These arguments are not sufficient because the reference has not been relied on for specifically heat tempering and because while Cervenka teaches tempering “may” be eliminated, the rejection is not relying on modification of Cervenka. Additionally, it would have been obvious to one having ordinary skill in the art that Cervenka’s teaching of tempering may be eliminated does not mean that tempering “must” be eliminated and therefore would still allow for tempering.
On page 22 of the response, regarding Detalle Applicant urges that the reference does not teach the claimed heat tempering or the retention of a three-dimensional shape without distortion upon removal from the mold.
These arguments are not sufficient because the reference has not been relied on for specifically heat tempering and because it would have been reasonable to expect that the prior art chewing gum compositions, which are similar to the claimed composition and which are treated in a similar manner would have performed similarly.
Further on page 22 of the response, Applicant urges that the claimed invention allows for producing chewing gum forms that have complex three dimensional shapes whereas traditional chewing gum forms can only produce products with limited variations in shape.
It is noted however, that the claims do not provide any specificity as to a particular shape, but rather, only recite “a three-dimensional shape.”
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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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
