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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/21/2026 has been entered.
Claim Objections
Claim 5 is objected to because of the following informalities:
Regarding claim 5, claim 5 recites “the caramel…composition”. However, claim 1 has been amended to recite “a caramel color composition”. Claim 5 should be changed to recite “the caramel color composition”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10, 14, 18-26, 28, 32 and 43-45 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.
Regarding claim 1, claim 1 recites “heating…at a temperature effective to produce brown color”. It is unclear what temperatures would be considered effective to produce brown color. The temperature has been interpreted as the temperatures required by claim 2.
Regarding claim 5, claim 5 recites “the high color intensity brown color”. First it is noted that claim 1 has been amended to remove “a high color intensity” therefore it is unclear if “the high color intensity brown color” is referring to “brown color” in claim 1 or something different. Second, the term “high color intensity” in claim is a relative term which renders the claim indefinite. The term “high color intensity” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 5, it is noted that “burnt sugar, or cooked plant juice” has been deleted from claim 1. It is unclear what “the burnt sugar composition or the cooked plant juice composition” is referring to.
Regarding claim 19, claim 19 recites “heating…at a temperature effective to produce a brown color”. It is unclear what temperatures would be considered effective to produce a brown color.
Claims 2-4, 10, 14, 20-26, 28, 32 and 43-45 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1-3, 5, 10-12, 14, 18 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Chanforan et al US 2020/0229459 as evidenced by Schumacher WO 2017/216336 in view of Boghani et al. US 2006/0286203 in view of Klucik et al. US 2021/0282427 in view of Van Der Ark et al. US 2007/0071850 in view of Food Caramels: a review.
Regarding claim 1, Chanforan discloses a method for making a caramel (class I caramel) comprising heating a browning ingredient source (fructose, glucose) at a temperature to obviously to produce a brown color ([0011]), wherein the heating occurs in the absence of any added reactive sulfonium compound or ammonium compound ([0011], [0013]).
Schumacher discloses that caramel color is made by controlled heat treatment of food carbohydrates ([0008]). Schumacher discloses that when the product is a light to dark brown liquid or solid obtained from controlled heating of sugars with reactants, the product is considered as caramel color class I ([0015]). Thus, Schumacher provides evidence that class I caramels typically have a light to dark brown color.
Claim 1 differs from Chanforan in the recitation that the browning ingredient source is specifically heated in the presence of a non-browning spacing agent comprising a polyol.
Boghani discloses that a caramel composition commonly includes sugar (or sugar substitute), corn syrup, (or polyol syrup), butter and is prepared by mixing together the recited ingredients and heating until sufficient color is developed ([0253]). Thus, Boghani recognizes that known food carbohydrates used to provide caramel compositions includes a polyol.
It would have been obvious to one of ordinary skill in the art to modify the process of Chanforan such that the browning ingredient source is specifically heated in the presence of a non-browning spacing agent comprising a polyol, as suggested by Boghani, since Boghani recognizes that a polyol is conventionally added to a browning ingredient source to produce caramel compositions. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A, 2144.07). Since the prior art teaches the spacing agent as claimed (a polyol), the polyol taught by the prior art is considered to also be a non-browning spacing agent.
Regarding the temperature that is specifically effective to produce a brown color:
Klucik discloses a caramel producing process and discloses that as understood by one having ordinary skill in the art, higher temperatures and longer times provide darker and more intense caramel color composition and that the heating time and temperature can be varied according to the desired properties of the caramel color end product ([0031]). Klucik discloses that heating temperatures for forming caramel include between about 120 °C and 160 °C ([0031]).
Van Der Ark discloses that EU regulations caramel must have a color intensity of 0.01-0.6 ([0068]).
Food Caramels discloses that class I caramels have a color intensity of 0.01-0.12 (Pg. 1687, Table I).
Therefore, it would have been obvious to one of ordinary skill in the art to modify the process of Chanforan and Boghani such that temperature is specifically effective to produce a brown color (a color intensity of 0.01-0.6), in light of the teachings of Klucik, Van Der Ark and Food Caramels, since the prior art recognizes such an intensity was common for caramel and since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claim 2, Modified Chanforan discloses that heating temperatures for forming caramel include between about 120 °C and 160 °C (‘427, [0031]), overlapping the claimed range (MPEP 2144.05.I).
Regarding claim 3, claim 3 differs from Modified Chanforan in the recitation that the heating occurs within a pressure range of 20 psi to 80 psi, however, Klucik, already relied upon above discloses that heating to form caramel can be carried out at pressures of from about 50 psi to 120 psi ([0030]). It would have been obvious to one of ordinary skill in the art to modify the process of Modified Chanforan such that the heating occurs within a pressure range of about 50psi to 120 psi, overlapping the claimed range as additionally taught by Klucik, since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claim 5, Modified Chanforan discloses that the caramel forms a class I caramel (‘459, [0011]-[0013]) with color intensity up to 0.600 (‘850, [0068]).
Regarding claim 10, Modified Chanforan discloses that the caramel forms a class I caramel (‘459, [0011]-[0013]).
Regarding claim 14, Modified Chanforan discloses that the polyol includes sorbitol, xylitol, mannitol, isomalt (‘203, [0191]). It is noted that while discussing the caramel composition, Boghani discloses the general use of “polyol syrup” and further discloses that polyols include sorbitol, xylitol, mannitol, isomalt (‘203, [0191]), therefore suggesting the use of sorbitol, xylitol, mannitol, or isomalt syrup.
Regarding claim 18, Modified Chanforan discloses that the browning ingredient source includes glucose or fructose (‘459, [0011]-[0013]).
Regarding claim 43, Modified Chanforan discloses that caramel compositions can be in either liquid or dried form ([0113]). It would have been obvious to one of ordinary skill in the art to provide the caramel in liquid form, since it has been held that "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, supports a conclusion of obviousness (MPEP 2143.I.E).
Claims 4 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chanforan et al US 2020/0229459 as evidenced by Schumacher WO 2017/216336 in view of Boghani et al. US 2006/0286203 in view of Klucik et al. US 2021/0282427 in view of Van Der Ark et al. US 2007/0071850 in view of Food Caramels: a review in view of Pyle US 2,784,118.
Claim 4 differs from Modified Chanforan in the recitation that the heating occurs within a pH of range -0.5 to 2.5.
Pyle discloses that a common pH range for a caramelization step includes a pH of 2-5 (col. 2, lines 15-20). It would have been obvious to one of ordinary skill in the art to have modified Modified Chanforan such that the heating occurs within a pH of range -2-5, overlapping the claimed range, since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claims 6-8, Modified Chanforan fails to disclose the claimed properties, however, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties or functions are presumed to be inherent (MPEP 2112.01.I).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Chanforan et al US 2020/0229459 as evidenced by Schumacher WO 2017/216336 in view of Boghani et al. US 2006/0286203 in view of Klucik et al. US 2021/0282427 in view of Van Der Ark et al. US 2007/0071850 in view of Food Caramels: a review in view of Pyle US 2,784,118 in view of Burge et al. US 2016/0236981.
Claim 9 differs from Modified Chanforan in the recitation that the composition has a brown caramelized color having a hue index less than 4.5.
It is noted that Food Caramels discloses that the range of the hue index for caramel color is approximately 3.5-7.5; generally, the higher the value the redder or more yellow the color (Pg. 1692, left Col. 1st paragraph).
Burge discloses that a common hue index for caramel includes a hue index of 3-8 (claim 3), overlapping the claimed range. Thus, it would have been obvious to one of ordinary skill in the art to have modified Chanforan such that the composition has a brown caramelized color having a hue index less than 4.5 as suggested by Burge, since caramel color can commonly have a hue index less than 4.5 as shown by Food Caramels and Burge and since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Claims 19-26, 28, 32 and 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over Chanforan et al US 2020/0229459 in view of Boghani et al. US 2006/0286203 in view of Klucik et al. US 2021/0282427 in view of Van Der Ark et al. US 2007/0071850 in view of Food Caramels: a review.
Regarding claim 19, Chanforan discloses a method for making a caramel (any of classes I, II, III, or IV) ([0011]-[0016]) comprising heating a browning ingredient source (fructose, glucose) at a temperature to obviously to produce a brown color ([0011]).
Claim 19 differs from Chanforan in the recitation that the browning ingredient source is specifically heated in the presence of a non-browning spacing agent and that the non-browning spacing agent comprises a polyol.
Boghani discloses that a caramel composition commonly includes sugar (or sugar substitute), corn syrup, (or polyol syrup), butter and is prepared by mixing together the recited ingredients and heating until sufficient color is developed ([0253]).
It would have been obvious to one of ordinary skill in the art to modify the process of Chanforan such that the browning ingredient source is specifically heated in the presence of a non-browning spacing agent comprising a polyol, as suggested by Boghani, since Boghani recognizes that a polyol is conventionally added to a browning ingredient source to produce caramel compositions. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A, 2144.07). Since the prior art teaches the spacing agent as claimed (a polyol), the polyol taught by the prior art is considered to also be a non-browning spacing agent.
Regarding the limitation that temperature is specifically effective to produce a brown color:
Klucik discloses a caramel producing process and discloses that as understood by the skilled person, higher temperatures and longer times provide darker and more intense caramel color composition and that the heating time and temperature can be varied according to the desired properties of the caramel color end product ([0031]). Klucik discloses that heating temperatures for forming caramel include between about 120 °C and 160 °C ([0031]).
Van Der Ark discloses that EU regulations caramel must have a color intensity of 0.01-0.6 ([0068]).
Food Caramels discloses that class I caramels have a color intensity of 0.01-0.12, class II caramels have a color intensity of 0.06-0.10, class III caramels have a color intensity of 0.08-0.36 and class IV caramels have a color intensity of 0.10-0.60 (Pg. 1687, Table I).
Therefore, it would have been obvious to one of ordinary skill in the art to modify the process of Chanforan and Boghani such that temperature is specifically effective to produce a brown color (a color intensity of 0.01-0.6), in light of the teachings of Klucik, Van Der Ark and Food Caramels, since the prior art recognizes such an intensity was common for caramel and since it has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claim 20, Modified Chanforan discloses that the caramel composition forms a class II caramel (‘459, [0014]).
Regarding claim 21, Modified Chanforan discloses that the caramel composition forms a class II caramel (‘459, [0014]) with brown color up to 1 (Food Caramels, Pg. 1687, Table I).
Regarding claim 22, Modified Chanforan discloses that the caramel composition forms a class III caramel (‘459, [0015]).
Regarding claim 23, Modified Chanforan discloses that the caramel composition forms a class III caramel (‘459, [0015]) with brown color up to 1 (Food Caramels, Pg. 1687, Table I).
Regarding claim 24, Modified Chanforan discloses that the caramel composition forms a class IV caramel (‘459, [0016]).
Regarding claim 25, Modified Chanforan discloses that the caramel composition forms a class IV caramel (‘459, [0016]) with brown color up to 1 (Food Caramels, Pg. 1687, Table I).
Regarding claim 26, Modified Chanforan discloses that the caramel composition forms a class IV caramel (‘459, [0016]). Modified Chanforan fails to disclose the claimed property, however, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, claimed properties or functions are presumed to be inherent (MPEP 2112.01.I).
Regarding claim 28, Modified Chanforan discloses that the polyol includes sorbitol, xylitol, mannitol, isomalt (‘203, [0191]). It is noted that while discussing the caramel composition, Boghani discloses the general use of “polyol syrup” and further discloses that polyols include sorbitol, xylitol, mannitol, isomalt (‘203, [0191]), therefore suggesting the use of sorbitol, xylitol, mannitol, or isomalt syrup.
Regarding claim 32, Modified Chanforan discloses that the browning ingredient source includes glucose or fructose (‘459, [0011]-[0013]).
Regarding claim 44, Modified Chanforan discloses that caramel compositions can be in either liquid or dried form ([0113]). It would have been obvious to one of ordinary skill in the art to provide the caramel in liquid form, since it has been held that "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, supports a conclusion of obviousness (MPEP 2143.I.E).
Regarding claim 45, Modified Chanforan discloses that caramel compositions can be in either liquid or dried form ([0113]). It would have been obvious to one of ordinary skill in the art to provide the caramel in liquid form, since it has been held that "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, supports a conclusion of obviousness (MPEP 2143.I.E).
Response to Arguments
Applicant's arguments filed 01/21/2026 have been fully considered but they are not persuasive.
On pg. 12-13 of the remarks, Applicant argues that Boghani represents non-analogous art. On Pg. 12 Applicant argues that Boghani is not from the same field of endeavor and that Boghani is not reasonably pertinent to the inventor’s problem and therefore cannot be combined with Chanforan.
In response to applicant’s argument that Boghani is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, it is noted that caramel color production as discussed in the prior includes making caramel color by controlled heat treatment of food carbohydrates (Schumacher [0008]). It is noted that polyols are food carbohydrates. Bohgani is in the same field of endeavor of processes for making caramel compositions that obviously produce brown colors and therefore reasonably pertinent to the inventor’s problem, since a caramel composition as disclosed by Boghani obtains a caramel color which is obviously a brown color produced by heating food carbohydrate materials. Boghani teaches a caramel composition and and one of ordinary skill in the art would have been motivated to consider known techniques and known ingredients for forming caramel compositions, which necessarily produce a brown color. Therefore, Boghani is reasonably pertinent. MPEP recites “In determining obviousness, neither the particular motivation to make the claimed invention nor the problem the inventor is solving controls. The proper analysis is whether the claimed invention would have been obvious as of the relevant time to one of ordinary skill in the art after consideration of all the facts”. In this case it is not required that the references solve the same problem in order to combine the teaching of the references. “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” "One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.” (MPEP 2144.IV).
On Pg. 13 of the remarks Applicant argues that the problem faced by Boghani is unrelated to the problem faced by the present inventors.
"The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." (MPEP 2123.I). In this case it is noted that caramel color production as discussed in the prior art includes making caramel color by controlled heat treatment of food carbohydrates (Schumacher [0008]). It is also noted that polyols are food carbohydrates. Boghani is relevant to the problem faced by the inventors because of Boghani’s is also teaching heating food grade carbohydrate materials to produce caramel compositions, which obviously have a brown color, since caramel compositions conventionally have a brown color as acknowledged by Chanforan and Schumacher.
On Pg. 16 of the remarks, Applicant argues that Applicant has developed a novel and non-obvious method to produce a dark brown color having a high color intensity and low hue index. This is accomplished via the inclusion of the spacing agent during heating which permits the heating to proceed for a longer time to develop a darker brown color. The resulting brown color has a high color intensity and low hue index. The use of the polyol non-browning spacing agent during the caramelizing process to produce a dark brown caramel color composition is not disclosed by the combination of references. The use of polyols in Applicant's method directly results in reducing the hue index of the final product caramel coloring composition, thus providing a dark brown shade which cannot normally be achieved in class I caramel colors. Applicant argues that furthermore, the generation of a lower hue index product provides a caramel class I (which lacks of sulphur or nitrogen) with the characteristic dark brown shade typical of class IV. Neither the problem, nor the solution to the problem, is obvious in view of the cited references.
This argument has not been found persuasive; in this case it is not required that the references solve the same problem in order to combine the teaching of the references. “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” "One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.” (MPEP 2144.IV). “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” "The fact that appellant 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." (MPEP 2145.II).
On Pg. 16-18 of the remarks Applicant argues that Chanforan teaches a different process than Applicant and teaches away from the dark brown color of the present invention.
This argument has not been found persuasive, the specific invention of Chanforan was not relied upon in the rejection, the background disclosure of Chanforan, which discloses what was already known and conventional in the art was all that was relied upon from Chanforan. It is noted that the MPEP recites "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." (MPEP 2123.1.). Additionally, it is noted that the background of Chanforan also specifically discloses that it was known that caramel colors are food additives useful for imparting a brown shade color ([0010]) and therefore the conventional processes in the background are obviously directed to producing brown color compositions. Additionally, the prior art recognizes it was conventional in the art to provide caramel compositions with a brown color, as discussed in the office action, and Schumacher discloses that caramel color is made by controlled heat treatment of food carbohydrates ([0008]). Schumacher discloses that when the product is a light to dark brown liquid or solid obtained from controlled heating of sugars with reactants, the product is considered as caramel color class I ([0015]). Thus, Schumacher provides evidence that class I caramels typically have a light to dark brown color. Additionally, the prior art Klucik discloses a caramel producing process and discloses that as understood by one having ordinary skill in the art, higher temperatures and longer times provide darker and more intense caramel color composition and that the heating time and temperature can be varied according to the desired properties of the caramel color end product ([0031]). Klucik discloses that heating temperatures for forming caramel include between about 120 °C and 160 °C ([0031]). Van Der Ark discloses that EU regulations caramel must have a color intensity of 0.01-0.6 ([0068]). Food Caramels discloses that class I caramels have a color intensity of 0.01-0.12 (Pg. 1687, Table I). Food Caramels discloses that class I caramels have a color intensity of 0.01-0.12, class II caramels have a color intensity of 0.06-0.10, class III caramels have a color intensity of 0.08-0.36 and class IV caramels have a color intensity of 0.10-0.60 (Pg. 1687, Table I).
On pg. 19 of the remarks Applicant argues that the caramel confectionary of Boghani differs from caramel coloring of the present claims because of their respective physical chemical properties. Caramel coloring is a liquid material or eventually dried post-production to a powder) intended to be used in a large variety of formulations. The caramel confectionary of Boghani is plastic when heated and a glasslike solid when it is cooled, which is ideal for its intended confectionary purpose.
This argument has not been found persuasive, the primary reference Chanforan which has been modified to include polyol as a known food carbohydrate source for producing caramel compositions in light of the teachings of Bohgani, already discloses that caramel compositions can be in either liquid or dried form ([0113]). Therefore, while Bohgani does not specifically recite a caramel in liquid form, the combination as a whole suggests the use of caramel coloring in liquid form based on the teachings of Chanforan.
On Pg. 20 of the remarks Applicant argues that Nobuhito discloses that the black brown color of bitter caramel is undesirable for food and therefore teaches away from the presently claimed subject matter. It is noted that Nobuhito is not currently relied upon in the 103 rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Kachichian US 2020/0187521 discloses a caramelizing composition that includes sugar alcohol and a non-metabolizable sugar, is able to produce a darker color not possible with table sugar alone ([0066]-[0067])
Parker US 2010/0003383 discloses a class IV caramel with a resinification time of 48 hours ([0021]).
Goethals et al. US 2021/0321650 discloses that caramel colors are prepared by controlled heat treatment of carbohydrates. The carbohydrate raw materials used are commercially available food-grade nutritive sweeteners, which are the monomers glucose and fructose or polymers thereof (e.g., glucose syrups, sucrose or invert sugars, and dextrose). To promote caramelization, food-grade acids, alkalis, and salts may be used in amounts consistent with Good Manufacturing Practices (GMP) ([0005]).
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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