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 .
Applicant's submission filed on 9/29/2025 of arguments has been entered claims 1-7 and 15-17 directed to elected invention are examined in this application.
Claim Objections Maintained
Claim 16-17 remain objected to because of the following informalities: claims depend from cancelled claim 8. Appropriate correction is required. For the purposes of this office action both claims 16 and 17 will be considered as depending from claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-7 and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over NPL reference to Claire Robinson “Memphis banana bites" dated March 18-2018 obtained from https://www.foodnetwork.com (also of previous record), hereinafter Claire, in view of Aebi (US 6524635B1), hereinafter Aebi, Marie (Frozen Chocolate Peanut Butter Banana Bites obtained from Not enough cinnamon posted June 19, 2018, of previous record), hereinafter Marie, Stewart (US20030161913 A1), hereinafter Stewart and Cakesisters rock and roll pattern cookies-2017, hereinafter Cakesisters.
Note: The term “candy bar” in the preamble of claims is being interpreted to be a placeholder for confection as neither the specification nor the drawings disclose a bar shaped confection but rather triangular or circular shaped confection/ snack/ food product.
Regarding claim 1, Claire teaches making banana bites confection ( see title)
two banana dried banana chips” (see page 1, which lists ingredients on left side of page and 2nd paragraph of directions on page 1).
a layer of peanut butter sandwiched between said two banana chips (chocolate and peanut butter mixture layered between two banana chips (2nd paragraph of directions on page 1).
Claire’s banana sandwich differs from the instantly claimed invention in step C, which recites that “a thin layer of chocolate surrounding said two banana chips and said layer of peanut butter” and D. which recites “a decorative edible image applied to said thin layer of chocolate, wherein said decorative image is printed with edible ink onto an edible sheet.”
Regarding the banana chip sandwich, although Claire includes the flavors of chocolate as well as peanut butter in between the two banana chips of her banana bites sandwiches, however, Claire is silent regarding having “a thin layer of chocolate surrounding said two banana chips and said layer of peanut butter”. However, at the time of effective filing date of the invention snack products fully or partially coated, enrobed in coatings like chocolate were well-known in the art as taught by Aebi (abstract, Column 1, lines 55-60 where chocolate coating of snacks is taught. Specifically regarding a banana sandwich snack product comprising peanut butter having a thin layer of chocolate surrounding said two banana chips and said layer of peanut butter was known as taught by NPL to Marie (see description on page 5; also see photos on page 2 and 7). Marie is analogous art as the reference teaches a confectionery product comprising two round banana slices (see photo on pages 2 and 5; and description on page 3, last paragraph to page 4, end), with a layer of peanut butter sandwiched between said two banana chips (see photos on page 5 and description on page 4), and C. a thin layer of chocolate surrounding said two banana chips and said layer of peanut butter (see description on page 5; also see photos on page 2 and 7). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire’s banana bites sandwich and coat a thin layer of chocolate surrounding said two banana chips (any snack product), as taught by Marie and Aebi. The ordinary artisan would have been motivated to modify Claire by adding one or more types of chocolate (dark, milk or white) at least for the purpose of providing added flavor to the banana bites snack while also providing visual and textural interest to said banana bites. One of ordinary skill would have been also motivated to create a variety of banana bites by utilizing various types of chocolate for instance, dark , milk or white chocolate as taught by Aebi (Column 1, lines 55-60).
Claire is also silent regarding the banana chip sandwich having “a decorative edible image applied to said thin layer of chocolate, wherein said decorative image is printed with edible ink onto an edible sheet.” as recited in step D. However, application of decorative interest on food products, specially snack products was well known in the art at the time of effective filing date of the invention as taught by Stewart (abstract, para 2). Stewart teaches that “The edible film may be pre-printed with edible inks or may be written or drawn upon by the user such as for example by edible ink pens, may be colored, clear or selectively opaque, may be die-cut into pre-selected shapes or may be cut into selected shapes by the user.” (Para 2). Regarding the reason for decorating foods Stewart teaches “Foodstuffs, particularly baked goods, such as cakes, pies, cookies, and the like, are frequently decorated so as to present a pleasing presentation to those who are about to enjoy eating them” especially for “notable occasions” where “foodstuffs are ornately decorated in a manner consonant with the theme of the occasion.” (Para 4). Thus, adding decorations to food products with edible images printed on edible sheet or film with edible inks was well-known in the art at the time of the effective filing date of the invention. Acknowledgement of the same can also be found in applicant’s disclosure under admitted prior art especially in para 5, under the heading background of the invention and in current response of 3/20/2025 “Applicant is not claiming that he invented peanut butter inserted between banana chips (as shown in Claire). Applicant is not saying that he invented the notion of surrounding bananas with chocolate (as shown in Marie). Applicant is not saying that he invented decorative images having a shape, such as a circle or triangle (as shown in Stewart)”, where the applicant admits that the concept of confection was known and “Edible images are known in the prior art. Edible images include images that are printed with edible ink onto edible sheets.”
Further in response to applicant’s argument that inventive concept “a candy bar having a shape and a decorative image that both relate to a specific subject matter. In Applicant’s case the subject matter is Rock and Roll. This shape/message relationship is shown nowhere in any prior art reference” (remarks, page 1, 3/20/25), prior art to Cakesisters is being included which depicts the instantly claimed music or rock and roll related decorations, pictures on edible products as being argued in the current response.
PNG
media_image1.png
360
356
media_image1.png
Greyscale
It is further noted that, based on teaching of Stewart, Cakesisters and the admitted prior art, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire and add “a decorative edible image applied to said thin layer of chocolate, wherein said decorative image is printed with edible ink onto an edible sheet.”. The ordinary artisan would have been motivated to modify Claire at least to present a pleasing presentation to those who are about to enjoy the food product especially when such food is made for “notable occasions” where “foodstuffs are ornately decorated in a manner consonant with the theme of the occasion.” (Para 4, Stewart), including claimed rock-n-roll theme as shown in Cakesisters pics.
It is also noted that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).(The court held that the configuration of the claimed product/object was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed product/object was significant.
Marie does not teach that the confectionary product is specifically “a candy bar” (or a “rock and roll candy bar”), as recited in the preamble. When reading the preamble in the context of the entire claim, the recitation “rock and roll candy bar” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02. Further, in the instant case the term “candy bar” in the preamble of claims is being interpreted to be a placeholder for confection as neither the specification nor the drawings disclose a bar shaped confection but rather triangular or circular shaped confection/ snack/ food product.
Regarding claim 2, Claire as modified above teaches the candy bar as in Claim 1, wherein said decorative edible image is a symbol (note that any pattern, as modified for claim 1, reads on the limitation “symbol” as no specific characteristics of the symbol have been recited).
Regarding claim 3, Claire as modified above teaches the rock and roll candy bar as in Claim 2, but does not specifically state that said symbol is related “to rock and roll”. However, as explained for claim 1, Stewart teaches that it is known to apply decorative edible images to foodstuffs/confections/ snacks (Abstract, para 2 and 4). for the purpose of pleasing presentation to those who are about to enjoy the food product especially when such food is made for “notable occasions” where “foodstuffs are ornately decorated in a manner consonant with the theme of the occasion.” (Para 4, Stewart). Stewart also teaches “pre-printed and pre-cut edible film decorations which may be applicable to generic or specific occasions.” (Para 23) as well as “non-printed or partly printed and non-cut or pre-cut edible film sheets or portions of sheets which are finalized by a user to form decorations which may be applicable to generic or specific occasions.” (Para 24) including desired shapes (Para 21). Also applicant’s admitted prior art where edible sheet decorations were known and see Cakesisters edible designs. Therefore, It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire and chose any desired shape or design or symbol to target a specific consumer group or a specific occasion, such as a symbol that is related “to rock and roll”. The ordinary artisan would have been motivated to modify Claire at least for the purpose of creating value added desired symbol that is suitable for a target consumer group or occasion, such as party for rock and roll music fans (as shown in Cakesisters pics).
Regarding claims 4-5, Claire as modified above teaches the rock and roll candy bar as in Claim 1, but does not teach that “said decorative edible image is text”, wherein (as recited in claim 5), “said text is related to rock and roll”. Stewart teaches that it is known to apply decorative edible images to confections as well as text (see para 2, 4, 21, 23-24 and figures 1, 6, 8-9 and 11). Stewart also teaches “pre-printed and pre-cut edible film decorations which may be applicable to generic or specific occasions.” (Para 23) as well as “non-printed or partly printed and non-cut or pre-cut edible film sheets or portions of sheets which are finalized by a user to form decorations which may be applicable to generic or specific occasions.” (Para 24) including desired shapes (Para 21). Also see Cakesisters edible designs including text. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire so that “said decorative edible image is text “ and wherein said text is related to “rock and roll”. The ordinary artisan would have been motivated to modify Claire at least for the purpose of creating value added desired symbol or text that is suitable for a target consumer group or occasion, such as party for birthday, New year (as per figures 1, 6, 11 and 8 and Cakesisters designs).
Regarding claims 6-7, Claire as modified above teaches the rock and roll candy bar as in Claim 1 with dried banana chips, but does not specifically state the shape of the banana chip, such each banana chip of said two banana chips is in the shape of “a guitar pick” (as recited in claim 6); or wherein each banana chip of said two banana chips is “round”. However, a “round” shape of a banana chip is typical because of cross-sectional shape of banana (as shown in photograph on page 5 of Marie). Edible objects or snacks of varied shapes were known to be created to capture consumer interest in the edible object as taught by Aebi (Column 2, lines 51-64). Stewart teaches making objects fitting the occasion (Para 21, 23-24 and figures 1, 6, 8, 11 and 9) and also teaches decorations in the shape of rounds and triangles (see figure 9 of Stewart). Also see Cakesisters edible designs related to rock and roll. Further, the shapes of the banana chips in the snack or candy bar as claimed appear to be only an aesthetic design change. It has been held that in matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See MPEP 2144.04-I. Further, in terms of “round” shape, this is a typical shape. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire so that the banana chip has a specific shape, as claimed. The ordinary artisan would have been motivated to modify Claire at least for the purpose of using typical shape of banana chip or a shape that enhances the aesthetic.
Regarding new claim 15, which recites that “each banana chip of said two dried banana chips comprises a shape of an item related to rock and roll”. Claire as modified above teaches the rock and roll candy bar as in Claim 1 with dried banana chips, but does not specifically state the shape of the candy bar, is in the shape of “of an item related to rock and roll” (as recited in claim 15); However, a “round” shape of a banana chip based snack is typical because of cross-sectional shape of banana (as shown in photograph on page 5 of Marie), which corresponds to the round shape of record album, which can be related to “rock and roll”. Edible objects or snacks of varied shapes were known to be created to capture consumer interest in the edible object as taught by Aebi (Column 2, lines 51-64). Stewart teaches making objects fitting the occasion (Para 21, 23-24 and figures 1, 6, 8, 11 and 9) and also teaches decorations in the shape of rounds and triangles (see figure 9 of Stewart) Further, the shapes of the banana chips snack or candy bar as claimed appears to be only an aesthetic design change. It has been held that in matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See MPEP 2144.04-I. Further, in terms of “rock and roll” related shape or “record album” or “round” shape, this is a typical shape as shown by Cakesisters reference. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire so that the banana chip snack has a specific shape, as claimed. The ordinary artisan would have been motivated to modify Claire at least for the purpose of using typical shape of coated banana chip snack or choose a shape that enhances the aesthetic based on the theme or occasion desired, which in the instant case is “rock and roll” (Also see Cakesisters edible designs including text and shapes).
Regarding claims 16 and 17 that recite “wherein said shape is the shape of a guitar pick” ( claim 16) and “wherein said shape is the shape of a record album” (claim 17), applicant is referred to rejection of claim 1 over Claire as applied above in view of Aebi and Marie. Claire as modified above teaches the rock and roll candy bar as in Claim 1 with dried banana chips, but does not specifically state the shape of the candy bar, is in the shape of “a guitar pick” (as recited in claim 16); or wherein candy bar is in shape of record album, i.e., “round”. However, a “round” shape of a banana chip based snack is typical because of cross-sectional shape of banana (as shown in photograph on page 5 of Marie). Edible objects or snacks of varied shapes were known to be created to capture consumer interest in the edible object as taught by Aebi (Column 2, lines 51-64). Stewart teaches making objects fitting the occasion (Para 21, 23-24 and figures 1, 6, 8, 11 and 9) and also teaches decorations in the shape of rounds and triangles (see figure 9 of Stewart). Also see Cakesisters edible designs including guitar pick shape as provided above. Further, the shapes of the banana chips snack or candy bar as claimed appear to be only an aesthetic design change. It has been held that in matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See MPEP 2144.04-I. Further, in terms of “record album” or “round” shape, this is a typical shape. It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Claire so that the banana chip snack has a specific shape, as claimed. The ordinary artisan would have been motivated to modify Claire at least for the purpose of using typical shape of coated banana chip snack or choose a shape enhances the aesthetic based on the occasion.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7 and 15-17 in applicant’s response of 9/29/2025 have been fully considered but are not persuasive.
On page 4 of applicant’s response, applicant argues that the rejections do not capture applicant’s “subject matter” which is “Rock and Roll” and urges that this “shape/message relationship” is not shown in cited references. This argument is not persuasive. Applicant has not specified rejection of which claim is being argued, and so the above issue will be discussed at least with respect to independent claim 1. In claim 1, the only recitation of rock and roll appears as “rock and roll candy”, which is recited solely in the preamble of the claim and as such is not limiting in this context (see more details explained on page 7, last paragraph of office action of 3/27/2025). Note that any symbols that show relationship to rock and roll are aesthetic design changes related to ornamentation. It has been held that in matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art (specifically Cakesisters reference). See MPEP 2144.04-I.
As such, rejection of claim 3 provides a rejection of themed products (also see rejections of claims 3, 4 and 5 above and on pages 8-9 of office action of 3/27/2025 that establish obviousness in this context).
Claims 1-7 and 15-17 as presented in claim listing of 9/29/2025 are rejected for reasons of record.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JYOTI CHAWLA/ Primary Examiner, Art Unit 1791