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Those rejections not repeated in this Office Action have been withdrawn.
Claims 1, 2, 5-13, 16, 18, 21-24 and 26-27 are currently pending and rejected.
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, 13, 16, 18, 24 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Sonneveld (US 20050186306) in view of Coleman (US 20070231450), Hoover (US 20190254334) and Demeter (“Homemade Dark Chocolate Sea Salt Kind Nut Bars”) and in further view of Szczucinska (US 20200383359) and Turpin (US 20210378273) in further view of Rapp (US 7727566), Newman (US 20060068062) and “Chocolate Hazelnut Bars” and in further view of Coleman (US 20070087084, i.e. Coleman084), Best (US 20040131752), Yang (US 20060257531) and Martin (US 20060078660).
Regarding claim 1, Sonneveld teaches a confectionery product that can comprise a first portion that comprises a fruit and/or nut composition and a binder. That is, Sonneveld teaches a food bar (see paragraph 31, “bar”), that can comprise a “cereal-like” core that is present at 55-75% of the food product (see paragraph 60) and at paragraph 41 and 43, Sonneveld teaches that the “cereal like” core can be made of nuts that can have a median size of “at least 20mm” and is therefore teaching and suggesting that the first portion is a fruit and/or nut composition together with a binder.
Sonneveld further teaches that the food product can comprise a second portion that is a layer of chocolate adjacent to the above cereal-like core, which chocolate layer can be present at less than 50% by weight of the product (see paragraph 68 and the disclosure of the intervening material and optional layer which can be a fat-based composition at up to 50% of the finished product. This same paragraph also discloses that the fat based intervening layer can be on top of the above described cereal-like core.).
Sonneveld further teaches that there can be a third portion such as a coating on the layered product (see paragraph 69) and where the coating can be a chocolate composition that can be up to 50% of the finished coated product and therefore encompasses the range of 10-20% of the third portion (see paragraph 67).
Further regarding the particular percentages of the first, second and third portions, Sonneveld teaches at paragraph 95 that the first portion can be present at 54%, the layer adjacent to the first portion (i.e. the layer adjacent to the cereal-like core) can be present at 25% (see paragraph 97) and that the coating can be present at 21% (see paragraph 96). Since Sonneveld already teaches that the core can be present in amounts larger than 54% such as 55-75% (see paragraph 60-61) and as the second portion layer that is adjacent to the core can be present at 25%, Sonneveld is also suggesting that the coating layer can be present at amounts less than 21% such that it would have been obvious to one having ordinary skill in the art to have modified Sonneveld’s teachings and used a lesser amount of the chocolate coating composition based on one’s preference for the degree of chocolate and chocolate taste from the coating.
Even further regarding the percentages of the first, second and third portions, it is noted that Coleman also teaches a first portion of a layered confectionery food product that is present at 59.7% of the food product; with a second portion present at 22.8% and a third portion present at 17.5% (see Table 1 on pages 8-9: the sum of the core ingredients equals 59.7%, the sum of the caramel layer ingredients equals 22.8% (i.e. the second portion), and the sum of the chocolate coating composition is 17.5% of the confectionery product. Coleman teaches that the binder is used at 20-40% by weight fo the core layer (see paragraph 8, “about 20 wt% to about 40 wt% binder material”) and therefore is teaching and suggesting that the remainder of the core layer (i.e. the first portion) would have been present at 60-80%. Therefore the prior art is teaching and suggesting that it has been conventional to use the amounts of the first, second and third portions of a composite confectionary composition, in amounts that fall within the claimed range.
Further regarding the limitation of, the first portion comprises 60 to 90% of a fruit and/or nut composition and 10 to 40% of a binder, Sonneveld teaches using a binder syrup (see paragraph 59 and at least the table below paragraph 97).
Sonneveld is not specific as to the amount of the binder present in the first portion and therefore is not specific as to the amount of the fruit and/or nut composition as part of the first portion.
Therefore, claim 1 differs from Sonneveld in specifically reciting that “the first portion comprises 60 to 90% of a fruit and/or nut composition and 10 to 40% of a binder.”
However, Hoover (US 20190254334) teaches a fruit and nut composition (see paragraph 29) that can also comprise a binder, and where the fruit and nut composition is present at 70-75% while the binder is used at 27-30% for binding the fruit and/or nut composition together (see page 4, Table 2).
Similarly, Demeter teaches a fruit and/or nut composition as part of a first portion comprising whole and chopped nuts (see the figures), which comprises about 66.5% of a fruit and/or nut composition and about 11% of a syrup binder. That is, the total, in cups, of all the ingredients to make the bar equates to about 2.255208 cups, of which the almonds, peanuts, rice crisp cereal, sea salt and maple syrup comprise the first portion. The dark chocolate chips and vegetable oil can be construed as the second portion and the chocolate drizzle can be construed as the third portion (see page 8 of the reference). The binder composition 0.25 cups and the fruit and/or nut composition is present at 2.005208 cups for a total of 2.255208 cups, with 0.25/2.255208 = 11% binder and 2.005208/2.255208 = 66.5% fruit and/or nut composition.
Since Sonneveld does not specifically teach how much binder is used, but teaches a fruit and/or nut composition and binder as a first portion of a layered confectionery product, it would have been obvious to one having ordinary skill in the art to have looked to known amounts of a binder and the fruit and/or nut composition usable for the same purpose of binding a fruit and/or nut composition together. In view of this, Hoover and Demeter provide guidance to one having ordinary skill in the art that it would have been obvious to have used 11% of a syrup binder or 27-30% of a syrup binder with the remainder being the fruit and/or nut composition, for the purpose of ensuring that Sonneveld’s core fruit and/or nut layer remained bound together based on conventional amounts of a binder composition used for the same purpose.
Regarding the limitation of, “wherein each of the first, second and third portions forms a discrete region or a layer of the confectionery product and the second portion is located between the first portion and the third portion,” Sonneveld teaches the first, second and third portions as discrete portions because at paragraph 68 and 69, the reference is teaching a layered product. The chocolate intervening layer as taught at paragraph 68 can be construed as being between a coating and one of the cereal-like solid cores especially because at paragraph 67, Sonneveld also teaches that the cereal-like layer can be top or bottom-coated and because paragraph 68 teaches a second portion between two cereal-like cores or on top of a single cereal-like core. Further regarding the particular arrangement of the second portion in between the first and third portion, Coleman also teaches that it has been conventional to arrange a multilayered confectionery product, such that a second portion which can be a chocolate, caramel or cream layer (figure 2, item 202, paragraph 10 and 41, “supplemental core component” which can be a “chocolate layer”; see paragraph 17) is positioned between a chocolate compound coating third portion (see figure 2, item 203 and paragraph 38) and a first portion that can comprise nuts (see figure 2, item 212 and paragraph 44, “nuts”).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Sonneveld and to have positioned a chocolate intervening layer between Sonneveld’s cereal-like core layer and Sonneveld’s coating layer, as an obvious rearrangement of parts, based on conventional arrangements of a similar type of food bar arrangement.
Regarding the limitation of, “wherein the fruit and/or nut composition provides an upper visible layer of nuts,” Sonneveld teaches that the core layer can be partially coated with the chocolate coating as a top or bottom-coated product (see paragraph 67) and is therefore teaching and suggesting that the core layer would have been visible. This is further supported by Hoover and Demeter who also teach that the fruit and/or nut composition provides an upper, visible layer of nuts.
Regarding the limitation of, “the fruit and/or nut composition comprising 20 to 50% whole nuts and 40 to 80% chopped nuts” Sonneveld suggests that there can be chopped nuts because the reference discloses pieces of cereal-like core that can be nuts (see paragraph 41 and 43). Nonetheless, the claim differs from Sonneveld in this regard.
However, Demeter teaches in the figures, what can be construed as whole and partial nut pieces. As such, it would have been obvious to one having ordinary skill in the art to have modified the it would have been obvious to one having ordinary skill in the art to have used a mixture of whole nut and nut pieces in varying proportions as a matter of preference depending on the look and taste desired.
It is further noted that Szcuzucinska (US 20200383359) teaches food products that can comprise a plurality of clusters, which can use equal amounts of almonds, cashews and peanuts (see Example 3) and where at paragraph 34, the reference teaches each cluster can comprise 10-40wt% of nuts, which can be whole or in pieces. That is, paragraph 34 teaches that nuts in the form of chopped or broken nuts is a preference, and therefore is also open to some clusters of the plurality comprising 40wt% nuts that are whole and other clusters comprising 40wt% nuts that are in pieces. Turpin (US 20210378273) also teaches a first portion comprising a fruit and/or nut composition that can comprise whole or chopped nuts (see paragraph 41).
Therefore, it would have been obvious to one having ordinary skill in the art to have provided a combination of whole nuts and chopped nuts, as an obvious matter of engineering and/or design based on preferences such as texture and appearance of the nuts present as part of the product.
Regarding the limitation of, “a second portion comprising a ganache,” Sonneveld teaches a chocolate or caramel second portion (see paragraph 68) but is not specific as to the chocolate second portion comprising a ganache.
It is noted that Coleman teaches that the second portion can comprise a cream layer or a chocolate layer (see paragraph 17).
Rapp (US 7727566) teaches confectionery products which can comprise a layer that includes a fruit and/or nut composition (see column 19, lines 63-67 – “peanut butter”) and a binder (see column 19, example 1, “Syrup blend mixture” and column 20, lines 18-27) and where the composition comprising peanut butter and binder can be layered with another composition that can comprise caramel as a fat based layer (column 20, lines 31-41) or where the fat based layer can also be ganache (see column 8, lines 49-52; column 12, lines 31-42; column 21, line 41). Newman (US 20060068062) also teaches multiple layers of a confectionery product, that can comprise a ganache portion (see figure 4, and 5, item 5; paragraph 34) on a core layer (6) and that can comprise another chocolate composition (figure 4 and 5, item 4; paragraph 28). “Chocolate Hazelnut Bars” further evidences using ganache as an intermediate layer between a nut layer and another external layer (see page 2, and the middle ganache layer; see pages 3 and 4 which teach a hazelnut layer and a ganache layer with a subsequent chopped hazelnut layer).
As Sonneveld already teaches that the second portion can comprise a chocolate layer, while not being limiting in this regard, and since Rapp, Newman and Chocolate Hazelnut Bars teach confectionery compositions that also use a layer that can comprise ganache, to thus modify the combination and to use ganache as part of Sonneveld’s second portion would have been obvious to one having ordinary skill in the art, based on known forms of chocolate that have been used as part of a composite confectionery food.
Regarding the new limitation of, “wherein the first portion and the third portion together fully enrobe the second portion such that the second portion is fully obscured by a combination of the first portion and the third portion,” it is noted that Sonneveld teaches that the layered can be partially or substantially completely coated, or the cores can be top or bottom coated or overall-coated (see paragraph 67). Therefore, Sonneveld is encompassing that that the first, cereal-like core and the third coating can together fully obscure the second layer. Having such full obscuring of the second portion has also been suggested by Coleman, because layer 202 is obscured by the coating 203 and the core layer 212.
Nonetheless, Coleman084 also teaches a filling layer (figure 1, item 102) together with a core layer (figure 1, item 110, i.e. the first portion) which core layer can comprise nuts and fruits (paragraph 60 and 70) and where the thickness of the layer comprising nuts and fruits can be about 0.75 inches (see paragraph 32) and the filling layer 102 can have a thickness of 2-3mm (or 0.07-0.11 inches) (paragraph 76). Coleman084 also teaches partial enrobing of the layered snack bar (see paragraph 52) without providing specificity as to the degree of partial coating. Coleman084’s filling layer 102 equates to Sonneveld’s second portion and Colemen084’s layer comprising nuts, 110 equates to Sonneveld’s first portion.
As such, Coleman084 teaches and suggests known thicknesses for the particulate first portion and a second chocolate filling layer and to accordingly modify Sonneveld to use similar thicknesses would have been obvious to one having ordinary skill in the art for achieving the desired taste and texture to Sonneveld’s snack bar.
While Coleman’084 and Sonneveld suggest that the first portion would obscure the second portion and that there is a coating which can fully or partially coat the product, neither reference specifically recites, that the first and third portion together fully enrobe the second portion such that the second portion is fully obscured by a combination of the first portion and the third portion.
However, Best (US 20040131752) teaches confectionery product (see paragraph 16) where it has been conventional to enrobe a portion of the product with a coating that can cover 50% of the surface area of the confectionery product (paragraph 9). Yang teaches that it has been known to provide a coating that is positioned over a half-shoulder of the confectionery product (see figure 1 and paragraph 34) and which partially enrobes the product (see paragraph 39) such that the coating partially extends up the sidewalls of the bar (see figure 1 and 4) while keeping the fruit and/or nut composition layer visible (see figure 4 and paragraph 22 and 38). Martin teaches a layered food product (paragraph 63) where a filling layer can be a chocolate filling (see figure 4, item 28 and paragraph 63, 69 and 70) and which filling layer remains hidden and fully obscured by an upper first layer (figure 4, item 20 and 22) which can comprise nuts (see paragraph 50) and a lower third layer (see figure 4, item 35). Therefore, Martin teaches and suggests that it has been conventional to intentionally hide a layer of a multilayered food bar while keeping an upper most layer of the food bar visible and where the hidden filling layer is only revealed upon consumption (paragraph 55).
Coleman084 is teaching that the filling layer can have a thickness of 0.07-0.11in. and the particulate layer can have a thickness of 0.75in. and is therefore suggesting the filling layer being about 12% of the total thickness. In view of Best and Yang teaching that partial coating can provide a coating that is about 50% of the total surface area and where the coating can overlap the sidewalls of the bar, it would have been obvious to one having ordinary skill in the art to have provided Sonneveld’s partial coating as covering 50% of the surface area in a manner suggested by Yang for providing the desired degree of partial coating to the bar. In view of these teachings, it would have been obvious to one having ordinary skill in the art that a filling layer that is 12% of the total thickness would have been fully obscured by Sonneveld’s first and third portion. Furthermore, the prior art teaches the desirability of ensuring that the fruit and/or nut layer remains visible while a chocolate filling layer remains hidden such that it would have been obvious to one having ordinary skill in the art to use coatings as taught by Sonneveld, Coleman084, Best and Yang to partially coat Sonneveld’s bar and hide Sonneveld’s filling layer, while also using Sonneveld’s fruit and/or nut layer and coating layer to fully obscure the filling layer based on known configurations for hiding a chocolate filling layer as part of a multilayered food bar.
Regarding claim 27, in view of Coleman084, Yang, Martin and Best, the combination teaches that each of the first and third portions individually only partially enrobe the second portion.
Regarding claim 5, the combination as applied to claim 1 teaches whole and/or partial fruit (see Sonneveld paragraph 41). Therefore, it would have been obvious to one having ordinary skill in the art to add some amount of fruit based on taste preferences.
Regarding claim 6, Sonneveld also teaches that the fruit and/or nut composition an also comprise seeds (see paragraph 41). Therefore, it would have been obvious to one having ordinary skill in the art to add some amount of seeds based on taste preferences.
Regarding claim 7, Sonneveld teaches nuts such as almonds and peanuts in combination (see paragraph 43). Demeter is similar in this regard (see page 8).
Regarding claim 8, Sonneveld, Hoover and Demeter all teach the binder can comprise a syrup.
Regarding claim 13, Sonneveld teaches a chocolate coating as the third portion, but is not specific in reciting, “the third portion comprises one or more of white chocolate, milk chocolate, dark chocolate, couverture and compound chocolate.”
However, Coleman teaches that coating that serves as the third portion can comprise milk chocolate (see paragraph 38).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Sonneveld and to have used other known forms of chocolate as part of the third portion coating, as an obvious matter of engineering and/or design and taste preference.
Regarding claim 16, in view of Yang and Best, the combination teaches a coating composition that can form a half shoulder enrobing the confectionery product (see Yang figure 1 and 4 and Best paragraph 9).
To therefore modify the combination and provide a half-shoulder enrobing would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, based on conventional expedients by which a chocolate enrobing composition can partially enrobe a confectionery composition comprising a combination of a fruit and/or nut composition and a binder.
Regarding claim 18, Sonneveld teaches forming a first portion comprising a fruit and/or nut composition and a binder. Regarding the specific amount of the fruit and/or nut composition being 60-90% and 10-40% binder, the combination as applied to claim 1, in view of Hoover and Demeter teach a nut composition within the range of 60-90% and a binder within the range of 10-40%.
Regarding the step of forming a second portion comprising ganache Sonneveld teaches that the chocolate intervening layer is formed and combined with the first portion to form an intermediate. In view Repp, Newman and Chocolate Hazelnut Bars, it would have been obvious to one having ordinary skill in the art to have included ganache as the second portion. Chocolate Hazelnut Bars further teaches the intermediate is first formed because the ground hazelnut first portion and the ganache portion are combined together to form the intermediate (see page 4, “pour the ganache over the cooled crust evenly.”)
Regarding the step of “applying a chocolate composition to the intermediate to form a third portion,” the prior art teaches that the coating can be applied as an outermost layer and as such it would have been obvious to one having ordinary skill in the art to have applied a chocolate composition to the intermediate to form a third portion. This is further supported by Coleman who teaches an intermediate comprising a first portion (201) and a second portion (202) to which has been applied a chocolate composition (figure 2, item 203) to form a third portion. Demeter also teaches applying a chocolate composition to an intermediate that comprises a first nut portion and a second chocolate portion (see “chocolate drizzle”).
Regarding the limitations of, “such that the fruit and/or nut composition provides an upper visible layer of nuts, wherein the confectionery product comprises 55 to 75% of the first portion; 5 to 25% of the second portion; and 10 to 20% of the third portion; wherein the fruit and/or nut composition comprises 20 to 50% whole nuts and 40 to 80% chopped nuts” the combination as applied to claim 1 has been incorporated herein to teach these limitations.
Regarding the limitation of, “wherein the first portion and the third portion together fully enrobe the second portion such that the second portion is fully obscured by a combination of the first portion and the third portion,” the combination as applied to claim 1 has been incorporated herein to teach this limitation.
Regarding claim 24, because Sonneveld’s first core layer and intervening chocolate layer are completely different layers, it would have been obvious to one having ordinary skill in the art that Sonneveld is disclosing that the first and second layers are formed separately. Therefore, it would have been obvious to one having ordinary skill in the art that one of the first and second layers has been positioned on top of the other of the first and second layers. This concept has also been taught by Demeter (see steps 3-7 on page 8) and Chocolate Hazelnut Bars (see page 4, and the first two paragraphs of the recipe).
Claims 2, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Saffitz (“All the Types of Chocolate, Explained”).
Regarding claim 2, in view of Chocolate Hazelnut Bars, the combination teaches that the ganache is a dark chocolate flavored ganache, because the reference discloses bittersweet chocolate, which is known to be dark chocolate. Nonetheless, Saffitz evidences on page 5 that bittersweet chocolate is a form of dark chocolate.
Regarding claim 10, in view of Chocolate Hazelnut Bars and Saffitz as discussed above, the prior art teaches that the second portion comprises dark chocolate because bittersweet chocolate is dark chocolate.
Further regarding claim 11, if it could have been construed that it was not clear whether ganache or chocolate as taught by the combination applied to claim 1 included one or more of the sweeteners as recited in claim 11, then it is noted that Chocolate Hazelnut Bars as evidenced by Saffitz teaches the use of bittersweet dark chocolate together with heavy cream as part of ganache and where bittersweet dark chocolate also has some amount of sugar (see page 5, “…sometimes semisweet chocolate has more added sugar than bittersweet…”). This teaches that bittersweet dark chocolate comprises a sweetener that is sugars.
Since the combination teaches using bittersweet chocolate, as evidenced by Saffitz the prior art is also teaching that the ganache of the second portion comprises a sweetener such as sugars.
Claims 9 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claims 1 and 11 above, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Kishi (JP 2009-017785- see machine translation) and as evidenced by Igoe (“The Dictionary of Food Ingredients”).
Regarding claim 9, in view of Coleman the combination teaches a known binder composition that comprises honey, as well as other sugar syrup such as liquid sucrose, corn syrup (i.e. glucose syrup), rice syrup and molasses (see paragraph 34). Igoe evidences that corn syrup is also known as glucose syrup (see page 40: “Corn Syrup” – “It is also termed glucose syrup”)
Claim 9 differs in specifically reciting that the binder also comprises oligofructose and invert sugar syrup.
However, Kishi teaches confectionery compositions that comprise a fruit and nut layer together with cereals (see at least, paragraph 2, 10 and 11) which can be bound using a binder that can comprise syrup including oligofructose (see paragraph 15 – “fructooligosaccharide”), honey (see paragraph 15 – “honey”), invert sugar (see paragraph 15). As Kishi also teaches a binder composition used to maintain a fruit and/or nut composition together and since Coleman already teaches using combinations of binder components, one having ordinary skill in the art would have been routinely led to modify the binder as taught by Sonneveld and to also use additional binder components such as frutcooligosaccharides, honey, glucose syrup and invert sugar syrup, for the purpose of achieving the desired adhesion as well as taste to the composition.
Regarding claim 12, in view of Coleman already suggesting the use of glucose syrup (i.e. corn syrup) and in view of Kishi further teaching the use of invert sugar syrup, one having ordinary skill in the art would have been routinely led to also use additional binder components such as glucose syrup and invert sugar syrup, for the purpose of achieving the desired adhesion as well as taste to the composition.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18 above, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Setton (US 20130183410).
Regarding claim 21, the claim differs from Sonneveld in specifically reciting, “wherein the forming the first portion comprises using a first sheeter or roller to form a first layer and optionally, wherein the first layer has a thickness in the range of 9mm to 19mm.”
Coleman teaches that the first portion can be formed using a first roller (see paragraph 55 “a compression roll or rollers”). It is noted that the limitations following the term, “optionally” are not required. Setton further teaches a first portion comprising a fruit and/or nut composition which can be rolled into a sheet (see paragraph 10), thus teaching that it has been convention to use rollers to sheet fruit and/or nut compositions as part of a first portion and which also comprises discrete nut pieces.
Since Sonneveld is not specific as to how the layers have been formed but also teaches a core layer comprising nuts, it would have been obvious to one having ordinary skill in the art to have used a roller for the purpose of providing the desired thickness to the first portion.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18 above, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Sault (US 20060188644).
Regarding claim 22, the claim differs from Sonneveld in specifically reciting that the forming of the second portion comprises using a second sheeter and/or roller to form a second layer and optionally, wherein the second layer has a thickness in the range 0.5 to 1.5mm.
However, Coleman teaches that the second portion (202) can also be formed by sheeting (see paragraph 56 – “roller”) and therefore teaches and suggests using a second sheeter. It is noted that the limitations following the term, “optionally” are not required. Sault teaches using rollers to form multiple layers of a confectionery product (see figure 1) where the rolling drums can be cooled to form sheets of the multiple layers of the product (see paragraph 27, where cooling drums can be used to form the slabs of the multiple layers). Sault further teaches that the secondary hopper can be used for a fat layers such as caramel or chocolate (see paragraph 22 and paragraph 75). Sault further teaches that there can be optional hoppers and slabforming drums for making and applying further layers,
Since Sonneveld is not specific as to how the layers have been formed but also teaches a second layer, it would have been obvious to one having ordinary skill in the art to have used a roller for the purpose of providing the desired thickness to the first portion.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 18 above, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Sault (US 20060188644) and Froseth (US 20030091697).
Regarding claim 23, the combination as applied to claim 18 teaches forming a first and second portion.
The claim differs in specifically reciting that the second portion is formed first and forming the first portion directly on the second portion.
It is noted that the claims are not seen to limit what it means to “form the first portion directly on the second portion.” In this regard, the claim has been construed to mean that the first portion as a layer has been formed directly on the second portion. In this regard, as Sonneveld already teaches that the first and second portions are stacked, form a first portion layer directly on the second portion would have been an obvious rearrangement of steps for forming the same type of product (see MPEP 2144.04(IV)(C)).
Nonetheless, it is further noted that Sault teaches using rollers to form multiple layers of a confectionery product (see figure 1) where the rolling drums can be cooled to form sheets of the multiple layers of the product (see paragraph 27, where cooling drums can be used to form the slabs of the multiple layers). Sault further teaches that the secondary hopper can be used for a fat layers such as caramel or chocolate (see paragraph 22 and paragraph 75). Sault further teaches that there can be optional hoppers and slabforming drums for making and applying further layers, thus suggesting directly forming a first portion on an already formed second (caramel/chocolate) portion. Sault also teaches providing a chocolate enrobing of the layers (see paragraph 27, “enrobed” “compound chocolate coating”). Froseth also teaches forming a filling layer that can be a chocolate layer (see paragraph 49), which has been formed (see figure 6B, where the filling 114 has been formed and applied by a sheeter (see paragraph 104, “sheeting nozzle”) and directly thereto has been formed a layer comprising a fruit and/or nut composition (see paragraph 16 and 39 which teaches a layer that can comprise nuts, fruit and a cereal component) and a binder (see paragraph 31) (see figure 6A-6B, item 376, 380 and paragraph 107). Froseth also teaches a chocolate enrobing step to form a third portion (see paragraph 52).
To therefore modify Sonneveld and to form the first portion directly on the second portion would have been obvious to one having ordinary skill in the art based on using another conventional technique for positioning a layer comprising a fruit and/or nut composition and binder with a second layer comprising a confectionery or chocolate composition.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1, which relies on Sonneveld (US 20050186306) as the primary reference, and in further view of Haynes (US 20060177545).
Claim 26 differs from the combination as applied to claim 1 in specifically reciting, wherein the confectionery product comprises less than 30g sugar per 100g product.
Sonneveld teaches that the binding agent, third portion and intervening layer can all be substantially free of simple sugar (see paragraph 22, 32,67,68). The cereal-like core can be made from at least 75% of cereal like pieces (see paragraph 60) which can be nuts such as almonds and peanuts (see paragraph 41 and 43). Therefore, Sonneveld is suggesting a confectionary product that has low amounts of sugar.
While not specific as to the product comprising less than 30g sugar per 100g product, Haynes teaches nut bars that can have for example, 1 gram of sugar per 35 grams of the food product (see paragraph 44). This is equivalent to 2.85g of sugar per 100 grams of the food products.
As Sonneveld is already suggesting that sugar is not desired, it would have been obvious to one having ordinary skill in the art to adjust the amount of sugar in Sonneveld’s product such that it has about 2.85g per 100 grams of product, as an obvious matter of design, for the purpose of maintaining the low sugar levels that Sonneveld already desires.
Response to Arguments
On pages 8-9 of the response, Applicant urges that the combination does not teach or suggest the new limitation of, “wherein the first portion and the third portion together fully enrobe the second portion such that the second portion si fully obscured by a combination of the first portion and the third portion.”
These arguments have been considered but are moot in view of the new grounds of rejection as presented in this Office Action, necessitated by the amendment to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Coleman (US 20050053695) discloses food bars (see at least, paragraph 2) with a core layer and additional discrete layers and where there can be a layer that is a coating covering or enrobing a nutritional bar, a discrete layer through or within a nutritional bar and/or particles or bits within a nutritional bar (paragraph 17) and therefore teaching hiding a layer of the composite food.
Froseth (US 20030091697 already of record) teaches that a known thickness for a particulate layer of a multilayered snack bar can be about 0.675 inches and the filling layer can be about 0.062 inches (see paragraph 48) and this combination can be partially or completely enrobed in a coating (see paragraph 52).
Hunn (“Gluten free on a Shoestring) teaches food bars where an upper surface is exposed while the covers the bottom and all side of a food bar except for the top surface (see page 6, bottom right image and page 4 and 7).
Schmoutz (US 6713100) teaches a top layer that comprises particulate and a binder (see figure 1, item 10 and column 7, lines 50-57), a second portion (figure 1, item 11 or 12) and a third portion 13, which together with first portion 10, fully obscures the second portion (see figure 1).
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).
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792