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 .
DETAILED ACTION
2. Applicants’ arguments and amendments filed on 11/20/2025, overcomes the rejections of record. It is to be noted that new grounds of rejection as set forth below are necessitated by applicants’ amendment. However, upon review, it is noticed that Simbuerger et al. (US 2011/0183049) can be considered as primary prior art to reject all the claims 1, 3-8, 10-14, 28-35 to make the rejection strong to address the amended independent claims1 and 28. However, as because prior independent claims 1, 28 recite “planetary roller extruder” , but Simbuerger et al. was not used as primary prior art in the last office action, therefore, the following action is made non-final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 1, 3-8, 10-14, 28-35 are pending in this office action.
Claims 2, 15-27 have been cancelled.
Claims 1, 3-8, 10-14, 28-35 have been rejected.
Claim Rejections - 35 USC § 112
4. 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.
5. Claim 35 is 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.
6. Claim 35 recites “ removing moisture from said confectionery composition during said mixing within said planetary roller extruder absent any boiling of said plurality of ingredients” Claim 35 depends on claim 1. Claim 1 recites “removing moisture from said confectionery composition during said mixing within said planetary roller extruder”. It is to be noted that the claim limitation of “removing moisture from said confectionery composition during said mixing within said planetary roller extruder” is common for both the independent claim 1 and dependent claim 35, which depends on claim 1. It is also to be noted that the mixing step to remove moisture during said mixing within the planetary roller mixer are identical for claim 35 because claim 35 depends on claim 1. Therefore, this claimed step of ‘moisture removal’ is under identical conditions “during said mixing within said planetary roller extruder” for both the claim 1 and claim 35.
Therefore, claim 35 does not further contribute any additional functional claim language by including the phrase “absent any boiling of said plurality of ingredients”. This is confusing and renders claim 35 unclear and indefinite.
Claim Rejections - 35 USC § 103
7. 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 (i.e., changing from AIA to pre-AIA ) 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.
8. 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) 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.
9. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 non-obviousness.
10. Claims 1, 3-5, 10, 11, 28-32, 34 35, are rejected under 35 U.S.C. 103 as being unpatentable over Simbuerger et al. (US 2011/0183049) in view of Kamper et al. (US 2009/0081349 A1) and in view of Volker et al. USPN 6562394.
11. Regarding claim 1, Simbuerger et al. discloses a method to make confectionery product using a device particularly a planetary roller extruder having one or more shafts having a helical structure at their periphery, such as a spindle or a screw. Simbuerger et al. also discloses the step of supplying the ingredients using a hopper ([0013]).
Simbuerger et al. also discloses that the system prevents the ingredients from adhering to the walls of the hopper and/or the casing of the screw, at least one flexible wall is provided in the hopper and/or the casing ([0013]) without impairing the continuous feeding of ingredients to the continuous conche ( [0013]), followed by mixing them using the planetary roller extruder which advantageously provide the required (high) heat transfer to the ingredients (at least in [0009], [0010], [0028]), the necessary mixing and shearing thereof along the continuous conche 12 (Fig 1), in order to produce a homogeneous chocolate mass in a continuous, highly efficient process (at least in [0009]-[0010]).
Simbuerger et al. also discloses that the conching time, i.e. the time which the ingredients spend in the conche before they have turned to chocolate mass, can be reduced from several hours to only a few minutes. Further, the space required for the above-described continuous conche is significantly less than that of traditional (batch) conches, so that efficiency of the process is improved also in this regard. This particularly applies when the amount of chocolate mass obtained is taken into account ([0009]-[0010]).
Simbuerger et al. also discloses that casing 24 may accommodate a drive of the feeding screw 20 and/or any screw contained in the continuous conche 12. Further, weighing means, such as one or more weighing cells may be present along one or more of conveyors 32 to 34 in addition to conveyor 16 in order to continuously weigh the ingredients delivered and adjust the conveyor speed and/or any other parameters as far as necessary (at least in [0028], Fig 1, right). Therefore, it would have been obvious that there is no pulling mechanism which reads on “outputting said confectionery composition from said planetary roller extruder” as claimed in claim 1.
It is to be noted that Simbuerger et al. discloses that the disclosed features are applicable to any chocolate or chocolate-like material which may be called chocolate under local laws and also chocolate-like materials may comprise any food materials derived from the cocoa bean and any confectionery material having fat (at least in [0008]). Therefore, it can broadly include chocolate candy and chewy chocolate candy also. Simbuerger et al. does not specify any aeration step to aerate during manufacturing steps to make aerate product. Therefore, it is non-aerated confectionery which includes chewy candy also.
12. Regarding claims 1, 35, Simbuerger et al. also discloses that the necessary shearing forces are applied to the ingredients during mixing and sufficient heat is generated which is transferred to these ingredients during mixing ([0009], [0010], [0028]) along the continuous conche 12, so that chocolate mass leaves the continuous conche at the downstream (in FIG. 1, at right) end thereof. It would have been obvious that the “heat generated during mixing will remove some moisture from said confectionery composition during said mixing within said planetary roller extruder” as claimed in claim 1 and also if we consider the disclosure by Simbuerger et al., this heat does not reach boiling syage which meets the claim limitation of “ absent any boiling of said plurality of ingredients” as claimed in claim 35.
It is also to be noted that regarding claim 35, claim 35 depends on amended claim 1. The claimed mixing step to remove moisture during said mixing within the planetary roller mixer are identical for claim 35 because claim 35 depends on claim 1. Therefore, this claimed step of ‘moisture removal’ as claimed in claim 35 is under identical condition as claimed in amended independent claim 1.
Simbuerger et al. is silent about “crystallized non-aerated chewy candy”.
Regarding “crystallized” confectionery product, Kamper et al. discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042]) and the ingredient can include polyol (i.e., sugar reduced product), sugar as sugar crystal ([0042]) which provides the property of desired texture and better control of the desired end product property ([0115]). Kamper et al. discloses that after dissolving the starting materials the hot slurry is typically clear, as the slurry cools crystallinity increases with a preferred range of 22%-28% crystallinity ([0042]).
Therefore, during mixing heating and followed by cooling which can be at least coming back at room temperature (i.e. cooling) using the “planetary roller extruder” of Simbuerger et al., sugar will be in crystallized form because of obvious crystal property due to heating followed by cooling condition.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Kamper et al. who discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042]) which is contributed by using polyol (i.e. sugar reduced product), which provides the property of desired texture and better control of the desired end product property ( [0115])., provides the property of desired texture and better control of the desired end product property ( [0115]).
Volker et al. discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content. Volker et al. also discloses that it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g., lines 26-30). Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 1.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Volker et al. who discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content and it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g. lines 26-30) and this will also provide additional texture in the final product.
Regarding the phrase “at a given temperature can be considered as nonspecific temperature which depends on the type of ingredient, therefore, can be considered any temperature including mixing temperature at room temperature or higher than room temperature due to heat generated during mixing time. Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 1.
It is to be noted that the ‘planetary roller extruder’ provides shear and cooling condition. Therefore, it would have been obvious that the composition comprising sucrose can be used as polyol as disclosed by Volker et al. (col 9 lines 15-18) would make crystals during the processing step. It is also to be noted that the disclosed ingredients to make the confectionery composition with the disclosed steps and device which are identical to the claimed ingredients to make the confectionery composition with the claimed steps and device, therefore, it would have identical claimed property including the claimed property of having “crystallized chewy candy” as claimed in claim 1.
Regarding the claim limitation of “1-9% moisture content of the final confectionery composition”, it is to be noted that Kamper et al. also discloses that depending on the type of the final confectionery product, drying condition can be optimized to get desired moisture content (in Kamper et al. [0107]-[0108], [0072], [0081]-[0087]), and moisture amount can be 1%-6% also (at least in [0072]) which meets the claimed moisture content of 1-9% as claimed in the amended claim 1. It is also to be noted that it is within the skill of one of ordinary skill in the art to optimize the moisture content in order to have desired softness to make ‘a soft, chewy candy or hard candy’ as claimed in claim 1.
Absent showing of unexpected results, the specific amount of moisture content is not considered to confer patentability to the claims. As the taste, texture are variables (2) that can be modified, among others, by adjusting the amount of moisture content in the final confectionery composition, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of moisture content in Lund et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. taste, texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
13. Regarding claims 3-5, Simbuerger et al. is silent about the claim limitation of claim 3.
Kamper et al. discloses that the product can be sent to conventional packaging area for distribution and sale ([0107]). Therefore, it would have been obvious that the extruded product of Simbuerger et al. and Kamper et al. (in Kamper et al. [0107]) taught that the finished product can be sent from mixer to directly to the packaging station in order to achieve packaged final product to meet claims 4,5.
It is also to be noted that they do not disclose any additional treatment e.g. sizing etc. prior to packaging and after extrusion which meets claim 3.
One of ordinary skill in the art prior to effective filling date of the claimed invention would have been motivated to modify Simbuerger et al.to include the teaching of Kamper et al. to send the final extruded product directly to conventional packaging area for distribution and sale ([0107]).
14. Regarding claim 28, Simbuerger et al. discloses a method to make confectionery product using a device particularly a planetary roller extruder having one or more shafts having a helical structure at their periphery, such as a spindle or a screw. Simbuerger et al. also discloses the step of supplying the ingredients using a hopper ([0013]).
Simbuerger et al. also discloses that the system prevents the ingredients from adhering to the walls of the hopper and/or the casing of the screw, at least one flexible wall is provided in the hopper and/or the casing ([0013]) without impairing the continuous feeding of ingredients to the continuous conche ( [0013]), followed by mixing (at least in [0009], [0010], [0028]) them using the planetary roller extruder which advantageously provide the required (high) heat transfer to the ingredients, the necessary mixing and shearing thereof, in order to produce a homogeneous chocolate mass in a continuous, highly efficient process (at least in [0009]-[0010]). Simbuerger et al. also discloses that the conching time, i.e. the time which the ingredients spend in the conche before they have turned to chocolate mass, can be reduced from several hours to only a few minutes. Further, the space required for the above-described continuous conche is significantly less than that of traditional (batch) conches, so that efficiency of the process is improved also in this regard. This particularly applies when the amount of chocolate mass obtained is taken into account ([0009]-[0010]).
Simbuerger et al. also discloses that the necessary shearing forces are applied to the ingredients during mixing and sufficient heat is generated which is transferred to these ingredients during mixing ([0009], [0010], [0028]) along the continuous conche 12, so that chocolate mass leaves the continuous conche at the downstream (in FIG. 1, at right) end thereof.
It would have been obvious that the “heat generated during mixing will remove some moisture from said confectionery composition during said mixing within said planetary roller extruder” as claimed in claim 1 and also if we consider the disclosure by Simbuerger et al., this heat does not reach boiling stage which meets the claim limitation of “ absent any boiling of said plurality of ingredients” as claimed in claim 35.
It is noted that the casing 24 may accommodate a drive of the feeding screw 20 and/or any screw contained in the continuous conche 12 ([0028]). Further, weighing means, such as one or more weighing cells may be present along one or more of conveyors 32 to 34 in addition to conveyor 16 in order to continuously weigh the ingredients delivered and adjust the conveyor speed and/or any other parameters as far as necessary (at least in [0028]). Therefore, it would have been obvious that there is no pulling mechanism which reads on “outputting said confectionery composition from said planetary roller extruder” as claimed in claim 28 which reads on “ without the use of a pulling mechanism” as claimed claim 28.
It is to be noted that Simbuerger et al. discloses that the disclosed features are applicable to any chocolate or chocolate-like material which may be called chocolate under local laws and also chocolate-like materials may comprise any food materials derived from the cocoa bean and any confectionery material having fat (at least in [0008]). Therefore, it can broadly include chocolate candy and chewy chocolate candy also. Simbuerger et al. does not specify any aeration step to aerate during manufacturing steps to make aerate product. Therefore, it is non-aerated confectionery which includes chewy candy also.
Simbuerger et al. is silent about “crystallized non-aerated chewy candy”.
Regarding “crystallized” confectionery product, Kamper et al. discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042]) and the ingredient can include polyol (i.e., sugar reduced product), sugar as sugar crystal ([0042]) which provides the property of desired texture and better control of the desired end product property ([0115]). Kamper et al. discloses that after dissolving the starting materials the hot slurry is typically clear, as the slurry cools crystallinity increases with a preferred range of 22%-28% crystallinity ([0042]).
Therefore, during mixing heating and followed by cooling which can be at least coming back at room temperature (i.e. cooling) using the “planetary roller extruder” of Simbuerger et al., sugar will be in crystallized form because of obvious crystal property due to heating followed by cooling condition.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Kamper et al. who discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042]) which is contributed by using polyol (i.e. sugar reduced product), which provides the property of desired texture and better control of the desired end product property ( [0115]), provides the property of desired texture and better control of the desired end product property ( [0115]).
Volker et al. discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content. Volker et al. also discloses that it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g., lines 26-30). Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 28.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Volker et al. who discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content and it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g. lines 26-30) and this will also provide additional texture in the final product.
It is to be noted that the ‘planetary roller extruder’ provides shear and cooling condition. Therefore, it would have been obvious that the composition comprising sucrose can be used as polyol as disclosed by Volker et al. (col 9 lines 15-18) would make crystals during the processing step. It is also to be noted that the disclosed ingredients to make the confectionery composition with the disclosed steps and device which are identical to the claimed ingredients to make the confectionery composition with the claimed steps and device, therefore, it would have identical claimed property including the claimed property of having “crystallized non-aerated chewy candy” as claimed in claim 28.
15. Regarding claims 10, 11, as discussed above, Simbuerger et al. discloses the continuous feeding of ingredients , the necessary mixing and shearing steps, in the planetary roller extruder which advantageously provide the required (high) heat transfer to the ingredients (at least in [0009], [0010], [0028], Fig 1), in order to produce a homogeneous chocolate mass in a continuous, highly efficient process (at least in [0009]-[0010]). Therefore, it meets “heating said confectionery composition within said planetary roller extruder” as claimed in claim 10.
Simbuerger et al. also discloses that the ingredients are mixed, heat is transferred to these as far as necessary at this step, and the necessary shearing forces are applied to the ingredients, so that chocolate mass leaves the continuous conche at the downstream (in FIG. 1, at right) end thereof ([0028]).
It is understood that the downstream temperature is less than heating temperature during mixing at high shear which can read on “ wherein said cooling said confectionery composition opccurs downstream from said heating said confectionery composition” as claimed in claim 11.
It is also to be noted that Kamper et al. discloses that after dissolving the starting materials the hot slurry is typically clear, as the slurry cools crystallinity increases with a preferred range of 22%-28% crystallinity ([0042]).
It is also to be noted that Volker et al. also discloses that it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g., lines 26-30).
Therefore, Simbuerger et al. in view of Kamper et al. and Volker et al. meet claim limitations of claims 10, 11.
16. Regarding claim 28, amended claim 28 recites “ removing moisture from said confectionery composition during said mixing within said planetary roller extruder”, it is to be noted that Simbuerger et al. discloses mixing (at least in [0009], [0010], [0028]) step using the planetary roller extruder which advantageously provide the required (high) heat transfer to the ingredients, the necessary mixing and shearing thereof, in order to produce a homogeneous chocolate mass in a continuous, highly efficient process (at least in [0009]-[0010]). Therefore, it is mixing and heating is performed in the planetary roller extruder in order to produce a homogeneous chocolate mass. It is known that heating step removes moisture (water). Therefore, it meets the claim limitation of “removing moisture from said confectionery composition during said mixing within said planetary roller extruder “ as claimed in claim 28. It is also to be noted that Simbuerger et al. discloses “heating” and not boiling” . Therefore, it reads on “absent any boiling of said plurality of ingredients. One of ordinary skill in the art would have been motivated with reasonable expectation of success to mix and heat the ingredients by avoiding boiling temperature which can be too much temperature harmful for some sensitive ingredients and also can control heating with desired duration of time to remove desired amount of moisture , however, protecting the sensitive ingredients from high temperature including boiling temperature. This is optimizable.
Absent showing of unexpected results, the specific amount of heating temperature is not considered to confer patentability to the claims. As the moisture removal are variables that can be modified, among others, by adjusting the amount of temperature and time of heating, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of heating temperature below boiling temperature in Simbuerger et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired mixing with heat to make homogeneous mixture with desired moisture removal absent any boiling said plurality of ingredients (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
17. Regarding claims 29 and 30, Simbuerger et al. is silent about the claim limitation of claim 29.
Kamper et al. discloses that the product can be sent to conventional packaging area for distribution and sale ([0107]). Therefore, it would have been obvious that the extruded product of Simbuerger et al. and Kamper et al. (in Kamper et al. [0107]) taught that the finished product can be sent from mixer to directly to the packaging station in order to achieve packaged final product to meet claim 30.
It is also to be noted that they do not disclose any additional treatment e.g. sizing etc. prior to packaging and after extrusion which meets claim 29.
One of ordinary skill in the art prior to effective filling date of the claimed invention would have been motivated to modify Lund et al. in view of Simbuerger et al.to include the teaching of Kamper et al. to send the final extruded product directly to conventional packaging area for distribution and sale ([0107]).
18. Regarding claim 31, it is to be noted that and as discussed above, the phrase “forming crystals has been addressed using Simbuerger et al. in view of Kamper et al. and Volker et al. already mentioned to address claim 28 and is applicable here for claim 31 also.
Regarding the phrase “at a given temperature can be considered as nonspecific temperature which depends on the type of ingredient, therefore, can be considered any temperature including mixing temperature at room temperature or higher than room temperature due to heat generated during mixing time. Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 31.
Therefore, the combined teaching modifies Simbuerger et al. with Volker et al. to add sucrose derivative of Volker et al. as polyol ( col 9 lines 15-18) followed by mixing the ingredients, heat is transferred to these as far as necessary along the continuous conche 12 as disclosed by Simbuerger et al. ([0028]). Therefore, under shear condition, at a given temperature , it would have been obvious that sucrose derivative will make crystals to meet the claim limitation of “formation of crystals in said confectionery composition at a given temperature” as claimed in claim 31.
19. Regarding claim 32, Simbuerger et al. discloses that at the interface between the feeding screw 20 and the continuous conche 12 and/or along the continuous conche 12, further ingredients, such as cocoa liquor, flavor components, lecithin etc., may be added followed by the ingredients are mixed, heat is transferred to these as far as necessary along the continuous conche 12, and the necessary shearing forces are applied to the ingredients, so that chocolate mass leaves the continuous conche at the downstream (in FIG. 1, at right) end thereof (at least in [0028]). Therefore, after heating step, when chocolate mass leaves the continuous conche at the downstream (in FIG. 1, at right) (at least in [0028]), it will be at room temperature which meets the claim limitation of “ wherein said cooling said confectionery composition occurs downstream from said heating said confectionery composition” as claimed in claim 32.
20. Regarding claim 34, Simbuerger et al. discloses that the method using an extruder, particularly a planetary roller extruder, performs continuous, highly efficient process. In particular, the conching time, i.e. the time which the ingredients spend in the conche before they have turned to chocolate mass, can be reduced from several hours to only a few minutes and space required for the above-described continuous conche is significantly less than that of traditional (batch) conches, with an improved efficiency of the process which results the production of 2 to 3 tons per hour, and even more depending on their size (at least in [0009]). This meets claim limitation of “ at a rate of at least one ton per hour” as claimed in claim 34.
21. Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Simbuerger et al. (US 2011/0183049) in view of Kamper et al. (US 2009/0081349 A1) and in view of Volker et al. USPN 6562394 as applied to claim 1 and further in view of Lund et al. US 2013/0302499.
22. Regarding claims 6-8, Simbuerger et al. discloses the aeration step in the “planetary rotor extruder system ([0021]). However, this is related to eject fluid through aeration to overcome the problems of fouling, clogging etc. ([0021]).
However, Simbuerger et al. is specifically silent to aerate said confectionery composition within said planetary roller extruder as claimed in claim 6.
Lund et al. discloses a method of producing an aerated product by mixing the ingredients in a mixer and adding a pressurized gas to the mixer (at least in [0014], [0015]) in order to have a desired density, and/or moisture when the product leaves the extruder (at least in [0022]) and the density can be 0.1 to 1.0 gm/cc (at least in [0036]). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d. Therefore, it meets claims 6,7.
Lund et al. also discloses a method of producing an aerated product by mixing the ingredients in a mixer and adding a pressurized gas to the mixer (at least in [0014], [0015]) to meet claim 8.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Lund et al. to make the arrangement to producing an aerated product by mixing the ingredients in a mixer and adding a pressurized gas to the mixer (at least in [0014], [0015]) in order to have a desired density, and/or moisture when the product leaves the extruder (at least in [0022]) at a desired density including the density between 0.1 to 1.0 gm/cc (at least in [0036]) in order to make aerated confectionery composition as per customer’s need.
23. Claims 12, 14 are rejected under 35 U.S.C. 103 as being unpatentable over Simbuerger et al. ( US 2011/0183049) in view of Kamper et al. (US 2009/0081349 A1) in view of Volker et al. USPN 6562394 and further in view of Simbuerger et al. (US 2011/0183049) as applied to claim 1 and further in view of Yang et al. US 2007/0141198 A1.
24. Regarding claim 12, Simbuerger et al. in view of Kamper et al. in view of Volker et al. are specifically silent about “plurality of layers of a multilayer confectionery” and “plurality of layers of a multilayer confectionery occurs before the confectionery is exposed to an atmosphere”.
Yang et al. discloses that multilayered confectionery products can be made by any suitable co-extrusion, co-depositing and/or laminating concurrently with any ornamental features ([0056]) of desired design and choice. It is to be noted that and it is obvious that the co-extrusion, co-depositing and/or laminating method will make the layers before the confectionery is exposed to an atmosphere. Therefore, it meets the claim limitations of claim 12.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. in view of Kamper et al. in view of Volker et al. to include the teaching of Yang et al. to make multilayered confectionery products can be made by any suitable co-extrusion, co-depositing and/or laminating concurrently with any ornamental features ([0056]) of desired design and choice.
25. Regarding claim 14, Lund et al. in view of Kamper et al. in view of Volker et al. are specifically silent about (i) “outputting a second confectionery composition from said mixer” and (ii) “said second confectionery composition being output absent any formation of crystal” as claimed in claim 14.
With respect to (i) and (ii), Yang et al. discloses that multilayered confectionery products can be made having confectionery layers which include confectionery particles (at least in [0055]). Yang et al. also discloses that multilayered confectionery products can be made by any suitable co-extrusion, co-depositing and/or laminating concurrently with any ornamental features ([0056]) of desired design and choice. Therefore, it reads on (i) “outputting a second confectionery composition from said mixer” and (ii) “said second confectionery composition being output absent any formation of crystal” as claimed in claim 14. It is also to be noted that Yang et al. does not mention any ingredient which make crystal. Yang et al., however, mentioned that one (second) confectionery composition can be outer layer having chocolate or fat based ([0051]) which can be optionally absent of crystalline material.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Lund et al. in view of Kamper et al. in view of Volker et al. to include the teaching of Yang et al. to make multilayered confectionery products having fat-based coating for protecting water absorption and/or chocolate coating ([0056]) for desired flavor, taste and texture of the final coated product.
26. Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Simbuerger et al. (US 2011/0183049) in view of Kamper et al. (US 2009/0081349 A1) in view of Volker et al. USPN 6562394 and further in view of Simbuerger et al. (US 2011/0183049) as applied to claim 1 and further as evidenced by Formaguera et al. US 2007/0087100 A1.
27. Regarding claim 13, Simbuerger et al. (US 2011/0183049) discloses that the disclosed method reduces the processing time compared to prior described methods ([0022]).
However, they do not specifically disclose the claimed time of less than 20 minutes as claimed in claim 13.
It is known and as evidenced by Fornaguera et al. that the time depends on flow rate (depend on type of ingredients) which depends on rotation rate of the screw, number of screws engaged etc. ([0003] it is known fact and therefore, used paragraph from in background section).
Therefore, it is within the skill of one of ordinary skill in the art to optimize these parameters in order to complete the total process within 20 minutes.
Absent showing of unexpected results, the specific amount of time is not considered to confer patentability to the claims. As the flow rate (depend on type of ingredients) which depends on rotation rate of the screw, number of screws engaged etc. (in Fornaguera et al., [0003]) are variables that can be modified, among others, by adjusting the amount of time, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of flow rate (depend on type of ingredients), rotation rate of the screw, number of screw engaged etc. (i.e. parameters related to extruder apparatus ) in Lund et al. in view of Kamper et al. and in view of Volker et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired less than 20 minutes time to finish extruded end product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
28. Claim 33 is rejected under 35 U.S.C. 103 as being unpatentable over Simbuerger et al. (US 2011/0183049) in view of Kamper et al. (US 2009/0081349 A1) and in view of Volker et al. USPN 6562394 as applied to claim 28 and further in view of Yang et al. US 2007/0141198 A1.
29. Regarding claim 33, Simbuerger et al. and in view of Volker et al. are specifically silent about “plurality of layers of a multilayer confectionery” and “plurality of layers of a multilayer confectionery occurs before the confectionery is exposed to an atmosphere”.
Yang et al. discloses that multilayered confectionery products can be made by any suitable co-extrusion, co-depositing and/or laminating concurrently with any ornamental features ([0056]) of desired design and choice. It is to be noted that and it is obvious that the co-extrusion, co-depositing and/or laminating method will make the layers before the confectionery is exposed to an atmosphere.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Simbuerger et al. to include the teaching of Yang et al. to make multilayered confectionery products can be made by any suitable co-extrusion, co-depositing and/or laminating concurrently with any ornamental features ([0056]) of desired design and choice.
30. Claims 1, 6-8, 35 are rejected under 35 U.S.C. 103 as being unpatentable over Lund et al. US 2013/0302499 in view of Kamper et al. (US 2009/0081349 A1) and in view of Volker et al. USPN 6562394 and further in view of Simbuerger et al. (US 2011/0183049) and as evidenced by NPL Planetary extruder vs Marbit Rope.
31. Regarding claims 1, 35 it is to be noted that regarding claim 35, claim 35 depends on amended claim 1. The claimed mixing step to remove moisture during said mixing within the planetary roller mixer are identical for claim 35 because claim 35 depends on claim 1. Therefore, this claimed step of ‘moisture removal’ as claimed in claim 35 is under identical condition as claimed in amended independent claim 1. Therefore, this claimed step of ‘moisture removal’ is under identical condition for both the claim 1 and claim 35. Therefore, claim 35 does not further contribute any additional functional claim language by including the phrase “absent any boiling of said plurality of ingredients”.
However, optionally, examiner is including rejection of claim 35 along with amended independent claim 1 and addressed below.
32. Regarding claims 1, 35, Lund et al. discloses a method for the production of aerated confectionery food product (Abstract) using an extruder having 5 barrels containing different sections performing different functions (Fig 1) e.g. having port 2 for adding dry ingredients and wet content ingredients added to port 3 followed by heating at a temperature 120-125 degree Cat sections 10 -12, followed by cooling in section 13 and pressurized gas is suitably added to aerate the product in port 6 to obtain a good mixing of the gas into the aerated product ([0101], Fig 1) followed by extruding the aerated product (at least in [0010], [0014], [0101], Fig 1).
Lund et al. is silent about “forming crystals”.
It is to be noted that the crystallization depends on the ingredients used in the composition.
Regarding “crystallized” confectionery product, Kamper et al. discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042]) and the ingredient can include polyol (i.e., sugar reduced product), sugar as sugar crystal ([0042]) which provides the property of desired texture and better control of the desired end product property ([0115]). Kamper et al. discloses that after dissolving the starting materials the hot slurry is typically clear, as the slurry cools crystallinity increases with a preferred range of 22%-28% crystallinity ([0042]).
It is also to be noted that ingredients like sugar crystal, polyol would have been obvious to have the crystal property.
Kamper’s sugar reduced aerated composition can use sucrose as polyol as disclosed by Volker et al. (col 9 lines 15-18) which has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g., lines 26-30) which meets “forming crystal in mixer” of claim 1 and meet “crystals occur as a result of mechanical shear generated by said mixer” as claimed in claim 9.
Regarding the phrase “at a given temperature can be considered as nonspecific temperature which depends on the type of ingredient, therefore, can be considered any temperature including mixing temperature at room temperature or higher than room temperature due to heat generated during mixing time. Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 1.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Lund et al. to include the teaching of Kamper et al. who discloses that the first heterogeneous continuous phase includes a multiplicity of crystals (At least in Abstract, [0042], [0043], [0116]) which is contributed by using polyol (i.e. sugar reduced product), which provides the property of desired texture and better control of the desired end product property ( [0115]), provides the property of desired texture and better control of the desired end product property ( [0115]).
(Additionally), Volker et al. discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content. Volker et al. also discloses that it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g., lines 26-30). Therefore, it would have been obvious that the crystals generated due to mechanical shear as claimed in amended claim 1.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Lund et al. to include the teaching of Volker et al. who discloses that sucrose can be used as polyol (col 9 lines 15-18) in order to have reduced sugar content and it has the property to make crystals under shear and cooling condition as disclosed by Volker et al. (col 7 lines 5-35, e.g. lines 26-30) and this will also provide additional texture in the final product.
Therefore, the combined teaching provides information that the polyol and/or its derivative forms crystals in said confectionery composition while it is in planetary rotary extruder (PRE) as claimed in claim 1.
Regarding the claim limitation of “1-9% moisture content of the final
confectionery composition”, it is to be noted that Kamper et al. also discloses that depending on the type of the final confectionery product, drying condition can be optimized to get desired moisture content (in Kamper et al. [0107]-[0108], [0072], [0081]-[0087]), and moisture amount can be 1%-6% also (at least in [0072]) which meets the claimed moisture content of 1-9% as claimed in the amended claim 1. It is also to be noted that it is within the skill of one of ordinary skill in the art to optimize the moisture content in order to have desired softness to make a soft, chewy candy or hard candy as claimed in claim 1.
Absent showing of unexpected results, the specific amount of moisture content is not considered to confer patentability to the claims. As the taste, texture are variables (2) that can be modified, among others, by adjusting the amount of moisture content in the final confectionery composition, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of moisture content in Lund et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. taste, texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Lund et al. in view of Kamper et al. and Volker et al. are silent about (i) planetary rotor extruder.
Simbuerger et al. discloses that continuous conche may be provided by the planetary roller extruder with one or more shafts having a helical structure at their periphery, however, planetary roller extruder advantageously provide the required heat transfer and uniform distribution of heat to the ingredients, the necessary mixing and shearing thereof, with the prevention of the adherence of the ingredients in the apparatus ([0009], [0010]) in order to produce a homogeneous chocolate mass in a continuous, highly efficient process heat transfer, homogeneous mixing of superior quality which is common to the extruder apparatus used for making any such related products including candy etc. in a continuous and highly efficient process ([0009], [0010]) which provides an effective time management, therefore, cost effective manner.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Lund et al. in view of Kamper et al. to include the teaching of Simbuerger et al. who discloses that particularly a planetary roller extruder (PRE) can be used to make such confectionery product which provides the continuous conches, required heat transfer, necessary mixing and shearing thereof in order to make homogeneous mixing in a continuous and highly efficient process ([0009]) with the prevention of the adherence of the ingredients in the apparatus ([0010]).
It is to be noted that Lund et al. discloses marbit rope ([0029]). It is known and as evidenced by NPL Planetary extruder vs Marbit rope that marbit rope is a candy and candy rope can be made by planetary roller extruder (Page 1). Simbuerger et al. also discloses that chocolate or chocolate-like (i.e. confectionery) ([0008]). Therefore, Lund et al. is combinable to Simbuerger et al. and Lund’s marbit rope as confectionery meet claimed candy as claimed in claim 1.
(Additionally), according to MPEP 2143.01, “Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis)”.
33. Regarding claims 1, 35, it is to be noted that claim 35 has 112 fourth paragraph rejection. As discussed under 112 second paragraph rejection, it is also applicable here that claim 35 does not further contribute any additional functional claim language by including the phrase “absent any boiling of said plurality of ingredients”. Amended claim 1 and claim 35 recite “ removing moisture from said confectionery composition during said mixing within said planetary roller extruder”, it is to be noted that Simbuerger et al. discloses mixing (at least in [0009], [0010], [0028]) step using the planetary roller extruder which advantageously provide the required heat transfer to the ingredients, the necessary mixing and shearing thereof, in order to produce a homogeneous chocolate mass in a continuous, highly efficient process (at least in [0009]-[0010]). Therefore, it is mixing and heating is performed in the planetary roller extruder in order to produce a homogeneous chocolate mass. It is known that heating step removes moisture (water). Therefore, it meets the claim limitation of “ further comprising removing moisture from said confectionery composition during said mixing within said planetary roller extruder “ as claimed in independent claim 1, and the heat is transferred and heat generated by mixing and shearing process also which would have obvious “absent any boiling of said plurality of ingredients” as claimed in claim 35. It is also to be noted that Simbuerger et al. discloses “heating” and not boiling”. Therefore, it reads on “absent any boiling of said plurality of ingredients. One of ordinary skill in the art would have been motivated with reasonable expectation of success to mix and heat the ingredients by avoiding boiling temperature which can be too much temperature harmful for some sensitive ingredients and also can control heating with desired duration of time to remove desired amount of moisture , however, protecting the sensitive ingredients from high temperature including boiling temperature. This is optimizable.
Absent showing of unexpected results, the specific amount of heating temperature is not considered to confer patentability to the claims. As the moisture removal are variables that can be modified, among others, by adjusting the amount of temperature and time of heating, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of heating temperature below boiling temperature in Simbuerger et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired mixing with heat to make homogeneous mixture with desired moisture removal absent any boiling said plurality of ingredients (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
34. Regarding clams 6, 7, Lund et al. discloses a method of producing an aerated product by mixing the ingredients in a mixer and adding a pressurized gas to the mixer (at least in [0014], [0015]) in order to have a desired density, and/or moisture when the product leaves the extruder (at least in [0022]) and the density ca be 0.1 to 1.0 gm/cc (at least in [0036]). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d.
35. Regarding claim 8, Lund et al. discloses a method of producing an aerated product by mixing the ingredients in a mixer and adding a pressurized gas to the mixer (at least in [0014], [0015]).
Response to arguments
36. Applicant’s arguments and amendments as filed on 11/20/2025 have been considered. However, they are not persuasive. The reasons are discussed below.
37. Applicant’s argued in Remarks, on third page, mid-section that “None of the cited art, alone or combined, teaches or suggests using a planetary roller extruder for preparing a soft, chewy candy or a hard candy confectionery by forming crystals in a confectionery composition while the confectionery composition is in the planetary roller extruder (claims 1 and 28), or further wherein forming crystals in the confectionery composition occurs as a result of mechanical shear generated by the planetary roller extruder (claim 1)”. Applicants’ arguments include three bullets from third page, mid-section to fourth page as argued for the prior arts by Lund , Kamper and Volker et al.
In response, it is to be noted that applicants argued that Lund et al., Kamper et al., Volker et al. do not teach or suggest using a planetary roller extruder to prepare confectionery is understood. However, examiner did not use these prior arts to address “a planetary roller extruder”. Examiner used Simburger et al. to address a planetary roller extruder. Examiner also used Simburger et al. as primary prior art to reject all the claims in this office action. The arguments made for Simburger et al. is addressed below.
38. Applicants argued in Remarks, on fourth page, second bullet that “Simbuerger fails to teach or suggest the claimed forming crystals in a confectionery composition while it is in the planetary roller extruder or wherein forming crystals occurs as a result of mechanical shear generated by the planetary roller extruder. The continuous conche of chocolate as described in Simbuerger involves no crystallization at all; instead, it is a process that mixes chocolate ingredients to produce a homogeneous chocolate mass. (Simbuerger, [0009])”.
In response, it is to be noted that examiner used secondary prior art by Kamper to modify Simbuerger to include polyol in the ingredients which has the properties to make crystal under this condition and discussed in detail in the office action above.
It is also to be noted that Simbuerger’s planetary roller extruder is used to achieve desired benefit of having confectionery product which provides the continuous conches, required heat transfer, necessary mixing and shearing thereof in order to make homogeneous mixing in a continuous and highly efficient process ([0009]) with the prevention of the adherence of the ingredients in the apparatus ([0010]). It is also to be noted that Simbuerger et al. have disclosed identical method with the ingredients under the identical mechanical shearing condition with desired heat transfer uniformly as contributed by ‘planetary roller extruder’ used to achieve desired benefit and the disclosed method with ‘planetary roller extruder’ is identical to the claimed method, having identical claimed property responsible for making crystals under identical mechanical shearing condition with desired heat transfer uniformly as contributed by ‘planetary roller extruder’ as discussed in the office action above.
39. Applicant’s arguments related to NPL planetary extruder vs Marbit rope as argued on fourth page, under 4th bullet , is not persuasive because this is not secondary prior art. This is used as an evidentiary reference in the office action.
The rejection is made as non-final.
Conclusion
40. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571 -272-1000.
/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792