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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-14, 17, 19-23 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, claim 1 has been amended to recite “wherein the coating presses the colored carbohydrate particles deeper into the heterogeneously structured chewing gum cores such that the colored carbohydrate particles protrude with 60 to 90% of the particle diameter into the chewing gum core mass of the shaped chewing gum body”. While Applicant points to support for the amendments at Pg. 13 second to last paragraph, this does not provide sufficient support that the coating presses on the particles to cause them to protrude deeper into the chewing gum as claimed. In the specification it is only the roller which presses the particles into the gum, prior to the gum being coated. The specification does not disclose that the coating presses the particles into the gum and the specification especially does not disclose that the coating presses the colored carbohydrate particles deeper into the heterogeneously structured chewing gum cores such that the colored carbohydrate particles protrude with 60 to 90% of the particle diameter into the chewing gum core mass of the shaped chewing gum body. The specification also does not disclose that the coating presses the particles further into the gum after the particles have already been pressed into the gum by the rolling step. Therefore, the new claim limitation raises an issue of new matter.
Regarding claims 22, and 23, claims 22 and 23 are rejected for the same reasons given above as for claim 1.
Claims 2-14, 17, 19-21 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1, 3-5, 7-13, 17, 19 and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Jani US 2013/0202734 in view of Serpelloni US 4,744,991 in view of Day US 2003/0008062 in view of Baldi et al. US 2018/0070606 in view of Witzel US 3,962,463.
Regarding claim 1, Jani discloses a method for producing a coated chewing gum, having a heterogeneously structured chewing gum core ([0285]) and a coated surface layer ([0273]), comprising the following method steps:
a) providing chewing gum core components, (while deleted from the claim, it is noted that Jani teaches that the chewing gum core components include at least one chewing gum base and at least one first carbohydrate ([0086], [0124])-the chewing gum base and the at least one first carbohydrate is required in dependent claims), confectionary particles ([0008], [0284]) and a coating medium ([0273]);
b) mixing and kneading the chewing gum core components to obtain a chewing gum core mass (the mixing system 502 is shown as an extruder) ([0284], Fig. 4);
c) extruding the chewing gum core mass to obtain an extruded shaped chewing gum body (preforming extruder 504) ([0284], Fig. 4);
d) scattering confectionery particles on a surface of the extruded shaped chewing gum body (confectionary articles sprinkled on web of gum 510) ([0284], Fig. 4);
e) rolling the shaping chewing gum body obtained in step e) to obtain heterogeneously structured chewing gum cores (sprinkled confectionary materials are embedded into the top surface of the finished gum as the compression roller 514 smoothes the surface of the sprinkled web of finished gum) ([0284], [0008], Fig. 4);
f) cutting the rolled shaped chewing gum body obtained in step e) to obtain heterogeneously structured chewing gum cores (the web of sprinkled finished gum is then scored and divided using scoring roller 516 and dividing roller 518) ([0284], [0275], [0273]);
g) coating the heterogeneously structured chewing gum cores obtained in step f) (the gum manufacturing system can produce a chewing gum having various final shapes such as pellets that are subsequently coated) ([0273]);
claim 1 differs from Jani in the recitation that the confectionary particles are specifically colored carbohydrate particles with a particle diameter of 0.5 to 1.6mm.
Serpelloni discloses a method for producing a heterogeneously structured chewing gum core (col. 1, lines 5-10, 61, 65) comprising:
a) providing chewing gum core components including at least one chewing gum base and at least one first carbohydrate (col. 1, lines 14-21), and providing colored carbohydrate particles with a particle diameter of 0.5mm to 1.5mm (500micrometers- 1500 micrometers =0.5 mm-1.5mm) (col. 1, lines 29-46);
b) mixing and kneading the chewing gum core components (col. 1, lines 49-56);
c) extruding the chewing gum core components to obtain an extruded shaped chewing gum body (col. 1, lines 57-58) and rolling and cutting up the extruded shaped chewing gum body (col. 1, lines 57-60);
Serpelloni discloses that the purpose the colored carbohydrate particles are to give the gum a speckled appearance to attract the interest of a consumer (col. 1, lines 29-31) as they are embedded into the gum base (col. 1, lines 61-65). It would have been obvious to one of ordinary skill in the art to modify the confectionary particles of Jani to be colored carbohydrate particles with a particle diameter of 0.5mm to 1.5 mm as taught by Serpelloni in order to provide the gum of Jani with a speckled appearance to attract the interest of a consumer. Additionally, Jani does not limit the particular confectionary material that is sprinkled on the surface of the gum ([0008]) and it would have been obvious to select a known material for embedding into gum to obtain the predictable result of providing a gum having a speckled appearance (MPEP 2144.07, MPEP 2143.I.B).
Additionally, Day discloses gum comprising a solid particulate with a particle size of from about 100 micrometers to about 2000 micrometers ([0002], [0060]). Day discloses that the solid particulate can be sugar and therefore teaches carbohydrate particles ([0060]). Day discloses the solid particulate imparts the crunchy texture to the composition which is detectable during the first few minutes of mastication ([0002]). Day discloses that it is believed that a detectable "crunch" can be conferred to the compositions by ensuring that each individual particle of the solid particulate has a diameter of between about 100 micrometer (0.1mm) and about 2000 micrometer (2mm). It additionally would have been obvious to one of ordinary skill in the art to modify the confectionary particles of modified Jani to be colored carbohydrate particles with a particle diameter of 0.5mm to 1.6 mm as suggested by Day in order to provide the product of modified Jani with a desirable detectable crunch.
Claim 1 differs from Jani in the recitation that the coating is a transparent coating medium containing at least one second carbohydrate, such that the method is for producing transparently coated chewing gum having a transparent surface layer enveloping the heterogeneously structured chewing gum core.
Baldi discloses a method for producing transparently coated chewing gum having a transparent coated surface layer enveloping a gum core ([0008], [0011], [0031], [0047]). Baldi discloses that the transparent coating medium contains at least one second carbohydrate ([0030], [0031], [0008], [0001]). Baldi discloses that the coating is crunchy ([0008]) and provides a desired appearance by allowing the gum core to be seen ([0057], [0058], [0047], [0050]). It would have been obvious to one of ordinary skill in the art to modify the coating of Jani such that the coating is a transparent coating medium containing at least one second carbohydrate and such that the method is for producing transparently coated chewing gum having a transparent surface layer enveloping the heterogeneously structured gum core as suggested by Baldi in order to provide the chewing gum with a desired appearance and texture. It is noted that Jani does not limit the particular coating that is applied to the chewing gum ([0090], [0273]) and it would have been obvious to select a known material for coating gum to obtain the predictable result of providing a transparently coated chewing gum (MPEP 2144.07, MPEP 2143.I.B, MPEP 2143.I.A).
Claim 1 differs from Jani in view of Serpelloni in view of Baldi in the recitation that the carbohydrate particles protrude with 1% to 50% of the particle diameter into the chewing gum core mass of the shaped chewing gum body.
Jani discloses that a downstream compression roller is employed to smooth out irregularities and that the compression roller may also or alternatively serve the purpose of pressing candy sprinkles or other confectionary ingredient ([0008]). Thus, Jani teaches that the purpose of the compression roller can be solely for the purpose of pressing candy sprinkles or other confectionary ingredient into the surface of the gum and smoothing the surface of the gum by the compression roller is not required.
Witzel discloses that solid flavor particles may be deposited or impregnated on the surface of the gum which will ordinarily have a thickness ranging from about 1250 microns to about 1800 microns in a manner such that the solid particles penetrate the gum surface to a depth of at most 10% and preferably about 36 to about 42 microns (col. 1, lines 49-68, col.2, lines 1-5). Witzel teaches that thus the flavor particles do not penetrate the surface of the gum stick to any substantial degree and thus the interior of the gum can be substantially free of flavor particles (col.2, lines 1-5). Witzel teaches the flavor particles can have a size from about 1 to about 100 microns (claim 3) and Witzel teaches that the flavor particles can penetrate the surface of the gum to a depth within the range from about 35 microns to about 230 microns (claim 1). Thus, Witzel suggests that particles having a size of 100 microns can be penetrated a depth of about 35 microns. Witzel therefore teaches that particles can protrude with 35% of their diameter into the chewing gum. Witzel teaches that the purpose of the invention includes to prepare a chewing gum stick having flavoring ingredients deposited on the surface, and that substantially all the flavoring ingredients are available to affect the taste buds of the consumer rather than having a substantial portion of the flavoring ingredient absorbed by the gum base (col. 1, lines 33-46). It would have been obvious to one of ordinary skill in the art to modify Jani in view of Serpelloni in view of Baldi such that the carbohydrate particles protrude with about 35% of their average diameter into the chewing gum core mass of the shaped chewing gum body suggested by Witzel so that substantially all the flavoring ingredients are available to affect the taste buds of the consumer rather than having a substantial portion of the flavoring ingredient absorbed by the gum base.
Claim 1 differs from Modified Jani in the recitation that the coating presses the colored carbohydrate particles deeper into the heterogeneously structured chewing gum cores such that the colored carbohydrate particles protrude with 60 to 90% of the particle diameter into the chewing gum core mass of the shaped chewing gum body.
However, since Modified Jani discloses performing the process as claimed and applying the same coating as claimed, and “when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (MPEP 2112.01), the coating of modified Jani is seen to inherently press the colored carbohydrate particles deeper into the heterogeneously structured chewing gum cores such that the colored carbohydrate particles protrude with 60 to 90% of the particle diameter into the chewing gum core mass of the shaped chewing gum body, since claimed properties or functions are presumed to be inherent.
Additionally, Jani discloses that the compression roller serves to press candy sprinkles or other confectionery in the gum or smooth out any irregularities ([0008]). Where Jani discloses desiring a smooth product Jani suggests particles can be protrude with 100% particle diameter into the gum. Jani also specifically discloses varying the texture of the finished gum ([0090]), thus suggesting that the particles can protrude with less than 100% of the particle diameter into the gum. Thus, Jani suggests the surface can be smooth or textured. As discussed above, Witzel teaches that the purpose of the invention includes to prepare a chewing gum stick having flavoring ingredients deposited on the surface, and that substantially all the flavoring ingredients are available to affect the taste buds of the consumer rather than having a substantial portion of the flavoring ingredient absorbed by the gum base (col. 1, lines 33-46). Thus, it is noted that the prior art as a whole recognizes that particles can be used on the surface of gum for providing a final gum with a desired appearance, texture and taste and it would have been obvious to one of ordinary skill in the art to routinely adjust the depth of the particles including to values presently claimed based on the desired appearance, texture and taste of the final chewing gum (MPEP 2144.05.II). Further, Jani discloses that the roller can be used to adjust the depth of the particles and the addition of any additional layer would add pressure based solely on its weight to the particles and would therefore push the particles even further into the layer. Therefore, between the rolling of Jani and the addition of the coating as taught by the prior art above, it would have been well within the ability of one of ordinary skill in the art to adjust the depth of the particles to within 60-90% of the particle diameter into the chewing gum mass.
Regarding claim 3, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the colored carbohydrate particles are polyol particles (‘991, col. 1, lines 35-46, col. 4, lines 24-42).
Regarding claim 4, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the colored carbohydrate particles generally have a particle diameter of 0.5mm to 1.5mm (500micrometers- 1500 micrometers =0.5 mm-1.5mm) (‘991, col. 1, lines 29-46, col. 4, lines 24-42), therefore it is obvious that at least 80% by weight of the colored carbohydrate particles provided in step a) based on the total dry matter of the colored carbohydrate particles, have a particle diameter of 0.5mm to 1.5mm.
Regarding claim 5, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the colored carbohydrate particles contain at least one flavoring substance (‘991, col. 1, lines 35-46, col. 4, lines 24-42).
Regarding claim 7, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the at least one first carbohydrate is a polyol (‘734, [0124], [0125]).
Regarding claim 8, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that in addition to the at least one chewing gum base and the at least one first carbohydrate, further chewing core components include intense sweeteners (‘734, [0094], [0129], [0130]).
Regarding claim 9, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the intense sweeteners can include aspartame, sucralose and acesulfame-K (‘734, [0129], [0130]).
Regarding claim 10, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the rolled shaped chewing gum body is cut in step f) in the form of a strip (‘734, [0275]).
Regarding claim 11, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the at least one second carbohydrate contained in the transparent sugar-coating medium is a polyol (isomalt) (‘606, abstract, [0008]).
Regarding claim 12, Jani in view of Serpelloni in view of Baldi in view of Witzel discloses that the at least one second carbohydrate contained in the transparent sugar-coating medium is isomalt (‘606, abstract, [0008]).
Regarding claim 13, Jani in view of Serpelloni in view of Baldi in view of Witzel discloses that the method step g) is carried out in at least two cycles (steps are repeated up to 100 times) (‘606, [0011]).
Regarding claim 17, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the chewing gum core components comprise at least one chewing gum base and at least one first carbohydrate (‘734, [0086], [0124]).
Regarding claim 19, Jani in view of Serpelloni in view of Baldi in view of Witzel disclose that the at least one first carbohydrate is isomalt (‘734, [0124], [0125]).
Regarding claim 21, Jani in view of Serpelloni in view of Baldi in view of Witzel discloses that the method step g) is carried out in 5-100 cycles (steps are repeated up to 100 times) (‘606, [0011]).
Regarding claims 22 and 23, claims 22 and 23 are rejected for the same reasons given above as for claim 1.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Jani US 2013/0202734 in view of Serpelloni US 4,744,991 in view of Day US 2003/0008062 in view of Baldi et al. US 2018/0070606 in view of Witzel US 3,962,463 in view of Heggie US 3,205,075.
Regarding claim 2, claim 2 differs from Jani in view of Serpelloni in view of Baldi in view of Witzel in the recitation that the proportion of the colored carbohydrate particles in the chewing gum mass is from 3 to 20% by weight based on the total chewing gum core mass. It is noted that Jani does not limit the particles amount of confectionary material sprinkled onto the chewing gum mass.
Heggie discloses pressing edible materials into gum (col. 2, lines 3-7) and discloses that an amount of the edible material pressed into the gum can be 5-15wt% based on the total weight of the gum and that the concentration of the edible material can be varied to obtain the desired effect in the finished gum (col. 1, lines 51-61). It would have been obvious to one of ordinary skill in the art to modify Jani in view of Serpelloni in view of Baldi such that the proportion of the colored carbohydrate particles in the chewing gum mass is from 5 to 15% by weight based on the total chewing gum core mass as suggested by Heggie in order to provide a desired effect in the finished gum.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Jani US 2013/0202734 in view of Serpelloni US 4,744,991 in view of Day US 2003/0008062 in view of Baldi et al. US 2018/0070606 in view of Witzel US 3,962,463 in view of Ribadeau-Dumas US 2015/0313255.
Regarding claim 6, claim 6 differs from Jani in view of Serpelloni in view of Baldi in view of Witzel in the recitation that the chewing gum core mass obtained in method step b) has 40 to70% by weight of the at least one first carbohydrate based on the total dry mater of the chewing gum core components. It is noted that Jani discloses that the first carbohydrate can be a polyol, including sorbitol (‘734, [0124]).
Ribadeau-Dumas discloses that a chewing gum composition can contain 1-95wt%, preferably 20-60wt% of sorbitol based on the total weight of the chewing gum composition ([0032]-[0035]). Thus Ribadeau-Dumas recognizes that the claimed amounts of first carbohydrate are known suitable amounts of carbohydrate (sorbitiol) to include in chewing gum compositions, and thereby suggests that such amounts provide a desired amount of sweetening for a chewing gum composition (see abstract, sorbitol is used as sweetener). It would have been obvious to one of ordinary skill in the art to modify Jani in view of Serpelloni in view of Baldi in view of Witzel such that the chewing gum core mass obtained in method step b) has 20 to 60% by weight of the at least one first carbohydrate based on the total dry mater of the chewing gum core components, overlapping the claimed range (MPEP 2144.05.I), as taught by Ribadeau-Dumas in order to provide the chewing gum with a desired amount of sweetening. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Jani US 2013/0202734 in view of Serpelloni US 4,744,991 in view of Day US 2003/0008062 in view of Baldi et al. US 2018/0070606 in view of Witzel US 3,962,463 in view of Kowalczyk et al. US 2009/0208602.
Regarding claim 14, claim 14 differs from Jani in view of Serpelloni in view of Baldi in view of Witzel in the recitation that the transparently coated gum obtained in method step h) comprises 15-50% by weight of transparent surface layer based on the total dry matter of the coated chewing gum.
It is noted that Baldi discloses providing the transparent coating as 30% of the finished chewing gum product (Table 1).
Kowalczyk discloses that it is preferred that a coated product comprises 15 to 70wt%, preferably 25 to 45wt% of product coating based on dry weight of the overall coated product ([0030]). Kowalczyk discloses that the product to be coated is a chewing gum ([0022], [0024], [0079]). Thus, Kowalcyzk recognizes that suitable/desirable amounts of coating for chewing gum includes 15 to 70wt%, preferably 25 to 45wt% of product coating based on dry weight of the overall coated product. It would have been obvious to one of ordinary skill in the art to modify Jani in view of Serpelloni in view of Baldi in view of Witzel such that the transparently coated gum obtained in method step h) comprises 15-50% by weight of transparent surface layer based on the total dry matter of the coated chewing gum as taught by Kowalcyzk in order to provide the chewing gum with a desired amount of coating. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Jani US 2013/0202734 in view of Serpelloni US 4,744,991 in view of Day US 2003/0008062 in view of Baldi et al. US 2018/0070606 in view of Witzel US 3,962,463 in view of Segawa et al. US 2016/0029658 in view of Kowalczyk et al. US 2009/0208602.
Regarding claim 20, claim 20 differs from modified Jani in the recitation that the isomalt contained in the transparent coating medium is isomalt with a ratio of the components claimed.
Segawa discloses that isomalt can be prepared by hydrogenating isomaltulose. Products of the hydrogenation can include 6-O-α-D-glucopyranosyl-D-sorbitol (1,6-GPS); 1-O-α-D-glucopyranosyl-D-sorbitol (1,1-GPS); 1-O-α-D-glucopyranosyl-D-mannitol (1,1-GPM); 6-O-α-D-glucopyranosyl-D-mannitol (1,6-GPM); and mixtures thereof. Some commercially available isomalt materials include an almost equimolar mixture of 1,6-GPS, and 1,1-GPM. Other isomalt materials can include pure 1,6-GPS; 1,1-GPS; 1,6-GP; and 1,1-GPM. Still other isomalt materials can include mixtures of 1,6-GPS; 1,1-GPS; 1,6-GPM; and 1,1-GPM at any ratio ([0044]). Segawa discloses that the isomalt can be used to form a transparent hard candy shell ([0064], [0066]). Therefore, Segawa suggests that any ratio of 1,6 GPS and 1,1 GPM is considered an isomalt composition and can be used to form a transparent candy shell.
Kowalczyk discloses that isomalt GS is a mixture of 71-79% 1,6-GPS and 29 to 21% 1,1-GPM ([0011], [0010]). Kowalczyk discloses that the isomalt is used in a coating composition for confectionery ([0044]).
Thus, Segawa and Kowalczyk as a whole suggest that a mixture of 71-79% 1,6-GPS and 29 to 21% 1,1-GPM can be used as the isomalt composition used to form a transparent candy shell.
It would have been obvious to one of ordinary skill in the art to modify Jani in such that the isomalt contained in the transparent coating medium is isomalt with a ratio of the components claimed as suggested by Segawa and Kowalczyk, since it would have been obvious to substitute one known isomalt composition for another known isomalt composition to obtain predictable results (MPEP 2143.I.B, MPEP 2144.06.II).
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered however, it is noted that the new limitations raise 112a issues. Regarding the 112a issues, while Applicant points to support for the amendments at Pg. 13 second to last paragraph, this does not provide sufficient support that the coating presses on the particles to cause them to protrude deeper into the chewing gum as claimed.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
Prosecution Insights