DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 24, 2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation “wherein the chewy center does not comprise gum Arabic or other hydrocolloids gelling agents different than gellan gum” in lines 8-9. It appears the claim should recite “wherein the chewy center does not comprise gum Arabic or other hydrocolloid gelling agents different than gellan gum,” i.e. “hydrocolloids” (plural as currently recited) should be “hydrocolloid” (singular) for grammatical purposes.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The 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 of this title, 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 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 nonobviousness.
Claims 1, 4, 8, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 or alternatively Claims 1, 4, 8, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 20070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597.
Regarding Claim 1, Overly III et al. discloses a confectionery product (confectionary product 12) (‘549, Paragraph [0013]) including a gelatine free chewy center (center 20) (‘549, Paragraphs [0014] and [0019]) comprising sugar (‘549, Paragraph [0027]), and dextrin (‘549, Paragraph [0026]), and a layer of at least partially amorphous candy material (amorphous portion 16) surrounding the chewy center (center 20) (‘549, Paragraph [0014]). Overly III et al. also discloses the chewy center (center 20) comprising sucrose and corn syrup (‘549, Paragraphs [0016] and [0026]). Bartz et al. provides evidence that it was known in the confection art that corn syrup is a type of glucose syrup (‘368, Paragraph [0024]) and is useful in making a gelatin free chewy confectionery product (‘368, Paragraph [0035]).
Overly III et al. as further evidenced by Bartz et al. is silent regarding the chewy center comprising gellan gum wherein the chewy center does not comprise gum Arabic or other hydrocolloid gelling agents different than gellan gum and the ratio of sugar/glucose syrup in the chewy center ranging from 70:30 to 99:1 on a dry weight basis.
Baldi et al. discloses a confectionery product comprising a chewy center comprising sugar (‘606, Paragraph [0067]) and gellan gum (‘606, Paragraph [0072]) and a layer of candy material (hard coating) surrounding the chewy center (‘606, Paragraph [0011]). Baldi et al. discloses the center consisting of jelly candy material that is sugar based and contains one or more gelling agents such as gellan (‘606, Paragraph [0072]), which indicates that Baldi et al. envisages an embodiment wherein gellan gum is used as the sole geling agent in the chewy center.
Both Overly III et al. and Badli et al. are directed towards the same field of endeavor of confectionary products. Both confectionery products of Overly III et al. and Baldi et al. comprise a chewy center comprising sugar and a layer of candy material surrounding the chewy center. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confectionary product of Overly III et al. and make the chewy center with a gelling agent of solely gellan without gum Arabic or other hydrocolloid gelling agents different than gellan gum as taught by Baldi et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Baldi et al. teaches that there was known utility in the confection art to use only gellan gum as a gelling agent in a chewy center of the confection.
Further regarding Claim 1, Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. is silent regarding the ratio of sugar/glucose syrup in the chewy center ranging from 80:20 to 99:1 on a dry weight basis. However, Overly III et al. discloses controlling the crystallinity of the chewy material by adjusting the sweeteners in the chewy material wherein increasing the amount of corn syrup relative to the amount of sugar in the chewy material decreases crystallization (‘549, Paragraph [0025]) and that the chewy material includes sweeteners including corn syrup and sucrose (‘549, Paragraph [0026]). Srnak et al. provides evidence that it was known in the food art that corn syrup is a type of glucose syrup (‘188, Paragraph [0011]) useful as an ingredient in a gelatin free chewy confectionery product containing no animal derived components (‘188, Paragraph [0008]) wherein the chewy confectionery product comprises sucrose and an additional sweetener of glucose syrups including corn syrup (‘188, Paragraph [0011]). Therefore, the corn syrup that is used in combination with sugar disclosed by Overly III et al. is a type of glucose syrup as evidenced by Srnak et al. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the ratio of sugar to glucose syrup in the chewy center of Overly III et al. since differences in the concentration ratio of sugar to glucose syrup in the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration ratio of sugar to glucose syrup in the chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration ratio of the sugar to glucose syrup in the chewy center of Overly III et al. based upon the desired crystallinity of the chewy material (‘549, Paragraph [0025]).
Further regarding Claim 1, in the event that it can be shown with objective evidence that the claimed concentration ratio of sugar to glucose syrup in the gelatin free chewy center ranging from 80:20 to 99:1 on a dry weight basis is critical, Oxfood discloses a confectionery product comprising a chewy center (pistachio nougat) comprising sugar and glucose syrup (liquid glucose). Bakker et al. provides evidence that it was known in the food art that nougat is a type of chewy confection (‘011, Paragraph [0033]). Varvil et al. also provides evidence that it was known in the food art that chewy nougat is known to be formed as a core of a chocolate coated candy bar confectionery product (‘597, Column 1, lines 46-56). Therefore, the nougat disclosed by Oxfood reads on the claimed chewy center of a confectionery product as further evidenced by Bakker et al. and Varvil et al. Oxfood also discloses a nougat recipe comprising 375 g caster sugar and 25 g liquid glucose, which indicates a concentration ratio of sugar/sucrose to glucose syrup/liquid glucose of 375 g sugar / 400 g solution : 25g liquid glucose / 400 g solution, which converts to a ratio of sugar to glucose syrup concentration ratio of 93.75:6.25, which falls within the claimed ratio of sugar to glucose syrup in the chewy center of 80:20 to 99:1 on a dry weight basis.
Both modified Overly III et al. and Oxfood are directed towards the same field of endeavor of chewy centers for confectionery food products comprising sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the chewy center of modified Overly III et al. and incorporate the claimed concentration ratio of sugar to glucose syrup in the chewy center as taught by Oxfood since where the claimed concentration ratio of sugar to glucose syrup in the chewy center encompasses concentration ratio of sugar to glucose syrup in the chewy center disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Oxfood discloses liquid glucose incorporated into a chewy center of nougat prevents larger crystals from forming by bonding temporarily to the crystal surface and blocking the way of sucrose molecules wherein smaller crystals form making for a smoother, finer, more desirable nougat. One of ordinary skill in the art would adjust the ratio of sugar to glucose syrup in a chewy center of a confectionery product based upon the desired smoothness of the chewy center nougat.
Regarding Claim 4, Overly III et al. discloses the moisture content in the gelatin free (‘549, Paragraph [0019]) chewy center ranging from 6% to 7% by weight (‘549, Paragraph [0037]), which falls within the claimed moisture content in the gelatin free chewy center ranging from 6% to 10% by weight compared to the total weight of the gelatin free chewy center. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content in the gelatin free chewy center of modified Overly III et al. and incorporate a moisture content in the gelatine free chewy center in the claimed moisture concentration as since where the claimed moisture content in the gelatine free chewy center ranges overlaps moisture content in the gelatine free chewy center ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the moisture levels of the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such moisture levels in the gelatine free chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Overly III et al. teaches that the moisture content of the respective layers influences the chewiness and crunchiness of the confection (‘549, Paragraph [0022]). One of ordinary skill in the art would adjust the moisture content of the gelatine free chewy center based upon the desired chewiness and/or crunchiness of the gelatine free chewy center.
Regarding Claim 8, Overly III et al. discloses the moisture content of the at least partially amorphous candy layer being 4% (‘549, Paragraph [0028]), which falls within the claimed moisture content in the at least partially amorphous candy layer ranging from 4% to 8% by weight compared to the total weight of the at least partially amorphous candy layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the moisture content in the at least partially amorphous candy layer of modified Overly III et al. and incorporate a moisture content in the at least partially amorphous candy layer in the claimed moisture concentration as since where the claimed moisture content in the at least partially amorphous candy layer ranges overlaps moisture content in the at least partially amorphous candy layer ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the moisture levels of the at least partially amorphous candy layer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such moisture levels in the at least partially amorphous candy layer is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Overly III et al. teaches that the moisture content of the respective layers influences the chewiness and crunchiness of the confection (‘549, Paragraph [0022]). One of ordinary skill in the art would adjust the moisture content of the at least partially amorphous candy layer based upon the desired chewiness and/or crunchiness of the at least partially amorphous candy layer.
Regarding Claim 20, Overly III et al. discloses at least one coating layer (outer layer 22) (‘549, FIG. 3) (‘549, Paragraphs [0005]-[0006] and [0014]).
Claims 3 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 as applied to claim 1 above in further view of Havranek et al. WO 2019/055626 (cited on Information Disclosure Statement filed June 15, 2022) or alternatively Claims 3 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 as applied to claim 1 above in further view of Havranek et al. WO 2019/055626 (cited on Information Disclosure Statement filed June 15, 2022).
Regarding Claim 3, Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. as further evidenced by Srnak et al. or alternatively Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. and Oxfood as further evidenced by Bakker et al. and Varvil et al. is silent regarding the amount of gellan gum in the gelatin free chewy center ranging from 0.02% to 1% by weight compared to the total weight of the gelatine free chewy center.
Havranek et al. discloses Havranek et al. discloses a chewy confectionery product comprising sugar (sucrose), glucose syrup (‘626, Paragraph [0005]) and gellan (‘626, Paragraphs [0031] and [0043]). Havranek et al. also discloses an embodiment wherein the chewy confectionery product is gelatin free (starch replaces gelatin) (‘626, Paragraphs [0033]-[0034]). Havranek et al. also discloses the amount of gellan gum being between from about 0.5% to about 1% by weight on a dry basis of the chewy confectionery product (‘626, Paragraph [0037]), which falls within the claimed amount of gellan gum of from 0.02% to 1% by weight.
Both modified Overly III et al. and Havranek et al. are directed towards the same field of endeavor of gelatin free chewy confectionery products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gelatin free chewy confectionery product of modified Overly III et al. and incorporate gellan gum in the chewy center in the claimed amounts as taught by Havranek et al. since where the claimed gellan gum ranges overlaps gellan gum ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the gellan gum in the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of gellan gum in the chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Furthermore, Havranek et al. discloses the amount of gellan hydrocolloid helping with the desired final consistency and texture of the product (‘626, Paragraph [0037]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gelatin free chewy confectionery product of modified Overly III et al. and adjust the amount of gellan gum in the gelatin free (‘626, Paragraph [0019]) chewy center based upon the desired final consistency and texture of the product (‘626, Paragraph [0037]).
Regarding Claims 18-19, Havranek et al. discloses the chewy confectionery product optionally comprising flavors (‘626, Paragraph [0040]). Since the chewy confection optionally contains flavors, Havranek et al. suggests an embodiment wherein the chewy confection, i.e. the chewy center and the amorphous candy material, do not contain flavor. Havranek et al. also discloses the flavor being present in the chewy confection in an amount of from about 0% to about 10% by weight on a dry basis of the chewy confectionery product (‘626, Paragraph [0041]). In the embodiment wherein the chewy confection contains about 0% by weight flavor on a dry basis of the chewy confectionery product, the chewy center and the amorphous candy material do not contain flavor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confectionery product of modified Overly III et al. to be flavorless as taught by Havranek et al. based upon the desire flavor or lack of flavor for a particular consumer.
Claims 6 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 as applied to claim 1 above in further view of Ashokan et al. US 2011/0129563 and Montaigne et al. US 2010/0330247 or alternatively Claims 6 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 as applied to claim 1 above in further view of Ashokan et al. US 2011/0129563 and Montaigne et al. US 2010/0330247.
Regarding Claim 6, Overly III et al. discloses the chewy center comprising dextrin (‘549, Paragraph [0014]) and the at least partially amorphous candy material (amorphous portion 16) including a sweetener (‘549, Paragraph [0014]) of sugars (‘549, Paragraphs [0016] and [0030]). However, modified Overly III et al. is silent regarding the layer of the at least partially amorphous candy material comprising dextrin.
Ashokan et al. discloses a confectionery product including a chewy center (second region including a chewable matrix) (‘563, Paragraphs [0006]-[0007]) comprising sugar, glucose syrup, dextrin (‘563, Paragraphs [0113]-[0118]), and gellan (‘563, Paragraphs [0120]-[0121]) and a layer of at least partially amorphous candy material (coating composition in amorphous form) surrounding the chewy center (‘563, Paragraphs [0157] and [0167]). Ashokan et al. further discloses the chewable matrix and/or shell composition including sugar or sugarless bulk sweeteners including dextrin (‘563, Paragraphs [0113]-[0114]) and the coating composition being in amorphous form (‘563, Paragraph [0157]). Montaigne et al. discloses a low calorie foamed candy comprising one or more alternative sugars or a sugar substitute alone or in combination with intense sweeteners wherein the sugar substitutes are low calorie sugar replacers of dextrin and also includes intense sweeteners in combination with the sugar substitutes to deliver an acceptable sweetness intensity (‘247, Paragraph [0016])
Modified Overly III et al., Ashokan et al. and Montaigne et al. are all directed towards the same field of endeavor of confectionery products comprising dextrin sweeteners. It would have been obvious to one of ordinary skill in the art to modify the confection of modified Overly III et al. and make the layer of the at least partially amorphous candy material with dextrin as taught by Ashokan et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ashokan et al. teaches that there was known utility in the confection art to utilize dextrin as a sweetening agent in an amorphous layer of a confection. Additionally, it would have been obvious to one of ordinary skill in the art to modify the dextrin containing confection of modified Overly III et al. and use the sweetening agent dextrin in the layer of the at least partially amorphous candy material since Montaigne et al. teaches that dextrin is a type of low calorie sugar replacer for low calorie candies. One of ordinary skill in the art would utilize dextrin sweetener in the layer of the at least partially amorphous candy material to provide sweetness to the confection while minimizing the caloric levels of the confection.
Regarding Claims 9-10, Overly III et al. discloses the gelatine free (‘549, Paragraph [0019]) chewy center containing dextrin (‘549, Paragraphs [0006] and [0014]). Bakker et al. discloses the chewy candy containing a gelatinizing agent of maltodextrin (‘011, Paragraph [0005]) in an amount of between 0.5 and 15% w/w (‘011, Paragraph [0011]), which overlaps the claimed dextrin amount accounting for more than 10% of the chewy center of for from 15% to 70% of the chewy center. Overly et al. III and Bakker et al. are both directed towards the same field of endeavor of gelatin free confections. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confectionery product of Overly et al. III and make the gelatine free chewy center with the claimed amount of dextrin as taught by Bakker et al. since where the claimed amount of dextrin in the gelatine free chewy center ranges overlaps amounts of dextrin in the chewy center ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Ashokan et al. discloses a confectionery product including a chewy center (second region including a chewable matrix) (‘563, Paragraphs [0006]-[0007]) comprising sugar, glucose syrup, dextrin (‘563, Paragraphs [0113]-[0118]), and gellan (‘563, Paragraphs [0120]-[0121]) and a layer of at least partially amorphous candy material (coating composition in amorphous form) surrounding the chewy center (‘563, Paragraphs [0157] and [0167]). Ashokan et al. further discloses the chewable matrix and/or shell composition including sugar or sugarless bulk sweeteners including dextrin (‘563, Paragraphs [0113]-[0114]). Montaigne et al. discloses a low calorie foamed candy comprising one or more alternative sugars or a sugar substitute alone or in combination with intense sweeteners wherein the sugar substitutes are low calorie sugar replacers of dextrin and also includes intense sweeteners in combination with the sugar substitutes to deliver an acceptable sweetness intensity (‘247, Paragraph [0016]).
Modified Overly III et al., Ashokan et al. and Montaigne et al. are all directed towards the same field of endeavor of confectionery products comprising dextrin sweeteners. It would have been obvious to one of ordinary skill in the art to modify the confection of modified Overly III et al. and make the gelatine free chewy center with dextrin as taught by Ashokan et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ashokan et al. teaches that there was known utility in the confection art to utilize dextrin as a sweetening agent in chewy center of a confection. Additionally, it would have been obvious to one of ordinary skill in the art to modify the dextrin containing confection of modified Overly III et al. and use the sweetening agent dextrin in the chewy center since Montaigne et al. teaches that dextrin is a type of low calorie sugar replacer for low calorie candies. Differences in the concentration of the dextrin in the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of dextrin in the chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of dextrin sweetener in the chewy center to provide sweetness to the confection while minimizing the caloric levels of the confection as taught by Montaigne et al. (‘247, Paragraph [0016]).
Regarding Claims 11-12, Overly III et al. discloses the chewy center containing dextrin (‘549, Paragraphs [0006] and [0014]). Bakker et al. discloses the chewy candy containing a gelatinizing agent of maltodextrin (‘011, Paragraph [0005]) in an amount of between 0.5 and 15% w/w (‘011, Paragraph [0011]), which overlaps the claimed dextrin amount accounting for more than 10% of the chewy center of for from 15% to 70% of the chewy center and the chewy candy being amorphous (‘011, Paragraph [0034]). Overly et al. III and Bakker et al. are both directed towards the same field of endeavor of gelatin free confections. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confectionery product of Overly et al. III and make the amorphous candy material with the claimed amount of dextrin as taught by Bakker et al. since where the claimed amount of dextrin in the amorphous candy material ranges overlaps amounts of dextrin in the amorphous candy material ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Ashokan et al. discloses a confectionery product including a chewy center (second region including a chewable matrix) (‘563, Paragraphs [0006]-[0007]) comprising sugar, glucose syrup, dextrin (‘563, Paragraphs [0113]-[0118]), and gellan (‘563, Paragraphs [0120]-[0121]) and a layer of at least partially amorphous candy material (coating composition in amorphous form) surrounding the chewy center (‘563, Paragraphs [0157] and [0167]). Ashokan et al. further discloses the chewable matrix and/or shell composition including sugar or sugarless bulk sweeteners including dextrin (‘563, Paragraphs [0113]-[0114]) wherein a coating composition is in amorphous form (‘563, Paragraph [0157]) that includes sweeteners (‘563, Paragraph [0177]). Montaigne et al. discloses a low calorie foamed candy comprising one or more alternative sugars or a sugar substitute alone or in combination with intense sweeteners wherein the sugar substitutes are low calorie sugar replacers of dextrin and also includes intense sweeteners in combination with the sugar substitutes to deliver an acceptable sweetness intensity (‘247, Paragraph [0016])
Modified Overly III et al., Ashokan et al. and Montaigne et al. are all directed towards the same field of endeavor of confectionery products comprising dextrin sweeteners. It would have been obvious to one of ordinary skill in the art to modify the confection of modified Overly III et al. and make the amorphous candy material with dextrin as taught by Ashokan et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ashokan et al. teaches that there was known utility in the confection art to utilize dextrin as a sweetening agent in an amorphous candy material of a confection. Additionally, it would have been obvious to one of ordinary skill in the art to modify the dextrin containing confection of modified Overly III et al. and use the sweetening agent dextrin in the amorphous candy material since Montaigne et al. teaches that dextrin is a type of low calorie sugar replacer for low calorie candies. Differences in the concentration of the dextrin in the amorphous candy material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of dextrin in the amorphous candy material is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of dextrin sweetener in the amorphous candy material to provide sweetness to the confection while minimizing the caloric levels of the confection as taught by Montaigne et al. (‘247, Paragraph [0016]).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 in further view of Ashokan et al. US 2011/0129563 and Montaigne et al. US 2010/0330247 as applied to claim 6 above in further view of Havranek et al. WO 2019/055626 (cited on Information Disclosure Statement filed June 15, 2022) or alternatively Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 in further view of Ashokan et al. US 2011/0129563 and Montaigne et al. US 2010/0330247 as applied to claim 6 above in further view of Havranek et al. WO 2019/055626 (cited on Information Disclosure Statement filed June 15, 2022).
Regarding Claim 7, Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. as further evidenced by Srnak et al. in further view of Ashokan et al. and Montaigne et al. or alternatively Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. and Oxfood as further evidenced by Bakker et al. and Varvil et al. in further view of Ashokan et al. and Montaigne et al. is silent regarding the layer of the at least partially amorphous candy material comprising glucose and a ratio of sugar to glucose syrup of the at least partially amorphous candy material ranging from 70:30 to 99:1 on a dry weight basis or wherein the layer of the at least partially amorphous candy material does not comprise glucose.
Havranek et al. discloses Havranek et al. discloses a chewy confectionery product comprising sugar (sucrose), glucose syrup (‘626, Paragraph [0005]) and gellan (‘626, Paragraphs [0031] and [0043]). Havranek et al. also discloses an embodiment wherein the chewy confectionery product is gelatin free (starch replaces gelatin) (‘626, Paragraphs [0033]-[0034]). Havranek et al. also discloses chewy confectionery products being in a semi-amorphous phase when formed (‘626, Paragraph [0003]) and the ratio of sugar/glucose syrup in the chewy material ranges from 75:25 to about 55:45 on a dry weight basis (‘626, Paragraphs [0005]-[0006]), which overlaps the claimed ratio of sugar/glucose syrup in the layer of the at least partially amorphous candy material of from 70:30 to 100:0 on a dry weight basis.
Both modified Overly III et al. and Havranek et al. are directed towards the same field of endeavor of gelatin free chewy confectionery products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gelatin free chewy confectionery product of modified Overly III et al. and incorporate a ratio of sugar/glucose syrup in the chewy material that is at least partially amorphous candy material in the claimed ratios as taught by Havranek et al. since where the claimed sugar/glucose syrup ranges overlaps sugar/glucose syrup ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the ratio of sugar/glucose syrup in the chewy material that is at least partially amorphous candy material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio of sugar/glucose syrup in the chewy material that is at least partially amorphous candy material is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 as applied to claim 1 above in further view of Dekker et al. US 2006/0088628 or alternatively Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 as applied to claim 1 above in further view of Dekker et al. US 2006/0088628.
Regarding Claim 13, Overly III et al. discloses the confection comprising dextrin (‘549, Paragraph [0006]).
Modified Overly III et al. is silent regarding the dextrin containing less than 5% of total mono and disaccharides.
Dekker et al. discloses a food bar comprising a fibrous compound of dextrin comprising sugar solids (‘628, Paragraph [0025]) and 0.5-5 wt% mono and disaccharide solids sweeteners (‘628, Paragraphs [0026], [0039], and [0063]), which falls within the claimed total mono and disaccharides of dextrin.
Both modified Overly III et al. and Dekker et al. are directed towards the same field of endeavor of food products comprising dextrin sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confectionery product of modified Overly III et al. and incorporate dextrin that contains total mono and disaccharides in the claimed amount as taught by Dekker et al. since where the claimed total mono and disaccharide of the dextrin ranges overlaps total mono and disaccharide of the dextrin ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the total mono and disaccharide of the dextrin will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such total mono and disaccharide of the dextrin is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claims 14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 as applied to claim 1 above in further view of Ashokan et al. US 2011/0129563 and Perlman US 2009/0280231 or alternatively Claims 14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 as applied to claim 1 above in further view of Ashokan et al. US 2011/0129563 and Perlman US 2009/0280231.
Regarding Claim 14, Overly III et al. discloses the confectionery product including a combination of sweeteners of sugars and polyols (‘549, Paragraph [0016]). However, modified Overly III et al. is silent regarding the chewy center containing the polyol sorbitol for more than 2% by weight of the chewy material.
Ashokan et al. discloses a confectionery product including a chewy center (second region including a chewable matrix) (‘563, Paragraphs [0006]-[0007]) comprising sugar, glucose syrup, dextrin (‘563, Paragraphs [0113]-[0118]), and gellan (‘563, Paragraphs [0120]-[0121]) and a layer of at least partially amorphous candy material (coating composition in amorphous form) surrounding the chewy center (‘563, Paragraphs [0157] and [0167]). Ashokan et al. further discloses the chewy center containing sorbitol polyols (‘563, Paragraphs [0173]-[0174]) wherein the chewable matrix includes sugar or sugarless bulk sweeteners present in amounts of from about 40% w/w to about 95% w/w by weight of the chewable matrix (‘563, Paragraph [0113]) wherein the sugarless bulk sweetener includes polyols such as sorbitol (‘563, Paragraph [0116]). The disclosure of the sugarless bulk sweetener of sorbitol polyols falls within the claimed amount of the chewy center containing sorbitol of more than 2% by weight of the chewy material.
Both modified Overly III et al. and Ashokan et al. are directed towards the same field of endeavor of multilayered chewy confectionery products comprising polyol sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the chewy center of the confection of modified Overly III et al. that contains generic polyol sweeteners and make the chewy center with sorbitol as taught by Ashokan et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ashokan et al. teaches that there was known utility in the confection art to utilize polyols in the form of sorbitol as a sweetening ingredient in chewy confections. Additionally, Perlman discloses sorbitol is about 60 percent as sweet as sucrose and provides about the same number of calories per gram as sucrose but is a low glycemic index sweetener and therefore only minimally stimulates insulin production wherein sorbitol is used in candies and chewing gums (‘231, Paragraph [0007]). One of ordinary skill in the art would utilize sorbitol in the confection of modified Overly III et al. as one of the sweetening agents in the chewy center in order to minimally stimulate insulin product as taught by Perlman. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confection of modified Overly III et al. and provide sorbitol in chewy center in the claimed amounts as taught by Ashokan et al. since where the claimed sorbitol in the chewy center ranges overlaps sorbitol in the chewy center ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the sorbitol in the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of sorbitol in the chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of polyol sweetener of Overly III et al. (‘549, Paragraph [0016]) such as sorbitol polyol sweetener (‘563, Paragraphs [0115]-[0116]) based upon the desired sweetness level of the chewy center.
Regarding Claim 16, Overly III et al. discloses the confectionery product including a combination of sweeteners of sugars and polyols (‘549, Paragraph [0016]). However, modified Overly III et al. is silent regarding the amorphous candy material containing the polyol sorbitol for more than 2% by weight of the chewy material.
Ashokan et al. discloses a confectionery product including a chewy center (second region including a chewable matrix) (‘563, Paragraphs [0006]-[0007]) comprising sugar, glucose syrup, dextrin (‘563, Paragraphs [0113]-[0118]), and gellan (‘563, Paragraphs [0120]-[0121]) and a layer of at least partially amorphous candy material (coating composition in amorphous form) surrounding the chewy center (‘563, Paragraphs [0157] and [0167]). Ashokan et al. further discloses the amorphous candy material containing sorbitol polyols (‘563, Paragraphs [0113]-[0116]) wherein the amorphous candy material (shell composition) includes sugar or sugarless bulk sweeteners present in amounts of from about 40% w/w to about 95% w/w by weight of the chewable matrix (‘563, Paragraph [0113]) wherein the sugarless bulk sweetener includes polyols such as sorbitol (‘563, Paragraph [0116]). The disclosure of the sugarless bulk sweetener of sorbitol polyols falls within the claimed amount of the amorphous candy material containing sorbitol of more than 2% by weight of the chewy material.
Both modified Overly III et al. and Ashokan et al. are directed towards the same field of endeavor of multilayered chewy confectionery products comprising polyol sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amorphous candy material of the confection of modified Overly III et al. that contains generic polyol sweeteners and make the amorphous candy material with sorbitol as taught by Ashokan et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ashokan et al. teaches that there was known utility in the confection art to utilize polyols in the form of sorbitol as a sweetening ingredient in chewy confections. Additionally, Perlman discloses sorbitol is about 60 percent as sweet as sucrose and provides about the same number of calories per gram as sucrose but is a low glycemic index sweetener and therefore only minimally stimulates insulin production wherein sorbitol is used in candies and chewing gums (‘231, Paragraph [0007]). One of ordinary skill in the art would utilize sorbitol in the confection of modified Overly III et al. as one of the sweetening agents in the amorphous candy material in order to minimally stimulate insulin product as taught by Perlman. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the confection of modified Overly III et al. and provide sorbitol in the amorphous candy material in the claimed amounts as taught by Ashokan et al. since where the claimed sorbitol in the amorphous candy material ranges overlaps sorbitol in the amorphous candy material ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the sorbitol in the amorphous candy material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of sorbitol in the amorphous candy material is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of polyol sweetener of Overly III et al. (‘549, Paragraph [0016]) such as sorbitol polyol sweetener (‘563, Paragraphs [0115]-[0116]) based upon the desired sweetness level of the amorphous candy material.
Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 as further evidenced by Srnak et al. US 2014/0220188 in further view of Ashokan et al. US 2011/0129563 and Perlman US 2009/0280231 as applied to claim 14 above in further view of Barkalow et al. US 2006/0159802 or alternatively Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Overly III et al. US 2006/0257549 as further evidenced by Bartz et al. US 2017/0367368 in view of Baldi et al. US 2018/0070606 and Oxfood “Making Pistachio Nougat” <https://oxfoodblog.wordpress.com/2012/06/15/making-pistachio-nougat/> (published June 15, 2012) (herein referred to as “Oxfood”) as further evidenced by Bakker et al. US 2017/0119011 and Varvil et al. US 4,491,597 in further view of Ashokan et al. US 2011/0129563 and Perlman US 2009/0280231 as applied to claim 14 above in further view of Barkalow et al. US 2006/0159802.
Regarding Claim 15, Overly III et al. discloses the chewy center containing glycerine (glyceride) (‘549, Paragraph [0019]). Bakker et al. discloses the confectionery product comprising glycerine (glycerol humectant) in an amount of from 0.2-2.0% by weight based on the weight of the chewy confectionery product (‘011, Paragraph [0035]), which overlaps the claimed glycerine concentration of the chewy center of from 0.04% to 5% by weight of the chewy material. Additionally, Barkalow et al. discloses polyol based syrups containing hydrogenated dextrins and low molecular weight polyols used to make chewing gum, hard, or soft candies (‘802, Paragraph [0027]) wherein softeners/plasticizers and plasticizing agents constitute between approximately 0.5 to about 15% by weight of the chewing gum wherein the softeners include glycerin, corn syrup, and sorbitol polyols or sugars (‘802, Paragraph [0058]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the glycerin concentration of the chewy center of modified Overly et al. and incorporate glycerine in the claimed amounts within the chewy center as taught by Bakker et al. and Barkalow et al. since where the claimed glycerine concentration of the chewy center ranges overlaps glycerine concentration of the chewy center ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the glycerine in the chewy center will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such glycerine concentration in the chewy center is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Barkalow et al. discloses a plasticizer and humectant for use in gum to give longer lasting shelf life and stability (‘802, Paragraph [0021]) wherein the plasticizer is glycerol (‘802, Paragraph [0052]). One of ordinary skill in the art would adjust the amount of glycerol plasticizer in the confection of modified Overly III et al. based upon the desired shelf life and stability as taught by Barkalow et al. (‘802, Paragraph [0021]).
Regarding Claim 17, Overly III et al. discloses the chewy center containing glycerine (glyceride) (‘549, Paragraph [0019]). Bakker et al. discloses the confectionery product comprising glycerine (glycerol humectant) in an amount of from 0.2-2.0% by weight based on the weight of the chewy confectionery product (‘011, Paragraph [0035]), which overlaps the claimed glycerine concentration of the chewy center of from 0.04% to 5% by weight of the amorphous candy material, wherein the chewy candy is amorphous (‘011, Paragraph [0034]). Additionally, Barkalow et al. discloses polyol based syrups containing hydrogenated dextrins and low molecular weight polyols used to make chewing gum, hard, or soft candies (‘802, Paragraph [0027]) wherein softeners/plasticizers and plasticizing agents constitute between approximately 0.5 to about 15% by weight of the chewing gum wherein the softeners include glycerin, corn syrup, and sorbitol polyols or sugars (‘802, Paragraph [0058]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the glycerin concentration of the amorphous candy material of modified Overly et al. and incorporate glycerine in the claimed amounts within the amorphous candy material as taught by Bakker et al. and Barkalow et al. since where the claimed glycerine concentration of the amorphous candy material ranges overlaps glycerine concentration of the amorphous candy material ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of the glycerine in the amorphous candy material will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such glycerine concentration in the amorphous candy material is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Barkalow et al. discloses a plasticizer and humectant for use in gum to give longer lasting shelf life and stability (‘802, Paragraph [0021]) wherein the plasticizer is glycerol (‘802, Paragraph [0052]). One of ordinary skill in the art would adjust the amount of glycerol plasticizer in the confection of modified Overly III et al. based upon the desired shelf life and stability as taught by Barkalow et al. (‘802, Paragraph [0021]).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3-4, and 6-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-10 and 12-18 of U.S. Patent No. 12,285,027. Although the claims at issue are not identical, they are not patentably distinct from each other because although the copending ‘336 application contains several additional limitations and is more limited in scope than the instant claims, the ‘336 application reads on the limitations of the broader claims of the instant claims.
Response to Arguments
Examiner notes that a new Claim Objection has been made in view of the amendments.
Examiner notes that the Double Patenting rejections have been updated and maintained herein in view of the cancellation of Claim 5.
Applicant’s arguments with respect to the obviousness rejections of Claim 1 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The current obviousness rejection under 35 USC 103(a) relies upon the combination of Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. as further evidenced by Srnak et al. or alternatively over Overly III et al. as further evidenced by Bartz et al. in view of Baldi et al. and Oxfood as further evidenced by Bakker et al. and Varvil et al. The secondary references of Bakker et al. and Yan et al. are no longer being relied upon in the current rejection.
Applicant's arguments filed April 24, 2026 which do not pertain to Bakker et al. and/or Yan et al. (which are not currently being relied upon) have been fully considered but they are not persuasive.
Applicant argues on Page 7 of the Remarks that Overly III expressly teaches that the chewy center also includes gum Arabic and a fat in Paragraph [0019] and that Example 1 of Overly III discloses that a gum Arabic and water solution at a 1:2 gum Arabic to water ratio is added to the mondomixer and alleges that Overly III teaches away from the claimed exclusion of gum Arabic.
Examiner argues Paragraph [0019] of Overly III teaches “in one embodiment, the chewy center also includes gum Arabic” (‘549, Paragraph [0019]). Overly III teaches a particular embodiment incorporating gum Arabic. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Overly III does not disclose all embodiments requiring the inclusion of gum Arabic. The secondary reference of Baldi et al. is being relied upon for the limitations regarding the chewy center comprising gellan gum wherein the chewy center does not comprise gum Arabic or other hydrocolloid gelling agents different than gellan gum. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Page 8 of the Remarks that the nougat of Oxfood is different from the claimed confectionary product because the nougat of Oxfood lacks dextrin which is a required component of a gelatine free chewy center which comprises sugar, glucose syrup, dextrin, and gellan gum as recited by Claim 1 and the nougat of Oxfood also lacks gellan gum and is not a chewy center surrounding by an amorphous layer as required by Claim 1. Applicant contends that one of ordinary skill in the art would not have been motivated to combine the sugar/glucose ratio of Oxfood with the multilayer confectionery structure of Overly III since Oxfood teaches a standalone meringue based product with an entirely different structural and textural properties.
Examiner argues the obviousness rejection is over a combination of the primary reference of Overly III modified with the secondary references of Baldi et al. or the secondary references of Baldi et al. and Oxfood. he primary reference of Overly III already teaches a confectionery product (confectionary product 12) (‘549, Paragraph [0013]) including a gelatine free chewy center (center 20) (‘549, Paragraphs [0014] and [0019]) comprising sugar (‘549, Paragraph [0027]), and dextrin (‘549, Paragraph [0026]) and the chewy center (center 20) comprising sucrose and corn syrup (‘549, Paragraphs [0016] and [0026]). Bartz et al. provides evidence that it was known in the confection art that corn syrup is a type of glucose syrup (‘368, Paragraph [0024]) and is useful in making a gelatin free chewy confectionery product (‘368, Paragraph [0035]). Overly III does not teach the gelatine free chewy center comprising gellan gum. The secondary reference of Baldi et al. is being relied upon to teach the chewy center comprising gellan gum wherein the chewy center does not comprise gum Arabic or other hydrocolloid gelling agents different than gellan gum. Oxfood is being relied upon to teach the claimed ratio of sugar/glucose syrup. The primary reference of Overly III teaches adjusting the amount of sugar in the chewy material relative to the amount of corn syrup for controlling crystallinity of the grain size in the layers of the confectionary product (“549, Paragraph [0025]). Oxfood discloses a confectionery product comprising a chewy center (pistachio nougat) comprising sugar and glucose syrup (liquid glucose). Bakker et al. provides evidence that it was known in the food art that nougat is a type of chewy confection (‘011, Paragraph [0033]). Varvil et al. also provides evidence that it was known in the food art that chewy nougat is known to be formed as a core of a chocolate coated candy bar confectionery product (‘597, Column 1, lines 46-56). Therefore, the nougat disclosed by Oxfood reads on the claimed chewy center of a confectionery product as further evidenced by Bakker et al. and Varvil et al. Oxfood also discloses a nougat recipe comprising 375 g caster sugar and 25 g liquid glucose, which indicates a concentration ratio of sugar/sucrose to glucose syrup/liquid glucose of 375 g sugar / 400 g solution : 25g liquid glucose / 400 g solution, which converts to a ratio of sugar to glucose syrup concentration ratio of 93.75:6.25, which falls within the claimed ratio of sugar to glucose syrup in the chewy center of 80:20 to 99:1 on a dry weight basis. Both modified Overly III et al. and Oxfood are directed towards the same field of endeavor of chewy centers for confectionery food products comprising sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the chewy center of modified Overly III et al. and incorporate the claimed concentration ratio of sugar to glucose syrup in the chewy center as taught by Oxfood since where the claimed concentration ratio of sugar to glucose syrup in the chewy center encompasses concentration ratio of sugar to glucose syrup in the chewy center disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Oxfood discloses liquid glucose incorporated into a chewy center of nougat prevents larger crystals from forming by bonding temporarily to the crystal surface and blocking the way of sucrose molecules wherein smaller crystals form making for a smoother, finer, more desirable nougat. One of ordinary skill in the art would adjust the ratio of sugar to glucose syrup in a chewy center of a confectionery product based upon the desired smoothness of the chewy center nougat. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 9-10 of the Remarks that the criticality of the claimed concentration ratio of sugar to glucose syrup in the chewy center is allegedly shown and that Overly III teaches ratios of 1:1 in Tables 1-2 and Examples 2-8 with Overly III also stating that a blend of 60/40 is typical for a hard candy and Overly III also uses gum Arabic. Applicant continues that even if one were to adjust the ratios to control crystallinity it is highly unlikely a person of skill in the art would go from ratios of 1:1 taught by Overly III to the ratios required by Claim 1 with a chewy center using gellan gum of 80:20 to 99:1 and that if the person skilled in the art wanted to decrease crystallization they would end up further away from the claimed ratios with glucose being a higher percentage than the sugar. Applicant continues that the criticality of the claimed ratio range is allegedly supported by Examples 3-5 which demonstrate successful formulations within the amended range. Applicant contends that Example 3 shows an 85:15 ratio producing a consistent dough that can be easily transported and joined to the candy material. Example 4 demonstrates a 100:0 ratio outside the range and Example 5 shows a 71:29 ratio also outside the range. Table 11 and Paragraphs [0132]-[0134]) allegedly show that only the candy of Example 13 (Example 3) within the range had good consistent chewiness without breaking off the center in pieces. Example 14 has chewiness that tended to be a bit plastic and the chewiness of Example 15 could not be evaluated due to tendency to stick to the teeth. Applicant concluded that these examples allegedly confirm that the specific ratio range recited by amended Claim 1 is critical for achieving the desired viscosity and processing properties and the ratio range of 80:20 to 99:1 fails to overlap with that taught by Overly III and extends significantly away from Overly’s ratios .
Examiner first notes that Oxfood already teaches a nougat that is necessarily a chewy confection as evidenced by Bakker et al. and Varvil et al. wherein Oxfood teaches a ratio of sugar/glucose syrup in the chewy nougat. Both modified Overly III et al. and Oxfood are directed towards the same field of endeavor of chewy centers for confectionery food products comprising sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the chewy center of modified Overly III et al. and incorporate the claimed concentration ratio of sugar to glucose syrup in the chewy center as taught by Oxfood since where the claimed concentration ratio of sugar to glucose syrup in the chewy center encompasses concentration ratio of sugar to glucose syrup in the chewy center disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
With respect to applicant’s allegations of unexpected results in Example 3 of applicant’s specification, Examiner argues Example 3 only provides one data point of a sugar/glucose ratio of 85:15 that falls within the claimed ratio of sugar/glucose syrup of 70:30 to 99:1. This example provides no comparisons of candy having a sugar/glucose syrup ratio below 70:30 or a candy having a sugar/glucose syrup ratio above 99:1. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02.(d).II.). Applicant has provided no such comparison in Example 3. It is also unknown what applicant means by the obtained chewy material in Example 3 is a consistent dough, fully grained that can be easily transported and joined to the candy material. It is unknown what constitutes a “consistent” dough since no properties relating to consistency are tested for in Example 3. It is also noted that Claim 1 does not require the presence of a dough in the chewy center. Applicant points to data that is not commensurate in scope with the claimed invention.
With respect to applicant’s allegations of unexpected results in Table 11 and Examples 11-15 of applicant’s specification, Examiner argues Examples 11-15 indicate candies with “acceptable quality,” “very good quality,” “good quality,” and “acceptable quality.” However, it is unknown what constitutes “good,” “very good,” and “acceptable” quality. These quality metrics are not attributed to any specific quantitative or qualitative measurements. It is unknown how these subjective quality measurements of Examples 11-15 were ascertained. Table 11 also discloses ratings for “average crack,” “average softness first bite,” and “average chew experience.” However, it is unknown how the qualitative measurements on a scale of 1-10 for each of these parameters was deduced. It is unclear how chewiness was evaluated and how “good crack” of the coating part was evaluated. It is noted that Table 11 labels candy material Ex. 4 and Ex. 9 of the high end of the range of sugar/glucose ratio of 100:00. However, it is noted that Ex. 4 and Ex. 9 of Table 11 is above the claimed ratio of sugar/glucose syrup ranging from 70:30 to 99:1 on a dry weight basis, i.e. Ex. 4 and Ex. 9 of Table 11 falls outside, i.e. above the claimed ratio of sugar/glucose syrup. It is also unclear what applicant alleges are the unexpected results that are purportedly shown in Table 11. Applicant has not provided objective evidence showing the criticality of the claimed ratio of sugar/glucose syrup in the gelatine free chewy center. Therefore, the obviousness rejections have been maintained herein.
Examiner notes that applicant’s arguments on Page 10 of the Remarks with respect to Claims 3 and 18-19 are moot since the secondary reference Baldi et al. is currently being relied upon to teach the limitations regarding the gelatine free chewy center does not comprise gum Arabic or other hydrocolloid gelling agents different from gellan gum as recited by Claim 1.
Applicant argues on Pages 10-11 of the remarks with respect to Claims 6 and 9-12 that Paragraph [0121] of Ashokan teaches using multiple hydrocolloids in combination and not a chewy center excluding gum Arabic and other hydrocolloid agents different from gellan gum.
Examiner argues the secondary reference of Baldi et al. is being relied upon to teach the limitations regarding a chewy center excluding gum Arabic and other hydrocolloid agents different from gellan gum. The secondary reference of Ashokan is being relied upon to teach the chewable matrix and/or shell composition including sugar or sugarless bulk sweeteners including dextrin (‘563, Paragraphs [0113]-[0114]) and the coating composition being in amorphous form (‘563, Paragraph [0157]). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, Paragraph [0121] of Ashokan teaches suitable gelling agents can include hydrocolloids including gellan gum. Cassia gum…and combinations thereof (‘563, Paragraph [0121]). Ashokan teaches using individual hydrocolloids including gellan gum and/or their combinations. Ashokan envisages using only gellan gum hydrocolloid. Therefore, these arguments are not persuasive.
Examiner notes that applicant’s comments on Page 11 of the Remarks with respect to Claim 7 does not specifically and distinctly point out the supposed errors of the Office Action.
Applicant argues on Page 11 of the Remarks with respect to Claim 13 that Paragraph [0041] of Dekker teaches that the binder may include a hydrocolloid such as a gelatin or a pectin and does not teach or suggest a gelatine free chewy center that excludes gum Arabic and other hydrocolloid gelling agents different from gellan gum.
Examiner argues the secondary reference of Baldi et al. is being relied upon to teach the limitations regarding a chewy center excluding gum Arabic and other hydrocolloid agents different from gellan gum. The secondary reference of Dekker is being relied upon to teach the limitations regarding 0.5-5 wt% mono and disaccharide solids sweeteners (‘628, Paragraphs [0026], [0039], and [0063]), which falls within the claimed total mono and disaccharides of dextrin. The secondary reference of Dekker is not being relied upon for the limitations regarding a gelatine free chewy center that excludes gum Arabic and other hydrocolloid gelling agents different from gellan gum. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, Paragraph [0041] of Dekker teaches the binder may include a hydrocolloid. The phrase “may include” is an example embodiment. The hydrocolloid disclosed in Dekker is not required. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Therefore, these arguments are not found persuasive.
Examiner notes that applicant’s comments on Pages 11-12 of the Remarks with respect to Claims 14-17 does not specifically and distinctly point out the supposed errors of the Office Action.
Conclusion
The prior art made of record, cited in a previous Information Disclosure Statement, and not relied upon is considered pertinent to applicant's disclosure.
Barkalow et al. US 2018/0271112 discloses a gelled confection product containing at least one gelling agent including but not limited to gelatin, starch, and/or hydrocolloids (‘112, Paragraph [0046]) wherein the starch polymers are highly branched such as amylopectin (‘112, Paragraph [0084]).
Bakker et al. US 2017/0119011 discloses highly branched starch (HBS) is a versatile gelling agent for food products that could fully replace conventional gelators including Arabic gum and gelatin without sacrificing the semisoft nonsticky and chewy properties of the product which highly branched starch delivers similar mouthfeel, stability, and texture attributes provided by gelatin without comprising eating quality of the final confectionary product (‘011, Paragraph [0014]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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