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 Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites “comprising from two to eight frozen confection streams, wherein each frozen confection stream is formed into ripples” and appears should recite “comprising from two to eight frozen confection streams, wherein each frozen confection stream of the two to eight frozen confection streams is formed into ripples”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-7 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, claim 1 recites “the frozen confection stream ripples” in lines 4 and 6-7. It is unclear which ripples “the frozen confection stream ripples” is referring to. To elaborate it is noted that claim 1 recites “comprising from two to eight frozen confection streams, each frozen confection stream is formed into ripples so as to be rippled… ”, therefore there are multiple frozen confection streams and each of the multiple frozen confection streams has ripples. It appears that “the frozen confection stream ripples” in each instance in lines 4 and 6-7 can be interpreted as only referring to ripples of one stream of the multiple frozen confection streams or some ripples from some of the multiple frozen confection streams or all of the ripples from all of the multiple frozen confection streams. It is unclear which interpretation is intended by the claim. Additionally, the claim further recites “and together the frozen confection stream ripples form a longitudinal repeat unit comprising a ripple of each frozen confection stream” which makes it additionally unclear what “frozen confection stream ripples” is referring to.
Regarding claim 1, claim 1 recites “each frozen confection stream” in line 5. It is unclear what frozen confection streams “each frozen confection stream” is referring to. If Applicant intends for “each frozen confection stream” to refer to “each frozen confection stream of the two to eight frozen confection streams”, the claim should be amended to clarify this.
Regarding claim 1, claim 1 has been newly amended such that the claim recites “wherein each frozen confection stream is formed into ripples so as to be rippled in a longitudinal direction and together the frozen confection stream ripples form a longitudinal repeat unit comprising a ripple of each frozen confection stream”. It is unclear if a longitudinal repeat unit is one ripple from one frozen confection stream, or if a longitudinal repeat unit is one ripple from multiple frozen confection streams (for example if there are three frozen confection streams it is unclear if a longitudinal repeat unit comprises one ripple from each of the three streams, and therefore a repeat unit is three ripples (one ripple from each stream)).
Regarding claim 2, claim 2 recites “each rippled frozen confection stream is in contact with at least two alternative frozen confection streams”. It is unclear what frozen confection streams “each rippled frozen confection stream” is referring to. It is noted the claim does not specifically refer back to the streams recited in claim 1. It is unclear if “each rippled frozen confection stream” is referring to all of the rippled frozen confection streams recited in claim 1, or some of the rippled frozen confection streams in claim 1.
Regarding claim 3, claim 3 recites “each rippled frozen confection stream”. It is unclear what frozen confection streams “each rippled frozen confection stream” is referring to. It is noted the claim does not specifically refer back to the streams recited in claim 1. It is unclear if “each rippled frozen confection stream” is referring to all of the rippled frozen confection streams recited in claim 1, or some of the rippled frozen confection streams in claim 1.
Regarding claim 4, as discussed above, it is unclear if a longitudinal repeat unit is one ripple from one frozen confection stream, or if a longitudinal repeat unit is one ripple from multiple frozen confection streams (for example if there are three frozen confection streams it is unclear if a longitudinal repeat unit comprises one ripple from each of the three streams, and therefore a repeat unit is three ripples (one ripple from each stream)).
Regarding claim 6, claim 6 recites “the frozen confection product comprises three frozen confection streams”. It is unclear if “three frozen confection streams” is further limiting the “two to eight frozen confection streams rippled in the longitudinal direction” to three frozen confection streams rippled in the longitudinal direction, or is requiring three additional frozen confection streams that are different from the frozen confection streams rippled in the longitudinal direction.
Regarding claim 7, claim 7 recites “the frozen confection product comprises two water ice frozen confection streams and one ice cream frozen confection stream”. It is unclear if the “two water ice frozen confection streams and one ice cream frozen confection stream” are the same as or different from the “three frozen confection streams” in claim 6 and the “two to eight frozen confection streams” already recited in claim 1.
Claim 5 is rejected by virtue of its 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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Beer US 5,000,969 in view of Binley US 4,504,511 and Rosende WO 02/43505.
Regarding claim 1, Beer discloses a frozen confection product comprising from two to eight frozen confection streams (strands 7), wherein each frozen confection stream is formed into ripples (loops 8), so as to be rippled in a longitudinal direction (strands 7 have loops 8) (Fig. 1 shows 3 streams, Fig. 3 shows 4 streams) (col.5, lines 36-39, 54-60, Abstract, col 3, lines 57-61), wherein the frozen confection stream ripples (loops 8) form a longitudinal repeat unit (loop 8 is repeated) comprising a ripple of each frozen confection stream (loop 8), the frozen confection product comprises from at least three to eight repeat units (Fig. 3, shows 4 loops 8), wherein each of the frozen confection stream ripples has a longitudinal axis and the longitudinal axes of the frozen confection stream ripples are not coaxial (strands 7 with loops 8 are parallel to each other, additionally loops are not coaxial to each other) (Figs.1-3).
Beer does not disclose that the frozen confection is specifically a frozen confection stick product, however Binely discloses applying a stick to a frozen confection product which is a similar type of frozen confection product as Beer if desired so that the product can be eaten off a stick (col. 2, lines 16-22, 43-45).
Rosende also teaches applying a stick to a frozen confection product which is a similar type of frozen confection product as Beer (Pg. 5, lines 11-22, Pg. 8, claim 12, Figs 1-3).
It would have been obvious to one of ordinary skill in the art to apply a stick to the frozen confection product of Beer as taught by Binely and Rosende in order to allow a consumer to eat the frozen confection of Beer from a stick. It has been held that “Combining prior art elements according to known methods to yield predictable results” and “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2141.III.A,D).
Regarding claim 2, it is noted that as discussed above claim 2 raises 112b issues. Beer discloses that each frozen confection stream (2 rippled frozen confection streams) is in contact with at least two alternative frozen confection streams (see annotated Fig. 3 below) (col. 5, lines 54-63). Fig. 3 of Beer shows that only portions of a rippled frozen confection stream are in contact with at least two alternative frozen confection streams (32).
Claim 2 differs from Beer in the recitation that Beer specifically discloses that from 20% to 80% of the surface area of each rippled frozen confection stream is in contact with at least two alternative frozen confection streams
From the drawings of Beer, it is clear that the size of the ripples of the frozen confection streams influences how much of the rippled frozen confection streams are in contact with at least two alternative frozen confection streams (32). Therefore, absent compelling evidence of criticality, the modification of the surface area of each rippled frozen confection stream that is in contact with at least two alternative frozen confection streams to be from 20% to 80% is seen to be the result of a change in size/proportion/shape of the ripples of each rippled frozen confection stream (MPEP 2144.IV.A,B).
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Regarding claim 3, Beer discloses that the longitudinal rotational axis of each rippled frozen confection stream (central longitudinal axis of each rippled frozen confection stream) does not coincide with the longitudinal axis of the frozen confection product (longitudinal central axis of the frozen confection product), since it is obvious from Figure 3 of Beer that the central longitudinal axis of each individual rippled stream in Fig 3 is different from the central longitudinal axis of the frozen confection product as a whole.
Regarding claim 4, claim 4 differs from Beer in the recitation that a ratio of a longitudinal length of the longitudinal repeat unit to the diameter of one of the two to eight frozen confection streams is from 1:1 to 3:1. However absent compelling evidence of criticality, the modification of a ratio of a longitudinal length of the longitudinal repeat unit to a diameter of one of the two to eight frozen confection streams of Beer to be from 1:1 to 3:1 is seen to be a change in size/proportion/shape of the repeat unit and diameter of the frozen confection stream of Beer (MPEP 2144.IV.A,B). It is noted that Beer discloses that the streams (7) can have a round cross section (‘969, col. 5, lines 64-68).
Regarding claim 5, Beer discloses that the frozen confection of the frozen confection streams is selected from ice cream and water ice (col. 2, lines 40-46).
Regarding claim 6, Beer discloses that the frozen confection product comprises three frozen confection streams (‘969, Fig. 1).
Regarding claim 7, Beer discloses that the frozen confection product comprises two water ice frozen confection streams and one ice cream frozen confection stream, since Beer discloses that the frozen confection product can comprise three streams (‘969, Fig. 1) and that the streams can comprise different kinds of confection, the different kinds of confection including ice cream and water ice (‘969, Fig. 1, col. 2, lines 40-46, claim 9).
Response to Arguments
Applicant's arguments filed 09/22/2025 have been fully considered but they are not persuasive.
On Pg. 7 of the remarks Applicant argues that Beer does not teach the feature of amended claim 1 that each frozen confection stream is formed into ripples so as to be rippled in the longitudinal direction as described in paragraph [0014] of the present application. Applicant argues that the confection material of Beer is formed into a single strand, is looped not rippled and has no longitudinal axis.
This argument has not been found persuasive, the loops 8 of Beer can be considered ripples. It is noted that paragraph [0014] of the specification discloses that rippled stream of frozen confection means a frozen confection extrudate shape that is non-linear in the longitudinal direction of the frozen confection product. The specification discloses that non-linear frozen confection extrudate shapes comprise projections and recesses. It is noted that the remainder of paragraph [0014] is directed to an example and not a definition. The stream (7) having the loops 8 of Beer can be considered a frozen confection extrudate shape that is non-linear in the longitudinal direction of the frozen confection product. The loops 8 comprise projections and recesses. It is noted that Beer specifically recites “the strand 7 is deposited in loops in the form of waves that run back and forth”, thus clearly the loops in the strand 7 can be considered ripples.
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Additionally, is it noted that the Figures of Beer clearly shows and discusses multiple strands (multiple layers of 7) (col. 2, lines 30-39 col. 3, lines 50-61). Regarding the ripples having a longitudinal axis, the ripples inherently have a longitudinal axis.
On Pg. 7 Applicant argues that Beers single strand geometry necessarily shares the product axis and thus fails to disclose longitudinal axes of the frozen confection stream ripples that are not coaxial.
This argument has not been found convincing, as discussed in the rejection, Beer discloses that the longitudinal rotational axis of each rippled frozen confection stream (central longitudinal axis of each rippled frozen confection stream) does not coincide with the longitudinal axis of the frozen confection product (longitudinal central axis of the frozen confection product), since it is obvious from Figure 3 of Beer that the central longitudinal axis of each individual rippled stream in Fig 3 is different from the central longitudinal axis of the frozen confection product as a whole. Additionally, as discussed in the 103 rejection the strands 7 with loops 8 are parallel to each other, thus the ripples (loops) in one frozen stream are not coaxial to the ripples (loops) in another frozen confection stream. Additionally, the ripples (loops) within one frozen confection stream are also parallel to each other and therefore ripples within one stream are not coaxial to each other (Figs.1-3).
On Pg. 8 Applicant argues that the product of Beer is not suitable for Application on a stick.
This argument has not been found persuasive; no evidence has been provided that the product of Beer cannot have a stick inserted therein. Arguments presented by the applicant cannot take the place of evidence in the record (MPEP 716.01.I-III).
It is noted that similar types of products to the product of Beer have been relied upon for showing that sticks can be added (Binely and Rosende) thereby providing at least some reasonable expectation of success (MPEP 2143.02).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/Ashley Axtell
Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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