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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/2/26 has been entered.
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.
Claims 1-13, 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Guzman et al [US 2003/0129287A1] in view of Potucek [SK 313-2004A3].
Guzman et al teach a frozen confection product (title) comprising an edible housing comprising a moisture-resistant molded shell (Figure 2A-C & 3A-C, #10; paragraph 0023, 0041), the edible housing made from fruit roll-up material (paragraph 0019), a frozen liquid food core of commercially-available ice cream located within the edible housing (Figure 2B & 5, #12; paragraph 0039), the edible housing pre-molded into a predetermined shape (Figure 3A-C), the housing sheet being 4” by 4” (paragraph 0032), and further processing or manipulation of the product such as by adding further material (paragraph 0045).
Guzman et al do not explicitly recite uncompressed spun sugar blanket of cotton candy encompassing the edible housing (claim 1, 9), a blanket density of less than 0.7 g/cm3 (claim 1, 19), machine-spun cotton candy (claim 1, 18), a housing thickness of less than 2 mm (claim 3, 12), less than 3 oz ice cream (claim 5), a volume of less than 42 cm3 (claim 6, 16), less than 200 kcal (claim 7, 17), the blanket being at least ¼” thick (claim 8, 20).
Potucek teaches a frozen confection product comprising an ice cream core (Figure 1, #2; page 2, last full paragraph), an uncompressed machine-spun cotton candy banket encompassing the ice cream (Figure 1, #3; page 3, 5th full paragraph), and the cotton candy acting as an insulating layer (page 3, 1st full paragraph).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed cotton candy blanket into the invention of Guzman et al, in view of Potucek, since both are directed to frozen confection products, since Guzman et al already included an ice cream core within a fruit rollup housing (Figure 2A-C) as well as further processing or manipulation of the product such as by adding further material (paragraph 0045), since ice cream products were commonly encompassed within an uncompressed machine-spun cotton candy banket encompassing the ice cream and the cotton candy acting as an insulating layer as shown by Potucek above, since the fruit rollup housing of Guzman et al would have effectively separated the ice cream core from the surrounding cotton candy blanket of Potucek, since the insulating cotton candy blanket of Potucek would have helped prevent excessive melting of the ice cream core of Guzman et al, since many consumers desired the taste and flavor of cotton candy, since a cotton candy blanket would have made it easier to hold the frozen confection of Guzman et al without making the consumer’s hands too cold, and since many consumers also desired new combinations of previously known snack products to provide new and taste and flavor combinations.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed blanket density and thickness, housing thickness, core weight, volume, and kcal into the invention of Guzman et al, in view of Potucek, since both are directed to frozen confection products, since Guzman et al already included an ice cream core and housing but simply did not mention any specific dimensions, since Potucek also disclosed a cotton candy blanket, since many consumers desired small serving sizes for their snack products, since machine spun cotton candy commonly possessed a very low density, since many consumers desired low calorie snacks for health and dietary reasons, since a smaller sized product would naturally possess fewer calories, since a smaller product would have been easier for the consumer to consume and transport, and since the claimed dimensions and specifications would have been used during the course of normal experimentation and optimization procedures due to factors such as the size of the consumer’s appetite, the consumer’s nutritional needs, the desired amounts of each individual component, and/or the specific ingredients used for each individual component of the combined product of Guzman et al, in view of Potucek.
In conclusion, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Guzman et al, in view of Potucek, as applied above, and further in view of Monte [Pat No. 5,789,008].
Guzman et al and Potucek teach the above mentioned concepts. Guzman et al do not explicitly recite soft-serve ice cream (claim 14). Monte teaches a layered frozen confection product comprising soft-serve ice cream (column 8, line 46). It would have been obvious to one of ordinary skill in the art to incorporate the claimed soft-serve ice cream into the claimed invention of Guzman et al, in view of Potucek and Monte, since all are directed to frozen confection products, since Guzman et al already disclosed commercially-available ice cream (paragraph 0039), since layered frozen confection products commonly used soft-serve ice cream as shown by Monte, since many consumers desired the taste of soft-serve ice cream, and since soft-serve ice cream is more easily dispensed as compared to conventional ice cream which must be manually scooped.
Response to Arguments
Applicant's arguments filed 1/2/26 have been fully considered but they are not persuasive.
Applicant argues that Kwon et al did not disclose an uncompressed blanket. However, Potucek clearly disclosed this concept (Figure 1, #3).
Applicant argues that Kwon et al required a powder layer. However, Potucek does not require a powder layer.
Applicant argues that Kwon et al did not disclose a boundary layer which provided a moisture barrier. However, the primary reference (ie Guzman et al) clearly disclosed this concept: an edible housing comprising a moisture-resistant molded shell (Figure 2A-C & 3A-C, #10; paragraph 0023, 0041), the edible housing made from fruit roll-up material (paragraph 0019).
Applicant argues that the references do not disclose a thermal barrier. However, Potucek clearly taught the cotton candy blanket providing an insulating layer (page 3, 1st full paragraph).
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). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DREW E BECKER/Primary Examiner, Art Unit 1792