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 .
Election/Restrictions
Applicant’s election of group I in the reply filed on 6/2/25 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 6 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim.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.
Claims 1-4, 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Ashokan et al [US 2011/0165290A1] in view of Fondant NPL [Fondant Icing Recipe] and Overly III et al [US 2006/0257549A1], and as evidenced by Brunning [National Chemistry Week: The Chemistry of Candy].
Ashokan et al teach a confectionery with enzymatically manipulated texture (title) comprising an interior region, a chewy region, and a surface region (page 22, claim 121-122), the interior region or filling composition being a semi-solid which softens to become a liquid during storage (paragraph 0047), the interior region including invertase and sucrose (paragraph 0008), the filling including crystal particulates such as sucrose (paragraph 0050, 0056), the filling also including an aqueous carrier such as corn/glucose syrup (paragraph 0077-0078), the sucrose particulates being 20-100% of the filling (paragraph 0055), the syrup being 20-80% of the filling (paragraph 0079), an example filling using 5-15% high fructose syrup and 35-65% erythritol powder (page 21, Table 5, Example U), the surface region being in amorphous, particulate, or crystalline form (paragraph 0164), the surface coating region including several layers including a layer for aesthetic, textural, or protective purposes (paragraph 0166), the surface layer being hard, crunchy, crispy, gritty, or soft (paragraph 0166), the surface region including sucrose and corn/glucose syrup (paragraph 0180), the chewy region including sugar/sucrose, corn/glucose syrup, hydrocolloids, and fat (paragraph 0111, 0129, 0136, 0139), and the chewy material having been pulled (paragraph 0160).
In addition, the amorphous material of Ashokan et al would possess no sucrose crystals, as evidenced by Brunning, which discloses that non-crystalline candy, or amorphous candy, contain no crystals (page 1, Graphic).
Ashokan et al do not explicitly recite the core being a fondant with less liquid syrup than solid sucrose crystals, and the amorphous material later becoming at least partially crystallized upon controlled storage 9claim 1).
Fondant NPL teaches a semi-solid confection made from 500g sugar and 100g glucose syrup.
It would have been obvious to one of ordinary skill in the art to incorporate the claimed ratio of syrup and crystals into the invention of Ashokan et al, in view of Fondant NPL, since both are directed to confectionary products, since Ashokan et al already included a semi-solid interior material including invertase and sucrose (paragraph 0008), the filling including crystal particulates such as sucrose (paragraph 0050, 0056), the filling also including an aqueous carrier such as corn/glucose syrup (paragraph 0077-0078), the particulates being 20-100% of the filling (paragraph 0055), the syrup being 20-80% of the filling (paragraph 0079), and an example using 5-15% high fructose syrup and 35-65% erythritol powder (page 21, Table 5, Example U); since fondant was a commonly used semi-solid confectionary material, since fondant typically included more solid sucrose than glucose syrup as shown by Fondant NPL, since a larger amount of sugar would have produced an more viscous material which would be less likely to leak out of the confection of Ashokan et al during the initial manufacturing steps but would also provide a greater amount of sucrose to be later converted to liquid for the desired center filling, and since the claimed amounts would have been used during the course of normal experimentation and optimization procedures due to factors such as the desired flavor, texture, and/or mouthfeel properties of the final product of Ashokan et al, in view of Fondant NPL.
Overly III et al teach a coated confectionary product (title) comprising a chewy inner material (Figure 1, #20), the chewy material including hydrocolloid in the form of gum Arabic, a fat, and a sweetener such as sugar and corn syrup (paragraph 0014, 0019, 0016); a surrounding amorphous layer which is party crystallized due to moisture migrating from the chewy inner material upon controlled storage (Figure 3, #16, 18; paragraph 0014; abstract), and an outer hard coating (Figure 3, #22).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed later partial crystallization of the amorphous material of Ashokan et al, in view of Fondant NPL and Overly III et al, since all are directed to confectionary products, since Ashokan et al already included a chewy layer surrounded by a surface region in crystalline or amorphous form (paragraph 0164) and the surface region including sucrose (paragraph 0166), since “amorphous” candy was commonly accepted to include no sucrose crystals as evidenced by Brunning, since confectionary products commonly included a chewy material surrounded by an amorphous layer which is then partly crystallized due to moisture migrating from the chewy center (Figure 3, #16, 18; paragraph 0014; abstract) as shown by Overly III et al, since the moisture migration allows a soft candy layer to form (paragraph 0032) as shown by Overly III et al, since many consumers desired confections with varied textures, flavors, and layers; and since the claimed amorphous layer which becomes a partly crystallized soft amorphous layer would have provided increased appeal and desirability to the confectionary product of Ashokan et al, in view of Overly III et al.
In conclusion, all the claimed elements were known in the prior art and one skilled in the art could have combined he 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.
Response to Arguments
Applicant's arguments filed 2/6/26 have been fully considered but they are not persuasive.
Applicant argues that the references do not disclose liquefaction of the paste core by enzymatic hydrolysis (ie invertase) and partial crystallization of the amorphous layer. However, Ashokan et al teach a confectionery with enzymatically manipulated texture (title) comprising an interior region, a chewy region, and a surface region (page 22, claim 121-122), the interior region or filling composition being a semi-solid which softens to become a liquid during storage (paragraph 0047), and the interior region including invertase and sucrose (paragraph 0008). Overly III et al teach a coated confectionary product (title) comprising a chewy inner material (Figure 1, #20), the chewy material including hydrocolloid in the form of gum Arabic, a fat, and a sweetener such as sugar and corn syrup (paragraph 0014, 0019, 0016); and a surrounding amorphous layer which is party crystallized due to moisture migrating from the chewy inner material upon controlled storage (Figure 3, #16, 18; paragraph 0014; abstract).
Applicant argues that the references do not disclose the ratio of syrup to sucrose crystals. However, it would have been obvious to one of ordinary skill in the art to incorporate the claimed ratio of syrup and crystals into the invention of Ashokan et al, in view of Fondant NPL, since both are directed to confectionary products, since Ashokan et al already included a semi-solid interior material including invertase and sucrose (paragraph 0008), the filling including crystal particulates such as sucrose (paragraph 0050, 0056), the filling also including an aqueous carrier such as corn/glucose syrup (paragraph 0077-0078), the particulates being 20-100% of the filling (paragraph 0055), the syrup being 20-80% of the filling (paragraph 0079), and an example using 5-15% high fructose syrup and 35-65% erythritol powder (page 21, Table 5, Example U); since fondant was a commonly used semi-solid confectionary material, since fondant typically included more solid sucrose than glucose syrup as shown by Fondant NPL, since a larger amount of sugar would have produced an more viscous material which would be less likely to leak out of the confection of Ashokan et al during the initial manufacturing steps but would also provide a greater amount of sucrose to be later converted to liquid for the desired center filling, and since the claimed amounts would have been used during the course of normal experimentation and optimization procedures due to factors such as the desired flavor, texture, and/or mouthfeel properties of the final product of Ashokan et al, in view of Fondant NPL.
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).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed later partial crystallization of the amorphous material of Ashokan et al, in view of Fondant NPL and Overly III et al, since all are directed to confectionary products, since Ashokan et al already included a chewy layer surrounded by a surface region in crystalline or amorphous form (paragraph 0164) and the surface region including sucrose (paragraph 0166), since “amorphous” candy was commonly accepted to include no sucrose crystals as evidenced by Brunning, since confectionary products commonly included a chewy material surrounded by an amorphous layer which is then partly crystallized due to moisture migrating from the chewy center (Figure 3, #16, 18; paragraph 0014; abstract) as shown by Overly III et al, since the moisture migration allows a soft candy layer to form (paragraph 0032) as shown by Overly III et al, since many consumers desired confections with varied textures, flavors, and layers; and since the claimed amorphous layer which becomes a partly crystallized soft amorphous layer would have provided increased appeal and desirability to the confectionary product of Ashokan et al, in view of Overly III et al.
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 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