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 .
This office action is in response to the application filed on October 31, 2022. The earliest effective filing date of the application is November 5, 2021.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d), filed on October 31, 2022.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 12, 2026 has been entered.
Status of Application
The amendment filed January 12, 2026 with the Request for Continued Examination has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 10
Withdrawn claims: None
Amended claims: 1 and 2
Cancelled claims: 11 – 20
Claims currently under consideration: 1 – 10
By not repeating the previously presented objection/rejection(s), it is sufficiently clear that said objection/rejection(s) are withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 – 10 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “adding a non-spore forming dormant probiotic powder into the stuffing”. There is no support in the instant specification with respect to the dormant probiotic powder being non-spore forming. One of ordinary skill in the art would not have interpreted the disclosure to include the precisely claimed invention of claim 1 because the specification only refers to “dormant probiotic powder” generically. There is no suggestion to select non-spore forming probiotics, or that the probiotics are inherently non-spore forming.
Claims 2 – 10 are rejected as dependent on a rejected base claim.
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 (i.e., changing from AIA to pre-AIA ) 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, 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 – 10 are rejected under 35 U.S.C. 103 as being unpatentable over Hartel et al. (Water; Hard Candy; Aerated Confections. In: Confectionery Science and Technology. Springer, Cham. (2018)) in view of Rivier (US 20030059501 A1) and Norfolk Now (Screen captures from YouTube video clip entitled “How do letters get in a stick of rock? Behind the scenes at Norfolk's Docwra factory” uploaded on April 27, 2017 by user “Norfolk Now” Retrieved from Internet: https://www.youtube.com/watch?v=L7mx93DY8uE (Retrieved on July 6, 2026)), as evidenced by Arzola-Martínez et al. (Lactobacillus johnsonii and host communication: insight into modulatory mechanisms during health and disease. Frontiers in Microbiomes.(2024)).
Regarding claims 1, 5, and 7, Hartel teaches a method of making taffy comprising the steps:
(a) Providing a taffy composition
Hartel teaches a taffy (i.e., candy) composition comprising the following ingredients: 25 – 35wt% sucrose (i.e., sugar), 50 – 60wt% glucose syrup (i.e., syrup), 8 – 12wt% water, 0 – 5wt% evaporated milk (i.e., protein powder), 2.5 – 5wt% fat (i.e., oil), 0 – 4wt% frappe (i.e., protein powder), and 0 – 0.25wt% lecithin (i.e., emulsifier – p. 303, Table 11.5). Hartel teaches the addition of 5 – 10% of fat to chewy candies decreases the stickiness on processing equipment, wrappers and teeth (p. 304, 11.1.1.3 Chewy Candies and Taffy). Hartel teaches texture modifiers such as starch, dextrin, gums, pectin, and gelatin (i.e., hydrated colloids) are added to taffy to provide textural effects (p. 308, 11.2.7 Texture Modifiers). Hartel teaches gelatin (i.e., hydrated colloid) is typically added to chewy candies such as taffy in an amount of 2 – 6% (p. 306, Table 11.6).
The range of lecithin (i.e., emulsifier) wt%, 0 – 0.25 wt%, as disclosed by Hartel, overlaps with the claimed range of 0.1 – 0.6 parts by weight out of 100 parts. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The range of gelatin (i.e., hydrated colloid) wt%, 2 – 6%, as disclosed by Hartel, overlaps with the claimed range of 0.2 – 4.5 parts by weight out of 100 parts. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The range of sucrose (i.e., sugar) wt%, 25 – 35 wt%, as disclosed by Hartel, overlaps with the claimed range of 20 – 70 parts by weight out of 100 parts. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Hartel does not teach a taffy (i.e., candy) composition comprising 10 – 25% evaporated milk and frappe (i.e., protein powder). However, a prima facie case of obviousness exists where the claimed ranges or amount do not overlap with the prior art but are merely close. MPEP § 2144.05. Here, the claimed amount of 10% by weight evaporated milk and frappe (i.e., protein powder) and the amount taught by Hartel, i.e., 9% by weight, is close that one of ordinary skill in the art would have expected them to exhibit the same effect in a taffy composition (i.e., a candy composition).
While Hartel does not teach a taffy (i.e., candy) composition comprising 15 – 40% fat (i.e., oil), Hartel teaches the addition of fat to chewy candies decreases the stickiness on processing equipment, wrappers and teeth (p. 304, 11.1.1.3 Chewy Candies and Taffy). Hartel teaches fats have a negative effect on aeration since they migrate towards the air interface and cause breakdown of air bubbles. Thus, their addition must be carefully controlled (p. 307, 11.2.5 Fats). Changing the fat (i.e., oil) content of the taffy (i.e., candy) would alter the stickiness of the taffy (i.e., candy) and the strength of the air bubbles within the taffy(i.e., candy). Therefore, the fat (i.e., oil) content of the taffy (i.e., candy) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have formulated a taffy (i.e., candy) composition with 15 – 40% fat (i.e., oil) to balance the stickiness of the taffy (i.e., candy) and the strength of air bubbles within the taffy (i.e., candy).
While Hartel does not teach a taffy (i.e., candy) composition comprising 2 – 25% glucose syrup (i.e., syrup) Hartel does teach when the ratio of sucrose to other sugars (glucose syrup, invert sugar, etc.) is too high, or graining factor is too high, crystallization is promoted. Hartel teaches very low water content generally tends to inhibit graining due to the limited molecular mobility. (p. 324, 11.5.4 Graining During Storage). Changing the glucose syrup (i.e., syrup) content of the taffy (i.e., candy) would alter the water content of the taffy (i.e., candy) and alter the graining of the taffy (i.e., candy). Therefore, the glucose syrup (i.e., syrup) content of the taffy (i.e., candy) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have formulated a taffy (i.e., candy) composition with 2 – 25% syrup to optimize the water content of the formulation to prevent graining and maintain texture and flavor.
(b) Mixing and dissolving the taffy
Hartel teaches mixing and dissolving the taffy (i.e., candy) composition and cooking it between 121 – 132°C to control moisture content, forming a taffy mixture (i.e., a stuffing – p. 309 – 310, 11.3.1 Dissolving and Cooking).
The range of cooking temperatures of step (b), 121 – 132°C, as disclosed by Hartel, overlaps with the claimed range of 115 – 125 °C. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the deoxygenated environment of step (b), Hartel teaches cooking sugar syrups (i.e., taffy mixtures/ stuffings) under vacuum (i.e., deoxygenated environment) to reduce the effects of degradation reactions, including inversion and browning (p. 52, 2.7 Boiling Point Elevation). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have completed any of the steps of Hartel, including step (b), in an airless environment to reduce the effects of degradation reactions.
Although Hartel does not teach the precisely claimed range of pressures of step (b) of claim 1, Hartel teaches cooking sugar syrups (i.e., taffy mixtures/ stuffings) under vacuum (i.e., deoxygenated environment/ absence of air) to reduce the effects of degradation reactions, including inversion and browning (p. 52, 2.7 Boiling Point Elevation). Hartel teaches boiling point temperatures are significantly lowered by vacuum operation since a reduction in pressure means a lower vapor pressure is needed for boiling to occur (p. 52, 2.7 Boiling Point Elevation). Changing the pressure of the environment in step (b) of the method of Hartel would predictably alter the minimum boiling temperature of the taffy mixture (i.e., stuffing), thereby predictably altering the heat-sensitive ingredient degradation within the taffy (i.e., candy). Therefore the pressure of the environment in step (b) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a pressure of 10 – 50 mmHg in step (b) of Hartel to operate at lower temperatures, thereby minimizing heat-sensitive ingredient degradation.
(c) Cooling the taffy mixture
Hartel teaches cooling the taffy mixture (i.e., stuffing) to 65.5 – 70°C to reduce protein degradation after cooking (p. 311, 11.3.3 Cooling).
Although Hartel does not teach the precisely claimed relative humidity in step (c) of claim 1, Hartel teaches the difference in relative humidity of the air and the water activity of the food is what drives absorption or desorption or water, with a greater difference driving more and faster moisture migration (p.75, 3.3 Water Activity and Equilibrium Relative Humidity (ERH)). Hartel teaches water activity is often used to describe the availability of water to participate in various reactions, including microbial growth (p. 73, 3.3 Water Activity and Equilibrium Relative Humidity (ERH)). Hartel teaches to be sure that no microorganisms can grow within candy, the water activity should be below about 0.65 (p. 77, 3.3.3 Water Activity and Microbial Stability). A relative humidity lower than a candy’s water activity indicates a dry environment, preventing further moisture absorption by the candy, thereby lessening the potential for microbial growth during the cooking process. Changing the relative humidity of the environment in step (c) of the method of Hartel would predictably alter the potential for microbial growth within the taffy (i.e., candy). Therefore the relative humidity of the environment in step (c) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a relative humidity of 10 – 15% to control the taffy water activity of step (c) in the method of Hartel to prevent unwanted microorganism growth.
Although Hartel does not teach the precisely claimed ranges of pressure of step (c) of claim 1, Hartel teaches cooking sugar syrups (i.e., taffy mixtures/ stuffings) under vacuum (i.e., deoxygenated environment/ absence of air) to reduce the effects of degradation reactions, including inversion and browning (p. 52, 2.7 Boiling Point Elevation). Hartel teaches boiling point temperatures are significantly lowered by vacuum operation since a reduction in pressure means a lower vapor pressure is needed for boiling to occur (p. 52, 2.7 Boiling Point Elevation). Changing the pressure of the environment in step (c) of the method of Hartel would predictably alter the minimum boiling temperature of the taffy mixture (i.e., stuffing), thereby predictably altering the heat-sensitive ingredient degradation within the taffy (i.e., candy). Therefore the pressure of the environment in step (c) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a pressure of 10 – 50 mmHg in step (c) of Hartel to operate at lower temperatures, thereby minimizing heat-sensitive ingredient degradation.
Although Hartel does not teach the precisely claimed range of cooling temperatures of step (c) of claim 1, Hartel teaches heat-sensitive ingredients (i.e., probiotics) may denature or degrade and no longer function properly if the taffy is not cooled sufficiently before addition. On the other hand, if the taffy is too cold before heat-sensitive ingredients (i.e., probiotics) are added, it is difficult to get a homogeneous dispersion into the sugar syrup (p.311, 11.3.2 Stabilizer Addition). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a cooling temperature of 24 – 26°C to control the degree of heat-sensitive ingredient degradation and taffy mixability throughout step (c) in the method of Hartel.
(d) Adding heat-sensitive ingredients to the taffy mixture
Hartel teaches adding heat-sensitive ingredients to the taffy mixture (i.e., stuffing) after the initial cooling step (c) to ensure thorough mixing while minimizing degradation, forming an inner taffy (I.e., a sugar core – p. 311, 11.3.3 Cooling).
Hartel does not teach adding dormant probiotic powder into the taffy mixture (i.e., stuffing) after the initial cooling step (c), and evenly mixing to form an inner taffy (i.e., sugar core).
Rivier teaches a confectionery product that includes at least one functional ingredient that has a casing and a filling enclosed within the casing (Abstract). Rivier teaches the functional ingredient is a probiotic bacterium ([0041]). Rivier teaches many functional ingredients are thermosensitive compounds such as the probiotics that degrade upon heating them at temperatures higher than about 70 – 80 °C ([0041]). Rivier teaches the powdered carrier in the filling has been found to be an effective means for successfully insulating the functional ingredient(s) while keeping the functional ingredient(s) alive and/or active after encapsulation into the confectionery casing (i.e., the probiotic is in powder form – [0041]). Rivier teaches the probiotic provides activation of the immune system, prevention of the bacterial overgrowth by pathogens, prevention of diarrhoea and/or restoration of intestinal flora ([0042]). Rivier teaches the probiotic bacterium is Lactobacillus johnsonii ([0044]). As evidenced by Arzola-Martínez, Lactobacillus johnsonii is a non-spore forming bacteria (p. 2, paragraph 1). Rivier teaches the Lactobacillus johnsonii is freeze-dried (i.e., dormant – [0082]). Rivier teaches the casing may be formed of a chewy crystallized structure known in the confectionery art as "low boiled" candy such as a fudge, a caramel or toffee ([0076]).
Hartel and Rivier are combinable because they are concerned with the same field of endeavor, namely, methods of making soft candies. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to include the Lactobacillus johnsonii of Rivier (i.e., a non-spore forming dormant probiotic powder) into the taffy of Hartel during the initial cooling step, as taught by Rivier in the method of Hartel because ingesting the Lactobacillus johnsonii of Rivier (i.e., a non-spore forming dormant probiotic powder) provides activation of the immune system, prevention of the bacterial overgrowth by pathogens, prevention of diarrhoea and/or restoration of intestinal flora, and adding heat-sensitive ingredients after the initial cooling step ensures thorough mixing while minimizing instability of heat-sensitive ingredients such as the Lactobacillus johnsonii of Rivier (i.e., a non-spore forming dormant probiotic powder).
Although Hartel does not teach the precisely claimed range of pressures of step (d) of claim 1, Hartel teaches cooking sugar syrups (i.e., taffy mixtures/ stuffings) under vacuum (i.e., deoxygenated environment/ absence of air) to reduce the effects of degradation reactions, including inversion and browning (p. 52, 2.7 Boiling Point Elevation). Hartel teaches boiling point temperatures are significantly lowered by vacuum operation since a reduction in pressure means a lower vapor pressure is needed for boiling to occur (p. 52, 2.7 Boiling Point Elevation). Increasing the pressure in step (d) after lowering the temperature in step (c) further converts the boiled liquid taffy mixture (i.e., stuffing) to a malleable solid. Changing the pressure of the environment in step (d) of the method of Hartel would predictably alter the texture and malleability the taffy (i.e., candy). Therefore the pressure of the environment in step (d) is a result-effective variable. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a pressure of 370 – 390 mmHg in step (d) of Hartel to further solidify the taffy mixture (i.e., stuffing) without changing temperature, thereby balancing heat-sensitive ingredient degradation and the malleability of the taffy during production.
(e) Pulling the inner taffy
Hartel teaches pulling the inner taffy (i.e., sugar core) to further mix and introduce gas bubbles (p. 305, 11.2.1 Air; p. 313, 11.3.4.2 Chews and Taffy).
Although Hartel does not teach increasing the pressure from 370 – 390 mmHg to atmospheric pressure in step (e), Hartel teaches making taffy (i.e., candy), without evidence to the contrary, under atmospheric pressure. Increasing the pressure in step (e) further converts the boiled liquid taffy mixture (i.e., stuffing) to a malleable solid. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have returned to atmospheric pressure after cooking and cooling the taffy (i.e., candy) to balance heat-sensitive ingredient degradation and the malleability of the taffy during production.
Although Hartel does not teach the precisely claimed range of cooling temperatures of step (e) of claim 1, Hartel teaches heat-sensitive ingredients (i.e., probiotics) may denature or degrade and no longer function properly if the taffy is not cooled sufficiently before addition. On the other hand, if the taffy is too cold before heat-sensitive ingredients (i.e., probiotics) are added, it is difficult to get a homogeneous dispersion into the sugar syrup (p.311, 11.3.2 Stabilizer Addition). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a cooling temperature of 24 – 26°C to control the degree of heat-sensitive ingredient degradation and taffy mixability throughout step (e) in the method of Hartel.
(f) Encapsulating the inner taffy
Hartel teaches encapsulating the inner taffy (i.e., a sugar core) with an outer taffy layer (i.e., encapsulating sugar mass), forming a taffy block (i.e. sugar bar – p. 228, 8.3.2.1 Cut Rock and Striping, Figure 8.13). Hartel teaches taffy strips are combined to create patterns prior to the stretching step (p. 314, 11.3.6 Cooling and Forming). Hartel teaches this method of pattern-making follows the method of cut rock and striping used for hard candy (p. 314, 11.3.6 Cooling and Forming). Hartel teaches the process involves arranging different colored strips of hard candy into a cylinder to create internal designs and “blocking” those shapes so they are retained when the mass is rolled into a rope (p. 228, 8.3.2.1 Cut Rock and Striping). Figure 8.13 shows candies produced by encapsulating an inner candy core (i.e., a sugar core) with an outer candy layer (i.e., encapsulating sugar mass – p. 228, Figure 8.13).
Although Hartel does not teach the precisely claimed ranges of the encapsulating mass temperature of step (f) of claim 1, Hartel teaches cooling a taffy mixture (i.e., stuffing) to 65.5 – 70°C to reduce protein degradation after cooking (p. 311, 11.3.3 Cooling). Hartel teaches if taffy is too cold, it becomes stiff (p.311, 11.3.2 Stabilizer Addition). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have cooled the encapsulating taffy mass to 50 – 60°C to balance the relationship between the degree of protein degradation and the flexibility of the encapsulating mass by adjusting the temperature of the encapsulating mass of step (f) in the method of Hartel.
Regarding the absence of air of step (f), Hartel teaches nitrogen gas is used to aerate fat-based products such as taffy to minimize lipid oxidation (p. 305, 11.2.1 Air). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced the air in the candy-making environment with nitrogen in any of the steps of Hartel, including step (f), to minimize lipid oxidation.
While Hartel is silent with respect to whether the inner candy core (i.e., a sugar core) is completely encapsulated by the outer candy layer (i.e., encapsulating sugar mass), Norfolk Now teaches a method of making cut rock candy wherein the inner candy core is completely encapsulated by an outer candy layer prior to stretching and cutting (p. 6 – 9).
Hartel and Norfolk Now are combinable because they are concerned with the same field of endeavor, namely, making cut rock candies. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have completely encapsulated the inner candy core (i.e., a sugar core) with an outer candy layer (i.e., encapsulating sugar mass), as taught by Norfolk Now in the method of Hartel because Norfolk Now provides that it was known for complete encapsulation of an inner candy core (i.e., a sugar core) by an outer candy layer (i.e., encapsulating sugar mass) to be successfully used and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed encapsulation method (i.e., complete encapsulation), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
(g) Stretching the taffy block into a rope and then cutting the taffy rope into pieces
Hartel teaches stretching the taffy block (i.e., sugar bar) into a rope (i.e., making it thinner) and then cutting the taffy rope into pieces (i.e., a plurality of separated pieces – p.310, Figure 11.1).
Although Hartel does not teach the precisely claimed ranges of cooling temperatures of step (g) claim 1, Hartel teaches the cold flow of salt water taffy, particularly in warmer temperatures, is a major concern (p. 326, 11.5.9 Cold Flow). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a cooling temperature of 18 – 22°C to minimize taffy block (i.e., sugar bar) cold flow while maintaining its soft texture during cutting.
Although Hartel does not teach the precisely claimed cooling time of step (g) claim 1, the taffy block (i.e., sugar bar) necessarily would have been cooled within the claimed time because the taffy block (i.e., sugar bar) could still be cut.
Regarding claims 2 and 10, the limitation “small amount of nitrogen” in claim 1 is interpreted to be any amount of nitrogen necessary to maintain a pressure of 10 – 50 mmHg in the environment. The limitation “an appropriate amount of air or nitrogen” in claim 10 is interpreted to be any amount of air or nitrogen necessary to increase the pressure to atmospheric pressure in the environment.
Hartel teaches nitrogen gas is used to aerate fat-based products such as taffy to minimize lipid oxidation (p. 305, 11.2.1 Air). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced the oxygen in the candy-making environment of the method of Hartel with nitrogen to minimize lipid oxidation.
Regarding claim 3, Hartel teaches modified nonlauric vegetable fats such as palm, soy, or cottonseed oils are often utilized for taffy (p. 307, 11.2.5 Fats).
Regarding claim 4, Hartel teaches corn syrups are primary sweeteners used in taffy (p. 305, 11.2.2 Sweeteners).
Regarding claim 6, Hartel teaches egg, soy, or whey proteins are utilized as stabilizers to impart a soft, short texture to taffy (p. 306, 11.2.3 Stabilizers).
Regarding claim 8, although Hartel does not teach the time for inner taffy (i.e., sugar core) to be encapsulated and cooled down is no more than 5 minutes, the inner taffy (i.e., sugar core) necessarily would have been encapsulated and cooled within the claimed time because the taffy block (i.e., sugar bar) could still be cut.
Regarding claim 9, Hartel teaches striped mints are cut on a ball former to pull down the stripes and form the colored swirl on the flat surface of the mint (p.228, 8.3.2.1 Cut Rock and Striping). Hartel teaches striped mints are produced using the same technique as cut rock candies (p.228, 8.3.2.1 Cut Rock and Striping). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to cut the taffy rope with a ball former to produce completely encapsulated taffy candies.
Response to Arguments
Applicant's arguments filed January 12, 2026 have been fully considered but they are not persuasive.
Applicant argues the presently claimed invention is directed to non-spore forming probiotics in a dormant state, which is not suggested by Lefkowitz (p. 6, paragraph 2).
Applicant’s argument has been carefully considered and while it is persuasive, attention is also drawn to the 112(a) rejection regarding the written description requirement. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Hartel, Rivier, and Norfolk Now.
Applicant argues neither Hartel nor Lefkowitz suggest methods wherein the candy core is completely encapsulated (p. 7, paragraphs 2 – 3).
Applicant’s argument has been carefully considered and it is persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Hartel, Rivier, and Norfolk Now.
Applicant argues the precisely claimed relative humidity of step (c) is critical and not result-effective (p. 8, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. Regarding the criticality of the relative humidity of step (c), MPEP § 2144.05.III.A states “Applicants can rebut a prima facie case of obviousness by showing the criticality of the range.” Applicant’s specification does not provide any examples showing the criticality of any process parameters, including the relative humidity of step (c). Furthermore, MPEP § 2144.05.III.C states “Applicants may rebut a prima facie case of obviousness based on optimization of a variable disclosed in a range in the prior art by showing that the claimed variable was not recognized in the prior art to be a result-effective variable.” Applicant has not offered evidence that the relative humidity of step (c) is not result effective. Therefore, Applicants argument is not persuasive.
Applicant argues the cooling within 5 seconds is critical to ensuring the survival of the non-spore forming bacteria, and not recognized by Hartel’s method (p. 9, paragraphs 2 – 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. Regarding the criticality of the relative humidity of step (c), MPEP § 2144.05.III.A states “Applicants can rebut a prima facie case of obviousness by showing the criticality of the range.” Applicant’s specification does not provide any examples showing the criticality of any process parameters, including the cooling time of step (g). Additionally, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art (i.e., the survival of non-spore forming bacteria) cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant argues the substitution of oxygen with nitrogen in the method of Hartel is based on impermissible hindsight (p. 10, paragraph 5).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case, the substitution is based on the teaching of Hartel that states nitrogen gas is used to aerate fat-based products such as taffy to minimize lipid oxidation (p. 305, 11.2.1 Air). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced the oxygen in the candy-making environment of the method of Hartel with nitrogen to minimize lipid oxidation.
Applicant argues the specific low-pressure environment in the stirring stage would create difficulties in equipment design and increase costs (p. 11, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. The attention brough to the complexity and costs of the equipment required for the present invention do not show how the precisely claimed process steps are unobvious in view of the prior art.
Conclusion
No claims are allowed.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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