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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/23/26 has been entered.
Claim Objections
Applicant is advised that should claim 21-22 be found allowable, claims 25-26 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-8, 15-20 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.
Claim 1 recites “a vertical intermediate position” as well as “a closed intermediate position”. It is not clear if they are describing different positions, or the same position.
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 1-6, 20-22, 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero [EP 0736257A1] in view of Aasted et al [Pat. No. 2,896,557], Lawrence [US 1,166,056], and Leadbeater [Pat. No. 6,129,940].
Sobrero teaches a method for manufacturing confectionary products (title) consisting essentially of the use of a reusable, permanent casting mold with two parts (Figure 1, #3-4), mating cavities in the mold parts which provide a three-dimensional shape to the product (Figure 1, #7), an open casting position for receiving confectionary material in the open-top cavities of both mold parts (Figure 5; column 3, lines 23-27), and closing the two mold parts into a closed horizontal transport position wherein the two mold parts are in direct contact (Figure 6).
Sobrero does not explicitly recite a sugar mass and a closed vertical/angled/perpendicular intermediate position and pivoting to the horizontal transport position (claim 1, 21-22, 24-25), the mould cavities being completely filled (claim 1, 21, 24), accelerating and deaccelerating the mold parts during the closing step (claim 2), rotating the mold parts into the intermediate position (claim 3), “quickly” closing the mold parts (claim 4), a closing time of 0.1-3 seconds (claim 5), pivoting from the intermediate position to the transport position in 0.1-3 seconds (claim 6), two different sugar masses are placed in each cavity of the mold parts (claim 7), and partial solidification before closing the mould (claim 20).
Aasted et al teach a method for manufacturing objects in a two-piece mold (title) by use of two mold parts with mating cavities (Figure 2, #3, 8), an open position wherein the cavities are totally filled with two different confectionary materials (Figure 1, Filling Station & Cream Molder; Figure 2; column 2, line 26, 35), a closed intermediate position wherein the two mold parts both quickly pivot to a vertical position (Figure 3), the mold parts inherently accelerating from a speed of zero to some non-zero speed and then deaccelerating back to a speed of zero during the movement from the open position to the intermediate closed position.
Lawrence teaches a process for forming filled wafers (title) by providing a casting mould with two parts having cavities (Figure 2, A & B), an open top casting position wherein the cavities are filled with sugar mass (Figure 2; page 3, lines 18-29), a vertical intermediate position wherein the two parts are rotated together (Figure 4, #29; page 3, lines 84-90), and the respective filled cavities contacting and joining together (page 3, lines 29-34; Figure 7).
Leadbeater teaches a method for making food articles (title) by providing two casting mold parts with partial cavities (Figure 1, #2-4), completely filling the partial mold cavities with confection (Figure 1, #9, 12), bringing the partial cavities together in a vertical orientation to form a closed mold cavity (Figure 1, #4), cooling the rollers to provide partial solidification of the confection material and permit the two confection halves to stick together (column 5, lines 21-37).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed vertical intermediate position features into the invention of Sobrero, in view of Aasted et al, Leadbeater, and Lawrence; since all are directed to methods of molding confectionary material, since Sobrero already included an open casting position and pivoting one of the mold parts into the horizontal transport position (Figure 5-6), since confection molding systems commonly included a closed intermediate vertical position wherein the two mold parts both quickly pivot to a vertical position (Figure 3) as shown by Aasted et al as well as Lawrence (Figure 4, #29), since two part confection molds were commonly brought together in a vertical orientation (Figure 1) as shown by Leadbeater, since the substitution of one known step (ie pivoting both mold parts to close) for another (ie pivoting only one mold part to close) would have yielded predictable results to one of ordinary skill in the art, since a horizontal transport position as used by Sobrero provided a more compact configuration for transport through the subsequent cooler system, and since pivoting both mold parts into the intermediate closed position and then rotating into the horizontal transport position would have eliminated the need for inverting one of the mold parts and thus reduced the chance of confectionary material falling out of the mold cavities of Sobrero, in view of Aasted et al, Leadbeater, and Lawrence.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed acceleration, deacceleration, and time values into the invention of Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, since all are directed to methods of molding confectionary material, since Sobrero already included an open casting position and horizontal transport position, since molding systems commonly included a vertical intermediate position as shown by Aasted et al and Lawrence, since the movements of Aasted et al and Lawrence inherently included accelerating from a speed of zero to some non-zero speed and then deaccelerating back to a speed of zero during the movement from the open casting position to the intermediate closed position, since “quickly” moving the mold parts within the claimed time periods would have enabled faster transitions and thus faster overall processing times, and since the claimed time values would have been used during the course of normal experimentation and optimization procedures due to factors such as the type of material being molded, the temperature and viscosity of the material, and/or the size and number of the mold cavities in the system of Sobrero, in view of Aasted et al and Lawrence.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed partial solidification and complete filling of the cavities into the invention of Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, since all are directed to methods of molding confectionary material, since Sobrero already included joining of two molded confection portions, since confection molding systems commonly included completely filling the partial mold cavities with confection (Figure 1, #9, 12) and cooling the rollers to provide partial solidification of the confection material and permit the two confection halves to stick together (column 5, lines 21-37) as shown by Leadbeater, since Lawrence also disclosed completely filling the mold cavities so that the two halves could be joined (Figure 7), since many consumers desired solid confection treats which were not hollow, and since completely filling the partial cavities would have provided a larger connecting area for the products and thus a more stable connection for the products of Sobrero, in view of Leadbeater and Lawrence.
In conclusion, the claims would have been obvious because “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense”. All the claimed elements were known in the prior art and one killed 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.
Claims 7, 23, 26 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Linck et al [US 10,448,660B2].
Sobrero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite pouring different sugar masses next to one another or on top of the other from one nozzle (claim 7, 23, 26). Linck et al teach a method for depositing food into cavity molds by use of a nozzle which deposits the foods in a side-by-side fashion (Figure 4-5; column 5, lines 42-60). It would have been obvious to one of ordinary skill in the art to incorporate the claimed one nozzle deposition into the invention of Sobrero, in view of Linck et al, since both are directed to methods of molding food, since Sobrero already included depositing sugar mass into the mold cavities, since molded confection products also commonly included two different fillings as shown by Aasted et al above, since confection molding systems commonly included a nozzle which deposits the foods in a side-by-side fashion (Figure 4-5; column 5, lines 42-60), since many consumers desire the flavor, taste, and textures of molded confections with multiple sugar masses, and since plural favors and/or textures would have provided increased consumer appeal for the confections of Sobrero, in view of Linck et al.
Claims 8, 15 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Hoffman et al [Pat. No. 4,744,997].
Sobrero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite a pouring temperature for gelatin of 50-90C (claim 8) or 65-75C (claim 15). Hoffman et al teach a method for producing gum candy (title) by providing a confection including gelatin (column 2, line 51), heating at a temperature of 60-130C or 80-100C (column 2, line 40), and an example at 65C (column 3, line 60).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed gelatin and temperature values into the invention of Sobrero, in view of Hoffman et al, since both are directed to systems for molding confections, since Sobrero simply did not mention specific ingredients or temperature values, since molded confections were commonly made from gelatin heated to 65C as shown by Hoffman et al, since many consumers desired gummy candy made from gelatin, since the claimed ingredient and temperature values would have been used during the course of normal experimentation and optimization procedures based upon factors such as the desired taste and texture properties of the final confection of Sobrero, in view of Hoffman et al.
Claims 8, 16 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Pasini Bertran [US 2010/0509569A1].
Sobreero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite a pouring temperature for carrageenan of 90-110C (claim 8) or 100-110C (claim 16). Pasini Bertran teach a method for producing three-dimensional candy (title) by providing a confection including carrageenan (paragraph 0020), heating at a temperature of 100-160C (paragraph 0021).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed carrageenan and temperature values into the invention of Sobrero, in view of Pasini Bertran, since both are directed to systems for molding confections, since Sobrero simply did not mention specific ingredients or temperature values, since molded confections were commonly made from carrageenan heated to 100-160C as shown by Pasini Bertran, since many consumers desired gummy candy made from carrageenan, since the claimed ingredient and temperature values would have been used during the course of normal experimentation and optimization procedures based upon factors such as the desired taste and texture properties of the final confection of Sobrero, in view of Pasini Bertran.
Claims 8, 17 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Emsing et al [Pat. No. 6,783,790].
Sobrero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite a pouring temperature for agar of 35-70C (claim 8) or 45-55C (claim 17). Emsing et al teach a method for producing confectionary product (title) by providing agar (abstract), heating at a temperature of about 120F or 49C before moulding (column 12, lines 47-60).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed agar and temperature values into the invention of Sobrero, in view of Emsing et al, since both are directed to systems for molding confections, since Sobrero simply did not mention specific ingredients or temperature values, since molded confections were commonly made from agar heated to 120F or 49C as shown by Emsing et al, since many consumers desired gummy candy made from agar, since the claimed ingredient and temperature values would have been used during the course of normal experimentation and optimization procedures based upon factors such as the desired taste and texture properties of the final confection of Sobrero, in view of Emsing et al.
Claims 8, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Willibald-Ettle et al [US 2023/0036378A1].
Sobrero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite a pouring temperature for hard caramel of 80-150C (claim 8) or 120-140C (claim 18). Willibald-Ettle et al teach a method for producing hard caramel (title) by heating at a temperature of about 130C before moulding (paragraph 0009, 0011).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed hard caramel and temperature values into the invention of Sobrero, in view of Willibald-Ettle et al, since both are directed to systems for molding confections, since Sobrero simply did not mention specific ingredients or temperature values, since molded hard caramels were commonly heated to 130C as shown by Willibald-Ettle et al, since many consumers desired hard caramel, since the claimed ingredient and temperature values would have been used during the course of normal experimentation and optimization procedures based upon factors such as the desired taste and texture properties of the final confection of Sobrero, in view of Willibald-Ettle et al.
Claims 8, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sobrero, in view of Aasted et al, Leadbeater, and Lawrence, as applied above, and further in view of Escola Gallart et al [Pat. No. 5,279,842].
Sobrero, Aasted et al, Leadbeater, and Lawrence teach the above mentioned concepts. Sobrero do not explicitly recite a pouring temperature for toffee/soft caramel of 80-120C (claim 8) or 90-110C (claim 19). Escola Gallart et al teach a method for producing gasified caramel (title) by heating at a temperature of about 90-150C before moulding (abstract).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed caramel and temperature values into the invention of Sobrero, in view of Escola Gallart et al, since both are directed to systems for molding confections, since Sobrero simply did not mention specific ingredients or temperature values, since molded caramels were commonly heated to 90-150C as shown by Escola Gallart et al, since many consumers desired caramels, since the claimed ingredient and temperature values would have been used during the course of normal experimentation and optimization procedures based upon factors such as the desired taste and texture properties of the final confection of Sobrero, in view of Escola Gallart et al.
Response to Arguments
Applicant's arguments filed 3/23/26 have been fully considered but they are not persuasive.
Applicant argues that incorporating the vertical intermediate position into the system of Sobrero would require alterations or modifications. 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).
Applicant argues that Aasted taught away from an intermediate position as claimed. However, the primary reference of Sobrero already included an open casting position as well as a closed horizontal transport position. Aasted is simply relied upon to show that joining two mold halves in a vertical orientation was known in the confection art. Leadbeater also disclosed a vertical joining of mold halves. It would have been obvious to one of ordinary skill in the art that a vertical orientation would have less chance confections material leaving the mold cavities, as compared to an inverted orientation.
It is further noted that applicant has failed to identify any unexpected or unpredicted results which would be attributed to the vertical intermediate position.
In response to applicant's argument based upon the age of the references, contentions that the reference patents are old are not impressive absent a showing that the art tried and failed to solve the same problem notwithstanding its presumed knowledge of the references. See In re Wright, 569 F.2d 1124, 193 USPQ 332 (CCPA 1977).
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).
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Pasini Bertran discloses molding sugar masses with various gelling ingredients and temperatures (column 2, lines 25-40), and Royo discloses molded candy with different masses in side-by-side or one-on-top configurations (Figure 5-6).
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.
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/DREW E BECKER/Primary Examiner, Art Unit 1792