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 .
Non-compliance and Status of the Claims
The reply filed on 10/15/2025 is not fully responsive to the prior Office action because of the following omission(s) or matter(s): The Examiner notes on the record that Applicant used the incorrect claim identifiers for withdrawn Claims 1-4 and 10-16, and therefore are non-compliant. These claims are non-elected claims. Claims 1-4 and 10-16 indicate “Original” or “Previously Presented”, but were not elected and withdrawn, therefore the identifier should indicate “Withdrawn” or “Withdrawn – currently amended” in accordance to CFR 1.121. See MPEP 714. See 37 CFR 1.111. Since the above-mentioned reply appears to be bona fide, for compact prosecution, Claims 1-4 and 10-16 will be considered withdrawn and not examined in lieu of issuing a noncompliance.
Claims 1-4 and 10-16 are non-elected claims, and are withdrawn. Claims 21-31 are newly added. Accordingly, Claims and 21-31 are herein acted on the merits. Claims 5, 8-9, and 17-20 have been amended. Claims 5-9, 17-20, and 21-31 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/25/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
Modified Rejectio/Objection As Necessitated by the Amendment Filed 10/15/2025
Claim Objections
Claim 17 is objected to because of the following informalities: the claim recites “between 0, 1 and 20% by weight” in the second bullet point. The comma needs to be changed to a period and the space needs to be removed to indicate 0.1, i.e. “between 0.1 and 20% by weight”. 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 20 and 31 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.
Claims 20 and 31 are indefinite for reciting “wherein the average size d50 of the powder…”. There are insufficient antecedent basis for this limitation in the claims. Claims 20 and 31 depend from Claim 17. However, Claim 17 does not refer to any particle, crystal, nor specifically a powder, that would indicate a size requirement. As such, the metes and bounds of these claims are unclear.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 5-6, 17, 20-21, 23, 27, and 31 are rejected under 35 U.S.C. 103 as being unpatentable over McKown et al. (US 3,615,676), hereinafter McKown, as evidenced by Powder Technology Inc. (Particle Size/Mesh Conversion Chart. Obtained on 11/20/2025, available on March 26, 2019 from Wayback Machine URL:< https://web.archive.org/web/20190326075506/https://www.powdertechnologyinc.com/particle-size-mesh-conversion-chart/>), hereinafter PTI.
McKown discloses sweetened, non-sticky, ready-to-eat cereal product and process of making it by applying crystalline sugar to the surface of cereal pieces by moistening the cereal pieces with a solution formed of water and an edible, non-sugar binding agent (Abstract; Claim 1). The moisture was removed by drying, and the loose pieces of crystalline sugar separated (Claims 1 and 3).
McKown teaches that the amount of sugar in the cereal-sugar mixture is 15-60% of the mixture, and that sugar crystals on the dried cereal pieces ranges from about 15-50% by weight of the finished product which renders the amount of coating, i.e. 20-60% claimed obvious in Claims 5 and 21 (Claims 7-8). McKown teaches excellent binding agents for causing the crystalline sugar granules to adhere to the cereal pieces to include gelatin, guar gum, pregelatinized starch, sodium carboxymethylcellulose, methylcellulose, and edible shellack (Col. 2, lines 62-69). One would choose any of the finite binding agents based on a variety of factors including availability, cost etc. The amount of binding agent in the water solution ranges from about 0.5-25%, and that the moisture content of the cereal pieces is 5-20 %, which is reduced to 0.5-3% drying (Claims 1 and 9). By Examiner’s calculation, at the maximum 20% moisture content prior to drying of the cereal pieces, the binding agent will be maximally present at 25%. After drying the moistened product, the coating mixture will necessarily comprise of near 5% binding agent, and near 95% sugar, with some residual moisture (~0.5%). As such, the claimed amount of starch and sugar in Claims 5-6, 17, 23 and 27 are rendered obvious.
McKown does not require gum arabic in the preparation of its confectionery product.
McKown teaches pregelatinized starch, and does not require any chemical modification.
Regarding Claims 17, the claimed amount of sweetening agent and starch have been rendered obvious supra. In the absence of a definition for “dry” in the instant Specification, the Examiner will interpret “dry” to encompass the product of McKown, which was subjected to drying and contained a low moisture content of 0.5-3.0 % (Claim 1).
Regarding Claim 21, McKown teaches that the sugar crystals on the dried cereal pieces ranges from about 15-50% by weight, and teaches an embodiment wherein the binding agent is present at 5%, giving a total coating weight that overlaps with the claimed range (Claims 1, 8-9).
Regarding Claims 20 and 31, McKown teaches that different crystalline sugars can be used with satisfactory results, but that the size of the crystals should not be too small. If the crystals are too small; preferably, the particle size be such that at least 90 percent is retained on a 40-mesh screen (Col. 2, lines 32-41; Claim 5). As evidenced by PTI, The 40-mesh screen corresponds to sieving 470 microns and larger, which overlaps with the claimed particle size.
Regarding Claim 27, McKown has taught the cereal to comprise a coating of crystalline sugar and a binding agent (Abstract). The amount of binding agent in the water solution ranges from about 0.5-25%, and that the moisture content of the cereal pieces is 5-20 %, which is reduced to 0.5-3% drying (Claims 1 and 9). By Examiner’s calculation, at the maximum 20% moisture content prior to drying of the cereal pieces, the binding agent will be maximally present at 25%. After drying the moistened product, the coating mixture will necessarily comprise of near 5% binding agent, and near 95% sugar, with some residual moisture (~0.5%).
Claims 7, 9, 19, 22, 25-26, and 29-30, are rejected under 35 U.S.C. 103 as being unpatentable over McKown, as applied to Claims 5 and 17 above, and in view of De Meuter et al. (US 2005/0214424 A1), hereinafter De Meuter.
The teachings of McKown have been set for supra.
McKown does not teach coating chewing gum. McKown teaches sucrose sugar, but not the claimed polyol.
De Meuter is in a related field and relates the importance of replacing sucrose coatings because sucrose is detrimental for teeth [0002]. De Meuter discloses a sugar-free hard coating prepared from a liquid maltitol syrup useful in as coating for chewing gum, wherein the liquid maltitol can be applied at high dry substance to give a hard coating is crunchy, non-sticky and is not cracking during post-processing (Abstract). The coating comprises at least 95% maltitol (Claim 1). The hard coating of De Meuter can also contain binding agents and other additives, which makes it compatible with the coating of McKown [0043].
Regarding Claim 7, De Meuter teaches the sugar-free hard-coated comestibles having core selected from the group consisting of pharmaceutical tablets, chewing gum, confectionery product, chocolate and nut (Claim 3). De Meuter expressly teaches coating with a chewing gum (Example 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to coat comestible products with the pregelatinized starch of McKown and replacing the sugar with a sugar alternative, i.e. maltitol syrup, in place of sucrose which De Meuter teaches to be detrimental to teeth. One would apply the coating on desired comestible including cereals and chewing gum.
Regarding Claims 9, 19, 22, 25-26, and 29-30, De Meuter teaches maltitol, which is a polyol (Claim 1).
Claims 8, 18, 24, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over McKown, as applied to Claims 5 and 17 above, and in view of Scheick et al. (US 3527646; Of record), hereinafter Scheick.
McKown does not expressly teach the type of pregelatinized starch.
Scheick is in a related field, also teaching coating food with pregelatinized starch (Abstract). Scheick teaches functional food coatings improving functional or physical characteristics of foods, without affecting the natural flavor of the food or even enhance it (Col. 1, lines 56-65).
The coating uses dry powder, which includes one or more pregelatinized starches as the major ingredient, i.e. at least about 50% of the weight of the powder will comprise pregelatinized starch (Col. 2, lines 59-64). Scheick teaches coating food pieces including coatings for candies (Example 7).
Regarding Claims 8, 18, 24, and 28, Scheick teaches an example wherein the pregelatinized starch is one of pregelatinized waxy maize starch and 8% sucrose, pregelatinized corn starch etc. (Example 8).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Scheick to McKown and use any of the starches taught by Scheick. One skilled in the art would try any of the 7 pregelatinized starches recited by Scheick as a person with ordinary skill has good reason to pursue known options within his or her technical grasp and therefore also try pregelatinized corn starch or waxy corn starch.
Response to Remarks:
Applicant traversed the rejections over Bell, Bell, in view of Scheick, and Bell in view of Elijalde.
Regarding the traversal over Bell and Elijalde, Applicant’s arguments have been considered but are moot because the new ground of rejection necessitated by the amendment does not rely on Bell and Elijalde for any teaching or matter specifically challenged in the argument. The argument in view of Scheick is addressed infra.
Applicant argues that Scheick describes products coated with an amorphous film of a mixture of pregelatinized starches and sucrose in small amounts to improve the barrier properties of the coated product to the fats and air, which is in direct contrast to the claimed hard crystalline coating instantly claimed. Also, Scheick consistently teaches amounts of sweetening below the claimed 80-99.90%.
The Examiner has considered the argument but was not persuaded. 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). Scheick is in the same coating field, including candy coating, and is relied on only to teach the types of pregelatinized starches that would be useful in a coating composition without affecting the natural flavor of the food it is coating, noting that one skilled in the art would already know to use a pregelatinized starch from the primary art, McKown. Scheick is not relied on to teach the amount of sugar, which would necessarily affect the hardness of the coating. The previous primary art Bell, and McKown herein, is relied on for teaching the amounts of sugar and starch.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Boua et al. (CN 103189434 B, machine translated in IP.com).
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792