DETAILED ACTION
Background
The amendment dated July 30, 2026 (amendment) amending claim 1 and canceling claims 2-5 and 9-19 has been entered. Claims 1, 6-8 and 21 as filed with the amendment have been examined. Claims 2-5 and 9-20 have been canceled. In view of the amendment all outstanding claim objections have been withdrawn. In view of the cancelation of claims 2-5 and 9-19, all outstanding rejections of those claims have been withdrawn.
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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, at line 32 after “wherein a sugar weight ratio of” insert -- the sugar to the total weight of--; and
at line 32 after “than a sugar weight ratio of” insert -- the sugar to the total weight of--.
Appropriate correction is required.
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.
Claim 1 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang (Yang), of record.
Unless otherwise stated, all percents (%) without units are interpreted as weight %s (wt%); and wt% is interchangeable with mass%.
Unless otherwise specified as in claim 8, the Office considers the claimed “ingredient” as including any ingredient.
The Office interprets the claimed “water content” broadly in claim 1 as referring, independently, to any content of water in an outer-layer dough and any water content in a center dough, including any content expressed in weight % (wt%), mass% or volume % and any content basis including based on total dough weight, based on total solids, based on water soluble content, based on fat content or any other basis.
Further, the Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature.
The Office interprets the claimed “sugar weight ratio” as referring to a weight ratio of the weight of sucrose divided by the total weight of a given.
The Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature.
Yang at Abstract discloses a multilayered confectionary product (“ingredient stuffed soft candy”) comprising at least two distinct confectionary layers, including a ”center dough” and an “outer-layer dough covering the center dough”, wherein water migration leads to a difference in the texture of at least one of the layers after processing. Further, at [0046] Yang discloses that its center dough comprises fondant, chocolate, caramel, compound coating, bubble gum or gum and that its first shell or outer-layer dough comprises gum (gelatin) candy, jelly candy, chewy candy, chocolate or nougat as a soft candy. And at [0047] Yang discloses its center comprising particles, nonpareils or beads such as fruit pieces or granules (“ingredient” that is a “solid or semi-solid food” and that is “separable from the center dough and the outer-layer dough” as a fruit piece in claim 8). Still further, at [0052-0053] Yang discloses soft candy comprising alternative layers firm and protective layers such as taffy and harder layers and soft centers or centers having contrasting texture or flavor which include the pieces or granules, nonpareils, beads or particles of Yang The ordinary skilled artisan in Yang would have found it obvious to use the claimed fruit pieces as its ingredient in its center dough, and further to use a fondant, chocolate or other soft candy mass as its center dough and to use a bubble gum, chewy candy, taffy or any harder layer as its outer-layer dough because Yang discloses such beads, fruit pieces, particles and granules as desirable ingredients to include in the center dough of its candy,. Further, the ordinary skilled artisan would have found it obvious to make a and because Yang discloses fondant, chocolate or soft candy as desirable cores having a lesser hardness and less water than the outer-layer dough; and, further because Yang discloses bubble gum, taffy and any other harder or firmer outer layers for its stuffed soft candy, including jelly candy or gummy candy and any harder chewy candy as desirable protective, contrast flavored or contrast textured outer-layer doughs for making its multilayer soft candy into an ingredient stuffed soft candy.
In addition, Yang at [0067]-[0068] discloses use of artificial sweeteners and bulking agents such as glycerol, the use of which would lower the sugar content of a layer of the stuffed soft candy.
Yang does not disclose a hardness for the ingredient, the center dough or the outer-layer dough; further, does not disclose a hardness of the ingredient of 1050 g or less; does not disclose the hardness of the center dough of 370 g or less; and, does not disclose the hardness of the outer-layer dough of from 150 to 1100g. Further, Yang does not disclose an amount of the ingredient fruit pieces, particles, nonpareils or beads as 40 mass% or less of the mass of the center dough. However, the ingredient, soft candy as fondant, caramel, gummy candy, gum, compound coating, chocolate or jelly candy center doughs and outer-layer dough as any harder candy including taffy, chewy candy, gum, gummy or jelly candy all appear to be substantially the same thing as the claimed center dough and outer-layer dough. Accordingly, absent a clear showing as to how the hardness of the ingredient, center dough and outer-layer dough and amount of ingredient of Yang differs from that of the ingredient-stuffed soft candy as claimed, the Office considers the ingredient-stuffed soft candy of Yang to comprise an ingredient having a hardness at a normal temperature of 20 °C of 1050 g or less and a center dough having a lower hardness at the normal temperature than the outer-layer dough as in claim 1, to have a center dough having a hardness at the normal temperature of 370 g or less as measured by the measurement method and to have an outer-layer dough having a hardness at the normal temperature of from 150 to 1100 g as measured by the measurement method, with all hardnesses measured by (1) fixing the ingredient measurement sample whose temperature is maintained at a normal temperature of 20 °C to a sample stage of a texture analyzer; (2) lowering a measurement probe of the texture analyzer having a cylindrical shape with a diameter of 0.9 mm at a speed of 1 mm/sec, so that the measurement probe is made to enter a surface in the vicinity of the center of a measurement surface of the ingredient, and measuring a load within a range of a maximum load of 5 kg; and, (3) raising the measurement probe when the measurement probe has penetrated the bottom surface of the ingredient. See MPEP 2112.01.I.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in Yang to make its outer-layer dough of its multilayer ingredient stuffed soft candy harder than its center dough as desired to protect the candy, to select a low water or fat based soft candy center dough having a lower water content than its outer-layer dough as a desirable soft candy, and would have found it obvious in Yang to use an outer dough having a higher water content and less sugar than the center dough as a desirable gelled layer and to include less of a sugar weight ratio in the outer-layer dough as it is desirable to make the product less sticky as an outer-layer dough or to reduce its sugar content.
In addition, Yang does not disclose that its ingredient stuffed soft candy has a sugar weight ratio of the center dough that is higher than a sugar ratio of the outer- layer dough; or disclose a water content of the outer-layer dough that is larger than a water content of the center dough. However, Yang at [0046] discloses a chocolate core which can contain virtually no water and (at [0067]-[0068] discloses low sugar or sugar free candy. Accordingly, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in Yang to formulate a sugar free chocolate or compound core center dough that has a water content less than a water content of its outer-layer dough, and wherein the sugar weight ratio, based on the total weight of the outer-layer dough is less than the sugar weight ratio, based on the total weight of the center dough because Yang discloses that a lower water content chocolate or compound candy core with a sugar free harder shell provides a desirable, protected stuffed soft candy that has more water and less sugar in the outer-layer dough than in the center dough.
Claims 6-8 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang (Yang) as applied to claim 1, above and further in view of US2002/0197358 A1 to Tachikawa et al. (Tachikawa), of record.
Unless otherwise stated, all percents (%) without units are interpreted as weight %s (wt%); and wt% is interchangeable with mass%.
Unless otherwise specified as in claim 8, the Office considers the claimed “ingredient” as including any ingredient.
The Office interprets the claimed “water content” as referring, independently, to any content of water in an outer-layer dough and any water content in a center dough, including any content expressed in weight % (wt%), mass% or volume % and any content basis including based on total dough weight, based on total solids, based on water soluble content, based on fat content or any other basis. Further, the Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature. The Office interprets the claimed “sugar weight ratio” as referring to a weight ratio of the weight of sucrose divided by the total weight of a given.
Further, the Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature.
As applied to claim 1, Yang at Abstract discloses a stuffed soft candy comprising at least two distinct confectionary layers of a center dough and an outer-layer dough covering the center dough, wherein at [0046] the center dough comprises a soft candy, such as chocolate, compound or other soft candy which has a lower water content than its outer-layer dough. And at [0047] Yang discloses its center comprises particulates, particles, beads including fruit pieces as an ingredient that is a solid or semi-solid food that is “separable from the center dough and the outer-layer dough”. Still further, at [0052-0053] Yang discloses soft candy comprising alternative layers as firm and protective outer-layer doughs and soft centers, wherein Yang at [0067]-[0068] also discloses that any layer including the outer-layer dough is sugar free and has a lower sugar weight ratio, based on the total weight of the layer than the center dough, and further wherein the hardness of the ingredient is 1050 g or less, the hardness of the chocolate or other soft candy center dough is 370 g or less; and the hardness of the protective outer-layer dough of from 150 to 1100g.
Yang does not disclose an amount of the ingredient fruit pieces, particles, nonpareils or beads as 40 mass% or less of the mass of the center dough as in claim 7; Further, Yang does not disclose that its ingredient particulates are a gummy, jelly or specifically a dried fruit as in claim 8. However, the Office considers the claimed dried fruit to include the fruit pieces disclosed in Yang at [0047].
Tachikawa discloses at Abstract a soft candy dough having a gummy substance dispersed through the dough as a soft candy base, wherein the amount of the dispersed gummy ingredient ranges from 5 to 30 wt%, based on the total weight of the soft candy. Further, at Example 5 and [0038], Tachikawa discloses that the gummy candy has a moisture content of 13 wt%, based on the weight of the gummy candy; and, at [0039] discloses that the soft candy has a moisture content of 7.2 wt% based on the total weight of the soft candy. The Office finds that the hardness at a normal temperature of 20 °C of the gummy candy is 1050 g or less and is harder at the normal temperature than the soft dough as the center dough because the gummy candy withstands dispersion into the soft candy intact while the soft candy is deformed. Further, Tachikawa discloses that its Example 5 gummy candy has 30 parts of sugar, and a total of (46 + 13 + 5.5 or) about 65 parts of starch syrup, gelatin and gum arabic, and the gummy candy ends up with 13 wt% of moisture; whereas the soft candy, which has a lower moisture content has 28 parts sugar as well as 3 parts fondant and 3.7 parts of frappe candy, both of which substantially comprise sugar, and further the soft candy comprises (37 + 1.5 + 7 + 6 + 4 + 2 or) about 57.5 parts starch syrup, cocoa powder, cream, condensed milk, fat and gelatin with 5 wt% residual moisture. Accordingly, the Office finds that the soft candy of Tachikawa has a higher sugar content in wt% of the soft candy than its gummy candy in wt% of the total gummy candy. In addition, Example 5 of Tachikawa discloses gummy granules that weigh 0.2 g.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Tachikawa for Yang to make an ingredient stuffed soft candy using a soft candy center dough having dispersed therein the claimed amount of 40 mass% or less, based on the total mass of the center dough, of a gummy candy ingredient. Both references disclose soft candy and its combinations with gummy candy. The ordinary skilled artisan in Yang would have desired to use the claimed amount of a gummy candy as its ingredient to impart a desirable contrast in the texture and flavor of the ingredient stuffed soft candy as at [0053] of Yang.
Regarding instant claim 6, Yang does not disclose a center dough with a water content of 12 wt% mass % or less, based on the mass of its center dough or a water activity of 0.7 or less in its center dough. However, the ordinary skilled artisan would have found it obvious in view of example 5 of Tachikawa to use as its soft candy a soft dough base having a water content of about 7 wt%, based on the total weight of the dough. Further, the Office considers the claimed center dough with a water activity of 0.7 or less to include the soft dough or soft candy mass of Yang as modified by Tachikawa.
Regarding instant claim 7, Yang does not disclose an amount of the candied cherry ingredient as 40 mass% or less, based on the mass of the center dough. However, Yang as modified by Tachikawa at the Abstract discloses 5 to 30 wt% of ingredient, based on the total weight of the center dough. The ordinary skilled artisan would have found it obvious in Yang to use 40 mass% or less of its ingredient, based on the mass of the center dough including any amount sufficient to provide the overall candy of Yang with the flavor and/or the texture of the ingredient in Yang. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05.II.A.
Regarding instant claim 21, Yang does not disclose an ingredient having a mass of 0.1 or more. However, it would have been obvious in Yang as modified by Tachikawa as in Example 5 thereof to provide a piece of fruit, gum, jelly or other food as an ingredient having a mass of 0.1 g or more as desired to insure that the candy of Yang imparts the flavor and/or texture of the ingredient.
Response to Arguments
In view of the amendment dated July 30, 2026, the following rejections have been withdrawn as moot:
The rejection of claims 4, 9-12, 15-17 and 19 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the recited sugar ratio;
The rejections of claims 1-3, 7-8, 13-14 and 21 under 35 U.S.C. 102(a)(1) as being anticipated by May, C. "5-Pleasant" Candy Blog, March 22, 2011, pp. 1-16, downloaded from www.candyblog.net on April 29, 2026;
The rejections of claims 2-3, 7, 13-14 and 21 under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang;
The rejections of claims 4-6, 9-12 and 15-19 under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang in view of US 2013/0216661 A1 to Miladinov et al.;
The rejections of claims 4, 9-10, 15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over May, C. "5-Pleasant" Candy Blog, March 22, 2011, pp. 1-16, downloaded from www.candyblog.net on April 29, 2026 in view of US6733805 B1 to Loisel et al.; and,
The rejection of claim 7 under 35 U.S.C. 103 as being unpatentable over May, C. "5-Pleasant" Candy Blog, March 22, 2011, pp. 1-16, downloaded from www.candyblog.net on April 29, 2026.
The remarks accompanying the amendment dated July 30, 2026 (Reply) have been fully considered but are moot in view of the new grounds of rejection which do not rely on the May or Miladinov references cited in the withdrawn rejections in support of any issue or argument raised in the remarks.
Regarding the positions taken in the remarks accompanying amendment dated July 30, 2026 (Reply), the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the extensive review of the instant specification, the Office does not question that the disclosure of the invention and the properties claimed are as stated or that such a claimed or disclosed thing is technically relevant. However, this does not mean that the claimed invention is unobvious over the art. No statement made in the instant specification is treated as evidence of unexpected results without any data or evidence or other showing of fact. Statements made in the specification without supporting evidence alleging that the invention is unobvious are treated as mere attorney argument. And arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II.
Regarding the position taken in the Reply stating features that Applicants achieve, even if the claimed features cooperate to achieve the texture and sensory effects described and tested in the present specification, and that the disclosure of Yang does not teach or suggest a cooperative combination as a result, this is not evidence that the claims are unobvious over Yang because it is obvious to select an ingredient stuffed soft candy of Yang from the disclosure of Yang that appears to be the same thing as the claimed invention. See MPEP 2112.01.I. In addition, it is not clear what a “cooperative combination” would entail.
Regarding Yang, the Office does not dispute that Yang does not disclose a hardness, water content, water activity or sugar weight ratio in the claims; and the Office does not argue that Yang's does not disclose and example of the claimed product in which both the center dough and the outer-layer dough are soft candy doughs having the claimed measured hardness relationship and ranges; further, the Office does not argue that Yang discloses an example of the claimed sugar-weight-ratio relationship or the claimed water-content relationship, or even that Yang discloses that a center dough should have a sugar weight ratio higher than the outer-layer dough while the outer- layer dough has a water content larger than the center dough, in combination with the claimed hardness relationship and hardness ranges, to maintain a softer center dough and provide ingredient tastiness, juicy feeling, melt-in-the-mouth quality, and soft-candy chewing sensation. Rather, the position taken in the rejection is that Yang at [0046]-[0047], [0052-[0053] and [0067]-[0068] discloses a soft candy center, such as chocolate or a fat based compound containing dispersed ingredients like dried fruit and that such a center is protected by a harder outer-layer dough that is sugar free. The burden has been shifted to Applicant to show how the art does not render the claimed invention obvious.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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