DETAILED ACTION
Background
The amendment dated March 23, 2026 (amendment) amending claims 1 and 21 has been entered. Claims 1-19 and 21 as filed with the amendment have been examined. Claim 20 has been canceled. In view of the amendment all outstanding claim objections have been withdrawn.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 4 after “food and is” replace [[separatable]] with --separable--;
at line 5, after “dough and the” replace [[out[[ with --outer--;
at line 8, after “maintained at” insert -- a--;
at line 16, after “center dough at” insert -- the--; and,
at line 17, after “outer-layer dough at” insert -- the--.
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 4, 9-12, 15-17 and 19 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.
The recited sugar ratio in each of claims 4 and 9-10 is indefinite because the units if the ratio are not clear. Even if a sugar ratio means the ratio of sucrose to total sugar as set forth in the instant specification at [0023], it is not clear whether the ratio is a weight ratio, a solids ratio, a volume ratio or a ratio based on some other unit.
Claims 11-12, 15-17 and 19 are rejected as depending from a rejected base claim.
The Office interprets the claimed sugar ratio as referring to a weight ratio.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 7-8, 13-14 and 21 are rejected 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 (May).
Unless otherwise stated, all percents (%) without units are interpreted as weight %s (wt%); and wt% is interchangeable with mass%.
The Office interprets the claimed “sugar ratio” as referring to a weight ratio of the weight of sucrose divided by the total weight of saccharides in a given dough as disclosed in the instant specification at [0023].
Further, the Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature.
Unless otherwise specified as in claim 8, the Office considers the claimed “ingredient” as including any ingredient.
Regarding instant claim 1, May at page discloses a Mayfair egg (See’s candies, as “an ingredient stuffed soft candy”) with a buttercream center (“center dough”). At page 6, May depicts the egg and discloses in the 2nd full paragraph that the center comprises cherries (“ingredient that is separable from the center dough and the outer-layer dough”) which are (at the 3rd full paragraph on page 6) glace or candied. At the 1st paragraph on page 6, May discloses that the egg is coated with dark chocolate (“outer-layer dough” as a “soft candy”) to form the ingredient-stuffed soft candy. Further, May at page 6, 2nd full paragraph that its center dough contains vanilla and cherry flavors. Both the buttercream center dough of the ingredient stuffed soft candy of May and its dark chocolate outer-layer dough qualify as solid or semi-solid ingredients as claimed. Further, at page 6, 4th full paragraph, May discloses that the chocolate outer-layer dough cracks when cut while the center dough does not, evidencing that the outer-layer dough is harder than the center dough.
Further regarding instant claims 1-3 and 7, May does not disclose a hardness for the ingredient, the center dough or the outer-layer dough and does not disclose an amount of the candied cherry ingredient as 40 mass% or less of the mass of the center dough. However, the ingredient, soft candy center dough and harder outer-layer dough all appear to be substantially the same thing as the claimed ingredient, the claimed center dough soft candy and the claimed outer-layer dough; and the amount of cherry ingredient appears to be the same less than 40 mass% of the center dough as claimed, especially as the Mayfair egg also comprises walnuts or pecans mixed in the center 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 May differs from that of the ingredient-stuffed soft candy as claimed, the Office considers the ingredient-stuffed soft candy of May 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 as in claim 2, 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 as in claim 3, 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; and, further, to comprise a content of the ingredient with respect to the mass of the center dough is 40 mass% or less as in claim 7. See MPEP 2112.01.I.
Regarding instant claim 8, the Office considers the claimed dried fruit to include the candied cherries of May at page 6.
Regarding instant claims 13-14, the May egg at page 6 discloses a softball buttercream center dough that appears to comprise very little water; however, may discloses no water content of 12 wt% mass % or less in its center dough and does not disclose a water activity of the center dough of 0.7 or less. The center dough of May appears to be substantially the same thing as the claimed center dough Accordingly, absent a clear showing as to how the water activity of the ingredient, center dough of May differs from that of the center dough as claimed, the Office considers the center dough of May have a water content of 12 wt% mass % or less, based on the mass of its center dough and a water activity of 0.7 or less as in claims 13-14. See MPEP 2112.01.I.
Regarding instant claim 21, the Office considers the claimed piece of the ingredient having a mass of 0.1 g or more to include the cherry shown in the pictured Mayfair egg on page 6 of May.
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 1-3, 7-8, 13-14 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang (Yang).
Unless otherwise stated, all percents (%) without units are interpreted as weight %s (wt%); and wt% is interchangeable with mass%.
The Office interprets the claimed “sugar ratio” as referring to a weight ratio of the weight of sucrose divided by the total weight of saccharides in a given dough as disclosed in the instant specification at [0023] on pages 12-13.
Further, the Office interprets the recited solid or semi-solid food to be such a solid or semi-solid only at a normal temperature.
Regarding instant claims 1 and 8, Yang at Abstract discloses a multilayered confectionary product (“ingredient stuffed soft candy” comprising at least three 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. Further, at [0047] Yang discloses its center comprising particles, nonpareils or beads such as fruit pieces (“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). The ordinary skilled artisan in Yang would have found it obvious to use the claimed fruit pieces as its ingredient, further to use a fondant, chocolate or jelly candy or gummy candy as its center dough and to use a bubble gum, chewy candy or nougat as its outer-layer dough because Yang discloses fruit pieces as desirable ingredients to include in the center dough of its candy, discloses fondant, chocolate or jelly candy as desirable cores and discloses bubble gum, chewy candy or nougat as desirable outer-layer doughs for making its candy.
Further, and regarding instant claims 2-3, Yang does not disclose a hardness for the ingredient, the center dough or the outer-layer dough and 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, gum candy, compound coating or jelly candy center dough and outer-layer dough as chewy candy, chocolate or nougat 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 as in claim 2, 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 as in claim 3, 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.
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, 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 claims 13-14, the Yang candy at [0046] page 6 discloses a fondant, caramel, gum candy, compound coating, chocolate, gum or jelly candy center dough that appears to comprise very little water; however, 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. The center dough of Yang appears to be substantially the same thing as the claimed center dough Accordingly, absent a clear showing as to how the water activity of the ingredient, center dough of Yang at [0046] differs from that of the center dough as claimed, the Office considers the center dough of Yang have a water content of 12 wt% mass % or less, based on the mass of its center dough and a water activity of 0.7 or less as in claims 13-14. See MPEP 2112.01.I.
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 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.
Claim 4-6, 9-12 and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over US2007/01141198 to Yang (Yang) as applied to claims 1-3 above, and further in view of US 2013/0216661 A1 to Miladinov et al. (Miladinov), of record.
As applied to claims 1, 2 and 3, Yang at [0046]-[0047] discloses an ingredient stuffed soft candy with a center dough and a soft candy outer-layer dough covering the center dough, wherein the center dough includes in it a solid or semi-solid food ingredient that is separable from the center dough and the outer-layer dough and, further wherein the ingredient stuffed soft candy comprises an ingredient having a hardness at a normal temperature of 20 °C of 1050 g or less and a center dough having a hardness at the normal temperature of 370 g or less and a lower hardness at the normal temperature than the outer-layer dough, and wherein the outer-layer dough has a hardness at the normal temperature of from 150 to 1100 g.
Regarding instant claims 4-5 and 9-12, Yang does not disclose a sugar ratio of the center dough that is higher than a sugar ratio of the outer-layer dough as in claims 4, 9 and 10; and, does not disclose a water content of the outer-layer dough that is larger than a water content of the center dough as in claims 5 and 11-12. However, Yang at [0067] generally discloses use of sugar to sweeten its center dough and outer-layer dough. Further, the Office considers a chocolate, fondant or gum center dough as in Yang at [0046] as having a lower water content than any of the jelly, fondant, nougat, compound coating, gum or caramel outer-layer dough as in [0046] of Yang because the chocolate is fat-based. Accordingly, the ordinary skilled artisan would have found it obvious in Yang to make a center dough of chocolate and an outer-layer dough of another soft candy such that the water content of the outer-layer dough is larger than a water content of the center dough because Yang discloses that chocolate or a fat-based soft candy is a desirable center dough and that a desirable outer-layer dough comprises fondant, gum, jelly candy or caramel.
Miladinov at [0009] discloses dough like confectionery that can be used to rapidly make layers or “regions”, and at [0021] discloses soft confectionery as a suitable edible substrate or center dough in which (at Fig. 4 and [0017]) the confectionary is coextruded to form an outer-layer dough covering the center dough. Further, at Example 5 and [0223] and Tables 1 and 2, Miladinov discloses a gelatin soft candy coating comprising 5.5 wt% water and no sucrose, wherein the gum center dough has no water; and, at Examples 21-28 at [0231] and Table 4, Miladinov discloses a soft confectionary that is for use as a sucrose free soft jelly coating. Further, the soft outer-layer dough disclosed in Table 4 of Miladinov comprises a water content of (5.6 wt% + 3.0 wt% +1.0 wt% or) 9.6 wt% water which is higher than the water content of the soft center dough disclosed in Table 8 of Miladinov, which is 5.7 wt% or the center dough gum core disclosed at [0243] and Table 9 of Miladinov.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Miladinov for Yang to form its ingredient stuffed soft candy so that an outer-layer dough so that the sugar ratio of the center dough is higher than a sugar ratio of the outer-layer dough and to formulate a soft candy as in Miladinov and to formulate its outer-layer dough to have a water content that is larger than a water content of the center dough. Both references disclose multilayer soft candy compositions having different water contents in its layers. The ordinary skilled artisan in Yang would have desired to include more water in its outer-layer dough than in its center dough as in Miladinov to enable it to more readily coat the center dough while enabling the rapid formation of an outer-layer dough covering as in Miladinov.
Regarding instant claims 6 and 15-19, the discloses a fondant, caramel, gum candy, compound coating or jelly candy center dough that appears to comprise very little water; however, 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 center dough with a water activity of 0.7 or less. However, the chocolate, fondant, caramel or gum center dough of Yang as modified by Miladinov appears to be substantially the same thing as the claimed center dough Accordingly, absent a clear showing as to how the water activity of the ingredient, center dough of Yang at [0046] differs from that of the center dough as claimed, the Office considers the center dough of Yang at [0046] as modified by Miladinov at [0009] and Examples 5 and 21-28 have a center dough with a water content of 12 wt% mass % or less, based on the mass of its center dough and a water activity of 0.7 or less as in claims 13-14. See MPEP 2112.01.I.
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 (May) as applied to claims 1, 2 and 3 above, and further in view of US6733805 B1 to Loisel et al. (Loisel)
Unless otherwise stated, all percents (%) without units are interpreted as weight %s (wt%); and wt% is interchangeable with mass%.
The Office interprets the claimed “sugar ratio” as referring to a weight ratio of the weight of sucrose divided by the total weight of saccharides in a given dough as disclosed in the instant specification at [0023].
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 claims 1, 2 and 3, May at pages 5-6 discloses a Mayfair egg (See’s) as an ingredient stuffed soft candy with a center dough and a dark chocolate outer-layer dough covering the center dough, wherein the center dough includes in it candied cherries as a solid or semi-solid food ingredient that is separable from the center dough and the outer-layer dough and, further wherein the ingredient stuffed soft candy comprises an ingredient having a hardness at a normal temperature of 20 °C of 1050 g or less and a center dough having a hardness at the normal temperature of 370 g or less and a lower hardness at the normal temperature than the outer-layer dough, and wherein the outer-layer dough has a hardness at the normal temperature of from 150 to 1100 g.
Because See’s provides “classic” candies (page 5, 3rd full paragraph), the Office considers the buttercream of the center dough disclosed in May as comprising substantially 100 wt% of sucrose, or a sugar ratio of about 100 wt%.
Regarding instant claims 4 and 9-10, May does not disclose an ingredient stuffed soft candy wherein a sugar ratio of the center dough is higher than a sugar ratio of the outer-layer dough as in claims 4 and 9-10.
Loisel discloses at col. 1, lines 32-54 discloses food products that can be kept at room temperature comprising chocolate coatings or outer-layer doughs for fillings having moisture, such as fillings or pieces of fruit, wherein (at col. 4, lines 32-44) the chocolate outer-layer dough comprises sucrose partially or completely replaced by another disaccharide to improve the barrier properties of the chocolate. Loisel also discloses coated dried fruit pieces at col. 4, lines 65-67.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Loisel for the maker of the ingredient stuffed soft candy disclosed in May to form an ingredient stuffed soft candy wherein the sugar ratio of the center dough is higher than a sugar ratio of the outer-layer dough. Both references disclose chocolate coated fruit pieces. The ordinary skilled artisan in May would have desired to reduce the sugar ratio of its outer-layer dough relative to its center dough as in Loisel to improve the room temperature stability of the May candy.
Regarding instant claims 15 and 17-18, the water content and water activity of the buttercream center dough disclosed in May as modified by Loisel appears to be substantially the same thing as the claimed center dough. Accordingly, absent a clear showing as to how the water activity of the soft confectionary center dough of differs from that of the center dough as claimed, the Office considers the soft candy center dough of May at pages 5-6 as modified by Loisel at col. 4, lines 32-44 and 65-67 to have a water content of 12 wt% or less, based on the total mass of the center dough and to have water activity of 0.7 or less as in claims 15 and 17-18. See MPEP 2112.01.I.
Claim 7 is 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 (May) as applied to claim 1 above.
As applied to claim 1, May at pages 5-6 discloses a Mayfair egg (See’s) as an ingredient stuffed soft candy with a center dough and a dark chocolate outer-layer dough covering the center dough, wherein the center dough includes in it candied cherries as a solid or semi-solid food ingredient that is separable from the center dough and the outer-layer dough and, further wherein the ingredient stuffed soft candy comprises 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.
May does not disclose an amount of the candied cherry ingredient as 40 mass% or less, based on the mass of the center dough. However, the ordinary skilled artisan would have found it obvious in May to use 40 mass% or less of its ingredient, based on the mass of the center dough to accommodate the pecans or walnuts also in the center dough and to enable a fluid, creamy overall texture for the buttercream of May. 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.
Response to Arguments
In view of the amendment dated March 23, 2026, the following rejections have been withdrawn as moot:
The rejection of claim 21 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 “mass of the ingredient per grain or gram of the ingredient”;
The rejections of claims 1-19 and 21 under 35 U.S.C. 103 as being unpatentable over US 2013/0216661 A1 to Miladinov et al.; and,
The rejections of claims 1-19 and 21 under 35 U.S.C. 103 as being unpatentable over US 2011/0256271 A1 to Bhattacharya et al.
The remarks accompanying the amendment dated March 23, 2026 (Reply) have been fully considered but are moot in view of the new grounds of rejection which do not rely on the references cited in the withdrawn rejections in support of any issue or argument raised in the remarks.
The rejections citing Miladinov do not rely on that reference for disclosing an ingredient.
Conclusion
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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