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 .
Response to Amendment
Claims 16-26 are amended. Claims 1-15 were cancelled in a First Preliminary Amendment filed April 13, 2023. Claim 31 is added. As a result, claims 16-31 remain under consideration.
Response to Arguments
Applicant’s arguments with respect to claims 16-30 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The Applicant contends that:
“… none of Ganesan and Petersen teach or suggest at least the features of ‘a coating which, covers a part of a top of the at least one popcorn layer, holds together the at least one popcorn layer, holds the at least one popcorn layer of the prepared popcorn in place in the container, and binds the individual popcorn flakes together so that the individual popcorn flakes do not fall out of the container in an undesirable way when being consumed’… no one coating in Ganesan teaches or suggests all four (4) required technical effects of ‘cover[ing] a part of a top of the at least one popcorn layer, hold[ing] together the at least one popcorn layer, hold[ing] the at least one popcorn layer of the prepared popcorn in place in the container, and bind[ing] the individual popcorn flakes together so that the individual popcorn flakes do not fall out of the container in an undesirable way when being consumed’ as is recited by independent claim 16 of the present invention. Petersen fails to cure this defect… Petersen nowhere teaches or suggests ‘at least one popcorn layer’…” See Remarks, page 8-10.
The Examiner respectfully disagrees. Ganesan teaches an auger mixer 20 that coats each popcorn flake with a molten binder, which in the most preferred form is a caramel syrup, dispensed from the mixer at a high temperature for malleability as colder temperatures lead to brittleness that keep the coated popcorn from forming sheets and bars. Therefore, the molten binder as taught by Ganesan reads on the claim language as written because it coats a top part of the at least one popcorn layer due to the nature of the auger mixer coating each single piece of popcorn flake with the syrup during processing, the molten binder also binds the popcorn flakes together to form sheets of one or more layers of popcorn flakes before it is cut into bars, holding the layers together during manufacturing, transportation and while being consumed. Ganesan also mentions in col. 5 line 64 that the popcorn bars according to the present invention can be easily handled, consumed and transported, the bar being chosen as the most preferred form (Ganesan, col. 1 line 46) for the invention for ease of handling, consumption and transportation similar to other candy bars which have more significant market success.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, since Ganesan differs from the claimed invention only in that it does not further specify what the materials of the individual wrappers and the subsequent suitable packaging of the wrapped bars comprise as mentioned in Ganesan, col. 5 line 31, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the wrappers and packaging taught by Ganesan with the tray 3 for the food product 7 wrapped in an airtight packaging film 1 taught by Petersen as one of ordinary skill in the art would have substituted one known element for another to achieve a controlled atmosphere over the food product, as this will prolong and stabilize the storage and visual qualities of the food product before and after purchase (see Petersen, col. 1 line 6 and col. 4 line 42) and may similarly allow easy transportation and ease of consumability when removed from the wrapper (see Ganesan col. 1 line 33).
For reasons detailed herein, the Examiner maintains, based on the preponderance of evidence that the rejections of claims 16-31 under 35 U.S.C. 103 are proper.
Claim Objections
Claim 26-30 is objected to because of the following informalities:
Claim 26 recites “made of made of”.
Claims 27-30 inherit the above deficiencies and are objected to due to dependency upon objected-to claim.
Appropriate correction is required.
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.
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 16-19, 23 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1.
Claim 16. Ganesan discloses a packaged popcorn confection comprising:
at least one popcorn layer of a prepared popcorn in the container which is made of individual popcorn flakes; (Ganesan, Figs. 1, 3 and 6 show at least one popcorn layer; and col. 5 line 46 “It can then be appreciated that coated popcorn bars formed by the methods of the present invention such as by apparatus 10 have a top and bottom defined by the popped popcorn coated with the caramel syrup binder in a molten form compressed into the sheet…” where the coated popcorn corresponds with the individual popcorn flakes, and by nature of being compressed into a sheet, it forms at least one popcorn layer.)
a coating which covers a part of a top of the at least one popcorn layer, holds together the at least one popcorn layer, holds the at least one popcorn layer of the prepared popcorn in place in the container, and binds the individual popcorn flakes together so that the individual popcorn flakes do not fall out of the container in an undesirable way when being consumed, the coating comprising at least one of, (Ganesan, col. 2 line 63 “Apparatus 10 further generally includes a device 20 for evenly coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup”; col. 4 line 17 “The coated popcorn is compressed and sheeted by device 32…”; col. 4 line 45 “Apparatus 10 according to the present invention includes a device 48 for cutting the sheet into individual bars”; and col. 5 line 31 “After cooling tunnel 58, apparatus 10 according to the present invention includes a suitable device 60 for individually wrapping each of the individual bars and placing the wrapped bars in suitable packaging for sale.”)
The molten binder when applied as taught by Ganesan coats a top part of the at least one popcorn layer due to the nature of the auger mixer coating each single piece of popcorn flake with the syrup during processing. The molten binder also binds the popcorn flakes together to form sheets of one or more layers of popcorn flakes before it is cut into bars, and as a binder it holds the layers and individual flakes together during manufacturing, including during the wrapping process for each individual bar, which is the preferred shape to solve the problems in the field of shaped popcorn products, including for reasons such as ease of handling, consumption and transportation (see Ganesan, col. 1 line 46 and col. 5 line 64).
a couverture that is flowable when heated and solid when cooled, and a solidified glaze; and (Ganesan, col. 2 line 63 “… coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup…”, the molten binder corresponding to the claimed at least one of a coverture and a solidified glaze; and col. 3 line 16 “If the temperature at discharge is too cold, the coated popcorn is too brittle to form into sheets, strips, or bars.”)
Ganesan does not explicitly disclose a foil bag which encloses a container and a foil bag which encloses the container, the at least one popcorn layer, and the coating in an airtight manner.
Petersen discloses a container; (Petersen, Abstract “The package may comprise a tray 3 for food product 7…”)
a foil bag which encloses the container, the at least one popcorn layer, and the coating in an airtight manner. (Petersen, Abstract “… a food product… which is packed in an airtight packaging material 1 under a controlled atmosphere… The package may comprise a tray 3 for food product 7 and an airtight packaging film 1 enclosing the tray 3.”)
Ganesan and Petersen are analogous art because they are related to packaging foodstuffs. Ganesan differs from the claimed invention only in that Ganesan does not further specify what the materials of the individual wrappers and the subsequent suitable packaging of the wrapped bars comprise. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the wrappers and packaging taught by Ganesan with the tray 3 for the food product 7 wrapped in an airtight packaging film 1 taught by Petersen. One of ordinary skill in the art would have substituted one known element for another to achieve a controlled atmosphere over the food product, as this will prolong and stabilize the storage and visual qualities of the food product before and after purchase (see Petersen, col. 1 line 6 and col. 4 line 42) and may similarly allow easy transportation and ease of consumability when removed from the wrapper (see Ganesan col. 1 line 33).
Claim 17. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16, wherein the at least one popcorn layer in the container comprises a maximum of one popcorn layer or two popcorn layers. (Ganesan, Figs. 1, 3 and 6 show a maximum of two popcorn layers.)
Claim 18. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16, wherein the couverture is a sweet chocolate couverture, a sweet caramel couverture, or a salted caramel couverture. (Ganesan, col. 2 line 63 “Apparatus 10 further generally includes a device 20 for evenly coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup.”)
Claim 19. Modified Ganesan discloses the packaged popcorn confection as recited in claim 18, wherein at least one of the couverture and the solidified glaze partially covers the top of the at least one popcorn layer in a linear form, a striped form, a patchy form, or as a form having irregular patterns. (Ganesan, col. 5 line 11 “… apparatus 10 includes a drizzling device 56 for drizzling the laterally separated, individual bars with a confectionery coating such as milk-chocolate or caramel flavoring. In the preferred form, the confectionery coating is drizzled on the top of the bars in a zig-zag pattern…”)
Claim 23. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16.
Petersen discloses wherein the container has a substantially rectangular outline or a substantially square outline in a plan view. (Petersen, page 5 the figure shows a rectangular container.)
Claim 25. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16, wherein the container comprises a base, side walls which each comprise an upper edge, and a ridge on the upper edge of the side walls which are parallel to the base. (Petersen, page 5 shows a figure depicting a tray 3 with side walls comprising of an edge bead 4.)
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1 and in further view of Kanafani et al., US Patent Application Publication No. 20140272007 A1.
Claim 20. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16, the at least one popcorn layer has depressions, (Ganesan, Fig. 3 shows depressions between the popcorn pieces as well as on the popcorn pieces themselves due to their non-uniform shape.)
Modified Ganesan does not explicitly disclose further comprising: particles comprising at least one edible sprinkling product, wherein… the particles are distributed on the at least one popcorn layer and on the coating, and the particles at least one of adhere to the coating and lie in the depressions of the at least one popcorn layer.
Kanafani discloses further comprising: particles comprising at least one edible sprinkling product, wherein, (Kanafani, [0019] “The food flakes chosen can be any type of food, such as vegetable pieces, meat pieces, herbs, spices, or cheese shreds, or any combination of those, that complement the flavor of the food substrate or contributes to the flavor and appearance of the desired final snack food product.”)
the particles are distributed on the at least one popcorn layer and on the coating, and (Kanafani, [0030] “The applicator 240 could also be an air-assisted nozzle in which air pushes the adhesive-flake blend though a manifold system and out a controlled or open pipe over the food substrates.”; a substrate or substratum is defined as something that is spread or laid under something else, a stratum or layer lying under another (dictionary.com))
the particles at least one of adhere to the coating and lie in the depressions of the at least one popcorn layer. (Kanafani, [0012] “The present invention provides a savory and hearty snack food product with food flakes on its surface that provide a visual impact for consumers. The adhesive used herein allows large food flakes to be adhered to a food substrate.”)
Ganesan, Petersen and Kanafani are analogous art because they are related to manufacturing foodstuffs. Modified Ganesan differs from the claimed invention only in that it does not explicitly disclose the distribution of particles on the layer of popcorn and coating. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the technique of distributing the adhesive-flake blend via an applicator 240 over the food substrate, which corresponds with the claimed layer of popcorn, as taught by Kanafani with the method of manufacturing and packaging foodstuffs disclosed by modified Ganesan. One of ordinary skill in the art would have been motivated to make such a combination because the addition of food flakes “provide a visual impact for consumers and deliver taste and appearance.”
Claim 21 and 22 is rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1, in further view of Kanafani et al., US Patent Application Publication No. 20140272007 A1 and Ragonesse, US Patent Application Publication No. 20180352828 A1.
Claim 21. Modified Ganesan discloses the packaged popcorn confection as recited in claim 20.
Modified Ganesan does not explicitly disclose wherein the particles are at least one of chopped nuts, chopped almonds, nut flakes, or almond flakes.
Ragonesse discloses wherein the particles are at least one of chopped nuts, chopped almonds, nut flakes, or almond flakes. (Ragonesse, [0027] “Examples of inclusions 21 that may be adhered to the pita chip include, but are not limited to nuts (ex. walnuts, pistachio, hazelnuts, pecans, cashews, brazil nuts, almonds, macadamia nuts, and peanuts)… It is anticipated that the granular food pieces, such as the nuts and dried fruit pieces will be chopped into pieces before being applied…”)
Ganesan, Petersen, Kanafani and Ragonesse are analogous art because they are related to manufacturing foodstuffs. Modified Ganesan differs from the claimed invention in that it does not explicitly disclose the use of nuts as a possible “food flake” that can be chosen to coat the snack food product. However, Kanafani teaches that food flakes may be “any type of food… The food flakes may be natural, meaning that the flakes are obtained from the natural food as defined by local regulations, or formed, meaning that the flakes are shaped from preparations from the natural food or a formulation made to replicate the natural food” (see Kanafani, [0019]).) Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the food flakes taught by Kanafani with the inclusions 21 taught by Ragonesse. One of ordinary skill in the art would have been motivated to make such a substitution to “provide a pleasant and desirable contrast of flavors” (see Ragonesse, [0004].)
Claim 22. Modified Ganesan discloses the packaged popcorn confection as recited in claim 20.
Ragonesse discloses wherein the particles are colorful sweets. (Ragonesse, [0027] “Examples of inclusions 21 that may be adhered to the pita chip include, but are not limited to… chocolate (ex. white, milk, dark), candy… it is envisioned, without limitation, that coated pita chips may comprise salted caramel pecan, coconut banana walnut, apple cranberry cashew and the like. Other flavors are expressly contemplated.”)
Ganesan, Petersen, Kanafani and Ragonesse are analogous art because they are related to manufacturing foodstuffs. Modified Ganesan differs from the claimed invention in that it does not explicitly disclose the use of nuts as a possible “food flake” that can be chosen to coat the snack food product. However, Kanafani teaches that food flakes may be “any type of food… The food flakes may be natural, meaning that the flakes are obtained from the natural food as defined by local regulations, or formed, meaning that the flakes are shaped from preparations from the natural food or a formulation made to replicate the natural food” (see Kanafani, [0019]).) Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the food flakes taught by Kanafani with the inclusions 21 taught by Ragonesse. One of ordinary skill in the art would have been motivated to make such a substitution to “provide a pleasant and desirable contrast of flavors” (see Ragonesse, [0004].)
Claims 24, 26, and 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1 and in further view of McKee et al., US Patent Application Publication No. 5529797 A.
Claim 24. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16.
Modified Ganesan does not teach wherein the container is folded from a blank of paper, a blank of cardboard, or a blank of paperboard, or is formed from a bagasse.
McKee teaches wherein the container is folded from a blank of paper, a blank of cardboard, or a blank of paperboard, or is formed from a bagasse. (McKee, Figs. 3A, 3B and 9 shows the backing material 22 made of FDA approved liner paper, folded into a U shape with a bottom portion 64 and sides 66 to carry the food product.)
Ganesan, Petersen and McKee are analogous art because they are related to packaging foodstuffs. Modified Ganesan differs from the claimed invention only in that modified Ganesan does not further specify what the materials of the container are comprised of. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the materials that tray 3 of Petersen may comprise with the FDA approved liner paper used in the U-shaped backing material 22 as taught by McKee. One of ordinary skill in the art would have been motivated to substitute one known element for another to achieve “a moisture barrier that allows the cooled baked product to be separated from the backing strip without excessive sticking” (see McKee, col. 2 line 25).
Claim 26. Ganesan discloses a method of manufacturing a packaged popcorn confection for popcorn and (Ganesan, col. 5 line 31 “… the present invention includes a suitable device 60 for individually wrapping each of the individual bars and placing the wrapped bars in suitable packaging for sale.”)
at least one of a couverture that is flowable when heated and solid when cooled and a glaze which is flowable and which solidifies, (Ganesan, col. 2 line 63 “Apparatus 10 further generally includes a device 20 for evenly coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup”; and col. 3 line 63 “… coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup…”; and col. 3 line 16 “If the temperature at discharge is too cold, the coated popcorn is too brittle to form into sheets, strips, or bars.”)
the method comprising: providing a container; (Ganesan, col. 5 line 31 “… the present invention includes a suitable device 60 for individually wrapping each of the individual bars and placing the wrapped bars in suitable packaging for sale…”, the wrapping corresponding to the claimed container.)
applying at least one of the couverture which has been heated to a flowable state and the glaze in a flowable state to a top of the popcorn layer so that the at least one of the couverture and the glaze partially cover the popcorn layer; (Ganesan, col. 3 line 63 “… coating the popped popcorn with a molten binder, which in the most preferred form is a caramel syrup…”; and Fig. 8 shows the molten syrup from evaporator 24 cover the layers of popcorn.)
at least one of cooling the couverture and solidifying the glaze so as to form a solid coating which, covers and holds together a part of the popcorn layer in the container, holds the popcorn layer of the prepared popcorn in place in the container, and binds the individual popcorn flakes together so that the individual popcorn flakes do not fall out of the container in an undesirable way when being consumed; and (Ganesan, Abstract “… popcorn popped in an air popper (12) and coated with a molten binder in the form of a caramel syrup… compressed into a sheet by a device (32). In the sheeting device (32), the coated popped popcorn is drawn into and passes between an input conveyor (30) and a compressing conveyor (34)… An air manifold (37) directs cooled air to the upper surface of the compressing conveyor (34) to cool the belting (36) thereof, with the cooled air being deflected to cool a spreader box (28) which receives the coated popcorn…”; col. 3 line 16 “If the temperature at discharge is too cold, the coated popcorn is too brittle to form into sheets, strips, or bars”; col. 4 line 17 “The coated popcorn is compressed and sheeted by device 32…”; col. 4 line 45 “Apparatus 10 according to the present invention includes a device 48 for cutting the sheet into individual bars”; and col. 5 line 31 “After cooling tunnel 58, apparatus 10 according to the present invention includes a suitable device 60 for individually wrapping each of the individual bars and placing the wrapped bars in suitable packaging for sale.”)
The molten binder when applied as taught by Ganesan coats a top part of the at least one popcorn layer due to the nature of the auger mixer coating each single piece of popcorn flake with the syrup during processing. The molten binder also binds the popcorn flakes together to form sheets of one or more layers of popcorn flakes before it is cut into bars, and as a binder it holds the layers and individual flakes together during manufacturing, including during the wrapping process for each individual bar, which is the preferred shape to solve the problems in the field of shaped popcorn products, including for reasons such as ease of handling, consumption and transportation (see Ganesan, col. 1 line 46 and col. 5 line 64).
Ganesan does not explicitly teach filling the container with a popcorn layer of the popcorn;… forming a solid coating which covers and holds together a part of the popcorn layer in the container by at least one of cooling the couverture and solidifying the glaze.
McKee teaches filling the container with a popcorn layer of the popcorn which is made of made of individual popcorn flakes; (McKee, Fig. 5 shows the filling step wherein the U shaped backing strip 28 is filled with the food product; and Ganesan, col. 5 line 46 “It can then be appreciated that coated popcorn bars formed by the methods of the present invention such as by apparatus 10 have a top and bottom defined by the popped popcorn coated with the caramel syrup binder in a molten form compressed into the sheet…” where the coated popcorn corresponds with the individual popcorn flakes, and by nature of being compressed into a sheet, it forms at least one popcorn layer)
Ganesan and McKee are analogous art because they are related to manufacturing foodstuff. Ganesan differs from the claimed invention only in that Ganesan does not explicitly teach filling the container with a popcorn layer of popcorn. However, McKee teaches filling the U shaped backing strip 28 with a food product. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of filling a container with a food product taught by McKee with the method for forming coated popcorn bars taught by Ganesan in order to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to make such a combination because the container taught by McKee “acts as a moisture barrier and allows the cooled baked product to be separated from the backing strip without excessive sticking” (see McKee, col. 5 line 44).
Modified Ganesan does not explicitly teach packaging the container with the popcorn layer and the coating in a gas-tight foil bag.
Petersen teaches packaging the container with the popcorn layer and the coating in a gas-tight foil bag. (Petersen, Abstract “… a food product… which is packed in an airtight packaging material 1 under a controlled atmosphere… The package may comprise a tray 3 for food product 7 and an airtight packaging film 1 enclosing the tray 3.”)
Ganesan, McKee and Petersen are analogous art because they are related to packaging foodstuffs. Modified Ganesan differs from the claimed invention only in that Ganesan does not further specify what the materials of the individual wrappers and the subsequent suitable packaging of the wrapped bars comprise. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the wrappers and packaging taught by Ganesan with the tray 3 for the food product 7 wrapped in an airtight packaging film 1 taught by Petersen. One of ordinary skill in the art would have substituted one known element for another to achieve a controlled atmosphere over the food product, as this will prolong and stabilize the storage and visual qualities of the food product before and after purchase (see Petersen, col. 1 line 6 and col. 4 line 42).
Claim 28. Modified Ganesan discloses the method as recited in claim 26 wherein the applying of at least one of the couverture which has been heated to the flowable state and the glaze in the flowable state (Ganesan, col. 2 line 63 “Caramel syrup is… heated to a temperature in the order of 180°F (82°C) such as in a steam-jacketed kettle 22. The mixture is then cooked at a temperature in the order of 300°F (149°C) in an evaporator 24…”)
to the top of the popcorn layer so that the at least one of the couverture and the glaze partially cover the popcorn layer (Ganesan, col. 2 line “In addition to the popped popcorn from device 18 and the cooked, molten syrup from evaporator 24, oil is sprayed by sprayer 26 into the auger mixer 20 to keep the popcorn from sticking to the sides and the screw of auger mixer 20 such that the popped popcorn is evenly coated with cooked, molten caramel and oil in the most preferred form.”)
is performed by moving the container with the popcorn layer on a conveyor under an applicator from which at least one of the couverture which has been heated to the flowable state and the glaze in the flowable state is applied to the top of the popcorn layer. (Ganesan, Fig. 8 shows auger mixer 20 conveying the popcorn under evaporator 24 that supplies molten syrup onto the popcorn layers.)
Claim 29. Modified Ganesan discloses the method as recited in claim 28, wherein, the applicator is moved in at least one of a conveying direction and transversely to the conveying direction with respect to the container so as to apply at least one of the couverture and the glaze to the top of the popcorn layer so as to form a coating in a linear pattern, a striped pattern, a patchy pattern or as an irregular pattern, which run in a same direction or in a different direction, respectively, and (Ganesan, col. 5 line 11 “… apparatus 10 includes a drizzling device 56 for drizzling the laterally separated, individual bars with a confectionery coating such as milk-chocolate or caramel flavoring.”)
the coating is at least one of cooled and solidified so as to form the solid coating. (Ganesan, col. 5 line 27 “The bars are then cooled such as in a cooling tunnel 58 to a temperature to firmly set the confectionery coating and in the preferred form to a temperature in the order of 80° - 90°F (27° - 32°C).”)
Claim 30. Ganesan discloses a packaged popcorn confection which is manufactured via the method as recited in claim 26. (Ganesan, Abstract “An apparatus (10) for forming popcorn bars…”; and col. 5 line 31 “… apparatus 10 according to the present invention includes a suitable device 60 for individually wrapping each of the individual bars and placing the wrapped bars in suitable packaging for sale.”)
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1, in further view of McKee et al., US Patent Application Publication No. 5529797 A and in further view of Kanafani et al., US Patent Application Publication No. 20140272007 A1.
Claim 27. Modified Ganesan discloses the method as recited in claim 26.
Modified Ganesan does not explicitly disclose wherein, prior to forming the solid coating which covers and holds together the part of the popcorn layer in the container by at least one of cooling the couverture and solidifying the glaze, the method further comprises: distributing particles of at least one edible sprinkling product on the popcorn layer and on at least one of the couverture which has not yet cooled and the glaze which has not yet solidified so that at least some of the particles adhere thereto.
Kanafani discloses wherein, prior to forming the solid coating which covers and holds together the part of the popcorn layer in the container by at least one of cooling the couverture and solidifying the glaze, the method further comprises: distributing particles of at least one edible sprinkling product on the popcorn layer and on at least one of the couverture which has not yet cooled and the glaze which has not yet solidified so that at least some of the particles adhere thereto. (Kanafani, Fig. 1 and 2 shows that the applying adhesive-flake blend to food substrates step 160 (Fig. 1) or the applicator step 240 (Fig. 2) is done before the solidify adhesive step 190 and cool air injection device step 280 respectively.)
Ganesan, McKee, Petersen and Kanafani are analogous art because they are related to manufacturing and packaging foodstuff. Modified Ganesan differs from the claimed invention only in that it does not disclose edible sprinkling product or distributing particles onto a layer of popcorn before cooling or solidifying the coating or glaze. Since the joining adhesive is solid at ambient conditions, it must be heated above its phase transition temperature to obtain a liquefied adhesive (see Kanafani, [0020]). When the adhesive and food flakes are blended 130 to form an adhesive-flake blend, the thorough coat of adhesive on the food flakes promotes optimum adherence to the food substrate (see Kanafani, [0022]). Once the joining adhesive is used on the food substrate, the topped food substrates are cooled to below the phase transition temperature of the adhesive such that the adhesive solidifies and substantially adheres to the food flakes to the food substrates (see Kanafani, [0024]). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the method of adding food flakes to an adhesive as taught by Kanafani with the method of making and packaging popcorn snack foods taught by modified Ganesan in order to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to make such a combination to ensure that the food flakes is substantially adhered to the food substrate once the adhesive is cooled to below the phase transition temperature and solidified.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Ganesan et al., US Patent Application Publication No. 6200611 B1, in view of Petersen, EP0391712A1, and in further view of Strehlow et al., US Patent Application Publication No. 20150024092 A1.
Claim 31. Modified Ganesan discloses the packaged popcorn confection as recited in claim 16,
wherein the coating only extends over a top of the at least one popcorn layer. (Strehlow, Fig. 5 shows adherent layer 16 located only at the top of food piece 12; [0055] “and preferably to be held at the surface of the food piece by an adherent layer”; [0060] “The adherent layer may be made of any edible food ingredient or combination of edible food ingredients capable of holding the core-shell sweetener particles at a surface of a food product, with examples including a solid or liquid fat, a sugar ingredient, a liquid (e.g., syrup) or solidified (solidified syrup) saccharide or carbohydrate, or any useful combination of these or other food ingredients.”)
Ganesan and Petersen are analogous art because they are related to the manufacturing of foodstuffs. Ganesan differs from the claimed invention in that the disclosed device 20 is an auger mixer that evenly coats each individual popcorn with a molten binder to form snack bars. However, Strehlow teaches a conveyer belt system in Fig. 3A with a similar coating mechanism elements 80 and 90 as the one shown in Ganesan Fig. 8, elements 24 and 26 for the purpose of depositing an adherent material 80 onto the surface of the food piece so inclusion in the form of sweet powder 90 containing particles may be adhered onto a surface to be tasted more fully. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to simply substitute the device 20 of Ganesan which is in a form of an auger mixer that evenly coats each individual popcorn with the molten binder with a conveyer system exemplified in Strehlow, Fig. 3A which coats only a surface of the food piece by the adherent material 80 to form the adherent layer 16 shown in Fig. 3B. One of ordinary skill in the art would have been motivated to make such a substitution because “a consumer of coated food piece 10 will experience core-shell sweetener particles 2 [held in place on the surface by adherent layer 16] at the consumer’s tongue, thereby tasting the sweetener present in the form of the sweetener layer 6 (see FIG. 1B) located at the exterior of the core-shell sweetener particles 2.” See Strehlow, [0063].
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.
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/K.B.M./Examiner, Art Unit 3761
/JUSTIN C DODSON/Primary Examiner, Art Unit 3761
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