DETAILED ACTION
Amendments made January 26, 2026 have been entered.
Claims 34 and 36-53 are pending;
Claims 47-53 have been withdrawn.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 .
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.
Claim Objections
The objections to claims 35-46 have been withdrawn in light of applicant’s amendments made January 26, 2026.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 36 and 45 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made January 26, 2026.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 34, 37, 38, 41, and 43-45 under 35 U.S.C. 102(a)(1) as being anticipated by Rosenthal et al (US 3,232,765) has been withdrawn in light of applicant’s amendments made January 26, 2026.
The rejection of claims 34, 37-39, 41, 43, and 45 under 35 U.S.C. 102(a)(1) as being anticipated by Pinkalla et al (US 3,223,532) has been withdrawn in light of applicant’s amendments made January 26, 2026.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 34, 36-39, 41, 43, and 45 are rejected under 35 U.S.C. 103 as being unpatentable over Pinkalla et al (US 3,223,532).
Pinkalla et al (Pinkalla) teaches a composition comprising: 4.7-98.2% fat which are preferably one or more vegetable oils; 1.8-74.0% water; 1.0-10.0% wax including beeswax or any other vegetable or animal wax; 0-83.0% sugar which encompasses sucrose; and 1.0-12.0% emulsifiers including lecithin and mono and di glycerides of fatty acids (claims 5-7, column 2 lines 18-19, and column 4 lines 36-43). Pinkalla teaches the composition includes invert sugar (column 4 lines 20-23) and a preservative (column 4 lines 33-35). Pinkalla teaches the coating for enrobing foods, including candies (column 1 lines 11-19 and 63-66), and thus encompass a composition which would be capable of use for coating a chocolate. It is noted that the claimed limitation “for coating a chocolate product” is intended use and only requires the ability of the product to perform. The position of the office that the prior art encompasses a product which could be used for coating a chocolate is further supported as the prior art teaches a composition overlapping that as claimed.
As discussed above, Pinkalla teaches a composition comprising 4.7-98.2% fat which are preferably one or more vegetable oils; 1.8-74.0% water; 1.0-10.0% wax including beeswax or any other vegetable or animal wax; 0-83.0% sugar which encompasses sucrose; and 1.0-12.0% emulsifiers including lecithin and mono and di glycerides of fatty acids (claims 5-7, column 2 lines 18-19, and column 4 lines 36-43).
Pinkalla is not specific to the composition as including about 5-10% vegetable oil as recited in claim 34, preferably about 5-8% as recited in claim 36, and the water as from about 40-50% as recited in claim 34, however, Pinkalla discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Additionally, it is noted that the term “about” is not limited to the recited number alone, but includes other values near and close to the recited term.
Claim 40 is rejected under 35 U.S.C. 103 as being unpatentable over Pinkalla et al (US 3,223,532) in view of Francois et al (FR 2689376 machine translation).
As discussed above, Pinkalla teaches a coating composition for foods comprising: sugar and invert sugar to reduce the degree of sugar crystallization (column 4 lines 2023). Pinkalla is silent to the composition as comprising maltodextrin.
Francois et al (Francoise) teaches of a coating for chocolate on a confection or other food, wherein maltodextrin or other sugars were used as a filler (pages 3, 4, and 8-10).
Regarding the composition as comprising maltodextrin, it would have been obvious for the sugars of Pinkalla to comprise maltodextrin as it was a known filler for use in coating composition as taught by Francois. To use one known filler or another would have been obvious to one of ordinary skill in the art.
Claim 42 is rejected under 35 U.S.C. 103 as being unpatentable over Pinkalla et al (US 3,223,532) in view of Igoe et al (Dictionary of Food Ingredients 4th Edition, Aspen Publications 2001, page 30).
As discussed above, Pinkalla teaches a coating composition for foods comprising wax including beeswax or any other vegetable or animal wax. Pinkalla is not specific to the wax as carnauba wax as recited in claim 42.
Igoe et al (Igoe) teaches that carnauba wax was known to be used in candy glazes and is a general-purpose food additive that is a hard wax (page 30). It would have been obvious to one of ordinary skill in the art for the wax as taught by Pinkalla to be carnauba wax for its known hardness in view of Igoe. As Igoe teaches it was known for use in candy coatings and/or Pinkalla teaches any vegetable or animal wax can be used one of ordinary skill in the art would have a reasonable expectation of success.
Claim 44 is rejected under 35 U.S.C. 103 as being unpatentable over Pinkalla et al (US 3,223,532) in view of Rosenthal (US 3,232,765).
As discussed above, Pinkalla teaches a coating composition for foods comprising preservatives.
Pinkalla is silent to the preservative as sodium benzoate and/or potassium sorbate.
Rosenthal et al (Rosenthal) teaches a coating composition comprising: fat, including coconut oil which is a vegetable oil; water; beeswax; sugar; sodium benzoate as a bactericide, which is a preservative; and glycerol mono stearate and glycerol mono-oleate which are emulsifiers (column 1 lines 12-20, 28-30 and 51-55 and column 3 line 32 through column 4 line 9).
It would have been obvious for the composition of Pinkalla to include sodium benzoate as it was a known bactericide for coating compositions as taught by Rosenthal. To use a known ingredient for its known function would have been obvious to one of ordinary skill in the art.
Claim 46 is rejected under 35 U.S.C. 103 as being unpatentable over Pinkalla et al (US 3,223,532) in view of Takahashi et al (EP 0988801) and Minifie (Chocolate, Cocoa, and Confectionery 3rd Edition Chapman and Hall 1998 pages 429 and 430).
As discussed above, Pinkalla teaches a coating composition for foods comprising vegetable oil and water. Pinkalla is silent to the composition as comprising ethanol or isopropanol.
Takahashi et al (Takahashi) teaches of a coating composition for food comprising a vegetable oil dissolved in ethanol and/or isopropanol (abstract). Minfie teaches that various solvents, including ethanol and isopropyl alcohol were used in confectionary for the solution of substances to ensure proper dispersion throughout the food (pages 429-430, Solvents).
Regarding the composition as comprising ethanol or isopropanol, it would have been obvious for the coating of Pinkalla to comprise ethanol and/or isopropanol as a solvent for the vegetable oil of Pinkalla in order to ensure dispersion of the oil throughout the coating in view of Takahashi and Minifie. To use a known ingredient for its known function would have been obvious to one of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed January 26, 2026 have been fully considered but they are not persuasive.
Applicant argues that Pinkalla does not teach a vegetable oil, water, wax, and one or more sugars as present simultaneously and in overlapping ranges as instantly claimed in view of Figures 1 and 2 of Pinkalla. This argument is not convincing. First it is noted that the rejection of the ranges in combination was made previously, and is made herein as a 103 obviousness rejection and not an anticipatory, 102, rejection. Second, applicant’s argument does not consider the full teachings of the reference. Before discussion of the reference, it is first noted that applicant’s claims recite “a vegetable oil present in an amount between about 5% to about 10%”, and thus do not limit the total vegetable oil content to the claimed range, but rather a (single) vegetable oil to the claimed range. Additionally, it is noted that the term “about” is not limited to only the recited number, but may encompass an acceptable error range for the particular value (instant specification page 7 lines 11-14).
Pinkalla generically discloses an overlapping range of components, as stated previously, and above. Pinkalla teaches that the fat is preferably one or more vegetable oils (column 2 lines 18-21), thus encompassing the mixture of two or more vegetable oils. Pinkalla also teaches that the term “fat” is used not only as representing the oil content, but also includes wax, emulsifiers, and oil soluble or dispersible materials (column 4 lines 16-17). Pinkalla teaches the use of 1-10% wax and 1.0-12.0% emulsifiers (column 4 lines 36-37 and claim 1). Thus, as stated previously and above, Pinkalla discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding Figures 1 and 2 it is noted that a reference is not limited to its examples and must be considered as a whole. Regardless, Figures 1 and 2 of Pinkalla show the water and sugar in combination within the ranges recited in claim 34, wherein the “fat” content is about 14%. Pinkalla teaches that the examples use 7.1% wax, and varying levels of emulsifiers from 4-12% (column 3 lines 11-13, 34, 49-51, and 60-63). Thus, the total vegetable oil content of Figures 1 and 2 of Pinkalla ranges from 80.9-88.9% of the “fat” content shown, and would encompass about 11.3% (14% *0.809) which is seen to encompass “about 10%” as claimed. Furthermore, as the claims recite the content of “a vegetable oil”, and Pinkalla teaches that the fat is preferably one or more vegetable oils (column 2 lines 18-21), one of ordinary skill in the art would understand that the teachings of the art encompass a vegetable oil in an amount less than 11.3%, further making the claimed limitation obvious over the teachings and suggestions of the prior art.
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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792