DETAILED ACTION
Amendments made October 7, 2025 have been entered.
Claims 1-11, 13, and 15-21 remain pending.
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The objection to claim 3 has been withdrawn in light of applicant’s amendments made October 7, 2025.
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 claim 11 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made October 7, 2025.
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 1, 8-11, 16, and 20-21 under 35 U.S.C. 102(a)(1) as being anticipated by Pfeiffer (US 2002/0197357 A1) as evidenced Indiana Sugars (“Bulk Corn syrup” https://www.sugars.com/product-catalog/all-products/corn-syrup pages 1-14) has been withdrawn in light of applicant’s amendments made October 7, 2025; specifically Pfeiffer does not teach the composition as comprising 18.0-35.0% milk solids.
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.
The rejection of claims 2-5 under 35 U.S.C. 103 as being unpatentable over Pfeiffer (US 2002/0197357 A1) as evidenced Indiana Sugars (“Bulk Corn syrup” https://www.sugars.com/product-catalog/all-products/corn-syrup pages 1-14), further in view of Peters et al (US 2017/0245519) has been withdrawn in light of applicant’s amendments made October 7, 2025; specifically Pfeiffer does not teach the composition as comprising 18.0-35.0% milk solids.
The rejection of claims 4 and 6 under 35 U.S.C. 103 as being unpatentable over Pfeiffer (US 2002/0197357 A1) as evidenced Indiana Sugars (“Bulk Corn syrup” https://www.sugars.com/product-catalog/all-products/corn-syrup pages 1-14), further in view of Peterson (WO 92/20238) has been withdrawn in light of applicant’s amendments made October 7, 2025; specifically Pfeiffer does not teach the composition as comprising 18.0-35.0% milk solids.
The rejection of claims 17-19 under 35 U.S.C. 103 as being unpatentable over Pfeiffer (US 2002/0197357 A1) as evidenced Indiana Sugars (“Bulk Corn syrup” https://www.sugars.com/product-catalog/all-products/corn-syrup pages 1-14) has been withdrawn in light of applicant’s amendments made October 7, 2025; specifically Pfeiffer does not teach the composition as comprising 18.0-35.0% milk solids.
Claims 1, 7-11, 13, 16, and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of Pfeiffer (US 2002/0197357 A1) and as evidenced Indiana Sugars (“Bulk Corn syrup” https://www.sugars.com/product-catalog/all-products/corn-syrup pages 1-14) and Think USA Dairy (https://www.thinkusadairy.org/products/milk-powders/milk-powder-categories/dry-whole-milk-and-whole-milk-powder pages 1-2).
Von Niessen teaches a core confection comprising: a) 0.5-10% protein which is preferably gelatin, i.e. a stabilizer and hydrocolloid; b) 40-82%, preferably 65-82% carbohydrates in the form of crystalline and non-crystalline carbohydrates; and c) 10-30% water (abstract and paragraphs 8, 22, and 51). It is noted that although the water in the non-crystalline carbohydrate phase is in addition to the water identified in feature c (paragraph 18), as Von Niessen teaches in an especially preferred embodiment the dry matter of the core confection is 70-90% (paragraphs 19 and 20), the teachings of Von Niessen still encompass a total water content of 10-30%.
Regarding the composition as comprising 20.0-35.0% sucrose as recited in claim 1, preferably 27.5-32.5% sucrose as recited in claim 8; 14.0-35.0% of a combination of at least two dextrose, fructose, maltose, and maltotriose as recited in claim 1, preferably 15.0-30.0% of the combination as recited in claim 9, or wherein the combination comprises at least 3 as recited in claim 10; 7.5-17.0% dextrose as recited in claim 16, or 0.02-2.5% maltose as recited in claim 18, or 0.02-2.5% maltotriose as recited in claim 19, as discussed above Von Niessen teaches a composition comprising 40-82%, preferably 65-82% of a carbohydrate component in the form of crystalline and non-crystalline carbohydrates. Von Niessen teaches the crystalline carbohydrate comprises saccharose, i.e. sucrose, and glucose, i.e. dextrose and/or isomaltulose (paragraph 10), wherein in a preferred embodiment the weight of sucrose in the crystalline carbohydrate phase is 40-45% (paragraph 13), and in a preferred embodiment the weight of glucose, i.e. dextrose is from 5-25% of the crystalline carbohydrate phase (paragraph 17). Von Niessen teaches the non-crystalline carbohydrate is preferably glucose syrup, invert sugar syrup, and/or high fructose corn syrup (paragraph 54) and that the non-crystalline carbohydrate phase has a dry matter content of 60-90% (paragraph 19). Von Niessen teaches the carbohydrate component comprises 60-90% crystalline carbohydrate and 10-40% non-crystalline carbohydrate based on the dry weight of carbohydrate component (paragraphs 11 and 12).
Von Niessen is silent to the type of corn syrup used, however, Pfeiffer teaches that standard corn syrups were defined as having a DE of approximate 42 (paragraph 24). It would have been obvious to one of ordinary skill in the art for the generally disclosed corn syrup of Von Niessen to be a standard corn syrup, i.e. one with a DE of about 42 as taught by Pfeiffer. As no limitations were placed on the corn syrup component, to use a known and standard corn syrup would have been obvious to one of ordinary skill in the art. As evidenced by Indiana Sugars 42DE corn syrup contains by dry weight 20% dextrose, 13% maltose, and 12% maltotriose (page 2), and 80.5% solids (page 9), and thus by total weight, the corn syrup contains 16.1% dextrose, 10.465% maltose and 9.66% maltotriose.
With the corn syrup identified, the core confectionary composition taught by Von Niessen can be calculated, and based on those teachings, the prior discloses overlapping ranges. It is noted that as the crystalline carbohydrate is a dry product it was calculated as having negligible moisture. For example, at 65% of the carbohydrate component (57.2% solid carbohydrates from the carbohydrate composition), wherein the core composition comprises of about 90% crystalline carbohydrates and about 10% non-crystalline carbohydrates, i.e. corn syrup, with a solids content of 80.5%, the core confection would comprise about 20.6-23.2% sucrose (from 40-45% sucrose in the crystalline sugar), and about 5.1-15% dextrose, maltose, and maltotriose, including about 0.7% maltose, about 0.7% maltotriose, and about 3.7-14.0% dextrose (from corn syrup and/or dextrose within the crystalline carbohydrate). For example, at 81% of the carbohydrate composition composed of about 90% crystalline carbohydrates and about 10% non-crystalline carbohydrates, i.e. corn syrup, with a solids content of 90%, the core confection would comprise about 29.16-32.8% sucrose (from 40-45% sucrose in the crystalline sugar), and about 7.3-21.9% dextrose, maltose, and maltotriose, including about 1.1% maltose, 0.97% maltotriose, and 5.3-19.8% dextrose (from the crystalline sugar and/or corn syrup).
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 the composition as comprising 18.0-35.0% milk solids as recited in claim 1, wherein milk fat is from 7.0-15.0% and lactose is 1.5-7.0% as recited in claim 13, Von Niessen teaches that the core confection contains preferably 0.1-44% of at least one additional component e) selected from the group including powdered milk (paragraphs 36 and 37). Thus, it would have been obvious suggestion of the prior art to use known powdered milks, including skim or whole milk powder. As evidenced by Think USA Dairy, dry whole milk or whole milk powder was known to typically contain 36.0-38.5% fat, 36.0-38.5% lactose, and 66-72% milk solids (protein, lactose and ash) (table, page 1). Thus, the addition of 0.1-44% milk solids as taught by Von Niessen would contribute 0.066-31.68% milk solids, 0.036-16.95% lactose, and 0.026-17.6% milk fat to the core confectionary composition. Von Niessen 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 claim 11, as discussed above Von Niessen teaches a hydrocolloid. Additionally, it is noted that Von Niessen teaches that the core confection contains at least one additional component e) selected from the group including gelling agents and swelling agents, both of which were known to encompass hydrocolloids (paragraph 36), wherein in each case, the additive is added from preferably 0.1-10% (paragraph 37).
Regarding claim 20, as discussed above, Von Niessen teaches the core confection comprises a carbohydrate component which has 57.2% solid carbohydrates which are not derived from milk solids and preferably 0.1-44% of at least one additional component e) selected from the group including powdered milk (paragraphs 36 and 37) which contributes 0.036-16.95% lactose, a milk carbohydrate to the core confectionary composition. Thus, the product of Von Niessen contains about 57-74% total carbohydrates which encompasses or at least makes obvious a product as claimed.
Regarding claim 21, Von Niessen teaches the carbohydrate component, wherein other non-milk carbohydrates are not taught or required (all). As discussed above, the teachings of Von Niessen encompass a composition comprising 57.2% solid carbohydrates which are not derived from milk solids. Thus, the product of Von Niessen encompasses or at least makes obvious a product as claimed.
Regarding the claimed ranges and those taught by the prior art, it is noted that the prior art teaches 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.
Claims 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of Pfeiffer (US 2002/0197357 A1) and as evidenced Indiana Sugars and Think USA Dairy, further in view of Peters et al (US 2017/0245519).
As discussed above, Von Niessen teaches a confectionary core composition comprising:
proteins, including gelatin which is a stabilizer, and carbohydrates in the form of crystalline carbohydrates including sucrose, and non-crystalline carbohydrates including sugar syrups.
Von Niessen is not specific to the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3, or to the stabilizer as selected from the group including microcrystalline sugar as recited in claim 4, preferably fondant, silk sugar, and combinations thereof as recited in claim 5.
Peters et al (Peters) teaches sugar compositions for confections (abstract, title, and paragraph 36). Peters teaches the use of fine sugar with a mean particle size less than 30 microns, such as from 5-30 microns, and a maximum size of no more than 35 microns ensures the product has a smooth texture and does not have an undesirable graininess or roughness (paragraph 55). Peters teaches that the sugar can be ground down or is commercially available as “icing sugar”, i.e. fondant sugar (paragraphs 30 and 31).
Regarding the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3, it would have been obvious for at least some of the sugar taught by Von Niessen to be fondant sugar and have a maximum particle size, and thus a D90 of less than 35 microns in order to ensure the product has a smooth texture and does not have an undesirable graininess or roughness in view of Peters. The prior art 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 the composition as comprising the stabilizer selected from the group including microcrystalline sugar as recited in claim 4, or fondant sugar as recited in claim 5, as discussed above, it would have been obvious for at least some of the sugar taught by Von Niessen to be fondant sugar in view of Peters. Thus, the product of the Von Niessen would comprise fondant sugar, which is a claimed stabilizer and microcrystalline sugar. It would have been further obvious for said sugar to be present in an amount to provide the desired smoothness in view of Peters.
Claims 4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of Pfeiffer (US 2002/0197357 A1) and as evidenced Indiana Sugars and Think USA Dairy, further in view of Peterson (WO 92/20238).
As discussed above, Von Niessen teaches a confectionary core composition comprising sugar syrups, such as corn syrup. Von Niessen is not specific to the composition as including a stabilizing agent selected from a group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6.
Peterson teaches sugar syrups for confections (title and page 2 paragraph 4), wherein acidulants including potassium sorbate also act as preservatives and are generally used from 0.1-2% (page 7, last paragraph).
Regarding the composition as including a stabilizing agent selected from a group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6, it would have been obvious for the sugar syrup, and thus confectionary composition of Von Niessen to include 0.1-2% potassium sorbate, which is a metal sorbate, as an acidulant and/or preservative in view of Peterson.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of Pfeiffer (US 2002/0197357 A1) and as evidenced Indiana Sugars and Think USA Dairy, and further as evidenced by Shakerdi et al (“Determination of the lactose and galactose content of common foods: Relevance to galactosemia” pages 3789-3800).
As discussed above, Von Niessen teaches a core confectionary composition comprising 0.036-16.95% lactose from the use of milk powder. Galactose linked with glucose forms lactose. As evidenced by Shakerdi et al, page 3790, lactose contains 52.63% galactose (526mg/1000mg). Thus, the composition of Von Niessen comprises 0.019-8.87% galactose. It is noted that the claim does not limit the form of the galactose, only that it be present in some manner within the composition.
Claims 1, 7-11, 13, and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of White (“Straight talk about high-fructose corn syrup: what it is and what it ain’t” American Society for Nutrition 2008, pages 1716S-1721S) and Igoe et al (Dictionary of Food Ingredients 4th Edition, pages 40, 71, 72, 75, 88, and 139) and Fennema (Fenenma’s Food Chemistry 4th Edition pages 129, 130, and 726), and as evidenced Think USA Dairy (https://www.thinkusadairy.org/products/milk-powders/milk-powder-categories/dry-whole-milk-and-whole-milk-powder pages 1-2).
Von Niessen teaches a core confection comprising: a) 0.5-10% protein which is preferably gelatin, i.e. a stabilizer and hydrocolloid; b) 40-82%, preferably 65-82% carbohydrates in the form of crystalline and non-crystalline carbohydrates; and c) 10-30% water (abstract and paragraphs 8, 22, and 51). It is noted that although the water in the non-crystalline carbohydrate phase is in addition to the water identified in feature c (paragraph 18), as Von Niessen teaches in an especially preferred embodiment the dry matter of the core confection is 70-90% (paragraphs 19 and 20), the teachings of Von Niessen still encompass a total water content of 10-30%.
Regarding the composition as comprising 20.0-35.0% sucrose as recited in claim 1, preferably 27.5-32.5% sucrose as recited in claim 8; 14.0-35.0% of a combination of at least two dextrose, fructose, maltose, and maltotriose as recited in claim 1, preferably 15.0-30.0% of the combination as recited in claim 9, or wherein the combination comprises at least 3 as recited in claim 10; 7.5-17.0% dextrose as recited in claim 16, or 7.5-17.0% fructose as recited in claim 17, or 0.02-2.5% maltose as recited in claim 18, or 0.02-2.5% maltotriose as recited in claim 19, as discussed above Von Niessen teaches a composition comprising 40-82%, preferably 65-82% of a carbohydrate component in the form of crystalline and non-crystalline carbohydrates. Von Niessen teaches the crystalline carbohydrate comprises saccharose, i.e. sucrose, and glucose, i.e. dextrose and/or isomaltulose (paragraph 10), wherein in a preferred embodiment the weight of sucrose in the crystalline carbohydrate phase is 40-45% (paragraph 13), and in a preferred embodiment the weight of glucose, i.e. dextrose is from 5-25% of the crystalline carbohydrate phase (paragraph 17). Von Niessen teaches the non-crystalline carbohydrate is preferably glucose syrup, invert sugar syrup, and/or high fructose corn syrup (paragraph 54) and that the non-crystalline carbohydrate phase has a dry matter content of 60-90% (paragraph 19). Von Niessen teaches the carbohydrate component comprises 60-90% crystalline carbohydrate and 10-40% non-crystalline carbohydrate based on the dry weight of carbohydrate component (paragraphs 11 and 12).
Von Niessen is silent to the type of high fructose corn syrup (HFCS) used; however, White teaches the most common sweetener and important high fructose products are HFCS 42 and 55 (Page 1717S, Table 1 and Composition, paragraph 1). It would have been obvious to one of ordinary skill in the art for the generally disclosed high fructose corn syrup of Von Niessen to be a common high fructose corn syrup, i.e. one with a fructose content of 55%, dextrose content of 42%, and 3% remaining carbohydrates predominantly of maltose and maltotriose, as taught by White (Page 1717S, Table 1 and Composition, paragraph 1). As no limitations were placed on the high fructose corn syrup component, to use a known and common corn syrup would have been obvious to one of ordinary skill in the art.
With the HFCS identified, the core confectionary composition taught by Von Niessen can be calculated, and based on those teachings, the prior discloses overlapping ranges. It is noted that as the crystalline carbohydrate is a dry product it was calculated as having negligible moisture. For example, at 81% of the carbohydrate composition composed of about 6-90% crystalline carbohydrates and about 10-40% non-crystalline carbohydrates, i.e. HFCS as taught by White, the core confection would comprise about 19-32% sucrose (from 40-45% sucrose in the crystalline sugar), and about 12-45% dextrose, maltose, and maltotriose, including about 0.2-97% maltose and maltotriose, about 4.5-17.9% fructose, and 7-25.8% dextrose (from the crystalline sugar and HFCS). 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.
Furthermore, the teachings of Von Niessen disclose various ranges of sucrose and dextrose as crystalline sugars as well as various ranges of dextrose, maltose, maltotriose, and fructose, which are contributed from the disclosed non-crystalline carbohydrates in varying amounts.
Fennema teaches that hydrolysis of starch produces sugar syrup, wherein hydrolysis DE values of 20-60 gives corn syrups which are mildly sweet (page 129 last paragraph) and continued hydrolysis produces a mixture of D-glucose, maltose, and other malto-oligosaccahrides (page 130, first paragraph). Fennema teaches that a DE of 42 is most common and these syrups are stable because crystallization does not occur easily in such mixtures (page 130 first paragraph). Fennema additionally teaches that as greater hydrolysis occurs there is less viscosity and body, less sugar crystallization prevention, more sweetness, more hygroscopicity and humectancy, and greater flavor enhancement (page 129, Table 3.7). Fennema teaches that in intermediate moisture foods, i.e. foods with a moisture content of 15-30%, sucrose and glucose are of value because they are sufficiently effective at lowering water activity and being tolerable organoleptically (page 726, paragraph 1).
Igoe et al (Igoe) teaches corn syrup contains maltose, dextrose, and other polysaccharides; that although less sweet, corn syrup is used to replace sucrose; and that it can control crystallization in candy making (page 40). Igoe teaches high-fructose corn syrup contains varying concentrations of fructose in mixture with dextrose, maltose, and other saccharides (pages 71-72). Igoe teaches invert sugar is a mixture of glucose and fructose, is more soluble, sweeter, and crystalizes less readily than sucrose (page 75). Igoe teaches sucrose is a universal sweetener because of its intense sweetness and solubility (page 139). Igoe teaches maltose was a sweetener consisting of dextrose which is less sweet and more stable than sucrose (page 88).
As the different carbohydrates taught by Von Niessen were known to each respectively contribute different benefits to the final product as shown by Igoe and/or Fennema, it would have been obvious to adjust the carbohydrates disclosed by Von Niessen, including high fructose corn syrup, corn syrup, sucrose, and dextrose depending on the desired sweetness, crystallization prevention, body, water activity, and stability desired. In adjusting the amount of syrup component(s), the compositional amount of the syrup(s) elements, including dextrose, fructose, maltose, and maltotriose would also be adjusted in the final product. It is noted that the claims do not limit the form of the claimed sugars or require that they be in insolated form. In fact, the instant disclosure exemplifies the carbohydrates, such as maltose and maltotriose as added in a syrup form, such as inverted sugar syrup, to reduce crystallization and increase stability (instant application page 1 lines 8-12, page 3 lines 13-19, and examples 1 and 2), and thus it appears applicant is doing nothing more than adjusting known ingredients to produce known results.
Regarding the composition as comprising 18.0-35.0% milk solids as recited in claim 1, wherein milk fat is from 7.0-15.0% and lactose is 1.5-7.0% as recited in claim 13, Von Niessen teaches that the core confection contains preferably 0.1-44% of at least one additional component e) selected from the group including powdered milk (paragraphs 36 and 37). Thus, it would have been obvious suggestion of the prior art to use known powdered milks, including skim or whole milk powder. As evidenced by Think USA Dairy, dry whole milk or whole milk powder was known to typically contain 36.0-38.5% fat, 36.0-38.5% lactose, and 66-72% milk solids (protein, lactose and ash) (table, page 1). Thus, the addition of 0.1-44% milk solids as taught by Von Niessen would contribute 0.066-31.68% milk solids, 0.036-16.95% lactose, and 0.026-17.6% milk fat to the core confectionary composition. Von Niessen 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 claim 11, as discussed above Von Niessen teaches a hydrocolloid. Additionally, it is noted that Von Niessen teaches that the core confection contains at least one additional component e) selected from the group including gelling agents and swelling agents, both of which were known to encompass hydrocolloids (paragraph 36), wherein in each case, the additive is added from preferably 0.1-10% (paragraph 37).
Regarding claim 20, as discussed above, Von Niessen teaches the core confection comprises a carbohydrate component which has about 31-77% solid carbohydrates which are not derived from milk solids and preferably 0.1-44% of at least one additional component e) selected from the group including powdered milk (paragraphs 36 and 37) which contributes 0.036-16.95% lactose, a milk carbohydrate to the core confectionary composition. Thus, the product of Von Niessen contains about 31-89.5% total carbohydrates which encompasses or at least makes obvious a product as claimed.
Regarding claim 21, Von Niessen teaches the carbohydrate component, wherein other non-milk carbohydrates are not taught or required (all). As discussed above, the teachings of Von Niessen encompass a composition comprising about 31-77% solid carbohydrates which are not derived from milk solids. Thus, the product of Von Niessen encompasses or at least makes obvious a product as claimed.
Regarding the claimed ranges and those taught by the prior art, it is noted that the prior art teaches 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.
Claims 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of White and Igoe et al and Fennema and as evidenced Think USA Dairy, further in view of Peters et al (US 2017/0245519).
As discussed above, Von Niessen teaches a confectionary core composition comprising:
proteins, including gelatin which is a stabilizer, and carbohydrates in the form of crystalline carbohydrates including sucrose, and non-crystalline carbohydrates including sugar syrups.
Von Niessen is not specific to the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3, or to the stabilizer as selected from the group including microcrystalline sugar as recited in claim 4, preferably fondant, silk sugar, and combinations thereof as recited in claim 5.
Peters et al (Peters) teaches sugar compositions for confections (abstract, title, and paragraph 36). Peters teaches the use of fine sugar with a mean particle size less than 30 microns, such as from 5-30 microns, and a maximum size of no more than 35 microns ensures the product has a smooth texture and does not have an undesirable graininess or roughness (paragraph 55). Peters teaches that the sugar can be ground down or is commercially available as “icing sugar”, i.e. fondant sugar (paragraphs 30 and 31).
Regarding the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3, it would have been obvious for at least some of the sugar taught by Von Niessen to be fondant sugar and have a maximum particle size, and thus a D90 of less than 35 microns in order to ensure the product has a smooth texture and does not have an undesirable graininess or roughness in view of Peters. The prior art 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 the composition as comprising the stabilizer selected from the group including microcrystalline sugar as recited in claim 4, or fondant sugar as recited in claim 5, as discussed above, it would have been obvious for at least some of the sugar taught by Von Niessen to be fondant sugar in view of Peters. Thus, the product of the Von Niessen would comprise fondant sugar, which is a claimed stabilizer and microcrystalline sugar. It would have been further obvious for said sugar to be present in an amount to provide the desired smoothness in view of Peters.
Claims 4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of White and Igoe et al and Fennema and as evidenced Think USA Dairy, further in view of Peterson (WO 92/20238).
As discussed above, Von Niessen teaches a confectionary core composition comprising sugar syrups, such as corn syrup. Von Niessen is not specific to the composition as including a stabilizing agent selected from a group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6.
Peterson teaches sugar syrups for confections (title and page 2 paragraph 4), wherein acidulants including potassium sorbate also act as preservatives and are generally used from 0.1-2% (page 7, last paragraph).
Regarding the composition as including a stabilizing agent selected from a group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6, it would have been obvious for the sugar syrup, and thus confectionary composition of Von Niessen to include 0.1-2% potassium sorbate, which is a metal sorbate, as an acidulant and/or preservative in view of Peterson.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Von Niessen (US 2012/0244258) in view of White and Igoe et al and Fennema and as evidenced Think USA Dairy, and further as evidenced by Shakerdi et al (“Determination of the lactose and galactose content of common foods: Relevance to galactosemia” pages 3789-3800).
As discussed above, Von Niessen teaches a core confectionary composition comprising 0.036-16.95% lactose from the use of milk powder. Galactose linked with glucose forms lactose. As evidenced by Shakerdi et al, page 3790, lactose contains 52.63% galactose (526mg/1000mg). Thus, the composition of Von Niessen comprises 0.019-8.87% galactose. It is noted that the claim does not limit the form of the galactose, only that it be present in some manner within the composition.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5, 7, 9-11, 13, and 15-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 8, 12, 13, 16-21, and 23 of copending Application No. 18/727,167 (‘167) (reference application) as amended 10/7/25 in view of Peters et al (US 2017/0245519).
Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a confectionary comprising overlapping ranges of components, including: 10.0-30.0% water; 20% to less than 25% sucrose, 20.0-35.0% a combination of at least two, which encompasses three or more of dextrose, fructose, maltose, and maltotriose (claim 1); 18.0-35.0% milk solids (claim 12); 7.0-15.0% milk fat and 1.5-7.0% lactose (claim 13); 1.5-4.5% galactose (claim 1); 10.0-17.0% dextrose (claim 16); 7.5-17.0% fructose (claim 17); 0.02-2.5% maltose (claim 18); 0.02-2.5% maltotriose (claim 19); 50.0-70.0% total carbohydrate (claim 20); 45.0-65.0% non-milk based carbohydrate (claim 21); and 0.05-1.0% hydrocolloid (claim 23).
‘167 does not claim that the composition comprise 0.05-10.0% stabilizing agents as recited in claim 1, to the stabilizer as selected from the group including microcrystalline sugar as recited in claim 4, preferably fondant, silk sugar, and combinations thereof as recited in claim 5, or to the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3.
Peters et al (Peters) teaches sugar compositions for confections (abstract, title, and paragraph 36). Peters teaches the use of fine sugar with a mean particle size less than 30 microns, such as from 5-30 microns, and a maximum size of no more than 35 microns ensures the product has a smooth texture and does not have an undesirable graininess or roughness (paragraph 55). Peters teaches that the sugar can be ground down or is commercially available as “icing sugar”, i.e. fondant sugar (paragraphs 30 and 31).
Regarding the confection as comprising crystals with a D90 particle size of 5.0-120 microns as recited in claim 2, preferably 7.5-90 microns as recited in claim 3, it would have been obvious for at least some of the sugar claimed by ‘167 to be fondant sugar and have a maximum particle size, and thus a D90 of less than 35 microns in order to ensure the product has a smooth texture and does not have an undesirable graininess or roughness in view of Peters. The prior art 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 the composition as comprising 0.05-10.0% stabilizing agents as recited in claim 1, wherein the stabilizer is selected from the group including microcrystalline sugar as recited in claim 4, or fondant sugar as recited in claim 5, as discussed above, it would have been obvious for at least some of the sugar claimed by ‘167 to be fondant sugar in view of Peters. Thus, the product claimed by ‘167 in view of Peters would comprise fondant sugar, which is a claimed stabilizer and microcrystalline sugar. It would have been further obvious for the amount to be based upon the desired smoothness as taught by Peters.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1, 4, 6, 7, 9-11, 13, and 15-21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 8, 12, 13, and 16-21 of copending Application No. 18/727,167 (‘167) (reference application) as amended 10/7/25 in view of Peterson (WO 92/20238).
Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a confectionary comprising overlapping ranges of components, including: 10.0-30.0% water; 20% to less than 25% sucrose, 20.0-35.0% a combination of at least two, which encompasses three or more of dextrose, fructose, maltose, and maltotriose (claim 1); 18.0-35.0% milk solids (claim 12); 7.0-15.0% milk fat and 1.5-7.0% lactose (claim 13); 1.5-4.5% galactose (claim 1); 10.0-17.0% dextrose (claim 16); 7.5-17.0% fructose (claim 17); 0.02-2.5% maltose (claim 18); 0.02-2.5% maltotriose (claim 19); 50.0-70.0% total carbohydrate (claim 20); and 45.0-65.0% non-milk based carbohydrate (claim 21).
‘167 does not claim that the composition comprises 0.05-10.0% stabilizing agents as recited in claim 1, wherein the stabilizing agent is selected from a group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6.
Peterson teaches sugar syrups for confections (title and page 2 paragraph 4), wherein acidulants including potassium sorbate also act as preservatives and are generally used from 0.1-2% (page 7, last paragraph).
Regarding the composition as comprising 0.05-10.0% stabilizing agents as recited in claim 1, wherein the stabilizer selected from the group including metal sorbate as recited in claim 4, preferably as metal sorbate as recited in claim 6, it would have been obvious for the sugar syrup, and thus confectionary composition claimed by ‘167 to include 0.1-2% potassium sorbate, which is a metal sorbate, as an acidulant and/or preservative in view of Peterson.
Response to Arguments
Applicant's arguments filed October 7, 2025 have been fully considered but they are not persuasive.
Applicant argues that because the milk solids of Von Niessen are listed as one or more additives that may be present preferably from 0.1-44%, there is no motivation to use milk solids within the claimed range of 18.0-35.0% absent hindsight.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the instant case, as Von Niessen teaches the composition as comprising “at least one other additional component e”, wherein e is one or more from a list including milk solids and wherein the additive e is taught to be present “in each case” from preferably 0.1-44% (paragraphs 36 and 37), the use of said milk solids from 0.1-44% is encompassed, or at least obvious over the teachings of the prior art. To use the disclosed components in an amount disclosed would be a clear and obvious suggestion 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