DETAILED ACTION
Amendments made February 19, 2026 have been entered.
Claims 1-20 are pending;
Claims 11-18 have been withdrawn.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.
Drawings
The objections to the drawings as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: “aperture 230”, “no filling 420”, and “shell 410” have been withdrawn in light of applicant’s amendments made February 19, 2026.
The drawings remain objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “310” has been used to designate both a process of forming the first portion of the outer shell (paragraph 26) and the outer shell (paragraph 36). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
The objection to claims 5-8 due to minor informalities has been withdrawn in light of applicant’s amendments made February 19, 2026.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 19 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Newly presented claim 19 recites “wherein the aperture is formed by one of boring, drilling, and piercing”. Although the disclosure as originally filed, see specification paragraph 36, has support for boring and drilling no disclosure has been found for piercing as claimed.
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.
Notes:
The term “hot liquid” would be understood in view of the disclosure as a liquid at a temperature capable of melting the food product.
An “enhanced user experience” would be understood in view of the disclosure as one in which the user can experience, in any way, the outer shell of the food product melting.
The elected claims are not directed to a method of making a beverage, but rather a method of forming a hot liquid preparation food product, i.e. a product which can be used in forming a hot liquid preparation.
The previous prior art rejections have been withdrawn in light of applicant’s amendments made February 19, 2026 which require forming an aperture in a predetermined location in the outer shell.
Claims 1-5, 8, 9, and 19 are rejected under 35 U.S.C. 103 as obvious over Weiser (US 2016/0255857) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973, page151) and Guignabodet (FR 3075002A1 machine translation) and Emerton et al (US 5,783,793).
Regarding claims 1-2, 5, 9, and 19, Weiser teaches a method of forming a hot liquid preparation food product, i.e. a food product to which hot liquid can be applied (abstract). As Weiser teaches that the product includes at least one shell that can be melted with heated liquid to release one or more ingredient and form a heated beverage (abstract and paragraph 20), the method of Weiser encompasses a completed hot liquid preparation food product which may be immersed in a hot liquid to melt the outer shell and provide an enhanced user experience. The position is further supported as Weiser teaches that the product provides a fun and enjoyable way to make heated beverages (paragraph 20). Weiser teaches that the method of making the food product comprises: forming a first and second cavity containing outer shell portion with molds; forming the filling, such as by mixing the cocoa ingredient; filling the one or more cavities of the outer shell portions with ingredients, such as the cocoa filling and marshmallows; and joining the molded shells together to encapsulate the edible filler within a void of the outer shells and form the competed hot liquid preparation food product (paragraphs 18, 23-25, 30-32, and 38; claims 9 and 16; and Figures 2A-2B, 4, and 5). Weiser teaches that the outer shell can be formed from any suitable edible material(s) including chocolate, and can have any suitable shape and/or design (paragraph 17 and claims 11, 14, 15, and 20).
Weiser is not specific to how the shell is molded, including the first and second portion of the outer shell as formed by pouring a first and second amount of heated liquid edible shell into a first and second mold portion, and allowing it to cool, and then removing the shell portions after cooling, or to forming an aperture in a predetermined location in the outer shell as recited in claim 1, wherein the aperture allows the hot liquid to enter into the void of the shell to facilitate melting of the hot liquid preparation food product as recited in claim 5, and wherein the aperture is formed by boring, drilling, or piercing as recited in claim 19.
Regarding how the shell is molded, including the first and second portion of the outer shell as formed by pouring a first and second amount of heated liquid edible shell into a first and second mold portion, and allowing it to cool, and then removing the shell portions after cooling, Guignabodet teaches forming a molded chocolate shell with a cavity for making hot chocolate (page 1 lines 10-11 and 41-44). Guignabodet teaches that the shell is formed by pouring chocolate into two half mold capsules (page 1 lines 43-49).
Lees and Jackson (Lees) teaches that molding for chocolate shells for subsequent filling used cooling to promote solidification, wherein the use of stepped cooling can prevent cracking of the shells (page 151 Section 8.13).
It would have been obvious for all of the molded chocolate shell portions of the prior art to be deposited into the mold in a known manner, including by pouring as taught by Guignabodet, followed by cooling to promote solidification and thus handling and/or to prevent cracking of the shell in view of Lees. It is further noted that as Lees teaches cooling for solidification, and Guignabodet teaches the chocolate as poured into the molds, the chocolate would necessarily be heated for pouring, or alternatively, that heating to form a pourable product would have been obvious. To use known steps for depositing and molding, wherein depositing and molding were disclosed would have been particularly obvious to one of ordinary skill in the art.
Regarding forming an aperture in a predetermined location in the outer shell as recited in claim 1, wherein the aperture allows the hot liquid to enter into the void of the shell to facilitate melting of the hot liquid preparation food product as recited in claim 5, and wherein the aperture is formed by boring, drilling, or piercing as recited in claim 19, Weiser teaches that the product includes at least one shell that can be melted with heated liquid to release one or more ingredient and form a heated beverage (abstract and paragraph 20) and that various additional decorative features can be added to the shells (paragraph 19), but is not specific to the claimed limitations.
Emerton et al (Emerton) teaches drilling holes or apertures at predetermined locations in dosage forms, including confectioneries and candies, in order to allow for controlled release and delivery of their content once in their environment for use and/or to produce design, spell out a code, trademark, other symbol (column 1 lines 15-18, column 2 lines 49-59, column 2 line 65 through column 3 line 2, column 3 lines 5-15 and 27-33, and column 4 lines 10-27, 40, and 46-49). Emerton teaches that the environment for use includes water (column 2 line 65 through column 3 line 2). Emerton teaches that the holes additionally provide an exit means for the chemical stored inside the dosage form to be expelled (column 4 lines 16-19).
It would have been obvious for the hot liquid preparation food product taught by Wesier which includes at least one shell that can be melted with heated liquid to release one or more ingredient and form a heated beverage to include a drilled aperture in a predetermined location in the outer shell, wherein the aperture allows the hot liquid to enter into the void of the shell in order to allow for controlled release and delivery of the internal contents once in the environment for use and/or to produce design, spell out a code, trademark, other symbol in view of Emerton. As the hot liquid could enter into the shell through the aperture and thus would contact a greater surface area of the chocolate shell, the combination would have an aperture which would facilitate melting of the hot liquid preparation food product as recited in claim 5. Alternatively, it is noted that the claimed limitation is intended use and only requires the ability of the product to perform. As the prior art teaches of a product with the same structure as claimed and disclosed, i.e. an aperture, it would be capable of performing in the claimed manner.
Regarding claim 3, Weiser teaches that the shell can include any suitable shape, including various shapes and patterns for upcoming seasons or holiday such as a heart shape, or snowman (paragraph 21 and Figure 1A), and thus encompass the shell as formed in a novelty shape.
Regarding claim 4, Weiser teaches that the outer shell while generally shown as spherical can be any suitable regular or irregular shape, such as heart or snowman (paragraph 17). Weiser teaches that the shell can contain marshmallows (paragraphs 18 and 21 and claim 20). Weiser is not specific to the edible filler as formed in a novelty shape different from a shape of the outer shell as recited in claim 4, however, the examiner takes official notice that marshmallows were known to be formed in a variety of novelty shapes, including cylinders, and thus to form the product of Weiser with an edible filler having a novelty shape different from the outer shell would have been an obvious suggestion of the prior art when including a marshmallow filling as disclosed.
Regarding claim 8, as discussed above, the combination of Weiser in view of Emerton makes obvious apertures or holes within the shell. As holes are an opening in the wall to allow for the admission of air or light, the holes taught by the prior art are considered to encompass “windows” in the outer shell as claimed. It is additionally noted that the holes would allow for some degree of viewing of the internal surface of the confection.
Claims 6-7 are rejected under 35 U.S.C. 103 as obvious over Weiser (US 2016/0255857) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973, page151) and Guignabodet (FR 3075002A1 machine translation) and Emerton et al (US 5,783,793), further in view of Valender et al (WO 2020/221627)
As discussed above, Weiser teaches a method of forming a hot liquid preparation chocolate product for consumer enjoyment comprising at least one filled shell that can be melted with heated liquid, wherein it would have been obvious for the shell to include a drilled aperture in a predetermined location in the outer shell, wherein the aperture allows the hot liquid to enter into the void of the shell in order to allow for controlled release and delivery of their content once in their environment for use and/or to produce design, spell out a code, trademark, other symbol in view of Emerton.
Weiser is silent to the method as comprising closing an aperture formed in the outer shell with a plug, wherein such plug is removable by the end user as recited in claim 6, preferably wherein the plug is edible as recited in claim 7.
Valender et al (Valender) teaches a chocolate confectionery product which offers a consumer a more varied experience than traditional confectionery shells, wherein the product comprises a main body formed around at least one removable portion that can be pushed through or out of the shell, thus leaving a gap or aperture in the shell wall; and an enclosed and at least partially filled cavity to provide a confectionery shell (abstract, pages 2 and 3 all, page 4 lines 1-3 and 12-14). Valender teaches incorporation of the cavities provides for a plurality of distinct and different fillings in such removable portions that allow for a greater variety of the final product (page 5 lines 27-29). Valender teaches that the shell is formed by joining two shell halves, wherein there can be one or more gaps or holes formed through the walls thereof (page 8 line 13 through page 9 line 2). Valender teaches that when the consumer removes the removable portion the product may be more visually interesting, appealing, or enticing to consumers who may be able to see that there is filling located within (page 10 lines 4-8). Valender teaches that each cavity, well and/or the area defined by the perimeter of each removable portion may be sealed or enclosed in any suitable way, such as by applying plugs including a chocolate piece or a cover of molten chocolate which is cooled (page 13 lines 12-17, page 18 line 7 though page 19 line 14, and page 20 lines 1-6).
Regarding the method as comprising closing an aperture formed in the outer shell with a plug, wherein the plug is removable by the end user as recited in claim 6, preferably wherein the plug is edible as recited in claim 7, it would have been obvious for the method of making the chocolate shell of Weiser to comprise forming a removable area comprising forming an aperture, inserting a filling, and then plugging, i.e. covering the filled area with chocolate, i.e. an edible material in order to form a chocolate confectionery product which offers the consumer a more varied experience and/or in order to allow the consumer to remove the plug and create a more visually interesting, appealing or enticing product in which the consumers may be able to see that there is filling located within as taught by Valender. It is noted that the claimed limitation does not require that all the apertures be filled, i.e. only “an aperture”, and thus the product of the prior art may encompass the claimed product and comprise one or more apertures wherein some are filed and others are not filled.
Claim 10 is rejected under 35 U.S.C. 103 as obvious over Weiser (US 2016/0255857) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973, page151) and Guignabodet (FR 3075002A1 machine translation) and Emerton et al (US 5,783,793), further in view of McQuarrie, Laura (“Nested chocolate Egg’s” TrendHunter April 10, 2020, page 1 https://www.trendhunter.com/amp/trends/gold-egg).
As discussed above, Weiser teaches a method of forming a hot liquid preparation chocolate product comprising at least one shell that can be melted with heated liquid to release one or more ingredient and form a heated beverage, wherein it would have been obvious for the shell to be formed by pouring a heated liquid shell ingredient into a mold, allowing it to cool removing it from the mold, inserting a filling, and joining two shells. Weiser teaches that the outer shell can have any suitable shape and/or design (paragraph 17). Weiser teaches that multiple shells can be used to form the product, wherein the shells can be arranged in any suitable design, shape, pattern, or arrangement (paragraphs 5, 17, and 21).
Weiser is not specific to the outer shell as comprising an inner shell made by: forming a first and second portion of an inner shell by pouring a third and fourth amount of a heated liquid edible shell ingredient to a third and fourth mold portion, wherein at least one shell portion contains a second cavity; allowing the inner shell portions to cool and removing it from the mold, inserting an edible fill into the second cavity, and joining to encapsulate the edible fill ingredient within the void of the inner shell as recited in claim 10.
Regarding claim 10, McQuarrie teaches that nested chocolate eggs, wherein one chocolate shell is within another chocolate shell, provides the opportunity for creating innovative chocolate products by incorporating the nesting design; provides the opportunity to create excitement by incorporating hidden surprises within consumer products, provides an opportunity for chocolate manufactures to create unique and engaging products that stand out in the market, and provides potential for confectionary retailers to offer unique products that capture consumer interest (page 1 all).
It would have been obvious for the shell chocolate of Weiser, which could comprise multiple shells arranged in any suitable design, shape, pattern, or arrangement to be arranged in a nested design with at least two nested shells, and a filling, such as marshmallows, or another nested shell, inside the void of the inner shell, in order to form an innovative product, create excitement by incorporating hidden surprises, and/or create a product to stand out and/or offer a unique product that captured consumer interest in view of McQuarrie. It would have been further obvious for the shells to be formed in known means, including by forming a first and second portion of an inner shell by pouring a third and fourth amount of a heated liquid edible shell ingredient to a third and fourth mold portion, wherein at least one shell portion contains a second cavity; allowing the inner shell portions to cool and removing it from the mold, inserting an edible fill into the second cavity, and joining to encapsulate the edible fill ingredient within the void of the inner shell as taught by Weiser in view of Lees and Guignabodet. Thus, the claimed method is considered obvious over the teachings of the prior art.
Claim 20 is rejected under 35 U.S.C. 103 as obvious over Weiser (US 2016/0255857) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973, page151) and Guignabodet (FR 3075002A1 machine translation) and Emerton et al (US 5,783,793), further as evidenced by Rood et al (“Physics Puzzler: Everything Is Better with S’mores” pages 1-4 May 1, 2019 https://students.aip.org/observer/physics-puzzler-everything-is-better-with-smores).
As discussed above, Weiser teaches of a chocolate shell product that can be melted with heated liquid to release one or more filling ingredient, including marshmallows, and form a heated beverage. Weiser is not specific to the edible filler as having a higher melting temperature than the edible shell ingredient as recited as recited in claim 20.
As evidenced by Rood et al (Rood) marshmallows have a melting point of about 186C and chocolate has a melting point of about 30C (pages 1-2), thus the product as taught by Weiser would encompass one with a melting temperature of edible filler higher than the melting temperature of the edible shell ingredient as claimed.
Response to Arguments
Applicant’s arguments with respect to the prior art rejections 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. Applicant’s arguments are based on the newly amended claim limitation which has been addressed by the newly cited reference Emerton.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: JP 57039740 teaches the use of pinholes, i.e. apertures, in chocolate shells to prevent depressions.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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