DETAILED ACTION
Amendments made March 18, 2026 have been entered.
Claims 1-27 are pending;
Claims 20-27 have been withdrawn.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.
Specification
The objection to the disclosure has been withdrawn in light of applicant’s amendments made March 18, 2026.
Claim Objections
The objection to claims 2, 4, 6, 8, 16, and 18 has been withdrawn in light of applicant’s amendments made March 18, 2026.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 1-18 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made March 18, 2026.
Claim 19 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 19 recites “mixing the ingredients comprising a polyol bulk sweetener”. It is unclear as to if the claim requires a second polyol bulk sweetener, or is referring to “the polyol bulk sweetener” previously recited in claim 1, from which claim 19 depends.
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 1-5, 7, and 9-19 under 35 U.S.C. 103 as being unpatentable over Marin et al (US 2011/0159142 A1) in view of Lagache et al (US 2015/0282499 A1) has been withdrawn in light of applicant’s amendments made March 18, 2026 which limit the temperature for stoving to 40-80C.
Claims 1-7 and 9-19 are rejected under 35 U.S.C. 103 as being unpatentable over Marin et al (US 2011/0159142 A1) in view of Lagache et al (US 2015/0282499 A1) and Zier et al (US 2018/0055066).
Marin et al (Marin) teaches sugar free confectionery products, wherein the texture can be controlled as desired to achieve a chewy candy (abstract and paragraphs 25-29 and 169). Marin teaches that the method of making the confectionary comprises:
Cooking a base portion comprising at least two sugar polyols, i.e. ingredients, to obtain a cooked mass at about 128-136C;
Optionally, adding ingredients including a texturizing agent, a fat, and emulsifier
Cooling the mixture to about 40-55C;
Adding 2-15% of a fondant portion comprising a polyol, including crystalline particles, to the cooled mixture to form a final mixture;
Tempering; and
Cutting or otherwise forming the tempered product into desired shapes and sizes, and/or if desired, allowing the tempered material to stand for a period of time to allow polyol crystal formation (paragraphs 12, 47, 88, 89, 91, 174, 287-291, 294, 295, and 391).
Regarding cooking to obtain a mass having a moisture content of 4-8% as recited in claim 1, as discussed above, Marin teaches cooking a base portion. Marin further teaches that the level of chewiness is modulated by the amount of moisture present, and the cook temperature is used to prepare the confectionary composition to determined moisture (paragraphs 279 and 286-287). Marin teaches that the moisture content of the confection is generally no more than 12%, and can be no more than 10%, including from about 6.0-8.0% (paragraphs 59 and 285). Thus, it would have been obvious to one of ordinary skill in the art for the cooking step of Marin to cook until a moisture content of less than 12%, such as and including no more than about 10% and/or from about 6-8%, in order to achieve the desired moisture content in the final product. As no other cooking steps are disclosed, it would have been obvious for said cooking to achieve the desired target moisture.
Regarding adding a seeding material to the cooked mass while mixing as recited in claim 1, and to the seeding material as about 0.75-15% crystalline isomalt as recited in claim 17, as discussed above, Marin teaches that 2-15% of a fondant portion comprising a polyol is added to the cooled and cooked base to form a final mixture. Thus, the teachings of Marin, which arrive at a final mixture would suggest adding of the fondant to the cooked mass while mixing. Furthermore, Marin teaches that graining can be affected by incorporating a crystalline polyol into the confectionary composition and that the tendency of a polyol to crystalize by seeding will adjust the texture from a harder texture during manufacture to a softer texture at the time of consumption; and that the fondant portion is provided to impart texture to the confection, and that the inclusion of the fondant with crystalline particles of sugar polyol modulate graining (paragraphs 29, 172, 174, 182, and 282). Marin teaches that for a chewy candy, without the use of a fondant, crystalline polyols are used to promote graining (paragraph 215), and that the confectionery making process may further including graining by seeding (paragraph 295). Marin teaches that generally the higher degree of crystallization, the softer the bite, and that by controlling crystallization, one can control the product texture (paragraph 280). Marin teaches the fondant portion comprises a crystalline polyol, selected from the group including isomalt (paragraphs 32-33, 182, and 184). Thus, to produce a soft chewy confectionery by adding 2-15% seeding material of crystalline isomalt, to the cooled cooked mass while mixing would have been obvious in view of Marin in order to achieve a soft and mixed product.
Regarding stoving the mixed mass at 40-80C to obtain a stoved mass as recited in claim 1, preferably 40-60C as recited in claim 6, or wherein stoving is performed for a time sufficient to increase crystallization level of the stoved mass compared to the mixed mass as recited in claim 2, it is noted that the term “stoving” refers to a process of holding a candy mass in a constant temperature environment (see instant specification paragraph 27). Marin teaches that the tempered material may be allowed to stand for a period of time to allow polyol crystal formation (paragraph 294), and that polyol crystal formation provides a soft texture, wherein the higher degree of crystallization, the softer the bite, and that by controlling crystallization, one can control the product texture (paragraph 280). Thus, it would have been obvious for the confection of Marin to specifically be stoved in order to allow for crystallization of the candy mass, and provide a soft bite. Furthermore, Zier et al (Zier) teaches forming crystals within a confectionery mixier for obtaining a soft chew at a temperature of below 80C, including from 30-50C (abstract and paragraphs 10, 25-26, 48, 76, 84, 95, 97, and 98). It would have been obvious for the softening and crystallization of Marin to be at known temperatures, including 30-50C as taught by Zier. To use known temperatures to achieve a known result in a taught process would have been obvious and well within the purview of one of ordinary skill in the art. Additionally, it is noted that as Marin does not limit the temperature for stoving (all) one of ordinary skill in the art would have a reasonable expectation of success in using known temperatures for crystallization.
Regarding forming of the stoved mass into a shape as recited in claim 1, although Marin teaches shaping the tempered mixture and makes obvious stoving the tempered mixture, Marin is not specific to the order of the steps. Thus, there are only a limited number of options a person of ordinary skill in the art would have when practicing the method of Marin, either, stove before or after forming into the desired shape, and thus the claimed limitation is considered obvious as a matter of routine determination. Furthermore, Marin teaches that the confection is pulled before tempering (see at least paragraph 41). Lagache et al (Lagache) teaches a confection which is cooked, cooled below 80C, drawn, then left to stand in order to cool between 45-55C and recover texture, and then shaped, cut, and wrapped (paragraphs 186, 192, 194, 196-199, and 246-252). It would have been obvious to hold/stove the confection after the pulling of Marin in order to allow it to cool and recover it’s texture before shaping in view of Lagache.
Regarding claim 3, Marin teaches that the hardness value of the confection is measured with peak force (paragraph 453). As Marin teaches of adjusting the hardness of the confection and the hardness adjustment as linked to crystallization (paragraphs 29, 172, 174, 182, 280, and 282), the teachings of Marin would encompass or at least make obvious a crystallization level of the candy mass as measured, and thus monitored, by testing the peak force of a candy mass.
Regarding claims 4 and 5, as discussed above Marin teaches stoving for inducing crystallization and increasing the softness of the product, as well as measuring the peak force to test the hardness of the product. It would have been obvious for the process of Marin to include stoving for a desired amount of time such that the desired hardness/peak force was achieved, and thus the claimed limitations are considered an obvious limitation of the prior art.
Regarding claim 7, as the claim recites wherein the time is at least 30 minutes when the stoving is at 50C, and Marin exemplifies of stoving at 34-36C, wherein stoving at temperatures less than 50C were obvious in view of Zier, the claimed limitation is optional. It is noted that the claim does not require stoving at 50C, only that if stoving is at 50C that the time for stoving be at least 30 minutes.
Regarding claims 9-12, Marin teaches the base portion comprises a crystalline and amorphous polyol, wherein the crystalline polyol is selected from the group including isomalt, and the amorphous polyol is selected from the group including hydrogenated starch hydrolysate (paragraphs 32-36). Marin teaches the confection contains about 70-90% polyol (paragraph 37), and ratio of isomalt to hydrogenated starch hydrolysate in the confection is about 30:70 to 50:50, or about 75:25 to 55:45 in another embodiment (paragraph 53). Also see paragraphs 51, 52, 88, 176-179, 182-184, and 191-192. Thus, the teachings of Marin encompass the confection as comprising isomalt and hydrogenated starch syrup within the claimed ranges. For example, at a 50:50 ratio, the confection would comprise about 35-45% isomalt and about 35-45% hydrogenated starch hydrolysate syrup.
Regarding claims 13-15, Marin teaches that the additional ingredients include about 0.5-3.0% of a texturizing agent selected from the group comprising gums including gum Arabic and other hydrocolloids; about 2.0-6.0% fat selected from the group including palm oil; and 0.1-1.0% emulsifiers selected from the group including lecithin, fatty acid monoglycerides including distilled monoglycerides, and combinations thereof (paragraphs 60, 63-65, 67, 222, 223, 226-228, 231, 233-235, 334, 410, and tables 1, 3, 4, and 6). Marin further teaches that the additional ingredients can be combined with the base portion prior to the fondant, with or after the addition of the fondant, or be part of the base portion (paragraphs 219-221). Thus, for the additional ingredients to be in the base for cooking would have been obvious in view of Marin. Furthermore, it is noted that to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”.
Regarding mixing of the cooked mass and seeding material at about 45-60C as recited in claim 18, as discussed above the teachings of Marin make obvious seeding of the cooked mass at the time of addition of the fondant composition, i.e. after cooling the cooked mass. Marin teaches the mixture is cooled to about 45-50C and then the fondant/seeding composition is added and mixed in (paragraphs 12, 289, and 411). Thus, it would have been obvious for the cooked mass and seeding material to be mixed at about 45-50C in order to maintain the temperature taught by Marin.
Regarding the method as further comprising mixing the ingredients comprising a polyol bulk sweetener, cooling the cooked mass prior to adding the seeding mixture, cutting the desired shape into pieces; coating the pieces; and/or packaging the pieces as recited in claim 19, as discussed above, the teachings of Marin make obvious mixing ingredients comprising a polyol bulk sweetener, cooling the cooked mass prior to adding the seeding material, and cutting the desired shape into pieces. Marin is not specific to the cut shapes as packaged, however, does teaches some confectionery embodiments may be packaged (paragraphs 159, 358, 367, and 417). It would have been obvious for the final product of Marin, i.e. the cut shape, to be packaged as taught by Marin for the known benefits of packaging to prevent contamination during storage and/or transport. The examiner takes official notice that this was a known benefit of packaging.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Marin et al (US 2011/0159142 A1) in view of Lagache et al (US 2015/0282499 A1) and Alorair (“Confectionery Humidity Control” pages 1-2 December 2020)
Marin et al (Marin) teaches sugar free confectionery products, wherein the texture can be controlled as desired to achieve a chewy candy (abstract and paragraphs 25-29 and 169). Marin teaches that the method of making the confectionary comprises:
Cooking a base portion comprising at least two sugar polyols, i.e. ingredients, to obtain a cooked mass at about 128-136C;
Optionally, adding ingredients including a texturizing agent, a fat, and emulsifier
Cooling the mixture to about 40-55C;
Adding 2-15% of a fondant portion comprising a polyol, including crystalline particles, to the cooled mixture to form a final mixture;
Tempering; and
Cutting or otherwise forming the tempered product into desired shapes and sizes, and/or if desired, allowing the tempered material to stand for a period of time to allow polyol crystal formation (paragraphs 12, 47, 88, 89, 91, 174, 287-291, 294, 295, and 391).
Regarding cooking to obtain a mass having a moisture content of 4-8% as recited in claim 8, as discussed above, Marin teaches cooking a base portion. Marin further teaches that the level of chewiness is modulated by the amount of moisture present, and the cook temperature is used to prepare the confectionary composition to determined moisture (paragraphs 279 and 286-287). Marin teaches that the moisture content of the confection is generally no more than 12%, and can be no more than 10%, including from about 6.0-8.0% (paragraphs 59 and 285). Thus, it would have been obvious to one of ordinary skill in the art for the cooking step of Marin to cook until a moisture content of less than 12%, such as and including no more than about 10% and/or from about 6-8%, in order to achieve the desired moisture content in the final product. As no other cooking steps are disclosed, it would have been obvious for said cooking to achieve the desired target moisture.
Regarding adding a seeding material to the cooked mass while mixing as recited in claim 8, as discussed above, Marin teaches that 2-15% of a fondant portion comprising a polyol is added to the cooled and cooked base to form a final mixture. Thus, the teachings of Marin, which arrive at a final mixture would suggest adding of the fondant to the cooked mass while mixing. Furthermore, Marin teaches that graining can be affected by incorporating a crystalline polyol into the confectionary composition and that the tendency of a polyol to crystalize by seeding will adjust the texture from a harder texture during manufacture to a softer texture at the time of consumption; and that the fondant portion is provided to impart texture to the confection, and that the inclusion of the fondant with crystalline particles of sugar polyol modulate graining (paragraphs 29, 172, 174, 182, and 282). Marin teaches that for a chewy candy, without the use of a fondant, crystalline polyols are used to promote graining (paragraph 215), and that the confectionery making process may further including graining by seeding (paragraph 295). Marin teaches that generally the higher degree of crystallization, the softer the bite, and that by controlling crystallization, one can control the product texture (paragraph 280). Marin teaches the fondant portion comprises a crystalline polyol, selected from the group including isomalt (paragraphs 32-33, 182, and 184). Thus, to produce a soft chewy confectionery by adding 2-15% seeding material of crystalline isomalt, to the cooled cooked mass while mixing would have been obvious in view of Marin in order to achieve a soft and mixed product.
Regarding stoving the mixed mass at 30-80C to obtain a stoved mass as recited in claim 8, it is noted that the term “stoving” refers to a process of holding a candy mass in a constant temperature environment (see instant specification paragraph 27). Marin teaches that the tempered material may be allowed to stand for a period of time to allow polyol crystal formation (paragraph 294), and that polyol crystal formation provides a soft texture, wherein the higher degree of crystallization, the softer the bite, and that by controlling crystallization, one can control the product texture (paragraph 280). Marin is not specific to general parameters for stoving, however, exemplifies the temperature mass as allowed to stand at 34-36C for at least 8 hours in Example 1, paragraph 411. Thus, it would have been obvious for the confection of Marin to be stoved at about 34-36C for about 8 hours or more, in order to allow for crystallization of the candy mass, and provide a soft bite.
Regarding forming of the stoved mass into a shape as recited in claim 8, although Marin teaches shaping the tempered mixture and makes obvious stoving the tempered mixture, Marin is not specific to the order of the steps. Thus, there are only a limited number of options a person of ordinary skill in the art would have when practicing the method of Marin, either, stove before or after forming into the desired shape, and thus the claimed limitation is considered obvious as a matter of routine determination. Furthermore, Marin teaches that the confection is pulled before tempering (see at least paragraph 41). Lagache et al (Lagache) teaches a confection which is cooked, cooled below 80C, drawn, then left to stand in order to cool between 45-55C and recover texture, and then shaped, cut, and wrapped (paragraphs 186, 192, 194, 196-199, and 246-252). It would have been obvious to hold/stove the confection after the pulling of Marin in order to allow it to cool and recover it’s texture before shaping in view of Lagache.
Regarding stoving in an enclosed chamber at a relative humidity of 5-30% as recited in claim 8, as discussed above Marin is silent to the general conditions for stoving. Alorair teaches humidity is important in processing confections, and that relative humidity should remain around 30-70% to ensure ingredients maintain the best moisture (page 1 paragraphs 1 and 2). Thus, it would have been obvious when processing the confection of Marin to include an enclosed chamber with a relative humidity of 30-70%, which encompasses the claimed range, in order to maintain the ingredients at the best moisture in view of Alorair. To use known confectionery parameters when processing would have been obvious and well within the purview of one of ordinary skill in the art. Furthermore, it is noted that enclosed chambers were known, and the use of an enclosed chamber is specifically considered obvious in order to maintain and control the relative humidity within the disclosed range.
Allowable Subject Matter
The notice of allowable subject matter in claim 8 has been withdrawn in light of applicant’s amendments made March 18, 2026 which broaden the conditions of stoving to include a relative humidity of 30% which was known in the art as stated in the previous reasons for allowance and used to distinguish the previously claimed range of 5-20%.
Response to Arguments
Applicant's arguments filed March 18, 2026 have been fully considered but they are not persuasive.
In response to applicant's argument that Lagache is not a sugar free or seeded confection and that Lagache teaches that glucose syrup was known to prevent crystallization of sugar and thus it would not have been obvious to modifying the teachings of Marin with Lagache, the argument is not convincing as the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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, applicant argues that there is no motivation to combine Marin with Lagache. This argument is not convincing as Marin teaches a holding step, and Lagache teaches a confection which is cooked, cooled below 80C, drawn, then left to stand in order to cool between 45-55C and recover texture, and then shaped, cut, and wrapped (paragraphs 186, 192, 194, 196-199, and 246-252). It would have been obvious to hold/stove the confection after the pulling of Marin in order to allow it to cool and recover it’s texture before shaping in view of Lagache.
In response to applicant's argument that Zier requires mixing for crystallization and thus is not a static process, the argument is not convincing as the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant notes that in Examples 2-3 the advantages of the application are discussed. This not convincing to withdraw the rejections at least because it is not commensurate in scope with the claims. The examples require a specific composition, cooking time, seeding agent and amount, and are limited to only 6% moisture in the cooking step, and stoving at 50C RH 10% for 2 hours, which does not reflect the full the breadth of the claimed methods.
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