DETAILED ACTION
Amendments made December 2, 2025 have been entered.
Claims 1, 5-111, 17-20, and 22-24 are pending.
Claims 11 and 17-20 have been withdrawn.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 102/103
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, 3-5, 7-10, and 21 under 35 U.S.C. 102(a)(1) as being anticipated by Royo et al (US 2007/0148292), or alternatively, over Royo et al (US 2007/0148292) in view of Yuri (JP6925875(grant)/ JP2017109907(application) machine translation) has been withdrawn in light of applicant’s amendments made December 2, 2025.
The rejection of claims 6, 23, and 24 under 35 U.S.C. 103 as being unpatentable over Royo et al (US 2007/0148292) further in view of Ang (WO 2009/126992), or alternatively, over Royo et al (US 2007/0148292) in view of Yuri (JP6925875(grant)/ JP2017109907(application) machine translation), further in view of in view of Ang (WO 2009/126992) has been withdrawn in light of applicant’s amendments made December 2, 2025.
The rejection of claim 22 under 35 U.S.C. 103 as being unpatentable over Royo et al (US 2007/0148292), or alternatively, over Royo et al (US 2007/0148292) in view of Yuri (JP6925875(grant)/ JP2017109907(application) machine translation) has been withdrawn in light of applicant’s amendments made December 2, 2025.
Specifically, the previous prior art rejections have been withdrawn in light of applicant’s amendments made December 2, 2025 which require a hydrocolloid blend comprising both about 5-95% pectin and about 5-95% gelatin. It is noted that although a hydrocolloid blend of gelatin and pectin was previously required (claim 1), as well as about 5-95% pectin (claim 3) or about 5-95% gelatin (claim 4), the limitations recited in claims 3 and 4 were not previously required or considered together.
Notes
The specification states that the term “about” is in general plus or minus 10% (paragraph 26), and would be understood by one of ordinary skill in the art.
The term “substantially” is defined in the specification paragraph 29 as “the qualitative condition of exhibiting total or near-total extend or degree of a characteristic or property of interest”, and would be understood by one of ordinary skill in the art.
Claims 1, 5, 7-10, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Royo et al (US 2007/0148292) in view of Ruben et al (DE 102021134027) and Suttle et al (WO 98/54977), or alternatively, over Royo et al (US 2007/0148292) in view of Yuri (JP6925875(grant)/ JP2017109907(application) machine translation) and Ruben et al (DE 102021134027) and Suttle et al (WO 98/54977).
Royo et al (Royo) teaches a multilayer confection comprising a first and second gel component, i.e. layers, each respectively comprising a gelling agent and flavoring which is the same or different from the other, wherein a first layer is above a second layer (abstract, paragraphs 26, 27, 38, 43-46, 54, and claims 5-8). Also see, for example figures 4 and 6 which shows first gelling component 16, and second gelling component 18 with one above another (paragraphs 26 and 28). Royo teaches that the first and second gel component include gelatin with one or more different properties, including different pHs and flavors (paragraphs 6, 38, and 43 and claim 12), and thus encompasses the layers as having at least two different attributes, wherein one is pH and a first layer pH is lower than the second layer pH. Royo further teaches that the gelling agent may be one or more gelling agents, selected from the group including gelatin and pectin (paragraph 30), and thus encompass or alternatively makes obvious the colloid blend as comprising pectin and gelatin. Furthermore, as Royo does not teach or require aeration, the confectionary product of Royo would encompass a confection with no more than two aerated layers as claimed.
Regarding the colloid blend as comprising about 5-95% pectin and about 5-95% gelatin as recited in claim 1, as discussed above, Royo teaches that the first and second gel component include gelatin with one or more different properties, including different pHs (paragraphs 6 and claim 12); and that the gelling agent may be one or more gelling agents, selected from the group including gelatin and pectin (paragraph 30), and thus encompass or alternatively makes obvious the colloid blend as comprising pectin and gelatin. Royo is not specific to the confectionery product as formed from a colloid blend comprising about 5-95% gelatin and about 5-95% pectin as recited in claim 1. It is noted that a confectionery product is claimed comprising the colloid blend and as the claims recite the percentage of each respective component by weight of the colloid blend (not the weight of the confection or its respective layers), and the confection comprises the blend in some unknown amount, the claimed limitations would only impart the inclusion of pectin and gelatin in some amount to the final product, wherein the gelatin and pectin were in a ratio of about 5:95 to about 95:5.
Suttle et al (Suttle) teaches multilayer confections including gummi confections with at least one hydrocolloid (abstract, Figure 2, and page 14 lines 29-36). Suttle teaches when both layers are made with both gelatin and pectin, gummi texture with less elasticity than gelatin alone, due to the presence of pectin which has a short brittle texture; and better flavor release due to the presence of pectin is obtained (page 16 lines 6-16). Suttle teaches that used alone in respective layers, gelatin provides a longer lasting chewy texture and pectin decreases setting time and provides better heat stability (page 15 line 16 through page 16 line 4).
It would have been obvious for the gelatin confectionery layers of Royo (paragraphs 6 and claim 12), to additionally comprise pectin to form a product with less elasticity and better flavor release as taught by Suttle. As Royo teaches that the gelling agent may be one or more gelling agents, selected from the group including gelatin and pectin (paragraph 30), to have gelatin or pectin from 0-100% would have been obvious, wherein it would have been further obvious to adjust the ratio of gelatin to pectin depending on the desired impacts of each respective ingredient taught by Suttle. Thus, the product as claimed, is considered obvious over the teachings of the prior art.
Regarding the pH of the first layer as from about 2.5-4.0 and the pH of the second layer as about 3.2-5.0 as recited in claim 1, as discussed above, Royo teaches different pHs within the layers, and it would have been obvious for the confection of Royo to comprise pectin in combination with gelatin. Royo teaches the pectin as high ester and/or low ester pectin (paragraphs 30 and 37). Royo is silent to the pH of the first later as from about 2.5-4.0 and the pH of the second layer as about 3.2-5.0 as recited in claim 1.
Ruben et al (Ruben) teaches multilayer pectin gel products, wherein different pectin are used so that the layers do not mix together (paragraphs 1, 7-12, 28). Ruben teaches that when high ester pectin is used, a more acidic value, i.e. a pH below 4.0 achieves the optimum thickening (paragraph 42) and when low ester pectin is used a pH above 4.0 is used to achieve optimal thickening (paragraph 43). Ruben teaches that a pH between 2.5 and 6.0 contributes to a sour taste note and/or advantageously supports pectin associated gelation (paragraph 35).
It would have been obvious for the gel confection of Royo to have a pH of 2.5-6.0 in order to contribute to the sour taste note and/or advantageously support pectin associated gelation as taught by Ruben. As Royo teaches the gel layers with different pHs and/or the use of low ester and/or high ester pectin, and Ruben teaches optimal thickening for low ester pectin is above 4.0 and below 4.0 for high ester pectin, it would have been further obvious for a first layer, with the high ester pectin, to have a pH of about 2.5 to below 4.0, and a second layer, with the low ester pectin, to have a pH of above 4.0 to 6.0. To use known pH ranges for the taught components would have been obvious to one of ordinary skill in the art.
Regarding the first and second layer as formed by pre-gelling the colloid blend, wherein the first and second layer have substantially no bleeding as recited in claim 1, the claimed limitations are considered encompassed by Royo, or alternately obvious over Royo in view of Yuri. The limitation recited in claim 1 is a product by process limitation, and therefore, the process is considered as it affects the claimed product. In the instant case, the claimed step of pre-gelling the colloid blend would allow for separation of the layers of confection, wherein the layers do not fully bleed and migrate into one another (see instant specification paragraphs 36 and 44). As Royo teaches that one gel layer is layered upon the other, as shown in figure 6, (paragraph 45), the confection of Royo would have separate layers, that did not bleed and/or migrate into one another. Alternatively, Yuri teaches the addition of welan gum to a multilayer gel confection comprising other polysaccharides, including pectin and gelatin, provides for a good texture and clearly separated layers (abstract and page 3 paragraph 1). It would have been obvious for the gel product of Royo to contain welan gum, in order to have good texture and/or clearly separated layers in view of Yuri. Thus, the product of Royo in view of Yuri would have separate layers, that did not bleed and/or migrate into one another. The position is alternatively supported as Ruben teaches multilayer pectin gel products, wherein different pectin are used so that the layers do not mix together (paragraphs 1, 7-12, 28), and as stated above, it would have been obvious to have different pectin forms.
Regarding claims 7-10, the claimed limitations are product by process limitations, and therefore, the process is considered as it affects the claimed product. In the instant case, the claimed steps would result in a set gel with separation of layers. As discussed above, Royo, or alternatively, Royo in view of Yuri make obvious a set gel product with separation of layers as claimed. Additionally, it is noted that claims 9 and 10 are optional limitations as the claims recite one particular option of the Markush group recited in claim 8. It is additionally noted that Royo teaches a composition which contains acid, including citric acid (examples).
Regarding claim 22, as discussed above, Royo teaches of a confection with gel components, i.e. layers, that differ in one or more properties including flavor (paragraphs 6 and 38). Royo does not teach a logo, image, text or design printed on an outward face of one of the first and second layers as recited in claim 22. However, the examiner takes official notice that it was known to print logos, images, text, or design on the outward face of confectionaries, for design and/or consumer appeal and/or communication. Thus, it would have been obvious for one of the confectionary layers of Royo to comprise logo, image, text or design printed on an outward face for the known purpose of design and/or consumer appeal and/or communication.
Claims 6, 23, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Royo et al (US 2007/0148292) in view of Ruben et al (DE 102021134027) and Suttle et al (WO 98/54977) further in view of in view of Ang (WO 2009/126992), or alternatively, over Royo et al (US 2007/0148292) in view of Yuri (JP6925875(grant)/ JP2017109907(application) machine translation) and Ruben et al (DE 102021134027) and Suttle et al (WO 98/54977) further in view of in view of Ang (WO 2009/126992).
As discussed above, Royo teaches of a confection with gel components, i.e. layers, that differ in one or more properties including flavor (paragraphs 6 and 38). Royo is not specific to the first layer as translucent and the second layer as opaque or visa versa as recited in claim 6, or to the first layer having a different color and texture than the second layer as recited in claim 23.
Ang teaches a multi layered confection comprising pectin and gelatin (abstract and page 17 lines 6-15, page 18 lines 4-8, page 26 lines 12-13). Ang teaches that the use of different colors and/or color intensities provide a new and interesting visual effect (page 3 lines 5-11 and page 29 lines 25-29). Ang teaches that the use of a translucent layer with a colored layer provides for an attractive luminescence or colored sheen to the product (page 3 line 32 through page 4 line 3). Ang teaches that the use of a foamed casing, i.e. an opaque layer, with a colored translucent layer, provides for an interesting opaque appearance with a glossy colored area on one side (page 29 lines 34-37and page 32). Ang teaches a color pigment and foaming to create a colored opaque casing of desired color depth (table page 32, last row). Ang teaches that the color can be selected to be appropriate for a given flavor (page 19 lines 28-29), and that the choice of flavor is generally based on the desired flavor (page 20 lines 10-12).
Regarding the first layer as translucent and the second layer as opaque or visa versa as recited in claim 6, or the first layer as having a different color than the second layer as recited in claim 23, it would have been obvious for the first layer and the second layer to have different colors and/or color intensities to provide a new and interesting visual effect as taught by Ang. It would have been further obvious for one layer to be opaque and for the other to be translucent to provide for an interesting opaque appearance with a glossy colored area on one side as taught by Ang.
Regarding the first layer as having a different texture than the second layer as recited in claim 23, as discussed above, Royo teaches that the confectionary layers differ in one or more properties. Royo further teaches that the texture of the pectin-based gel components can be affected to increase hardness, i.e. texture (paragraph 37). It would have been obvious to one of ordinary skill in the art for the confectionary layers of Royo to have different textures in order to provide a confection with both a harder and softer texture in view of Royo.
Response to Arguments
Applicant's arguments filed December 2, 2025 have been fully considered but they are not persuasive.
Applicant argues that there is no specific disclosure in Royo of pectin and gelatin together. This argument is not convincing as the newly recited limitation of the confection comprising a colloid blend with about 5-95% pectin and about 5-95% gelatin has been addressed in view of Suttle. Regardless, it is noted that by teaching one or more hydrocolloid, wherein the hydrocolloid are selected from a group including gelatin and pectin (paragraph 30), the teachings of Royo would encompass or at least make obvious a blend with gelatin and pectin.
Applicant argues that the differences in pH taught by Royo are related to delivery of flavor and have nothing to do with the use of pectin, and that although Rubin teaches different pectins do better at different pHs, Ruben does not teach of adjusting the pH of the composition based on the gelling agent. First it is noted that Royo does teach adjusting pH in pectin gels to affect firmness (paragraph 37). Regardless, this 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). To adjust the pH for the reasons stated previously, and above is considered obvious over the prior art. As discussed above, Royo teaches different pHs within the layers, and it would have been obvious for the confection of Royo to comprise pectin in combination with gelatin. Royo teaches the pectin as high ester and/or low ester pectin (paragraphs 30 and 37). Ruben teaches multilayer pectin gel products, wherein different pectin are used so that the layers do not mix together (paragraphs 1, 7-12, 28). Ruben teaches that when high ester pectin is used, a more acidic value, i.e. a pH below 4.0 achieves the optimum thickening (paragraph 42) and when low ester pectin is used a pH above 4.0 is used to achieve optimal thickening (paragraph 43). Thus, to use two different types of pectin within each respective layer, wherein each layer had an ideal pH for said pectin would have been an obvious suggestion of the prior art.
Applicant argues that just because Figure 6 of Royo shows two distinct layers, that does not mean there would be no bleeding in the product of Royo. This argument is not convincing as it does not consider the full position of the office which also cited paragraph 45 of Royo which teaches one layer is upon the other.
Applicant argues that there is no motivation to prevent bleeding, and thus include welan gum in the product of Royo because the product of Royo is in an outer shell. First it is noted that the argument does not consider the full position of the office which also stated it would have been obvious to include welan gum for its good texture. Regardless, the argument is not convincing as a candy can be bit into, such that the consumer sees it. There is no requirement that a candy must be swallowed whole so that the consumer does not see inside as argued.
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).
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792