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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
The previous 112 rejections are withdrawn due to applicant’s arguments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-8,21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hey Fitzy(A Halloween Tradition – Popcorn Balls) in view of Duffy(US 2015/0272176) and Nexus Ingredients.com(Soluble Corn & Tapioca Fiber).
Regarding claim 1, Hey Fitzy aka “Fitzy” teaches a popcorn ball snack product consisting essentially of a popcorn and a binder syrup. Fitzy does not specifically teach that the binder syrup comprises the claimed binder ingredient.
However, Duffy teaches a popcorn-based snack comprising a binder and a grain such as puffed corn(popcorn)(abstract, para 6). Duffy teaches that the binder comprises
about 30 to about 65% tapioca syrup(para 58-59)
About 0.1 to about 12% fiber(para 65)
a sweetener in the form of glycerin(para 59)
about 0 to about 20% sugar(para 59)
0.05% to about 3% salt(para 62)
About 1 to 6% cellulose(para 60)
About 1 to 6% gum Arabic(para 60)
About 0.1 to about 10% sunflower oil(para 61)
About 0.5 to about 2% soy lecithin(para 66)
Duffy does not teach about 20-30% tapioca fiber. However, Duffy teaches the use of fiber additives(para 29-32). Furthermore, Nexus Ingredient.com, aka “Nexus”, teaches the use of tapioca fiber in a binder syrup in order to increase binding ability and increase content of nutritional fibers. It would have been obvious to include tapioca fiber as the fiber additive in Duffy as taught in Nexus in order to in order to increase binding ability and increase content of nutritional fibers.
It would have been obvious to adjust the amount of tapioca fiber depending on the fiber content and health benefits desired in the product.
Duffy does not specifically teach that the glycerin is present in amount of 1-6%. However, since Duffy teaches that glycerin is a sweetener(para 59), it would have been obvious to adjust the amount of glycerin depending on the sweetness desired.
Duffy teaches that the binder syrup provides a desirable taste and flavor to the composition(para 12). It would have been obvious to use the binder of Duffy as the binder for the popcorn balls in Fitzy since the binder provides a desirable taste and flavor to the composition and because it can be used to bind grains such as popcorn.
Only popcorn and the binder components in Duffy are required so the references meet the “consisting essentially of” limitation.
Regarding claim 2, Fitzy in view of Duffy is silent on the water activity of the snack product. However, since a low water activity is important for shelf life, it would have been obvious to minimize the water activity of the snack product to less than or equal to about 0.3 as claimed.
Regarding claims 3-4, Duffy teaches that the composition comprises about 60% to about 85% grain(popcorn)(para 6) and about 35% to about 45% binder syrup(para 56). Therefore, the ratio of binder to popcorn is about 1:1 and not 1.25:1. Duffy also does not teach 54% binder. However, the purpose of the binder is to bind together the grain components. Therefore, it would have been obvious to adjust the binder amount in order to achieve a cohesive product.
Regarding claims 5-6, Duffy teaches that the popcorn-based snack comprises about 1% to about 10% chocolate chips(para 18). Duffy teaches that the composition comprises about 60% to about 85% grain(popcorn)(para 6) and about 35% to about 45% binder syrup(para 56). “About 45%” would comprise 49% as claimed.
Regarding claim 7, Fitzy teaches a popcorn ball snack product comprising a popcorn and a binder syrup. Fitzy does not specifically teach that the binder syrup comprises the claimed binder ingredient.
Duffy teaches a popcorn-based snack comprising a binder and a grain such as puffed corn(popcorn)(abstract, para 6). Duffy teaches that the binder comprises
about 30 to about 65% tapioca syrup(para 58-59)
About 0.1 to about 12% fiber(para 65)
a sweetener in the form of glycerin(para 59)
about 0 to about 20% sugar(para 59)
0.05% to about 3% salt(para 62)
About 1 to 6% cellulose(para 60)
About 1 to 6% gum Arabic(para 60)
About 0.1 to about 10% sunflower oil(para 61)
About 0.5 to about 2% soy lecithin(para 66)
Duffy does not teach about 23.5-24.5% tapioca fiber. However, Duffy teaches the use of fiber additives(para 29-32). Furthermore, Nexus Ingredient.com, aka “Nexus”, teaches the use of tapioca fiber in a binder syrup in order to increase binding ability and increase content of nutritional fibers. It would have been obvious to include tapioca fiber as the fiber additive in Duffy as taught in Nexus in order to in order to increase binding ability and increase content of nutritional fibers.
It would have been obvious to adjust the amount of tapioca fiber depending on the fiber content and health benefits desired in the product.
Duffy does not specifically teach that the glycerin is present in amount of about 3.0-4.0wt%. However, since Duffy teaches that glycerin is a sweetener, it would have been obvious to adjust the amount of glycerin depending on the sweetness desired.
Duffy teaches that the binder syrup provides a desirable taste and flavor to the composition(para 12). It would have been obvious to use the binder of Duffy as the binder for the popcorn balls in Fitzy since the binder provides a desirable taste and flavor to the composition and because it can be used to bind grains such as popcorn.
Only popcorn and the binder components in Duffy are required so the references meet the “consisting essentially of” limitation.
Regarding claim 8, Duffy teaches a popcorn-based snack comprising a binder and a grain such as puffed corn(popcorn)(abstract, para 6). Duffy teaches that the binder comprises
about 30 to about 65% tapioca syrup(para 58-59)
About 0.1 to about 12% fiber(para 65)
a sweetener in the form of glycerin(para 59)
about 0 to about 20% sugar(para 59)
0.05% to about 3% salt(para 62)
About 1 to 6% cellulose(para 60)
About 1 to 6% gum Arabic(para 60)
About 0.1 to about 10% sunflower oil(para 61)
About 0.5 to about 2% soy lecithin(para 66)
Duffy does not teach about 24.0% tapioca fiber. However, Duffy teaches the use of grain fiber. Therefore, it would have been obvious to use 20-30% tapioca fiber since it is a known grain. It would have been obvious to adjust the amount of tapioca fiber depending on the fiber content and health benefits desired in the product.
Duffy does not specifically teach that the glycerin is present in amount of about 3.7wt%. However, since Duffy teaches that glycerin is a sweetener, it would have been obvious to adjust the amount of glycerin depending on the sweetness desired.
Duffy teaches that the binder syrup provides a desirable taste and flavor to the composition(para 12). It would have been obvious to use the binder of Duffy as the binder for the popcorn balls in Fitzy since the binder provides a desirable taste and flavor to the composition and because it can be used to bind grains such as popcorn.
Only popcorn and the binder components in Duffy are required so the references meet the “consisting essentially of” limitation.
Regarding claim 21, Fitzy teaches a popcorn ball snack product consisting of a popcorn and a binder syrup. Fitzy does not specifically teach that the binder syrup comprises the claimed binder ingredient.
However, Duffy teaches a popcorn-based snack comprising a binder and a grain such as puffed corn(popcorn)(abstract, para 6). Duffy teaches that the binder comprises
about 30 to about 65% tapioca syrup(para 58-59)
About 0.1 to about 12% fiber(para 65)
a sweetener in the form of glycerin(para 59)
about 0 to about 20% sugar(para 59)
0.05% to about 3% salt(para 62)
About 1 to 6% cellulose(para 60)
About 1 to 6% gum Arabic(para 60)
About 0.1 to about 10% sunflower oil(para 61)
About 0.5 to about 2% soy lecithin(para 66)
Duffy teaches that the composition comprises about 35% to about 45% binder syrup(para 56).
Duffy does not teach about 20-30% tapioca fiber. However, Duffy teaches the use of fiber. Therefore, it would have been obvious to use 20-30% tapioca fiber since it is a known grain. It would have been obvious to adjust the amount of tapioca fiber depending on the fiber content and health benefits desired in the product.
Duffy does not specifically teach that the glycerin is present in amount of 1-6%. However, since Duffy teaches that glycerin is a sweetener, it would have been obvious to adjust the amount of glycerin depending on the sweetness desired.
Duffy teaches that the binder syrup provides a desirable taste and flavor to the composition(para 12). It would have been obvious to use the binder of Duffy as the binder for the popcorn balls in Fitzy since the binder provides a desirable taste and flavor to the composition and because it can be used to bind grains such as popcorn.
Duffy teaches that the popcorn-based snack comprises about 1% to about 10% chocolate chips(para 18). It would have been obvious to include chocolate chips in with the popcorn snack of Fitzy since it is a desirable additive with popcorn and grain products.
Response to Arguments
Applicant's arguments filed 6/26/2026 have been fully considered but they are not persuasive.
The applicant argues that Duffy meet the “consisting essentially of” limitation because it contains other components such as oats. However, the primary reference Fitzy contains only popcorn and binder. The applicant is improperly bringing in every aspect of Duffy into Fitzy instead of reading the reference in combination. Fitzy pertains to popcorn balls alone with a binder and does not teach the presence of oats. As such, one of ordinary skill in the art could easily adjust the desired grain(corn or otherwise) depending on the product desired. The binder of Duffy merely functions to bind the popcorn kernels as claimed.
The applicant argues that Duffy does not teach the use of tapioca fiber. However, the new reference” Nexus” teaches the use of tapioca fiber in a binder composition. See the new rejection above.
The applicant argues that it wouldn’t have been obvious to adjust the amount of glycerin in Duffy. However, Duffy specifically teaches that glycerin is used as a sweetener, which consequently provides a sweet taste(para 59). Since Duffy teaches that glycerin is a sweetener, it would have been obvious to adjust the amount of glycerin depending on the sweetness desired.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
Prosecution Insights