DETAILED ACTION
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 § 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.
Claims 1, 2, 4-12 and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kubo USPGPub 20120164291.
Regarding claims 1, 5, 8, 11, 15 and 18, Kubo teaches a soft candy comprising a sugar, a glucide that inhibits crystallization of the sugar (starch syrup) and a thickener (gelatin). [0020,0022,0025] The soft candy of Kubo is interpreted to read on the base composition recited in claims 1 and 11.
The soft candy of Kubo has a specific gravity of 1.25 or less and a ratio of sugar to starch syrup of 50:50 to 95:5. [0032,0040] These value overlap or encompass the ranges of these values recited in claims 1, 11 and 18. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Regarding the limitations in claims 8 and 11 directed to the area of bubbles present when the base composition is shaped into a soft candy, these limitations are an intended use of the recited base composition. The soft candy of Kubo is capable of being shaped such that the bubble limitations are satisfied and therefore these limitations do not provide a patentable distinction from Kubo. Therefore, claims 1, 5, 8, 11, 15 and 18 are obvious over Kubo.
Regarding claims 2 and 12, the soft candy of Kubo comprises 6-14 wt% water. [0040] In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Regarding claims 4 and 14, the soft candy of Kubo comprises sugar with fine crystals having a particle size less than 30 µm. [0039]
Regarding claims 6 and 16, the soft candy of Kubo further comprises rapeseed oil. [0061]
Regarding claims 7 and 17, the soft candy of Kubo further comprises an emulsifier such as sucrose fatty acid ester, sorbitan fatty acid ester or lecithin. [0024]
Regarding claims 9, 10, 19 and 20, Kubo teaches what has been recited above but is silent regarding how the soft candies are packaged.
The examiner takes official notice that packaging candy, including packaging unwrapped candy in bulk containers, is universally known in the candy arts. As such, the packaging limitations recited in claims 9, 10, 19 and 20 would have been obvious to one of ordinary skill in the art at the time the application was filed because they were universally known means of packaging candy. Therefore, the limitations of claims 9, 10, 19 and 20 do not provide a patentable distinction over the prior art.
It is noted by the examiner that the official notice taken by the examiner that packaging candy, including packaging unwrapped candy in bulk containers, is universally known in the candy arts is taken to be admitted prior art because applicant failed to traverse the examiner' s assertion of official notice. (See MPEP 2144.03C)
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Kubo USPGPub 20120164291 as applied to claims 1 and 11 above in further view of Sato JP2010124791 (machine translation provided herein relied on for reference).
Claims 21-26 are rejected under 35 U.S.C. 103 as being unpatentable over Kubo USPGPub 20120164291 and Sato JP2010124791.
Regarding claims 3 and 13, Kubo teaches what has been recited above but is silent regarding the calcium content of the soft candy disclosed.
Sato teaches a porous candy produced by incorporating finely pulverized calcium carbonate and an acidulant into a candy base. [0012,0018] The amount of carbonate and acidulant added to the candy is 15% by weight or less. [0017]
Kubo and Sato are both directed to confectionary compositions. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the foaming system of Sato in the candy of Kubo in order to produce a candy having art recognized desirable porosity. The proportion of calcium carbonate disclosed to be suitable by Kubo encompasses the calcium content recited in claims 3 and 13. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05 I)
Regarding claims 21 and 22, Kubo teaches a method of forming a soft candy comprising[0036,0037,0070,0071]:
Mixing sugar, a glucide that inhibits crystallization of the sugar (starch syrup) and water to prepare a soft candy base stock solution
Boiling down the soft candy base stock solution to form a soft candy base
Shaping the candy
Kubo is silent regarding a foaming agent and acidulant.
Sato teaches a porous candy produced by incorporating finely pulverized calcium carbonate(foaming agent) and an acidulant into a candy base. [0012,0018] The calcium carbonate and acidulant are added after the base candy composition has been mixed. [0021]
Kubo and Sato are both directed to confectionary compositions. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the foaming system of Sato in the candy of Kubo in order to produce a candy having art recognized desirable porosity. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have added the foaming system of Sato after formation of the soft candy base of Kubo since Sato teaches added these ingredients after the base composition has been formed. The acidulant and calcium carbonate would necessarily produce bubbles when mixed in the base composition. As such, the limitations of claims 21 and 22 are rendered obvious by the modification of Kubo with Sato.
Regarding claim 23, Kubo teaches what has been recited above but is silent regarding how the soft candies are packaged.
The examiner takes official notice that packaging candy, including packaging unwrapped candy in bulk containers, is universally known in the candy arts. As such, the packaging limitations recited in claim 23 would have been obvious to one of ordinary skill in the art at the time the application was filed because they were universally known means of packaging candy.
It is noted by the examiner that the official notice taken by the examiner that packaging candy, including packaging unwrapped candy in bulk containers, is universally known in the candy arts is taken to be admitted prior art because applicant failed to traverse the examiner' s assertion of official notice. (See MPEP 2144.03C)
Regarding claim 24, Kubo teaches mixing thickener comprising gelatin in the adding step. [0046]
Regarding claim 25, the method of Kubo further comprises adding rapeseed oil during the mixing step. [0061]
Regarding claim 26, the method of Kubo further comprises adding an emulsifier such as sucrose fatty acid ester, sorbitan fatty acid ester or lecithin during the mixing step. [0024,0061]
Response to Arguments
Applicant's arguments filed 17 October 2025 have been fully considered but they are not persuasive.
Applicant’s assertions on pages 6 and 7 of the remarks regarding claims 1-20 are addressed in the new grounds of rejection above.
Applicant asserts on pages 7 and 8 of the remarks that the foaming system of Sato is not relevant to Kubo because Sato teaches hard candy and Kubo teaches soft candy. Applicant’s assertion that the citation from Sato demonstrates that there was no reasonable expectation of success is inaccurate. While Sato identifies that the methods of producing bubbles in soft candies is not suitable for hard candies, there is not indication in Sato that the methods of producing bubbles in hard candies are not suitable for soft candies. Sato merely identifies that hard candies do not have a moisture content suitable for the foaming agents generally employed in soft candies. Clearly, pulverized calcium carbonate and acidulant could be readily mixed with soft candy to produce bubbles and this method of bubble formation was known to those of ordinary skill in the confectionary arts as evidenced by Sato. As such, applicant’s assertions are not found persuasive.
Applicant asserts on page 9 of the remarks that modifying Kubo with Sato would render Kubo unsuitable for its intended purpose. However, "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) (The invention was directed to an epoxy impregnated fiber-reinforced printed circuit material. The applied prior art reference taught a printed circuit material similar to that of the claims but impregnated with polyester-imide resin instead of epoxy. The reference, however, disclosed that epoxy was known for this use, but that epoxy impregnated circuit boards have "relatively acceptable dimensional stability" and "some degree of flexibility," but are inferior to circuit boards impregnated with polyester-imide resins. The court upheld the rejection concluding that applicant’s argument that the reference teaches away from using epoxy was insufficient to overcome the rejection since "Gurley asserted no discovery beyond what was known in the art." Id. at 554, 31 USPQ2d at 1132.). Furthermore, "[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). (MPEP 2123)
Applicant asserts on page 9 of the remarks that the claimed invention provides effects that are not disclosed or suggested by the prior art. However, applicant has failed to demonstrate that these effects are commensurate in scope with the instantly pending claims and therefore this assertion is not found persuasive.
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 Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793