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 .
Election/Restrictions
Applicant’s election with traverse of Group II, claims 131-136, and species A cello-oligosaccharides with xylo-oligosaccharides, and Species B fudge in the reply filed on November 5, 2025 is acknowledged.
Regarding the restriction of the groups and Species A, the traversal is on the grounds that no serious search and/or examination burden would be required. This argument is not found persuasive as there is no evidence to support it, and as stated in the restriction requirement the groups and species would require a different field of search.
Regarding the restriction of Species B, the traversal is on the grounds that additional candy products of caramel, nougat, taffy, and toffee would be included in a search with fudge. This argument is not found persuasive as the products are distinct products and thus would require a different field of search. Regardless, as fudge, caramel, and toffee are processed in a similar way, from similar ingredients (see for example Minifie page 530) fudge, caramel, and toffee will be considered the elected species.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claims 131-136 are 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 131 recites in line 18 “temperature greater than 120oC (under atmospheric conditions)”. It is unclear as to if the parenthetical, i.e. under atmospheric conditions, is required or optional since it is recited in parenthesis.
Claim Rejections - 35 USC § 103
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.
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.
Note: the term “acidity regulator” would be understood by one of ordinary skill in the art in view of the specification, see for example instant paragraph 18.
Claims 131-136 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (WO 2020/035599 A1) in view of Minifie (Chocolate, Cocoa, and Confectionery 3rd Edition Chapman and Hall 1989, pages 506, 507, and 530-535).
Regarding claim 131, it is noted that the claim recites product by process limitations and as the claim is directed to the product, the process limitations are thus considered in as much as they effect the final product. In the instant case, the claims recite a cooked food formed from a raw food with a flavoring precursor comprising: a first oligosaccharide, a second oligosaccharide, and an acidity regulator, and thus the final cooked food would comprise some amount of a first oligosaccharide, a second oligosaccharide, and an acidity regulator. Simmons teaches foods including a composition comprising: at least two oligosaccharides, i.e. a first and second oligosaccharide, selected from the list including cello-oligosaccharides (COS) have a degree of polymerization (DE) of 2-6, and xylo-oligosaccharides (XOS) having a DP of 2-12, wherein each is included in an amount of at least 10% (abstract, paragraphs 6, 7, 12-57, 88, 107, 167, 180, 190, 200, 201, 226, 245, 248, 250, 251, 257-272, 308, 309, and 329 and claims 2, 105), thus encompassing a ratio of up to 90:10 as claimed. Simmons teaches that the composition is used to provide improved properties, replace sugar, provide binding, fiber enhancer, humectancy, and desirable taste and color (paragraphs 5, 96, 99, 102, 175, 331, 335-354).
Regarding the food as a cooked food comprising a plurality of non-enzymatic oligosaccharide breakdown products comprising one or more compounds selected from ketones, esters, aldehydes, furans, pyrazines, and aromatic compounds produced during cooking of the raw food as recited in claim 131, and wherein at least one of the plurality of said breakdown products is at a higher concentration than a cooked food product than a raw food product, and the oligosaccharides are substituted for sucrose as recited in claim 132, as Simmons teaches that the composition is used to alter caramelization (paragraph 333, 350); includes the same oligosaccharides as claimed and disclosed; is used to provide improved properties, replace sugar, and provide desirable taste and color (paragraphs 5, 96, 99, 102, 175, 331, 335-354); that the foodstuff includes cooked foods, including toffee, fudge, and caramel (paragraph 331); and that the composition may be chemically or physically treated to undergo non-enzymatic reactions such as oxidation, caramelization or Maillard reaction (paragraph 400), the teachings of Simmons are considered to encompass or alternatively make obvious the food as a cooked food formed from raw material with the breakdown products as claimed. The position of the office is further supported as Simmons teaches of toffee, fudge, and caramel (paragraph 331) and Minifie teaches that caramels, toffees, and fudge develop characteristic flavor in non-enzymatic reactions of caramelization/Maillard reactions (page 530- Caramels, Toffees, Butterscotch, Fudge paragraphs 1-2).
Regarding a composition of 100mg of the flavoring precursor as added to 1mL of water as able to attain a temperature greater than 120C under atmospheric conditions, wherein at least 5% of the added water remains in the composition at 120C as recited in claim 131, the claimed limitation is directed to the intended use of a food ingredient within the cooked food product. As Simmons teaches of the same ingredient as claimed and disclosed, i.e. a composition comprising: at least two oligosaccharides, i.e. a first and second oligosaccharide, selected from the list including cello-oligosaccharides (COS) have a degree of polymerization (DE) of 2-6, and xylo-oligosaccharides (XOS) having a DP of 2-12, wherein each is included in an amount of at least 10%, the final product of Simmons would encompass the product as claimed. In other words, the ingredient would be expected to be able to use in the same manner as claimed as it was overlapping in composition, and the final product, i.e. the final product would contain said ingredient.
Applicant has chosen to use an equation with parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facie case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Regarding the cooked food as comprising an acidity regular as recited in claim 131, it is noted that Simmons teaches an acidity regulator in the non-elected food species, such as baked goods (Example 3, paragraph 409- baking soda), but is not specific to an acidity regulator in the elected food species of fudge, caramel, and toffee.
Minifie teaches that toffees, fudge, and caramel have a characteristics flavor derived from caramelization/the Maillard reaction, which can be stronger when an alkaline treatment is used (page 530- Caramels, Toffees, Butterscotch, Fudge paragraphs 1-2). Minfie teaches that fudge is manufactured by taking caramel and adding fondant (page 535, Experiment 5). Minifie teaches that fondant was stabilized by doctoring with citric acid, tartaric acid, or cream of tartar (pages 506-507, see specifically page 507 paragraph 3-5).
It would have been obvious for the fudge of Simmons to contain an acidity regulator so that the fondant ingredient was stabilized in view of Minifie. It would have been additionally obvious for the caramel, toffee, or fudge of Simmons to contain an acidity regulator to provide a stronger caramelization in view of Minfie.
Regarding claim 133, Simmons teaches the food is a confectionery including toffee, fudge, and caramel (paragraph 331). As evidenced by Minfie, page 530- Caramels, Toffees, Butterscotch, Fudge paragraph 1, said foods comprise lipids.
Regarding claim 134, it is noted that as stated above, a confectionery species of fudge, caramel, and toffee was elected. Simmons teaches the food is a confectionery including toffee, fudge, and caramel (paragraph 331).
Regarding claims 135 and 136, Simmons teaches the composition further comprises polysaccharides to improve GI tolerance, and that polysaccharides are preferably cellulosic polysaccharides including cellulose (paragraphs 11, 187, 243, 306, and 357 and claim 6-8, 111, and 196). Thus, the composition of Simmons would include a polysaccharide, including cellulose, wherein it would have been specifically obvious to include said component for its known GI benefits taught by Simmons.
Conclusion
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