DETAILED ACTION
Amendments made November 10, 2025 have been entered.
Claims 1-17 and 21 are pending;
Claims 1-7, 15-17, and 21 have been withdrawn.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 .
Election/Restrictions
Applicant’s election of Group II, claims 8-14 drawn to the gummy precursor in the reply filed on November 10, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 1-7, 15-17, and 21 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claim 13 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 13 recites that the packaged bulk gummy form [of claim 8] is stored below about 70F to above freezing. This limitation is unclear because the claims are directed to a product, yet claim 13 recites an active method step of storing. Thus, it is unclear as to if applicant is attempting to claim a method within the product claim, or if applicant is claiming a product which is capable of being stored under the recited conditions. To promote compact prosecution, it is noted that the claim may be further unclear as it may conflict with the term “storage stable” recited in claim 8, from which it depends, which requires a product that is capable of being stored from about 50-70F which is narrower than the range recited in claim 13. See instant specification paragraph 34. If the claim intends a narrow range in claim 8, and a broader range in claim 13, the claim would be further rejected under 112d.
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.
Notes:
“About” means within an acceptable error range for the particular value, as determined by one of ordinary skill in the art… Alternately, “about” can mean a range of plus/minus 20% of a given value. See instant specification paragraph 30.
“Bulk” is defined as a size and/or quantity of gummy forms packaged as a unit and offered as a precursor for making a plurality of individual serving gummies. See instant specification paragraph 31.
“Gummy form” means a molded and cured product. See instant specification paragraph 33.
“Storage stable” means a gummy form or plurality of gummy forms package under vacuum or modified inert atmosphere and stored at a temperature of from about 50-70F, having a shelf life of about 6-12 months. See instant specification paragraph 34.
“Precursor” means a gummy form being used as a bulk ingredient to be melted, molded, and cured into individual serving gummies. See instant specification paragraph 35.
Claims 8-13 are rejected under 35 U.S.C. 103 as being unpatentable over Dick et al (US 2018/0289032) in view of Ergun et al (Moisture and Shelf Life in Sugar Confections, Critical Reviews in Food Science and Nutrition, 50:2, 162-192 2010) and as evidenced by Ervin et al (US 2011/0313055).
Dick et al (Dick) teaches gelatin products including gummies comprising: gelatin, glucose, and sucrose, wherein the product has a dry matter content of at least 78% and a water activity of less than 0.75 (abstract, paragraphs 13-17, 27-29, and 46-47, and claim 1). It is noted that a water activity of less than 0.75 taught by Dick encompasses values within a water activity of about 0.70 and greater as claimed.
Regarding the product as a gummy form as recited in claim 8, as discussed above, “gummy form” means a molded and cured product (instant specification paragraph 33). The claimed limitation is a product by process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). In the instant case the method steps of molded and curing would result in a molded and formed gummy product. As Dick teaches that the product is formed by casting an aqueous solution into molds, allowing the composition to set, and then demolding the formed product (paragraphs 19, 35-40, and 50-53 and claim 13) the product of the prior art encompass a molded and formed product as claimed.
Regarding the product as “meltable”, “bulk”, and a “precursor for making individual serving gummies” as recited in the preamble of claim 8, a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951). Regardless, the limitations are intended use and thus only require the product of the prior art to be capable of performing in the manner as claimed. Dick teaches that gelatin products comprising sucrose, a disaccharide, and glucose, a monosaccharide, are formed in hollow molds and packaged (abstract, paragraphs 13-17, 36-40, 46, and 49-53, and claim 13), thus encompassing the formation of at least two gummy products. Dick is not specific to the gelatin products as able to be melted, or as a bulk precursor for making individual serving gummies, however, as Dick teaches a product with the same composition as claimed and disclosed, it would be expected that the product of Dick be capable of use in the same manner as claimed, and thus the claimed limitation is considered encompassed or at least obvious over the teachings of the prior art. The position of the Office is further supported as evidenced by Ervin et al (Ervin) which shows that any chewy or gummy product containing a monosaccharide and disaccharide, like Swedish fish, gummy bears, and other gummy candies, can be melted down, and used at 30-90% weight to form a final gummy product with additional health ingredients (abstract and paragraphs 62, 81, 83, 95, 104-110, and claims 17-19). As Ervin teaches of multiple molds and products, the product when melted would be expected to form a plurality of gummies.
Regarding a Brix of about 74-76 when measured at about 21-22C as recited in claim 8, a solids content of at least 78% within the disclosed solution taught by Dick would equate to a Brix value within the claimed range of about 74-76, i.e. plus or minus 20% being 59.2-91.2. Although Dick does not teach a temperature for measurement, it would have been at least obvious that the measurement disclosed encompasses room temperature which overlaps about 21-22C as claimed. The position that the prior art encompasses or at least makes obvious a product with a Brix within the claimed range is further supported as Dick teaches the composition as homogenous solution comprising: 4-16% gelatin, 6-76% polyols, 0-50% glucose syrup with a dry matter content of 80%, and 0-50% sucrose (abstract, paragraphs 13-17 and 27-29, and claim 1). To form the product of the prior art as disclosed would have been encompassed or at least obvious over the teachings of the prior art.
Regarding the product as storage stable and packaged under vacuum or modified inert atmosphere as recited in claim 8, Dick teaches the molded product is packaged (paragraph 52). Dick is silent to the means for packaging and the storage stability of the product.
Ergun et al (Ergun) teaches the end of shelf life for confections is often due to moisture loss or gain, and thus water activity is important for control of shelf life and stability (page 168 column 1, paragraph 1). Ergun teaches that whether a candy dries out or picks up moisture is determined by the water activity and storage conditions (page 178, Shelf Life, paragraph 2), and that packaging layers can extend shelf life by reducing the rate of moisture migration (page 179, column 2 paragraph 6). Ergun teaches that packaging has many roles in determining the shelf life of foods; it physically acts as a barrier and prevents contamination, and preserves the environment within the package by being selectively permeable to molecules such as oxygen or water (page 179 column 2 paragraph 7 through page 180 paragraph 2). Ergun teaches that the packaging should cover the entire surface of the candy and be completely sealed at all edges (page 180, column 1 paragraph 3). Ergun teaches that jelly and gummy candies are likely to harden over time and loss their moisture if stored at dry conditions (page 187, column 2 paragraph 4).
It would have been obvious for the gummy of Dick to be packaged in a modified inert atmosphere, i.e. one in which the moisture loss was prevented, such that moisture was adjusted to ideal conditions within the atmosphere of the sealed package, and a moisture barrier packaging was used, in order to preserve the food product in view of Ergun. To use a known product for its known and intended purpose would have been obvious to one of ordinary skill in the art. Furthermore, as Dick teaches of a gummy food with the same water activity as claimed and disclosed, and it would have been obvious to package the food in the same manner as claimed and disclosed, the product of the prior art would be expected to have the same shelf stability of the product as claimed. The position of the Office is further supported as Ergun teaches the end of shelf life for confections is often due to moisture loss or gain, and thus water activity is important for control of shelf life and stability (page 168 column 1, paragraph 1); and that whether a candy dries out or picks up moisture is determined by the water activity and storage conditions (page 178, Shelf Life, paragraph 2). Applicant has chosen to use an equation with parameters and/or calculations 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. OR Applicant has described the product with parameters and equations which cannot be measured by the office for prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability purposes. 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 gummy as in the shape of a puck as recited in claim 9, as discussed above, Dick teaches of forming the gummy in a mold. Dick is not specific to the molded shape, however, the gummy would necessarily assume the shape of the selected mold. Thus, to select a desired shape mold, which would result in a desired shape gummy would have been obvious when practicing the invention of the prior art. As the puck shape does not appear to have any particular function, the choice of a shape is considered an obvious design choice. Therefore, the claimed limitation is considered obvious. Further reference is made to MPEP 2144.04 IV. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.).
Regarding the gummy form as about 100 grams as recited in claim 10, Dick exemplifies the product is 1-5 grams (paragraph 52), but is silent for a general size range, and to the gummy as about 100 grams. As the gummy of Dick must necessarily be formed to a desired size, and no size limits were disclosed, it would have been obvious for the gummy to be formed to a desired size. Therefore, the claimed limitation is considered obvious. Further reference is made to MPEP 2144.04 IV. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package "of appreciable size and weight requiring handling by a lift truck" were held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) ("mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled." 531 F.2d at 1053, 189 USPQ at 148.). In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Additionally, the Examiner takes official notice that gelatin confections were known to encompass small pieces, such as gummy bears, as well as larger pieces, such as Jello or fruit cakes or dinosaur molded products.
Regarding claims 11 and 12, Dick teaches that the food comprises flavoring and coloring (paragraph 32 and claim 2).
Regarding claim 13, as discussed above the claimed limitations are unclear. As a product claim has been recited, the limitation is considered herein as intended use and thus only requires the ability of the product to perform. As Dick teaches of a product overlapping in composition to that as claimed and disclosed, the product of Dick would encompass or at least make obvious the product as claimed, i.e. one which could be stored from below about 70F to above freezing.
Claims 9, 10, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Dick et al (US 2018/0289032) in view of Ergun et al (Moisture and Shelf Life in Sugar Confections, Critical Reviews in Food Science and Nutrition, 50:2, 162-192 2010) as evidenced by Ervin et al (US 2011/0313055), further in view of Porter et al (US 2015/0216199). It is noted that the rejection of claim 9 and 10 is an alternative to that presented above.
As discussed above, Dick in view of Ergun and as evidence by Ervin make obvious a plurality of bulk gummy forms packaged in a modified inert atmosphere.
Regarding claims 9 and 10, as discussed above, the claimed limitations were obvious as it would have been obvious to chose a desired size and shape when forming the product of Dick. The position is further supported as Porter et al (Porter) teaches gummy snacks can be provided in multiple sizes and shapes as desired, including cylinder shapes (paragraph 46), which would make obvious a puck or short cylinder form. Thus to choose a desired shape, such as and including a puck, and a desired size, would have been obvious in view of Porter.
Regarding claim 14, Dick is silent to a plurality of gummies as packaged together as recited in claim 14. Porter teaches that gummy snacks can be packaged individual or as a group (paragraph 83). It would have been obvious to one of ordinary skill in the art for the gummies of Dick to be packaged as a plurality to provide more than one gummy product in the product in view of Porter.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. GrandDaddyDerple (“Can infused gummy bears be made by melting Haribo bears?” pages 1-2, printed December 2025) teaches mixing gummies solely with water, adding additional ingredients, and then allowing them to mold and harden back up.
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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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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792