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 without traverse of Group I (e.g., claims 1-8) and species I (e.g., marbit or marshmallow) in the reply filed on 07/01/2026 is acknowledged. Claims 9-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 status
Claims 1-20 filed 12/01/2023 are pending in the application. Claims 1-8 are originally presented. Claims 9-20 are withdrawn without traverse in response to the restriction requirement. Claims 1-8 are hereby examined on the merits.
Claim Objections
Claim 1 is objected to because of the following informalities: “wherein the at least one primary colorant and at least one additional colorant” in line 6 should read “wherein the at least one primary colorant and the at least one additional colorant”. Appropriate correction is required.
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 1-8 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 1 recites “high heat” in line 4 and 9, however, absent a standard, it is unclear what level of heat is considered high heat and what is not. Clarification is required.
Claims 2-8 ultimately depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Julie, Superfood Turmeric Marshmallows (paleo, AIP) [Online], published April 10, 2017, [retrieved on 2026-07-08]. Retrieved from the Internet: <URL: https://jshunterfiction.com/superfood-marshmallows-paleo-aip/> (hereinafter referred to as Julie) in view of Battista US Patent No. 3,162,541 (hereinafter referred to as Battista), Cross US Patent Application Publication No. 2002/0022077 A1 (hereinafter referred to as Cross) and Golosinec US Patent No. 3,220,853 (hereinafter referred to as Golosinec).
Regarding claims 1-8, Julie teaches a method of making a colored marshmallow, the method comprising mixing food ingredients (e.g., gelatin, honey, water, etc.) with a colorant (e.g., turmeric), followed by beating and refrigerating to form the marshmallow (“Ingredients” and “Instructions”).
Julie is silent regarding that the marshmallow contains other colorants including Red# 3, Yellow # 6, Red#40, and Blue # 1.
In the same field of endeavor, Battista teaches that it is suitable to use colorants Red # 1-4, Blue # 1-2, Yellow # 5-6, etc. or various blends thereof to color food such as marshmallow (column 5, line 4-14; column 4, line 69-75); Cross teaches that Red #40 is suitable for coloring marshmallow (0032); and Golosinec teaches that colorants such as Red #2, Red #4, Yellow # 5-6, and Blue #1 can be used to color a marshmallow, and those colorants can also be combined with one another in different amounts to provide variously colored marshmallows (column 2, line 7-33).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Julie by combing other colorants including Red# 3, Yellow # 6, Red#40, and Blue # 1 with the turmeric colorant to make variously colored marshmallows with reasonable expectation of success, for the reason that prior art has established that different colorants can be combined to provide variously colored marshmallows. Further, as stated in MPEP 2144.06, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
On the limitation that the amounts of the primary and additional colorants are effective to provide a color to the food product (e.g., marshmallow) that changes from one color to another color upon exposure to high heat, Battista teaches that the color concentration in the food is conventional, generally ranging from as low as 0.0015 up to 0.002, 0.007, 0.03, or 0.05% by weight. The color concentration may be even higher, say to 0.1, 0.5, or 1.0% (column 7, line 10-13); Cross teaches an amount of 0.1% Red #40 in a marshmallow (e.g., 0.2% Red #40 in 50% solution; 0032), and Golosinec teaches that the colorant can be combined with one another in different amounts to provide variously colored marshmallows, and the colorants are normally added to the white marshmallow mix in an amount of 0.02-0.03% (column 2, line 29-33). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the amounts of different colorants so as to provide variousLY colored marshmallows, provided that the total amount of colorants in the marshmallow is in the range of 0.0015- 1% as suggested by the prior art. As such, the limitation as recited above is merely an obvious variant of the prior art.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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