DETAILED ACTION
Background
The amendment dated April 17, 2026 (amendment) amending claims 1-2, 4, 6 and 15 and canceling claims 7, 13 and 19-20 has been entered. Claims 1-6, 8-12 and 14-18 as filed with the amendment have been examined. In view of the canceling of claims 7 and 13, all outstanding rejections of those claims have been withdrawn.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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, at line 22 after “each of the first’ insert -- specific--; and,
at line 26 after “to reach the first” insert -- specific--.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-6, 8-12 and 14-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. In claim 1, at line 5 the recited “method of drying …the first coating material’’ and in claim 1, the recited “method of drying the second layer of the first coating material” is not properly disclosed in the instant specification for the first coating materials because it includes a dry water first coating material (as in claim 8), which is the same as no coating at all and which is not supported by the instant specification at any of [0032], [0034] or [0059];
in claim 1, at line 28, the recited “confectionery core [that ] is uniformly coated” is not properly disclosed in the instant specification for the recited first or second coating materials. The instant specification discloses a uniform coating at [0003]; however, a uniformly coated confectionery core is not properly disclosed the instant specification at any of [0003], [0032], [0035], [0040] or [0059] for a first coating material as a uniform coating of water (see claim 8) resulting from the recited method of drying or cooling, and, further does not include a uniform sanded or particulate coating from the recited second coating material because the instant specification fails to disclose a method adapted to making a uniform particulate coating and, further fails to disclose a natural plant based particulate having a uniform particle size or any particulate coating material that may itself be considered uniform; and,
The Office interprets a “uniformly coated” confectionery core broadly to include any confectionery core bearing a coating material that fully surrounds a confectionery core and that appears to be uniform.
Claims 2-6, 9-12 and 14-18 are rejected as depending from a rejected base claim.
Claims 8 and 12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. A dried water coating in claim 8, line 3 is not properly enabled; in addition, a uniformly coated confectionary product bearing dried or cooled water as in claim 8 is not enabled; and, further, a second coating material that is a panning coating and that overlaps a first coating material of water in claim 12 is not properly enabled.
Governing law providing enablement standards is found in In re Wands, , 858 F.2d 731, 8 USPQ2d 1400 (Fed. Cir. 1988) citing as enabling factors (1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, (6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims. In this case, considering the Wands factors the evidence of lack of enablement is clear, to wit:
The state of the art and evidence of the level of skill in the panning coating and confectionery core coating art can be found disclosed in Zuehlke et al. (Zuehlke) at, for example, the abstract, [0052], [0084] and [0091]-[0093]. Based on the state of the art, panning coating materials include only materials that leave a residue on drying, such as a syrup that comprises solids. Further, Zuehlke at [0084] and [0091]-[0093] shows that the nature of a panning coating that overlaps a first coating material is such that it can only result from use of a coating containing something in addition to water in the first coating material and that remains after drying. Meanwhile, the claims broadly disclose drying or cooling a first coating material and then panning coating a confectionery core with a second coating material with water as a first coating material in claim 8, with no disclosure of a method to handle or retain the “dried or cooled” water coating in claim 8; and the claims recite no limit on the first coating material or the second coating material in claim 12. Further, the instant specification provides zero guidance as to panning coating over a water first coating material as in claim 12, or as to drying a water first coating material as in claim 8, much less as to the forming of a uniform coating resulting in any coating layer in either case. In addition, the instant specification provides no example or other disclosure of drying a water coating or of a panning coating over a first coating material of water, or any disclosure of a drying a liquid first coating material that does not contain solids and, in fact only mentions panning coating once in passing at [0034]; and, the instant specification only discloses a uniform coating generally in passing at [0003]. In contrast, Zuehlke at Abstract and at [0052] disclose methods using specialized coating equipment and particulates of a uniform particle size neither of which are in any way disclosed or hinted at in the instant specification.
Given, the breadth of the instant claims, the nature of panning coating methods, level of skill and the state of the art as disclosed in Zuehlke, as well as the lack of guidance or examples in the instant specification, the evidence shows that it would require the ordinary skilled artisan to engage in undue experimentation to arrive at any of a method of panning coating a wetted or water bearing confectionery core, or a method of coating such confectionary cores comprising dried water as a layer as in claim 8, much less as a uniform coating. In addition, the evidence shows that it would require undue experimentation of the ordinary skilled artisan to arrive at a method of panning coating a confectionery core with a second coating material that overlaps a first coating material consisting of water. Further, it is not predictable or clear how or if the ordinary skilled artisan can form a uniform dried or cooled coating layer of water on a confectionery core even, for example, by freezing. And, it is not predictable or clear how or if the ordinary skilled artisan can form a second coating layer resulting in a panning coating that overlaps any first coating material consisting of water, much less a dried or cooled water first coating material, and even less a uniform second coating material layer over a water first coating material.
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 1-6, 8-12 and 14-18 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.
In claim 1, at lines 8-10 the phrase “ “particulate with” at least one of a fruit, a fruit powder, nuts, coffee, vegetable powder, spice particulates, or herb particulates” is indefinite as the scope of the claim is unclear. It is not clear whether the claim includes the particulate itself as the embodiment of the listed particulate species and not merely a mixture of a species of particulate “with” or in another particulate.
The Office interprets claim 1 as reciting a particulate “comprising” at least one of a fruit, a fruit powder, nuts, coffee, vegetable powder, spice particulates, or herb particulates.
Claim 1 recites the limitation "said coated confectionary product " four separate times in each of lines 11-12, 14-15, 19 and 21. There is insufficient antecedent basis for this limitation in the claim. It is not clear just what is the coated confectionary product in any given case. If in each case the various recited coated confectionary products are not the same as each other, then should they still be called the same thing?
Applicant can remove the antecedent basis rejection by amending claim 1, at the end of line 10 after “particulates” and before the comma (,) at the end of the line to recite or add “forming a coated confectionary product” or its equivalent.
Claims 2-6, 8-12 and 14-18 are rejected as depending from a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 recites applying a first coating material via panning and therefore discloses the second coating material overlapping the first coating material, wherein the claimed tackiness causes the second coating material to adhere to the first layer of the first coating material. Accordingly, claim 14 does not further limit claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6, 8-12 and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over US20100077956 A1 to Zuehlke et al. (Zuehlke) in view of US2015/0335060 A1 to Green et al. (Green), both of record.
The Office interprets claim 1 as reciting a natural plant based particulate “comprising” at least one of a fruit, a fruit powder, nuts, coffee, vegetable powder, spice particulates, or herb particulates.
The Office considers any of the recited “first specific level of tackiness for the first coating material” and the recited “second level of tackiness for the second layer of the first coating material” to include any level of tackiness in a coating; and, further, considers the recited tackifying by drying or cooling said first coating material for a “selected first period of time” to include any time period; and, still further considers tackifying by drying or cooling or for a “second period of time” for a second layer of a first coating material to include letting it dry or cooling by letting the coating sit for any period of time, or by cooling or drying it for any period of time.
Further, the Office considers the recited “specific level of tackiness in the second coating material” and the recited “specific level of tackiness in the second layer of the first coating material” to include any level of tackiness in the first and second layers of the first coating material.
Still further, the Office interprets a “uniformly coated” confectionery core broadly to include any core bearing any layer coating material that fully surrounds a confectionery core and that appears to be uniform.
Regarding instant claims 1 and 9-10, Zuehlke at Abstract discloses a method of applying a coating syrup (“first coating material” which is “in liquid form”) to a comestible core in a tumbling device (“a rotating drum-type enrober or drum” - see also Zuehlke at [0060]) followed by uniformly coating the coated cores with a particulate coating (“second coating material”) from multiple particulate distributors (“wherein the confectionery core is uniformly coated”). The Office considers the recited applying a second coating material to said first coating material on the confectionery core via panning to include the method of coating disclosed in the Abstract of Zuehlke. Further, at [0101] and Examples 1-2, Zuehlke discloses a method comprising applying the first coating material to coating gum centers (“a confectionery core” as a chewing gum core in claim 9) with a coating syrup comprising tumbling the confectionary core in said rotating drum (claim 10).
Further and regarding instant claim 14, at [0104] Zuehlke discloses an automated method of coating comprising tumbling the first coating material coated confectionary product in a drum for 30 seconds and then pausing 12 seconds to allow a direct flow of air onto the syrup coating on the confectionery core (“tackifying by drying or cooling the first coating material by applying airflow to achieve a first specific level of tackiness for said first coating material” or tackifying for a selected period of time); further, Zuehlke discloses applying a second coating material as particulates via panning for 204 seconds and then drying. In addition, at [0106] Zuehlke discloses applying the particulate materials as a second coating material between applications of coating syrup and then again at the end of the coating method; and, further discloses the coating of particulate materials on a first coating layer (“second coating overlaps the first coating” as in claim 14). The ordinary skilled artisan would have found it obvious to dry any layer of a first coating material as disclosed at [0104[ of Zuehlke to retain and stabilize or consolidate that coating layer because Zuehlke discloses such drying as the way to make a desirable coating from a coating syrup.
Still further, the Office considers the recited method of “applying a second layer of said first coating material to said coated confectionery product; then tackifying said second layer of said first coating material on said coated confectionery product for a second period of time by drying or cooling the second layer of the first coating material to achieve a second level of tackiness for said second layer of said first coating material; and applying a second layer of second coating material to said second layer of said first coating material on said coated confectionery product, wherein said second layer of said first coating material adheres said second layer of second coating material to said coated confectionery product,” and, the method further “wherein each of the first specific level of tackiness and the second level of tackiness correspond to at least a level required for the natural plant based particulate to stick to the first coating material, and, wherein the first period of time and the second period of time respectively correspond to a period of time required to reach the first specific level of tackiness and the second level of tackiness” to include the automated coating method disclosed in Zuehlke at [0104] and [0106]. The claims include any level of tackiness in a coating layer, especially in a desirably dried layer.
In addition and regarding instant claim 8, Zuehlke does not disclose a method of coating a coated confectionary product of a confectionery core with a second coating material comprising a natural plant based particulate or wherein the natural plant based particulate is at least one of a fruit, a fruit powder, nuts, coffee, vegetable powder, spice particulates, or herb particulates. Still further, while Zuehlke discloses a first coating material comprising water as a syrup but does not disclose a first coating material that comprises at least one of a natural syrup with naturally occurring sugar, an artificial syrup, naturally occurring sugar, an artificial sugar, a sugar alcohol, a fat based material, chocolate, or a compound chocolate as in claim 8. However, Zuehlke at [0031] discloses confectionary cores as tablets and candies.
Green at [0008]-[0010] and [0017] discloses a method of coating a cereal with a liquid and then a solid coating in a drum-type enrober. Green at [0010] discloses nuts and confections (“confectionery cores”). Green at Example 1 and [0051] discloses a method of coating corn cereal with a sugar syrup comprising: feeding the confectionary core into a drum and applying a sugar slurry or syrup comprising a naturally occurring sugar and water. Further, Green at [0033] generally discloses coatings for food pieces comprising particulates which are cereal crumbs or dust (a “natural plant based particulate”), fruit, seed or nut bits (“nuts”) or seasonings and herb powders.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Green for Zuehlke to coat its confectionary core with any of the recited natural plant based particulates of Green as a second coating material; further, the ordinary skilled artisan in Zuehlke would have found it obvious to use a natural sugar syrup as in Green as its first coating material syrup. Both references disclose coating a confectionery core with a liquid or syrup first coating material and then a particulate as a second coating material. The ordinary skilled artisan in Zuehlke would have desired to coat its confectionary core with a natural sugar syrup and any of the recited particulates of nuts, seasonings or spice powders, herbal particulates or fruit powders because Green discloses that each of such a natural sugar syrup and such natural plant based particulates make a desirable coating for a confectionery core such as that of Zuehlke in a drum coating method such as that of Zuehlke.
Regarding instant claim 2, the Office considers the recited method further comprising partially drying said first coating material for all or at least a portion of said first selected period of time to achieve said first specific level of tackiness for said first coating material to include the periodic direct applying of air as in Zuehlke at [0104].
Regarding instant claims 3-5, at [0097] Zuehlke discloses that its coating syrup is generally hot to allow for higher solids and faster coating build up. Further, Zuehlke at [0094] discloses forced air drying of its first coating material as a preferred drying medium wherein the air has a temperature of from 21 °C, which is non-heated airflow as in claim 5 and that in effect partially cools a first coating material (claim 4) on a confectionery core, to a high temperature of 46 °C, which is heated air to partially dry its first coating material on a confectionery core as in claim 3.
Regarding instant claim 6, the Office considers the method of tackifying the first coating material and the second layer of the first coating material in Zuehlke to be substantially the same thing as the claimed method of tackifying a first coating material. Accordingly, absent a clear showing as to how the tackifying method of Zuehlke differs from that as claimed, the Office considers the method disclosed at [0094], [0097] and [0104] of Zuehlke to be method wherein the tackifying further comprises allowing said first coating material to crystallize for all or at least a portion of said selected period of time to achieve said specific level of tackiness for said first coating material. See MPEP 2112.01.I.
Regarding instant claims 11-12, the Office considers the recited method further comprising rotating said drum about a central drum axis to aid in applying said first coating material to the confectionery core by evenly distributing said first coating material around the confectionery core in claim 11 and the recited rotating said drum about a central drum axis to aid in tackifying said first coating material in claim 12 to include the applying the syrup of Zuehlke to its confectionary core in a rotating drum and tumbling the coating and confectionery core as in Examples 1-2 at [0101], Abstract and [0060] of Zuehlke.
Regarding instant claim 15-16, the method of making a coated confectionary core disclosed in Zuehlke as modified by Green including a natural plant based particulate as a second coating material and the claimed coated confectionary core made by the claimed method appear to be substantially the same thing. Accordingly, absent a clear showing as to how the surface coverage and tackiness of the coated confectionary core of Zuehlke at [0031] and [0104] as modified by Green at [0010], [0017], [0033] differs from that as claimed, the Office considers the coated confectionary core disclosed in Zuehlke as modified by Green to have a specific level of tackiness that correlates with a desired surface coverage percentage of said second coating material relative to a surface area of the confectionery core as in claim 15; and, further to comprise a method wherein said desired surface coverage percentage is greater than 50% of said surface area of the confectionery core as in claim 16. See MPEP 2112.01.I.
Regarding instant claim 17, Zuehlke at [0104] discloses drying its coated confectionary core and thereby “allowing the first coating material to become not tacky after application of said second coating material to said first coating material on the confectionery core”.
Regarding instant claim 18, Zuehlke at [0106] as modified by Green at [0033] discloses that its second coating material particulates are insoluble in its coating syrup, whereby the recited insoluble plant material or partially insoluble plant material includes all of the fruit powder, nut bits and herb and spice particulates of Zuehlke as modified by Green at [0033].
Response to Arguments
In view of the amendment dated April 17, 2026, the following rejections have been withdrawn as moot:
The rejection of claim 18 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the terms “insoluble plant material” and “partially insoluble plant material”;
The rejections of claims 1-2, 6-9 and 14-18 under 35 U.S.C. 102(a)(1) as being anticipated by Aldous, "Chocolate Coated Candied Nuts with Plum Powder and Cocoa" Internet Archive, The Wayback Machine, November 15, 2016;
The rejections of claims 1-2 and 7-18 under 35 U.S.C. 103 as being unpatentable over US2015/0335060 A1 to Green et al.;
The rejections of claims 3-6 under 35 U.S.C. 103 as being unpatentable over US2015/0335060 A1 to Green et al. further in view of US20100077956 A1 to Zuehlke et al.; and,
The rejection of 6 under 35 U.S.C. 103 as being unpatentable over US2015/ 0335060 A1 to Green et al. in view of WO2020/201393 A1 to Hasslinger et al.
The positions taken in the remarks accompanying the amendment dated April 17, 2026 (Reply) with respect to US2015/0335060 A1 to Green et al. (Green) have been considered but are moot because the new ground of rejection does not rely on Green as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the Reply, the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the position taken in the Reply that the outstanding indefiniteness rejection regarding the terms “insoluble plant material” and “partially insoluble plant material” in claim 18 has been overcome, the Office agrees. However, the claims are now more broadly interpreted because no solute is specified. The recited plant materials can be insoluble or partly so in anything else recited in the claimed method.
Regarding the position taken in the Reply and Zuehlke, respectfully the Office disagrees that Zuehlke does not make up for any failure of Green to disclose any of the claimed methods of application or tackifying. Zuehlke clearly discloses panning coatings at all of [0060], [0084] and in its coating examples at [0097]-[0106]. Further, Zuehlke at [0104] and [0106] discloses substantially the claimed method as that claimed. Moreover, Green and not Zuehlke is relied on at [0010] and [0033] for the disclosure of a various confectionery cores and natural plant based particulates.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US2013/0071516 A1 to Elejalde et al. (Elejalde) discloses at [0142]-[0143] a multilayer confection made by methods including panning and particulate coatings. Elejalde at [0270] discloses many confectionery cores and gum. Further, at [0395] Elejalde discloses alternating solution coatings and particulate coatings. And, at [0433] Elejalde discloses blowing air on an outer particulate coating.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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