DETAILED ACTION
Background
Claims 1-20 as filed with the instant application stand pending. Claims 1-18 as filed with the instant application on September 20, 2023 have been examined. No amendments have been filed. Claims 19-20 have been withdrawn from consideration
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
Claims 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election of the invention of Group I, claims 1-18 was made without traverse in the reply filed on November 14, 2025.
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 18 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.
In claim 18, at line 2 the terms “insoluble plant material” and “partially insoluble plant material” are indefinite. Solubility depends on the identity of a specific solute, which is not identified. It is not possible to determine the scope of the recited insoluble or partially insoluble plant material.
The Office interprets the recited insoluble plant material or partially insoluble plant material as including any plant material that is not soluble or freely miscible in a first coating material.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 6-9 and 14-18 are rejected 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 (Aldous), of record.
The Office considers the recited “specific level of tackiness in the first coating material” to include any level of tackiness in a coating; and, further, considers the recited tackifying said first coating material for a “selected period of time” to include letting the coating sit for any period of time, or cooling or drying it for any period of time.
Regarding instant claims 1, 2 and 7-9, Aldous at page 2, in the 2nd and 3rd paragraph of “METHOD” on page 2 discloses a method of coating candied nuts (“a confectionery core” as in claim 9) comprising: Applying a hot coating of sugar to the nut and cooling to form a candied nut, then (in the 3rd to last paragraph of “METHOD”) applying a first coating material of chocolate (claim 8) to the confectionery core, the first coating material being in liquid form; followed by leaving the coating to dry for a time and go a little tacky (“tackifying said first coating material on the confectionery core for a selected period of time to achieve a specific level of tackiness for said first coating material” or tackifying for a selected period of time) so the first coating dries partially (“partially drying” for at least a portion of the selected period of time (claim 2) and, then (in the 2nd to last paragraph of “METHOD”) tossing the coated nuts in a second coating material of a natural plant based particulate of cocoa or plum powder (“fruit powder” - claim 7) to said first coating material on the confectionery core.
Regarding instant claim 6, the Office considers the recited tackifying further comprising 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 to include the leaving the coating for a selected period of time as disclosed at the 3rd to last paragraph of “METHOD” of Aldous. The resulting coating in Aldous is consolidated around its confectionary core.
Regarding instant claim 14, as shown in the photo on page 2 of Aldous the second coating material of a natural plant based particulate powder in Aldous overlaps the first coating material chocolate in Aldous.
Regarding instant claim 15, the natural plant based particulate coated, chocolate coated candied nut of the METHOD of Aldous 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 Aldous differs from that as claimed, the Office considers the coated confectionary core disclosed in the METHOD at page 2 of Aldous to have a specific level of tackiness correlates with a desired surface coverage percentage of said second coating material relative to a surface area of the confectionery core. See MPEP 2112.01.I.
Regarding instant claim 16, the confectionary core of the coated candied nut shown in the photo at page 2 of Aldous has a surface coverage percentage of approximately 100%.
Regarding instant claim 17, Aldous at the 2nd to last paragraph of “METHOD” discloses placing coated nuts on a claim sheet of baking paper and is “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, the Office interprets the recited insoluble plant material or partially insoluble plant material as including any plant material not soluble or freely miscible in the first coating material and considers the recited insoluble plant material or partially insoluble plant material as including the cocoa and plum powder of Aldous.
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 1-2 and 7-18 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335060 A1 to Green et al. (Green).
The Office considers the recited “specific level of tackiness in the first coating material” to include any level of tackiness in a coating; and, further, considers the recited tackifying said first coating material for a “selected period of time” to include letting the coating sit for any period of time, or cooling or drying it for any period of time.
Regarding instant claims 1 and 8-10, Green at Example 1 and [0051] discloses a method of coating corn cereal (“a confectionery core” as a grain in claim 9) comprising: feeding the confectionary core into a rotating drum-type enrober or drum and applying a sugar slurry (“first coating material in liquid form” comprising a naturally occurring sugar and water as in claim 8) to the confectionery core in said rotating drum (claim 10). Further, at [0051] Green discloses depositing the coated confectionary core onto a conveyor (“tackifying said first coating material on the confectionery core for a selected period of time to achieve a specific level of tackiness for said first coating material” or tackifying for a selected period of time), and applying cookie crumbs (“second coating material”) to the first coating material on the confectionary core followed by tumbling to adhere the second coating material to said first coating material on the confectionery core and then drying the product.
Further regarding instant claim 1 and regarding instant claim 7, Green does not provide a specific example of coating a confectionary core with 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 as in claim 7. However, 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 (claim 7). Further, Green at [0010] discloses nuts and confections as confectionary cores. The ordinary skilled artisan would have found it obvious in Green to coat its confectionary core with any of the recited nuts, seasonings, herbal or fruit particulates because Green discloses that such natural plant based particulates make a desirable outer coating for a coated confectionary core.
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 selected period of time to achieve said specific level of tackiness for said first coating material to include the conveying of the coated cereal confectionary core into a second rotating drum in Example 1 at [0051] of Green.
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 sugar syrup of Green to its confectionary core in a rotating drum and tumbling the coating and grain core as in Example 1 at [0055] of Green.
Regarding instant claim 13, Green at [0051] and Figure 2 (180) discloses that the first coating material adheres the second coating material to the confectionary core (coated confectionary product) in a second drum and, further, discloses redirecting the coated, dried pieces back to the first drum and repeating the method by applying a second layer of said first coating material to the coated confectionary product, placing the thus coated confectionary core on a conveyer (“tackifying said first coating material for a second selected period of time to achieve a second specific level of tackiness for said first coating material”) and applying a second layer of the second coating materials onto the second layer of the first coating material on the coated confectionary product and adhering the second layer of the second coating material to the coated confectionary product.
Regarding instant claim 14, Green at [0010] discloses a confectionary core for coating and at [0017] discloses a liquid coated food piece coated by a dry particulate coating. Further, Green at [0033] discloses various natural plant based particulate powders as a second coating material that overlaps a first coating material sugar syrup in the coated core of Green at [0033]. The ordinary skilled artisan would have found it obvious in Green to coat a confectionary core with the overlapping liquid and natural plant based particulate as in Example 1 of Green because Green discloses that its method adheres a suitable second coating material to a first coating material.
Regarding instant claim 15, the natural plant based particulate coated confectionary core of [0010], [0017], [0033] of Green as made according to Example 1 of Green 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 Aldous differs from that as claimed, the Office considers the coated confectionary core disclosed in [0010], [0017], [0033] of Green as made according to Example 1 of 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. See MPEP 2112.01.I.
Regarding instant claim 17, Green at Example 1 and [0051] 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, the Office interprets the recited insoluble plant material or partially insoluble plant material as including any plant material not soluble or freely miscible in a first coating material and considers the recited insoluble plant material or partially insoluble plant material as including all of the grain or cereal crumbs, nut bits and herb particulates of Green at [0033].
Claims 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335060 A1 to Green et al. (Green) as applied to claim 1 above, and further in view of US20100077956 A1 to Zuehlke et al. (Zuehlke).
Zuehlke is equivalent to WO2006/028450 A1, of record.
The Office considers the recited “specific level of tackiness in the first coating material” to include any level of tackiness in a coating; and, further, considers the recited tackifying said first coating material for a “selected period of time” to include letting the coating sit for any period of time, or cooling or drying it for any period of time.
Green at Example 1 and [0051] and at [0033] discloses a method of coating a confectionery core comprising applying a first coating material in liquid form on the confectionery core, tackifying said first coating material on the confectionery core for a selected period of time to achieve a specific level of tackiness for said first coating material, and applying a second coating material as a natural plant based particulate to the first coating material on the confectionary core.
Green does not disclose methods of coating further comprising applying a heated airflow to said first coating material on the confectionery core to partially dry said first coating material as in claim 3; does not disclose methods wherein the tackifying further comprises partially cooling said first coating material 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 as in claim 4; further, does not disclose methods further comprising partially cooling a first coating by applying a non-heated airflow to said first coating material on the confectionery core to partially cool said first coating material on the confectionery core as in claim 5; and, does not disclose methods 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 as in claim 6. However, in Example 1 at [0055] Green discloses applying a sugar syrup as a first coating material and drying the coated confectionary product.
Zuehlke at Abstract discloses coating cores with liquid syrups comprising a crystallizable material as a sugar while tumbling them in a drum and applying particulates to the coated cores. At [0031], Zuehlke discloses coating confectionary cores. At [0055], Zuehlke discloses coating liquid onto the cores in a non-heated air stream for drying; and, at [0094] discloses forced air drying as a preferred drying medium wherein the air is from 21 °C, which is non-heated, to 46 °C, which is heated. In addition, at [0097] Zuehlke discloses that its coating syrup is generally hot to allow for higher solids and faster coating build up.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Zuehlke for Green to at least partially dry or tackify its first coating material during a selected period of time after applying the first coating, which the Office considers as any amount of time, by any of letting the coating sit, by directing a heated airflow on the coating layer, by cooling the coating layer, or by directing a non-heated airflow on the coating layer. Both references disclose making syrup coatings for confectionary cores in drum coaters. The ordinary skilled artisan in Green would have desired to dry or cool its sugar syrup or slurry first coating layer by directing heated or non-heated air on to the coatings or cooling the coatings as in Zuehlke for any period of time desired to dry, cool or crystallize the coatings and control their level of tackiness and consolidated them around a confectionary core. Further, the Office considers the dried sugar slurry coating of Green as modified by Zuehlke to have crystallized by leaving the coating layer on its substrate as in Example 1 of Green.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335060 A1 to Green et al. (Green) as applied to claim 2 above, and further in view of WO2020/201393 A1 to Hasslinger et al. (Hasslinger).
All references to Hasslinger refer to its Clarivate machine translation, a copy of which is provided with this Office action.
The Office considers the recited “specific level of tackiness in the first coating material” to include any level of tackiness in a coating; and, further, considers the recited tackifying said first coating material for a “selected period of time” to include letting the coating sit for any period of time, or cooling or drying it for any period of time.
Green at Example 1 and [0051] and at [0033] discloses a method of coating a confectionery core comprising applying a first coating material in liquid form on the confectionery core, tackifying said first coating material on the confectionery core for a selected period of time to achieve a specific level of tackiness for said first coating material, and applying a second coating material as a natural plant based particulate to the first coating material on the confectionary core, further comprising partially drying said first coating material 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.
Green does not disclose methods 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 as in claim 6. However, in Example 1 at [0055] Green discloses applying a sugar syrup as a first coating material and drying the coated confectionary product.
Hasslinger at the last full paragraph on page 2 discloses methods for making multilayer coated confectionary products comprising b1) applying initially a liquid isomalt-containing coating medium to a confectionery core to obtain a coating layer surrounding the core and b2) sprinkling a powdered rice starch isomalt composition onto the coating layer surrounding the at least one confectionery core, b3) crystallizing the coating layer obtained in method step b2) and c) carrying out at least one subsequent coating cycle repeating b1) and b2). Hasslinger refers to the coating layer as a sugar coated layer. At page 6, 4th and 9th paragraphs, Hasslinger discloses cores including nuts, fruits, grains, gum and confections. Further, in the last paragraph on page 8 and the first paragraph on page 9, Hasslinger discloses that crystallizing and drying each comprise giving the coating time to dry and crystallize.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Hasslinger for Green to allow its first coating material to crystallize for at least a selected period of time during which the first coating material is tackified. Both references disclose aqueous syrup coatings for a confectionary core that crystallize when dried or dehydrated. The ordinary skilled artisan in Green would have desired to crystallize its applied sugar syrup first coating material in its Example 1 by leaving it for any time, such as by placing it on a conveyor to secure the coating in place and consolidate the coating.
Conclusion
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