DETAILED ACTION
Amendments made January 7, 2026 have been entered.
Claims 1-18 are pending;
Claim 18 has been withdrawn.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 .
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.
Claim Objections
Claim 6 is objected to because of the following informalities:
Claim 6 recites “the flavoring”. Although it is clear the term refers to “the flavoring component” recited in claim 1, it is suggested that the claim be amended as such for consistency of claim language.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 2, 3, 6-9, 13, 14, 16, and 17 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made January 7, 2026.
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 4 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.
In the instant case claim 4 fails to include all the limitations of the claim from which it depends as claim 4 recites that the plant-based protein may be selected from soy bean protein, which is not one of the limited options amended into claim 1 (legume water from chickpeas, while green lentils, or split yellow peas). 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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Note: The term “plant-based” refers to a product which is formulated without ingredients derived from animals (instant specification page 5 lines 24-26).
The term “sugar syrup” encompasses not only traditional syrup sugars, such as invert syrup and honey, but also sugars, such as sucrose and glucose in water (instant specification page 8 lines 16-18).
The previous prior art rejections over the primary reference Mintel have been withdrawn in light of applicant’s amendments made January 7, 2026 which limit the plant-based protein component to legume water from chickpeas, whole green lentils, or split yellow peas.
Claims 1-4, 10-13, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Raspbelyse (“Amazing Homemade Vegan Mars Copycat Candy Bar” Berry Bakery November 2020, pages 1-19
https://berrybaker.com/copycat-milky-way-mars-candy-bar/) in view of Mary’s Test Kitchen (“Making Vegan Meringue with Aquafaba” July 8, 2015, pages 1-30 https://www.marystestkitchen.com/making-vegan-meringue-with-aquafaba/#mv-creation-245-jtr); and as evidenced by Butteryum.org (page 1, https://www.butteryum.org/blog/salt-equivalents), and Blue Glove Cooking (page 1, https://blr.cc/en/cooking/teaspoon-cream-of-tartar-to-grams) and Google (page 1, https://www.google.com/search?q=how+much+does+1tsp+vanilla+weigh&oq=how+much+does+1tsp+vanilla+weigh&gs_lcrp=EgRlZGdlKgYIABBFGDkyBggAEEUYOTIJCAEQABgNGIAEMggIAhAAGBYYHjIICAMQABgWGB4yCAgEEAAYFhgeMggIBRAAGBYYHjIICAYQABgWGB4yCggHEAAYChgWGB4yCAgIEAAYFhgeMggICRDpBxj8VdIBCDUwODZqMGo3qAIA sAIA &sourceid=chrome&ie=UTF-8); and America’s Test Kitchen (“What is Aquafaba?” pages 1-5 March 2017 https://www.americastestkitchen.com/articles/580-what-is-aquafaba)
Regarding claims 1 and 4, Raspbelyse teaches a vegan, i.e. plant based, food product (title) comprising:
About 38.6% plant-based nougat (see page 8, ingredients, which are non-animal ingredients);
About 45.5% plant-based caramel comprising coconut milk, i.e. a plant-based milk, vegan margarin, i.e. a plant-based fat, and corn syrup, i.e. a sugar syrup (see page 8, ingredients, which are non-animal ingredients); and
About 15.9% chocolate coating (see page 9).
It is noted that Raspbelyse provides the weight of the majority of the components, and the remaining components were calculated based on known conversion rates. Specifically, the following approximations were used: 1tsp sea salt = 3.6grams (see Butteryum.org); 1tsp vanilla = 6 grams (Google); and 1/8tsp cream of tartar =0.42 grams (Blue Glove Cooking). Thus, the product equates to a total weight of about 2667g, wherein the caramel is about 45.5% (1213.6g/2667g); the nougat is about 38.6% (1028.4g/2667g); and the chocolate is about 15.9% (425g/2667g).
Regarding the plant-based nougat composition as recited in claim 1, Raspbelyse teaches that the nougat comprises: plant-based protein including aquafaba which encompasses or at least makes obvious a legume water from chickpeas (see American Kitchen page 1), a sugar syrup (granulated white sugar, water, and light corn syrup), and cocoa powder, i.e. a flavoring component (page 8 Ingredients, and Page 9 step 1 of Soft Chewy Nougat).
Regarding the amount of each respective component, the nougat, the caramel, and the chocolate as recited in claim 1, as discussed above the recipe of Raspbelyse encompasses the claimed range. Furthermore, as Raspbelyse teaches that the caramel is soft and chewy, the nougat is tender and delicately flavor, and the chocolate provides a crunchy shell (pages 3-4), it would have been further obvious to adjust the amount of each respective component depending on the intensity of the caramel soft and chewiness, tender flavored nougat, and/or crunchy chocolate shell.
Regarding the chocolate as a plant-based chocolate as recited in claim 1, Raspbelyse is not specific to the chocolate as plant-based chocolate, however, as vegan is defined as a vegetarian who omits all animal products from the diet and Raspbelyse teaches of a vegan product (title), it would have been encompassed or at least obvious for the chocolate to be a vegan chocolate, i.e. a plant-based chocolate as claimed.
Raspbelyse is silent to the legume water (aquafaba) as comprising 90-99% legume water and 1-10% salt as recited in claim 1.
Mary’s Test Kitchen teaches of a vegan confectionery recipe comprising aquafaba (title). Mary’s Test Kitchen teaches that if you want to avoid preservatives choose a brand that includes only chickpeas (or white beans) and water. Salt-free or salt added is fine, there is just a difference in taste. See page 6, paragraph 1.
It would have been obvious for the aquafaba of Raspbelyse to comprise legume water made from chickpea, with salt in the desired amount to impart taste in view of Mary’s Test Kitchen. Thus, the claimed limitation is considered obvious over the teachings of the prior art.
Regarding the plant-based nougat as comprising 65-95% sugar syrup as recited in claim 2, as noted above, the term “sugar syrup” encompasses not only traditional syrup sugars, such as invert syrup and honey, but also sugars, such as sucrose and glucose in water (instant specification page 8 lines 16-18). Raspbelyse teaches that the nougat is about 1028.4 grams comprising: 90g plant-based protein (aquafaba); 701g sugar syrup (400g granulated white sugar, 187g water, and 114g light corn syrup); 1tsp (about 6g) pure vanilla; 1/8 tsp (about 0.42g) cream of tartar; 31g unsweetened cocoa powder, and 200g dark chocolate (page 8 Ingredients, and Page 9 step 1 of Soft Chewy Nougat). Thus, the nougat taught by Raspbelyse comprises about 68% sugar syrup.
Regarding the plant-based nougat as comprising 0.5-20% plant based protein as recited in claim 3, Raspbelyse teaches that the nougat is about 1028.4 grams comprising: 90g plant-based protein (aquafaba); 701g sugar syrup (400g granulated white sugar, 187g water, and 114g light corn syrup); 1tsp (about 6g) pure vanilla; 1/8 tsp (about 0.42g) cream of tartar; 31g unsweetened cocoa powder, and 200g dark chocolate (page 8 Ingredients, and Page 9 step 1 of Soft Chewy Nougat). Thus, the nougat taught by Raspbelyse comprises about 8.75% aquafaba (plant-based protein).
Regarding claims 10-12 and 15, Raspbelyse shows the confection as in the form of a bar comprising a nougat layer and a caramel layer enrobed in chocolate (title and image page 2).
Regarding claim 13, Raspbelyse teaches the nougat comprises inclusions in the form of chopped dark chocolate (page 8, nougat ingredients).
Regarding the food as in the form of a bar with a length of 30-70mm, a width of 10-50mm, and a height of 5-35mm as recited in claim 16, Raspbelyse shows the confection as in the form of a bar comprising a nougat layer and a caramel layer enrobed in chocolate (title and image page 2). Raspbelyse is silent to the size of the final bar. The Examiner takes official notice that candy bars were known to come in different sizes, such as bite-size, regular, and king size. It would have been obvious to one of ordinary skill in the art to adjust the size of the candy bar taught by Raspbelyse depending on the desired product size. As the food of the prior art would remain a confectionery product regardless of the size, the size for forming is not seen to patentability distinguish the product as claimed from that of the prior art. The position of the office is further supported in view of MPEP 2144.04, wherein changes in size and/or aesthetic design are considered obvious. See for example “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.)”.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Claims 5-7, 9, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Raspbelyse (“Amazing Homemade Vegan Mars Copycat Candy Bar” Berry Bakery”) in view of Mary’s Test Kitchen (“Making Vegan Meringue with Aquafaba”) and as evidenced by Butteryum.org and Blue Glove Cooking and Google and America’s Test Kitchen, further in view of Schmidt (US 7,022,356).
As discussed above, Raspbelyse teaches a vegan, i.e. plant based, food product comprising: about 38.6% of a plant-based nougat comprising a flavoring component; about 45.5% of a plant-based caramel; and about 15.9% plant-based chocolate coating.
Raspbelyse is silent to the flavoring component in the nougat as nut-derived as recited in claim 5, or in the form of 1-20% whole or chopped nut inclusions or a nut butter as recited in claim 6, or to the flavoring component as nut butter flavoring and whole or chopped nut inclusions as recited in claim 7, or to the plant-based caramel as comprising inclusions as recited in claims 9 and 14.
Schmidt teaches snack products including bars with nougats and dressings used to add flavor, texture, and eye appeal to the nougat. Schmidt teaches the dressings include caramel, chocolate, nut pieces, and combinations thereof and can be incorporated into the snack food. See abstract and column 6 lines 4-14 and 51-59. Schmidt exemplifies using the dressings as topping a nougat layer with a caramel layer containing nuts and then wrapping both in chocolate (column 7 lines 8-16). Schmidt teaches the caramel layer and nougat layer may both have inclusions, including dressings such as nut, fruit pieces, grains, and cereals (column 7 lines 24-32). Schmidt teaches that flavoring, including from peanut butter, i.e. nut butter, can be adjusted according to the need and taste, but the total amount of flavoring is generally about 7-37% of the nougat (column 5 lines 23-44).
Regarding the flavoring component in the nougat as nut-derived as recited in claim 5, or in the form of 1-20% whole or chopped nut inclusions or a nut butter as recited in claim 6, or to the flavoring component as nut butter flavoring and whole or chopped nut inclusions as recited in claim 7, it would have been obvious to include nut pieces and/or nut butter to impart a nut taste to the snack in view of Schmidt. It would have been further obvious to adjust the amount of flavoring, including nut inclusions and/or nut butter depending on the taste desired, wherein a general amount of about 7-37% could be used to provide flavoring as taught by Schmidt. To use known flavoring in a food in an amount depending on the desired flavor would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding the caramel as comprising inclusions as recited in claims 9 and 14, it would have been obvious for the caramel to comprise inclusions in order to add flavor, texture, and eye appeal to the nougat as taught by Schmidt.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Raspbelyse (“Amazing Homemade Vegan Mars Copycat Candy Bar” Berry Bakery”) in view of Mary’s Test Kitchen (“Making Vegan Meringue with Aquafaba”) and as evidenced by Butteryum.org and Blue Glove Cooking and Google and America’s Test Kitchen, further in view of Lees and Jackson (“Sugar Confectionery and Chocolate Manufacture” Chapman and Hall 1973, pages 44 and 45).
As discussed above, Raspbelyse teaches a plant based food product comprising: about 38.6% nougat; about 45.5% caramel comprising corn syrup; and about 15.9% chocolate coating. Raspbelyse teaches that the caramel is soft and chewy, the nougat is tender and delicately flavor, and the chocolate provides a crunchy shell (pages 3-4).
Raspbelyse is silent to caramel as comprising 2-30% humectant comprising a polyol selected from the group including sorbitol as recited in claim 8.
Lees et al (Lees) which is a book on confectionery manufacture teaches that sorbitol was a known and extremely stable and readily soluble confectionery ingredient (page 44 Section 2.14 paragraph 2). Lees teaches that sorbitol is a good conditioning agent slowing down the loss of moisture from the confection (page 45, paragraph 1). Lees teaches that the addition of sorbitol to confections will cause them to become softer which is perceptible around 5%; that for 5-15% addition the boiling temperature should be raised by 1-3C; and that once the usable level exceeds 5% an equal amount of glucose syrup is omitted (page 45 paragraph 2). Lees further teaches that 5-10% levels are suitable for soft textured products (page 45 paragraph 3).
Regarding the caramel as comprising 2-30% humectant comprising a polyol selected from the group including sorbitol as recited in claim 8, it would have been obvious for the soft caramel as taught by Raspbelyse to comprise about 5-10% sorbitol as Lees teaches it is a suitable level for soft textured products and in order to provide increased softness and/or good conditioning to slow down the loss of moisture in view of Lees. To add a known ingredient for its known and intended function would have been obvious to one of ordinary skill in the art.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Raspbelyse (“Amazing Homemade Vegan Mars Copycat Candy Bar” Berry Bakery”) in view of Mary’s Test Kitchen (“Making Vegan Meringue with Aquafaba”) and as evidenced by Butteryum.org and Blue Glove Cooking and Google and America’s Test Kitchen, further in view of Mody (WO 01/64044 A2).
As discussed above, Raspbelyse teaches a vegan, i.e. plant based, food product comprising:
About 38.6% plant-based nougat
About 45.5% plant-based caramel; and
About 15.9% plant-based chocolate coating.
Raspbelyse teaches that the caramel is soft and chewy, the nougat is tender and delicately flavor, and the chocolate provides a crunchy shell (pages 3-4).
Raspbelyse is silent to the chocolate as from 25-45% as recited in claim 17.
Mody teaches that in food bars texture additives can be used including nougat layering, caramel layering, and nuts, to add a particular associated mouthfeel (page 7 lines 7-12). Mody teaches that the core of the food bar is enrobed in chocolate coating to add a sweet, candy bar appeal, wherein the amount of coating is typically about 10-40% (page 7 lines 14-20).
It would have been obvious for the food bar of Raspbelyse to have increased amounts of the chocolate coating, such as greater than about 15.9% up to 40% in order to increase the candy bar appeal in view of Mody. Furthermore, as Raspbelyse teaches that the caramel is soft and chewy, the nougat is tender and delicately flavor, and the chocolate provides a crunchy shell (pages 3-4), it would have been further obvious to adjust the amount of each respective component depending on the intensity of the caramel soft and chewiness, tender flavored nougat, and/or crunchy chocolate shell.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Double Patenting
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The provisional rejection of claims 1-5, 8, 9 and 17 on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 11 of copending Application No. 18/716,042 (‘042) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture, pages xvii and 316-321) has been withdrawn in light of applicant’s amendments made January 7, 2026 which limit the plant-based protein component to legume water from chickpeas, whole green lentils, or split yellow peas.
The provisional rejection of claims 6, 7, 10, and 12-16 on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 11 of copending Application No. 18/716,042 (‘042) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973 pages xvii and 316-321), further in view of Schmidt (US 7022356) has been withdrawn in light of applicant’s amendments made January 7, 2026 which limit the plant-based protein component to legume water from chickpeas, whole green lentils, or split yellow peas.
The provisional rejection of claims 8 and 11 on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 11 of copending Application No. 18/716,042 (‘042) in view of Lees and Jackson (Sugar Confectionery & Chocolate Manufacture Leonard Hill 1973 pages xvii and 316-321), further in view of Christina Leopold, (Addicted to Dates “Vegan Mars Bars” pages 1-11) has been withdrawn in light of applicant’s amendments made January 7, 2026 which limit the plant-based protein component to legume water from chickpeas, whole green lentils, or split yellow peas.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
WO 2021/257529 teaches humectant as an optional ingredient in caramels and that typical dimensions for a confectionery product include 40-60mm length, 20-60mm width, and 5-25mm height (page 13 line 1, page 14 last paragraph, and page 15 first paragraph).
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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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