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 .
Status of Claims
Applicant’s election without traverse of the invention of Group II (Claims 50-57), drawn to a drawn to a low-calorie confectionery, in the reply filed 02/24/2026, is acknowledged by the Examiner.
Claims 38-49 are withdrawn pursuant to 37 C.F.R. 1.142(b) as being drawn to non-elected subject matter and non-elected species. The claims corresponding to the elected subject matter and species are Claims 50-57, and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 01/24/2024, 07/21/2025, and 02/17/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
Claim Objections
Claim 54 is objected to because of the following informalities: “CMC” and “LBG” are acronyms and need to be spelled out when they are first recited.
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 51-55 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 51-55 are rejected for indefiniteness. Each of these claims include “at least one” of alternative recitation, which means that the features are required as “and/or” in the confectionary, and are overlapping. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, Claim 51 recites the broad recitation “Bix measurement of about 50 to about 90°Bx”, and the claim also recites “Bix measurement of about 70 to about 90°Bx”, which is the narrower statement of the range/limitation; Claim 52 recites the broad recitation “at least about 40% of said confectionary”, and the claim also recites “at least about 70% of said confectionary” and “about 80 to about 90% of said confectionary”, which are the narrower statements of the range/limitation; Claim 53 recites the broad recitation “monosaccharides, disaccharides, polysaccharides and a mixture thereof”, and the claim also recites “glucose, sucrose, fructose, dextrin, maltose, dextrose and a mixture thereof” and “invert sugar”, which are the narrower statement of the range/limitation; Claim 54 recites the broad recitations “thickeners, gelling agents…” and “cellulose derivatives”, and the claim also recites “gelatin, guar gum, gum Arabic…” and “CMC”, which are the narrower statements that fall within the broad limitations.
The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. The Examiner requests that the Applicant review ALL claims for similar overlapping scopes that makes it difficult to ascertain what is included and excluded in the claimed invention.
Claim 54 is further rejected for indefiniteness because the metes and bounds of the claim are unclear. According to MPEP 2173.05(h), “[a] Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. The use of the preamble “consisting of” produces a lack of clarity with regards to the metes and bounds of the claims because the alternatives include any and all emulsifiers, thickeners, gelling agents, humectants, proteins, coating agents, starches, gums etc. It is therefore unclear as to what is being excluded from “consisting of”, and what are being claimed.
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 50-57 are rejected under 35 U.S.C. 103 as being unpatentable over Cavallini et al. (US 2011/0293813 A1), hereinafter Cavallini, in view of Wade, T. (EP 0249446 A2, cited in IDS).
Cavallini discloses a composition and method of making frozen pellets made with juice, wherein the composition comprises at least about 50 weight equivalents of juice and a multipart stabilizer that acts as a gelling agent and a viscosifying agent (Abstract; Claim 1).
Regarding Claim 50, Cavallini teaches multiple examples of fruit pellets (Tables 1-4). For example, Cavallini teaches pellets prepared by mixing dry ingredients and hydrating with water, then heavy whipping cream comprising fat is added, followed by the juice concentrates , then the stabilizer, and the flavoring (Example 1, [0095]).
Cavallini does not expressly teach that its product is at least 70% deionized or demineralized.
Wade also teaches a fruit juice mix for whipped and/or frozen application (p. 1, Abstract). Wade teaches the use of ion exchange treated and/or ultrafiltered juice or juices to give mixtures with improved storage stability at ambient to freezing temperatures and permitting products such as drinks and frozen creams to be made from a mix stored for months without losing their fresh taste or color as well as whipped frozen product losing their smooth, fine texture appearance or, becoming icy, coarse and gummy (p. 2, lines 39-44; p. 6, lines 12-14; Claims 13 and 1). Wade teaches the juices include Modified juices would include ion exchange treated and/or ultrafiltered juices including peach concentrate, pear concentrate, blackberry puree, cranberry juice, orange juice concentrate, grape concentrate, lemon juice and apple juice concentrate (p. 3, lines 35-40).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Wade with that of Cavallini and use ion exchange treated-juice Wade also teaches a fruit juice mix for whipped and/or frozen application (p. 1, Abstract). Wade teaches the use of ion exchange treated and/or ultrafiltered with improved storage stability.
Regarding Claim 51, Cavallini expressly teaches Pear Juice Concentrate 70 Brix, and Apple Juice Concentrate 70 Brix (Table 2).
Regarding Claim 52, Cavallini teaches a preferred aspect where the frozen pellet contains at least 50 weight equivalents of juice (i.e. equivalent to 50% juice) [0030].
Regarding Claim 53, Cavallini expressly teaches sucralose (Tables 1-4). Cavallini also teaches that the sweetener can be nutritive or not, including trehalose, sucrose, sucralose, maltodextrin, fructose, dextrose etc. [0054]. Therefore, one skilled in the art can replace the sucralose with any of the taught sweetener recited by Cavallini. One would have been motivated to do so based on preference, cost, and availability.
Regarding Claim 54, Cavallini teaches modified food starch which reads on the starch (Table 1). Cavallini teaches other stabilizers including gelatin, pectin, guar gum etc. [0039].
Regarding Claims 55-56, Cavallini expressly teaches 2% inulin (Example 1).
Regarding Claim 57, Cavallini teaches only using apple and pear juice concentrate, reading on c) and i) at the minimum (Example 2; Table 2).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792