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 .
Allowable Subject Matter
Claim 33 is allowed.
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 29 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.
Amended Claim 29 recites “2 wt% to 4wt% protein isolate, the protein isolate comprising the hydrolyzed pea protein” and it is unclear how this relates to amended Claim 1 which now recites “aggregated plant-based protein, the plant-based protein being a hydrolyzed pea protein”. Therefore, the metes and bounds of the claim are still indefinite for search and examination purposes. For the purposes of finding prior art, the limitation in Claim 29 will be seen to be met by amended Claim 1 provided the protein can be an isolate as well as being aggregated.
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 1-3, 6, 7, 11-15, 21, 22, 26-28, 30-32 are rejected under 35 U.S.C. 103 as being unpatentable over Rifkin (USPA 2017/0258918) in view of Durbin et al. (USPA 2017/0295835), and further in view of Jung et al. (USPA 2014/0335255), the latter two references previously made of record by Applicant.
Regarding original and amended Claims 1, 3, 6, Rifkin teaches a water-based confectionery as Rifkin teaches a confectionery for aeration and an aerated confectionery comprising more than one sweetener in an amount of 30 to 85% by weight and includes sugar, sucrose, corn syrups, glucose, fructose, dextrose, etc., (Paragraph 12), at least one stabilizer which can include whey protein, egg albumen, casein and soya (Paragraph 13), where soy protein is a plant-based protein, at least one emulsifier, water in an amount of 2-20% by weight, a first active ingredient and an enrobing layer, where the confectionery is aerated and thus comprises air and/or inert gas (Paragraph 7-12, Page 8, Claim 1), where the amount of sugar meets the claimed range. Since Applicant discloses the water-based confectionery comprises 0.1 to 10% by weight water when separately added, with more water coming from sugar syrups or other ingredients (Page 3 of specification), the aerated confectionery of Rifkin is seen as water-based. Rifkin teaches the confectionery has a pH of not greater than 5.0 (Paragraph 23), which renders obvious the claimed limitation of less than 5 and meets the limitation of where the pH is greater than 2. Furthermore, it has been found that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I. Rifkin teaches a water activity in the range of 0.45 to 0.65 (Paragraph 7), therefore meeting the claimed limitation of a water activity less than 0.67. Rifkin teaches the stabilizer is present in an amount up to 10% by weight of the confectionery and teaches that the stabilizer functions to help form and retain the pores or pockets of gas within the confectionery (Paragraphs 13-14). Therefore, Rifkin teaches the protein, which can be a plant-based protein, stabilizes the water-based aerated confectionery and teaches protein in an amount that meets the claimed range and in an amount of at least 2% by weight of the aerated confectionery.
Regarding amended Claim 1, Rifkin fails to teach where the plant-based protein is a hydrolyzed pea protein.
Durbin teaches a whippable or aerated food product in the form of a stable foam, comprising water, protein, food starch, emulsifier (Paragraph 21-24), where protein is present in an amount of up to about 5% by weight (Paragraph 73), which is similar to the amount taught by Rifkin, and where the type of protein can vary based on the type of whippable food product desired (Paragraph 73), where types of protein that may be include are egg proteins, milk whey, casein protein, soy protein, rice protein, pea protein, where the protein can be hydrolyzed vegetable protein, and teaches that as would be recognized by one of ordinary skill in the art, the use of hydrolyzed proteins aids in the modification of allergenic properties of the protein, thus allowing more suitable consumption by individuals suffering from food allergies (Paragraphs 73-74). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used a hydrolyzed protein as the protein source in the water-based aerated confectionery of Rifkin, and to have used a hydrolyzed plant-based protein such as hydrolyzed pea protein, as a way of provide a more allergenic friendly protein source in the confectionery product, to allow more suitable consumption by individuals suffering from food allergies.
Regarding amended Claim 1, Rifkin in view of Durbin fail to teach the aggregated plant-based protein.
Jung teaches aerated food products and confectionaries with improved or enhanced foam stability by the presence of protein aggregates (Paragraphs 1, 34, 35), and teaches that stability against coarsening, drainage, and phase separation is a major problem for many aerated food products (Paragraph 2). Jung teaches a similar amount of protein in the aerated food product as does Rifkin, teaching up to 10 wt% of proteins at least partially aggregated (Paragraph 10), where the protein aggregates can be pea proteins among other types of protein (Paragraph 31). Jung teaches the protein aggregates provide good foaming and foam stability and allows optimizing the food product final appearance and texture (Paragraph 36). Therefore, in light of the teachings of Jung, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, for the whey proteins used as a stabilizer in the aerated confectionery of Rifkin in view of Durbin to have been protein aggregates, as Jung teaches that aerated confectionery products can have improved or enhanced foam stability by using aggregated proteins. Since Rifkin in view of Durbin teaches an objective of the aerated confectionery to be shelf-stable (Rifkin, Paragraph 25), one of ordinary skill in the art would have been motivated to use aggregated proteins in order to provide the aerated confectionery with enhanced foam stability.
Regarding amended Claim 2, since Rifkin in view of Durbin and Jung teaches the composition of Claim 1 as an aerated confectionery, a foam is deemed to be taught as well by virtue of the pores or pockets of gas within the confectionery and it being water-based.
Regarding amended Claims 7 and 31, Rifkin in view of Durbin and Jung teaches sugar in an amount of 30 to 85% by weight (Rifkin, Paragraph 12), as set forth above, therefore also meeting the claimed ranges, and teaches at least two different sugars as set forth above.
Regarding amended Claim 11, Rifkin in view of Durbin and Jung teaches a water activity in the range of 0.45 to 0.65 (Rifkin, Paragraph 7), therefore meeting the claimed limitation of a water activity greater than 0.45 and no greater than 0.64.
Regarding amended Claims 12 and 14, Rifkin in view of Durbin and Jung are taken as cited above and teaches the claimed composition of the aerated confectionery, with the claimed amount of protein, and with the claimed amount of sweeteners. Rifkin in view of Durbin also teaches aerating the confectionery to a density of 0.7 to 1.25g/cm3 or not more than 0.75g/cm3 (Rifkin, Paragraphs 7 and 18). Since Rifkin in view of Durbin and Jung teaches aerating to the disclosed density, this is seen as equivalent to the aerating to the claimed bulk density, where the density taught by Rifkin in view of Durbin and Jung meets the claimed limitation of aerating to a bulk density of less than 0.8g/cm3. While Rifkin in view of Durbin and Jung does not teach a bulk viscosity of the aerated confectionery, since Rifkin in view of Durbin and Jung teaches the composition as claimed in Claim 1 with the claimed amount of protein and sweeteners, and water in an amount as disclosed by Applicant, one of ordinary skill in the art would have reasonably expected a comparable viscosity of the aerated confectionery, absent teachings to the contrary. The specific bulk viscosity is not met by any reference here because Applicant has chosen to describe his product with physical characteristics that are beyond measurement by this Office and as a practical matter, the Patent Office is not equipped to manufacture products and then obtain prior art products and make physical comparisons therewith. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972) at 59 CCPA 1041. Since the above references in combination teach and render obvious the claimed aerated confectionery comprising the claimed components and aerated to the same density, it would be expected, absent any evidence to the contrary, that the composition would meet the claimed limitations of the claimed bulk viscosity. Furthermore, it has been found that “[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency’ under 35 U.S.C. 102, on prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same...[footnote omitted].” The burden of proof is similar to that required with respect to product-by-process claims. In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (quoting In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)). MPEP 2112.V.
Regarding amended Claim 13, Rifkin in view of Durbin and Jung teaches aerating the confectionery to a density of 0.7 to 1.25g/cm3 or not more than 0.75g/cm3 (Rifkin, Paragraphs 7 and 18). Since Rifkin in view of Durbin and Jung teaches aerating to the disclosed density, this is seen as equivalent to the aerating to the claimed bulk density, where the density taught by Rifkin in view of Durbin and Jung meets the claimed limitation of aerating to a bulk density of less than 0.8g/cm3.
Durbin teaches the stable foam can be aerated to an overrun in the range of 100-700% (Paragraph 24).
While Rifkin in view of Durbin and Jung are silent as to the overrun of the aerated confectionery, one of ordinary skill in the art would have reasonably expected that since the density of the aerated confectionery meets the claimed value, the overrun would also be comparable, in light of the composition of the aerated confectionery that is also taught by Rifkin in view of Durbin and Jung. In any case, it would have also been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the degree of aeration, and therefore the overrun, depending on the desired extent of aeration desired in the confectionery product. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the percentage of overrun in the aerated confectionery involves only routine skill in the art. MPEP 2144.05 II.
Regarding amended Claim 15, Rifkin in view of Durbin and Jung teaches setting agents like gelatin or pectin are not required (Rifkin, Claim 1), therefore meeting the limitation of no more than 3% by weight setting agents.
Regarding amended Claims 21 and 22, Rifkin in view of Durbin and Jung are taken as cited above and teaches or renders obvious step i) of forming an aqueous liquid mass comprising the claimed components or parameters, as set forth in the rejection of amended Claim 1, where the aggregated plant-based protein is rendered obvious to one of ordinary skill in the art by the teachings of Jung above. Rifkin in view of Durbin and Jung teach combining the components of the aqueous liquid mass together and teaches heating to temperatures not greater than 124.5̊C (Rifkin, Paragraphs 49-50 and Examples 1-2), therefore teaching the step of mixing at least the plant-based protein and sugar at a temperature of 50̊C or greater. While Rifkin’s examples disclose egg protein, since Rifkin teaches the stabilizer can be other proteins such as plant-based protein (soy) and Durbin renders obvious the use of other plant-based proteins in an aerated water-based confectionery, it would have been obvious to one of ordinary skill in the art to have used the disclosed method in Rifkin with plant-based proteins as well.
Rifkin in view of Durbin and Jung further teach where the confectionery may be aerated via any method, including chemical aeration or mechanical aeration (Rifkin, Paragraphs 15, 16, 24-26), where the confectionery is aerated by whipping, thereby introducing air into the aqueous liquid mass. Therefore, the claimed method of forming an aqueous liquid mass comprising the claimed ingredients and the step ii) of introducing gas or air into the aqueous liquid mass would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Rifkin in view of Durbin and Jung.
Regarding amended Claim 26, Rifkin in view of Durbin and Jung teaches the confectionery can include and sometimes consist of egg albumen (Rifkin, Paragraph 13), therefore not a required ingredient, a dietary supplement may be a fiber (Rifkin, Paragraph 28), but can be other components instead, therefore not a required ingredient. Rifkin in view of Durbin and Jung does not teach hydrocolloids are required (Rifkin, Page 8, Claim 1). Therefore, Rifkin in view of Durbin and Jung teaches the confectionery can be devoid of one of the claimed ingredients.
Regarding amended Claims 27 and 28, as set forth above, Rifkin in view of Durbin and Jung teach and render obvious the water-based aerated confectionery, and teach that the confectionery is shelf stable, where the compound chocolate coating is used to extend shelf-life (Rifkin, Paragraph 10, and Example 4), but do not specifically teach where the aerated confectionery is stable for at least one month, wherein stability is determined by lack of visible drainage or sugar crystallization or where the aerated confectionery is stable for 6 months at the claimed temperature.
As set forth above, Jung teaches aerated food products and confectionaries with improved or enhanced foam stability by the presence of protein aggregates (Paragraphs 1, 34, 35), and teaches that stability against coarsening, drainage, and phase separation is a major problem for many aerated food products (Paragraph 2). Jung teaches a similar amount of protein in the aerated food product as does Rifkin, teaching up to 10 wt% of proteins at least partially aggregated (Paragraph 10), where the protein aggregates can be whey protein (Paragraph 31). Jung teaches the protein aggregates provide good foaming and foam stability and allows optimizing the food product final appearance and texture (Paragraph 36). Therefore, in light of the teachings of Jung, and the correlation of foam stability with preventing or decreasing coarsening, drainage and phase separation in an aerated confectionery, one of ordinary skill in the art would have reasonably expected that an aerated confectionery made with aggregated whey protein in the claimed amount would exhibit enhanced foam stability, therefore preventing the known discussed issues with aerated confectionery products including drainage. Therefore, the claimed stability parameters would have been obvious to one of ordinary skill in the art in light of the combination of Rifkin in view of Durbin as modified by Jung.
The specific stability parameters recited in Claims 27 and 28 are not met by any reference here because Applicant has chosen to describe his product with physical characteristics that are beyond measurement by this Office and as a practical matter, the Patent Office is not equipped to manufacture products and then obtain prior art products and make physical comparisons therewith. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972) at 59 CCPA 1041. Since the above references in combination teach and render obvious the use of aggregated whey protein as an foam enhancing stabilizer in aerated confectionery, it would be expected, absent any evidence to the contrary, that the composition would meet the claimed limitations of the claimed stability parameters. Furthermore, it has been found that “[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency’ under 35 U.S.C. 102, on prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same...[footnote omitted].” The burden of proof is similar to that required with respect to product-by-process claims. In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (quoting In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)). MPEP 2112.V.
Regarding amended Claim 30, Rifkin in view of Durbin and Jung are taken as cited above in the rejection of amended Claim 7 and teach where the sugar comprises at least two different sugars, as set forth above, and teaches that the sugars can include more than one sugar, where the sugars can include fructose along with other sugars as well (Rifkin, Paragraph 12). While Rifkin in view of Durbin in view of Jung fail to specifically teach at least 20wt% of the sugar content is fructose, since the prior art teaches a combination of sugars can be included as the sugar component and teach a total amount of sugar within the claimed ranges, it would have been well within the skill of one of ordinary skill in the art to determine the specific percentage ratio of the different sugars in the total sugar component, as a result of routine experimentation for one of ordinary skill in the confectionery art. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific percentage of fructose out of the total sugar content involves only routine skill in the art. MPEP 2144.05 II.
Regarding Claim 32, Rifkin in view of Durbin and Jung teaches the confectionery includes a chocolate enrobing layer (Rifkin, Paragraphs 32 and 45).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Rifkin (USPA 2017/0258918), in view of Durbin et al. (USPA 2017/0295835), Jung et al. (USPA 2014/0335255), made of record by Applicant, and further in view of Confectionaries and Chocolate Products” NPL (2019).
Regarding amended Claim 29, Rifkin in view of Durbin and Jung is taken as cited above and teaches the claimed water based aerated confectionery as set forth in the rejection of amended Claim 1.
Regarding the claimed limitation of 2 to 4% by weight protein isolate, Rifkin in view of Durbin and Jung teach and render obvious the use of aggregated protein and hydrolyzed pea protein in an amount within the claimed range. While Rifkin in view of Durbin and Jung do not specifically teach protein isolate, Jung teaches lactoglobulin isolate in an example of preparing protein aggregates (Example 1). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used other protein isolates as well, such as from plant-based proteins as the aggregated protein.
Regarding the claimed limitation of 5 to 25% by weight fruit concentrate, Rifkin in view of Durbin and Jung do not specifically teach this limitation, but Durbin teaches that the whippable food product includes an amount of dietary fiber of up to about 30% by weight, where the dietary fiber sources include fruit juice, puree or solids (Paragraph 62-65), where at least fruit puree or solids meet the limitation of fruit concentrate. Durbin teaches that dietary fiber helps to improve water binding and provide structure in the whipped food product. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, for the water-based aerated confectionery to have included a claimed amount of fruit concentrate, as a known dietary fiber source and to provide water binding and structure to the aerated confectionery.
Regarding the claimed limitation of 80 to 90% by weight invert sugar syrup having a conversion of less than 70%, Rifkin in view of Durbin and Jung teach an amount of sweetener that meets the claimed range and includes sugar, sucrose, glucose, fructose, dextrose, etc., as set forth above in the rejection of Claim 1, but do not specifically teach using invert sugar syrup having the claimed conversion.
Confectionaries and Chocolate Products” NPL (2019) teach of sugar-based confectioneries which can include aerated confections (Page 2), and teach of the common ingredients in sugar-based confectioneries, one of which is sucrose and another is invert sugar (Page 3). The NPL teaches that invert sugar is sucrose that has been hydrolyzed into monosaccharides glucose and fructose, also known as dextrose and laevulose, and that invert sugar can prevent or help control the degree of sucrose crystallization because dextrose and laevulose crystallize more slowly than sucrose and substitution of part of the sucrose with invert sugar leaves less sucrose for rapid crystallization during cooling of syrups, most of the crystals are formed and during subsequent storage when additional crystals precipitate and grow in size (Page 3). NPL also teaches that a mixture of sucrose and invert sugar has greater solubility in water than sucrose alone, which results in less crystallization, and invert sugar also encourages the formation of small crystals which are essential to a smoothness in convections (Page 3). The NPL also teaches that the sweetness of invert sugar is different from sucrose, where dextrose is less sweet and laevulose is sweeter than sucrose (Page 3). While NPL does not specifically discuss invert sugar with a conversion of less than 70%, the conversion is understood to be the ratio at a given time of sucrose to its hydrolysis products of dextrose and laevulose, as discussed by NPL. Therefore, given the benefits in reduced or small sugar crystal formation, increased solubility, increased smoothness of confections made with invert sugar, and a modified sweetness of invert sugar, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used invert sugar as the sweetener with a given conversion depending on the properties desired in the final aerated confection.
The exact percent of conversion of the invert sugar is deemed to be a result effective variable with regard to the preparation of a sweetener having particular desirable sweetness, solubility, crystallization and smoothness properties. It would require routine experimentation to determine the optimum value of a result effective variable, such as the exact conversion percentage of the invert sugar, in the absence of a showing of criticality in the claimed conversion percentage of the invert sugar. In re Boesch, 205 USPQ 215 (CCPA 1980), In re Woodruff, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990). One of ordinary skill in the art would have been motivated by the cited NPL to prepare invert sugar having a particular conversion of sucrose to its hydrolysis products of dextrose and laevulose in order to provide a sweetener in the aerated confectionery that has the properties desired, such as smaller crystals formed, modified sweetness, or smoother texture. Given the teachings of the prior art, it would have been well within the skill of one of ordinary skill in the sweetener or confectionary art to have used an invert sugar having a particular conversion percentage in light of the known properties of invert sugars and the properties desired in the final aerated confectionery product.
Response to Arguments
The 112b rejection has been withdrawn in light of Applicant’s amendments made. The Examiner has indicated that new Claim 33 is allowed based on the combination of newly claimed limitations that are neither taught nor motivated by the prior art. It is also submitted that Applicant has shown unexpected benefits resulting from the claimed combination of limitations to unexpectedly result in improved stability determined by lack of visible draining or sugar crystallization, where such benefits are tied to the claimed type and amount of protein recited as well as the claimed pH and amount of sugar, where the sugar comprises an invert sugar having the claimed sugar conversion. Regarding Applicant’s arguments presented, the Examiner has modified the prior art rejection in light of the claim amendments made. In addition, the following points are noted. Applicant's arguments filed have been fully considered but they are not persuasive for the following reasons. Firstly, it is noted that Applicant states that Rifkin teaches confectionery compositions having a pH higher than the amended limit of 5 and also teaches neutral pH preferably. However, the Examiner respectfully disagrees and points to at least Paragraph 23 of Rifkin who teaches a pH range of 5 or higher and also teaches a pH of no more than 5. Applicant’s claims as amended recite a pH less than 5, and it is submitted that on a scale of pH, with 7 being neutral, a pH of less than 5 and a pH of 5 are still both acidic and one of ordinary skill in the art would not have reasonably expected a significant difference in functionality of an aerated confection having a pH of 5 and a pH of less than 5, where a pH of 4.99 is still considered less than 5 but not significantly different from 5. Therefore, the Examiner maintains the position of Rifkin teaching or rendering obvious the amended limitation of a pH less than 5. Secondly, Rifkin in view of Durbin and Jung are applied for the obviousness of using aggregated whey protein as the stabilizer. Rifkin teaches less than 10% protein stabilizer for an aerated confection, teaches a similar pH and a water activity and sugar content as claimed. The Examiner still maintains that Rifkin in view of Durbin and Jung teach or render obvious a stable aerated water-based confectionery that is significantly similar to what Applicant is claiming, at least as far as what is recited in the independent claims.
Applicant asserts unexpected benefits or results associated with the claimed composition relating to improved stability of the composition as determined by lack of visible drainage or lack of sugar crystallization. However, in considering Applicant’s specification, the Examiner believes that it is the combination of several factors that result in the asserted stability, and which certainly include particulars of the sugars used in the aerated confection, as Applicant points out at least in Page 7, lines 15-35, Page 8, lines 1-10, Pages 18-19, that it is the either the use of two different sugars or an invert sugar having a particular conversion percentage that is critical for the claimed stability and prevention or reduction in drainage and lack of sugar crystallization, along with the claimed pH range in new Claim 33. The asserted unexpected benefits, therefore, are not commensurate in scope with the independent claims that only require 30-90% by weight sugar, without reciting any further particulars of the sugar component in terms of its make up. As set forth above, the Examiner has indicated new Claim 33 containing allowable subject for the reasons set forth above and the narrower scope recited that is commensurate in scope with Applicant’s unexpected results achieved.
For the balance of the claims that have been rejected over prior art, the following points are noted. It is noted that protein aggregates are well known to provide stability to aerated confections, as disclosed above by Jung. Therefore, it is submitted that all of the components of Applicant’s water-based aerated confectionery as recited in the independent claims are known or rendered obvious by the cited prior art, and if Applicant wants to assert unexpected or critical results associate with the claimed invention, claimed aspects including the particulars of the sugars used should also be included in all of the independent claims in order for the assertions to be commensurate in scope with the claims, as well as reciting the narrower pH range. However, at this time, the Examiner is not persuaded of the patentability of Applicant’s claims, and the office action is made final and deemed proper at this time.
Conclusion
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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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 5/27/2026
Prosecution Insights