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 .
Election/Restrictions
Upon further consideration of the restriction previously set forth, the Examiner has decided to withdraw the restriction, therefore Claims 1-7, 11-15, 21, 22, 26-32 will all be examined on their merits.
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 21, 22, 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 Claims 21 and 22 now recite “A method of making the water-based aerated confectionery of claim 1”, and also recite “between 1 wt% to 8 wt% aggregated plant-based protein”. There is insufficient antecedent basis for the limitation of the protein being aggregated in the claim, as this limitation was not recited in Claim 1, and it is noted that it is in Claim 4 where the limitation of the protein being aggregated is introduced.
New Claim 29 recites “2 wt% to 4wt% protein isolate. It is unclear how this limitation of a generic protein isolate relates to amended Claim 1 reciting between 1wt% to 8wt% plant-based protein being a hydrolyzed pea protein. Therefore, it is unclear whether the generic protein isolate recited is in addition to the hydrolyzed pea protein recited in Claim 1 or if it is the same protein component. Therefore, the metes and bounds of the claim are indefinite for search and examination purposes. For the purposes of finding prior art, the limitation in new Claim 29 will be seen to be met by Claim 1 provided the protein can be an isolate as well.
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, 26, 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), 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 5.0 (Paragraph 23), which meets the claimed limitation of less than 5.5 or where the pH is between 2 and 5. 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 Claim 2, since Rifkin in view of Durbin 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 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 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 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 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 meets the claimed limitation of aerating to a bulk density of less than 0.8g/cm3. While Rifkin in view of Durbin does not teach a bulk viscosity of the aerated confectionery, since Rifkin in view of Durbin 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 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 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 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 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. 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 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 new Claim 26, Rifkin in view of Durbin 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 does not teach hydrocolloids are required (Rifkin, Page 8, Claim 1). Therefore, Rifkin in view of Durbin teaches the confectionery can be devoid of one of the claimed ingredients.
Regarding new Claim 30, Rifkin in view of Durbin are taken as cited above in the rejection of 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 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 new Claim 32, Rifkin in view of Durbin teaches the confectionery includes a chocolate enrobing layer (Rifkin, Paragraphs 32 and 45).
Claims 4, 21, 22, 27 and 28 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 amended Claims 4, 21, 22, 27 and 28, Rifkin in view of Durbin are taken as cited above and teach and render obvious the aerated water-based confectionery, as set forth above in the rejection of amended Claim 1.
Regarding amended Claim 4, Rifkin teaches the aerated confectionery comprises a stabilizer such as whey protein, as set forth above, but fails to teach where the protein is aggregated.
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 Claims 21 and 22, Rifkin in view of Durbin 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 new 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.
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 new Claim 29, Rifkin in view of Durbin 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 in an amount as claimed as set forth in the rejection of Claim 4. While Rifkin in view of Durbin 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 2/25/2026