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 .
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, 10-18, 20, 21, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Rifkin (USPA 2017/0258918) in view of Jung et al. (USPA 2014/0335255), 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., at least one stabilizer which is a protein such as whey 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 can be a whey protein and that stabilizers are 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 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 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 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, 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 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 teaches an objective of the aerated confectionery to be shelf-stable (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 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 Claim 7 and new Claim 27, Rifkin teaches sugar in an amount of 30 to 85% by weight, as set forth above, therefore also meeting the claimed ranges, and teaches at least two different sugars as set forth above.
Regarding amended Claim 10, Rifkin in view of 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 Jung does not teach hydrocolloids are required (Rifkin, Page 8, Claim 1). Therefore, Rifkin in view of Jung teaches the confectionery can be devoid of one of the claimed ingredients.
Regarding amended Claim 11, Rifkin in view of 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 Jung is 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 Jung 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 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 Jung meets the claimed limitation of aerating to a bulk density of less than 0.8g/cm3. While Rifkin in view of Jung does not teach a bulk viscosity of the aerated confectionery, since Rifkin in view of Jung teaches the composition as claimed in amended 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. 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 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 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 Jung meets the claimed limitation of aerating to a bulk density of less than 0.8g/cm3. While Rifkin in view of Jung is 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 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 Jung teaches setting agents like gelatin or pectin are not required (Rifkin, Page 8, Claim 1), therefore meeting the limitation of no more than 3% by weight setting agents.
Regarding amended Claims 16 and 20, Rifkin in view of Jung teaches the confectionery can include fruit powders as the active ingredient or dietary supplement and one or more flavorings as Rifkin teaches the confectionery includes a chocolate enrobing layer (Rifkin, Paragraphs 32 and 45, Page 8, Claim 1).
Regarding amended Claims 17 and 18, as set forth above, Rifkin in view of Jung teaches the aerated confectionery can be shelf stable but does 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 as modified by Jung.
The specific stability parameters recited in Claims 17 and 18 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 21, Rifkin in view of Jung is taken as cited above and teaches the confectionery composition as set forth in the rejection of amended Claim 1, and teaches where the confectionery may be aerated via any method, including chemical aeration or mechanical aeration, (Rifkin, Paragraphs 16 and 17), where the confectionery is aerated, thus it may comprise air and/or inert gas (Rifkin, Paragraph 10). Therefore, the claimed method of forming an aqueous liquid mass comprising the claimed ingredients and introducing gas 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 Jung.
Claims 19 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Rifkin (USPA 2017/0258918), in view of 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 19 and new Claim 26, Rifkin in view of Jung are 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 aggregated whey protein isolate, Rifkin in view of Jung teach and render obvious the use of aggregated whey protein in an amount as claimed as set forth above in the rejection of Claim 1. While Rifkin in view of Jung do not specifically teach aggregated whey protein isolate, Rifkin 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, including from the disclosed whey proteins as the aggregated protein.
Regarding the claimed limitation of 5 to 25% by weight fruit concentrate, Rifkin in view of Jung teach fruit powders as dietary supplements or active ingredients (Paragraph 32), where fruit powders meet the limitation of fruit concentrate. Rifkin in view of Jung do not specifically teach an amount of the fruit powders as dietary supplements/active ingredients added to the aerated confectionery. However, since Rifkin provides for aerated confections having particular parameters of water activity, and amounts of protein stabilizers, sweeteners, etc., it would have been well within the skill of one of ordinary skill in the art to have optimized the amount of dietary supplements or active ingredients to have included in the aerated confectionery, depending on the flavor profile desired in the final product and while keeping the other parameters in mind.
In addition, 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.
In the instant case, since the prior art teach the use of fruit powders as dietary supplements to be added to the aerated confectionery, it would have been obvious to one of ordinary skill in the art to optimize the concentrations of the different components in order to maximize the functional and sensorial contributions of each of the components, depending on the desired food product formulation. Such an optimization would be the result of routine experimentation for one of ordinary skill in the art, absent any evidence to the contrary.
Regarding the claimed limitation of 80 to 90% by weight invert sugar syrup having a conversion of less than 70% and the limitation in new Claim 26 of the sugar comprising at least two different sugars, wherein one of the sugars is fructose that forms at least 20% by weight of the total sugar content, Rifkin in view of Jung teach an amount of sweetener that meets the claimed range and includes sugar, sucrose, glucose, fructose, dextrose, etc., but do not specifically teach using invert sugar syrup having the claimed conversion or at least 20% by weight fructose.
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 (glucose and fructose), 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 and a given amount of fructose as conversion product depending on the properties desired in the final aerated confection.
The exact percent of conversion of the invert sugar and an amount of fructose as % of the total weight of sugar are both deemed to be result effective variables 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 (glucose and fructose) and an optimal amount of fructose out of total sugar content 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.
Double Patenting
Claims 1-3, 6, 7, 10-21, 26 and 27 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-3, 6, 7, 11-15, 21, 22, 26-33 of copending Application No. 18/684759 (reference application) in view of Jung (USPA 2014/0335255), made of record by Applicant.
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the copending application recite a water-based aerated confectionery having a pH, water activity, sugar and aggregated protein, all in amounts that are the same, with the only different between the claims is the copending application recites aggregated hydrolyzed pea protein and instant Claim 1 recited aggregated whey protein. The balance of the claims recite similar subject matter as in the instant claims.
Jung is taken as cited above and teaches that pea and whey are both globular proteins (Paragraph 31) and 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).
Therefore, the instant claims reciting aggregated whey protein as the protein would have been obvious to one of ordinary skill in the art starting with the claims in the copending applications and modifying the aggregated pea protein to be aggregated whey protein, as motivated by Jung and the teaching that pea and whey are both globular proteins and ne of ordinary skill in the art would have expected a reasonable degree of success in substituting one globular protein for another in an aerated food product or confectionery that utilizes the functionality of aggregated proteins for enhanced stability.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
The claim objections have been withdrawn in light of Applicant’s amendments to the claims. The prior art rejections have been withdrawn in light of Applicant’s amendments made. Applicant's arguments filed 2/2/2026 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 in a scale of pH, with 7 being neutral, a pH of less than 5 and 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 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 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 6, lines 10-20 and 30-35, Page 24, lines 10-25 and Pages 26-27, and as recited in Claims 7 and 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. The asserted unexpected benefits, therefore, are not commensurate in scope with the independent claims that only require 30-90% by weight sugar. The ODP rejection is maintained for the reasons set forth above. It is also 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 the independent claims in order for the assertions to be commensurate in scope with the claims. 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.
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 5/22/2026
Prosecution Insights