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 the Application
Receipt is acknowledged of the amendment and response filed 3/26/2026. Claims 1-22 are pending in the application. Claims 1 and 2 were amended.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/26/2026 was filed before close of prosecution in the application. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-22 are rejected under 35 USC 103 as being unpatentable over RU2727011C1 in view of Agarwala (US4542033A).
Regarding claim 1 ‘011 discloses a fruit-containing confection (dragees) comprising an intermediate-moisture fruit present in an amount of about 20 wt.% to
about 80 wt.% (about 80%), [0016] based on the total weight of the fruit-containing confection; and a binding agent, [about 20% [0016]) wherein the intermediate-moisture fruit has a moisture content of about 10 wt.% to about 30 wt.%, (10%-12% [0010]) based on the total weight of the intermediate-moisture fruit. ‘011 does not specifically disclose wherein the intermediate moisture fruit is incorporated into the fruit containing confection with minimal destruction to the cell structure of the fruit. Agarwala however in producing shelf stable fruit with cell structure intact (column 4 lines 26-30) for addition to ready to eat cereal products, discloses intermediate moisture fruit (column 6 line 29) cooked in sugar syrups or concentrated fruit juice or fruit powder (column 4 lines 50-54). As both ‘011 and Agarwala are directed to intermediate moisture fruit containing ready to eat food products, it would have been obvious to one of ordinary skill in the art looking to have intermediate moisture fruit with intact cell structure in a confection, to modify the method in ‘011 with intermediate moisture fruit pieces from a method in Agarwala with a reasonable expectation of success.
Regarding claim 2, the fruit-containing confection in’011 comprises blueberry, cranberry, strawberry.
Regarding claim 3, ‘011 does not provide apple as a choice of fruit. However, based on consumer taste preferences, one would has substituted a fruit in ‘011 with another healthful fruit, apple, with a reasonable expectation of successfully making a confection as disclosed. Motivation to do so is available from Agarwala disclosing intermediate moisture apple pieces (example 2) in food products.
Regarding claim 4, the intermediate-moisture fruit has a moisture content of about 12 wt.% which overlaps the lower limit of the claimed range, based on the total weight of the intermediate-moisture fruit.
Regarding claim 5 and 6, ‘011 discloses an auxiliary fiber based binding agent (fruit powder, cocoa powder) but does not specifically disclose the claimed fiber based binding agents. However, fiber containing inulin based syrups, maltodextrin , soluble corn fiber and chicory root fiber are known sources of soluble fiber polysaccharides. It would have been obvious to one of ordinary skill in the art to have considered modifying the confection in ‘011 with added soluble dietary fiber sources as above which have binding functionality with a reasonable expectation of successfully making a confection with low monosaccharides and disaccharides content with a reasonable expectation of success. Motivation is available from consumer preference for foods with no added sugar content.
Regarding claim 7, in ensuring no added sugar content, one would consider replacing the honey in ‘011 with a known multifunctional polyol, erythritol, with sweetening, humectant and binding functionality with a reasonable expectation of success, based on its known successful use in confections.
Regarding claim 8 and 9 the binding agent in’011 is a sugar-based binder,
honey [0010].
Regarding claims 10 and 11 modified ‘011 is free of sugar-based binding agents and/or syrups.
Regarding claim 12, the binding agent as above has no added sugars.
. Regarding claim 13, the binding agent is present in an amount of about 10 wt.% to about 20 wt.%,(about 20% [0016]) based on the total weight of the fruit-containing confection.
Regarding claim 14, based on the low moisture content of the confection and the presence of honey (a natural humectant that lowers water activity) the confection in ‘011
Regarding claim 15, the confection in ‘011 contains an auxiliary color and flavor agent (cocoa powder, fruit powder).
Regarding claim 16, the auxiliary agent is expected to be present in the claimed broad range of 1% to 10% by weight as it is blended in to form ball-shaped confection units [0016].
Regarding claim 17, adding 1 wt.% to about 4 wt.% of a saturated fat such as coconut or palm oil or cocoa butter to modified ‘011 is considered an obvious modification to obtain targeted taste, texture or appearance characteristics in the dragees.
Regarding claim 18, an acidulant present in an amount of about 0.01 wt.% to about 2 wt.%, which is a typical amount in confections is considered an obvious modification of ‘011 by one of ordinary skill in the art, to provide a tanginess in combination with selected flavors.
Regarding claim 19, the confection in ‘011 is a coated confection (dragees).
Regarding claim 20 dragees in ‘011 comprised of a fruit powder, honey and cocoa powder in the above proportions is expected to have a crispy texture.
Regarding claim 21 and 22, in ‘011, the method of making the confection is by admixing intermediate moisture fruit with the binding agent and vacuum drying [0010] [0016]. One of ordinary skill in the art would have applied these steps in modified ‘011 with a reasonable expectation of success.
Claims 1-22 are therefore prima facie obvious in view of the art.
Response to Arguments
Claim amendments render the previous rejections under 35 USC 112(b),35 USC 102 and 35 USC 103 moot. However, the amended claims present new grounds for rejection as detailed in the current office action.
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 Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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