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
Applicant’s election without traverse of Group I drawn to claims 1-11 and 14-15 in the reply filed on 06/29/2026 is acknowledged.
Claims 12-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/29/2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claims 1-11 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Chisholm (US 2021/0212336 A1), in view of Ma (US 2021/0022366 A1), both found in applicant’s IDS filed 03/29/2024.
Regarding Claim 1, Chisholm discloses an aerated fat-based confectionary material (aerated fat based confectionary material Abstract)
comprising a fat phase, a sweetener, and optionally water (fat-based confectionary materials comprise a fat and preferably a sugar Par. 0048)
wherein the fat phase is the continuous phase (continuous lipid phase Par. 0005)
Chisholm does not teach having: a content of lauric acid (C12) in a range of from 10 to 35 % by weight, based on the total weight of C8-C24 fatty acids; a content of palmitic acid and stearic acid (C16+C18) in a range of from 20 to 50 % by weight, based on the total weight of C8-C24 fatty acids; a content of triglycerides with a carbon number of 46 (CN46) of from 8 to 16 % by weight, based on the total weight of the triglycerides; or and a content of triglycerides with a carbon number of 42 and 44 (CN42+CN44) of from 13 to 28 % by weight, based on the total weight of the triglycerides.
Ma, in the same field of endeavor, teaches a fat phase having: a content of lauric acid (C12) in a range of from 10 to 35 % by weight, based on the total weight of C8-C24 fatty acids (13-32% lauric acid, based on total weight of C8 to C24 fatty acids Par. 0009)
a content of palmitic acid and stearic acid (C16+C18) in a range of from 20 to 50 % by weight, based on the total weight of C8-C24 fatty acids (6.2% C16:0, 33.99% C18:0 in Fat A Table 1; percentages of fatty acids in compositions referred to herein are based on the total weight of C8 to C24 fatty acids Par. 0014)
a content of triglycerides with a carbon number of 46 (CN46) of from 8 to 16 % by weight, based on the total weight of the triglycerides (8-10% CN46 triglycerides based on total triglycerides Par. 0024)
and a content of triglycerides with a carbon number of 42 and 44 (CN42+CN44) of from 13 to 28 % by weight, based on the total weight of the triglycerides (15-28% CN42 and CN44 triglycerides, percentage of total triglycerides Par. 0009).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Chisholm with the fat phase composition of Ma. One would have been motivated to make this modification to provide confectionary or bakery items having favorable sensory properties Ma Par. 0010).
Regarding Claim 2, Chisholm further teaches the aerated fat-based confectionary material has an overrun (OR%) in a range of from 30 to 90 % (overrun of approximately 47% Par. 0133)
Regarding Claim 3, Chisholm does not teach the continuous fat phase has a content of unsaturated C18 fatty acids in a range of from 15 to 40% by weight, based on the total weight of C8- C24 fatty acids.
Ma teaches the continuous fat phase has a content of unsaturated C18 fatty acids in a range of from 15 to 40% by weight, based on the total weight of C8- C24 fatty acids (20-45% stearic acid, based on total weight of C8 to C24 fatty acids Par. 0009).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Chisholm with the fat phase composition of Ma. One would have been motivated to make this modification to provide confectionary or bakery items having favorable sensory properties Ma Par. 0010).
Regarding Claim 4, Chisholm does not teach the continuous fat phase has a ratio of palmitic acid over stearic acid (C16/C18) of maximally 1.2 and/or a ratio of palmitic acid over stearic acid (C16/C18) of minimally 0.5.
Ma teaches the continuous fat phase has a ratio of palmitic acid over stearic acid (C16/C18) of maximally 1.2 and/or a ratio of palmitic acid over stearic acid (C16/C18) of minimally 0.5 (ratio of stearic acid to palmitic acid of 3.1:1 to 7:1 Par. 0020).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Chisholm with the fat phase composition of Ma. One would have been motivated to make this modification to provide confectionary or bakery items having favorable sensory properties Ma Par. 0010).
Regarding Claim 5, Chisholm further teaches the continuous fat phase comprises at least one chemically or enzymatically interesterified fat (interesterified shea butter Par. 0073).
Regarding Claim 6, Chisholm does not teach the continuous fat phase consists of non-hydrogenated fats.
Ma teaches the continuous fat phase consists of non-hydrogenated fats (non-hydrogenated Par. 0013).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Chisholm with the fat phase composition of Ma. One would have been motivated to make this modification to provide confectionary or bakery items having favorable sensory properties Ma Par. 0010).
Regarding Claim 7, Chisholm further teaches from 25 to 80 % by weight of the continuous fat phase, based on the weight of the aerated fat-based confectionary material (lipid content between 60 and 85% Par. 0077; lipid content greater than 30 wt% Par. 0079).
Regarding from 30 to 75 % by weight of the sweetener, based on the weight of the aerated fat-based confectionary material, Chisholm teaches between 1 and 100% by weight sweetener (solid particles including sugars, solid particles present at a level between 1 and 100% of the total lipid weight Par. 0074). As Chisholm discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Chisholm to have from 30 to 75% by weight of sweetener. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 30 to 75%) from the taught range of between 1 and 100% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding Claim 8, Chisholm further teaches at most 20 % by weight of an aqueous solution or dispersion, based on the weight of the aerated fat-based confectionary material (may be essentially free from water Par. 0050). In Par. 0014 and 0060 of the specification filed 03/29/2024, Applicant discloses water as an aqueous solution or dispersion.
Regarding Claim 9, Chisholm further teaches the aerated fat-based confectionary material further comprises an additional ingredient, selected from the group consisting of milk ingredients, milk alternative ingredients, egg ingredients, cocoa ingredients, fruit ingredients, coffee powder, nut paste, natural colorants, synthetic colorants, salt, antioxidants, emulsifiers, natural flavors, synthetic flavors, and a combination of two of more thereof (may comprise milk derived components Par. 0048)
Regarding Claim 10, Chisholm further teaches the aerated fat-based confectionary material is substantially free of water and/or emulsifier (may be essentially free from water Par. 0050)
Regarding Claim 11, Chisholm further teaches a) from 40 to 70 % by weight of the continuous fat phase (56.6% coconut oil Par. 0172)
b) from 20 to 50 % by weight of a sweetener (28.4% sugar Par. 0172)
d) from 0.3 to 1.0 % by weight of lecithin; wherein the amounts are based on the weight of the aerated fat-based confectionary material (0.5% lecithin Par. 0172)
and wherein said aerated fat-based confectionary material has an overrun (OR%) in a range of from 30 to 90 % (35% overrun Par. 0183).
Regarding from 0.5 to 8 % by weight of an aqueous solution or dispersions, Chisholm teaches less than 5% of an aqueous solution or dispersion (Par. 0050). As Chisholm discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Chisholm to have from 0.5 to 8% by weight of an aqueous solution or dispersions. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 0.5 to 5%) from the taught range of less than 5% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding Claim 14, Chisholm and Ma disclose the aerated fat-based confectionary material according to claim 1 above.
Chisholm further teaches a confectionary product comprising the aerated fat-based confectionary material (confectionary product comprising the aerated fat-based confectionary material such as filled biscuit such as a sandwich wafer, chocolate moulded tablet Par. 0078)
Regarding Claim 15, Chisholm further teaches said confectionary product is selected from the group consisting of biscuits, cakes and cupcakes, sandwich cookies, wafers, chocolates tablets, fondants, truffles, caramels and pralines (confectionary product comprising the aerated fat-based confectionary material such as filled biscuit such as a sandwich wafer, chocolate moulded tablet Par. 0078).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gunes (US 2018/0070598 A1) teaches a foam having a continuous lipid phase (Par. 0001) comprising triglycerides (Par. 0005).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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