FLOATABLE FOOD PRODUCT FOR MELTING AND/OR DISSOLVING IN A LIQUID

DETAILED ACTION The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The Amendment filed May 19, 2026 has been entered. Claims 21 has been cancelled. Claims 16-20 and 22-29 are pending. The rejection of claim 20 under 35 U.S.C. 112 (b) and claim 21 under 35 U.S.C. 112(d) have been withdrawn in light of Applicant’s amendment and remarks filed May 19, 2026. Claim Rejections - 35 USC § 103 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 16-20, 22-24 and 27-29 are rejected under 35 U.S.C. 103 as being unpatentable over Weiser et al. (US 2016/0255857). Regarding claims 16, 18, 20 and 22, Weiser et al. disclose a food product that contains at least one shell comprising one or more ingredient within the at least one shell ([0005]). Weiser et al. disclose the food product can be dissolved or melted into a heated liquid to release the one or more ingredient and form a heated beverage ([0005]). Weiser et al. disclose that each food product includes a lower shell (i.e., a first half) and an upper shell (i.e., a second half) wherein the upper shell is connected to the lower shell ([0017], [0025]). Weiser et al. disclose embodiments where the lower shell (i.e., a first half) is domed shaped ( Figure 2A, 2B). Weiser et al. disclose the food product can contain any number of shells having any suitable shape, pattern and arrangement ([0021]). Weiser et al. disclose the shell portions denote halves of shells to be joined together to create full spherical shell (i.e., wherein the height of the upper half is the same as the lower half). However non-equal portions of spherical shell or equal or non-equal portions of non-spherical shell could also be used ([0023]). Weiser et al. disclose adding filling to the lower shell wherein the filling comprises ingredients for hot chocolate including marshmallows (i.e., filling having a solid shape) and cocoa mix (Abstract, [0005], [0018]). Given Weiser et al. disclose attaching an upper half on top of the filled lower half, inherently the food product would have a defined air chamber with air. While Weiser et al. disclose adding filling to the lower shell, the reference is silent with respect to filling affixed to an inner surface of the lower shell. However, Weiser et al. discloses attaching edible decorations to the outer surface of the shell using chocolate or other edible bonding agent ([0034], [0039]). Given Weiser et al. disclose how to attach edible decorations a surface of the shells, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have attached edible decorations, including marshmallows and/or the hot chocolate powder to the inner surface of the shells so that they are released to provide decoration to the heated beverage once the shells are melted or to make a hollow shell where the ingredients do not shift or move around and to make a balanced hollow shape. While Weiser et al. is silent with respect to a food product that floats, given Weiser et al. disclose a food product comprising a lower shell filled with marshmallows (a solid shape) and cocoa mix and a hollow upper shell wherein when the upper and lower shells are connected, a chamber of air is present, it follows the food product would float for a period of time in a liquid with the lower half (with the filling) being below the liquid on the horizontal plane. Regarding claim 17, Weiser et al. disclose all of the claim limitations as set forth above. Weiser et al. disclose the shells of the food product are formed from chocolate (Abstract,[0005], [0017]). Regarding claim 19, Weiser et al. disclose all of the claim limitations as set forth above. While Weiser et al. disclose forming a lower shell having a dome shape, the reference is silent with respect to the diameter. Weiser et al. disclose each shell can have any suitable size and dimensions ([0017], [0021]). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have formed the lower shell to have any diameter, including the claimed diameter of 40 mm depending on its intended use or dosing of the beverage to be formed with the food product. Regarding claim 23, Weiser et al. disclose all of the claim limitations as set forth above. While Weiser et al. disclose marshmallows, the reference does not disclose the marshmallows are substantially spherical. However, the shape of the marshmallows is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evident that the particular shape of the solid shape filler was significant (MPEP §2144.04 IV B). Regarding claim 24, Weiser et al. disclose all of the claim limitations as set forth above. Weiser et al. disclose the shells of the food product can be melted into a heated liquid to release the filling ingredients (Abstract, [0004]-[0005], [0016], [0020]). Given Weiser et al. disclose a food product comprising shells intended to melt when contacted with a heated liquid, it necessarily follows the food product would melt within the claimed range of 20-40 seconds. In the alternative, one of ordinary skill in the art would have been motivated to adjust, in routine processing, the size, thickness and make-up of the shells, to obtain a food product having a desired melting profile. Regarding claim 27, Weiser et al. disclose all of the claim limitations as set forth above. While Weiser et al. a food product made up of shells, the reference is silent with respect to the uniformity of the wall thickness . However, the configuration of the wall, i.e., uniformity of thickness, is a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evident that the particular shape of the solid shape filler was significant (MPEP §2144.04 IV B). Regarding claims 28 and 29, Weiser et al. disclose all of the claim limitations as set forth above. Weiser et al. disclose the food product is made by a method comprising the steps of: (a) forming the upper and lower shells by molding chocolate or other materials (i.e., a first nutrient) ([0023], [0031]); (b) obtaining marshmallows and cocoa mix ([0005], [0030]); (c) placing the marshmallows and cocoa mix in the formed upper shell (Figures 2A-B); and (d) connecting (i.e., welding) the upper and lower shells together using melted chocolate (i.e., chocolate in liquid state) ([0017], [0025]). Given Weiser et al. disclose forming the upper and lower shells by molding chocolate, inherently the chocolate would be poured into the molds in a molten or liquid state. Weiser et al. disclose that the marshmallows and cocoa mix could be manufactured on-site (i.e., preforming the filling –[0030]). While Weiser et al. is silent with respect to cooling the shells after being formed or cooling the marshmallows after being formed, it would have been obvious to one of ordinary skill in the art to have cooled both products to facilitate further handling. Claims 25 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Weiser et al. (US 2016/0255857) in view of Crocker (“Creamy Hot Chocolate {made with Ganache}”, Family Table Treasures, December 9, 2015, https://www.familytabletreasures.com/creamy-hot-chocolate-made-with-ganache/, downloaded February 15, 2026). Regarding claims 25 and 26, Weiser et al. disclose all of the claim limitations. Weiser et al. is silent with respect to a concentrated chocolate, e.g., ganache, filling. While Weiser et al. disclose the food product could containing marshmallow or cocoa mix, any suitable ingredients could be used ([0018]). Crocker teaches hot chocolate made with chocolate ganache (i.e., concentrated chocolate). Crocker teaches the hot chocolate made with ganache makes a creamy and rich hot chocolate beverage. Weiser et al. and Crocker are combinable because they are concerned with the same field of endeavor, hot chocolate beverages. It would have been obvious to one of ordinary skill in the art to have added ganache to the food product of Weiser et al. in order to obtain a more rich and creamy hot chocolate product. Response to Arguments Applicant's arguments filed May 19, 2026 have been fully considered but they are not persuasive. Applicant submits “Weiser does not teach or suggest affixing the ingredients to any portion of the shell.” Applicant explains the solid interior filling affixed to the interior surface of the first half functions as a ballast for the food product when placed in liquid, enabling the food product to float oriented in an upright position. Applicant is directed to the rejection of claim 1 set forth above. Note, the specification provides no discussion of solid interior filling being affixed to the interior surface to function as a ballast for the food product when placed in a liquid. The specification only states the filling is adhered to one side of the hollow shell and if the filling has a solid shape (e.g., spherical), it can be attached to one side by applying (to the filling and/or side) melted chocolate (or another nutrient in liquid state) and hence after solidification of the melted chocolate (or other nutrient in liquid state) the filling is affixed to the side. 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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. ELIZABETH A. GWARTNEY Primary Examiner Art Unit 1759 /ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759