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 § 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.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 20 is 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.
Regarding claim 20, the recitation “wherein the two connected parts are symmetrical” renders the claim indefinite. Claim 16, from which claim 20 depends, requires that the second half of the edible hollow shell not be identical to the first half. It is not clear how the parts could be symmetrical but not identical?
Claim 21 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims requires the second half is an upper half of the edible hollow shell with respect to the horizontal axis. Claim 16, from which claim 21 depends already requires the first half is below the horizontal plane. Therefore, the second half would necessarily be the upper half with respect to the horizontal axis. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 16-24 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, 21 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. 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.
Conclusion
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.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759