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 claims 1-16 and 20 in the reply filed on 5/22/2026 is acknowledged.
Claims 17-19 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 5/22/2026.
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.
Claim(s) 1,8-16,20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rosso(US 6024995) in view of and Klosterboer(Chocolate Truffles Recipe) and Paola(Chocolate Truffles Inspired by Miele USA).
Regarding claims 1,8-12 Rosso a confectionery product comprising a shell, containing a filling that is fluid or flowable at ambient temperature(col 4, line 12-31), and a coating that is solid at ambient temperature, the coating at least partially covering said shell and being capable of melting at a temperature of 28°C or more, wherein the confectionery product further comprises an outer coating anchored to said coating,
said outer coating comprising a coating of a particulate structure such as chopped hazelnuts, coconut flakes, etc.
Specifically, the outer coating is liquid at higher temperature(above 28C) and sets(is solid) upon cooling to ambient temperature(col 4, line 32-43).
Rosso does not specifically teach that the outer coating comprises a mixture of chocolate grains and of grains comprising a sugar and protein based-solid and foamed confectionery substance which has a cellular and porous structure and is water soluble.
However, Kloesterboer teaches that chocolate truffles can contain a number of coatings from added flavor including chocolate shavings(chocolate grains)(p.30). Likewise, Paola teaches that the chocolate truffles can contain meringue pieces for added flavor(p.8). Meringue is known to be a sugar and protein based-solid and foamed confectionery substance which has a cellular and porous structure and is water soluble. Meringue pieces are also identified in the instant spec as grains comprising a sugar- and protein-based solid and foamed confectionery substance which has a cellular or porous structure and is water-soluble as claimed. It would have been obvious to include both meringue pieces (foamed confectionery substance) and chocolate savings(chocolate grains) on the confectionery product of Rosso in order to add flavor and texture as taught in Kloesterboer and Paola. It would have been obvious to adjust the amount of chocolate grains and meringue grains and size of each of the grains in the coating depending on the texture and flavor desired.
Regarding claim 13, Rosso teaches that said shell is formed from two half shells of wafer obtained from a bakery dough, coupled and welded to each other along respective annular mouth edges(col 4, line 22-31).
Regarding claim 14, Rosso teaches that the filling consisting of substantially anhydrous edible mass comprising vegetable oils and hazelnut paste. Rosso describes the filling as a “chocolate-flavoured cream”(col 3, line 46-53). Cream would inherently contain milk proteins. It would have been further obvious to include sugar since creams and chocolate are commonly sweetened for added flavor.
Regarding claim 15, Rosso teaches that the coating is a chocolate coating(col 4, line 32-42).
Regarding claim 16, Rosso, Kloesterboer, and Paola do not teach the method of making the chocolate grains. However, is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Rosso, Kloesterboer, and Paola meet the requirements of the claimed confection, Rosso, Kloesterboer, and Paola clearly meet the requirements of the present claims.
Regarding claim 20, Rosso does not specifically teach that the confectionery pieces as packaged in the claimed manner. However, it would have been obvious to adjust the type of packaging needed for the confectionery product depending on consumer needs.
Claim(s) 2-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rosso(US 6024995) in view of and Klosterboer(Chocolate Truffles Recipe) and Paola(Chocolate Truffles Inspired by Miele USA) further in view of Blue Jean Chef.com(Chocolate Eton Mess).
Regarding claims 2-7, Rosso is silent on the composition of the meringue grains. However, Blue Jean Chef teaches a confection containing meringue pieces mixed with whipped cream, berries, and chocolate. Blue Jean Chef teaches that the meringue contains egg white, sugar, and starch(p.11-12). Blue Jean Chef is silent on the presence of milk proteins, chemical leaveners, and, hazelnut paste.
However, Rosso teaches that the confection contains hazelnut pieces on the outer coating and a hazelnut filling(col 4, line 25-42). It would have been obvious to include hazelnut paste in with the meringue composition in order to provide hazelnut flavor that goes with the hazelnut filling and topping.
Furthermore, it would have been obvious to include milk chocolate in with the meringue(which contains milk proteins) in for added flavor.
It would have been further obvious provide a leavening agent for stability, as is known in the art. It would have been obvious to adjust the amount of each ingredient as is known by one of ordinary skill in the baking art. It would have been obvious to make known swaps such as wheat starch for corn starch and icing sugar for the sweetener as is customary in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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