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 .
This office action is in response to the application filed on January 9, 2025. This application is a continuation of abandoned application 16/758,255.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-10 in the reply filed on July 28, 2026. is acknowledged.
Claims 11-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d) with a filing date of October 26, 2017 and February 16, 2018. The certified copies of EP 17198650 and EP 18157182 have been filed in the parent application, application number 16/758,255, both received on April 22, 2020.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
The present application is a 371 National Stage Application of PCT/EP2018/079430 which has a filing date of October 26, 2018.
Status of Application
Claims 1-13 were originally presented and subject to a restriction requirement. Claims 1-3, 8, and 10-16 are pending; claims 11-13 have been withdrawn; claims 4-7 and 9 have been canceled; claims 14-16 are new. Claims 1-3, 8, 10, and 14-16 are presented for examination.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it is less than 50 words and it contains the implied phrase of “the present invention relates to” in line 1. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3 and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Whetstone, Jr. (US PG Pub. 2011/0045155; listed on IDS dated Jan. 9, 2025), herein after referred to as Whetstone.
Regarding claim 1, Whetstone teaches a process for producing chocolate (i.e., a confectionery) [0001] that comprises a modular step of cooling the confectionery ([0002]; [0039]), the process further comprising:
stacking molds on top of each other to form a stack of molds so that said molds are in direct contact (Fig. 14; [0014]; [0045]),
wherein the sidewalls of the said molds extend further down than the chocolate mold cavities and support (Figs. 2 and 3 – 30, 32, 40, 42) thereby forming apertures in both an individual mold and in between two adjacent molds stacked on top of the other, as there is space shown between the top of one mold and the bottom of the other mold (Figs. 5 and 6) (marked up versions of the figures are included below),
wherein a flow of air (i.e., gas) is sufficient to aid in cooling of the confectionery [0076] and said apertures and features of the molds are considered to allow the flow of air between two molds stacked together that is sufficient to aid cooling of the confectionery (Figs. 5 and 6),
wherein said apertures extend through the entire length of the y axis in the mold (see the reproduced figures below),
wherein the step of cooling said stack of molds is considered to be performed whilst the chocolate is stationary, since the chocolate is stationary within the molds and mold cavities, otherwise the chocolate wouldn’t be able to be molded into the desired shape,
wherein the cooling takes place in a cooling unit that may be a conventional cooling unit [0076].
The cooling step is modular because the step is mechanically independent from the rest of the product line. The cooling step comprises chocolate cooler conveyors (Fig. 14 – 97” and 98” that are separate from the production line’s conveyor (Fig. 14 – 27”).
Whetstone does not explicitly teach that the cooling takes place in a container that may be sealed after insertion of said molds. However, where Whetstone teaches that cooling may take place in a conventional cooling unit [0076], and where the claim only requires that the container may be sealed, it would have been obvious to one of ordinary skill in the art that the conventional cooling unit as taught by Whetstone may have the ability to be sealed after insertion of said molds, such as if the cooling unit was that of a batch cooler.
Regarding claim 2, Whetstone teaches that the cooling is carried out at a temperature of 48-65°F (~9-18°C) [0039], which overlaps with the claimed range of a temperature greater than 16°C. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Regarding claim 3, Whetstone is silent as to the length of the cooling time. However, Whetstone does teach that the chocolate cooler cools the liquid chocolate in molding trays until the chocolate solidifies [0039]. Given that Whetstone teaches cooling the chocolate at a temperature that overlaps with the claimed temperature, the amount of time it takes to cool the chocolate is considered to render obvious the claimed time, as chocolate cooled at similar temperature would take a similar time to cool. Furthermore, the claimed time is not considered to represent an unobvious contribution over the prior art where both the prior art and the instant invention are cooling chocolate (confectionery) products at approximately the same temperature.
Regarding claim 8, Whetstone teaches that the cooling is carried out using a cooling unit (Fig. 12 – 24’; [0039]; [0076]), wherein the cooling unit is capable of blowing air (i.e., propelling a gas) [0076] and is considered to blow the air through the apertures in the molds as set forth above with regard to claim 1 where said apertures and features of the molds are considered to allow the flow of air between one individual mold or two molds stacked together.
While Whetstone does not explicitly teach that the cooling unit comprises a ventilator or fan, given that Whetstone teaches that the cooling unit is capable of “blowing cool air thereinto,” the “blowing” can only be achieved via a fan or something sufficiently similar. Thus, it would have been obvious to one of ordinary skill in the art that the convention cooling unit of Whetstone would comprise a fan, since the blowing of air would not be possible without one.
Regarding claim 14, Whetstone teaches that said stack of molds comprises four molds (Fig. 15; [0033]; [0085]).
Regarding claim 15, Whetstone teaches that during the cooling step at least two of said stacks of molds are arranged laterally/parallelly with each other (Fig. 14; [0016]).
Regarding claim 16, Whetstone is silent as to that during the cooling step the at least two stacks of molds are in direct contact.
However, whether or not the stacks are in contact with each other during the cooling step is merely an obvious design and engineering choice. Contacting the stacks as opposed to keeping them separate is merely a matter of choice which one of ordinary skill in the art would have found obvious absent persuasive evidence or criticality that the particular positioning was significant. See MPEP 2144.04.IV.,V.,VI.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Whetstone, Jr. (US PG Pub. 2011/0045155; listed on IDS dated Jan. 9, 2025), as applied to claim 1 above, and further in view of Carlin et al. (US Patent 4,068,004; listed on IDS dated Jan. 9, 2025), herein after referred to as Whetstone and Carlin, respectively.
Whetstone teaches the process for producing confectionery as set forth above with regard to claim 1.
Whetstone is silent as to the speed of the flow of air (i.e., gas).
Carlin, in the same field of invention, teaches cooling hot gum base (i.e., a confectionery) in molds, where the air flows into contact with and about the confectionery (col. 2 lines 44-46). Carlin teaches that the flow of gas has a speed of 200-2000 ft/min (1-10.2 m/s) (col. 1 lines 13-14). This range overlaps with the claimed range of 2-20 m/s, and where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Laurijssen, EP 3107403, teaches a chocolate cooling process where cool air flows around all sides of the chocolate mould in a cooling unit.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571)-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
