Appeal No. 1999-2509
Application 08/752,917
The appealed claims, as represented by independent claim 14, are drawn in product-by-
process format to a chocolate candy product having veins of a confectionery composition
comprising a syrup interspersed within the chocolate, that has been prepared by a process
comprising mixing particulate chocolate and particulate confectionery composition in an extruder
and passing the mixture through the die of the extruder, while maintaining the mixture in a non-
pourable state by controlling the temperature. The confectionery composition comprising a syrup
can be a toffee (e.g., claim 17) or a caramel (e.g., claim 18). In independent claim 41, a candy
product prepared from a particulate chocolate substitute comprising a cocoa butter replacement
or a particulate chocolate analogue comprising a cocoa butter replacement and a particulate
confectionery composition comprising a syrup is prepared by the same process. According to
appellant, the claimed candy product “is an intimate mixture of chocolate together with a chewy
sweet component . . . which is not homogeneous” as the “chocolate matrix . . . [has] veins or
strands of chewy sweet dispersed therein and has a unique texture which combines the smooth
mouthfeel and bite of the chocolate with the flavor and chewy texture of the chewy sweet”
(specification, page 2).
The references relied on by the examiner are:
Wedin 2,334,052 Nov. 9, 1943
Pelletier 2,874,649 Feb. 24, 1959
Cloud et al. (Cloud) 4,357,359 Nov. 2, 1982
Butcher et al. (Butcher) 4,873,104 Oct. 10, 1989
Mackey 5,439,695 Aug. 8, 1995
Kehoe et al. (Kehoe) 5,626,892 May 6, 1997
(filed Nov. 24, 1993)
The examiner has advanced the following grounds of rejection on appeal:
claims 14 through 25, 38, 39, 41 and 42 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pelletier in view of Cloud and, if necessary, appellant’s admission at page 4 of
the specification;1 and
claims 14 through 25, 38, 39, 41 and 42 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mackey in view of either Kehoe, Wedin or Butcher, each, if necessary, in view
of appellant’s admission at page 4 of the specification.2
1 The examiner states at page 4 of the answer, that “[r]egarding the recitation of cocoa butter
substitutes, this component is conventionally known and in any event is admitted by the appellant
to be commercially available on page 4 of the specification.”
- 2 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007