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 .
Notice regarding citations to the prior art
Examiner notes that citations to Troplin et al. in the prior Office Action (2/28/2025) were unintentionally made with respect to both page and paragraph numbers. While the cited USPTO translation (8/18/2022) does not indicate paragraph numbers, the referenced paragraphs still align with those of the translation. Specifically, paragraphs 11-12 and 15-16 as cited in the rejection of claim 1 directly correlate to the 11th, 12th, 15th and 16th paragraphs of the translation. The above paragraph citations are reiterated in the prior art rejection below for consistency, along with the respective page numbers for clarity. Further, a portion of Troplin et al. has been annotated with paragraph numbers and provided with this Office Action show that said paragraphs align with the translation of 8/18/2022. The prior art rejection below therefore cites all the same passages of Troplin et al. as that of the previous Office Action, and does not rely on citations to new/different parts of the reference.
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 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 1-13, 16-23, and 25-29 are rejected under 35 U.S.C. 103 as being unpatentable over Ellis (US 5,114,730) in view of Troplin et al. (WO 2013/178945 A1) Vegkitchen NPL, Beverages NPL, and Dyer NPL.
Citations to Troplin et al. are taken from the USPTO translation provided with the Office Action dated 8/18/2022.
Regarding claim 1, Ellis teaches a method of making a cocoa product (abstract) comprising providing a slurry comprising placing cocoa powder into a mixer with 50-80% water, adding an alkali to the slurry in an amount of 1-6% dry solids basis (dsb), heating the mixture to 150-200oF for 30-60 minutes, and spray drying (column 3 lines 10-23). In the examples of column 4, the amount of cocoa powder by weight percentage can be ~22 wt% (960 / (960+3500)) of the slurry for example 1, ~24 wt% for example 2, and so on. Therefore, the reference is construed to teach “between about 10% and 60% by weight of [the plant solids] powder”.
Ellis does not teach drying to a moisture content of 2-10 wt%. However, since the reference teaches spray drying to form the powder, it would have been obvious to one of ordinary skill in the art at the time of the invention to dry to the claimed weight percent as a matter of manufacturing choice, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired texture, consistency, or preservation qualities, see also In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) and In re Peterson, 315 F.3d at 1330, 65 USPQ2d 1379, 1382.
Ellis does not teach the plant solids consisting of unroasted carob powder.
Troplin et al. teaches a method of making a product including carob which has the characteristics of taste, texture and color similar to those of cocoa (page 3 first paragraph). The method comprises preparing a mixture including the seeds of at least one species of Theobroma genus and fragmented carob pods, and adding an alkaline composition to the mixture to obtain an alkalized mixture (page 6). The mixture comprises “raw fragments of the carob pods” (page 7), and therefore the carob is construed to be unroasted. The alkalization process is understood to improve the properties of the final product, particularly texture, acidity, taste and color (page 7). The reference further teaches there are “few differences” between an alkalized liquor made from cocoa with carob and that which is made from all cocoa (page 15 example 1; page 17 “conclusion”). This suggests that the characteristics of the carob and cocoa obtained after alkalization are sufficiently similar to result in said minimized differences, particularly since directly mixing carob powder and cocoa powder (without alkalization) is recognized to have disadvantages of taste, color and texture (paragraphs 15-16; page 6). Thus, one skilled in the art would have reason to suspect that alkalized carob exhibits similar organoleptic properties to that of alkalized cocoa. Examiner notes that Troplin et al. does not indicate any particular interaction between the cocoa and carob during alkalization (see whole document) which would necessitate the presence of cocoa in the mixture during said alkalization.
Vegkitchen NPL teaches carob powder is commonly used as a substitute for cocoa in food products due to the similarity of color, texture, and cooking properties, although it is generally understood that said properties are not exact (page 1). Carob contains negligible fat, fewer calories (compared to chocolate), no caffeine, and no oxalic acid, contains certain micronutrients, and may be effective in soothing stomach issues (page 2 first paragraph).
Beverages NPL teaches that “carob undergoes a similar processing to cocoa, which it resembles in color, appearance, taste and flow properties” (page 283 “cocoa substitutes”).
Dyer NPL teaches the purpose of alkalization is to neutralize acidity and remove astringent flavor from the cocoa, promote reaction between pigment and alkali in the presence of oxygen and heat to develop desired colors, and promote flavor development by reaction between protein and reducible sugars (page 130 “alkalization”).
Troplin et al. further teaches carob is known to have a high level of reducing sugars, starch, proteins, tannins, and pectin (paragraph 11; page 5), and that it is known to treat non-cocoa nuts and/or dried fruits with a preliminary alkalization step (paragraph 12; page 5). The carob would necessarily include endogenous pigments.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Ellis such that the plant solids consist of unroasted carob powder since the prior art acknowledges carob powder can be substituted for cocoa powder and processed similarly, where Vegkitchen NPL teaches carob powder can be used in a similar way as cocoa, where Troplin teaches there are “few differences” between liquors (after alkalization) made from all cocoa and cocoa with carob, and contains all the components recognized to contribute to an alkalization reaction, and therefore since the prior art suggests raw carob can be subjected to an alkalization process to obtain similar changes in flavor with a reasonable expectation of success, as either a flavor extender or simply to apply the known Dutching (alkalization) process to the carob powder for art recognized advantages thereof, and to produce a product which is similar in characteristics to alkalized cocoa but has all the benefits taught by Vegkitchen NPL.
Regarding claim 2, Ellis teaches 150-200oF as stated for claim 1.
Regarding claim 3, the combination applied to claim 1 teaches unroasted carob powder but does not teach 40-50 wt% as claimed.
Ellis further teaches that conventional processes can use less water, such as 20-40%, which would naturally increase the relative percentage of powder material (column 2 lines 25-26). The amount of water affects parameters of the process such as cooking temperature and development of color (column 2 lines 26-30).
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the claimed weight percentage of carob powder since there does not appear to be any criticality or unexpected results associated with the particular amount used, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as the type of food being made, desired process parameters, and desired nutritional content, flavor, color, or texture.
Regarding claim 4, Ellis teaches adding alkali in an amount of 1-6% dsb (column 3 line 15).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Ellis to use the claimed amount of alkali since the prior art teaches adding an amount that overlaps the claimed amount, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired color or type of alkali being used as taught by Ellis (column 3 lines 30-32, 40-41, 49-51, and 62-64).
Regarding claims 5-6, Ellis teaches sodium hydroxide and/or potassium carbonate (column 2 lines 43-45).
Regarding claims 7-8, Ellis teaches addition of an oxidizing agent to achieve desired color, where the agent can be alkali peroxyhydrate (e.g. sodium percarbonate) or dry hydrogen peroxide (column 3 lines 49-51 and 57).
Regarding claim 9, Ellis teaches 4-10% dsb hydrogen peroxide as stated above.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Ellis to use the claimed amount of oxidizing agent since the reference already acknowledges that oxidizing agents impact the cocoa color (column 3), since there does not appear to be any criticality or unexpected results attributed to the claimed amount, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired color or flavor.
Regarding claims 10-11, it is noted that step (d) of claim 1 recites that holding at the elevated temperature is an optional limitation. Since the limitation is not required by claim 1, the limitations of claims 10-11 are construed to be similarly optional. Regardless, Ellis teaches 150-200oF for 30-60 minutes (column 3 lines 17-18).
Regarding claim 12, Ellis teaches sparging air into the mixture during heating column 3 lines 19-21).
Regarding claim 13, Ellis teaches drying with a spray dryer (column 3 lines 21-22).
Regarding claims 16-17, Ellis teaches testing and adjusting the color of the product as stated above. Ellis further teaches the cooking time can be done over a period of 30-60 minutes and that a variety of parameters can affect final color (column 2 lines 46-49 and 55-56).
Ellis does not specifically recite maintaining a temperature if the desired color has not been achieved and taking a sample for color analysis, and repeating as claimed.
However, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Ellis to perform the claimed process since the reference already teaches wanting to adjust color after measuring, and in order to increase reaction time between the carob and alkali such that color continues to develop until a desired result is achieved.
Regarding claim 18, Ellis teaches the reaction occurs in a mixer (column 3 lines 13-14), where mixing the materials during the claimed steps would have been readily obvious to facilitate the alkalization process (by ensuring intimate and uniform blending of the reactants) and facilitate consistency between batches.
Regarding claim 19, Ellis does not teach addition of one or more additives as claimed.
Vegkitchen NPL teaches foods to which the carob powder is added can be sweetened using barley malt syrup or agave nectar (page 2 “carob shake” and “carob fudge sauce”), and that carob is known to be used with refined sweeteners and fats that emulsify the carob (page 1 last paragraph).
It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify Ellis to include an additive such as fats or sweeteners as claimed in order to impart desired flavor/sweetness and emulsion properties as taught by Vegkitchen NPL, to facilitate blending by incorporating the additive when the mixture is at optimal parameters for said blending (e.g. elevated temperature), to obtain a desired nutritional profile, and since selection of the order of performing process steps or mixing ingredients is obvious in the absence of new or unexpected results In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Regarding claims 20-21, the combination applied to claim 19 teaches sweeteners such as agave nectar (syrup).
Regarding claim 22, the combination applied to claim 1 does not teach adding an amount of unalkalized carob to the alkalized carob. However, the combination applied to claim 1 teaches that carob pod can be subjected to an alkalization process as taught by Troplin et al., where the alkalization process is recognized by the art to change the properties (e.g., color, flavor, etc.) of the treated material.
It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify the process of the combination to add unalkalized carob as claimed since unalkalized carob is acknowledged to be used in foods as an ingredient having similar properties to chocolate as taught by Vegkitchen NPL, where alkalized carob would be expected to have different characteristics than unalkalized carob as explained for claim 1, since there is no evidence of criticality or unexpected results associated with the claimed feature, and therefore to blend the two carob substances to obtain a mixture having desired flavor, texture, color, nutritional profile, etc.
Regarding claim 23, Troplin et al. teaches the carob can be co-alkalized with cocoa (page 7 last two paragraphs).
It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify the process of the combination such that natural and/or alkalized cocoa is added since the prior art acknowledges cocoa and carob can both be alkalized, and therefore as a matter of manufacturing preference or choice for a desired nutritional or flavor profile.
Regarding claim 25, the combination applied to claim 1 teaches a method of preparing an alkalized carob as recited for said claim. The process of the combination would have naturally produced an alkalized carob.
Regarding claims 26-28, Ellis teaches that a variety of parameters can be adjusted during the reaction in order to adjust color of the final product (column 2 lines 46-53).
Troplin teaches parameters such as percentage of carob and type of alkaline used affect the product color (page 25), and that software can be used to determine optimum parameters for a desired color (page 26).
Since the process of the prior art combination applied to claim 1 appears to be the same as that of the claimed process, and since the prior art contemplates adjusting the product color as needed by varying a number of parameters, one of ordinary skill in the art would have reasonably expected the color of the product formed by the prior art process to be the same as that of the claimed process.
Regarding claim 29, Ellis does not teach the product has a pH of 7-11.
Troplin teaches the pH can be above 7 (page 23 table VI).
It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify the process of the combination such that the product has a pH of 7-11 since alkalization is generally understood to be a process which raises the pH (or lowers the acidity) of a product, since there does not appear to be any criticality or unexpected results associated with the pH, and therefore as a matter of manufacturing choice, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as the starting ingredients (Troplin page 8 second to last paragraph), desired flavor, and color.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Ellis in view of Troplin et al., Vegkitchen NPL, Beverages NPL, and Dryer NPL as applied to claims 1-13, 16-23, and 25-29, and further in view of Camu et al. (US 2012/0128823 A1).
Regarding claim 15, Ellis teaches the color for each batch can be tested and adjusted before drying in order to make a more uniform product (column 2 lines 51-53). The testing is construed to be a type of analysis. Ellis does not explicitly teach taking a sample.
Camu et al. teaches a method for treating cocoa material (abstract), where the color of the cocoa beans or cocoa products derived therefrom can be sampled, placed on a petri-dish, and measured using a colorimeter with the “well-known” Hunter scale (paragraph 197).
It would have been obvious to one of ordinary skill in the art at the time of the invention to take a sample of the mixture for color analysis in order to determine whether or not the product needs further color correction without risking contamination of the entire batch, since the process of testing samples is well known and commonly practiced in the art, and to ensure color consistency across batches.
Response to Arguments
Applicant's arguments filed 8/28/2025 have been fully considered but they are not persuasive.
In response to Applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant argues on page 8 that Ellis is directed to treating cocoa, and there is no suggestion that the process could be useful in treating other products.
This is not persuasive since the reference is relied on to teach that the alkalization process is recognized by the art. The rejection relies on the process of Ellis in view of the teachings and suggestions of the other cited references. Troplin teaches liquor made from cocoa with carob has “few differences” with that of only cocoa (page 15 example 1; page 17 “conclusion”). The reference also acknowledges that simply mixing unalkalized carob and cocoa powders has “disadvantages of taste, color and texture”, and brings undesired characteristics to the product (page 6). The alkalization process is used to “alleviate the aforementioned negative aspects” (page 6). Further, carob is recognized to contain the components necessary for alkalization as explained for claim 1 and taught by Troplin (page 5 “high levels of sugars…”).
The above findings suggest to one of ordinary skill that alkalized carob exhibits similar organoleptic properties to that of alkalized cocoa, and the alkalization process can be applied to carob pods without significant undesirable changes in characteristics such as flavor, color, aroma, etc. Additionally, Applicant has not shown that the alkalization process of Ellis cannot be applied to a non-cocoa material such as carob, nor that result would be any different from that suggested by the cited prior art.
Applicant argues on page 9 that there is no suggestion in Troplin of the effect of any of the process steps on the carob itself, the reference does not suggest anything about processing of carob alone, thus one of ordinary skill reading Troplin would have understood that the acceptable flavor and color profile arises from the alkalization and roasting of the cocoa itself, where Troplin does not suggest alkalization has any effect on the carob pods nor that the carob powder has any effect on the flavor and color profile, and there is no reason to alkalize carob in the absence of species of Theobroma. Applicant cites the Ellis Declaration (1/27/2020) in support, which states a portion of the same argument.
This is not persuasive since Troplin indicates liquor made from cocoa with carob has “few differences” with that of only cocoa (page 15 example 1; page 17 “conclusion”). The reference states that there is “no difference” between alkalized products obtained from a product of 100% cocoa and a product with 80% cocoa and 20% carob (page 16 table 1). Further, a mixture of carob and cocoa without alkalization is recognized to have disadvantages of taste, color, texture, etc. (page 6). This suggests that alkalized carob exhibits similar organoleptic properties to that of alkalized cocoa. Additionally, carob comprises a high level of components (e.g., reducing sugars, starch, proteins, etc.) that are recognized as reactants in the alkalization process, and carob “undergoes a similar processing to cocoa” as explained for claim 1. Therefore, one of ordinary skill would have been motivated to alkalize carob in order to apply the alkalization process to a material that is recognized to be similar to cocoa, but having the advantages taught by Vegkitchen.
Regarding the “processing of carob alone” and “alkalize carob in the absence of…Theobroma”, the arguments are not persuasive since claim 1 as currently drafted does not actually exclude cocoa (Theobroma) throughout the entire process. Rather, the method recites “comprising”, which is open-ended to features that are not recited. Likewise, step (a) recites “comprising water and between about 10% and 60% by weight of plant solids”, which opens the slurry composition to include other substances. While the claimed “plant solids” are limited to “consisting of unroasted carob powder”, the slurry itself is not limited to only the claimed “plant solids”; a balance of the slurry can include different “plant solids” comprising cocoa. For example, a slurry comprising 40% water, 10% unroasted carob powder, and 50% cocoa would read on limitation (a). Additionally, the claim as currently drafted does not recite alkalization of carob in the absence of cocoa, and one of ordinary skill would have reasonably interpreted the claim to encompass compositions including cocoa as explained above.
Applicant argues on page 9 that Troplin discloses carob is to be in the form of pod fragments, generally at least 1 mm in size, one of ordinary skill would understand this is to maintain the pod in suitable form for subsequent roasting, there would be a low degree of contact between the alkali and the carob, and therefore suggests that alkalization is not an important facet of the treatment of the carob itself, and Troplin does not suggest treating unroasted carob powder with alkali (in the absence of a major quantity of cocoa) would be desirable. Applicant cites the Ellis Declaration in support, which states the same arguments.
This is not persuasive since the reference explicitly states the carob is obtained by “extracting the seeds and then grinding” (top of page 16). The reference does not recite or otherwise suggest that the “fragments” must have a minimum size for roasting or other types of processing (see whole document). To the contrary, the disclosure of 1-20 mm is “an optional characteristic” of the invention, and the “size” is directed to the “value of the largest dimension of the fragment” (page 9). Therefore, the reference teaches the particle size is up to e.g., 1 mm. Applicant’s specification does not define “powder” to have any specific characteristic. Since Troplin does not require a minimum size of the carob fragments and already teaches the carob is prepared by grinding, and since carob powder is known as taught by Vegkitchen, using carob powder would have been obvious for the reasons stated in the rejection. Further, Troplin explicitly and repeatedly states that the process is directed to “co-alkalization” of cocoa and carob, and defines the term to be the application of “alkalization typically used in the process for the preparation of cocoa powder, to an initial mixture…and the fragmented carob pods” (page 7). Therefore, the process of alkalizing carob, regardless of the presence of cocoa, is related to the inventive feature.
The argument that Troplin does not suggest treating unroasted carob powder with alkali in the absence of cocoa is not persuasive for the same reasons stated in the argument above. The claim as currently drafted does not actually exclude cocoa in the overall slurry that is to be alkalized. Regardless, the cited prior art suggests to one of ordinary skill that the alkalization process can be applied to carob powder with a reasonable expectation of success in obtaining characteristics that are similar to that of alkalized cocoa.
Applicant argues on pages 10-11 that Examiner pushes the teachings of Troplin too far, where the reference only teaches a small amount of carob can be co-processed with a major amount of cocoa without significantly affecting the overall result, and does not suggest that alkalized carob itself is in any way similar to alkalized cocoa. Applicant argues the conclusion that alkalized carob has similar properties to alkalized cocoa does not follow since unalkalized carob and cocoa are disclosed to have disadvantageous taste, color and texture.
This is not persuasive since the reference is not relied on to teach alkalization of carob itself, but instead to show that the prior art recognizes carob is a substance that can be subjected to alkalization. Troplin explicitly teaches co-alkalization of cocoa and carob to obtain a product that is similar to that of only alkalized cocoa as stated above. The portions cited by Applicant (paragraphs 15-16 on page 6) are not directed to the process of Troplin. Rather, the passage describes directly mixing cocoa powder and (unalkalized) carob powder causes the disadvantages. The same page further recites alkalizing the carob and cocoa mixture “to alleviate the aforementioned negative aspects”. This suggests to one of ordinary skill in the art that, while minor differences are observed, alkalizing carob yields changes in characteristics that are relatively similar to those obtained when alkalizing cocoa.
Further, Troplin teaches the carob can be up to 25 wt% of the initial mixture (page 6), which is within Applicant’s claimed range of 10-60 wt%. In view of the interpretation of “a slurry comprising” explained above, the mixture of Troplin comprising water, 10-25 wt% carob, and cocoa reads on claim 1.
Applicant argues on page 11 that Troplin only establishes carob can be added to reduce fat and cost, while not having a negative impact on the alkalized cocoa overall, and does not provide any reason to alkalize carob in the absence of cocoa or another species of Theobroma.
This is not persuasive for the reasons stated above, particularly since Troplin recognizes a mixture of cocoa and unalkalized carob powder has disadvantages of taste, color and texture (page 6) compared to the co-alkalized mixture of cocoa and carob (page 15 example 1; page 17 “conclusion”).
Applicant argues on page 12 that Troplin describes the carob powder composition in the context of an extraction process, where Ellis is not an extraction process, and there would be no reason based on Troplin to apply the process of Ellis to carob alone.
This is not persuasive since the modification of Ellis does not include the extraction disclosed by Troplin. The passage is cited to show that carob is known to include components (reducing sugars, starch, proteins, pigments, etc.) that are recognized reactants in the alkalization process as taught by Dyer, where carob powder is known to have characteristics similar to that of cocoa as explained in claim 1. The teachings and suggestions of the cited prior art would lead one of ordinary skill in the art to reasonably expect that carob undergoes similar changes during alkalization to obtain characteristics that are similar to that of alkalized cocoa.
Applicant’s references to Paolis have been considered, but the reference was not relied upon in the previous prior art rejection.
Applicant argues on page 13 that Vegkitchen teaches at most some interchangeability of carob and cocoa in food products, interchangeability in use does not suggest the same in processing for use in food, therefore interchangeability cannot provide a reason to process an unroasted carob powder using the same technique used by Ellis. Applicant cites the Ellis Declaration in support. Applicant argues there is no evidence of record that it would have been desirable to treat unroasted carob powder alone with alkali to arrive at an improved carob powder, and that cocoa and carob are not closely related to suggest that their products could be processed similarly.
This is not persuasive for the same reasons stated above, particularly since the method of claim 1 as currently drafted does not actually exclude cocoa. The prior art recognizes carob as a healthier substitute for cocoa in chocolate products and that it can be alkalized, where alkalization of carob with cocoa results in a product more similar to pure alkalized cocoa than simply mixing carob and cocoa together.
Applicant argues on page 14 that Vegkitchen does not suggest that alkali processing could provide any benefit to carob powder alone, particularly since Troplin suggests, at most, a minor amount of carob present during alkalization of cocoa.
This is not persuasive for the reasons stated above, and since Vegkitchen is not relied on to teach the alkalization process of carob. Rather, the reference is cited to show that the art recognizes carob has properties similar enough to cocoa that it can be used as a substitute in chocolate products. The claimed process is rendered obvious since carob is acknowledged to be subjected to alkalization as taught by Troplin.
Applicant argues on page 15 that the “similarity in processing to cocoa” suggested by Beverages does not suggest in particular that the similarity extends to alkalization out of the myriad processing techniques described.
This is not persuasive since the reference is relied on to show that the prior art already provides suggestion to treat carob similarly to cocoa. One of ordinary skill would have reasonably expected alkalized carob to be similar in characteristics to alkalized cocoa as stated above. Regardless, Beverages teaches one of the methods of treating cocoa includes alkalization (pages 275-276).
Applicant argues on pages 15-17 that none of the reasons to alkalize cocoa described by Dyer indicate the process can be applied to carob pods, the Office has not shown how or why said reasons would have been understood by one of ordinary skill to apply to carob, and the reference does not provide reason to alkalize carob alone.
This is not persuasive for the same reasons stated above. The cited prior art provides the teachings and suggestions for one of ordinary skill to reasonably expect that alkalization of carob would result in characteristics similar to that of alkalized cocoa.
Applicant’s arguments on pages 17-18 reiterate those previously presented, and are not persuasive for the same reasons stated above.
Applicant argues on pages 18-19 that inventors have found that alkalizing unroasted carob powder provides a product that is closer to cocoa in color and flavor, and thus the claimed subject matter and associated benefits would not have been expected based on the cited references. Applicant further argues the claimed process unexpectedly allows for a much greater use rate of carob as a cocoa extender and allows for a stand-alone carob ingredient in the absence of Theobroma species, and minimizing waste.
This is not persuasive for the same reasons stated above. The argued color and flavor features would have been expected since carob powder is a known substitute cocoa having similar characteristics, and since co-alkalization of unroasted carob powder with cocoa obtains a product having characteristics more similar to that of only alkalized cocoa. The color and flavor of the alkalized product is controlled by adjusting parameters of the alkalization process as taught by both Ellis (column 2 lines 46-56; column 3 lines 49-51 and 57), and Troplin (pages 8-9). Troplin also teaches using carob as a chocolate extender since “its low production cost makes it a preferred product for the substitution of the cocoa in chocolate products” (page 5). Applicant has not shown persuasive evidence that the alkalization process of Ellis cannot be applied to carob powder nor yields undesirable results. Similarly, there is no evidence of record that suggests differences between a chocolate product made from co-alkalized cocoa and carob powders, and a product made from cocoa and carob powders which are alkalized separately prior to combining.
Applicant argues on page 19 that Troplin does not provide a reason to alkalize carob alone, and it is unclear whether the flavor and color is an effect on the cocoa or an independent effect on the carob.
This is not persuasive for the same reasons stated above, particularly since the claim as currently drafted does not exclude cocoa from the slurry of step (a). Further, the reference directly attributes the acceptability of flavor to the alkalization process since tests 3 and 4 comprising the unalkalized carob powder exhibit “excessively pronounced carob taste” (page 21 “conclusions”). Only test 2 includes alkalized carob (page 19) and has acceptable flavor, which suggests to one of ordinary skill that the resulting flavor is an independent effect of alkalization on the carob.
Applicant argues on page 20 that table 1 of Troplin describes physiochemical characteristics of the process and has nothing to do with flavor or color, does not alkalize carob alone, and argues against Vegkitchen in that substitutability in end use does not imply the same process would apply to cocoa and carob.
This is not persuasive for the same reasons stated above, and since the results shown in table 1 still indicate that there is “no difference” between 100% alkalized cocoa and cocoa co-alkalized with 20% of carob. Regardless, example 2 attributes acceptability of flavor to the alkalization process as explained above.
Applicant argues on page 21 that the Office ignores the conventional meanings of the words “powder” and “fragment”, where Troplin uses the word “powder” to describe the cocoa and “fragments” to describe the carob.
This is not persuasive for the same reasons stated above. Troplin acknowledges carob powder (page 6), and the disclosed “size” of the fragments is defined to be a “largest dimension” thereof (page 9). This indicates that the carob fragments have a particle size of e.g., 1 mm or less to 20 mm or less. The reference does not recite or otherwise indicate that the carob must have a minimum size (see whole document). Further, Applicant does not define a “powder” to require any particular features. Thus, one of ordinary skill would have recognized that carob “fragments” having a particle size of 1 mm or less would have included “powder” sized particles.
Applicant argues on pages 21-23 that Troplin does not suggest alkalization of carob alone would be useful or desirable, interchangeability and suitability in use does not suggest the same in processing, the Office has used hindsight reasoning to pull together unrelated teachings in various reference to assemble the invention, and “the evidence demonstrates that high degree of substitutability of the resulting material was unexpected”.
This is not persuasive since the argued results are actually expected by the prior art. Further, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
The prior art teaches co-alkalization of carob and cocoa to obtain a product having flavor, color, etc. closer to that of pure alkalized cocoa, as opposed to a product having unalkalized carob. The carob pod (and its powder form) is known to have properties similar to that of cocoa, and alkalization of cocoa is a well-known process yielding well-known results. Thus, the cited prior art provides all the teachings and suggestions for one of ordinary skill in the art to expect that alkalized carob would exhibit similar characteristics to that of alkalized cocoa.
Regarding “the evidence demonstrates that high degree of substitutability of the resulting material was unexpected”, it is unclear if Applicant is referring to the presented arguments, or the data provided in the disclosure (example 1 page 18). Regardless, the results of example 1 are not commensurate in scope with the claimed invention since there is only one data point for the parameters (e.g., 40% by weight carob powder), and since claim 1 does not actually exclude cocoa present in the slurry as explained above.
Applicant’s arguments against the dependent claims are not persuasive for the same reasons stated above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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/BRYAN KIM/Examiner, Art Unit 1792