DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/15/2025 has been entered.
Claim Objections
Claim 11 is objected to because of the following informalities: claim 11 should be amended to provide “wt.” before %.
Appropriate correction is required.
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.
Claims 6 and 7 are 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.
Claims 6 and 7 recite a legume. It is not clear whether the legume references the “whole legume” or “legume flour” of claim 1.
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.
Claims 1, 3-4, 6-13, 21, 24-28 are rejected under 35 U.S.C. 103 as being unpatentable over WO2016/140881 (WATTERSON) (IDS of 7/9/2020) in view of WO 2015/126871 (IGB) and United States Patent No. 5,340,598 (HAYS).
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WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion [0036].
An inner portion can be a peanut [0036] and chocolate [0028].
The food product is a bite-sized snack [0040].
The moisture content is less than 3% of the coated product [0062]. This falls within the claimed range.
When baked, a crisp exterior is obtained that would naturally be heat tolerant as claimed.
[0027] teaches that the inner portion is alternately coated with separate syrup and dry blend layers resulting in a product having a discrete center and an outer coating.
The first layer comprises a syrup [0032]. In Example 3, the syrup includes 25% sucrose, 31% of 42 DE tapioca syrup (i.e., a hydrophilic binder), 44% water, and 0.1 % strawberry flavor [0052]. It is taught that oil can be added to the coating [0042]. As to the amount of water, oil, seasoning and hydrophilic binding agent, it would have been obvious to vary the amounts based on the desired taste and texture of the layer.
The second layer comprises a protein and optionally mixing the protein with other ingredients, such as, but not limited to, modified starches, flours, cocoa powder, dry flavors, spices, salt, small amounts of oil, or a combination thereof [0034]. In example 3, the dry blend comprises 21 % pea protein concentrate, 14% rice protein isolate, 25% defatted peanut flour (i.e. a legume flour), 39% pre-gelatinized modified corn starch, and 1% sugar cookie flavor [0053].
As noted above, WATTERSON teaches that the moisture content is less than 3% of the coated product [0062]. It would have been obvious to also limit the moisture content of the core to below 3%. This encompasses the claimed moisture content of 0.1 to 1%.
While WATTERSON teaches other additives can be added to the first layer, WATTERSON is silent as to adding an emulsifier.
HAYS teaches an exemplary coating formulation comprising 0.5 to 1.75 weight percent of lecithin or modified lecithin (col. 18, lines 50-65). However, it would have been obvious to vary the amount emulsifier based on desired viscosity.
WATTERSON does not teach that the second layer contains sodium bicarbonate.
IGB discloses of a “chocolate composition” inner portion [0003] that is baked. The product is considered a ready to eat foodstuff. There is an outer shell/layer in the form of a casing [0006]. The casing is crispy (abstract) via baking [0049]. IGB teaches that the casing components chemical leavening agents or pH-adjusting agents which may be used include alkaline materials and/or acidic materials such as sodium bicarbonate (i.e., baking soda), calcium carbonate, ammonium bicarbonate, calcium acid phosphate, calcium phosphate monobasic, sodium acid pyrophosphate, diammonium phosphate, tartaric acid, mixtures thereof, and the like in combinations thereof. The leavening system may be included in an amount of up to about 2.5 wt% of the coating [0025].
It would have been obvious to add the leavening agent to provide a crispy exterior.
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WATTERSON teaches cocoa powder can be used in the outer shell [0034] but silent as to adding vanilla and/or cinnamon to the outer layer.
HAYS teaches an exemplary coating formulation comprising 0.5 to 1.75 weight percent of lecithin or modified lecithin (col. 18, lines 50-65). HAYS teaches at col. 17, lines 1-10 that vanilla can be added as a flavor. It would have been obvious to one skilled in art to add vanilla as a flavor.
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In [0056], rice flour is used by WATTERSON. Rice flour naturally contains rice starch.
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As to claims 6 and 7, WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion.
An inner portion can be a peanut or chickpea [0036].
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WATTERSON is silent as to using the recited flours of claims 8.
However, IGB that chickpea flour can be used and serve as a protein source [0018].
It would have been obvious us the chickpea flour of IGB in WATTERSON, as IGB teaches that the flour can be used in confectionery compositions and serve a protein source.
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WATTERSON teaches corn syrup for a binding agent [0032].
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As to claims 9 and 10, it is considered that the inulin can be dry or a syrup.
WATTERSON is silent as to inulin.
IGB further discloses that the binding agent can be inulin. Inulin provides a more robust and pliable coating which resists breakage [0007] and [0024].
Thus, it would have been obvious to add inulin to the coating of the references above to provide a more pliable coating resistant to breaking.
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As to claims 11-13 and 31, WATTERSON is silent as to the particular thickness and dimensions of the product. WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion. [0027] teaches that the inner portion is alternately coated with separate syrup and dry blend layers resulting in a product having a discrete center and an outer coating.
IGB teaches in [0043] to [0048] that the weight ratio of filling to casing component can be
from about 1:9 to about 1: 0.25 by weight, from about 1 :4 to about 1 :0.4 by weight, from about 1 :3 to
about 1 :0.67 by weight, or about 1 :2.5 to about 1: 1 by weight, such as about 1 :2 or 1: 1.5 by weight.
Thus, the size and thickness of the product and ratio of inner portion to outer portion will vary based on desired size, crispiness and taste.
It would have been obvious to vary the number and amount of layers (i.e., which directly affects the thickness) based on the ingredients and desired taste of the final product.
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As to claim 24, WATTERSON teaches that the other shell can contain starch [0034]. In baked applications, the types of starch and/or sugar used may affect the expansion of the product [0042]. It would have been obvious to one skilled in the art to vary the amount and type of starch based on the desired expansion.
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As to claim 25, WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion. [0027] teaches that the inner portion is alternately coated with separate syrup and dry blend layers resulting in a product having a discrete center and an outer coating.
WATTERSON is silent as to the weight ratio.
In [0045] of IGB, it is taught that the weight ratio of filling to casing component can be from about 1:9 to about 1: 0.25 by weight, from about 1 :4 to about 1 :0.4 by weight, from about 1 :3 to about 1 :0.67 by weight, or about 1 :2.5 to about 1: 1 by weight, such as about 1 :2 or 1: 1.5 by weight.
Thus, claimed weight ratio will additionally vary based on desired size, crispiness and taste
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WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion.
An inner portion can be a peanut [0036] and chocolate [0028].
The food product is a bite-sized snack [0040].
The moisture content is less than 3% of the coated product [0062]. This falls within the claimed range.
When baked, a crisp exterior is obtained that would naturally be heat tolerant as claimed. In re Best, 562 F.2d 1252 (CCPA 1977), as cited in MPEP 2112 and 2112.01, establishes that if claimed and prior art products are identical or substantially identical in structure, the claimed properties or functions are presumed to be inherent. This creates a prima facie case of anticipation or obviousness, shifting the burden to the applicant to prove the prior art does not possess the claimed characteristic.
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WATTERSON teaches polydextrose can be used [0045].
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WATTERSON does not teach that the second layer contains sodium bicarbonate.
IGB discloses of a “chocolate composition” inner portion [0003] that is baked. The product is considered a ready to east foodstuff. There is an outer shell/layer that in the form of the casing [0006]. The casing is crispy (abstract).
IGB teaches that the casing components chemical leavening agents or pH-adjusting agents which may be used include alkaline materials and/or acidic materials such as sodium bicarbonate (i.e., baking soda), calcium carbonate, ammonium bicarbonate, calcium acid phosphate, calcium phosphate monobasic, sodium acid pyrophosphate, diammonium phosphate, tartaric acid, mixtures thereof, and the like in combinations thereof. The leavening system may be included in an amount of up to about 2.5 wt% of the coating [0025]. The shell becomes crispy with baking/heating [0049].
It would have been obvious to add the leavening agent to provide a crispy exterior.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over WATTERSON in view of IGB, HAYS and WO2005036975 (KROHN).
The references are cited for the reasons noted above but silent as to a chocolate lentil.
KROHN teaches that chocolate lentil shaped candies can be used as inclusions in confections. At pg. 7, lines 1-10, film-coated fat-base confectionery allows the chocolate piece to be incorporated into a variety of confections.
It would have been obvious to one skilled in the art to add chocolate lentils such a KROHN’s as this allows one to incorporated chocolate pieces that maintain their shape during processing.
Response to Arguments
Applicant's arguments filed 9/4/2025 have been fully considered but they are not persuasive.
The applicant argues that the claimed invention is patentable as none of the recited ranges are expressly taught by the prior art.
However, applicant fails to establish that any of the claimed ranges (i.e., i) "wherein
the first layer comprises 1% to 20% by weight of water, 0.1% to 3% by weight of an oil, 0.05% to 1% by weight of an emulsifier, 0.1% to 3% by weight of flavoring and/or seasoning, and the hydrophilic binding agent making up the remainder of the first layer, based on the weight of the first layer, and ii) moisture content). The claimed invention is directed to a recipe for a chocolate product. While the specification does provide Examples, none of the Examples show that the ranges are critical. Moreover, all of the claimed ingredients are taught by WATTERSON, IGB or HAYS. It would have been obvious to find the optimum amounts to provide the desired taste and characteristics of the final product.
Furthermore, newly cited WATTERSON does teach to limit the moisture content of the product. WATTERSON teaches that the moisture content is less than 3% of the coated product [0062]. It would have been obvious to also limit the moisture content of the core to below 3%. This encompasses the claimed moisture content of 0.1 to 1%.
The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable).
Conclusion
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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