DETAILED ACTION
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, 8-13, 21, 24-27, 29-30 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.
[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 [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].Given the WATTERSON teaches the use of legume flour such as defatted peanut flour, it would have been obvious to one skilled in the art to include 50 to 90wt% of legume flour in the outer shell.
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 claim 6, WATTERSON teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion.
An inner portion can be a peanut or chickpea [0028].
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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 [0033].
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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 inulin can be added. 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 21, 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 teaches a chocolate composition comprising an outer shell [0042] that surrounds an inner portion [0036].
A second layer comprises a protein and optionally mixing the protein with other ingredients [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].
In [0035], the protein can be in an amount between 40 and 100% be weight protein.
Given the WATTERSON teaches the use of legume flour such as defatted peanut flour and that the protein can be in an amount between 40 and 100% be weight protein, it would have been obvious to one skilled in the art to include 50 to 90wt% of legume flour in the outer shell.
WATTERSON is silent as to inulin.
IGB further discloses that inulin can be added. 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. As to the amount, it would have been obvious to vary the amount of inulin based on the amount of pliability needed.
Claims 23 and 31 are 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.
As to claims 23 and 31, 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. As to the amount, it would have been obvious to vary the amount of inulin based on the amount of pliability needed.
Response to Arguments
Applicant's arguments filed 6/9/2026 have been fully considered but they are not persuasive.
The applicant argues that Watterson does not teach the weight percentage of the legume flour as recited in the amended claims.
However, Watterson teaches a second layer that comprises a protein and optionally mixing the protein with other ingredients [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].
Given the WATTERSON teaches the use of legume flour such as defatted peanut flour and that the protein can be in an amount between 40 and 100% be weight protein, it would have been obvious to one skilled in the art to include 50 to 90wt% of legume flour in the outer shell.
The applicant also argues that the prior art does not teach the claimed amounts of inulin.
However, IGB further discloses that inulin can be added. Inulin provides a more robust and pliable coating which resists breakage [0007] and [0024]. Thus, it would have been obvious to vary the amount of inulin based on the amount of pliability needed. The amount is a result effective variable.
Moreover, IGB adds inulin to the entire casing, whereas the claimed amount of inulin is limited to one of multiple layers. Thus, the overall amounts of inulin in the claimed composition relative to IGB is not as much as suggested.
The applicant argues that the claimed amount of inulin is significantly more than that taught by IGB. it is noted that the claims only recited the amount of inulin in the outer layer, whereas IGB
Moreover, the applicant is again 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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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