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 regard to the application filed on July 29, 2021 and in response to Applicant’s Arguments/Remarks filed on March 19, 2026.
Status of Application
The amendment filed March 19, 2026 has been entered. Claims 1-17 are currently pending in the application; claims 6-11 and 14-17 are withdrawn; claims 1-3 have been amended; claims 18 and 19 have been canceled. Claims 1-5, 12, and 13 are hereby examined on the merits.
The previous 112(a) rejections of claims 1-5, 12, 13, 18, and 19 have been withdrawn in view of applicant’s amendments.
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 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Drevici-Kux (DE 2230445) in view of Unlu et al. (US PG Pub. 2018/0289048; listed on IDS dated Aug. 30, 2021), herein after referred to as Drevici-Kux and Unlu, respectively.
Regarding claim 1, Drevici-Kux teaches a powder comprising: a freeze-dried solid form (i.e., lyophilized powder) of cocoa fruit juice base (i.e., cacao pulp juice base), wherein the cacao pulp juice base comprises filtered/purified cacao fruit juice (i.e., clarified cacao pulp juice) ([0005]; [0008]).
Drevici-Kux is silent as to that the cacao pulp juice comprises cocoa powder.
Unlu, in the same field of invention, teaches a cacao base material that further comprises cocoa powder, and after the two are mixed, the composition is further processed. Unlu offers the motivation that adding cocoa powder to the base material give the final composition a specific organoleptic profile and/or nutritional value [0141]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the cacao pulp juice base of Drevici-Kux by incorporating the cocoa powder of Unlu, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of producing a base material with desired nutritional value.
Regarding claim 2, modified Drevici-Kux teaches adding an additional ingredient of fruit that is added as one or more possible variety of forms [0141], one fruit example being cashew apple pulp, the dry solids of which contain 12% fiber [0047] (i.e., a dietary fiber component). Since the instant specification does not specify the types/kinds of apples to be used, a cashew apple is considered to be an apple as claimed, and the fruit pulp thereof, in any form, is considered to be an apple-derived dietary fiber as claimed.
Claims 1, 3-5, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Drevici et al. (US Patent 3,809,778) in view of Unlu et al. (US PG Pub. 2018/0289048; listed on IDS dated Aug. 30, 2021), herein after referred to as Drevici and Unlu.
Regarding claim 1, Drevici teaches a powder comprising: a freeze-dried powder (i.e., lyophilized powder) of a cocoa fruit juice base (i.e., cacao pulp juice base), wherein the cacao pulp juice base comprises purified cacao fruit juice purified via filtration (i.e., clarified cacao pulp juice) (col. 5 lines 36-40; col. 6 lines 19-28).
Drevici is silent as to that the cacao pulp juice comprises cocoa powder.
Unlu, in the same field of invention, teaches a cacao base material that further comprises cocoa powder, and after the two are mixed, the composition is further processed. Unlu offers the motivation that adding cocoa powder to the base material give the final composition a specific organoleptic profile and/or nutritional value [0141]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the cacao pulp juice base of Drevici by incorporating the cocoa powder of Unlu, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of producing a base material with desired nutritional value.
Regarding claim 3, Drevici teaches that the cacao pulp juice powder is mixed with sesame oil (i.e., a liquid vegetable oil) (Example 7).
Drevici differs from the claim in that the oil is mixed with the lyophilized powder and not the base material. However, per MPEP 2144.04.IV.C., the selection of any order of mixing ingredients is prima facie obvious. In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Regarding claim 4, modified Drevici teaches a salad dressing (i.e., a food) comprising the powder according to claim 1 (Drevici: Example 7).
Regarding claim 5, modified Drevici teaches that the food is a salad dressing (Drevici: Example 7), which is an oil-based food, but not a confectionery. However, modified Drevici offers the motivation that the powder can be added to a variety of foods where the food product requires a protective colloid, increased viscosity, thickening and stabilizing, moisture retention, ice crystal formation prevention, and/or aroma and color preservation, among other purposes (Drevici: col. 5 lines 36-50). Therefore, it would have been obvious to one of ordinary skill in the art to have included the powder in a confectionery, thereby arriving at the claimed invention, with the reasonable expectation that the powder can be suitably included in an oil or fat-based confectionery.
Regarding claim 12, modified Drevici teaches a method of producing buttermilk margarine containing a cacao pulp juice (i.e., a food containing a cacao pulp juice), the method comprising the step of mixing the cocoa fruit flesh juice (which can be used in powder form per col. 6 lines 19-28 of Drevici) (i.e., the powder according to claim 1) with buttermilk and other ingredients (i.e., at least one other raw material) (Drevici: Example 3).
Regarding claims 12 and 13, modified Drevici teaches that the food is buttermilk margarine (Drevici: Example 3), which is an oil or fat-based food, but not a confectionery. However, modified Drevici offers the motivation that the powder can be added to a variety of foods where the food product requires a protective colloid, increased viscosity, thickening and stabilizing, moisture retention, ice crystal formation prevention, and/or aroma and color preservation, among other purposes (Drevici: col. 5 lines 36-50). Therefore, it would have been obvious to one of ordinary skill in the art to have included the powder in the method of producing a confectionery, thereby arriving at the claimed invention, with the reasonable expectation that the powder can be suitably included in an oil or fat-based confectionery.
Response to Arguments
Applicant’s amendments have overcome the 112(a) rejections from the previous office action and therefore these rejections have been withdrawn.
Applicant’s arguments with respect to claims 1-5, 12, 13, 18, and 19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 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
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