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 .
Prosecution Reopened
In view of the Appeal Brief filed on March 6, 2026, PROSECUTION IS HEREBY REOPENED. A new ground of rejection is set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
Claim Rejections - 35 USC § 103
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, 2, 6-18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Robbins (“Hummingbird Cake”, King Arthur Baking Company, May 21, 2015, https://www.kingarthurbaking.com/blog/2015/05/21/hummingbird-cake, downloaded September 17, 2024) in view of Declercq et al. (“Process for Extracting Sugars from Cocoa Pulp”, Research Disclosure, Vol. 582, no. 84, October 2012, pp.1-8; made of record on the IDS filed November 29, 2021).
Regarding claims 1, 2, 6, 7, 14, 15 and 21, Robbins disclose a process for preparing a hummingbird cake and the resulting cake, the method comprising the steps of (a) blending eggs, oil, sugar vanilla and mashed bananas in a bowl at medium high speed to make a wet mixture (i.e., binder); (b) in a separate bowl, whisking together flour and spices to make a dry mixture; (c) combining the wet mixture with the dry mixtures to make a batter; (d) combining pineapple, toasted pecans, coconut, and dried pineapple (i.e., food pieces) to the batter; and (e) pouring the batter into cake pans and baking at 350°F for 32-38 minutes to obtain golden brown cakes.
Robbins is silent with respect to total solids content of the binder (as required by clam 6) and the moisture content of the cake. However, the person of ordinary skill in the art would have been motivated to adjust, in routine processing, the cake formulation e.g., total solids content of the binder and the baking conditions (e.g., temperature and time) to obtain a cake with a desired moisture content and sensory profile, e.g., a dry and dense textured cake.
Here, the wet ingredients are considered the binder which is fluid at ambient temperature. The binder comprises eggs, oil, sugar, vanilla and mashed bananas for a weight of about 1376 g (see Ingredients). The binder accounts for about 46% by weight of the cake batter (wherein the weight of the total cake batter is about 2981 g – see Ingredients). While the amount of binder does not overlap with 45%, a prima facie case of obviousness exists where the claimed range or amounts do not overlap with the prior art but are merely close. The amount of binder disclosed by Robbins is so close to 45% that one skilled in the art would expected the binders to have the same properties (see MPEP §2144.05 I).
Robbins et al. is silent with respect to pulp or extract of pulp from a plant in the Theobroma genus.
Declercq et al. teach extracting cocoa sugars from cocoa pulp to use as a stable sweetening agent in the production of chocolate products (i.e., cocoa pulp extracts -p. 2/L1-5). Declercq et al. teach the cocoa pulp extracts comprise both fructose and dextrose (p. 4/L1). Declercq et al. teach that because of the high sweetness of fructose in comparison to sucrose, the cocoa pulp extract can be used to reduce the overall sugar content of chocolate without reducing its sweet taste (p. 4/L7-10). Declercq et al. teach the cocoa pulp extract can be used to sweeten and/or to impart a distinct flavor to cakes (p. 4/L16-21).
Robbins and Declercq et al. are combinable because they are concerned with the same field of endeavor, cakes comprising sweeteners. It would have been obvious to one of ordinary skill in the art to have added the cocoa pulp extract of Declercq et al., to replace all or part of the sugar, i.e., sucrose in the hummingbird cake of Robbins to reduce sugar content of the cake while maintaining a desirable sweetness. Here, the wet ingredients, comprising sugar, is considered the binder. Therefore, replacing all or part of the sugar in the wet ingredients of Robbins with the cocoa pulp extract of Declercq et al. would mean the wet ingredients (i.e., binder) would comprise the cocoa pulp extract.
Given Robbins disclose a binder comprising ingredients with moisture content, i.e., mashed banana and eggs with about 684 g of water (wherein eggs comprise about 75 wt% moisture and bananas comprise about 80 wt% moisture), the binder comprises about 50% moisture before it is added to the dry ingredients and is baked.
Regarding claims 8-13, modified Robbins discloses all of the claim limitations as set forth above. Declercq et al. teach a process of obtaining a cocoa pulp extract (i.e., cocoa sugar) wherein the pectin content (i.e., a type of polysaccharide) in the cocoa pulp is degraded (i.e., reduced ) by treating with a pectinase-type enzyme at a pH in the range of 3.0 to 6.0 (p. 2/L27-34, p. 3/L1-2). Declercq et al. teach a process where the cocoa pulp is incubated with the pectinase-type enzyme for between 10 and 48 hrs (p. 3/L3-5). In the case where the claimed ranges, in this case pH and incubation time, overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05). Declercq et al. is silent with respect to incubation temperature.
Declercq et al. teach the incubation period will depending the nature of the enzyme, the type and quantity of pulp, temperature and other parameters and will be open to optimization by a person of ordinary skill in the art (p. 3/L6-8). One of ordinary skill in the art would have been motivated to adjust , in routine processing, the incubation temperature for the enzymatic treatment of the cocoa pulp taught by Declercq et al. to obtain the desired reduction in pectin content. The reduction in pectin content is desired to make the resulting pulp extract easier to process (p. 2/L23-25).
Regarding claim 16, modified Robbins discloses all of the claim limitations as set forth above. While Declercq et al. teach a cocoa pulp extract comprising predominately fructose and dextrose as the sugar component, the reference also teaches sugars having DP 2 (p. 8/Example 5/Table 3). Given Declercq et al. teach a cocoa extract prepared by a method substantially similar to that disclosed in the present invention, inherently the extract would comprise sugars having DP 2 that include sucrose in an amount broadly claimed.
Regarding claim 17, modified Robbins discloses all of the claim limitations as set forth above. While Declercq et al. teach a cocoa pulp extract, the reference is silent with respect dietary fiber content. However, given Declercq et al. teach a cocoa pulp extract prepared by a method substantially similar to that disclosed in the present invention, inherently the extract would comprise dietary fiber as presently claimed.
Regarding claim 18, modified Robbins discloses all of the claim limitations as set forth above. Declercq et al. teach adding 0.5% by weight enzyme (p. 5/L1-13/Example 1) and a treatment time of 5 hours (for at least 5 hours – p. 3/L4-5). While Declercq et al. does not teach the precisely claimed range for treatment time, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Robbins (“Hummingbird Cake”, King Arthur Baking Company, May 21, 2015, https://www.kingarthurbaking.com/blog/2015/05/21/hummingbird-cake, downloaded September 17, 2024) in view of Declercq et al. (“Process for Extracting Sugars from Cocoa Pulp”, Research Disclosure, Vol. 582, no. 84, October 2012, pp.1-8; made of record on the IDS filed November 29, 2021) as applied to claim 1, and further in view of Caliskan et al. (“The effects of the different drying conditions and the amounts of maltodextrin addition during spray drying of sumac extract”, Food and Bioproducts Processing, 91, (2013), p. 539-548).
Regarding claim 19, modified Robbins discloses all of the claim limitations as set forth above. Declercq et al. teach cocoa pulp extracts concentrated by spray drying (p.3/L18-35). Declercq et al. does not disclose spray drying the cocoa pulp extracts with a stabilizer.
Caliskan et al. teach spray drying is a process where a food ingredient is coated with or entrapped within a suitable carrying agent (p. 539/1. Introduction). Caliskan et al. teach there are some difficulties for the drying of food extract due to the low glass transition temperature (Tg) of food components (p. 539/1. Introduction). Caliskan et al. teach that in order to prevent this problem and obtain powdered products with acceptable properties, drying aids (i.e., stabilizers) which have high glass transition temperature (Tg) are used, e.g., gum arabic, maltodextrin, whey protein. The drying aids (i.e., stabilizers) improve the drying process and reduces the stickiness and agglomeration problems during storage (p. 540/1. Introduction).
Given Declercq et al. teach spray drying the cocoa pulp extract, since Caliskan et al. teach the benefits of using a drying aid (i.e., stabilizer) in the spray drying process t, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have spray dried the cocoa extract of Declercq et al. using a drying aid (i.e., stabilizer) with a reasonable expectation of success.
Response to Arguments
Applicant’s arguments, see Appeal Brief, filed March 6, 2026, with respect to the rejection of claims 1, 2, 6-19 and 21 under U.S.C. 103 as being unpatentable over Robbins and Declercq et al. have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made.
Applicants submit “[t]he skilled artisan would not have modified Robbins to arrive at the claimed moisture content.” Applicants submit Robbins is entirely directed to a recipe for making a hummingbird cake that is “rich and moist like carrot cake as opposed to light and spongy like butter cake.”
While the moisture content of the hummingbird cake as described by Robbins may be popular with some consumers, a dry and dense cake may desired by other consumers. A person of ordinary skill in the art who desires the flavor of a hummingbird cake but with a more dry and dense texture, would be motivated to adjust the recipe of Robbins to obtain a cake with the desired moisture content and texture.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
Prosecution Insights