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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 5, 2025 has been entered.
Status of the Application
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-15, 19
Withdrawn claims:
12-15
Previously canceled claims:
16-18
Newly canceled claims:
20
Amended claims:
1
New claims:
None
Claims currently under consideration:
1-11, 19
Currently rejected claims:
1-11, 19
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 1-5, 7, 11 are rejected under 35 U.S.C. 103 as being unpatentable over Reymond (US 3,385,710) in view of Windhab (US 2016/0242432 A1) and Best (US 2005/0118311 A1).
Regarding claims 1 and 2, Reymond teaches a chocolate drink mix where an edible fat is used as a coating for sugar particles (Abstract), where sugar is well known in the art to be a tastant and fat is well known to be hydrophobic.
Reymond does not teach the density of the composition being greater than 1 g/cm3 (claim 1) or greater than 1.5 g/cm3 (claim 2) or wherein the at least partially coated crystalline tastant particles comprise, on average, at least 98.6% sucrose (claim 1).
Regarding the density of the composition being greater than 1 g/cm3 (claim 1) or greater than 1.5 g/cm3 (claim 2), Windhab teaches spherical particles for food suspensions (Abstract) having a density between 0.1 to 2.5 g/cm3 ([0068]), which overlaps with the claimed ranges of “greater than 1 g/cm3” (claim 1) or “greater than 1.5 g/cm3” (claim 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Reymond to have a density as taught by Windham. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding wherein the at least partially coated crystalline tastant particles comprise, on average, at least 98.6% sucrose, Best teaches of a matrix of sugar crystals dispersed with a flavoring agent ([0022]) where the sugar can be sucrose and is present in an amount of 50 to 98% by weight ([0023]), which lies close to the claimed range of “at least 98.6%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Reymond with the use of sucrose in an amount taught by Best. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding claim 3, Reymond also teaches the particles being sucrose (i.e., sugar)(Abstract).
Regarding claim 4, although Reymond does not teach that wherein the tastant particles are between 1% and 50% coated with a hydrophobic coating, one of ordinary skill in the art would have adjusted the amount of hydrophobic coating on the tasting particles during routine optimization to find the amount of hydrophobic coating that results in the best tastant particle. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed percentage of hydrophobic coating would thus be obvious.
Regarding claim 5, Reymond also teaches that cocoa butter is a preferred fat (col. 1, lines 53-55), where cocoa butter is known in the art to be a solid fat.
Regarding claim 7, Reymond also teaches wherein the fat is cocoa butter (col. 1, lines 53-55).
Regarding claim 11, although Reymond does not explicitly state that the composition is suitable for reconstitution in a liquid at a temperature of about 23[Symbol font/0xB0]C, Reymond does teach that the composition is readily dispersible in hot or cold milk or water (col. 1, lines 39-41). Since the composition is dispersible in hot or cold water, it logically follows that the composition of Reymond would be suitable for reconstitution at about 23[Symbol font/0xB0]C.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Reymond (US 3,385,710) in view of Windhab (US 2016/0242432 A1) and Best (US 2005/0118311 A1) as applied to claim 5 above, and further evidenced by Valrhona (“Cocoa butter”, Valrhona, posted May 5, 2024 [accessed online February 14, 2025] https://web.archive.org/web/20240505084438/https:// www.valrhona.com/en/l-ecole-valrhona/discover-l-ecole-valrhona/chocolate-terminology/cocoa-butter).
Regarding claim 6, although Reymond does not teach the melting point of the solid fat or wax, Reymond does teach that cocoa butter is a preferred fat (col. 1, lines 53-55), which has a melting point of 37[Symbol font/0xB0]C, which lies within the claimed range of “greater than about 35[Symbol font/0xB0]C”.
Evidence to support that the melting point of cocoa butter is 37[Symbol font/0xB0]C is provided by Valrhona (p. 2, sec. “Uses in dessert”, ¶ 1).
Claims 8, 9, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Reymond (US 3,385,710) in view of Windhab (US 2016/0242432 A1) and Best (US 2005/0118311 A1) as applied to claim 1 above, and further in view of Gonus (US 2010/0323068 A1)(IDS Reference filed 08/28/2023).
Regarding claim 8, Reymond teaches that cocoa butter is a preferred fat (col. 1, lines 53-55).
Reymond does not teach wherein the coated tastant particles comprise about 1.2% cocoa butter.
However, in the same field of endeavor, Gonus teaches an instant drink powder comprising particles of sugar that are at least partially coated with a food-grade oil ([0019]) and that the oil of the disclosed composition is present in an amount between 0.1-5% of the total amount of powder ([0034]), which encompasses the claimed value of “about 1.2%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the amount of cocoa butter used in the composition of Reymond with the use of between 0.1-5% of oil as taught by Gonus. One would be motivated to make this modification because the drink powder of Gonus has improved cold water miscibility and solubility ([0039]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 9, Reymond does not teach wherein the coated tastant particles comprise about 0.3% palm fat.
However, in the same field of endeavor, Gonus teaches an instant drink powder comprising particles of sugar that are at least partially coated with a food-grade oil ([0019]) and that the oil of the disclosed composition is present in an amount between 0.1-5% of the total amount of powder ([0034]), which encompasses the claimed value of “about 0.3”. Gonus also teaches using palm kernel oil ([0033], where palm kernel oil is a type of palm fat).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Reymond with the use palm kernel oil between 0.1-5% of oil as taught by Gonus. One would be motivated to make this modification because the drink powder of Gonus has improved cold water miscibility and solubility ([0039]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 19, Reymond also teaches that cocoa butter is a preferred fat (col. 1, lines 53-55), where cocoa butter is known in the art to be a solid fat.
Reymond does not teach wherein the at least partially coated crystalline tastant particles comprise from 0.025 to 1.2 wt% of the solid fat or wax.
However, in the same field of endeavor, Gonus teaches an instant drink powder comprising particles of sugar that are at least partially coated with a food-grade oil ([0019]) and that the oil of the disclosed composition is present in an amount between 0.1-5% of the total amount of powder ([0034]), which overlaps with the claimed range of “0.025 to 1.2 wt%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the amount of cocoa butter used in the composition of Reymond with the use of between 0.1-5% of oil as taught by Gonus. One would be motivated to make this modification because the drink powder of Gonus has improved cold water miscibility and solubility ([0039]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Reymond (US 3,385,710) in view of Windhab (US 2016/0242432 A1) and Best (US 2005/0118311 A1) as applied to claim 1 above, and further evidenced by Stave (Stave, Jean, et al. “Wetting and Contact Angle”, TeachEngineering, last modified June 13, 2021 [accessed online February 14, 2025]).
Regarding claim 10, although Reymond does not explicitly teach the contact angle of the coated tastant particles, it is known in the art that hydrophobic materials have a contact angle of greater than 90[Symbol font/0xB0]. Because the composition of Reymond is coated in a hydrophobic material, it logically follows that the composition has a contact angle greater than 90[Symbol font/0xB0], which lies within the claimed range of “greater than 70[Symbol font/0xB0]”.
Evidence to support that the contact angle of a hydrophobic material is greater than 90[Symbol font/0xB0] is provided by Stave (p. 5, ¶ 4).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-5, 7, and 11 over Reymond and Sigma-Aldrich; claim 6 over Reymond, Sigma-Aldrich, and Valrhona; claims 8-9, 19 over Reymond, Sigma-Aldrich, and Gonus; claim 10 over Reymond, Sigma-Aldrich, and Stave: Applicant’s arguments filed September 5, 2025 have been fully considered but they are not persuasive.
Applicant argued that Reymond fails to teach the claimed density of the composition (Remarks, p. 6, ¶ 8- p. 10, ¶ 1).
Although the Examiner maintains that Reymond is sufficient to teach the density of the composition, a new grounds of rejection has been entered above relying on an additional reference. Therefore, this argument is moot.
Applicant argued that the oil of Gonus cannot be cocoa butter and Gonus does not teach the specific fat composition required by the claims (Remarks, p. 10, ¶ 4).
This argument has been considered. However, Gonus is not relied upon to teach the limitation of the hydrophobic coating being cocoa butter, but is merely relied upon to teach the claimed range. As described in the rejection of claim 8 above, Reymond teaches the presence of cocoa butter in the composition. Therefore, the Examiner maintains that one of ordinary skill would have found it obvious to adjust the cocoa butter taught by Reymond to be present in the amount taught by Gonus.
Applicant argued that the reference Valrhona and Stave alone or in combination do not remedy the deficiencies Reymond (Remarks, p. 11, ¶ 2).
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). Examiner maintains that Valrhona and Stave are adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
Claim Rejections – 35 U.S.C. §103 of claim 20 over Reymond, Sigma-Aldrich, and Wood: Applicant’s arguments with respect to the rejection of claim 20 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Reymond, Windhab, and Best. It is noted that the limitations of claim 20 have been moved to claim 1.
The rejections of claims 1-11, 19 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793