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 .
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.
Claims 1, 4-5, 7, 8, 10, 12 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Wang US 2012/0237662 in view of Chen CN 106666016A (Espacenet Translation).
Regarding claim 1, Wang discloses a dairy free chocolate confection (embodiment of [0018]) comprising, a cocoa component (cocoa solids) ([0018]); a sweetener ([0018], [0019]); and a plant origin fat (chocolate compatible fat: cocoa butter) ([0018], [0021]). Wang discloses that the chocolate can be any desired chocolate confection formulation and discloses that additives may be blended into the mixture ([0025]-[0026]). Wang discloses that additives include rice flour ([0024]), therefore Wang teaches that the confection comprises a grain flour component.
Claim 1 differs from Wang in the recitation that the grain flour component is specifically a roasted grain flour component comprising roasted rice flour.
Chen discloses that rice flour utilized in chocolate confections is heated ([0011]). It would have been obvious to one of ordinary skill in the art to modify Wang such that the grain flour component is specifically a roasted (heated) grain flour component as taught by Chen, since “applying a known technique to a known product ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.D).
Regarding claim 4, Modified Wang discloses that the cocoa component is cocoa solids (‘662, [0018]).
Regarding claim 5, Modified Wang discloses that the sweetener is corn syrup solids (‘662, [0019]).
Regarding claim 7, Modified Wang discloses that the plant origin fat is cocoa butter (‘662, [0018], [0021]).
Regarding claims 10 and 26, claims 10 and 26 differs from Modified Wang in specifically reciting the amount of roasted grain flour component. Chen discloses utilizing roasted rice flour in a chocolate confection in an amount of 18% (‘016, Espacenet Translation [0024]) to provide nutrition and delicious taste while reducing cost (‘016, Espacenet Translation [0022]). It would have been obvious to one of ordinary skill in the art to modify the amount of roasted grain flour component of Modified Wang to be 18% as additionally taught by Chen in order to provide increased nutrition and delicious taste while reducing cost.
Regarding claim 12, Modified Wang discloses that the sweetener can comprise 52% of the confection (Example 1, [0039]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Wang US 2012/0237662 in view of Chen CN 106666016A (Espacenet Translation) in view of Laberdure-Nedder et al. US 2012/0219668.
Regarding claim 6, Modified Wang discloses that the sweetener can be polyols, but does not recite the specific polyols (‘662, [0019]). Laberdure-Nedder discloses that polyols used as sweeteners for chocolate include maltitol, sorbitol, erythritol ([0037]). It would have been obvious to one of ordinary skill in the art to have modified the polyols of Modified Wang to be maltitol, sorbitol, erythritol as taught by Laberdure-Nedder, thereby selecting known materials based on their suitability for their intended use, and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination (MPEP 2144.07).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Wang US 2012/0237662 in view of Chen CN 106666016A (Espacenet Translation) in view of Abu-Hardan US 2019/0174792.
Regarding claim 9, claim 9 differs from Modified Wang in the recitation that the roasted grain flour component comprises less than 5% by weight of water.
Abu-Hardan discloses a chocolate confectionery composition ([0376], [0385], [0390], [0399]-[0401]) comprising a roasted grain flour component (heated micronized bran; since the specification discloses that the term “roasted grain flour” refers to an unroasted grain flour that has been processed through the application of direct or indirect heat sufficient to cause the grain flour to undergo a measurable change to at least one of moisture content, flavor or color, the heated micronized bran of Abu-Hardan can be considered a roasted grain flour, it is noted that Abu-Hardan discloses that the heating reduces the moisture content of the micronized bran) ([0164]-[0172], ]0180], [0185]). Abu Hardan discloses that the roasted grain flour (heat treated micronized bran) preferably has a moisture content no more than 5% by weight of the bran after the heat treatment ([0183]-0185]). Abu-Hardan discloses that the lower the moisture content of the material (bran) the more advantageous, as with less moisture, the material has less an impact on viscosity when added to a fat based system (and thus will be easier to process by pumping and layering) and/or with less water the material will be less susceptible to microbial contamination and/or growth and therefore the more food safe the material ([0164]-[0172], [0183]-[0186]).
It would have been obvious to one of ordinary skill in the art to modify the roasted grain flour component of Modified Wang such that the roasted grain flour component comprises less than 5wt% of water as taught by Abu-Hardan in order to ensure that the roasted grain flour component will be less susceptible to microbial contamination and/or growth and therefore a more food safe material.
Claims 15 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Wang US 2012/0237662 in view of Chen CN 106666016A (Espacenet Translation) in view of Buck US 2006/0008576.
Regarding claim 15, claim 15 differs from Modified Wang in specifically reciting the amount of roasted grain flour component. Chen discloses utilizing roasted rice flour in a chocolate confection in an amount of 18% (‘016, Espacenet Translation [0024]) to provide nutrition and delicious taste while reducing cost (‘016, Espacenet Translation [0022]). It would have been obvious to one of ordinary skill in the art to modify the amount of roasted grain flour component of Modified Wang to be 18% as additionally taught by Chen in order to provide increased nutrition and delicious taste while reducing cost. While Wang does not give specific amounts of each ingredient in paragraph [0018], Wang discloses that any desired chocolate formulation can be utilized ([0025]). Wang discloses amounts of ingredients used in a chocolate composition in the examples. Modified Wang discloses that the sweetener can comprise 54.3% of the confection, the cocoa component can comprise 35.3% of the confection (Example 3, [0044]). The plant origin fat comprises 18.3% of the confection (18.3% cocoa butter) (Example 3, [0044]), it is noted that Buck discloses that cocoa liquor contains 54% cocoa butter (30.4% X 54% = 16.4% + 1.9% = 18.3% cocoa butter).
Regarding claim 27, Modified Wang discloses that the plant origin fat comprises 18.3% of the confection (18.3% cocoa butter) (Example 3, [0044]), it is noted that Buck discloses that cocoa liquor contains 54% cocoa butter (30.4% X 54% = 16.4% + 1.9% = 18.3% cocoa butter).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Wang US 2012/0237662 in view of Chen CN 106666016A (Espacenet Translation) in view of Rumbaut et al. US 2010/0196574.
Regarding claim 17, claim 17 differs from Modified Wang in the recitation that the confection has a viscosity that is between 2000 and 2200 centipoise at 40 degrees Celsius.
Rumbaut discloses that a suitable viscosity for chocolate includes 1500- 3500 mPas (1500-3500 centipoise) (measured at 40 °C) ([0029]). It would have been obvious to one of ordinary skill in the art to modify the viscosity of the confection of Modified Wang such that the confection has a viscosity that is between 2000 and 2200 centipoise at 40 degrees Celsius as taught by Rumbaut, since Wang and Rumbaut are both directed to chocolate compositions and Rumbaut shows this was a suitable viscosity for chocolate.
Response to Arguments
Applicant's arguments filed 01/30/2026 have been fully considered but they are not persuasive, regarding the rejection based on Wang. It is noted that since claim 8 was incorporated into claim 1, the rejection based on Zhu has been withdrawn.
On Pg. 12-14 of the remarks, Applicant argues that Wang does not disclose or suggest a roasted grain flour component. Applicant argues that while Wang broadly states that “additives such as soy protein, rice flour and the like may be added in addition to or in place of milk solids” that this disclosure is entirely optional and incidental. Applicant argues that rice flour is not required, emphasized or functionally described in Wang and argues that it is not identified as a defining component of the confection.
This argument has not been found convincing. First it is noted that MPEP 2123 recites "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.", “reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component” (MPEP 2123). Since Wang discloses that in some embodiments additives such as rice flour may be added to or in place of milk solids, Wang recognizes that rice flour is a known additive for chocolate confections. It is acknowledged that Wang does not specify that the rice flour is roasted. It is noted that Wang does not particularly limit the type of rice flour and therefore one of ordinary skill in the art would have been motivated to select from known types of rice flour utilized in confections such as the rice flour taught by Chen, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
On Pgs. 12-13 of the remarks Applicant argues that Chen is not a dairy free confection. Applicant argues that Chen describes heating rice flour at 100-105 °C for 18-22 minutes for the purpose of semi-gelatinizing the rice flour prior to mixing. Applicant argues that Chen consistently characterizes this step as heating or semi-gelatinization, not roasting.
This argument has not been found persuasive it is noted that the specification recites that “the term “roasted grain flour” as used in the specification and claims refers to an unroasted grain flour that has been processed through the application of direct or indirect heat sufficient to cause the grain flour to undergo a measurable change to at least one of moisture content, flavor or color” (see PGPUB specification paragraph [0023]). Chen teaches an unroasted grain flour that has been processed through the application of direct or indirect heat sufficient to cause the grain flour to undergo a measurable change to at least one of moisture content, and therefore teaches roasted grain flour/roasted rice flour according to the claims and specification.
On Pg. 13 of the remarks Applicant argues that Wang discloses rice flour is an optional additive that merely functions as a substitute or supplement for dairy components, not a primary ingredient. Applicant argues that Wang provides no teaching to reformulate its reduced fat dairy-based chocolate system into a dairy free confection.
This argument has not been found convincing. First it is noted that MPEP 2123 recites "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.", a “reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component” (MPEP 2123). Wang discloses a dairy free chocolate confection (embodiment of [0018]). Wang discloses that the chocolate can be any desired chocolate confection formulation and discloses that additives may be blended into the mixture ([0025]-[0026], [0017]). It is noted that a chocolate composition that is considered dairy free is a dark chocolate composition, as it is well known in the art that dark chocolate compositions can commonly be dairy free (see for example Fountain US 20160302439 paragraph [0049], [0085]). It is noted that Wang mentions dark chocolate in paragraph [0024]. While Wang discloses that “in some embodiments, additives such as soy protein, rice flour and the like may be added in addition to or in place of milk solids”, the rice flour is not limited to be used in addition to or in place of milk solids in all embodiments. Wang also discloses that additives in general can be blended into the chocolate composition ([0026]), and Wang recognizes that rice flour is a known additive ([0024]). To therefore utilize rice flour as an additive for a dairy free chocolate composition (for example a dark chocolate) of Wang would have been obvious based on the teachings of Wang as a whole.
Chen discloses that adding rice flour to chocolate provides flavor, and increases the nutritional values while reducing cost of chocolate ([0019], [0020]). Chen therefore provides additional motivation to utilize rice flour in the chocolate composition, such as to enhance flavor and increase nutritional value of the composition. It is noted that Chen also specifically discloses adding the heated rice flour to a low-fat chocolate composition, and Wang is also directed to reduced fat chocolate compositions.
In addition, it is noted that Wang discloses in paragraph [0025] that the blended mixture can be any desired chocolate formulation and uses traditional chocolate ingredients, but lower overall fat content and it will be appreciated that the amounts of cocoa sugar, other sweetener, chocolate compatible fat (see also paragraph [0021]), milk (including milkfat and/or milk solids) can be added in proportions to achieve any desired flavor characteristics. Thus, Wang discloses that the milk component can be only milk solids (see also paragraph [0024] “milk may be provided as powdered milk”) and since Wang suggests that rice flour can be used in place of milk solids, Wang suggests that the milk component can be substituted for rice flour, therefore teaching a dairy free confection including rice flour based on this reasoning as well.
On pg. 13, Applicant argues that Wang’s focus on balancing chocolate fats and milk fats teaches away from the claimed dairy free composition.
This argument has not been found persuasive, Wang does not disclose that the purpose of the invention is to balance chocolate fats and milk fats. See paragraphs [0018], [0021] and [0023] of Wang. Paragraph [0023] recites “the total formulated fat may include both chocolate fat and milk fat” and paragraph [0024] recites “in some embodiments, such as the manufacture of dark chocolate confections, it may be desirable to provide milk fat but not milk solids”. Thus, milk fat “may be present” in some embodiments but milk fat is not explicitly required to be present in every envisaged embodiment of Wang. Wang teaches dairy free chocolate compositions for the reasons discussed in detail above.
On pgs. 13-14, Applicant argues that there is no articulated reason why a person of skill in the art would have been motivated to modify Wang using Chen to arrive at the claimed invention. Applicant argues that there is no teaching to select rice flour from Wang’s optional additives, and apply Chens heating step to rice flour. Applicant argues the proposed combination lacks proper motivation and relies on impermissible hindsight reasoning. Applicant argues that the rejection relies on improper hindsight reasoning in selecting Wang as a primary reference.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). Regarding applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In this case, first it is noted that a “reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component” (MPEP 2123). Second, motivation to combine has been derived from the prior art and KSR rationale. As discussed above, Wang discloses a dairy free chocolate confection (embodiment of [0018]). Wang discloses that the chocolate can be any desired chocolate confection formulation and discloses that additives may be blended into the mixture ([0025]-[0026], [0017]). It is noted that a chocolate composition that is considered dairy free is a dark chocolate composition, as it is well known in the art that dark chocolate compositions can commonly be dairy free (see for example Fountain US 20160302439 paragraph [0049], [0085]). While Wang discloses that “in some embodiments, additives such as soy protein, rice flour and the like may be added in addition to or in place of milk solids”, the rice flour is not limited to be used in addition to or in place of milk solids in all embodiments. Wang also discloses that additives in general can be blended into the chocolate composition ([0026]), and Wang recognizes that rice flour is a known additive ([0024]). To therefore utilize rice flour as an additive for a dairy free chocolate composition (for example a dark chocolate) of Wang would have been obvious based on the teachings of Wang as a whole. It is noted that Wang does not particularly limit the type of rice flour and therefore one of ordinary skill in the art would have been motivated to select from known types of rice flour utilized in confections, such as the rice flour taught by Chen, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A). It is noted that Chen also specifically discloses adding the heated rice flour to a low-fat chocolate composition, and Wang is also directed to reduced fat chocolate compositions. Chen discloses that adding rice flour to chocolate provides flavor, and increases the nutritional values while reducing cost of chocolate ([0019], [0020]). Chen therefore provides additional motivation to utilize rice flour/roasted rice flour in the chocolate composition Wang, such as to enhance flavor and increase nutritional value of the composition. It has been held that “Combining prior art elements according to known methods to yield predictable results” and “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A,D).
On Pg. 15 Applicant argues that the heated micronized bran of Abu Hardan is not considered a roasted grain flour.
This argument has not been found convincing. The specification discloses that “grain flour” refers to the powder made by milling or grinding raw grains ((see PGPUB specification paragraph [0023]). Since the micronized bran is a powder obtained by milling or grinding raw grains (see paragraph [0017], [0248]-[0253] of Abu-Hardan) bran is considered a grain flour. It is noted that the definition does not require the flour to be a whole grain flour. The specification recites that “the term “roasted grain flour” as used in the specification and claims refers to an unroasted grain flour that has been processed through the application of direct or indirect heat sufficient to cause the grain flour to undergo a measurable change to at least one of moisture content, flavor or color” (see PGPUB specification paragraph [0023]). The heated micronized bran of Abu-Hardan can be considered “a roasted grain flour”, as it is noted that Abu-Hardan discloses that the heating reduces the moisture content of the micronized bran ([0164]-[0172], ]0180], [0185]). Abu Hardan discloses that the roasted grain flour (heat treated micronized bran) preferably has a moisture content no more than 5% by weight of the bran after the heat treatment ([0183]-0185]). Therefore, Abu Hardan teaches a roasted grain flour according to the specification.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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