DETAILED ACTION
Background
The amendment dated December 04, 2025 (amendment) amending claims 1, 5 and 15 and canceling claim 2 has been entered. Claims 1, 5 and 15-16 filed with the amendment have been examined. Claims 6-14 have been withdrawn from consideration as drawn to a non-elected invention. In view of the amendment, all outstanding claim objections have been withdrawn. In view of the cancelation of claim 2, all outstanding rejections of that claim have been withdrawn.
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 Objections
Claim 1 is objected to because of the following informalities:
In claim 1, at line 8 before “is produced” change (i) to (ii); and
In claim 1, at line 14 after “sweetening” correct the spelling of “constituents--.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 5 and 15-16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "produced from …cocoa butter-fat" in lines 8-9 which is indefinite. How can one produce a mixture of cacao butter, which is unrefined from a cocoa butter which is refined?
The Office interprets the claim as meaning a main mixed phase I produced from cacao butter.
In claim 5, the recited “product … compared to chocolate products not containing sweetening constituents and fillers obtained from parts of a cacao fruit” is indefinite. The comparative chocolate product and claimed chocolate product can differ in many ways other than the presence or absence of sweetening constituents and fillers obtained from parts of a cacao fruit; so the recited comparison to the comparative chocolate product is indeterminate. The recited comparative and claimed chocolate products must be identical but for the presence of sweetening constituents and fillers obtained from parts of a cacao fruit.
Claim 15 recites the limitation "cacao components" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1 from which claim 15 depends does not recite or define what is a cacao component or just how the recited cacao component relates to the claimed main mixed phase I and main mixed phase II. Does such a component have to come from cacao fruit or can it merely be anything that is part of a chocolate product? Further, the scope of cacao components is not clear as one cannot tell if the recited “sweetening constituents” is a thing separate from a cacao component.
Claim 16 is rejected as depending from a rejected base claim.
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, 5 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over EP 3498102A1 to Vieira et al. (Vieira) in view of US 2022/0256881 A1 to Berneart et al. (Berneart), both of record.
Regarding instant claims 1 and 15, Vieira discloses at [0010]-[0011] a chocolate product as a confectionary product comprising a composition obtained from cocoa pulp (“obtained from cacao fruit pulp”) as a sugar substitute (“sweetening constituent”). Accordingly, the Vieira chocolate product comprises a sweetening constituent partly or fully produced from parts of a cacao fruit as cacao fruit pulp (claim 15). And, at [0051] Vieira discloses that its cocoa pulp comprises fiber (“fiber constituent”), whereby the sweetening constituents from the cocoa pulp enrich the chocolate product with fibrous substances or constituents (claim 15). At Example 1 at [0233]-[0235], Vieira discloses mixing and refining to a particle size of 23 µm a cocoa liqueur and a cacao fruit pulp powder which comprises cacao and fillers that comprise fibrous constituents as a main mixed phase II; in addition, Vieira discloses adding cocoa butter as a main mixed phase I and conching.
The Office interprets a “juice concentrate” in claim 1 as including a powder as disclosed in the instant specification at page 6, lines 5-10. Further, at [0093] Vieira discloses a filtered cocoa pulp extract, thereby producing a juice. At [0015], Vieira discloses drying the cocoa pulp which produces a juice concentrate.
The Office considers the recited main mixed phase I “produced from a water-continuous concentrate” to include powders produced from liquid juices. The claimed main mixed phase I is recited as a product by process (“produced from” X) and not as a product itself (“comprises” X). The patentability of a product does not depend on its method of production. See MPEP 2113.I.
Further, Vieira does not disclose in its Example 1 that its chocolate product comprises a main mixed phase I comprising one or more sweetening constituents and cacao butter. However, Vieira at Example 1 discloses both cocoa butter and the claimed sweetening constituent in substantially the same chocolate product as that claimed. Accordingly, absent a clear showing as to how the phases of the Vieira product differ from that of the product as claimed, the Office considers the chocolate product of Example 1 of Vieira to comprise in one phase a mixture of a sweetening constituent and cocoa butter as in claim 1, to comprise a main mixed phase I and main mixed phase II combined in a conching process to produce a homogeneous mixture without agglomerates of >100 µm as in claim 1, and to be chocolate product comprising a main mixed phase I of cacao and fillers that comprise fiber constituents and a main mixed phase II that comprises one or more sweetening constituents and cacao butter as well as fillers and fiber obtained from parts of a cacao fruit as in claim 1. See MPEP 2112.01.I.
Vieira does not disclose that in its main mixed phase I, the (i) sweetening constituents and cacao butter are produced from a water-continuous concentrate being finely dispersed in a cocoa butter-fat mixture melt; and, Vieira does not disclose an example of a chocolate product comprising a filler and a sweetening constituent obtained from parts of a cacao fruit which consist only of the endocarp and mesocarp of the cacao fruit shell or of the cacao fruit placenta cacao fruit shell endocarp and mesocarp and the cacao fruit pulp, with or without the placenta. However, Vieira at [0059] discloses products comprising additional components from the cocoa pod, including cocoa powder and cocoa husk fiber as a fiber constituent. Further, at [0177] Vieira discloses that its cocoa pulp or extract (“sweetening constituent” as a juice concentrate) is dispersed within the fat phase of its chocolate product. The ordinary skilled artisan would at least have found it obvious in view of Vieira to make a chocolate product comprising as parts of the cacao fruit both the cacao fruit pulp and the cacao fruit husk and to form its main mixed phase I as a water-continuous concentrate finely dispersed in a cocoa butter-fat mixture melt in Example 1 because the fat phase in that Example is in fact the outer phase of the disclosed chocolate product.
Berneart at Abstract discloses a cacao pod husk powder comprising a fiber constituent for use in confectionary applications wherein, at [0030] the cacao pod husk powder further serves as a sugar replacement (“sweetening constituent”). Further, Berneart discloses at [0044] a peeled cacao pod husk powder. The Office considers the peeled cacao pod husk powder of Berneart to be substantially the same thing as the claimed endocarp and mesocarp of a cacao fruit shell. Still further, Berneart at [0067] discloses the use of cacao fruit pulp powder to improve the taste and mouthfeel of its cacao pod husk (“endocarp and mesocarp”) powder. Accordingly, in Example 6 at [0109]-[0111], Berneart disclose chocolates (“chocolate products”) comprising peeled cacao pod husk powder, or only the endocarp and mesocarp of the cacao fruit shell and having a similar flavor to the reference Sample 2 chocolate. As disclosed at [0107]-[0108] and Example 5 of Berneart, the roasted peeled cacao pod husk powder (Sample 2) of only the cacao fruit shell endocarp and mesocarp powder has a preferred flavor when compared to roasted whole cacao pod husk powder (Sample 1).
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Berneart for Vieira to produce a cacao pod husk fiber constituent containing filler from only the endocarp and mesocarp of the cacao pod husk and without the outer peel. Both references disclose chocolate products from cacao pod husk or cacao fruit pod shell that comprise a fiber constituent and a sweetening constituent. The ordinary skilled artisan in Vieira making a fiber containing extract from cacao pod husk would have desired to remove the peel or pericarp from its cacao pod husk as in Berneart to provide chocolate products with an improved, sweeter flavor comprising a fiber constituent.
Regarding instant claim 5, Vieira at [0200] discloses a chocolate product containing 10 to 55% of its cocoa pulp extract and no added sugar. The cocoa pulp extract powder disclosed in Vieira and the instantly claimed cacao fruit pulp sweetening constituent appear to be the same product. Absent a clear showing as to how the calorie density of the product of claim 5 differs from that of Vieira, the Office considers the Vieira chocolate product to have the claimed calorie density lowered by 10% to 50% corresponding to 60 to 300 kcal/100 g of the product, compared to chocolate products not containing sweetening constituents and fillers obtained from parts of the cacao fruit. See MPEP 2112.01.I.
Regarding instant claim 16, Vieira at [0195] discloses lecithin in the amount of from 0.1 to 0.5 wt%, and at [0201] discloses a chocolate product comprising 0.3 to 0.5 wt% of lecithin.
Response to Arguments
In view of the amendment dated December 04, 2025, the following outstanding rejections have been withdrawn as moot:
The rejection of claim 15 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to recite a method containing any active method steps.
The positions taken in the amendment dated December 04, 2025 (Reply) have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply at page 8 that the amendments overcome the indefiniteness rejections, respectfully the amendment modifies only the recited product whereas the issue with claim 5 lies in the broad and loosely characterized comparative and not with the recited product; further, the amendment does not address the antecedent basis issue with the recited “cacao components” which do not appear in claim 1.
Regarding the positions taken in the Reply at pages 8-9 alleging that Vieira and Berneart do not disclose a main mixed phase I produced from a water-continuous component being finely dispersed in a cocoa-butter (cacao butter) fat mixture melt, respectfully, the claim only recites a main mixed phase I “produced from” such a thing. The claim does not recite a liquid disperse phase but discloses a product made from it, thereby including any product that reasonably would be produced from such a dispersion. The patentability of a product does not depend on its method of production. See MPEP 2113.I. The Office considers the recited main mixed phase I “produced from a water-continuous concentrate finely dispersed in a cocoa-butter (cacao butter) fat mixture melt” to include dispersions of powders in fat and any other product that reasonably is produced from a cacao juice dispersed in cacao butter. The claims simply do not recite a cacao juice that is untreated or a sweetening constituent in a liquid form
Regarding the positions taken in the Reply at page 9 alleging that the disclosures in Vieira at [0009], [0015] and [0093] somehow distinguish the present claims over Vieira, respectfully Vieira must be properly read as a whole. Further, the instant claim language is properly broadly interpreted in light of the instant specification. MPEP 2111. The Office interprets a “juice concentrate” in claim 1 as including a powder as disclosed in the instant specification at page 6, lines 5-10. Accordingly, a sweetening constituent as claimed includes enzyme treated cacao pulp, juice from filtered cacao pulp and any fluid form of a cacao juice which includes powders because powders flow.
Regarding the positions taken in the Reply at page 10 that Vieira discloses only an extract and not a juice, respectfully the Office interprets a juice as an extract. See Vieira at [0022] which defines an extract of pulp as a portion thereof wherein one or more components have been removed, such as the polysaccharide. This definition of extract of cacao pulp includes cacao juice.
Regarding the positions taken in the Reply at pages 10-11 and teaching away arguments in relation to Vieira, respectfully the claims do not recite a liquid cacao juice or any inherent water content but rather recite a juice concentrate which in applicants own terms includes a powder (instant specification at page 6, lines 5-10); and, further, the claims do not recite a water-continuous (juice) concentrate dispersed in a cacao butter but rather disclose a main mixed phase I “produced from” a water-continuous concentrate dispersed in cacao butter. Given the product-by-process language in the claims, it falls to applicants to show that the product as claimed differs from that of Vieira as modified by Berneart. Even if applicants were to claim a chocolate product with sweetening constituent comprising a liquid with a specific water content, such a thing would still be found obvious over Berneart at [0067] that discloses juice as a liquid. Vieira at [0060] discloses a water content of less than 10 wt% of the extract.
Regarding the positions taken in the Reply at pages 11-12 alleging that Berneart does not disclose cacao pulp juice and that it repeatedly discloses dried pulp as powder, see Berneart at [0067] disclosing use of cacao pulp juice in liquid form. Respectfully, Berneart like Vieira must be read as a whole.
Regarding the positions taken in the Reply at pages 11-12 alleging that Berneart does not disclose use of cacao pod husk mesocarp and endocarp only, respectfully, the Office interprets Berneart at [0064] to mean only cacao pod husk mesocarp and endocarp when referring to peeled cacao pod husks used to improve the taste and aroma of products made therefrom.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791