DETAILED ACTION
Background
The amendment dated June 23, 2026 (amendment) amending claims 1, 5 and 15-16 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 Claims 6-14 have been withdrawn from consideration as drawn to a non-elected invention. Claims 2-4 have been canceled. In view of the amendment, all outstanding claim objections have been withdrawn.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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 23, 2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, at line 8 after “constituents” replace the comma [[,]] with a semicolon --;--,insert a new line after the semicolon, indent the new line and start the new line with -- and, wherein--;
at line 9 after “constituents” insert --and --; and
at line 10, change the line to read –and (iii) [[and]]has a water-in- --.
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 5 and 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.
In claim 5, at lines 5-14, the recited “reference product” that is a chocolate product of otherwise equivalent composition, but at the same time is a reference product [that] is identical to the product in all respects except for the substitution of cacao-fruit derived sweetening and filler components having the sucrose and cocoa mass is indefinite and confusing. Is the comparative or reference product only equivalent to the claimed product or is it identical to the claimed chocolate product in all respects except for the substitution of cacao-fruit derived sweetening and filler components?
In claim 16, the recited weight % (wt%) of the emulsifier is indefinite for lacking a basis or denominator. Is the amount of the emulsifier a wt% based on the total weight of the chocolate product, a wt% based on the total weight a main mixed phase I or II, a wt% based on the total weight of a sweetening constituent, or a wt% based on some other amount?
The Office interprets the claimed wt% of lecithin as being a wt%, based on the total weight of the chocolate product.
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 are rejected under 35 U.S.C. 103 as being unpatentable over US2018/0295853 a1 to Huhn et al. (Huhn), as evidenced by EP 3498102A1 to Vieira et al. (Vieira), of record.
Huhn is equivalent to EP3114939 A1 to Huhn et al., of record.
Unless otherwise stated, all percentages (%s) disclosed without units are assumed to be a weight % (wt%), and a weight % and a mass % are considered to be interchangeable.
The Office considers the recited constituents “obtained from parts of a cacao fruit, including the cacao fruit pulp, with or without a placenta as part of the cacao fruit pulp, and a cacao fruit shell endocarp and mesocarp” in claim 1 as including any one or more of the parts of the recited cacao fruit. Further, the Office considers the recited “obtained from parts of the cacao fruit, comprising the cacao fruit pulp including the placenta, and the cacao fruit shell endocarp and mesocarp” in claim 15 as including any one or more of the parts of the recited a cacao fruit.
Regarding instant claims 1 and 15, Huhn discloses at Fig. 4A and [0075] a dark chocolate or milk chocolate (“chocolate product”) comprising materials from pulp mucilage that is obtained from cocoa pulp (“cacao fruit pulp”), including as a sugar substitute (“sweetening constituent”). Further, Huhn discloses at FIG. 1 and [0023] processing cacao comprising wet grinding the cacao fruit pulp and mucilage with cacao beans, then separating the products into a fat phase comprising cocoa butter, a solid phase comprising cocoa powder and some water, and a wet phase comprising a cocoa aroma and polyphenols, wherein the products comprise a kit (at [0002] and [0069]) for use in making chocolate as depicted in FIG. 4A. Huhn at Fig. 4A discloses making its dark chocolate product by mixing and conching materials comprising materials only from the cacao fruit and comprising a liquid sweetening constituent as cocoa aroma and a solid fiber or filler in a cocoa powder from cacao pulp, wherein the chocolate product is wholly obtained from parts of a cacao fruit comprising a cacao fruit pulp, without addition of refined sugars or non-cacao- derived fiber fillers (claims 1 and 15).
The Office considers the claimed main mixed phase I comprising cacao and filler in claim 1 to include the cocoa powder of Fig. 1 of Huhn. As evidenced by Vieira at [0051] disclosing that its cocoa pulp comprises fiber, the cocoa powder of Huhn comprises cacao pulp solids as fiber and further comprises cacao.
As evidenced by Example 1 at [0233]-[0235] of Vieira disclosing conching to a particle size of 23 µm a cocoa liqueur and a cacao fruit pulp powder to make a chocolate product, the Office finds a conched chocolate product as disclosed in Huhn at FIG. 4A and [0075] to have a finely dispersed mixture without agglomerates of > 100 micrometers as claimed in claim 1.
Further, as evidenced by Vieira at [0177] disclosing that its cocoa pulp or extract (“sweetening constituent”) is dispersed within the fat phase of its chocolate product, the Office considers the conched dark chocolate product of Huhn containing cocoa aroma and solids from cocoa pulp and mucilage to be substantially the same thing as the recited chocolate product; further, the office considers the cocoa aroma of Huhn and the claimed sweetening constituent to be substantially the same thing. Accordingly, absent a clear showing as to how the structure, phases and composition of the chocolate product of Huhn differs from that as claimed, the Office considers the dark chocolate product disclosed at FIG. 4A and [0075] of Huhn to comprise a main mixed phase II comprising (i) one or more sweetening constituents and (ii) cacao butter and (iii) having a water-in- oil (W/O) emulsion structure as in claim 1; to comprise a main mixed phase II wherein in the water-in- oil (W/O) emulsion the dispersed aqueous droplets of the sweetening constituents are distributed within a continuous cacao butter-fat phase as in claim 1; to comprise a chocolate product wherein the recited main mixed phase II wherein the sweetening constituents obtained from the cacao fruit comprise a juice or juice concentrate having a water content enabling its presence as a dispersed aqueous emulsion phase within the main mixed phase I and the resulting chocolate product as in claim 1. Further, the Office considers the cocoa aroma of FIG. 1 of Huhn to comprise a sweetening constituent obtained from the cacao fruit and comprising a juice or juice concentrate as in claim 1. See MPEP 2112.01.I.
Regarding instant claim 5, the conched dark chocolate product of FIG. 4A and [0075] of Huhn comprising a fraction of cocoa pulp and mucilage as liquid cocoa aroma and the instantly claimed chocolate appears to be substantially the same thing as the claimed chocolate product; and, further the cocoa aroma wet phase sweetening agent from cocoa pulp and the solid fraction of cacao fruit pulp and mucilage in Huhn at FIG. 1 and [0023], respectively appear to be the same thing, respectively as the claimed sweetening constituent and the claimed filler from cacao fruit. Accordingly, absent a clear showing as to how the calorie density of the product of claim 5 differs from that of Huhn, the Office considers the chocolate product disclosed at FIG. 4A and [0075] of Huhn to have the claimed calorie density lowered by 10% to 50%, corresponding to a calorie reduction of from 50 to 255 kcal/100 g of the product, compared to a reference chocolate product of otherwise equivalent composition in which the juice or juice concentrate from the cacao fruit pulp is substituted by a mass-equivalent amount of sucrose, and the fillers from the cacao fruit shell endocarp and mesocarp are substituted by a mass-equivalent amount of cocoa mass having a fat content of 50% to 55% by weight, wherein said reference chocolate product has a calorie density of 500 to 520 kcal per 100 g; wherein the reference product is identical to the product in all respects except for the substitution of cacao-fruit derived sweetening and filler components having the sucrose and cocoa mass as in claim 5. See MPEP 2112.01.I.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over US2018/0295853 a1 to Huhn et al. (Huhn) as applied to claim 1, as further in view of EP 3498102A1 to Vieira et al. (Vieira).
As applied to claim 1, Huhn at FIG. 4A and [0075], FIG. 1 and [0023] as evidenced by Vieira at [0051] and Example 1 discloses a chocolate product comprising a main mixed phase I comprising cacao and filler, and a main mixed phase II comprising (i) one or more sweetening constituents obtained from the cacao fruit and comprising a juice or juice concentrate and (ii) cacao butter, and (iii) having a water-in-oil (W/O) emulsion structure, wherein dispersed aqueous droplets of the sweetening constituents are distributed within a continuous cacao butter-fat phase and, further wherein the sweetening constituents obtained from the cacao fruit have a water content enabling its presence as a dispersed aqueous emulsion phase within the main mixed phase I and the resulting chocolate product.
Huhn does not disclose an amount of lecithin in its chocolate product or an amount of from 0.1 to 1 weight % (wt%), based on the total weight of the chocolate product. However, at FIG. 4A Huhn discloses a chocolate product comprising lecithin.
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.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Vieira for Huhn to use the claimed amount of lecithin in its chocolate product. Both references disclose a chocolate product made entirely of materials in cacao and cacao fruit. The ordinary skilled artisan in Huhn would have desired to use its lecithin in the claimed amount, as in Huhn because Vieira discloses that it one would use the claimed amount of lecithin to make a more desirable chocolate product.
Response to Arguments
In view of the amendment dated June 23, 2026, the following outstanding rejections have been withdrawn as moot:
The rejections of claims 1, 5 and 15-16 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the Claim 1 limitation "produced from …cocoa butter-fat"; the claim 5, recited “product … compared to chocolate products not containing sweetening constituents and fillers obtained from parts of a cacao fruit”; and the claim 15 limitation "cacao components"; and,
The rejections of claims 1, 5 and 15-16 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. 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 remarks accompanying the amendment dated June 23, 2026 (Reply) have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply and Vieira, the rejection does not rely on Vieira for disclosure of any of an aqueous sweetening constituent, a water phase, a liquid phase or a water-in- oil (W/O) emulsion.
Regarding the position taken in the Reply and Bernaert, the rejection does not rely on Berneart for any matter challenged in the argument.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H 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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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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