DETAILED ACTION
Background
The amendment dated April 10, 2026 (amendment) amending claim 30, adding new claim 40 and canceling claim 39 has been entered. Claims 1-4, 6-9, 12, 16, 30-38 and 40 as filed with the amendment have been examined. Claims 5, 10-11, 13-15, 17-29 and 39 have been canceled. In view of the amendments all outstanding claim objections have been withdrawn. In view of the cancelation of claim 39, all outstanding rejections of that claim have been withdrawn.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 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 1-3, 38 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over US20220312791 A1 to Dupas-Langlet et al. (Dupas-Langlet), as evidenced by WO2020115248 A1 to Berneart et al. (Berneart), both of record.
Unless otherwise disclosed, the Office considers weight % (wt%) and mass % as interchangeable.
The Office interprets the claimed “untreated cacao pulp” as including any cacao pulp that remains in its native or undenatured state, including cacao pulp during any part of its handling, including fresh, refrigerated or frozen and thawed cacao pulp, naturally fermented cacao pulp, and any other cacao pulp to which nothing has been added.
The Office interprets the claimed pulp to carrier weight ratio of from 40:60 to 70:30 to include a weight ratio, based on the weight of total solids as well as a weight ratio, based on the weight of raw materials.
The Office interprets the recited composition comprising a pulp to carrier weight ratio of about 40:60 to about 70:30 as in claim 1 to include any composition having the claimed weight ratio for any time, including any and all of the spray dried composition or product, or any pulp to carrier weight ratio obtained during or before spray drying, if even for a transitory period of time.
Regarding instant claims 1 and 3, Dupas-Langlet at [0012] discloses a spray dried composition comprising a cacao pulp for use (at [0016]) as a sugar substitute in chocolate products (“confectionary compositions” that do “not comprise any added sugar” - claim 3), wherein at [0178]-[0179] the spray dried cacao pulp composition is prepared by spray drying cacao pulp with a stabilizer (“with a carrier”).
Further, Dupas-Langlet does not disclose an example of a composition made by spray drying cacao pulp or disclose spray drying cacao pulp with a carrier selected from cocoa powder, cocoa butter, milk powder and combinations thereof. However, Dupas-Langlet at [0187] discloses milk powder, cocoa powder and other stabilizers as spray drying carriers or stabilizers. The ordinary skilled artisan would have found it obvious in Dupas-Langlet to use any of the milk powder, cocoa powder and other stabilizers disclosed in Dupas-Langlet as spray drying carriers or stabilizers because Dupas-Langlet at [0180] discloses that the claimed carriers improve the dryability of the cocoa pulp and prevent it from sticking in processing.
In regard to the claimed spray drying, the instant claims are all product by process claims. In such a case, the patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. Because the spray dried composition of Dupas-Langlet which is pasteurized is substantially the same thing as the claimed composition, the Office considers the claimed untreated cacao pulp composition to include the composition of Dupas-Langlet at [0012], [0016], [0178]-[0180] and [0187].
Still further, Dupas-Langlet does not disclose an example of a composition with amounts of cacao pulp and carrier in a pulp to carrier weight ratio of from 40:60 to 70:30. However, the claims are drawn to a composition and Dupas-Langlet at [0204] and [0207] discloses a spray dried composition comprising at least 40 wt% and at most 60 wt% of the carrier, wherein the remainder of the composition (at [0210]) comprises the cacao pulp. The recited composition of a pulp to carrier weight ratio of about 40:60 to about 70:30 includes a spray dried composition or product. While Dupas-Langlet does not provide a specific example of spray drying cacao pulp with a cocoa pod fiber in a pulp to carrier weight ratio of from 40:60 to 70:30, the ordinary skilled artisan would have found the claimed spray dried composition having the claimed pulp to carrier weight ratio obvious because Dupas-Langlet discloses that claimed weight ratio of cacao pulp and carrier of 60:40 to 40:60 makes desirable confectionary ingredients.
Regarding instant claim 2, Dupas-Langlet at [0187] discloses milk powder (“whole milk powder”) and skimmed milk powder (“skim milk powder”) as suitable carriers.
Regarding instant claim 38, the Office interprets the recited composition of a pulp to carrier weight ratio having a solids content of 10 to 50% solids to include any composition having the claimed solids for any time, including any and all of the spray dried composition or product, or any pulp to carrier weight ratio obtained during or before spray drying, if even for a transitory period of time. At [0207]-[0208] Dupas-Langlet discloses a spray dried composition comprising at least 40 wt% and at most 65 wt% cacao pulp solids with (at [0204]-[0205]) at least 30 wt% and at most 60 wt% carrier solids or 40:60 to 65:30. Further, Berneart provides evidence at page 2 of 40, lines 29-30 that cacao pulp (“cacao pulp”) contains 80-90 wt% water. Because Dupas-Langlet discloses at [0199]) compositions that when initially combined are least 75 wt% wet pulp, then regardless of the solids content of the carrier, the compositions will comprising at least about 60 wt% water or a solid content 40 wt% or less of solids, which the claimed 10 to 50 wt% overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Dupas-Langlet would have desired for its composition to comprise 10 to 50 wt% solids in at least one point from the combining to provide a composition to the end of the spray drying of the composition because Dupas-Langlet discloses that a composition comprising the claimed solids content is or provides a desirable confectionary ingredient.
Regarding instant claim 40, the Office considers the claimed untreated cacao pulp that is not filtered to include the cacao pulp obtained from depulping of cocoa pods as disclosed in Dupas-Langlet at [0169].
Claims 4, 6, 12, 16, 30 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over WO2020115248 A1 to Berneart et al. (Berneart) in view of WO2019115731 A1 to Vieira et al. (Vieira), of record, and US20220312791 A1 to Dupas-Langlet et al. (Dupas-Langlet).
Unless otherwise disclosed, the Office considers weight % (wt%) and mass % as interchangeable.
The Office interprets the claimed “untreated cacao pulp” as including any cacao pulp that remains in its native or undenatured state, including cacao pulp during any part of its handling, including fresh, refrigerated or frozen and thawed cacao pulp, naturally fermented cacao pulp, and any other cacao pulp to which nothing has been added. Further, the Office considers the claimed “untreated cacao pulp” to include minimally processed cacao pulp including pasteurized and homogenized cacao pulp as disclosed in the instant specification at [0005], [0070] and [0075].
The Office interprets the claimed pulp to carrier weight ratio of from 40:60 to 70:30 to include a weight ratio, based on the weight of total solids as well as a weight ratio, based on the weight of raw materials.
Regarding instant claims 4, 12 and 16, Berneart at page 6 of 40, lines 26-33 discloses a method comprising spray drying a cacao pulp on a carrier (“combining a cacao pulp with a carrier”) after pressure or heat treating the cacao pulp. At page 22 of 40, lines 14-27, Berneart discloses carriers selected from the group consisting of milk powder, cocoa powder, cocoa pod husk powder and cocoa cake. Further, Berneart discloses at page 2 of 40, lines 29-30 that cacao pulp contains no fat and is an aqueous pulp. In addition, at page 4, lines 8-10, Berneart discloses the free-flowing cacao pulp containing no fat for confectionary products (“non-fat based confectionary product” in claim 12). Further, at Example 8 on page 32 of 40, lines 17-21 discloses a composition that does not comprise added sugar (claim 16).
Further and regarding instant claim 30, Berneart does not disclose a specific example of a method of spray drying untreated cacao pulp and, further, does not disclose a method of combining untreated spray drying cacao pulp with a carrier selected from the group consisting of cocoa powder, cocoa pod fiber, cocoa butter, milk powder, and combinations thereof in a pulp to carrier weight ratio of about 40:60 to about 70:30 to provide a composition. However, Berneart at Example 5 on pages 29-30 of 40 discloses a method of spray drying cacao pulp concentrate with a carrier composition comprising 0.2 kg of solidified cacao pulp and 0.2 kg of a cacao pod husk fiber carrier (“cocoa pod fiber”) at a pressure of 10 pounds per square inch (claim 30)..
At page 6, lines 45-46, Vieira discloses spray drying cacao pulp with no other cacao pulp treatment except pasteurizing and (at page 13, lines 1-6) wherein the pasteurization step can be “any appropriate point in the method”. Also, at page 6, lines 45-52 Vieira discloses spray drying at a temperature of from 45 to 125 °C. Further, at page 7, lines 10-11 Vieira discloses drying cacao pulp as soon as possible after removing it from the cacao pod.
At [0169] Dupas-Langlet discloses spray drying cacao pulp with no other cacao pulp treatment except pasteurizing. Further, at [0199] Dupas-Langlet discloses combining wet cacao with a carrier; and, at [0223]-[0224] discloses spray drying at a temperature of, for example, at least 100 °C. The disclosed method in Dupas-Langlet includes spray drying a cacao pulp combined with a carrier.
The Office considers the claimed untreated cacao pulp as including the minimally processed cacao pulp of each of Dupas-Langlet and Vieira.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Dupas-Langlet and Vieira for Berneart to combine an untreated cacao pulp with a pulp in a carrier weight ratio of about 40:60 to 70:30 and spray dry the composition. All references disclose a method of spray drying unfiltered cacao pulp for use in confectionary products. Further, each of Dupas-Langlet and Vieira discloses spray drying wet cacao pulp that has only been minimally processed. The ordinary skilled artisan in Berneart would have desired to spray dry its cacao pulp with no other heat/pressure treatment cacao pulp and with the claimed amount of a carrier in the manner disclosed in Dupas-Langlet and Vieira to enhance process efficiency as in Dupas-Langlet at [0178].
Regarding instant claim 6, Berneart does not provide an example of spray drying cacao pulp that is not filtered. However, at page 6 of 40 at lines 31-33, Berneart discloses using cacao pulp as a starting material. Further, Dupas-Langlet at [0169] or Vieira at page 13, lines 1-6 do not filter their cacao pulp.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of each of Dupas-Langlet and Vieira for Berneart not to filter its cacao pulp because all three references disclose treating cacao pulp with all of its solids. The ordinary skilled artisan in Berneart would have desired to using cacao pulp itself in spray drying as in Dupas-Langlet and Vieira to preserve more of the natural solids in the cacao pulp material.
Regarding instant claims 7-8, Berneart does not disclose an example of a method of spray drying that occurs at an inlet temperature of 120 °C to 180 °C as in claim 7, and does not disclose an example wherein the disclosed spray drying occurs at an outlet temperature of 60 °C to 100 °C as in claim 8. However, at [0223], Dupas-Langlet discloses spray drying at an inlet temperature of from 90 to 160 °C, which the claimed inlet temperature of 120 °C to 180 °C overlaps, and (at [0224]) discloses an outlet temperature of from 70 to 100 °C. Further, Vieira at page 6, lines 45-52 discloses spray drying at a temperature of from 45 to 125 °C, which the claimed inlet temperature of 120 °C to 180 °C as in claim 7 overlaps and which the claimed outlet temperature of 60 °C to 100 °C as in claim 8 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Berneart would have found it obvious to spray dry its cacao pulp and carrier combination at an inlet temperature of 120 °C to 180 °C because Dupas-Langlet and Vieira each discloses that spray drying at an inlet temperature of 120 °C to 180 °C and an outlet temperature of from 60 to 100 °C effectively and efficiently dries its cacao pulp and carrier mixture without degradation.
Regarding instant claim 34, the Office interprets the recited composition of a pulp to carrier weight ratio having a solids content of 10 to 50% solids to include any composition having the claimed solids for any time, including any and all of the spray dried composition or product, or any pulp to carrier weight ratio obtained during or before spray drying, if even for a transitory period of time. Berneart as modified by Vieira and Dupas-Langlet at [0207]-[0208] discloses a spray dried composition comprising at least 40 wt% and at most 65 wt% cacao pulp solids with (at [0204]-[0205]) at least 30 wt% and at most 60 wt% carrier solids or 40:60 to 65:30. Further, Berneart discloses at page 2 of 40, lines 29-30 that cacao pulp (“cacao pulp”) contains 80-90 wt% water. Because Dupas-Langlet discloses at [0199]) compositions that when initially combined are least 75 wt% wet pulp, then regardless of the solids content of the carrier, the compositions will comprising at least about 60 wt% water (80% or 75%) or a solid content of 40 wt% or less of solids, which the claimed 10 to 50 wt% overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Dupas-Langlet would have desired for its composition to comprise 10 to 50 wt% solids in at least one point from the combining to provide a composition to the end of the spray drying of the composition because Berneart as modified by Vieira and Dupas-Langlet discloses that a composition comprising the claimed solids content provides a desirable confectionary ingredient.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over WO2020115248 A1 to Berneart et al. (Berneart) in view of WO2019115731 A1 to Vieira et al. (Vieira) and US20220312791 A1 to Dupas-Langlet et al. (Dupas-Langlet) as applied to claim 4 above, and further in view of JP 2010078232 A to Enokida et al. (Enokida).
References to Enokida refer to the Clarivate machine translation provided in a previous Office action.
As applied to instant claim 4, Berneart at page 6 of 40, lines 26-31 and page 22 of 40, lines 14-27 [0194] as modified by Vieira at page 7, lines 10-11 and page 13, lines 1-6 and Dupas-Langlet at [0169], [0178]-[0179] and [0194] discloses a method comprising combining untreated cacao pulp with a carrier in a pulp to carrier weight ratio of from 40:60 to 70:30 and spray drying the composition.
Berneart as modified Vieira and Dupas-Langlet by does not disclose a spray dryer coated with polytetrafluoroethylene.
Enokida at Abstract on page 1 discloses a spray dryer that is easily cleaned of deposits including ceramic powder and binder adhered to its inner wall. In the sentence bridging pages 4 and 5 and page 5, at lines 1-2, Enokida discloses the coating of a fluororesin on a fibrous inorganic material layer of the spray dryer, thereby improving production efficiency. The Office considers the claimed polytetrafluoroethylene to be the same thing as or an obvious variant of the fluororesin of Enokida for creating a non-stick surface.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Enokida for Berneart as modified by Vieira and Dupas-Langlet to use a spray dryer coated with polytetrafluoroethylene. All references disclose spray drying a potentially sticky cacao pulp material. The ordinary skilled artisan in Berneart, Vieira and Dupas-Langlet would have desired to use a polytetrafluoroethylene as in Enokida to avoid fouling its spray drier.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter:
The recited composition of claims 35-37 comprising (in claim 35) an untreated cacao pulp; and a carrier selected from the group consisting of cocoa butter in a pulp to carrier weight ratio of about 40:60 to about 70:30, wherein the composition is a spray dried composition and the recited method of claims 31-33 comprising (in claim 33) combining an untreated cacao pulp; and a carrier selected from the group consisting of cocoa butter in a pulp to carrier weight ratio of about 40:60 to about 70:30 to provide a composition and spray drying the composition is not disclosed or obvious over any of the art of record, taken alone or in combination. The composition of claim 36, which is dependent from claim 35 and comprises crystallized sugar particles in the cocoa butter is also allowable over the art; likewise the method of claim 33, which is dependent from claim 31 and comprises crystallized sugar particles in the cocoa butter is allowable over the art. The method of claim 32 which recites a method wherein the carrier is an additional carrier in addition to the cocoa butter, and which is dependent from claim 31 is allowable over the art. And the composition of claim 36, which depends from claim 36 and wherein the crystallized sugar particles have a particle size of less than 30 microns is allowable over the art.
The closest art of US20220312791 A1 to Dupas-Langlet et al. (Dupas-Langlet) at [0012] discloses a spray dried composition comprising a cacao pulp for use (at [0016]) as a sugar substitute in chocolate products, wherein at [0178]-[0179] the spray dried cacao pulp is prepared by spray drying cacao pulp with a stabilizer. However, although Dupas-Langlet at [0187] discloses a cocoa powder stabilizer containing fat as (at [0194]) a high-fat cocoa powder and containing some cocoa butter, Dupas-Langlet nowhere discloses or suggests a carrier which is cocoa butter in the claimed amount or a method wherein the carrier is cocoa butter or cocoa butter combined with a further carrier in the claimed amount.
The closest art of WO2020115248 A1 to Berneart et al. (Berneart) at page 6 of 40, lines 26-31 discloses a method comprising spray drying a cacao pulp on a carrier to form a dried composition. At page 22 of 40, lines 14-27, Berneart discloses carriers selected from the group consisting of milk powder, cocoa powder, cocoa pod husk powder; however, Berneart nowhere discloses or suggests a carrier which is cocoa butter in the claimed amount or a method wherein the carrier is cocoa butter or cocoa butter combined with a further carrier in the claimed amount.
The closest art of WO2019115731 A1 to Vieira et al. (Vieira) at page 6, lines 45-46, discloses spray drying cacao pulp and pasteurizing with no other cacao pulp treatment except pasteurizing (at page 13, lines 1-6) wherein the pasteurization step can be at any appropriate point in the method. Also, at page 6, lines 45-52 Vieira discloses spray drying at a temperature of from 45 to 125 °C. Further, at page 7, lines 10-11 Vieira discloses drying cacao pulp as soon as possible after removing it from the cacao pod. However, Vieira nowhere discloses or suggests a composition comprising a carrier or a cocoa butter carrier or method of spray drying a composition comprising a carrier, much less a cocoa butter carrier or a cocoa butter carrier or combination of cocoa butter and another carrier in the claimed amount.
Claims 31-33 and 35-37 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
In view of the amendment dated April 10, 2026, the following rejections have been withdrawn as moot:
The rejection of claim 39 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the term “commercial” in claim 39; and,
The rejection of claim 39 under 35 U.S.C. 102(a)(2) as being anticipated by WO2020115248 A1 to Berneart et al.
Regarding the positions taken in the remarks accompanying the amendment dated August 20, 2025 (Reply), the Office has fully considered the remarks but does not find them persuasive for the following reasons:
Regarding the position taken in the Reply at pages 6-8 that Dupas-Langlet does not disclose pasteurization after spray drying or that such pasteurization is undesirable or causes powders to be other than free flowing, the Office reminds applicants that the rejected claims 1-3 and 38 are product by process claims. The patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. Accordingly, the issue is not whether or not the cacao pulp is pasteurized; rather, it is whether pasteurizing or not makes the final product different from the art in an unobvious way. Nothing on the record distinguishes a pasteurized cacao pulp product made by spray drying from one that is not pasteurized. In fact, the instant specification at [0005], [0070] and [0075] discloses that untreated cacao pulp and minimally processed cacao pulp that is pasteurized are both suitable to work in the claimed method.
Regarding the position taken in the Reply at pages 8-9 that one would not modify Berneart in view of Dupas-Langlet or Vieira to pasteurize the cacao pulp in the claimed method after spray drying, respectfully it is not clear if or how the claimed untreated cacao pulp excludes minimally processed cacao pulp, particularly as this is consistent with the disclosure in the instant specification at [0005], [0070] and [0075].
Regarding Applicants interview request, the Office is confused because Applicants made a presumptively through Reply. If the ball is in the Office’s court, so to speak, then it makes sense to allow the Office to hit the ball back to Applicants before the time is ripe for such an interview.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (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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