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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/13/2026 has been entered as compliant. Claims 1 and 6 have been amended and claims 12, 15, 18 and 20 have been cancelled in the current application. Claims 1-11, 13-14, 16-17 and 19 are pending and examined in the current application.
Information Disclosure Statement
Information disclosure statement of 1/13/226 has been considered.
Claim Objections
Claims are objected to because of the following informalities: “wt%” should be either written as “weight %” or “wt. %”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
Rejection of claims 1-20 made 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 for not providing composition of the traditional/ regular chocolate composition and similar comparison for viscosity in claim 18 without providing a standard value for fat content, viscosity and other properties of traditional/ regular chocolate composition has been with withdrawn based on applicant’s amendments to claims 1 and 6 clarifying the claimed subject matter and corresponding cancellation of claims 12, 15, 18 and 20.
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 1-11, 13-14, 16-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kaiser et al, (US 6391373 B2), hereinafter Kaiser in view of applicant cited NPL to T-A.L. DO “Impact of Particle size distribution on rheological and textural properties of chocolate models with reduced fat content ” Published in 2007, hereinafter, DO and NPL article to Hoffman et al “Powder technologies from landslides and concrete to avalanches and chocolate”-2012, hereinafter Hoffman - pages 1-40.
Regarding claims 1,5 and 19, Kaiser teaches a reduced fat chocolate (abstract), rheologically modified chocolate where the rheology of chocolate is improved by employing solid particle size distribution that includes fine and coarse particles. Regarding claims 1 and 5 Kaiser teaches that chocolates contain a fat phase that is continuous (Column 2, lines 31-36). Chocolate composition includes solid ingredients, fats and emulsifiers (see Column 2, lines 55-65 where Kaiser teaches that “when the cocoa butter (fat) content of chocolate is reduced to prepare reduced-fat chocolates, alternate means of achieving the proper rheological properties of the chocolate must be developed. Emulsifiers… have long been used to enhance the rheological properties of commercial chocolate”), and “at least two particulate materials” as recited in claim 1, include sugars, cocoa solids, milk solids, (see example 5, Column 27, line 35 to Column 28, line 15, and Column 7, lines 30-40 where Skim milk powder, sugar, skim milk and cocoa powder are taught). Regarding the limitation that, at least two particulate materials are selected from the group consisting of sugars, cocoa solids, milk solids, bulking agents, calcium carbonate, nutritional particles, and flavorings and/or mixtures of two or more thereof (see example 5, Column 27, 35 to Column 28, line 15 where Skim milk powder, sugar, skim milk and cocoa powder are taught).
Like the instantly claimed invention, Kaiser recognizes the importance of controlling the particle packing “by controlling the particle packing of the solids-containing ingredients by specifically selecting the mean particle size for each ingredient to obtain the desired particle size distribution. The mean particle size of each ingredient (fine to coarse) is selected based upon the rheology of each particle ingredient. ” (see Column 11, line 65 to column 12, line 5 and also see column 12, lines 4-20).
Kaiser also teaches that “distribution to the mean particle size of the particles of the fine particle mode distribution is greater than about 5:1 (coarse:fine). Preferably, the ratio of coarse:fine mean particle is in the range of about 5:1 to about 11:1, and more preferably, the ratio is about 6:1 to about 7:1” and specific example in Kaiser Example 5 teaches ratio of coarse: fine to be 25:3.5, or 7.1:1 (Column 14, lines 1-5 or Column 16, line 32-35 and 45-47 and Example 5 taught in column 27-28), i.e., Kaiser meets the limitation of and at least two particulate materials wherein the at least two particulate materials have different D50 particle sizes to each other in the reduced fat chocolate composition , said difference being a factor of 6-8 (Column 14, lines 1-5 or Column 16, line 32-35 and 45-47, also see Example 5 in columns 27-28).
Regarding the limitation of claim 1 “the reduced fat chocolate composition has a maximum packing fraction of greater than or equal to 0.6, wherein the total fat content of the reduced fat chocolate composition is less than the total fat content in an initial chocolate composition comprising a maximum packing fraction of less than 0.6 and wherein the reduced fat chocolate is up to 20% less than the total fat content of an initial chocolate composition …wherein the initial chocolate fat content is between 23 wt. % and about 50 wt. % composition comprises similar or improved rheological properties relative to the initial chocolate composition.”
Regarding the amendment to claim 1, Kaiser teaches a reduced fat chocolate (abstract), rheologically modified chocolate where the rheology of chocolate is improved by employing solid particle size distribution that includes fine and coarse particles
Kaiser also teaches that improved packaging of particles occurs when a well-defined concentration of particle sizes are used between the largest and smallest particles in a distribution, and how this in turn relates to viscosity (column 3, line 61 to Column 4, line 18; also see note 1 below)
Note 1: Applicant's disclosure teaches Relationship Between Maximum Packing Fraction and Viscosity, Para 74 of PGPub describes that maximum packing fraction is related to viscosity, and para 78 describes that it is desirable to have very close or dense packing of the particulate materials in the reduced fat chocolate composition. Further para 79 states that “ bimodal (i.e. having two arithmetic modes) or polydisperse (i.e. having more than two arithmetic modes) generally have a higher packing density than those which are monodisperse (i.e. having one arithmetic mode) because particles with variable size can more efficiently fill a given space.”
Further, at the time of effective filing date of the invention the impact of particle size distribution on the rheology of reduced fat chocolate was well-known in the art, as taught by NPL to DO. DO teaches that typical chocolate has 30- 40% by weight fat (Introduction para 2 of DO). Do abstract recognizes that reducing the in fat chocolates causes an increase in the molten chocolate viscosity , which in turn causes process difficulties and “loss of eating quality in the final product, reported to have poor in-mouth melting properties , remain hard and difficult to swallow. DO also teaches that “Literature shows that optimizing the particle size distribution (PSD), that is, having one with an increased packing fraction, can decrease the viscosity of highly concentrated suspensions”. DO abstract also states that “Optimizing PSD while reducing the fat content to a critical amount (22% wt.) can decrease the viscosity of the molten material and reduce the hardness of the crystallized chocolate models. Melting in the mouth…, is faster for the samples with an optimized PSD” (Abstract of DO, also see introduction and Figure 1, where the optimal blend of particles is taught and figure 15 where the optimal particle size distribution effect for reduced fat chocolate model is provided). Further, NPL article to Hofmann is directed to particle technology and on page 30-32 and page 35 teaches that packing fraction depends on particle shapes (regular shaped particles spherical or geometrical shapes pack better than irregular shapes), size distribution ( broader distribution allows for higher packing density and for bimodal and multimodal systems the packing density can increase further for suitable particle sizes). Hofmann discusses particle packing in bimodal (two particle sizes) and multimodal (particles of multiple sizes), the maximum packing fraction or minimum apparent volume is obtained for a bimodal or multimodal particle compositions is 0.87 which is achievable where large fraction is 73.5% and fine fraction is 26.5%. Thus, the maximum packing fraction of 0.6 or higher as claimed was known for particle dispersions before the effective filing date of the invention, as taught by Hofmann.
Thus, based on the above discussion, it follows that the in a chocolate with a at least two particulate materials the particle size distribution with improved packaging was known (Kaiser teaches that improved packaging of particles occurs when a well-defined concentration of particle sizes are used between the largest and smallest particles in a distribution, and how this in turn relates to viscosity (column 3, line 61 to Column 4, line 18), and DO teaches that “Optimizing PSD while reducing the fat content to a critical amount (22% wt.) can decrease the viscosity of the molten material and reduce the hardness of the crystallized chocolate models. Melting in the mouth…, is faster for the samples with an optimized PSD” (Abstract of DO, also see introduction and Figure 1, where the optimal blend of particles is taught and figure 15 where the optimal particle size distribution effect for reduced fat chocolate model is provided) i.e., maximum packing fraction is a known results effective variable related to viscosity and particle size distribution (see discussion DO and Kaiser above), further teaching how they are related (abstract and figures 1 and 15 of DO). Also see Hofmann pages 30-32 and 35 as addressed above where the packing fraction depends on particle shapes (regular shaped particles spherical or geometrical shapes pack better than irregular shapes), size distribution ( broader distribution allows for higher packing density and for bimodal and multimodal systems the packing density can increase further for suitable particle sizes). Hofmann discusses particle packing in bimodal (two particle sizes) and multimodal (particles of multiple sizes), the maximum packing fraction or minimum apparent volume is obtained for a bimodal or multimodal particle compositions is 0.87 which is achievable where large fraction is 73.5% and fine fraction is 26.5%, where achieving the maximum packing fraction in the claimed range based on the shapes and relative sizes and relative proportion of particles was known to be possible. As maximum packing fraction has been established as a results effective variable (as explained above), it would have been obvious to one of ordinary skill in art to modify Kaiser so that maximum packing fraction is a specific value/range, such as the claimed chocolate with reduced fat content has a fast melt in the mouth characteristics and rheology (Abstract of DO); because it has been held that where the general conditions of the claims are discloses in the prior art, it is not inventive to discover the optimum or workable range by routine experimentation. In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) See MPEP 2144.05. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Kaiser in view of NPL to Do and Hofmann so that “so that maximum packing fraction is greater than or equal to 0.6”. The ordinary artisan would have been motivated to modify Kaiser and optimizing particle size distribution at least for the purpose of Optimizing PSD while reducing the fat content to a critical amount (22% wt.) can decrease the viscosity of the molten material and reduce the hardness of the crystallized chocolate models. Melting in the mouth…, is faster for the samples with an optimized PSD” (Abstract of DO, also see introduction and Figure 1, where the optimal blend of particles is taught and also see pages 30-32 of Hofmann where maximum packing fraction of greater than or equal to 0.6 is known to be achieved). By optimizing the particulate composition to achieve the desired packing fraction, such that the reduced fat chocolate has rheology similar to the initial or regular chocolate, it follows that the low fat chocolate would also achieve the apparent viscosity and yield stress substantially similar to that of a regular/ initial chocolate as recited in claim 19.
Regarding claims 2-3, Kaiser teaches rheologically modified chocolates with specific properties of specific particle size distributions and plastic viscosity and solid phase volume and its relation to plastic viscosity, claim 3 to is directed to suspension properties of plastic viscosity and yield stress. Kaiser teaches that
chocolates contain a fat phase that is continuous (Column 2, lines 31-36);
chocolates, having about 25% to 36% by weight total fat, typically contain about 0.1% to about 0.5% by weight soy lecithin, significantly lower fat levels cannot be achieved by merely altering the amount of emulsifier incorporated into the chocolate” (Column 3, lines 9-21);
amount of cocoa butter/ fat or emulsifiers present in chocolate can enhance the rheological properties of the chocolate (column 2, lines 54-64);
viscosity, packing factors that affect the rheology of chocolate.
particle size of the non-fat solid ingredients is also known to influence the viscosity of chocolate (Column 3, lines 22-23);
improved packing occurs when a well-defined concentration of particle sizes are used between the largest and smallest particles in a distribution (Column 4, line 1-5 );
Suspension rheology is a function of several particle properties: particle size distribution, mean particle size, shape, roughness, surface chemistry, surface area, composition and crystallinity, among others(Column 9, lines 54-60); and
General bimodal or multimodal distributions packing particles lowers apparent densities if the sphericity decreases but broader distribution allows higher packing densities based on the particle sizes and is better for regular shapes (pages 30-32 and 35 Hofmann)
improving the packing efficiency of the solids-containing ingredient particles in this manner minimizes the amount of fat and/or emulsifier required to fluidize the suspension (Column 10, lines 13-36). Kaiser teaches of chocolate with improved rheology is produced as a result of improved packing efficiency. Kaiser teaches that Suspension rheology is a function of several particle properties: particle size distribution, mean particle size, shape, roughness, surface chemistry, surface area, composition and crystallinity, among others. Processing of the particle suspension is also important in development of suspension rheology. Control of particle sizes and concentration between the largest and smallest particles in a distribution, is beneficial for providing the confectionery with a minimum amount of void space between particles, that is, having high particle density and low interstitial porosity, i.e., improved packing efficiency (Column 9, line 54 to Column 10, line 19). Further, in column 10 Kaiser clearly teaches that improving the packing efficiency of the solids-containing ingredient particles in this manner minimizes the amount of fat and/or emulsifier required to fluidize the suspension (Column 10, lines 13-36), with good rheological properties. Thus, chocolate with low fat content as recited in claims 1 and 5 is taught by Kaiser.
The recitation of “plastic viscosity”, “solid phase volume” and “yield stress”, as recited in claims 2-3 are only a statement of the inherent properties of the ‘..insert product or process..’. The structure recited in Kaiser is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. Or where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 195 USPQ 430, 433 (CCPA 1977) and MPEP 2112.01.
It is further noted that applicant has described the product with parameters and equations which cannot be measured by the office for prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability purposes. Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Regarding claim 4, Kaiser teaches of molding, extrusion enrobing (abstract and Column 1, line 60 to Column 2, line, line 25), and also teaches of typical chocolates having 25 to 36% by weight of total fat (Column 3, lines 15-20), which includes values that falls in the claimed range for at least molding and extrusion. Thus the fat content as claimed is typical for chocolates as taught by Kaiser.
Regarding claims 6 and 11, Kaiser teaches a method of preparing a reduced fat chocolate composition the method comprising:
(a) providing an initial chocolate composition comprising a continuous fat phase (Column 2, lines 31-36), said fat phase comprising a fat and an emulsifier (Column 3 lines 15-20 and Column 8, lines 20-22, and 45-65); and at least two particulate materials distributed throughout said fat phase (see example 5 and Column 27, 35 to Column 28, line 15, and Column 7, lines 30-40 where Skim milk powder, sugar, skim milk and cocoa powder are taught);
(b) optionally measuring the maximum packing fraction and viscosity of the initial chocolate composition (Column 3, line 62 - Column 4, line 54 discloses particle packing, also see Column 10, lines 28-36, column 11, line 65 to Column 12, line 20; and
(c) preparing a reduced fat version of the initial chocolate composition by: (see rejection of claim 1):
i. determining optimized particle packing parameters for the at least two particulate materials of the initial chocolate composition, wherein the optimized particle packing parameters are optimized such that the reduced fat chocolate composition has a maximum packing fraction value that is greater than or equal to 0.6 and the maximum packing fraction value of the initial chocolate composition is ess than the maximum packing fraction of reduced fat chocolate composition and a viscosity that is substantially identical to the viscosity of the initial chocolate composition (see Kaiser Column 3, line 62 - Column 4, line 54 discloses particle packing, also see Column 10, lines 28-36, column 11, line 65 to Column 12, line 20 where particle packing and void minimizing criteria are optimized) and also see Do and Hofmann as applied to claim1 above where the maximum packing fraction part is discussed;
ii. selecting for the reduced fat chocolate composition at least two particulate materials that are identical to the at least two particulate materials of the initial chocolate composition but for having optimized the particle packing parameters wherein at least two particulate materials in the reduced fat chocolate composition has a different D50 particle sizes to each other, said difference being a factor of 6-8. Regarding limitation ii. see Column 9, line 54 to Column 10, line 48 of Kaiser where Suspension rheology is taught as a function of several particle properties: particle size distribution, mean particle size, shape, roughness, surface chemistry, surface area, composition and crystallinity, among others (column 9, lines 54-58) and Solid particles taught by Kaiser have ratio of the average particle size of the coarse particles to the average particle size of the fine particles is about 6:1 to about 7:1 and specific example in Kaiser Example 5 teaches ratio of coarse: fine to be 25:3.5, or 7.1:1 (Column 14, lines 1-5 or Column 16, line 32-35 and 45-47 and column 27-28), which meets the limitation of and at least two particulate materials distributed throughout said fat phase; wherein the at least two particulate materials have different D50 particle sizes to each other, said difference of which falls within the numerical range of “factor of 6-8”.);
Like the instantly claimed invention, Kaiser recognizes the importance of controlling the particle packing “by controlling the particle packing of the solids-containing ingredients by specifically selecting the mean particle size for each ingredient to obtain the desired particle size distribution. The mean particle size of each ingredient (fine to coarse) is selected based upon the rheology of each particle ingredient. ” (see Column 11, line 65 to column 12, line 5 and also see column 12, lines 4-20).
iii. combining the selected particulate materials with a fat phase and optionally an emulsifier that are identical to the fat phase and the emulsifier of the initial chocolate composition to provide a reduced fat version of the initial chocolate composition (Kaiser teaches emulsifier addition when fat content is lowered as compared to traditional chocolate composition as “when the cocoa butter (fat) content of chocolate is reduced to prepare reduced-fat chocolates, alternate means of achieving the proper rheological properties of the chocolate must be developed. Emulsifiers, e.g. lecithin, have long been used to enhance the rheological properties of commercial chocolates.” (Column 2, lines 56-62). Regarding the specific proportion of emulsifier Kaiser teaches “The addition of about 0.1-0.3% by weight soy lecithin typically reduces the viscosity of chocolate by more than 10 times its own weight of cocoa butter (Column 3, lines 9-11), in determining optimized particle packing parameters for the at least two particulate materials of the initial chocolate composition, wherein the optimized particle packing parameters are optimized such that the reduced fat chocolate composition has a chocolate rheology similar to the regular fat chocolate.
Regarding claim 7, Kaiser teaches a method of claim 6, wherein the particle packing parameters include particle size distribution, particle shape, and/or the relative amounts of the at least two particulate materials where Suspension rheology is taught as a function of several particle properties: particle size distribution, mean particle size, shape, roughness, surface chemistry, surface area, composition and crystallinity, among others (column 9, lines 54-58).
Since Kaiser ,like the invention, teaches that rheology of chocolate suspension is a function of particle properties, including, particle size, shape, surface area, composition and crystallinity etc., therefore, it follows that a reduction in fat content would have been a matter of routine determination for one of ordinary skill in the art at the time of effective filing date of the invention to choose the particle properties and optimize the packing fraction and achieve minimal void space between chocolate particles to make a chocolate product with improved rheology while reducing the fat component of said chocolate.
Further, attention is invited to NPL to DO and Hofmann. At the time of effective filing date of the invention the impact of particle size distribution on the rheology of reduced fat chocolate was well-known in the art, as taught by NPL to DO and Hofmann. DO teaches that typical chocolate has 30- 40% by weight fat (Introduction para 2 of DO). Do abstract recognizes that reducing the in fat chocolates causes an increase in the molten chocolate viscosity , which in turn causes process difficulties and “loss of eating quality in the final product, reported to have poor in-mouth melting properties , remain hard and difficult to swallow. DO also teaches that “Literature shows that optimizing the particle size distribution (PSD), that is, having one with an increased packing fraction, can decrease the viscosity of highly concentrated suspensions”. DO abstract also states that “Optimizing PSD while reducing the fat content to a critical amount (22% wt.) can decrease the viscosity of the molten material and reduce the hardness of the crystallized chocolate models. Melting in the mouth…, is faster for the samples with an optimized PSD” (Abstract of DO, also see introduction and Figure 1, where the optimal blend of particles is taught and figure 15 where the optimal particle size distribution effect for reduced fat chocolate model is provided). Also see Hofmann pages 30-32 and 35 as addressed above where the packing fraction depends on particle shapes (regular shaped particles spherical or geometrical shapes pack better than irregular shapes), size distribution ( broader distribution allows for higher packing density and for bimodal and multimodal systems the packing density can increase further for suitable particle sizes). Hofmann discusses particle packing in bimodal (two particle sizes) and multimodal (particles of multiple sizes), the maximum packing fraction or minimum apparent volume is obtained for a bimodal or multimodal particle compositions is 0.87 which is achievable where large fraction is 73.5% and fine fraction is 26.5%, where achieving the maximum packing fraction in the claimed range based on the shapes and relative sizes and relative proportion of particles was known to be possible. . As maximum packing fraction has been established as a results effective variable (as explained above), it would have been obvious to one of ordinary skill in art to modify Kaiser so that maximum packing fraction is a specific value/range, such as the claimed chocolate with reduced fat content has a fast melt in the mouth characteristics and rheology (Abstract of DO); because it has been held that where the general conditions of the claims are discloses in the prior art, it is not inventive to discover the optimum or workable range by routine experimentation. In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) See MPEP 2144.05. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Kaiser in view of NPL to Do and Hofmann so that “so that maximum packing fraction is greater than or equal to 0.6”. The ordinary artisan would have been motivated to modify Kaiser and optimizing particle size distribution at least for the purpose of Optimizing PSD while reducing the fat content to a critical amount (22% wt.) can decrease the viscosity of the molten material and reduce the hardness of the crystallized chocolate models. Melting in the mouth…, is faster for the samples with an optimized PSD” (Abstract of DO, also see introduction and Figure 1, where the optimal blend of particles is taught and also see pages 30=32 of Hofmann where maximum packing fraction of greater than or equal to 0.6 is known to be achieved).
Regarding claim 8-10, Kaiser as applied to claims 1 and 6, teaches a method of claim 6, wherein the optimized particle packing parameters are determined using mathematical modelling and are optimized such that the reduced fat chocolate composition has a maximum packing fraction that is at least 1% greater than the maximum packing fraction of the initial chocolate composition (Column 6 and 17 show mathematical formula for optimizing particle size distribution to achieve desired particle distribution for packing, also see rejection of claims 1 and 6). Claims 8-10 differs from Kaiser in that Kaiser does not teach the claimed equation for determination of particle packing. In the instant case, applicant has chosen to use an equation with parameters and/or calculations that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Regarding claims 13 and 16, Kaiser teaches a chocolate composition wherein the fat phase comprises cocoa butter, cocoa butter equivalents, cocoa butter alternatives, anhydrous milk fat, fractions thereof and/or mixtures of two or more thereof (see example 5, Column 27, 35 to Column 28, line 15 where cocoa butter and anhydrous milk fat are taught).
Regarding claims 14 and 17, Kaiser teaches a chocolate composition where wherein the emulsifier is selected from the group consisting of lecithin, soy lecithin, polyglycerol polyricinoleate (PGPR), ammonium phosphatide (AMP), sucrose polyerucate, sucrose polystearate, and phosphated mono-di-glycerides/diacetyl tartaric acid of mono glycerides ( Column 8, lines 50-60 and Example 5, Column 27, lines 35-55).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1/13/2026 have been considered but are moot because the new ground of rejection does not rely on combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s main argument directed to the prior art not teaching the maximum packing fraction of equal to or greater than 0.6, as recited in amended claims 1, and 6, which has been fully addressed by Kaiser in view of NPL to Do and Hofmann.
Also see the cited NPL to Feichtinger.
Claims 1-11, 13-14, 16-17 and 19 are rejected for reasons of record.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Feichtinger et al., "Effect of particle size on the rheological properties of chocolate", June 2020, Food Function, 2020, 11, 9547-9559- is being cited as pertinent art for the particle size distribution and its influence on apparent viscosity and yield stress and other rheological properties of chocolates,
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791