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 .
Status of the Claims
Receipt of Remarks/Amendments filed on 02/19/2026 is acknowledged. Claims 2, 5, and 14 are cancelled. Claim 1 is amended. Claims 1, 3-4, 6-13 and 15-18 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/23/2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
Modified Rejection As Necessitated by the Amendment Filed 02/19/2026
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
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.
Claims 1, 3-11, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kama Chocolate Bar (Of Record), hereinafter Kama, and in view of Arribas et al. (Of Record), hereinafter Arribas, and Choromansky (Of record).
Kama is considered Estonian national sweet (p. 1, About this Item). The ingredients are sugar, vegetable fat, Kama flour 22% (rye, wheat, barley, pea), whole milk powder, cocoa powder, coffee, soy lecithin, vanillin (p. 2, top paragraph). Kama teaches that the chocolate has been introduced to the market in the 1960s, and its production increased extensively during the world cocoa crisis at the end of the 1970s (p. 2, product description).
Regarding Claim 1, Kama does not teach the any water, which reads on the water content below 3 wt%. Further, because of the lack of water, the particulate would necessarily be dispersed in the fat phase. However, Kama does not teach wherein the pulse flour comprises inactivated anti-nutritional factors.
Regarding the pulse flour comprising inactivated anti-nutritional factors, Arribas is in the field of pulse flour and recognizes that pulses are a staple food in many countries and play an important role in human nutrition, but that they are also rich in phytates, phenols, lectins, protease inhibitors etc., which are antinutritional factors that impede the digestion and absorption of some nutritive compounds (p. 101, Introduction). Arribas teaches presence of antinutritional factors inter alia phytates, protease inhibitors, lectins and phenolic compounds in pea, and how extrusion inactivated their activities or reduced their content (Section 3.1; p. 104 entirety; Table 4). Arribas further noted that the development of extruded snacks based on cereal and legume blends provide a nourishing and balanced food, which are particularly important in vegetarian diets (p. 101, L. Col., 1st paragraph).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Arribas with that of Kama, and subject the pea flour to an extrusion process in order to inactivate the antinutritional factors which Arribas teaches to impede the digestion and absorption of some nutritive compounds. One would have been motivated to do so in light of the advantages of the extrusion process as disclosed by Arribas, and because Arribas has recognized extrusion to be a commonly used process in making readily available food that provides balanced diet.
Kama teaches 22% flour comprising rye, wheat, barley and pea, which is near the claimed 15%. Furthermore, because pea is only the pulse flour among the flours, it would necessarily be less than 22% flour. While the exact amount claimed is not disclosed by Kama, it is generally noted that differences in amounts do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount or concentration is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Indeed, the Specification noted amounts of pulse flour greater than 15% (Table 1; [0031]). Given that applicant did not point out the criticality of the mount of pulse flour of the invention, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum amount of pulse flour. NOTE: MPEP 2144.05.
Kama does not teach particle size reduction in Claim 1.
Choromansky relates the invention of chocolate products having increased protein content but with excellent organoleptic quality (Abstract). Choromansky teaches the importance of the rheology of the chocolate, wherein the solid particles should be reduced in size by refining by rollers to 30 µm [0045]. After mixing the pea protein and cocoa butter, the pasty product is refined by grinding so that they are no longer perceptible to the palate [0068]. Choromansky teaches that a size of less than 60 µm, more preferentially still less than 30 µm, contributes to the elimination of the gritty sensation [0068]. Choromansky teaches grinding the mixture of pea flour and cocoa butter by passing through a mill suitable for refining chocolate, preferentially a two- or three-roll apparatus ([0047]-[0051], [0066]-[0068]; Example 2 [0089]; Claim 5). This necessarily reduces the flour particle size. As such, Choromansky also renders obvious the size requirement in Claim 15.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Choromansky with Kama and subject the pulse flour to milling and grinding, to reduce the particle size in order to obtain a refined chocolate wherein the particles are not perceptible to the palate.
Additionally with regards to subjecting the flour to particle size reduction in Claims 1 and 7, and the milling and/or micronization in Claim 6, these are product-by-process claims, however, patentability is based on the product itself. If the product is the same as a product from the prior art, the claim is unpatentable. The MPEP indicates that the process of making is only relevant “if the process by which a product is made imparts ‘structural and functional differences' distinguishing the claimed product from the prior art”. See MPEP 2113: “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). The MPEP also indicates that “the structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979). “In determining validity of a product-by-process claim, the focus is on the product and not the process of making it.” Amgen Inc. v. F. Hoffman-La Roche Ltd., 580 F.3d 1340, 1369 (Fed.Cir.2009). The process of making is only relevant “if the process by which a product is made imparts ‘structural and functional differences' distinguishing the claimed product from the prior art” Greenliant Systems, Inc. v. XicorLLC, 692 F.3d 1261, 1268 (Fed. Cir. 2012). In the instant case, the burden is on the applicant to show that there exists a structural difference when the pulse flour is pre-cooked, and size reduction, milling and/or micronization compared to the pea powder of the prior art in order to have patentable weight.
Regarding Claims 3-4, Arribas demonstrated that heat processing, such as extrusion cooking, is effective at partially inactivating lectins (Table 4; p. 104, R. Col. 2nd paragraph).
Regarding Claims 8 and 16, Kama teaches pea flour (p. 2, top paragraph).
Regarding Claim 9, Arribas has taught the known method of extrusion inactivates, reduces or eliminates the anti-nutritional factors (Section 3.1; p. 104 entirety; Table 4). Arribas specifically teaches the chymotrypsin inhibitors content in the commercial extruded baked pea/rice samples were not detected, and noted that the extent of reduction of anti-nutritional factors varies with the type of seed, formulations, and extrusion parameters (p. 104, L. Col., 3rd paragraph). Arribas teaches that lectins have been shown to be completely eliminated in lentil, bean/corn, chickpea, pea, faba and kidney extruded flour (p. 103, R. Col., 2nd paragraph).
Regarding Claims 10 and 17, the instant disclosure does not provide the acceptable amount or range of total sugar in traditionally manufactured chocolates [0032]. Choromansky recites that its chocolate benefits people doing intensive sports or seeking to reduce the intake of sugar and fat, implying lower sugar content of its chocolate [0139]. Table in Example 4 of Choromansky, which contains does not include any sugar, which would necessarily mean that it has less sugar than traditionally manufactured chocolates, and comprises 45 wt% or less total sugars.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to reduce or eliminate the sugar in Kama chocolate based on the teaching of Choromansky of chocolate bars without sugar, to cater to people who requires less sugar in their diet.
Regarding Claim 11, Choromansky expressly teaches a chocolate composition comprising dark chocolate CHD-Qll-105 containing dry cocoa-derived solids, NUTRALYS® S85Plus-N pea protein isolate, cocoa mass, cocoa butter, and soy lecithin, and no dairy solids, which also read on “less than 5 wt% milk solids” feature in Claim 18 (Table in Example 4; also Example 5):
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It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to eliminate or substitute the whole milk powder of Kama with the cocoa-derived solids or cocoa mass of Choromansky if a vegan or lactose-free chocolate bar is desired.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Kama in view of Arribas and Choromansky, as applied to Claim 1 above, and in view of Emilien et al. (Nutrition 47 (2018) 6–12; Of record), hereinafter Emilien.
Emilien comprehends the increasing rise in obesity and the efforts to identify food and ingredient that promote satiety (Introduction, 1st paragraph).
Regarding Claims 12-13, Emilien teaches dietary fiber is associated with lower body weight and body mass index and the strategy of incorporating functional fibers such as soluble fiber dextrin (SFD) in commonly eaten foods (pp. 6-7). SFD completely dissolves in water without noticeably changing its appearance, taste, or viscosity, and is resistant to digestion in the small intestine (p. 7, L. Col.). Emilien reports that SFD reduced the plasma concentration of glucose-dependent insulintropic polypeptide (GIP) during the first 150 min post-consumption and reduces feelings of hunger and desire to eat while increasing feelings of fullness several hours (>3.5 h) after consumption (Fig. 1; p. 10, Discussion, 1st paragraph). As such, Emilien teaches the resistant dextrin, SFD, which reads on the limitations of Claims 12 and 13, as well as the motivation for its intake.
The resistant dextrin of Emilien does not interact with the ingredients of the prior art that modifies their function, and vice versa. As such, the artisan would enjoy a reasonable expectation of success. One would incorporate resistant dextrin in its chocolate composition in order to promote satiety for a few hours after consumption per the teaching of Emilien.
The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). See also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006).
Response to Remarks:
Applicant asserted that Kama does not disclose treating the pea/pulse fraction in any manner to inactivate anti-nutritional factors, does not describe selecting extrusion for that purpose, and does not provide any teaching regarding how a treated pulse flour would behave in a fat-continuous, very low-water chocolate matrix. Applicant appears to argue that Arribas’ snack-extrusion approach is not obvious to combine in Kama's chocolate bar product.
The Examiner considered the argument but found it unpersuasive. The rejection is one of obviousness, and not anticipation, therefore Kama does not to teach every single claimed feature, but rather relies on secondary arts for completeness. For example, Arribas teaches the antinutritional factors.
Regarding Applicant’s argument about the extrusion in Arribas, Arribas notes that the technique has multiple applications such as in breakfast cereals, snacks, protein processing, encapsulation, confectioneries, pet foods, etc. (Introduction, 2nd paragraph). A chocolate is a type of snack or confectionery. Arribas recognizes that pulse flour are rich in phytates, phenols, lectins, protease inhibitors etc., which are antinutritional factors that impede the digestion and absorption of some nutritive compounds, but that how extrusion inactivated their activities or reduced their content. As such, one of ordinary skill in the art using the pulse flour incorporated in a chocolate snack would try to inactivate the antinutritional factors using the extrusion process disclosed by Arribas.
Furthermore, it is noted that the features applicant recites (i.e., how a treated pulse flour would behave in a fat-continuous, very low-water chocolate matrix) is not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant alleges that Arribas is non-analogous in structure and processing context because Arribas does not teach chocolate, does not teach forming a fat-continuous chocolate composition with <3 wt% water, and does not teach or suggest that an Arribas-type extrudate-derived flour would be suitable for use as particulate solids dispersed in fat in chocolate-particularly given that chocolate rheology and mouthfeel are highly sensitive to the nature of dispersed solids. Applicant argued that the Office Action rationale does not identify any teaching in the art that this snack-extrusion approach should be imported into Kama's chocolate bar product, nor does it explain why one would expect the resulting treated material to function predictably in the claimed low-water, fat-continuous chocolate system.
Firstly, Arribas does not need to teach chocolate or forming a fat-continuous chocolate composition with <3 wt% water because Kama is the primary art, which is modified by Arribas. In response to applicant's argument that Arribas is nonanalogous art. Applicant’s argument is deemed unpersuasive, and attribute an overly narrow range of interest and creativity to the person of ordinary skill in the art. Cf KSR Int' l Co. v. Teleflex Inc., 550 U.S. 398, 420-21 (2007) (explaining that a person with ordinary skill in the art is "a person of ordinary creativity, not an automaton," and "in many cases ... will be able to fit the teachings of multiple patents together like pieces of a puzzle"). There is nothing in Arribas extrudate-derived flour that would be unsuitable for use as particulate solids dispersed in the fat of Kama. There would have been a reasonable expectation of success due to the high level of skill in the art and the teachings of the references in the absence of evidence to the contrary, such as unexpected results.
Whether two references are analogous art is determined by two separate tests: "(1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved." In re Bigio, 381F.3d 1320, 1325 (Fed. Cir. 2004). Kama teaches chocolate bar made with Kama flour, i.e. mix of rye, wheat, barley, pea. Arribas also teaches flour from cereal and pulse, i.e. rice, carob fruit and pea in snacks. As such, both Arribas and Kama recognize the use of cereal and legume flour in snacks.
Applicant asserts that Choromansky has a different composition objective, that Choromansky's key technical teachings are centered on controlling chocolate rheology with the enriched protein composition and the sensory perception of solids in a fat-continuous matrix, that Choromansky is directed to chocolate-making and particle size generally, but Choromansky's process and material selection are aimed at high protein loads with protein ingredients, not pulse flours that contain starch, fiber, and native flour constituents. Applicant argues that Choromansky underscores that rheology and texture control in fat-continuous chocolate is critical (See Choromansky, Par. [0045]), which highlights that substituting in a materially different particulate system of extrudate-derived pulse flour with altered composition including starch, fiber, etc. and also while maintaining the high protein levels taught by Choromansky is not a routine, predictable substitution.
This argument is also not persuasive. Kama is the primary art being modified by Choromansky, which is relied on to guide the amounts of sugar and dairy solids to start with, not the other way around.
As mentioned in the rejection supra, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Choromansky with Kama and subject the pulse flour to milling and grinding, to reduce the particle size in order to obtain a refined chocolate wherein the particles are not perceptible to the palate. While the rheology chemistry of chocolate is complex, the Office relies on the grinding and milling taught by Choromansky to obtain the desired size wherein the particles are not perceptible, in other words, there is reduced grittiness in chocolate.
Conclusion
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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