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 .
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 4-8 and 17-22 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 pre-AIA the applicant regards as the invention.
Claim 4 recites “the chocolate liquor is present in an amount of from about 0.5 to about 10 wt.% of the food product”. However, claim 4 depends from claim 1, which is directed to a food product which in turn comprises nougat. Claim 1 also recites that the nougat composition comprises (emphasis added) “chocolate liquor” and 3 other ingredients. Thus, the product of claim 1 can have any number of other ingredients in any proportion other than nougat and nougat can also have any number of ingredients in any proportion and still read on claim 1, and as such, it is not clear how one can determine that the “chocolate liquor” of claim 4 is “about 0.5 to about 10 wt.% of the food product”. The same issue exists with claims 5-8, 17-21 that all recites specific range of wt.%. For the purposes of this office action, the wt.% recites in claims 4-8 and 17-21 will not be considered.
Claim 22 recites “the food product is a brownie”. However, claim 22 depends from claim 1 which requires that “the food product is non-baked”, which contradicts claim 22 as brownie is a baked product. There are no details in the specification that point to a special definition of brownie that would qualify it as a non-baked product. For the purposes of this office action, the above limitation of “brownie” of claim 22 will not be considered.
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.
Claim(s) 1-26 are rejected under 35 U.S.C. 103 as being unpatentable over IDS cited NPL document to (DarkNougat-Turron de Chocolate, Hefe und mehr, 2015 https://www.hefe-und-mehr.de/en/2015/12/dunkler-nougat-turnde-chocolate/ , hereinafter D1 in view of WO 2016061227A1 to peters, hereinafter D2, Chocolate nougat by culinaria https:// leitesculinaria.com/31185/recipes-chcolate-nougat.html, hereinafter D3, “Snickers brownies” by Jen Sobjack dated November 18, 2015 on https://bakedbyanintrovert.com/snickers-brownies-recipe/ , hereinafter D4, Nougat lapped with peanut caramel, webfriend: https://www.163.com/dy/article/EDICRLEN0524PGN9. Html, pages 1-2, April 24, 2019), hereinafter D5 and as evidenced by Cooper (US 5387429 A), hereinafter Cooper.
Regarding claims 1 and 23-24, D1 teaches a food product comprising a nougat composition (which is a non-baked food product) disclosing a chocolate nougat comprising the following ingredients (see page 1):
200 g Almond
100 g hazelnut
150 g semi-sweet chocolate
400 g sugar
20 g water
150 g honey (summer)
100 g Invert Syrup (or Acacia honey)
80 g protein (from 2 L sized eggs)
1 pinch salt
D1 further teaches the steps (see page 1, last 2 lines and page 2)
Heating the oven to 180 ° C,
roasting almonds on hazelnuts for 20 minutes;
3) Melting the chocolate with a hot water bath;
4) Mix water with sugar, honey and syrup.
The sugar is allowed to melt at low temperature and then the syrup is heated at high temperature until the syrup reaches 150 ° C. Meanwhile, the egg white (albumin) was whipped to the soft peak and when the syrup reached 150 ° C, slowly poured syrup into the egg white and stirred for an additional 5 minutes until the mixture became light and thickened. The chocolate is then stirred in, the roasted nuts are folded and the mixture is poured onto the prepared baking paper, the action is fast, otherwise the mixture shortly hardens (see pages 1-2 of D1, which discloses nougat comprising chocolate and invert sugar (see ingredients listed above) . It is well known in the art that chocolate contains cocoa liquor as evidenced by Cooper (column 8, lines 55-68) , Typically, a chocolate is comprised of 20 to 55 weight percent of a fat component. To achieve a significant reduction in available caloric content, it will generally be desirable for at least 25 weight percent of the fat component to be a fatty-acid esterified propoxylated glycerin composition of this invention. The amount of the cocoa butter substitute may, if desired, constitute up to 100% of the total fat in the confectionary product. The balance of the fat component may be cocoa butter or a different cocoa butter substitute, equivalent or mimetic (e.g., illipe butter derivatives, sucrose polyester, caprenin, or the like), or some other natural or synthetic lipid. These lipids may be introduced either directly in pure form or as components of food ingredients such as chocolate liquor or cocoa powder containing cocoa butter or milk solids containing milk fats. (Cooper), thus chocolates having both cocoa liquor and cocoa powder in combination with cocoa butter was typical. Further, D2, which also teaches a method of making nougat and nougat type confections, discloses use of cocoa powder to flavor the nougat (page 12, para 51). Still further D3, which also discloses a nougat-type product, teach that the nougat may comprise not only chocolate but also cocoa powder (see page 2, under the heading “For the Nougat”).
D2 and D3 disclose a nougat-type product (Example 1, starts on page 18, para 51 and 79 of D2) that may comprise cocoa powder (see page 2, under the heading “For the Nougat” of D3), and further, a sugar composition was prepared using the following components: fine sucrose 664 g, glucose syrup 900 g, salt 6 g, where two grades of fine sugar (sucrose) are used (standard grade with mean particle size ranging from 20 to 30 microns and ultrafine grade with mean particle size ranging from 10 to 15 microns) to prepare two alternative sugar compositions. The components of the two sugar compositions were mixed in a mixer at a temperature maintained in the range of 40 °C to 45 ° C until a homogeneous suspension was produced. A protein formulation was prepared from the following ingredients: egg white 28 g, water 52 g, glucose 78 g, fine sucrose 62 g. The temperature of the protein preparation at this point is in the range of 15 ° C to 20 ° C.
The protein formulation is then mixed with the sugar composition. Conditioning over a period of time to produce the desired viscosity in the mixture, during which the mixture is heated to a temperature in excess of 55 ° C but less than 65 ° C so as not to denature the proteins present, after which the mixture is subjected to an aeration treatment.
More specifically, the mixture was added to a pressurized pin stirrer at a temperature of 55 ° C and beaten with a rotary stirrer turning at 710 rpm under an air pressure of 4.2 bar, i.e., aerating.
The resulting aerated mixture is heated at a temperature greater than 93 ° C but less than 100 ° C to denature the proteins and thereby stabilize the final frappe.
D2 also teaches of a flavoring mixture or slurry was prepared from the following ingredients: cocoa powder 34 g, milk powder 34 g, fat 108 g. Chocolate flavored confections are very popular among consumers of all ages. Since D1 teaches of a chocolate nougat product containing semi-sweet chocolate where it is well-known that any typical chocolate contains cocoa liquor, and since D2 teaches incorporating cocoa powder to flavor a nougat product (Para 51 and 79), therefore it follows that not only chocolate nougat was known but incorporation of cocoa powder and cocoa liquor as part of semi-sweet chocolate was also known in the art at the time of effective filing date of the invention. It would have been a matter of routine determination for one of ordinary skill in the art at the time of the effective filing date of the invention to modify D1 to include cocoa powder as an additional flavoring ingredient (see page 12, para 51 of D2). One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to choose to include chocolate as well as cocoa powder to achieve a bolder and more intense chocolate flavor in the nougat product.
Claims 2-8 further define specific kinds of cocoa powder and chocolate on the basis of the claims to which they are cited, and the amounts of the respective raw materials, the person skilled in the art can select specific kinds of cocoa powder and chocolate according to qualities such as flavor and color, and can also adjust the amounts of the ingredients used on the basis of the comparative documents D1 and D2. Also see the rejection of claims made under 35 USC 112 (second paragraph)
The claims 9-10 further define other components of a non-baked food product on the basis of the claims upon which they are cited, D4 and D5 teach Nougat lapped with peanut and caramel. Regarding conventionality of enrobing step or enrobed chocolate, applicant is referred to D3 where enrobing step is clearly taught and D5 citing Snickers® reference teaches the gritty crunchiness between the surface chocolate and nougat, which is a thick layer refined from fresh peanuts and caramel, this layer of peanuts fulfilling the required gritty crunchiness on taste buds. Finally, the nougat is layered with thick peanut and caramel, with chocolate coating. Thus, inclusion of caramel layer, preferably between nougat and coating. Based at least on the teaching of D2, D3 and D5, it would have been a matter of routine determination for one of ordinary skill in the art at the time of the effective filing date of the invention to modify D1 to include an intermediate caramel layer and a coating/ enrobing layer at least for the purpose of creating a combination of flavors and texture to create a desirable organoleptic experience. Also see the rejection of claims made under 35 USC 112 (second paragraph).
Claims 11-13 further define the raw material of nougat including water, one or more additional sweetener(s), one or more additional fat(s) and/or oil(s), a thickener, a humectant, an antioxidant, a colorant and/or a flavorant (claim 11).where the sweetener is selected from the group consisting of sucrose, corn syrup, lactose, dextrose, glycerol and combinations thereof (claim 12 ) and one or more additional fat(s) and/or oil(s) is selected from the group consisting of cocoa butter, milk fat, palm oil, hydrogenated palm kernel oil, hydrogenated cottonseed oil, hydrogenated rapeseed oil and combinations thereof (claim 13). Since D1 teaches honey, which is flavor, sweetener and humectant of claim 11, sucrose addresses claim 12. Regarding claim 13, where the composition of D1 also teaches semi -sweet chocolate, which typically comprises cocoa fat (as recited in claim 13) , the person skilled in the art can also selectively add other commonly used components based on flavor, mouthfeel, color and texture, and therefore, obvious in view of applied art.
Claim 14 further defines the selection of a coating layer on the basis of the claims to which it is cited, D2 to D5 also employ a chocolate layer as a coating, especially D3 teaches dark chocolate for coating. Thus, it would have been a matter of routine determination for one of ordinary skill in the art before the effective filing date of the invention to choose the type of chocolate for coating based at least on the desire to create a desired combination of flavors and appearance to provide the consumer with an enhanced organoleptic experience.
Regarding claims 15-17 further define nut kernels and amounts thereof on the basis of the claims to which they are cited, D1 teaches almonds, hazelnut kernels, D4 teaches use of peanuts to make nougat and D5 teaches including nougat with peanuts. Thus, combination of almonds and peanuts either in nougat or in combination with nougat was well known and popular at the time of effective filing date of the invention as taught by D1, D4 and D5. Therefore, it would have been a matter of routine determination for one of ordinary skill in the art before the effective filing date of the invention to choose the type of nuts either alone or in combination in the non-baked food product, at least based on cost, availability and desired flavor and one of ordinary skill in the art would have been motivated to adjust their amounts based on mouthfeel and flavor desired to create a combination of flavors for enhanced organoleptic experience. Also see the rejection of claims made under 35 USC 112 (second paragraph)
Claims 18-21 further define, the amounts of the nougat components of the nonbaked goods, based on the teaching of D4 and D5, where the layered brownie or Snickers® are taught respectively. In both D4 and D5, where the proportion of nougat varies based at least on the presence of peanuts and caramel. Thus, changing the relative proportion of the individual components of D4 in the non-baked food product, at least based on cost, availability and desired flavor or personal preference would have been a matter of routine determination for one of ordinary skill in the art at the time of the effective filing date of the invention at least in order to create a desirable mouthfeel and for optimal organoleptic experience. Also see the rejection of claims made under 35 USC 112 (second paragraph).
Regarding claim 21, D1 teaches substantially the claimed food product according to claim 1 but does not teach that nougat composition has “a moisture content of about 1 to about 30 wt.%”. D2, which also teaches a nougat product, teaches the amount of water added depends on the final product but that for a confectionary type product, it is typically 10-155 w/w (para 41), which overlaps with the recited range moisture. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify D1 so that nougat composition has “a moisture content of about 1 to about 30 wt.%”. One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to do so at least for the purpose of using a moisture content typical for a confectionary type product (para 41 of D2), such as nougat.
Further, regarding claim 22 of “non-baked” brownie food product, applicant is referred to D4 where the teaching of a non-baked product that is made by assembling the layers of Brownie, caramel, nougat, and chocolate coating is taught. Thus, the layered assembled products like brownies comprising a nougat layer were well known in the art (as taught by D4) and it would have been a matter of routine determination for one of ordinary skill in the art before the effective filing date of the invention to modify the nougat product of D1 as modified above to be incorporated in a food product like brownie product of D4, wherein said food product may contain individual components that may have been baked prior to creating the finished product or a food product that is not subjected to baking after adding nougat, i.e., -non-baked product.
Regarding claim 23, D1 teaches a process for making the non-baked food product according to claim 1 comprising:
(a) preparing a base syrup comprising invert sugar (page 2, especially line 1);
(b) mixing the base syrup with a protein source to form a protein syrup blend (page 2, especially lines 3-4));
(c) aerating the protein syrup blend (page 2, especially lines 3-4 which describes “whipping”, which causes aeration);
(d) mixing chocolate (page 2, especially line 4).
D1 does not specifically mention three different components of chocolate (i.e. cocoa liquor, cocoa powder and chocolate) and preparation of a slurry. D2, which also teaches a nougat product, teaches the use of a slurry to mix with an aerated protein and sugar mixture (para 79-80; also see para 7 and 10). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify D1 to include mixing in the form of slurry with the aerated protein with additional chocolate component such as cocoa powder as an additional flavoring ingredient (see page 12, para 51 of D2). One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to choose to include chocolate as well as cocoa powder in slurry form to achieve a bolder and more intense chocolate flavor in the nougat product ingredient (see page 12, para 51 of D2).
Regarding claim 24, D1 and D4 both teach incorporating nuts into nougat composition (see rejection above).
Regarding claim 25, the layer of layering the caramel layer on top of the nougat, applicant is referred to both D4 and D5 where the layering of nougat and caramel is adjacent and depending on the desired layering sequence either nougat or caramel was known to be placed above the other. Thus, based at least on the teaching of D5, changing the sequence of layers of D4 in the non-baked food product, would have been a matter of routine determination for one of ordinary skill in the art at the time of the effective filing date of the invention based on personal preference to create a desirable organoleptic experience.
Claim 26, depends from claim 23 and recites the enrobing step, which is already addressed above in claims 9-10.
Regarding claim 27, D1 teaches substantially the process of claim 23 wherein the protein source comprises egg while (see page 1, which provides ingredient list) but does not specifically teach that it is in powder form (note that egg white is egg albumin). D2the protein source “comprises egg albumen powder”. D2, which also teaches a nougat product, teaches not only that protein source can be egg albumen but also that it may be in powder form (see para 40 of D2 that describes “egg albumen powder”), It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify D1 so that egg albumen is in powder form. One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to do so at least for the purpose of using a dry ingredient that typically has longer storage life and offers ease of transportation.
Response to Arguments
Applicant's arguments filed 9/23/2025 (hereinafter applicant’s response) have been fully considered but they are not persuasive.
On pages 7-8 of applicant’s response, under the heading “Claim Interpretation”, applicant argues that the interpretation of “Non-baked” food product provided in the office action is “unduly narrow” and points out that specification defines “As used herein, the term “non-baked” means that the food product is not subject to baking”. Although this argument is persuasive, applicant has not amended claim 22 which still recites “the food product is a brownie”, which was cited as the reason for the interpretation taken by the examiner. Nevertheless, the term “non-baked” will be interpreted as defined in the specification (as explained by the applicant) but this will result in a 35 USC 112, 2nd paragraph rejection of claim 22 which now conflicts with the requirement of base claim 1 (from which claim 22 depends) that “the food product is non-baked” (see amended claim 1 of 9/23/2025).
On pages 8-9 of applicant’s response, applicant argues about 35 USC 103 rejection of claim 23 that examiner has “not cited concrete evidence in the record to support” modifying D1 so as to “include cocoa powder as an additional flavoring ingredient”. This argument is not persuasive. Cocoa powder is a common ingredient of chocolate and nougat products; for example, D2, which also teaches a method of making nougat and nougat type confections, discloses use of cocoa powder to flavor the nougat (see page 12, para 51 of D2).
On pages 9-10, applicant objects to modifying D1 by addition of cocoa powder based on the observation that “Examiner ignores the interplay of ingredients and how the addition of cocoa powder to D1 may impact various parameters such as crystallinity, texture,…..”. In response to applicant's argument that above argument, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Both D1 and D2 teach nougat type product, and teach common ingredients of such a non-baked product. Even if there was some change to “various parameters” cited by the applicant, none of the claims require a specific value of any of those parameters and as such, do not conflict with the claims. No specific arguments are presented for references D3-D5.
On page 10, applicant argues about wt.% recited in claims 4 and 8, and also claims 18-21, and for this, please refer to 35 USC 112, 2nd paragraph rejections above, which explains the issue with these claims and what is being assumed for the purposes of this office action.
On page 10, applicant argues about amended claim 21 which recites “a moisture content”, and this issues has been addressed in revised rejection of claim 21.
Regarding arguments for wt. % recited in claims 4 and 8 (see page 10 of applicant’s response), please refer to 35 USC 112, 2nd paragraph rejections above.
Regarding the limitation “layering the caramel”, it was referring to claim 23, which was a typographical error – it should have referred claim 25. However, claim 25 has been amended to delete “and layer the caramel layer” to fix the issue.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791