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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 of continuation request of 4/8/2026 has been entered. Claims 1, 9 and 23 have been amended, claims 2-3, 14 and 24 have been cancelled and claims 28-31 have been added in the claims listing of 3/26/2026. Claims 1, 4-13, 15-23 and 25-31 are examined.
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 and 28-31 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.
Claims 4-8, 16-17 depend from claim 1 and recite the relative proportion of an ingredient in the food product.
Claim 1 recites “A food product, comprising: a nougat composition , wherein the nougat composition comprises:
- from about 1 to about 15 wt. % chocolate liquor;
- cocoa powder;- chocolate; and
- invert sugar; and
wherein the food product is non-baked, and wherein the about 1 to about 15 wt. % chocolate liquor in the nougat is in addition to any chocolate liquor present in the chocolate.”
Thus, claim 1 is directed to a food product, which comprises nougat AND the rest of claim 1 is describing the ingredients of nougat.
Nougat composition according to claim 1 is provided above.
Since the food product as recited in claim 1 is not known and the proportion of nougat in said unknown food product is also not claimed, it makes the relative proportion of any of the ingredients of nougat composition of claim 1 in the unknown food product indeterminate. Clarification and/or correction is required.
For example, claim 1 recites that food product comprises nougat (in any amount from 0.001-100% by weight) and said nougat according to claim 1 includes “about 1 to about 15 wt. % chocolate liquor” and the same nougat of claim 1 can have other ingredients of chocolate, cocoa powder and invert sugar in any amount (see recitation of claim 1).
Based at least on the broad recitation of claim 1, and without any limitation addressing the following:
nature of the “food product” that comprises chocolate nougat of claim 1 (whether the food product is a confection, such as, chocolate coated nougat or a candy-bar, or a cake or cookie or brownie or frozen confection or some other product) or a variety of products, such as, some made with caramel (claims 9 and 20), some made with nuts (claims 15-17) or without nuts (claim 1); and
relative proportion of nougat in said “food product comprising nougat”;
the limitations recited in claims 4-8, 10 and 20, 15-17 and 28-31 are indeterminate. The determination of any/ all of ingredients in the “food product” would not be possible for one of ordinary skill in the art before the effective filing date of the invention as the only ingredients required comprise nougat and relative proportion of ingredients like chocolate liquor. The other nougat ingredients including cocoa powder, invert sugar and chocolate, which based on the relative proportion disclosed for nougat can be any amount in nougat. Thus, the product of claim 1 can have any number of other in “the food product” 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”. Thus, ingredients proportion as recited separately in claims 4-7 or in combination as recited in claim 8, is not possible to determine based on the recitation of independent claim 1. Clarification and/or correction is required.
For the purposes of this office action, range of components recited in claims 4-8, including chocolate liquor, cocoa powder, chocolate and invert sugar will be interpreted as approximate (due to the term “about”) and claimed range will be regarded as proportion of above mentioned ingredients in nougat.
Claims 1, 23, 28-31 are also indefinite for the recitation of amount of “wherein the about 1 to about 15 wt. % chocolate liquor in the nougat is in addition to any chocolate liquor present in the chocolate” (as introduced as an amendment to claims 1 and 23), and the recitation of claims 28-31 which narrow the chocolate liquor composition in nougat to about 3-12% by weight (claims 28 and 30) and about 5-about 10% by weight (claims 29 and 31).
The term “about” renders the claimed ranges approximate. Further, applicant is referred to original disclosure para 29 where an incomplete sentence recites the claimed range of chocolate liquor “Preferably, the nougat composition comprises from about 1 to about 15 wt. %, preferably from 3 to about 12 wt. %, preferably from about 5 to about 10 wt. % chocolate liquor, by total weight of the”. However, para 26 addresses that chocolate liquor ca have added ingredients “The chocolate liquor may include additional ingredients such as cocoa fat, alkali ingredients, neutralizing agents, spices, natural and artificial flavorings, ground whole nut meats, ground coffee, dried malted cereal extract, and other seasonings that do not either singly or in combination impart a flavor that imitates the flavor of chocolate, milk (including milk fat), butter, or salt.” (para 26 of original disclosure). As disclosed since the flavors, spices added cocoa fat etc. are included with cocoa liquor content of said nougat, it is unclear whether the additional flavors, spices, nutmeats etc., are included in the claimed range of chocolate liquor as recited in claims 1, 23, 28-31. Clarification and/or correction is required.
For the purposes of this office action, range of chocolate liquor is being interpreted as approximate (due to the term “about”). As the chocolate liquor can contain ingredients that include “cocoa fat, spices, natural and artificial flavorings, ground whole nut meats, ground coffee, dried malted cereal extract, and other seasonings” (Para 26) and still be designated as chocolate liquor, it follows that ingredients cited in para 26 of disclosure along with chocolate liquor will be regarded in determination of chocolate liquor content of claimed nougat composition.
Further, it is unclear whether the recitation of claim 6 which ranging from 1-15% by weight of the food product (claim 6 depends from claim 1) includes the chocolate in the coating layer of claim 19 (which depends from claim 9 and ultimately from claim 1), as the coating layer comprises chocolate and is 20-50% of the food product and falls outside the range of proportion of chocolate of said food product.
Thus, claims as recited include proportions that fall outside the range of the range for the “food product” for ingredients like chocolate.
Applicant is suggested to incorporate language to clarify the “food product” and also include like current claim 18 to clarify the proportion of nougat component in said “food product”.
For the purposes of this office action all the ingredients of nougat and coating and caramel layer will be considered regardless of the relative proportions in the reference and the weight % recites in claims 4-8 and 17-21 and 28-31 will not be considered.
Further, any chocolate flavored nougat containing “food product” will be considered relevant as prior art.
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 non- baked food product and “brownie” of claim 22 will be considered to include food products may contain individual components that may have been baked prior to assembling the finished product or a food product that is not subjected to baking after adding nougat, i.e., non-baked food product.
Claim 1, 4-9, 11-13, 15-17, 23, 26, are rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”.
Claims in general are directed to a food product, comprising a nougat composition (claim 1) and the method of making a food product comprising nougat (claim 23). Nougat as instantly claimed comprises chocolate liquor, cocoa powder and chocolate (claim 1 and claim 23). Claims 1 and 23 recite claim that chocolate liquor is present in nougat about 1 to about 15 wt. % chocolate liquor; an amount of cocoa powder and an amount of chocolate, along with an amount of invert sugar
wherein the food product is non-baked, and wherein the about 1 to about 15 wt. % chocolate liquor in the nougat is in addition to any chocolate liquor present in the chocolate. Also see the rejection under 35 USC 112 (second) above.
See the screen capture of the recipe for ingredients and steps.
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Regarding claim 1, “Chocolate Nougat 1” (see captured recipe above) teaches the nougat composition comprises:- from about 1 to about 15 wt. % chocolate liquor (where 40 grams of chocolate liquor in about 1830 gram composition, where the proportion of chocolate liquor falls in the claimed range of 1-15% by weight
Since the “chocolate liquor may include additional ingredients such as cocoa fat, alkali ingredients, neutralizing agents, spices, natural and artificial flavorings, ground whole nut meats.. etc.” (para 26 of applicant’s disclosure determines the scope of the term), the 40 gram chocolate liquor and 200 gram slivered almonds, the relative proportion of chocolate liquor with /without nuts falls in the claimed range of about 1- about 15% by weight oh nougat composition.
Regarding the proportion of chocolate liquor, applicant is also referred to rejection under 35 USC 112 (second paragraph).
“Chocolate Nougat 1”also teaches cocoa powder; chocolate; and
invert sugar (honey which is natural invert sugar); and wherein the food product is non-baked, and wherein the about 1% to about 15 wt. % chocolate liquor in the nougat is in addition to any chocolate liquor present in the chocolate.
Thus, “Chocolate Nougat 1”, teaches all the ingredients listed in claim 1 as claimed.
Regarding claims 4-8 applicant is referred to rejection under 35 USC 112 (second paragraph) where the amount of ingredients in the food product and its interpretation is addressed.
Claims 4-8 recite amounts of ingredients about 0.5 to about 10 wt.% chocolate liquor (claim 4 and claim 8);about 0.1to about 8 wt.% cocoa powder (claim 5 and claim 8);
about 1 to about 15 wt.% chocolate (claim 6 and claim 8); and about 0.1 to about 8 wt.% Invert sugar (claim 7 and claim 8).
Regarding claims 4-8 “Chocolate Nougat 1”, teaches the food product about 1830 gram total composition (see above in the screen capture)
with 40 gram chocolate liquor, which falls in range of about 0.5 to about 10 wt.% chocolate liquor, as recited in claims 4 and 8;
with 60 gram cocoa powder, which falls in range of about 0.1 to about 8 wt.% cocoa powder as recited in claims 5 and 8;
with 80 gram chocolate plus chocolate for coating, which falls in range of about 1 to about 15 wt.% chocolate, as recited in claims 6 and 8; and
with 40 gram honey/ invert sugar, which falls in range of about 0.1 to about 8 wt.% invert sugar, as recited in claims 7 and 8).
Thus the nougat based food product taught by “Chocolate Nougat 1” teaches the claimed ingredients in the claimed range.
Regarding claim 9, “Chocolate Nougat 1”, teaches the food product according to claim 1 further comprising a coating layer, wherein the coating layer comprises at least one member selected from the group consisting of white chocolate, dark chocolate, and milk chocolate (see picture and step 15 of “Chocolate Nougat 1”), where enrobing is taught.
Regarding claim 11, “Chocolate Nougat 1”, teaches the food product according to claim 1 wherein the nougat further comprises at least one member selected from the group consisting of water, a sweetener, a fat, an oil, a thickener, a humectant, an antioxidant, a colorant and a flavorant (see recipe above that teaches water and sweetener).
Regarding claim 12, “Chocolate Nougat 1”, teaches the food product according to claim 11 wherein said sweetener is selected from the group consisting of sucrose, corn syrup, lactose, dextrose, and glycerol (see recipe above that teaches corn syrup and sugar/sucrose).
Regarding claim 13, “Chocolate Nougat 1”, teaches the food product according to claim 1, wherein the nougat further comprises at least one member selected from the group consisting of cocoa butter, milk fat, palm oil, hydrogenated palm kernel oil, hydrogenated cottonseed oil, and hydrogenated rapeseed oil (cocoa butter and milk fat that are both components of Peters’s SuperfineTM milk chocolate used for enrobing).
Regarding claims 15-17, “Chocolate Nougat 1”, teaches the food product food product according to claim 1 further comprising at least one member selected from the group consisting of almonds and peanuts (see recipe above that teaches almonds-200 grams) in the nougat containing food product, which fall in the claimed range of from about 5 to about 20 wt.% of the food product. Regarding the limitation of claim 17 of peanuts, which depends from claim 15. Applicant is referred to recitation of claim 15, where it can be seen that inclusion of peanuts in the composition is optional.
Claims 23 and 26, recites a process, comprising:
(a) preparing a base syrup comprising invert sugar;
(b) mixing the base syrup with a protein source to form a protein syrup blend;
(c) aerating the protein syrup blend;
(d) preparing a slurry comprising from about 1 to about 15 wt. % chocolate liquor, cocoa powder and chocolate, wherein the about 1 to about 15 wt. % chocolate liquor in the slurry is in addition to any chocolate liquor present in the chocolate; and
(e) mixing the slurry with the aerated protein syrup blend to form a non-baked food product comprising a nougat composition; and claim 26 recites enrobing step
Regarding steps (a) and (b) of claim 23, “Chocolate Nougat 1”, teaches a process steps 3-6 where “Chocolate Nougat 1”, teaches
“3. Combine water, 42DE corn syrup and sugar in a pot and bring to boil.
4. Cook to 245° F and remove from heat.
5. While sugar mixture is cooking, combine egg whites and honey in stand mixer with whip attachment and whip on high speed until light and fluffy.
6. Stream hot sugar into whipping egg whites.”
Regarding step (c) of claim 23, “Chocolate Nougat 1”, teaches whipping or aerating (in steps 5. and 6.; and teaches “7.Continue whipping for approximately 5-7 minutes. Mixture will be thick and fluffy and begin to cool.”)
Regarding step (d) of claim 23, “Chocolate Nougat 1”, teaches “8. Remove whip attachment and fold in warm chocolate mixture.” (recipe above steps 8 and 9)
Regarding step (e) of claim 23, “Chocolate Nougat 1”, teaches steps 8 onwards.
Regarding step of claim 26, “Chocolate Nougat 1”, teaches step 15 where nougat is “Cut into pieces and enrobe in Peter’s® SuperfineTM milk chocolate.”
Claim(s) 10, 19-20 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, as applied to claims 1, 4-9, 11-13, 15-17, 23 and 26 above, in view of Rodrigues et al. (US 20140193545 A1), hereinafter Rodrigues as evidenced by Milky WayTM, hereinafter “MilkywayTM ” and The History of SnickersTM by Moss and Fog, hereinafter “SnickersTM ” (copies of both references provided).
Regarding claims 10 and 25 that recite “a caramel layer” (claim 10), and “The process according to claim 23 further comprising forming a caramel layer on top of the nougat” (claim 25), “Chocolate nougat 1” as applied above to claims 1 and 23 teaches non baked food product comprising chocolate nougat comprising chocolate liquor, cocoa powder and chocolate and the product having a chocolate coating as recited in claims 1 and 23. However, “Chocolate nougat 1” is silent regarding “a caramel layer”. Inclusion of caramel with nougat is a popular combination and is known in the art in popular confections was known in the art as taught by Rodrigues (Abstract, Figure 1B, Para 61, 63). Rodriguez also teaches chocolate coated confection with nougat and caramel filling where “nougat may then be deposited before, after, or with the caramel” (para 63 of Rodriguez).
Caramel and nougat combination is also popular in the art before the effective filing date of the invention, evidenced by “MilkywayTM ” and “SnickersTM ” both of which have history of including caramel since 1920s. Both these confectionery items include a caramel layer between the surface chocolate and nougat, where caramel enhances the flavor of the nougat present in the abovementioned “MilkywayTM ” and “SnickersTM ”. Thus, inclusion of caramel layer, preferably between nougat and coating. Based at least on the teaching of Rodrigues and evidenced by “MilkywayTM ” and “SnickersTM ”, 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 “Chocolate Nougat 1” and include an intermediate caramel 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).
Regarding claim 19, which depends from claim 9, “Chocolate Nougat 1” as applied above teaches the food product comprising a coating layer, wherein the coating layer comprises at least one member selected from the group consisting of white chocolate, dark chocolate, and milk chocolate (see picture and step 15 of “Chocolate Nougat 1”), where chocolate coating is taught. “Chocolate Nougat 1, is silent regarding the limitation of claim 19, i.e., “the coating layer is present in an amount of from about 20 to about 50 wt.% of the food product”. However coating of confections with chocolate where the relative proportion of chocolate coating falls in the claimed range was known in the art before the effective filing date of the invention as taught by Rodriguez where coating range of 20-50% by weight of the food product is taught (Para 50, Table on page 5 after Para 51 for coating range and para 52 for coating with chocolate), which is the same as applicant’s claimed range. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the “Chocolate Nougat 1” and specify the proportion by weight of chocolate coating in relation to the total weight of the non-baked food product (Based at least on the teaching of Rodriguez Para 50, page 5, Para 51, table and para 52, where the chocolate coating range falls in the claimed range of 20-50% by weight of nougat). One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to utilize chocolate coating in an amount as taught by Rodriguez (same as the claimed range), at least for the purpose of ensuring a coating that substantially surrounds the core confection and may take the form of a shell surrounding the interior of the confection / non-baked food product.
Regarding claim 20, which depends from claim 10, where caramel is taught. “Chocolate Nougat 1 in view of Rodriguez as applied above to claim 10, teaches caramel as filling of a non-baked food product, i.e., confection. Although, the confectionery/ non-baked food product composition Rodriguez provides general ranges where the filling is designated as “caramel” in the tabular representation, but, Rodriguez also teaches chocolate coated confection with more confectionary fillings other than caramel… include fudge, nougat and candy floss” (Para 61of Rodriguez). Further combination of nougat and caramel filling is also taught “nougat may then be deposited before, after, or with the caramel” (para 63 of Rodriguez).
Regarding the relative proportion of caramel of claim 20, i.e., “the caramel is present in an amount of from about 10 to about 20 wt.% of the food product” Rodriguez teaches a confection with caramel filling. Regarding the confectionery/ non-baked food product composition where caramel range is 20-50% by weight of the food product is taught which overlaps the claimed amount of “about 10% to about 20% by weight”.
Thus, inclusion of fillings including caramel overlapping the claimed range was known in the art before the effective filing date of the invention (Rodriguez Para 50, Page 5, para 51-52 with table). Further inclusion of confections like fudge, nougat and candy-floss in addition to caramel was also known to be part of the confection filling as taught by Rodriguez (para 61 and 63). Based on the teaching of Rodriguez, it is evident that Table on page 5 of Rodriguez provides general ranges where the proportion of filling is designated as “caramel” in the tabular representation. Thus, varying the relative proportion by weight of caramel in a confection/ non-baked food product to make a confection/ non-baked food product was known, based at least on the number of filling ingredients in addition to caramel (fudge, nougat , candy-floss). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to make a confection/ non-baked food product having a desired proportion of caramel.
One of ordinary skill in the art before the effective filing date of the invention would have been motivated to do so, based at least on the number of filling ingredients in addition to caramel (fudge, nougat , candy-floss) and also depending upon the types of fillings, i.e., dense and heavy based on weight per unit volume as fudge, or aerated and lighter than fudge per unit volume as nougat, or fluffy but low in weight per unit of volume as candy floss etc., and at least for the purpose of achieving a confection/ non-baked food product having high consumer demand.
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Applicant is also referred to rejection of claims under 35 USC 112 (second paragraph).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, as applied to claims 1, 4-9, 11-13, 15-17, 23 and 26 above, in view of in view of Kealey et al (US6312753 B1), hereinafter Kealey.
Regarding claim 18, which recites which depends from claim 1, “Chocolate Nougat 1” as applied above to claim 1 teaches the nougat composition. Regarding the proportion of chocolate nougat, “Chocolate Nougat 1”, teaches the food product according to claim 1 further comprising a coating layer, wherein the coating layer comprises at least one member selected from the group consisting of white chocolate, dark chocolate, and milk chocolate (see picture and step 15 of “Chocolate Nougat 1”), as recited in claim 9. However, “Chocolate Nougat 1”, does not specify the percent of nougat “from about 30 to about 50 wt.% of the food product”. However, inclusion of nougat in coated food products varying amounts including in the claimed range was known in the art before the effective filing date of the product, as taught by Kealy. Kealy is directed to edible products containing cocoa products. Food products taught by Kealey include examples of chocolates, i.e., food product where type of chocolate and amount of chocolate nougat was known to vary (Examples 30-31 in Columns 65-66). Kealy in Example 30 teaches Milk chocolate with Chocolate flavored Nougat where chocolate flavored nougat is 35.71% by weight of the milk chocolate, where the proportion of nougat falls in the claimed range of “from about 30 to about 50 wt.% of the food product” (Column 65 Example 30 of Kealy). Thus, inclusion of nougat filling in the claimed range was known in the art before the effective filing date of the invention (Kealey Column 65, Example 30).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to make a confection/ non-baked food product having a desired proportion of nougat. One of ordinary skill in the art before the effective filing date of the invention would have been motivated to adjust the amount of nougat in the filling of a non-baked food product of “Chocolate Nougat 1”, based at least on the number of other filling ingredients in addition to nougat , like nuts , caramel etc., and also for the purpose of achieving a confection/ non-baked food product having desired level of chewiness or texture in a non-baked food product for appealing consumers.
Claim(s) 21 is rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, as applied to claims 1, 4-9, 11-13, 15-17, 23 and 26 above, in view of Abdel-Malik et al., (WO 0028833A1), hereinafter Abdel-Malik.
Claim 21 recites moisture content of nougat to be 1-30% by weight. “Chocolate nougat 1” as applied above to claims 1 and 23 teaches non baked food product comprising chocolate nougat comprising chocolate liquor, cocoa powder and chocolate and the product having 100 grams water added wherein the total composition is 1830 grams. However, “Chocolate nougat 1” is silent regarding the moisture content of nougat, as some water as component of other ingredients like sugars and honey and some water evaporates upon heating to create sugar syrup (see screen capture above).
The moisture content of confectionery compositions and especially nougats was known to fall in the claimed range of 1-30% by weight as taught by Abdel-Malik [Page 8, lines 10-15] where it is taught that nougat contain moisture in the “range from about 4 to 5% for long chew nougats and up to 12 to 15% for short chew nougats”. Thus, nougats having moisture in the claimed range were known and utilized before the effective filing date of the invention. Although, it is not specified by “Chocolate Nougat 1” whether the nougat is short chew or long chew nougat, but since both types of nougats have moisture content that falls in the claimed range [see Abdel-Malik, page 8, lines 10-15], therefore, one of ordinary skill would have a reasonable expectation that the moisture content of the nougat made in “Chocolate Nougat 1” will be in the desirable range for the confection to be shelf stable.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, based on the teaching of Abdel-Malik to modify the nougat of “Chocolate Nougat 1” and specify the percent moisture in a desired range as taught by Abdel-Malik (page 8, lines 10-15, where the moisture of nougats falls in the claimed range of 1-30% by weight of nougat). 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 nougat type confectionary product.
Claim(s) 22 is rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, as applied to claims 1, 4-9, 11-13, 15-17, 23 and 26 above, in view of “Snickers brownies” by Jen Sobjack https://bakedbyanintrovert.com/snickers-brownies-recipe/ , dated November 18, 2015, hereinafter Sobjack (of prior record).
Claim 22 recites that the non-baked product is a brownie. “Chocolate Nougat 1” as applied above to claims 1 and 23 teaches non baked food product comprising chocolate nougat comprising chocolate liquor, cocoa powder and chocolate. However, “Chocolate Nougat 1” is silent regarding the non-baked food product being a brownie (see screen capture above).
Rregarding claim 22 of “non-baked” brownie food product, applicant is referred to Sobjack 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 Sobjack) before the effective filing date of the invention. 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 “Chocolate Nougat 1” as modified above to be incorporated in a food product like brownie product of Sobjack, wherein said food product may contain individual components that may have been baked prior to assembling the finished product or a food product that is not subjected to baking after adding nougat, i.e., non-baked food product. The ordinary artisan would have been motivated to modify “Chocolate Nougat 1” and create a layered brownie dessert as taught by Sobjack by incorporating the nougat product with a premade dessert like brownie, at least for the purpose of creating a novel chocolatey combination and expanding the list of foods that can include chocolate nougat.
Claim(s) 27 is rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, in view of WO 2016061227A1 to Peters, hereinafter Peters and Fischer (US 1996800), hereinafter Fischer.
Regarding claim 27, “Chocolate Nougat 1” teaches substantially the process of claim 23 wherein the protein source comprises fresh egg white (see recipe above, which provides ingredient list) but does not specifically teach that it is in powder form (note that egg white is egg albumin). Peters teaches the protein source “comprises egg albumen powder”. Peters is pertinent as the reference also teaches a nougat product, wherein the protein source can be egg albumen and that egg albumin may be in powder form (see para 15, 39 and 40 of Peters that describes “egg powder” and “egg albumen powder”). Thus, use of fresh and/ or powdered egg whites in making aerated confections like nougat is well-known in the art before the effective filing date of the invention. Further, it is also known that dried products like egg whites/ albumin not only extends the storage life of albumin, but it also aids in commercial shipping of such a product and utilizing egg white powder was customary for bakers and confectioners (See Fischer, Column 1, lines 26-31). It would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to modify “Chocolate Nougat 1”, and utilize egg albumen in dry or powder form. One of ordinary skill in the art at the time of the effective filing date of the invention would be motivated to include dry or powder egg albumin at least for the purpose of using a dry ingredient that typically has longer storage life and offers ease of storage and transportation as is taught by Fischer.
Claims 28-31 are rejected under 35 U.S.C. 103 as being unpatentable over Cherry Almond Chocolate Nougat by Peter’s Chocolate, hereinafter, “Chocolate Nougat 1”, as applied to claims 1, 4-9, 11-13, 15-17, 23 and 26 above, in view of in view of Kealey et al (US6312753 B1), hereinafter Kealey and Erhman et al (EP0390408A2), hereinafter Ehrman.
Regarding claims 28-31 are directed to varying the relative amount of “chocolate liquor” in the chocolate nougat. Claims 28 and 30 recite that the Nougat composition “comprises from about 3 to about 12 wt.% chocolate liquor” and claims 29 and 31further limit the Nougat composition “comprises from about 5 to about 10 wt.% chocolate liquor” in the chocolate nougat.
Claims 28-29 depend from product claim 1 and claims 30-31 depend from process claim 23. Since both claims 1 and 23 are rejected over “Chocolate Nougat 1”, hence the chocolate liquor variation limitations of claims 28 -29 as well as claims 30- 31 will be addressed together.
“Chocolate Nougat 1” as applied above to claims 1 and 23 teaches the nougat composition. Regarding the proportion of chocolate liquor, “Chocolate Nougat 1” (see captured recipe above) teaches 40 grams of chocolate liquor in about 1830 gram composition, where the proportion of chocolate liquor is about 2.18% by weight of the total nougat, which is less than the claimed ranges.
However, applicant’s disclosure describes chocolate liquor as “chocolate liquor may include additional ingredients such as cocoa fat, alkali ingredients, neutralizing agents, spices, natural and artificial flavorings, ground whole nut meats.. etc.” (para 26 of applicant’s disclosure determines the scope of the term), the 40 gram chocolate liquor and 200 gram slivered almonds, the relative proportion of chocolate liquor with /without nuts falls in the claimed range of about 13% by weight oh nougat composition.
Thus, in light of applicant’s disclosure and depending upon whether chocolate liquor is in its pure form or in combination with other ingredients the teaching of “Chocolate Nougat 1” where the chocolate liquor component ranges from 2.18% by weight to about 13% by weight of the chocolate nougat, which overlaps the claimed range. Further,
Further, inclusion of chocolate components including chocolate liquor in varying amounts based on the type of chocolate product was well known in the art before the effective filing date of the invention, e.g., it is well known that dark chocolate contains a higher proportion of chocolate liquor as compared to milk chocolate.
Prior art to Kealy teaches of chocolate products and specifically teaches chocolate nougat made with milk chocolate in Example 30 and chocolate nougat made with milk chocolate in Example 31 where the dark chocolate based nougat of Example 31 is made with 75 grams additional dark chocolate as compared to the milk chocolate based nougat of Example 30 (Column 65 and 66). Since dark chocolate was known to contain a greater proportion of chocolate liquor as compared to milk chocolate, therefore, Examples 31 and 30 show that chocolate liquor component of chocolate nougat was known to be varied before the effective filing date of the invention. Prior art to Erhman further clarifies that the amount of chocolate components like chocolate liquor and cocoa powder or blends thereof are important sources of chocolate flavor as well as chocolate fat and are typically included from about 5% to 25% of the composition (Page 5, lines 1-3). Erhman further teaches that “The total fat present in these chocolate-flavored formulations can be adjusted to provide the desired viscosity. For molding or depositing applications, the amount of total fat is preferably lower. For enrobing applications, the amount of total fat is preferably higher. The ratios of sugar, cocoa powder, chocolate liquor, and milk solids can vary depending upon the flavor desired.” (Page 10, lines 12-15).
Based at least on the combined teaching of “Chocolate Nougat 1”, Kealey and Erhman, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to increase or decrease the amount of chcocolate liquor in a confection/ non-baked food product having a desired proportion , such as nougat. Increasing or decreasing a known flavor imparting component of chocolate to either intensify the chocolate flavor or to reduce the chocolate flavor based at least on flavor and color of chocolate products in light of teaching of page 10 Ehrman, is routine and does no lend patentable distinction to the non-baked food product as claimed.
One of ordinary skill in the art before the effective filing date of the invention would have been motivated to modify “Chocolate Nougat 1” and adjust the amount of chocolate liquor in a chocolate product to range from 5-10 weight % (as taught by Ehrman, page 5, lines 1-3), based at least on the intensity of chocolate flavor desired in nougat product and also for the purpose of achieving a nougat confection/ non-baked food product having organoleptic characteristics that are desired by consumers.
applicant is also referred to rejection under 35 USC 112 (second paragraph).
Response to Arguments
Applicant's arguments filed 3/26 and 4/8/2026 (hereinafter applicant’s response) have been fully considered but applicant’s arguments with respect to claim(s) 1, 13 and 23 are moot because the new ground of rejection does not rely on any combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Further, applicant's arguments filed 3/26/26 and 4/8/2026 (hereinafter applicant’s response) regarding 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, Chocolate nougat by culinaria https:// leitesculinaria.com/31185/recipes-chcolate-nougat.html, , Nougat lapped with peanut caramel, webfriend: https://www.163.com/dy/article/EDICRLEN0524PGN9. Html, pages 1-2, April 24, 2019), and Cooper (US 5387429 A), hereinafter Cooper are moot as the references are no longer relied upon to address the claims as presents with RCE of 4/8/2026.
Claims 1, 4-13, 15-23 and 25-31 are rejected.
Conclusion
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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