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 Objections
Claims 9-10 are objected to because of the following informalities:
Regarding claim 9, in line 2 delete “crystallisable" and amend to “crystallizable” for consistency with the subsequently recited terms.
Regarding claim 10, in line 2 before “temperer process parameters” insert “the” for consistency with the language of claim 9 and to place the claim in better form.
Appropriate correction is required.
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 9-13 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 9, the limitation “the method implemented, at least in part, by a computer including a processor and a memory” renders the claim indefinite since it is unclear which recited steps (e.g., flowing, sensing, predicting, comparing, controlling) are “implemented…by a computer including a processor and a memory”. One of ordinary skill understands that the recited steps can all be performed by an individual without the use of computing components, and steps such as “predicting…” and “comparing…” can be performed as mental processes, see MPEP 2106.04(a)(2)III.C. The recitation of “at least in part, by a computer…” is ambiguous as to which portion(s) of the claimed process are actually performed by said computer. Therefore, it is unclear if the elements recited by the claim integrate the abstract idea into a practical application, see MPEP 2106.04(d).
In line 8, the limitation “predicting a temper level and/or a viscosity of the tempered mass using the one or more temperer process parameters sensed during the sensing” renders the claim indefinite since it is unclear exactly how the “predicting” is performed (see issues raise above). It is unclear if “predicting” is performed by a mental process e.g., an individual calculating a temper level based on pre-determined mathematical relationships and/or formulas, or if the “predicting” is performed by the computer. In the case of the latter, the method by which the computer “predicts” the temper level is ambiguous e.g., pre-programmed look-up tables, a mathematical model calculating values based on pre-determined formulas/relationships, etc.
Further, it is unclear if the method actually requires “predicting a temper level and/or a viscosity of the tempered mass” since “sensing one or more temperer process parameters” is ambiguous as to exactly which “process parameters” are encompassed. For example, sensing the temperature of the mass leaving the reheat stage as the “process parameter” and using said parameter to determine temper level and/or viscosity would read on the limitation in question. In such a case, one of ordinary skill would not have considered the temper level and/or viscosity to be “predicted”, but instead simply “determined” or “calculated” since the temper level and/or viscosity relates to that of the mass which has been already treated by the tempering process.
Claims 10-13 are rejected in view of their dependence on a rejected base claim.
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.
Claims 9-13 are rejected under 35 U.S.C. 103 as being unpatentable over Sollich (US 5,188,853 A) in view of Groen (US 4,865,856), Descamps et al. (US 2009/0274803 A1), and Blasing et al. (EP 2225953 A1).
Citations to Blasing et al. are made with respect to the EPO translation provided with the Office Action dated 10/20/2025.
Regarding claim 9, Sollich teaches a method and device for tempering a crystallizable mass containing cocoa butter or similar fatty mass, including chocolate (figures 1-2; abstract), comprising flowing the mass successively through a temperer comprising an inlet 34 (column 7 lines 10-13), a cooling stage B to form crystals within the mass (column 7 lines 20-30 and 33-38), and a reheat stage C to melt unstable crystals formed therein (column 7 lines 39-40 and 43-46) and sensing one or more temperer process parameters e.g., temperature of the mass during transfer from the last cooling story 7 to the subsequent heating story 8 and temperature of the cooling medium at the input into the last cooling story 7, via probes 26 and 29 (column 6 lines 45-48 and 59-61), where the probes are connected to regulators 27 and 30 which control one or more set points of the temperer process parameters via modulating valves 28 and 31 e.g., cooling circulation and temperature of the cooling water, and by extension, temperature of the mass as well as crystallization in the device, the adjust based on experimental values (column 6 lines 54-58 and 67-68; column 7 lines 1-9, 33-38 and 50-60; column 8 lines 1-30).
Sollich does not teach the method is implemented, at least in part, by a computer including a processor and a memory, predicting a temper level and/or viscosity of the tempered mass using one or more temperer process parameters sensed, comparing the predicted temper level with a target temper level range and/or predicted viscosity with a target viscosity range, and controlling one or more set points of the temperer process parameters, based on a result of the comparing. For the sake of examination, the alternatives “viscosity” and “predicted viscosity…range” are chosen. In view of the rejection under 35 USC 112(b) above, the limitation “the method implemented, at least in part, by a computer including a processor and a memory” is given its broadest reasonable interpretation in light of the specification to mean any one or more of the recited method limitations is performed by a computer with a processor and a memory.
Groen teaches a method of tempering edible fatty compositions such as chocolate (abstract) comprising a tempering zone where viscosity is monitored and used to control cooling in accordance with consistency (column 2 lines 46-48). The consistency is measured by a viscometer which outputs a signal proportional to the viscosity and consistency, and the signal is used to provide process control (column 2 lines 14-15 and 22-30). Monitoring viscosity gives an indication of the amount of cooling required, which allows for greater control and production of chocolate having desirable characteristics (column 1 lines 57-63). The chocolate inlet temperature is used in a feed forward loop in order to control coolant temperature, thereby obtaining and maintaining a desired chocolate outlet temperature (column 5 lines 7-11).
Descamps et al. teaches a method for tempering chocolate and a system for predicting the optimal temperature of the chocolate (paragraph 1) comprising determining an initial temperature TCi for a chocolate mass before seeding with crystals, dispersing and melting seed crystals containing a dominating amount of β V crystals, and cooling the mixture to a pre-crystallization temperature Tpc (paragraphs 29-33). The optimal TCi is predicted experimentally or through modeling (paragraph 36), where a computer system is used for modeling temperature changes in the chocolate mass and identifying optimal TCi (paragraphs 53-55). The system comprises means to store a database (memory) and means to generate tables and/or graphs (processor) containing the information (paragraph 59). Additionally, it is noted that computer systems are well-known to include a processor and memory. The modeling is used to control process parameters such as TCi and time required to reach Tpc (paragraph 49), which facilitates a person without skill in choosing/determining the correct TCi (paragraph 38).
Blasing et al. teaches a method for controlling crystallization of a chocolate mass comprising entering a desired temperature control setpoint into a control device, determining the actual temperature control value of the tempered mass, comparing the value with the desired temperature control setpoint, calculating the difference to obtain a selection variable, providing one or more setpoint parameters to control the controllers for temperatures and quantities of mass and tempering media depending on the selection variable from a processor, applying the setpoint parameters, and repeating the steps until desired temperature control setpoint matches the determined temperature control actual value (paragraphs 12, 19 and 30).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Sollich to implement the method using a computer including a processor and a memory, predicting a viscosity using one or more sensed temperer process parameters, comparing the predicted viscosity with a target viscosity range, and controlling one or more set points of the temperer process parameters based on said comparing since the reference teaches a desire for achieving constant viscosity, as well as high and constant stable β crystal content (column 3 lines 43-45), since the prior art recognizes monitoring viscosity and controlling one or more parameters of the tempering process based on said viscosity for enhanced control, consistency, and desired characteristics, recognizes controlling one or more set points of the process based on comparisons between observed and desired parameters, and recognizes providing predictions for optimal values of the parameters via known computer systems, thereby allowing one without skill to use the appropriate control inputs and minimizing user error, ensuring optimal and consistent formation of desired stable crystals in the tempered product, and to automate manual activities e.g., measuring, predicting, comparing, and controlling of the process via computing systems, see MPEP 2144.04 III.
Regarding claim 10, Sollich teaches controlling the one or more set points of the temperer process parameters comprises controlling crystallization stage temperature (column 6 lines 49-58 and 67-68; column 7 lines 1-9, 27-31 and 50-61).
While the reference does not teach the controlling based on comparing predicted viscosity with a target viscosity range, the combination applied to claim 9 teaches the process. The same combination is applied to controlling the set point of the crystallization stage temperature and would have been obvious for the same reasons.
Regarding claim 11, the term “contrasting” is interpreted in view of the specification to mean determining whether there is a difference between the compared values and size of the difference (page 19 lines 32-33).
Sollich teaches probe 26 and 29 measure the temperature of the mass in the crystallizer and the cooling medium, and respective regulators 27 and 30 regulate valves 28 and 31 to obtain desired cooling medium circulation and crystallization stage temperature. The measured parameters would have necessarily been “contrasted” with desired parameters in order to provide appropriate control for obtaining the desired parameter values.
Further, Blasing et al. teaches “calculating the difference between the setpoint temperature and the actual temperature”, construed to be a type of “constrasting”.
Sollich does not teach contrasting with respect to predicted viscosity and a target viscosity range.
However, the combination applied to claim 9 teaches monitoring viscosity and controlling the tempering process to obtain desired characteristics such as final temperature, viscosity, and consistency. The same combination is applied to contrasting the predicted viscosity and a target viscosity range, and would have been obvious for the same reasons.
Regarding claim 12, Sollich teaches controlling the flow rate of the cooling medium in the crystallization stage (column 7 lines 51-55).
While the reference does not teach the controlling based on comparing predicted viscosity with a target viscosity range, the combination applied to claim 9 teaches the process. The same combination is applied to controlling the flow rate of the cooling medium in the crystallization stage and would have been obvious for the same reasons.
Regarding claim 13, the mass is chocolate as stated for claim 9.
Response to Arguments
Applicant’s arguments with respect to the rejection of claims 9-10 and 12-13 under 35 USC 102 have been considered, but the instant rejection relies on new grounds of rejection. Without acquiescing to Applicant’s arguments, the claims are now rejected under 35 USC 103. Blasing, while still relied upon, is no longer the primary reference. The combination of Sollich, Groen, and Decamps et al. teaches controlling a chocolate tempering process using prediction models and monitored viscosity, where Blasing teaches control based on comparison between measured and target values. Groen explicitly recites feed forward control.
Upon further consideration, claim 9 requires rejection under 35 USC 112(b) indefiniteness for the reasons stated above.
Conclusion
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/BRYAN KIM/Examiner, Art Unit 1792