DETAILED ACTION
Background and Claim Objections
The amendment dated July 10, 2026 (amendment) amending claims 1 and 3 and canceling claims 7, 9 and 14-15 has been entered. Claims 1-6, 8, 10-13 and 20-21 as filed with the amendment have been examined. In view of the amendment all outstanding objections have been withdrawn. In view of the cancelation of claims 7, 9 and 14-15, all outstanding rejections of those claims have been withdrawn.
Claims 21-22 presented in the amendment are objected to as improperly numbered under rule 75(f). 37 CFR 1.75(f). Previously presented claim 20 is presented as claim 21 and previously presented claim 21 is presented as claim 22. There is no claim 22. These two claims are examined, respectively as claims 20 and 21.
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.
Claim 3 is 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.
The “moisture content” in claim 3, at line 3 does not have a basis or denominator defining a total for determining a content. Is the moisture content a weight % (wt%), based on the total weight of a dried myceliated cacao product, based on the total weight of harvested cacao, based on the total weight of something in the myceliated cacao product including its fat, protein, sugar or phenolics, or is it based on the total weight of some other thing, such as the amount of filamentous fungus in the product?
The Office interprets the claim as reciting a moisture content that is a wt%, based on the total weight of the harvested cacao.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 5-6, 8 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of either (i) US EP 31114939 A1 to Huhn (Huhn) or (ii) US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by Huhn, all of record.
The Office interprets the claimed “conventionally fermenting a harvested cacao” to include any known or disclosed method of fermenting harvested cacao, including but not limited to natural fermentation of the harvested cacao to any degree.
Regarding instant claims 1 and 20, Miller at [0013] discloses a method for production of a myceliated cacao product comprising providing cacao nibs (“providing harvested cacao comprising beans, pulp and/or pods from the fruit pods of the species Theobroma cacao”), providing Cordyceps sinensis as a prepared fungal component (“fungal inoculum comprising a filamentous fungus”), inoculating the harvested cacao with the fungal inoculum and growing/cultivating (“culturing”) the harvested cacao and fungal inoculum to allow myceliation to produce a myceliated cacao product (claim 20). Further, Miller at [0008] discloses that its raw materials are live and never killed. And Miller at [0013] discloses cacao nibs or cacao beans which comprise harvested cacao from cacao fruit. The Office considers the claimed fermented harvested cacao that is not pasteurized prior to inoculation to include the raw cacao nibs (“cacao beans”) of Miller. Further, the Office considers the recited inoculating fermented harvested cacao that is not pasteurized prior to inoculation to include the inoculating of cacao nibs disclosed at [0013] of Miller.
In addition, Huhn at [0006] discloses that cacao fermentation naturally occurs almost immediately after the harvest and opening of cocoa pods to expose the cacao fruit (“pulp and pods”) and cocoa beans (“cacao beans”) to air. Huhn further discloses that the natural fermentation reduces the astringency of the bean and helps develop its chocolate flavor. the Office considers the claims method of “conventionally fermenting the harvested cacao” as including the method of obtaining and handling the live cacao nib raw material disclosed in Miller wherein fermentation appears unavoidable or at least not avoided. Accordingly, the Office considers the claimed culturing fermented harvested cacao to allow myceliation to produce a myceliated cacao product from a fermented harvested cacao material to include the culturing of cacao raw material as disclosed in Miller.
Further and regarding instant claims 2 and 8, Miller does not give an example of conventionally fermenting its harvested cacao to generate a fermented harvested cacao as in claim 1; further, Miller does not disclose an example of inoculating fermented harvested cacao beans pulp and/or pods with a fungal inoculum comprising a Hericium erinaceus as a filamentous fungus; Miller does not disclose fermenting harvested cacao in step b) that takes place for 3-7 days as in claim 2; and, Miller does not disclose a fungal inoculum comprising a filamentous fungus that is a pure culture of Hericium erinaceus as in claim 8. However, Miller at [0006] discloses culturing a medium on any of various filamentous fungus, including Hericium erinaceus and, further wherein the medium is selected from the group consisting of the group including cacao nibs. Further, at [0008] Miller discloses raw materials that comprise the medium as including grains and seeds as well as herbs and fruit. And Miller at [0010] discloses co-fermentation including juice and other raw materials with filamentous fungus, wherein Hericium erinaceus can grow on both higher at and lower fat seeds or grains, and has a wide tolerance for growth media comprising materials that have a lower fat content, like juice that is included with the cacao nibs as grains or seeds. Huhn at [0005] discloses that cacao pulp is about 80-90 wt% water, 10-15 wt% sugar and various polyphenols &tc. The Office considers the claimed cacao pulp to include a juice as in Miller; further, the Office considers the claimed cacao pods to include a fruit as in Miller.
Huhn at Fig. 1 discloses incubating and fermenting a mixture of cocoa beans (“cacao nibs”) and making chocolate products therefrom. Further, at [0027] Huhn discloses incubating for from 2 hours to 10 days, within which fermenting for 3-7 days lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Huhn would have desired to ferment its harvested cacao for the claimed period because Huhn discloses that the claimed fermenting time produces a fermented cacao that makes chocolate having an improved flavor.
De Vuyst at Abstract at [0009] discloses controlling natural fermentation of harvested cacao by adding lactic acid and/or acetic acid bacteria to impart desirable flavor and product content. At [0018], De Vuyst discloses controlling fermentation of cacao to provide chocolate with an improved flavor. De Vuyst at [0170] discloses incubating (“conventionally fermenting”) freshly harvested cacao for 6 days. Further, De Vuyst at [0052] discloses fermenting freshly harvested cacao beans or cacao nibs and cacao pulp together. Huhn discloses that the pulp of De Vuyst comprises a juice
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious for Miller in view of Huhn or De Vuyst to conventionally ferment its cacao nibs to generate a fermented harvested cacao. In the presence of cacao pulp as its harvested cacao as in Huh. Further, the ordinary skilled artisan in Miller as modified by Huhn or De Vuyst would have desired to ferment its harvested cacao for the claimed time period as in claim 2 because each of Huhn and De Vuyst discloses that the claimed fermenting period is desirable for making chocolate products having an improved flavor. All references disclose food products from live and raw cacao nibs. The ordinary skilled artisan in Miller would have desired to ferment its cacao nibs as in Huhn or De Vuyst to enhance the effect of the fermentation.
Further, the ordinary skilled artisan in Miller as modified by either of Huhn or De Vuyst would have found it obvious to inoculate and culture its harvested cacao as cacao nibs with Hericium erinaceus because Miller at [0006] and [0010] discloses that Hericium erinaceus will grow on seeds including cacao nibs, in particular when they are used in combination with juice as a lower fat ingredient including the cacao pulp of Huhn and De Vuyst.
Regarding instant claims 5-6 and 21, Miller at [0013] as modified by Huhn at Fig. 1 and [0027] and De Vuyst at [0027] discloses a method of producing a myceliated cacao product from fermented harvested cacao wherein conventionally fermenting naturally occurs as disclosed in Huhn at [0006] almost immediately after the harvest and reduces the astringency of the fermented harvested cacao product. Accordingly, absent a clear showing as to how flavor of chocolate made from the myceliated cacao product of Miller as modified by Huhn or De Vuyst differs from that of a myceliated cacao product on as claimed, the Office considers the chocolate produced from the myceliated fermented cacao product of Miller as modified by De Vuyst to have all of:
A reduced acidity, astringency, and/or bitterness tastes compared to a chocolate prepared from an unmyceliated cacao product as in claim 5;
an increased fruity flavor, increased nutty flavor, and/or increased sweet caramel/malt flavor, compared with a chocolate produced from an unmyceliated cacao product as in claim 6; and,
reduced bitter tastes and/or reduced astringent tastes compared to an unmyceliated cacao product as in claim 21. See MPEP 2112.01.I.
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of either (i) US EP 31114939 A1 to Huhn (Huhn) or (ii) US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by Huhn as applied to each of claims 1 and 2 above, and further in view of US 2015/0254706 A1 to Kelly et al. (Kelly), of record.
As applied to claims 1 and 2, Miller at [0006], [0008], [0010] and [0013] as modified by Huhn at Fig. 1, [0006] and [0027] or Miller as modified by De Vuyst at [0009], as evidenced by Huhn at [0006] discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus for from 3-7 days, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum comprising Hericium erinaceus to allow myceliation to produce a myceliated cacao product.
The Office interprets claim 3 as reciting a moisture content that is a wt%, based on the total weight of the harvested cacao.
Miller as modified by Huhn or De Vuyst does not disclose a method that further includes a drying step that takes place subsequent to the inoculation step, wherein the harvested material is dried to an 8 to 9 wt% moisture content, based on the total weight of a myceliated cacao product as claimed in claim 3; further, Miller as modified by Huhn or De Vuyst does not disclose a method further comprising roasting the myceliated cacao product as in claim 13.
However, Miller at [0010] discloses filamentous fungus grown on its agricultural substrate as a grain or seed as a grainspawn culture with a juice and, at [0008] discloses including teas in its culture. Further, Miller at [0010] discloses that its grainspawn culture improves the overall growth of its filamentous fungus in a co-fermentation.
Kelly at [0003] discloses a method of conventionally fermenting cacao beans by providing a prepared fungal component and fermenting for 4-7 days. Further, at [0093] Kelly discloses inoculating the fermented harvested cacao with a fungal inoculum using (at [0087]) a system for volumetrically consistent dispensing of inoculate and culturing, thereby (at [0094]) removing bitter flavor compounds from the myceliated cacao to give a chocolate product having reduced bitterness. Further, Kelly in Example 6 at [0142] discloses inoculating harvested cacao with 50 mL of submerged liquid tissue cultures of the fungal inoculum at [0124] and discloses inoculation media designed to maximize myceliation rates. Still further, in Example 6 at [0142] Kelly discloses drying the myceliated cacao product subsequent to the inoculation step to an 8 to 9% moisture content. And Kelly at [0125] discloses roasting its myceliated cacao product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kelly for Miller as modified by Huhn or De Vuyst to dry its myceliated cacao product subsequent to the inoculation step to an 8 to 9% moisture content and then to roast its myceliated cacao product. All references disclose culturing cacao and Miller and Kelly both disclose culturing a grain or seed material to form a myceliated cacao product. Still further, the ordinary skilled artisan in Miller would have desired to dry its myceliated cacao product as in Kelly to create a stable material, such as a cocoa powder, and to roast the product as a cacao product in the manner of Kelly to make a roast cocoa product.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of either (i) US EP 31114939 A1 to Huhn (Huhn) or (ii) US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by Huhn as applied to claim 1 above, and further in view of US 2018/0303044 A1 to Soni et al. (Soni), of record.
As applied to claim 1, Miller at [0006], [0008], [0010] and [0013] as modified by Huhn at Fig. 1, [0006] and [0027] or Miller as modified by De Vuyst at [0009], as evidenced by Huhn at [0006] and discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus, inoculating the fermented harvested cacao with the fungal inoculum, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum comprising Hericium erinaceus to allow myceliation to produce a myceliated cacao product.
Miller as modified by Huhn or De Vuyst does not disclose culturing that takes place for 1-2 days. However, Miller at [0013] discloses rapid and dense growth of its mycelium on cacao nibs.
Soni at Abstract discloses culturing (at [0054]) filamentous fungus on a high protein substrate in liquid media wherein, at [0048] culturing includes shearing and shaking while maintaining an optimal fungal growth temperature, optimizing lighting and optimizing feeding of nutrients to the culture. Further, Soni at [0048] discloses culturing for a period of from 1 to 90 days, which the claimed 1-2 days lies within; and, further, at [0061] Soni discloses that cultures can be grown for any time period to adjust flavor, aroma and taste and discloses growing optimally for 2-3 days yield a deflavored myceliated protein substrate product, which the claimed 1-2 days overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Soni would have found it obvious to culture its filamentous fungus for 1-2 days because Soni discloses that such a culture time provides a desirable myceliated product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Soni for Miller as modified by Huhn or De Vuyst to maximize the efficiency of its culturing step by shearing and shaking the liquid in culture and to culture for a period of 1-2 days. Both Miller and Soni disclose culturing protein containing substrates in a liquid culture of a fungal inoculum comprising a filamentous fungus. The ordinary skilled artisan in Miller would have desired to optimize any of the temperature, shearing, shaking and nutrient content of its filamentous fungus culture as in Soni to make for efficient myceliation of its cacao over a period of 1-2 days to reduce undesirable flavors in its harvested cacao in an efficient manner.
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. (Miller) in view of either (i) US EP 31114939 A1 to Huhn (Huhn) or (ii) US2008/0193595 A1 to De Vuyst et al. (De Vuyst), as evidenced by Huhn, as applied to claim 1 above, and further in view of US 5934012 to Holtz et al. (Holtz), of record, and US 2015/0254706 A1 to Kelly et al. (Kelly).
As applied to claim 1, Miller at [0006], [0008], [0010] and [0013] as modified by Huhn at Fig. 1, [0006] and [0027] or Miller as modified by De Vuyst at [0009], as evidenced by Huhn at [0006] and discloses providing harvested cacao, conventionally fermenting the harvested cacao, providing a fungal inoculum comprising a filamentous fungus, inoculating the fermented harvested cacao with the fungal inoculum, wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum comprising Hericium erinaceus to allow myceliation to produce a myceliated cacao product.
Miller as modified by Huhn or De Vuyst does not disclose inoculating the fermented harvested cacao with the fungal inoculum as a grainspawn culture as in claim 10; Miller as modified by Huhn or De Vuyst does not disclose inoculating wherein the grainspawn culture is applied in an aqueous slurry as in claim 11; and, Miller, De Vuyst and Huhn do not disclose culturing with an amount of fungal inoculum ranging from 103 to 104 colony forming units (CFU)/kg of its fermented harvested cacao as in claim 12. However, Miller at [0010] discloses a liquid medium comprising a fungal inoculum.
Holtz at col. 2, line 66 to col. 3, line 13 discloses submerged fermentation and preparing of mycelia to maximize culture efficiency, wherein (at col. 3, lines 29-37) the growth media comprise microcapsules containing lipid, protein and Group II metal salts and (in Example 1 at col. 6, lines 54-58) a grainspawn culture. Further, at col. 4, lines 4-21 Holtz discloses preparing the filamentous fungus to prepare the fungal inoculum comprises constantly agitating and periodically shearing the medium to keep colony size small and thereby produce more points of inoculation for a substrate.
At [0092] Kelly discloses agitation in mycelium culturing or fermented harvested cacao in culturing that reduces the size of fungal inoculum hyphal spheres to a minimal size, which increases the number of colony forming units in a culture. Further, in Example 6 at [0142] Kelly discloses adding 50 mL of inoculant to each bag containing 7.1 lbs of cacao beans.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kelly for Miller as modified by Huhn or De Vuyst to increase the number of colony forming units by apply its fungal inoculum comprising a filamentous fungus via an aqueous slurry. In addition, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Holtz for Miller as modified by Huhn or De Vuyst to prepare its fungal inoculum as a grainspawn to provide the claimed amount of 103 to 104 colony forming units/kg of fermented harvested cacao. Further, it would have been obvious in view of Kelly for Miller as modified by Huhn or De Vuyst to applied inoculum as an aqueous slurry. All of Holtz, Miller and Kelly disclose culturing filamentous fungus in a liquid culture. The ordinary skilled artisan working in Miller as modified by De Vuyst or Huhn would have desired to provide the claimed amount of 103 to 104 colony forming units/kg fermented harvested cacao to maximize the growth of the fungal inoculum in a grainspawn culture as in Holtz and to inoculate the fermented harvested cacao with the fungal inoculum as an aqueous slurry as in Kelly. The ordinary skilled artisan in Miller would have desired to insure that its fungal inoculum is efficiently distributed in the fermented harvested cacao in a slurry as in Kelly and have desired to add the amount of fungal inoculum as in Holtz to insure efficient myceliation over time.
Claims 1, 5-6, 8 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over US2019/0230957 A1 to Jaramillo et al. (Jaramillo).
The Office interprets the claimed “conventionally fermenting a harvested cacao” to include any known or disclosed method of fermenting harvested cacao, including but not limited to natural fermentation of the harvested cacao to any degree.
Jaramillo at Abstract discloses a myceliated product from cocoa by-products as slime or husk (“harvested cacao pulp and/or pods”), wherein at [0018] and [0019] the harvested cacao discloses a method for production of a comprising providing harvested cacao comprising pulp and/or pods from the fruit pods of the species Theobroma cacao and providing a fungal inoculum comprising a filamentous fungus including Hericium erinaceus. Further, at [0128] – [0133] and [0135]-[0136] discloses fermenting the harvested cacao to generate a fermented harvested cacao, inoculating the fermented harvested cacao with the fungal inoculum and growing/cultivating (“culturing”) the fermented harvested cacao with a fungal inoculum to allow myceliation to produce a myceliated cacao product (claim 20). The Office considers the claimed fermented harvested cacao that is not pasteurized prior to inoculation to include the harvested cacao pulp and pod of Jaramillo at [0130]. Further, the Office considers the recited inoculating fermented harvested cacao that is not pasteurized prior to inoculation to include the inoculating of cacao as inoculated at [0133] of Jaramillo.
Further and regarding instant claim 8, Jaramillo does not give an example of inoculating fermented harvested cacao beans pulp and/or pods with a fungal inoculum comprising a Hericium erinaceus as a filamentous fungus; and, Jaramillo does not disclose a fungal inoculum comprising a filamentous fungus that is a pure culture of Hericium erinaceus as in claim 8. However, Jaramillo discloses only harvested cacao as a substrate and discloses Hericium erinaceus as a desirable fungal inoculum comprising a filamentous fungus. The ordinary skilled artisan in Jaramillo would have found it obvious in Jaramillo to inoculate its fermented harvested cacao with a fungal inoculum comprising Hericium erinaceus, including a pure culture of Hericium erinaceus because Jaramillo discloses that a desirable product results from culturing a fermented harvested cacao using a Hericium erinaceus inoculum.
Regarding instant claims 5-6 and 21, Jaramillo discloses a method of producing a myceliated cacao product from fermented harvested cacao wherein conventionally fermenting occurs and the method includes inoculating and culturing the harvested cacao with Hericium erinaceus and appears to be substantially the same method as the claimed method. Accordingly, absent a clear showing as to how flavor of a cacao containing product made from the myceliated cacao product of Jaramillo differs from that of a myceliated cacao product on as claimed, the Office considers the chocolate produced from the myceliated fermented cacao product of Jaramillo at Abstract, [128]-[0133] and [0135]-[0136] to have all of:
A reduced acidity, astringency, and/or bitterness tastes compared to a chocolate prepared from an unmyceliated cacao product as in claim 5;
an increased fruity flavor, increased nutty flavor, and/or increased sweet caramel/malt flavor, compared with a chocolate produced from an unmyceliated cacao product as in claim 6; and,
reduced bitter tastes and/or reduced astringent tastes compared to an unmyceliated cacao product as in claim 21. See MPEP 2112.01.I.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over US2019/0230957 A1 to Jaramillo et al. (Jaramillo) as applied to each of claim 1 above, and further in view of US 2015/0254706 A1 to Kelly et al. (Kelly).
As applied to claim 1, Jaramillo at Abstract, [0018]-[0019], [0128] – [0133] and [0135]-[0136] discloses a method for production of a myceliated cacao product comprising providing harvested cacao comprising pulp and/or pods from the fruit pods of the species Theobroma cacao, conventionally fermenting the harvested cacao, and providing a fungal inoculum comprising a filamentous fungus including Hericium erinaceus, inoculating the harvested cacao with the inoculum wherein the fermented harvested cacao is not pasteurized prior to inoculation and culturing the harvested cacao with the fungal inoculum comprising Hericium erinaceus to allow myceliation to produce a myceliated cacao product.
Jaramillo does not disclose a method further comprising roasting the myceliated cacao product as in claim 13.
At [0093] Kelly discloses inoculating the fermented harvested cacao with a fungal inoculum using (at [0087]) a system for volumetrically consistent dispensing of inoculate and culturing, thereby (at [0094]) removing bitter flavor compounds from the myceliated cacao to give a chocolate product having reduced bitterness. Further, Kelly in Example 6 at [0142] discloses inoculating harvested cacao with 50 mL of submerged liquid tissue cultures of the fungal inoculum at [0124] and discloses inoculation media designed to maximize myceliation rates. Still further, in Example 6 at [0142] Kelly discloses drying the myceliated cacao product subsequent to the inoculation step to an 8 to 9% moisture content. And Kelly at [0125] discloses roasting its myceliated cacao product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kelly for Jaramillo to roast its myceliated cacao product. Both references disclose culturing cacao to form a myceliated cacao product. Still further, the ordinary skilled artisan in Jaramillo would have desired to roast its cacao product in the manner of Kelly to make a roast cocoa product.
Response to Arguments
In view of the amendment dated November 05, 2023, the following rejections have been withdrawn:
The rejections of claim 3 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the limitation "harvested material" and the recited % (percent) moisture content;
The rejections of claims 7 and 9-10 under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. in view of US 2008/0193595 A1 to De Vuyst et al. and as evidenced by EP 31114939 A1 to Huhn;
The rejection of claim 11 under 35 U.S.C. 103 as being unpatentable over US 2015/0305249 A1 to Miller et al. in view of US2008/0193595 A1 to De Vuyst et al. and US 2015/0254706 A1 to Kelly et al., as evidenced by EP 31114939 A1 to Huhn; and,
The rejections of claims 14-15 under 35 U.S.C. 103 as being unpatentable over 2015/0305249 A1 to Miller et al. in view of US2008/0193595 A1 to De Vuyst et al., US 2018/0303044 A1 to Soni et al., US 5934012 to Holtz et al. and US 2015/0254706 A1 to Kelly et al., as evidenced by EP 31114939 A1 to Huhn.
Regarding the positions taken in the remarks accompanying amendment dated July 10, 2026 (Reply), the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the positions taken in the Reply that no reason is given in Miller to allow fermenting to occur, respectfully the Miller disclosure at [0008] of a live raw material does in fact suggest that natural fermentation as in Huhn at [0006] takes place in Miller and that the harvested cacao in Miller is not pasteurized prior to inoculation.
Regarding the positions taken in the Reply one would not expect success in attempting to combine Miller with De Vuyst or Kelly and the position taken that Miller does not disclose inoculating a harvested cacao with Hericium erinaceus culture, respectfully Miller discloses at [0010] that Hericium erinaceus grows on cacao beans even if it is not optimally grown on them. In addition, Miller discloses that lower fat media like a juice does enable more optimal growth of Hericium erinaceus. In view of the disclosures in Huhn at [0005] and De Vuyst in general, the ordinary skilled artisan in Miller would consider cacao pulp as comprising a juice or suitable lower fat material for culturing with Hericium erinaceus.
Regarding the positions taken in the Reply and Soni and Holtz, the position taken merely repeats positions already addressed and is taken as a general allegation of patentability. See 37 CFR 1.111(b).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. JP3804944 B2 to Sekiya et al (Sekiya) in its Clarivate machine translation, copy provided, discloses at [0001] on page 1 culturing cocoa skin or cacao pods with Hericium erinaceus.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
