DETAILED ACTION
Background
The amendment dated June 09, 2026 (amendment) amending claims 1, 2, 4-7, 13-16 and 18-20 has been entered. Claims 1-7 and 9-21 as filed with the amendment have been examined. Claim 8 has been canceled.
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 1, 7, 13 and 18 objected to because of the following informalities:
In claim 1, at line 9 before “from 15 to 35” insert --of --;
In claim 7, at line 3 before “from 20 to 24” insert --of --;
In claim 13, at line 9 before “from 15 to 35” insert --of --; and,
In claim 1, at line 11 before “from 15 to 35” insert --of --.
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 1-7 and 19 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 instant claims 1, 13 and 18, each of claim 1, at lines 8-9, claim 13 at lines 7-9 and claim 18 at lines 9-11 recites a “low DE glucose syrup” having a DE of from 15 to 35. The recited low DE glucose syrup is indefinite as to its scope because, as defined in the art of US20167/0135368 A1 to Brendel et al. (Brendel), of record, at [0055] a partially hydrolysed starch as a glucose syrup has a DE of greater than 20; Otherwise, it is a maltodextrin. Does the claim intend to recite only a mixture of maltodextrin and low DE glucose syrup? Or does it recite partially hydrolysed starches having variable DE values?
Claims 2-7, 9-12, 14-17 and 19-21 are rejected as depending from a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 6 recites a partially hydrolysed starch as maltodextrin, having a DE of 10 to 20 whereas claim 1 recites a partially hydrolysed starch having a DE of 15 to 35. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-7 and 9-21 are rejected under 35 U.S.C. 103 as unpatentable over US 2009/0017184 A1, to De Brouwer et al. (De Brouwer), of record in view of WO2017/167966 A1, to Abu-Hardan et al. (Abu-Hardan) and CN111449160 A to Chen et al (Chen), of record.
All references to Chen refer to the Clarivate machine translation of its FIT publication, a copy of which is provided with this Office action.
Regarding instant claims 1, 3, 9 and 11-14, De Brouwer at Abstract discloses a chocolate (a chocolate as a “confectionary composition” of claim 1 and a food product of claim 12) having a sucrose content reduced by at least 30 wt% and containing a dextrin (“partially hydrolysed starch” - claims 1 and 13) and inulin (claims 3 and 14) as “dietary fibre” (claims 1 and 13). Further, at [0040] and the accompanying Table De Brouwer discloses a dark chocolate containing no animal products or milk solids (“vegan chocolate” - claim 13) comprising 29.2 wt% of sucrose (“sugar” in claims 1 and 13), and (8.8 wt% + 5.8 wt% or) 14.6 wt% in total of a bulking agent (claim 9). Further, as disclosed at [0040] of De Brouwer, the vegan chocolate composition contains no high-intensity sweeteners and contains no milk solids (claim 11) and is free of milk solids (claim 13). The chocolate and the vegan chocolate disclosed, respectively at [0037] and [0040] of De Brouwer comprises 8.8 wt% of dietary fibre and 5.8 wt% of corn dextrin.
Further, and regarding instant claims 4-7, 10 and 15-17, De Brouwer does not disclose a partially hydrolysed starch having a dextrose equivalence (DE) of from 15 to 35 as in claims 1 and 13, and does not disclose a partially hydrolysed starch having a DE of from 15 to 30 as in claim 4; further, De Brouwer does not disclose the claimed partially hydrolysed starch to dietary fiber a weight ratio of 70:30 to 30:70 as in claims 1 and 13; still further, De Brouwer does not disclose the partially hydrolysed starch selected from the group consisting of maltodextrin, low DE glucose syrup and mixtures thereof as in claims 1 and 13; De Brouwer does not disclose a partially hydrolysed starch comprising a mixture of maltodextrin and low DE glucose syrup as in claims 5 and 15; and, De Brouwer does not disclose as a partially hydrolysed starch the maltodextrin having a DE of from 10 to 20, and wherein the maltodextrin does not encompass resistant maltodextrin as in claim 6. In addition, De Brouwer does not disclose or disclose the Low DE glucose syrup having a DE of from 20 to 24 as in claims 7 and 16; and, De Brouwer does not disclose a confectionary composition comprising from 4 to 20 wt% of a partially hydrolysed starch relative to the total weight of the composition. However, the chocolate and vegan chocolate disclosed, respectively at [0037] and [0040] of De Brouwer comprises 8.8 wt% of dietary fibre and 5.8 wt% of corn dextrin or 14.6 wt% of dietary fibre as in claims 10 and 17.
Abu-Hardan at Abstract discloses a confectionary composition comprising a micronized bran as a sugar replacer in fat-based confectionary compositions. Abu-Harden discloses at page 40, lines 23-41 a chocolate composition which at page 31, lines 1-13 comprises from 0.1 to 99.9 wt% of a carrier medium and from 0.1 to 35 wt% of the micronized bran as “dietary fibre” in the amount of (at page 31, lines 38-41) from 0.1 to 50 parts of the amount of sugar in the confectionary composition. Further, Abu-Hardan at page 39, lines 21-26 discloses a chocolate composition comprising a continuous hydrophobic material as fat and a dispersed phase of solid particles including the micronized plant fibre, including (at page 40, line 47) dark chocolate which can be (at page 41, lines 30-37) products, coatings or fillings. Still further, at page 45, lines 12-19 Abu-Hardan discloses ingredients including glucose syrup as a dispersed solid particles in combination with sugar; and, further at page 46, lines 9-29, Abu-Hardan discloses the solid particles as hydrolyzed corn, wheat or potato starch or dextrins including glucose syrup with a DE above 20, which the claimed DE of 15-35 in claims 1 and 13 overlaps, the claimed DE of 15-30 in claim 4 overlaps, and the claimed DE of 20 to 24 in claim 7 overlaps, and a maltodextrin with a DE below 20, which the claimed DE of 15 to 35 in claims 1 and 13 overlaps and which DE of 10-20 in claim 6 overlaps, as well as mixtures of the maltodextrin and the low DE glucose syrup. 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. Thus, Abu-Hardan discloses a compositions comprising from 0.1 to 35 wt% of the micronized plant fibre and from 0.1 to 70 wt% of the sugar, based on the total weight of the chocolate, and the carrier fluid. The ordinary skilled artisan in Abu-Hardan would have found it obvious to use the claimed maltodextrin have a DE of from 10 to 20 and a low DE glucose syrup having a DE of 20-24 because Abu-Hardan discloses that each of solid particles of maltodextrin having the claimed DE, a low DE glucose syrup having the claimed DE and mixtures thereof makes a desirable chocolate.
Further, at page 45, lines 49-51 Abu-Hardan discloses its product as a fat reduced product comprising up to 30 wt% total fat, based on the total weight of the confectionary composition, which range the claimed 10 wt% or more of fat, based on the total weight of the composition overlaps. Further, the disclosed amount of dietary fibre in Abu-Hardan ranges from 0.1 to 35 weight parts in a total chocolate composition of 205 weight parts, or about 0.05 to about 17.5 wt%, based on the total weight of the chocolate composition which the claimed 4 to 20 wt% of dietary fibre in claim 22 overlaps. And, the claimed 20 to 45 wt% of sugar, based on the total weight of the vegan chocolate lies with the from 0.1 to 70 wt% of sugar disclosed generally at page 31 in Abu-Hardan. See MPEP 2144.05.I. The ordinary skilled artisan in Abu-Hardan would have found it obvious to use the claimed micronized bran in the claimed amounts because Abu-Hardan discloses that a desirable reduced fat and reduced calorie chocolate composition contains the claimed amount of fat, sugar and dietary fibre.
The Office considers the recited maltodextrin that does not encompass resistant maltodextrin as including any corn, wheat or potato starch hydrolysate having a DE of 10 to 20 or a DE of at least 15 as including the maltodextrin of Abu-Hardan. Further, the Office considers the recited low DE glucose syrup having a DE of from 15 to 35, a partially hydrolysed starch having a DE of from 15-30, and a low DE glucose syrup having a DE of from 20 to 24 to include the low DE glucose syrup of Abu-Hardan.
Chen at DESCRIPTION on pages 1-2 discloses a film forming anti-melting chocolate that cools quickly comprising 35-40 pts. wt. cocoa butter, 12-15 pts. wt. milk mineral salt, 13-16 pts. wt. maltitol, 8-11 pts. wt. fruit powder, 10-15 pts. wt. dietary fiber (“bulking agent”), 5-9 pts. wt. DHA oil, 15-20 pts. wt. glucose syrup, 6-8 pts. wt. xylitol, 2-8 pts. wt. brown sugar, 12-18 pts. wt. starch, 13-15 pts. wt. gelatin, 1-3 pts. wt. gellan gum, 12-16 pts. wt. glycerin, 5-12 pts. wt. glycerol, 6-10 pts. wt. sucrose fatty acid ester, 7-11 pts. wt. thickener, and 30-50 pts. wt. water. Further, the weight ratio of partially hydrolysed starch to dietary fibre is 15:15 (min glucose syrup to max dietary fibre) to 20:10 (max glucose syrup to min dietary fibre) or 50:50 to 66:33. At “contents of the invention” on page 2, Chen discloses that adding glucose syrup makes a coating having desirable hardness.
Further, because the confectionary composition of Chen disclosed at page 2 DESCRIPTION comprises 35-40 pts. wt. cocoa butter as well, 12-15 pts. wt. milk mineral salt, 13-16 pts. wt. maltitol, 8-11 pts. wt. fruit powder, 10-15 pts. wt. dietary fiber ("bulking agent"), 5-9 pts. wt. DHA oil, 15-20 pts. wt. glucose syrup (maltodextrin), 6-8 pts. wt. xylitol, 2-8 pts. wt. brown sugar, 12-18 pts. wt. starch, 13-15 pts. wt. gelatin, 1-3 pts. wt. gellan gum, 12-16 pts. wt. glycerin, 5-12 pts. wt. glycerol, 6-10 pts. wt. sucrose fatty acid ester, 7-11 pts. wt. thickener, and 30-50 pts. wt. water, giving a total of, at minimum (35 + 12 + 13 + 8 + 10 + 5 + 15 + 6 + 2 + 12 + 13 + 1 + 12 + 5 + 6 + 7 + 30 or) 193 parts and, at maximum (40 + 15 + 16 + 11 + 15 + 9 + 20 + 8 + 8 + 18 + 15 + 3 + 16 + 12 + 10 + 11 + 50 or) 278 parts and contains 15-20 parts of glucose syrup, Chen discloses a chocolate having at least 15/278 or about 5.5 wt% of glucose syrup and up to 20/193 or about 10.4 wt% of glucose syrup, based on the total weight of the chocolate.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Abu-Hardan for De Brouwer to include as a partially hydrolysed starch a maltodextrin or a glucose syrup having a DE of from 15 to 35 as claimed or a partially hydrolysed starch having a DE of from 15 to 30 as in claim 4, or a maltodextrin having a DE of from 10 to 20 or mixtures thereof, wherein the maltodextrin does not encompass resistant maltodextrin as in claim 6, or a low glucose DE syrup having a DE or from 20 to 24 as in claim 7. Further, it would have been obvious in view of Abu-Hardan for De Brouwer to include a mixture of maltodextrin and low DE glucose syrup as in claims 5 and 15. Both references disclose confections that are conventionally fat-based and that comprise a reduced sugar content and dietary fibre. The ordinary skilled artisan in De Brouwer would have desired to include the low DE glucose syrup and/or maltodextrin of Abu-Hardan to reduce the need for sugar to make the chocolate of De Brouwer.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of obvious in view of Chen for De Brouwer as modified by Abu-Hardan to include the partially hydrolysed starch as a low DE glucose syrup and maltodextrin, wherein the partially hydrolysed starch and dietary fibre are present in a weight ratio of from 70:30 to 30:70 as in Chen and to include claimed amount of 4 to 20 wt% of the claimed partially hydrolysed starch, based on the total weight of the chocolate as in Chen. Both references disclose vegan chocolate compositions having dietary fibre and that enable reduced sugar content. The ordinary skilled artisan in De Brouwer would have desired to include the glucose syrup disclosed in Chen to enhance its ability to form a chocolate coating while reducing its sugar content.
Regarding instant claims 18-21, De Brouwer at Abstract discloses a reduced-sugar chocolate having a sucrose content reduced by at least 30 wt% and containing a dextrin (“partially hydrolysed starch” - claim 18) and inulin (claim 19) or oligofructose as “dietary fibre” (claim 18). Further, at [0037] and [0040] and the accompanying Tables De Brouwer discloses, respectively a dark chocolate containing no high intensity sweeteners (claim 18), and (8.8 wt% + 5.8 wt% or) 14.6 wt% in total of a bulking agent as 8.8 wt% of dietary fibre (claim 21) and 5.8 wt% of corn dextrin. In addition, De Brouwer at [0016] discloses use of from 6 to 11 wt% of dietary fiber (claim 21) at [0011] discloses a sugar content of from 15 to 30 wt%, which the claimed 0 to 20 wt% overlaps. See MPEP 2144.05.I. Further, De Brouwer further indicates the desire (at [0005]-[0006]) to reduce sugar content with bulking agents.
De Brouwer does not disclose an example of a reduced-sugar chocolate wherein sugar is present in a concentration of from 0 to 20 wt% of the total weight of the chocolate as in claim 18; De Brouwer does not disclose a partially hydrolysed starch having a dextrose equivalence (DE) of from 15 to 35 as in claim 18; De Brouwer does not disclose a partially hydrolysed starch having a dextrose equivalence (DE) of from 15 to 35 as in claim 18; further, De Brouwer does not disclose the partially hydrolysed starch selected from the group consisting of maltodextrin, low DE glucose syrup and mixtures thereof as in claim 18. In addition, De Brouwer does not disclose a partially hydrolysed starch comprising a mixture of maltodextrin and low DE glucose syrup as in claim 20; and, De Brouwer does not disclose the claimed disclose the claimed partially hydrolysed starch to dietary fiber a weight ratio of 70:30 to 30:70 as in claim 18, or disclose the amount of 4 to 20 wt% of the total weight of the composition as in claim 21. However, at [0011] De Brouwer discloses sucrose (“sugar”) in the amount of 15 to 30 % by weight (wt%) of the composition, which the claimed 0 to 20 wt% 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 would have found it obvious in view of De Brouwer to reduce its sugar content to from 0 to 20 wt% of its chocolate because De Brouwer discloses that 0 to 20 wt% of sugar is a desirable amount for making a reduced sugar chocolate.
However, the ordinary skilled artisan in De Brouwer would have found it obvious in view of Abu-Hardan at page 45, lines 12-23 and page 46 at lines 14-30 and Chen at Abstract and Contents of the invention on page 2 to include in its chocolate the claimed maltodextrin, low DE glucose syrups or mixtures thereof having a DE of from 15 to 35 as a partially hydrolysed starch in the amount of 4 to 20 wt%, based on the total weight of the composition as in claim 21 to further reduce the amount of sugar needed to make its solid chocolate.
Response to Arguments
In view of the amendment dated June 09, 2026, the following rejections have been withdrawn as moot:
The provisional rejections of claims 1-2, 4-7 and 9-12 on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-6 and 9-16 of copending Application No. 18/044,593 in view of US 2009/0017184 A1, to De Brouwer et al.;
The provisional rejections of claims13-17 on the ground of nonstatutory double patenting as being unpatentable over claims 18-19 and 22-23 of copending Application No. 18/044,593;
The rejections of claims 1-7 and 9-21 under 35 U.S.C. 103 as unpatentable over US 2009/0017184 A1, to De Brouwer et al. in view of US20167/0135368 A1 to Brendel et al.; and,
The rejections of claims 2, 14 and 19 under 35 U.S.C. 103 as being unpatentable over US 2009/0017184 A1, to De Brouwer et al in view of US20167/0135368 A1 to Brendel et al. and US2022/0039446 A1 to Dimartino et al.
Regarding the outstanding provisional nonstatutory double patenting rejections, the Terminal disclaimer dated June 09, 2026 is effective to overcome the rejections.
Regarding the positions taken in the remarks accompanying amendment dated June 09, 2026 (Reply), the positions have been fully considered and are not found persuasive for the following reasons:
Regarding the position taken in the Reply that De Brouwer does not disclose the claimed partially hydrolysed starch, respectfully the rejection does not rely on De Brouwer to disclose the claimed partially hydrolysed starch. Further, the rejection does not rely on a combination of De Brouwer and Brendel.
Regarding the position taken in the Reply at pages 13-14 that De Brouwer does not meet the sugar content of 0 to 20 wt% in the reduced-sugar, the Reply acknowledges that De Brouwer at [0011] discloses a sugar content of from 15 to 30 wt%, which the claimed range in claim 18 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. Further, and respectfully it does not follow from the allegation that De Brouwer at [0004] made comments discouraging use of inulin alone that De Brouwer does not support the concept of the reduced-sugar chocolate or a chocolate having 0 to 20 wt% of sugar as claimed. Paragraph [0011] of De Brouwer disclosing sugar in amounts overlapping the claimed range in claim 18 and the use of inulin in a further combination at [0007] of De Brouwer provide evidence contrary to the position taken and preponderate on this question.
Applicants are respectfully reminded that the subcombination in claims 18-21 may be found to be patentably distinct invention from the subcombination claimed in claims 1-7 and 9-17.
Conclusion
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
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