DETAILED ACTION
Background
The amendment dated February 17, 2026 (amendment) amending claims 1, 13-14 and 18, and canceling claim 17 has been entered. Claims 1, 3-6, 9-16 and 18-23 as filed with the amendment have been examined. Claims 2, 7-8 and 17 have been canceled. In view of the cancellation of claim 17, all outstanding rejections of those claims have been withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 filed on February 17, 2026 has been entered.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5-6 of copending Application No. 18/044,592 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claim 13 recites the same confectionary composition comprising 10 wt% or more of fat and a bulking agent as dietary fibre and wherein a maltodextrin/partially hydrolysed starch and the dietary fibre are present as the bulking agent in a weight ratio ranging from 80:20 to 20:80 as in claims 1 and 5-6 of the reference application, further wherein the confectionary composition comprises 45 wt% or less of total sugars, based on the total weight of the confectionary composition which lies within the 20 to 45 wt% of total sugars as in claim 1 of the reference application. Further, the claimed confectionary composition recites a bulking agent comprising a dietary fibre and maltodextrin that does not encompass resistant maltodextrin which is the same as the combination of dietary fibre and partially hydrolysed starch or maltodextrin having a dextrose equivalence (DE) of 15 to 35 as in claim 1 of the reference application and that is the same as the maltodextrin in claims 5-6 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 18 and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13 and 15 of copending Application No. 18/044,592 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant claim 18 and claim 13 of the reference application recite the same confectionary composition and bulking agent comprising dietary fibre and a maltodextrin/partially hydrolysed starch that does not encompass resistant maltodextrin, further comprising 10 wt% or more of fat and 20 wt% to 45 wt% of sugar, based on the total weight of the vegan chocolate, and wherein a maltodextrin and the dietary fibre are present in the bulking agent at a weight ratio ranging from 80:20 to 20:80 because the recited maltodextrin that does not encompass resistant maltodextrin is the same as the partially hydrolysed starch having a DE of 15 to 35 in claim 13 of the reference application. Claim 15 of the reference application recites maltodextrin as the hydrolysed starch and is not patentably distinct from claims 18 and 20 reciting maltodextrin that does not encompass resistant maltodextrin. Further, the Office considers the claimed maltodextrin having a (at [0016]) have a DE of from 10 to 40 in claim 20 to include the maltodextrin of claim 15 of the reference application having a DE of 15 to 35.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 6 and 9-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US2019/0059415 to Giunti De Oliveira et al. (Giunti).
Regarding instant claims 1, 6, 9-10 and 15, Giunti at Abstract discloses white chocolate that is milk protein-free, lactose-free and soy-free (a “confectionary composition” of claim 1 as a “chocolate composition” in claim 10 and a food product in claim 15). At [0177]-[0189] and the table following [0190], Giunti discloses a preferred white chocolate comprising cocoa butter, maltitol and erythritol, 10 wt% polydextrose (“dietary fiber” as a “bulking agent”), 8.24 wt% maltodextrin, rice milk powder, emulsifiers and flavors. Accordingly, the weight ratio of maltodextrin to polydextrose dietary fibre is about 8:10 (claims 1 and 9). Further, the Office considers the flavors disclosed in Giunti to comprise clear liquid extracts.
Further and regarding instant claim 6, at [0142] Giunti discloses that the dietary fiber is given by the polydextrose. In addition, at items 1 and 2 after [0199], Giunti discloses a chocolate composition “with fibers” and “without fibers”, both of which have the same amount of up to 20 wt% of maltodextrin whether the chocolate composition is made with or without fibers. Based on the disclosure of Giunti, the Office considers the recited maltodextrin that does not encompass resistant maltodextrin and a maltodextrin having a DE of from 10 to 40 as in claims 6 as including the maltodextrin of Giunti.
Regarding instant claims 11, 12 and 13, the confectionary composition disclosed at [0177]-[0189] of Giunti comprises 10 wt% parts dietary fibre relative to the total weight of the composition (claim 12) and 8.24 wt% of maltodextrin relative to the total weight of the composition (claim 12). Accordingly, the Giunti chocolate composition comprises about 18 wt% of bulking agent relative to the total weight of the composition claim 11). And, the Giunti chocolate composition contains no added sugar, but from the Table accompanying [0190] has about 1.6 wt% total sugar, based on the total weight of the confectionary composition (claim 13).
Regarding instant claim 14, the confectionary composition disclosed in Giunti at [0177]-[0189] contains no high-intensity sweeteners.
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, 3, 6 and 9-15 are rejected under 35 U.S.C. 103 as unpatentable over CN111449160 A to Chen et al (Chen) in view of US2017/0135368 A1 to Brendel et al. (Brendel).
All references to Chen refer to the Clarivate machine translation, a copy of which is included with this Office action.
Regarding instant claims 1, 9-10 and 14-15, Chen at DESCRIPTION on page 2 discloses an anti melting chocolate (a “confectionary composition” of claim 1 as a “chocolate composition” in claim 10 and a food product in claim 15) 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 (“maltodextrin that does not encompass resistant maltodextrin” as in Brendel at [0055]), 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 maltodextrin to dietary fibre is 15:15 (min maltodextrin to max dietary fibre) to 20:10 (max maltodextrin to min dietary fibre) or 50:50 to 66:33 (claim 9). Further, the confectionary composition and chocolate composition of Chen contains no high-intensity sweeteners (claim 14).
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. Therefore, the composition has a total of, at maximum) 40 + 15 + 16 + 11 + 15 + 9 + 20 + 8 + 8 + 18 + 15 + 3 + 16 + 12 + 10 + 11 + 50 or) 278 parts and contains about 13 to 15 wt% of fat , based on the total weight of the confectionary composition.
Further and regarding instant claims 3 and 6, Chen does not state that its glucose syrup is a maltodextrin that does not encompass resistant maltodextrin; further does not disclose that its dietary fibre is a micronized plant fiber; and, does not disclose the dextrose equivalence (DE) of its glucose syrup or that its glucose syrup is a maltodextrin having a DE of from 10 to 40 as in claim 6. However, at the 2nd sentence of the DESCRIPTION on page 2 Chen discloses grinding and screening its dietary fibre and, at “Preferred components” on page 3 discloses that its screen is a 400 mesh screen, or a maximum size of about 37 µm. The Office considers the recited micronized dietary fibre in claim 3 as including the ground, screened dietary fibre of Chen.
Brendel at Abstract discloses a reduced fat vegan chocolate or confectionary composition comprising (at [0020]) a fiber and a starch hydrolysate as maltodextrin. Further, at [0055] Brendel discloses that starch hydrolyzates having a DE of 20 or higher are termed “glucose syrup” and are chemically the same thing as maltodextrins because all are starch hydrolyzates, and that all seven of the glucose syrups have a DE of 20 or higher (“do not encompass resistant maltodextrin”). Further still, at [0029]-[0030] Brendel discloses that dietary fibre is generally a plant fiber.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Brendel for Chen to us as its dietary fibre a plant fiber of claim 3 and to use as its glucose syrup a “maltodextrin” having a DE of rom 10 to 40 of claim 6. Both references disclose confectionary compositions comprising bulking agents including dietary fibre and maltodextrin. The ordinary skilled artisan in Chen would readily have used a plant source for its micronized dietary fibre as a readily available source of dietary fibre and would have desired to use a maltodextrin having the claimed DE of from 10 to 40 as in Brendel to be its glucose syrup with a lower DE giving a harder or more viscous chocolate composition and the higher DE giving a sweeter chocolate composition.
Regarding instant claims 11, 12 and 13, the confectionary composition of Chen disclosed at page 2 DESCRIPTION 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 (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. The disclosed composition has a total of (at minimum 35 + 12 + 13 + 8 + 10 + 5 + 15 + 6 + 2 + 12 + 13 + 1 + 12 + 5 + 6 + 7 + 30 or) 192 to (at maximum 40 + 15 + 16 + 11 + 15 + 9 + 20 + 8 + 8 + 18 + 15 + 3 + 16 + 12 + 10 + 11 + 50 or) 278 parts. The Chen chocolate composition contains 10-15 parts dietary fibre or about 4 to about 7.5 wt% of dietary fibre relative to the total weight of the composition (claim 12) and contains 15-20 parts maltodextrin or about 6 (15/278 parts) to 10 wt% of maltodextrin relative to the total weight of the composition (claim 12). Accordingly, the Chen chocolate composition comprises from about 10 to about 17.5 wt% of bulking agent relative to the total weight of the composition claim 11). The Chen chocolate composition contains 2-8 parts total sugar as brown sugar, or about 1 to 3 wt% total sugar, based on the total weight of the confectionary composition (claim 13).
Claims 4-5 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over CN111449160 A to Chen et al (Chen) in view of US2017/0135368 A1 to Brendel et al. (Brendel) as applied to claim 1, above, and further in view of US2022/0007702 A1 to Mukherjee et al. (Mukherjee), of record.
As applied to claim 1, Chen at DESCRIPTION on page 2 discloses a confectionary composition comprising 10 wt% or more of fat as cocoa butter, based on the total weight of the confectionary composition, a dietary fiber (“bulking agent”), and a maltodextrin that does not encompass resistant maltodextrin that comprises a dietary fibre and maltodextrin in a weight ratio of from 80:20 to 20:80.
Chen does not disclose a dietary fibre comprising a micronized wheat bran as in claim 4 or a micronized cocoa fibre as in claim 5. Further, Chen does not disclose a dietary fibre selected from the group consisting of: bran, cocoa fibre, bamboo fibre, and mixtures of two or more thereof as in claim 16. However, Chen at the 2nd sentence of the DESCRIPTION on page 2 and, at “Preferred components” on page 3 discloses a micronized plant fiber.
Mukherjee at Abstract discloses fat continuous confectionary compositions which (at [0022]) include chocolate (“chocolate compositions”) and the (at [0020] exhibit pleasing organoleptic properties, wherein the chocolate compositions comprise (at [0023]) insoluble dietary fibre as bulking agents including cocoa shell or cocoa pod husk fiber (“cocoa fibre”) and wheat bran fiber which are (at [0025]) micronized to reduce grittiness in the product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Mukherjee for Chen to use micronized wheat bran fibre and/or cocoa fibre as its micronized dietary fibre. Both references disclose chocolate comprising micronized dietary fibre. The ordinary skilled artisan in Chen would have desired to use a micronized wheat bran fibre or cocoa fibre as in Mukherjee in its confectionary composition as its source of micronized dietary fiber that would give its chocolate composition a desirable flavor.
Claims 18-23 are rejected under 35 U.S.C. 103 as being unpatentable over WO2017/167966 A1, to Abu-Hardan et al. (Abu-Hardan) in view of US 2009/0017184 A1, to De Brouwer et al., (De Brouwer ) of record and US2011/0014350 A1, to Brown et al. (Brown), of record.
Regarding instant claims 18-19 and 22, Abu-Hardan at Abstract discloses a confectionary composition comprising a micronized bran as a sugar replacer including 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 35 wt% of the micronized bran (“dietary fibre”) from (at p. 9, lines 1-5) wheat (“micronized wheat bran” as in claim 19) in from 0.1 to 99.9 wt% of a carrier which is a fat based fluid as a cocoa mass, and wherein, at page 31, lines 38-41, the amount of sugar represents 100 parts to from 0.1 to 50 parts of the micronized bran (“dietary fiber”). Thus, Abu-Hardan discloses a chocolate composition comprising from 0.1 to 99.9 wt.% of the carrier fluid, from 0.1 to 35 wt% of the dietary fibre and from 0.1 to 70 wt% of sugar, or (in a total of 205 total weight parts) 0.1 to 70 parts, based on the total weight of 205 parts of the chocolate composition or from about 0.05 to about 35 wt% of sugar, which the claimed 20 to 45 wt% of sugar overlaps. Further, the Abu-Hardan product includes chocolate including, for chocolate (at page 45, lines 49-51) up to 30 wt% total fat as a reduced fat content, 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 amount of dietary fibre in Abu-Hardan is 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 claims 4 to 20 wt% of dietary fibre in claim 22 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 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 the claimed dietary fibre.
De Brouwer discloses a dietary fibre containing vegan chocolate composition that is free of milk solids and high intensity sweeteners, wherein at [0040] and Example 1B the composition comprises 29.6 wt% sugar, 11.7 weight% cocoa butter (fat), 43.8 wt% cocoa liquor that contains some fat and about 14.5 of dietary fibre.
Brown discloses at [0004] a reduced sugar and calorie containing chocolate composition which (at [0008]) comprises at least one of maltodextrin and polydextrose or dietary fibre, wherein at [0021] the composition comprises from 1 to 20 wt% of the maltodextrin, which the claimed amount of from 4 to 20 wt% of maltodextrin in claim 22 lies within. See MPEP 2144.05.I The Brown chocolate composition at [0019] comprises cocoa products and sweeteners. Further, at Table 1 on page 3, Brown discloses in Examples A and B that its maltodextrin does not encompass resistant maltodextrin as shown by the fact that total calories are maintained in Example B which is identical to Example A except that the amount of whey protein drops the same amount that the amount of maltodextrin is increased. The Office also considers the claimed maltodextrin having a DE of from 10 to 40 to include the maltodextrin of Brown. The ordinary skilled artisan in Brown would have found it obvious to use the claimed maltodextrin in the claimed amounts because Brown discloses that a desirable reduced fat and reduced calorie chocolate composition contains the claimed amount of the claimed maltodextrin that does not encompass resistant maltodextrin.
Further, and Regarding instant claims 20-23, Abu-Hardan does not disclose a specific example of a vegan chocolate, does not disclose a mixture of a bulking agent as the dietary fibre and maltodextrin that does not encompass resistant maltodextrin in a weight ratio of from 80:20 to 20:80, and does not disclose that its chocolate composition is free of milk solids and high-intensity sweeteners. Further, Abu-Hardan does not disclose a maltodextrin having a DE of from 10 to 40 as in claim 20; Abu-Hardan does not disclose a composition comprising from 4 wt% to 20 wt% of the maltodextrin and from 4 wt% to 20 wt% of the dietary fibre as in claim 22; Abu-Hardan does not disclose a total amount of bulking agent as both dietary fibre and maltodextrin of from 10 to 25 wt% as in claim 21; and, Abu-Hardan does not disclose a vegan chocolate wherein the maltodextrin and the dietary fibre are present in the bulking agent at a weight ratio of from 70:30 to 30:70 as in claim 23.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of De Brouwer for Abu-Hardan to make a vegan chocolate that is free of milk solids and high intensity sweeteners. Both references disclose a chocolate composition comprising dietary fibre and having a reduced fat and sugar content. The ordinary skilled artisan in Abu-Hardan would have desired as in De Brouwer to make its chocolate composition as an allergy free, more digestion friendly vegan chocolate that is free of milk solids and high intensity sweeteners as in De Brouwer.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Brown for Abu-Hardan to use the claimed amount of 4 to 20 wt% of the claimed maltodextrin having a DE of from 10 to 40 or one that does not encompass resistant maltodextrin as well as the claimed total amount of from 10 to 25 wt% of bulking agent as dietary fibre and the maltodextrin, all wt%s based on the total weight of the vegan chocolate, and to use the maltodextrin and dietary fibre in a weight ratio of from 80:20 to 20:80 and from 70:30 to 30:70. Both references disclose chocolate compositions having dietary fibre and that enable reduced fat and sugar content. The ordinary skilled artisan in Abu-Hardan would have desired to include the maltodextrin in Brown and in the amount disclosed in Brown to enhance the sweetness of the product while reducing its sugar and fat content. Further, the ordinary skilled artisan would have desired to include the maltodextrin and dietary fibre in a weight ratio of from 80:20 to 20:80 or 70:30 to 30:70 because Abu-Hardan discloses that the desirable amount of dietary fibre is about the same as the desirable amount of maltodextrin disclosed in Brown.
Response to Arguments
In view of the amendment dated February 17, 2026, the following rejections have been withdrawn as moot:
The provisional rejections of claims 1, 6 and 14 on the ground of nonstatutory double patenting as being unpatentable over claims 5-6 of copending Application No. 18/044,592;
The rejections of claims 1, 3-6 and 9-23 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the recited wt% of fat in claims 1 and 18 as lacking a basis for the recited weight percent; in regard to the wt% of sugar in claims 13 and 18 as lacking a basis for the recited weight percent; and in regard to the antecedent basis for the term “confectionary composition”;
The rejections of claims 11, 3, 6, 9-15, 17-18 and 20-23 under 35 U.S.C. 102(a)(1) as being anticipated by US 2009/0017184 A1, to De Brouwer et al.;
The rejections of claims 4, 16 and 19 under 35 U.S.C. 103 as being unpatentable over US 2009/0017184 A1, to De Brouwer et al. in view of W02017/167966 A2, to Abu-Harden et al.; and,
The rejections of claims 16 and 19 under 35 U.S.C. 103 as being unpatentable over US 2009/0017184 A1, to De Brouwer et al. in view of US 2022/0240535 A1, to Krahenmann et al.
The positions taken in the remarks with respect to Krahenmann or with respect to De Brouwer’s bulking agent have been considered but are moot because the new ground of rejection does not rely on De Brouwer applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the remarks accompanying the amendment dated February 17, 2026 (Reply) at pages 12-14, respectfully the rejection does not rely on De Brouwer for any disclosure of a bulking agent.
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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Examiner, Art Unit 1791