DETAILED ACTION
Background
The amendment dated June 03, 2026 (amendment) amending claims 1,14 and 18, and canceling claims 3, 9 and 23 has been entered. Claims 1, 4-6, 10-16 and 18-22 as filed with the amendment have been examined. Claims 2-3, 7-9, 17 and 23 have been canceled. In view of the cancellation of claims 3, 9 and 23, all outstanding rejections of those claims have been withdrawn.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 .
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, 4, 6 and 10-15 are rejected under 35 U.S.C. 103 as unpatentable over CN111449160 A to Chen et al (Chen) in view of WO2017/167966 A1, to Abu-Hardan et al. (Abu-Hardan), both of record.
All references to Chen refer to the Clarivate machine translation, a copy of which was included with a prior Office action.
Regarding instant claims 1, 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 1). 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.
Still further and regarding instant claims 4 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; Chen does not disclose that its micronized plant fibre is micronized wheat bran as in claim 4; 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 as including the ground, screened dietary fibre of Chen.
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 a carrier medium and the micronized bran as “micronized plant fibre from (at p. 9, lines 1-5) wheat or micronized wheat bran. 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. Still further, at page 45, lines 12-19 Abu-Hardan discloses ingredients including glucose syrup as a dispersed solid particles; and, further at page 46, lines 9-29 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 10-40 in claim 20 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 maltodextrin have a DE of rom 10 to 40 because Abu-Hardan discloses that solid particles of maltodextrin having the claimed DE makes a desirable chocolate.
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 10-40, including a glucose syrup having that DE.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Abu-Hardan for Chen to us as its dietary fibre micronized plant fibre which as wheat brand as in claim 4 and to use as its glucose syrup a “maltodextrin” from Abu-Hardan that does not encompass resistant maltodextrin and having a DE of from 10 to 40 of claim 6. Both references disclose reduced sugar and reduced fat confectionary compositions comprising bulking agents including micronized plant fibre and maltodextrin. The ordinary skilled artisan in Chen would readily have used a micronized wheat bran as 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 Abu-Hardan to be its glucose syrup wherein a lower DE gives a harder or more viscous chocolate composition and the higher DE gives 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 WO2017/167966 A1, to Abu-Hardan et al. (Abu-Hardan) 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 and the 2nd sentence of the DESCRIPTION on page 2 in view of Abu-Hardan at Abstract, p. 9, lines 1-5, page 31, lines 1-13, page 39, lines 21-26, page 40, lines 23-41, page 45, lines 12-19 and page 46, lines 9-29 discloses a chocolate composition as 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 (“micronized plant fibre”), 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 18-22 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 18-20 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 99.9 wt% of a carrier medium and from 0.1 to 35 wt% of the micronized bran (“dietary fibre” as “micronized plant fibre”) from (at p. 9, lines 1-5) wheat (“micronized wheat bran” as in claim 19) 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 (“vegan 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 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 20-40 lies within, and a maltodextrin with a DE below 20, which the claimed DE of 10-40 in claim 20 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. 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 rom 10 to 40 because Abu-Hardan discloses that solid particles of maltodextrin having the claimed DE 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 10-40, including the glucose syrup and maltodextrin of Abu-Hardan.
Further, and regarding instant claims 18 and 21-22, Abu-Hardan does not disclose a specific example of a vegan chocolate comprising a mixture of a bulking agent as the micronized plant fibre and maltodextrin that does not encompass resistant maltodextrin in a weight ratio of from 70:30 to 30:70, and does not disclose an example of its dark chocolate composition that is free of milk solids and high-intensity sweeteners. Further, 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. However, Abu-Hardan discloses a dark chocolate and the Office considers dark chocolate to include or render obvious a vegan chocolate.
De Brouwer discloses a dietary fibre containing vegan chocolate composition that is free of milk solids and high intensity sweeteners, wherein at [0039]-[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. Further,
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.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of De Brouwer or Brown for Abu-Hardan to make a vegan chocolate that is free of milk solids and high intensity sweeteners. All 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 or Brown 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 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 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 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 June 03, 2026, the following rejections have been withdrawn as moot:
The provisional rejections of claim 13 on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5-6 of copending Application No. 18/044,592;
The provisional rejections of claims 18 and 20 on the ground of nonstatutory double patenting as being unpatentable over claims 13 and 15 of copending Application No. 18/044,592;
The rejections of 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.;
The rejections of claims 1, 3, 6 and 9-15 under 35 U.S.C. 103 as unpatentable over CN111449160 A to Chen et al in view of US2017/0135368 A1 to Brendel et al.; and,
The rejections of claims 4-5 and 16 under 35 U.S.C. 103 as being unpatentable over CN111449160 A to Chen et al. in view of US2017/0135368 A1 to Brendel et al. and US2022/0007702 A1 to Mukherjee et al.; and,
The rejections of claims 18-23 under 35 U.S.C. 103 as being unpatentable over WO2017/167966 A1, to Abu-Hardan et al. in view of US 2009/0017184 A1, to De Brouwer et al. and US2011/0014350 A1, to Brown et al.
The positions taken in the remarks with respect to Giunti De Oliveira and Brendel have been fully considered but are moot because the new ground of rejection does not rely on Giunti De Oliveira or Brendel as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The positions taken in the remarks accompanying the amendment dated June 03, 2026 (Reply) have been fully considered but are respectfully not found persuasive for the following reasons:
Regarding the positions taken in the Reply alleging that Chen does not disclose that its glucose syrup is maltodextrin, respectfully the evidence on the record (now Abu-Hardan at page 46, lines 24-30) reveals that the glucose syrup in Chen is in fact a maltodextrin which in fat encompasses many hydrolyzed starches. The disclosure of glucose syrup in the art, just as in Brendel (no longer applied), is definitional and not selective. Particularly in view of the fact that uses glucose syrup in preparing a film of anti-melting chocolate in Chen and the use of glucose syrup in chocolates with sugar replacers and fat replacers, the ordinary skilled artisan would readily have chosen to use a lower DE glucose syrup, closer to a DE of 20, as solids.
Regarding the positions taken in the Reply that any rejection relies on hindsight reconstruction or alleging that rejection does not identify a teaching in any cited reference, or any reasoned basis from the references as a whole, for combining non-resistant maltodextrin and micronized plant fibre together as a bulking agent in a vegan chocolate composition at the claimed 70:30 to 30:70 weight ratio, respectfully it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The position in the Reply cannot ignore the disclosures in all cited references of chocolates comprising dietary fibres or additional bulking agents, whether used as as sugar replacers, fat replacers or as viscosity modifiers impacting melt flow. All desirable uses in chocolate comprise the same mixing a formulation by the same blending or conching to achieve the same result.
Regarding the positions taken in the Reply alleging that Mukherjee does not teach or suggest that Chen's glucose syrup is maltodextrin, respectfully the rejection does not rely on Mukherjee for any disclosure of maltodextrin.
Regarding the positions taken in the Reply and De Brouwer, respectfully the rejection does not rely on De Brouwer for any disclosure of a bulking agent.
Regarding the positions taken in the Reply that De Brouwer it does not provide a reason to modify Abu-Hardan with Brown to arrive at the claimed vegan chocolate composition, respectfully when reading Abu-Hardan as a whole dark chocolate is disclosed wherein all of the ingredients in the dark chocolate of De Brouwer are the same as in Abu-Hardan or provide an advantage recognized in both references such that De Brouwer is merely pricing a formulation consistent with the disclosure of Abu-Hardan.
Regarding the positions taken in the Reply alleging that the rejection appears to derive the dietary fibre amount from Abu-Hardan and the maltodextrin amount from Brown, then concludes that the amounts are "about the same," respectfully the rejection states a sound basis for a finding of obviousness. It is Brown that discloses that dietary fiber and maltodextrin are used in the claimed amounts and about the same amount as each other; meanwhile, Abu-Hardan at page 31, lines 1-10 and 38-41 discloses the micronized plant fibre and sugar in amounts that lie within or overlap the claimed amounts; and, at page 46, lines 9-29 discloses glucose syrup or other maltodextrin powders as equivalents to sugar or in admixture with sugar.
Conclusion
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791
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