DETAILED ACTION
Background
The amendment dated June 23, 2026 (amendment) amending claims 1-5, 9-15 and 17-18 and adding new claim 19 has been entered. Claims 1-8 and 18-19 as filed with the amendment have been examined. Claims 9-17 have been withdrawn from consideration as drawn to a non-elected invention. In view of the amendment, all outstanding claim objections have been withdrawn.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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 23, 2026 has been entered.
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 1-8 and 18-19 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 and 18-19, in claim 1 at lines 1-3, in claim 18 at lines 2-3 and in claim 19 at lines 2-3, each of the recited amount of a bulking agent in wt% and the recited amount of coating composition in wt% is indefinite because it lacks a proper basis or denominator. In each claim, is the amount of bulking agent in wt% an amount based on the total weight of the coating composition, an amount based on the total weight of the coated bulking agent particle, an amount based on the total weight of the sugar, or is it an amount based on based on the total weight of something else? And, in each claim, is the amount of coating composition in wt% an amount based on the total weight of the bulking agent, an amount based on the total weight of the coated bulking agent particle, or is it an amount based on based on the total weight of something else?
The Office interprets the recited amount of a bulking agent in wt% and the amount of coating composition in wt% as being an amount, based on the total weight of the coated bulking agent particle.
Regarding instant claim 1, at line 3 the recited ratio of sugar to surface active agent is indefinite for lacking units. Is the recited ratio a weight ratio, a volume ratio, or some other measure of a ratio?
The Office interprets the recited ratio of sugar to surface active agent as being a weight ratio.
Regarding instant claim 3 at line 2, the recited amount of sugar in wt% is indefinite because it lacks a proper basis or denominator. Is the amount of sugar in wt% an amount based on the total weight of the coating composition, an amount based on the total weight of the coated bulking agent particle, an amount based on the total weight of the bulking agent, or is it an amount based on based on the total weight of something else?
The Office interprets the recited amount of sugar in wt% as being an amount, based on the total weight of the coated bulking agent particle.
Claims 2 and 4-8 are rejected as depending from a rejected base claim.
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, 4-7 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over WO2019/046785 A1 to St. John (St. John) in view of US5342636 to Bakshi et al. (Bakshi), both of record.
Regarding instant claims 1 and 18, St. John at Abstract discloses a reduced-flavor cocoa (“deflavored cocoa”) for use as a bulk filler (“bulking agent”) in food products, such as chocolate. At [0012], St. John discloses the deflavored cocoa bulking agent as a sugar substitute and to reduce the calorie content of the food compositions containing it. Further, at [0018] St. John discloses its bulking agent as cocoa powder deflavored with ethanol extraction (claim 18).
Further and regarding instant claims 4-7, St. John does not disclose a coated bulking agent, does not disclose a coated bulking agent particle wherein the coated bulking agent comprises from 2 to 70 wt% of the bulking agent, and does not disclose a coated bulking agent particle comprising from 30 to 98 wt% of a coating composition comprising sugar and surface active agent, wherein the weight ratio of sugar to surface active agent in the composition is from 2000:1 to 4:1 as in claim 1; further, St. John does not disclose a coated bulking agent particle wherein the sugar is selected from the group consisting of sucrose, lactose, trehalose, allulose, glucose, galactose, and mixtures thereof as in claim 4 and wherein from 50 wt% to 100 wt% of the sugar is in crystalline form; yet further, St. John does not disclose a coated bulking agent particle wherein the surface active agent is selected from the group consisting of: whey protein, sodium caseinate, potassium caseinate, calcium caseinate, soluble vegetable protein, protein hydrolysates, albumin, lecithin, and mixtures thereof as in claim 5; even further, St. John does not disclose a coated bulking agent particle wherein the bulking agent has a particle size D90 of less than 100 µm as in claim 6; yet still further, St. John does not disclose a coated bulking agent particle wherein the bulking agent in hydrated form has a particle size volume mean diameter of from 10 to 60 µm as measured using water as the dispersant as in claim 7.
Further, the Office considers a generic disclosure of sugar as in St. John at [0014] and generic references to sugar in Bakshi refer to sucrose. And the Office interprets the claimed coated bulking agent particle “in hydrated form” in claim 7 broadly as meaning any bulking agent particle that is not anhydrous, including the bulking agent disclosed in St. John at Abstract.
Bakshi at Abstract discloses coated bulking agent particles wherein the bulking agents are coated in water with a coating composition of sugar additive and protein additive for use in fat or oil containing foods. At col. 2, lines 16-36, Bakshi discloses coated bulking agent particles wherein the bulking agent particles are coated with a coating composition of the sugar and a water soluble protein (“surface active agent”), including the sugars sucrose and dextrose (“glucose” - claim 4) and including (at col. 5, lines 14-21) as surface active agents soy protein (“soluble vegetable protein”), albumen (“albumin”) and lactalbumin as in claim 5. Further, at col. 5, lines 28-30 Bakshi discloses a total amount of additive (“coating composition”) of from about 5 to 50 wt%, which the claimed 30 to 98 wt% overlaps. In addition, Bakshi at col. 5, lines 1-3 discloses the additive including from 0 to 100 wt% of sugar; and, Bakshi discloses at col. 5, lines 41-44 coated bulking agent particles wherein the amount of protein to sugar in the coating ranges from 0:1 to 1:0, or a sugar to protein weight ratio of 10:1 to 1:1, which the claimed 2000:1 (1:0.0005) to 4:1 (w/w) overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I. The ordinary skilled artisan in Bakshi would have found it obvious to use the claimed weight ratio of sugar to surface active agent (“protein”) in its coating composition and to include the claimed amount of from 2 to 70 wt% of the bulking agent and from 30 to 98 wt% of a coating composition comprising sugar and surface active agent because Bakshi discloses that the claimed amount of bulking agent, sugar and surface active agent and the claimed weight ratio of sugar to surface active agent provide a desirable coated bulking agent having emulsifying properties and mouthfeel as at col. 5, lines 18-24.
Further, Bakshi at col. 4, lines 3-8 discloses bulking agent particles having a particle size of 15 to 25 µm. The Office considers the claimed coated bulking agent particle having a particle size D90 of less than 100 µm as in claim 6 and the claimed coated bulking agent particle in hydrated form having a particle size volume mean diameter of from 10 to 60 µm as in claim 7 to include the coated bulking agent particles disclosed in Bakshi. And, Bakshi at col. 6, lines 1-6 discloses methods comprising coating the bulking agent particle with the coating additive or composition in water, followed by (at col. 6, lines 57-68) spray drying the coated particles in hot air (at col. 6m line 45). The coated bulking agent particle of Bakshi is made using substantially the same process as disclosed in [0070] and Example 2 at [0099] of the instant specification and is dried above the glass transition temperature of the sugar in the coating composition. Accordingly, absent a clear showing as to how the crystallinity of the sugar in the coated bulking agent particle in Bakshi differs from that coated bulking agent particle as claimed, the Office considers the coated bulking agent particle of col. 6, lines 57-68 of Bakshi to comprise 50 to 100 wt% of sugar in crystallized form as in claim 1. See MPEP 2112.01.I.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bakshi for St. John to coat its deflavored cocoa bulking agent with a coating composition comprising a weight ratio of sugar to surface active agent as albumen or soluble vegetable protein of from 2000:1 to 4:1 to give a coated bulking agent particle comprising 50 to 100 wt% of the sugar as sucrose or glucose in crystalline form. Further, before the effective date of the present invention, the ordinary skilled artisan in St. John would have found it obvious in view of Bakshi to form its coated bulking agent particle comprising from 2 to 70 wt% of the bulking agent and from 30 to 98 wt% of the coating composition as in Bakshi, and to grind its bulking agent to a particle size D90 of less than 100 µm as in claim 6 and a particle size volume mean diameter of from 10 to 60 µm as in claim 7, all as in Bakshi. Both references disclose bulking agent particles for use in fat based food to reduce the caloric content of the food. The ordinary skilled artisan in St. John would have desired to coat its bulking agent and to use the claimed amount of the claimed sugar and surface active agent and of the coating composition as in Bakshi to make it easier to disperse its bulking agent into a fat based food like chocolate and, further, would have desired to reduce the particle size of the coated bulking agent particle to the claimed particle size as in Bakshi and to dry them as in Bakshi to give stable coated bulking agent particle compositions comprising crystallized sugar that provide improved mouthfeel in foods containing them.
Further, the Office considers the claimed coated bulking agent particle that is not present in a frozen confection product containing chocolate or chocolate like compositions to include the sugar and protein coated fiber bulking agent particle of both St. John and St. John as modified by Bakshi because each of St. John and Bakshi do not disclose any of its bulking agents or sugar products in frozen confections or used for frozen confections.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over WO2019/046785 A1 to St. John (St. John) in view of US5342636 to Bakshi et al. (Bakshi) as applied to claim 1 above, and further in view of US2013/0052317 A1 to Berenschot et al. (Berenschot), of record.
As applied to claim 1, St. John at Abstract, [0012] and [0018] as modified by Bakshi at Abstract, col. 2, lines 16-36, col. 5, lines 28-30 and 41-44 discloses coated deflavored cocoa bulking agent particles comprising a coating composition of a sugar and a surface active agent in the amount of from 30 to 98 wt% and from 2 to 70 wt% of the bulking agent particles, all wt%s based on the total weight of the coated bulking agent particle, further, wherein the weight ratio of sugar to surface active agent in the coating composition is from 2000:1 to 4:1 and from 50 wt% to 100 wt% of the sugar is in crystalline form.
St. John as modified by Bakshi does not disclose a coated bulking agent particle wherein in the coating composition a weight ratio of the sugar to the surface active agent of from 100:1 to 16:1. However, St. John as modified by Bakshi at col. 5, lines 1-3 of Bakshi discloses a wide range of sugar of from 0 to 100 wt% of its total coating composition.
Berenschot at [0008] discloses sweetened cocoa powder compositions comprising cocoa powder particles coated with a hydrophilic agent comprising (at [0009]) a sugar and (at [0025]) an emulsifier or surface active agent including lecithin. Berenschot discloses at Abstract and [0034] that the particles are better dispersible in milk or cold fluid and, further discloses making the compositions by coating the cocoa powder (at [0046]) by spray coating, mixing or other methods known in the art and (at [0049]) milling. In Example 1, Sample 2 (S2) at [0069] and the Table accompanying, Berenschot discloses (at [0071]) coating 94 parts cocoa powder with 5 parts lecithin, followed by (at [0072]) mixing 20 wt% of the treated cocoa powder with 80 wt% extra-fine sucrose to coat the powder. In its Example 1 coating, Berenschot discloses a weight ratio of sugar and surface active agent of 80 wt% to 20 wt% of 5 parts or 80:1, including about 1 wt% of the surface active agent.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Berenschot for St. John as modified by Bakshi to include the claimed weight ratio of sugar to surface active agent of from 100:1 to 16:1. All references disclose bulking agents wherein Bakshi and Berenschot disclose that the bulking agent or filler particles disperse better in cold fluids when combined with sugar and surface active agents. The ordinary skilled artisan in St. John as modified by Bakshi would have desired to use the amount of lecithin or surface active agent as in Berenschot as part of its bulking agent and in a weight ratio of sugar to surface active agent in its coating composition to better enable the coated bulking agent particle to disperse in cold milk or other fluids.
Allowable Subject Matter
Claims 3, 8 and 19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
REASONS FOR ALLOWANCE
The following is an examiner’s statement of reasons for allowance:
After a diligent search and search updates and a diligent review of the record, no art reference was found that, taken alone or in combination with any other reference(s) anticipates or renders obvious the claimed coated bulking agent particle comprising a sugar and surface active agent coating composition and a deflavored cocoa bulking agent particle wherein in the coating composition the weight ratio of sugar to surface active agent is from 2000:1 to 4:1, wherein from 50 wt% to 100 wt% of the sugar is in crystalline form, with the proviso that the coated bulking agent particle is not present in a frozen confection product containing chocolate or chocolate-like compositions, and, further wherein:
The coated bulking agent particle comprises from 51.00 wt% to 95.00 wt% sugar, based on the total weight of the coated bulking agent particle as in claim 3;
the coated bulking agent particle comprises an agglomerated coated bulking agent particle comprising coated bulking agent particles as in claim 8; or,
wherein the coated bulking agent particle comprises from 2 wt% to 49 wt% bulking agent and from 51 wt% to 98 wt% of the coating composition, based on the total weight of the coating composition, and wherein the coated bulking agent particle comprises the deflavored cocoa powder bulking agent surrounded by the coating composition that is physically bound to the deflavored cocoa powder bulking agent as in claim 19.
WO2019/046785 A1 to St. John (St. John) discloses at Abstract a reduced-flavor cocoa for use as a bulk filler in food products, such as chocolate. At [0012], St. John discloses the deflavored cocoa bulking agent as a sugar or sucrose substitute and to reduce the calorie content of the food compositions containing it. Further, at [0018] St. John discloses its bulking agent as cocoa powder deflavored with ethanol extraction.
St. John does not disclose a coated bulking agent particle and does not disclose a coating composition for the bulking agent, or the claimed amount of the coating composition relative to the coated bulking agent particle. Also, St. John does not disclose any amount of sugar or of surface active agent in a bulking agent particle. And, St. John does not disclose an agglomerated coated bulking agent particle comprising coated bulking agent particles.
The closest art of US5342636 to Bakshi et al. (Bakshi) discloses at Abstract coated bulking agent particles wherein the bulking agents are coated in water with a coating composition of sugar additive and protein additive for use in fat or oil containing foods. At col. 2, lines 16-36, Bakshi discloses coated bulking agent particles wherein the bulking agent particles are coated with a coating composition of the sugar and a water soluble protein or surface active agent”). Further, at col. 5, lines 28-30 Bakshi discloses a total amount of additive or coating of from about 5 to 50 wt%, based on the total weight of the coated bulking agent particle. In addition, Bakshi discloses at col. 5, lines 41-44 coated bulking agent particles wherein the amount of protein to sugar in the coating ranges from 0:1 to 1:0, or a sugar to protein weight ratio of 10:1 to 1:1 Further, Bakshi at col. 4, lines 3-8 discloses bulking agent particles having a particle size of 15 to 25 µm. And, Bakshi at col. 6, lines 1-6, 45 and 57-68) discloses methods comprising spray drying wet bulking agent particles coated with the coating additive in water.
Bakshi does not disclose a deflavored cocoa as a bulking agent particle. Also, Bakshi does not disclose a coated bulking agent particle that comprises from 51.00 wt% to 95.00 wt% sugar, based on the total weight of the coated bulking agent particle; further, Bakshi does not disclose a coated bulking agent particle comprising from 2 wt% to 49 wt% bulking agent and from 51 wt% to 98 wt% of the coating composition, based on the total weight of the coating composition. Further, Bakshi does not disclose an agglomerated coated bulking agent particle comprising coated bulking agent particles.
The closest art of US2015/0024092 A1 to Strehlow et al. (Strehlow) at [0031] discloses core-shell sweetener particles having a coating of a sweetener and a core comprising (at [0038]) a soluble or insoluble fiber or oligo-saccharide particle, wherein (at [0043]) the sugar comprises sucrose, dextrose, lactose or galactose (claim 4), and wherein the product is dried and may have the sugar in crystalline form. Strehlow at [0048] discloses the coated bulking agent particles comprising at least 20 wt% or at least 40 wt% of bulking agent and not more than 80 wt% of the sweetener and does not disclose a coated bulking agent particle that is in a frozen confection. At [0052] Strehlow discloses agglomerated coated bulking agent particles.
Strehlow does not disclose a deflavored cocoa as a bulking agent particle. Also, Strehlow does not disclose a surface active agent in a bulking agent coating composition or any amount of the surface active agent in a bulking agent particle. Further, Strehlow does not disclose a coated bulking agent particle wherein from 50 wt% to 100 wt% of the sugar is in crystalline form.
US2013/0052317 A1 to Berenschot et al. (Berenschot) at [0008] discloses sweetened cocoa powder compositions comprising cocoa powder particles coated with a hydrophilic agent comprising (at [0009]) a sugar and (at [0025]) further comprising an emulsifier (“surface active agent”). Berenschot discloses at Abstract that the particles are better dispersible in milk, and, further discloses making the compositions by coating the cocoa powder (at [0046]) by spray coating, mixing or other methods known in the art and (at [0049]) milling. In Example 1, Sample 2 (S2) at [0069] and the Table accompanying, Berenschot discloses (at [0071]) coating 94 parts cocoa powder with 5 parts lecithin, followed by (at [0072]) mixing 20 wt% of the treated cocoa powder with 80 wt% extra-fine sucrose to coat the powder. In the Example 1 coating, Berenschot discloses a weight ratio of sugar and surface active agent of 80 to 20% of 5 or 80:1 (claim 1), including about 1 wt% of surface active agent.
Berenschot does not disclose a coated bulking agent particle and does not disclose a coating composition for the bulking agent, or the claimed amount of the coating composition relative to the coated bulking agent particle. Berenschot does not disclose a deflavored cocoa as a bulking agent particle. Also, Berenschot does not disclose a coated bulking agent particle that comprises from 51.00 wt% to 95.00 wt% sugar, based on the total weight of the coated bulking agent particle; further, Berenschot does not disclose a coated bulking agent particle comprising from 2 wt% to 49 wt% bulking agent and from 51 wt% to 98 wt% of the coating composition, based on the total weight of the coating composition. And Berenschot does not disclose an agglomerated coated bulking agent particle comprising coated bulking agent particles.
GB1293476 to Schapiro (Schapiro) recites coated crystalline sugar. Schapiro at page 1, lines 9-13 discloses sugar products containing water-insoluble or difficulty soluble food products to make them readily dispersible in water. Further, Schapiro at page 1, lines 44-46 discloses its sugar in crystalline form. In Example 1 on page 2, Schapiro discloses 100g cocoa powder coated bulking agent with a blend of 500g sugar and 25g lecithin, a cocoa particle content of about 20 wt%, a sugar content of about 80% by weight of the coated bulking agent particle. Further, Schapiro discloses at page 2, lines 86-96 that the proportion of surface active agent to sugar in the coating composition may vary considerably.
Schapiro does not disclose a deflavored cocoa as a bulking agent; further, Schapiro does not disclose a sugar coated bulking agent particle but rather discloses sugar as a coated substrate. Further, Schapiro does not disclose an agglomerated coated bulking agent particle comprising sugar and surface active agent coated bulking agent particles; and, Schapiro does not disclose an agglomerated coated bulking agent particle comprising coated bulking agent particles.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Claims 3, 8 and 19 are directed to an allowable product. Pursuant to the procedures set forth in MPEP § 821.04(B), claims 11-17, directed to the process of making or using an allowable product, previously withdrawn from consideration as a result of a restriction requirement, will be rejoined and fully examined for patentability under 37 CFR 1.104 when they are presented in a form that includes all the limitations of the allowable product claim for that process invention.
Response to Arguments
In view of the amendment dated June 23, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 1-5 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over GB1293476 to Schapiro in view of WO2019/046785 A1 to St. John.
Regarding the remarks accompanying the amendment dated June 23, 2026 (Reply), the positions taken in the Reply have been fully considered but are not found persuasive for the following reasons:
Regarding the positions taken in the Reply and Schapiro, the positions have been considered but are moot because the new ground of rejection does not rely on Schapiro for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the Reply at pages 7-8 and the allegation that there is no proper motivation to combine St. John and Bakshi, respectfully the position that Bakshi discloses fibrous cores actually suggests the use of deflavored cocoa powder which is reasonably expected to contain fiber. Further, Bakshi cannot be limited to preferred bulking agent cores.
Regarding the positions taken in the Reply that Bakshi seeks to reduce oil binding capacity, respectfully the position taken in no way defeats the desirability of the combination with the bulking agent of St. John. St John discloses at [0021]-[0022] use in making chocolate which is fat based, contains little water and is used in substantially the same way to make the same fat or oil based composition as in Bakshi. In fact, Bakshi at col. 4, lines 40-46 suggests that its coated bulking agent presents sugar on its surface, which is desirable in retaining the sweetness of products made in St. John while using less sugar.
Regarding the positions taken in the Reply that Bakshi does not disclose the features of claim 19, such positions are moot as the rejection citing Bakshi has been withdrawn.
Conclusion
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 1791
