DETAILED ACTION
Background
The amendment dated January 20, 2026 (amendment) amending claims 1 and 7 and 11-16 and adding new claim 18 has been entered. Claims 1-8 and 18 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 Claims 9-17 have been withdrawn from consideration as drawn to a non-elected invention. In view of the amendment, all outstanding claim objections have been withdrawn.
The amendment dated January 20, 2026 is in improper form because the amendment to claim 1, at line 3 fails to underline the added text --,-- after the phrase “active agent” and fails to put the deleted matter [[;]] in double brackets. 37 CFR 1.121(c)(2).
The amendment dated January 20, 2026 is in improper form because the status identifiers for claims 9-17 fails to indicate that the claims are “(withdrawn, previously presented)”, as it should have done. 37 CFR 1.121(c)(3).
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
Claim 2 is objected to because of the following informalities:
In claim 2, at line 2 before “ratio” insert --weight --.
Appropriate correction is required.
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 1-5 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over GB1293476 to Schapiro (Schapiro) in view of WO2019/046785 A1 to St. John (St. John).
Regarding instant claims 1-5 and 18, Schapiro discloses 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 (“coated bulking agent”) with a blend of 500g sugar and 25g lecithin (“surface active agent” as in claim 5), corresponding to a ratio of sugar to surface active agent in the coating composition of 20:1 (claims 1-2), a cocoa particle content of about 20 wt%, a sugar content of about 80% by weight of the coated bulking agent particle as in claim 3 and a coating composition content in the coated bulking agent particle of about 85 wt%. 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.
Further, and regarding instant claim 18, Schapiro does not disclose a coated deflavored cocoa as a coated bulking agent particle. And Schapiro does not disclose a its bulking agent as a cocoa powder deflavored with ethanol extraction
St. John at Abstract discloses a reduced-flavor cocoa (“deflavored cocoa”) for use as a bulk filler or 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 food compositions. Further, at [0018] St. John discloses as its bulking agent a cocoa powder deflavored with ethanol extraction.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of St. John for Schapiro to coat the deflavored cocoa bulking agent of St. John as its bulking agent particle, including the cocoa powder deflavored with ethanol extraction as in St, John. Both references disclose cocoa compositions for use as a sugar replacer or sweetener having improved dispersibility in a food composition. The ordinary skilled artisan in Schapiro would desire to use a deflavored cocoa powder bulking agent as in St. John to enable production of a wider variety of reduced calorie or reduced sugar food products and products having a milder cocoa flavor as desired.
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 Schapiro as modified by St. John because St. John and Schapiro do not disclose any of its bulking agents or sugar products in frozen confections or used for frozen confections.
Regarding instant claim 4, the Office considers a generic disclosure of sugar as in Schapiro to refer to sucrose.
Claims 1, 4-8 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), of record.
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.
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 food compositions. Further, at [0018] St. John discloses its bulking agent as cocoa powder deflavored with ethanol extraction (claim 18).
Still further and regarding instant claims 4-8, 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; and, St. John does not disclose an agglomerated coated bulking agent particle comprising coated bulking agent particles as in claim 8.
Although claim 7 does not recite how or why a particle is dispersed in water, the Office interprets the particle size volume mean diameter in claim 7 as a diameter measured using light scattering.
Bakshi at Abstract discloses coated bulking agent particles wherein the bulking agents are coated in water with a coating composition of sugar (“surface active agent”) 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 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 discloses at col. 5, lines 41-44 coated bulking agent particles wherein the amount of sugar to protein in the coating composition ranges from 0:1 to 1:0, 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 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 and to comprise an agglomerated coated bulking agent particle comprising coated bulking agent particles as in claim 8. 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, to form an agglomerate from its coated bulking agent particles as in claim 8, 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 St. John as modified by Bakshi because St. John and Bakshi do not disclose any of its bulking agents or sugar products in frozen confections or used for frozen confections.
Response to Arguments
In view of the amendment dated January 20, 2026 and other reasons as indicated, the following rejections have been withdrawn as moot:
The rejections of claims 1-8 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 “ratio of sugar to surface active agent” in claim 1; and in regard to the term “frozen confection coated bulking agent particle” claim 1;
The rejections of claims 1-8 on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of US application serial no.17/435359, published as Application No. US2022/0142198 A1 to Caspar et al. (Caspar) and taken alone, or taken in view of US5342636 to Bakshi et al. because the application has been abandoned;
The rejections of claims 1-2 and 4-7 under 35 U.S.C. 103 as being unpatentable over US5342636 to Bakshi et al.;
The rejections of claims 1-8 under 35 U.S.C. 103 as being unpatentable over US2015/0024092 A1 to Strehlow et al. in view of US2013/0052317 A1 to Berenschot et al. and US5342636 to Bakshi et al.; and,
The rejection of claim 8 under 35 U.S.C. 103 as being unpatentable over US5342636 to Bakshi et al. in view of US2015/0024092 A1 to Strehlow et al.
Regarding the remarks accompanying the amendment dated January 20, 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 Strehlow and Berenschot, the positions have been considered but are moot because the new ground of rejection does not rely on Berenschot or Strehlow 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 Bakshi does not disclose a crystallized sugar in its coated bulking agent particle, the Office respectfully disagrees. Rather than a “generic spray dry” method as alleged in the Reply, Bakshi specifically discloses hot air spray drying wherein the coated bulking agent particle of Bakshi is made using 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. The spray dry temperature in example 1 of Bakshi is 217 °F, well above the temperature of 60 to 100 °C referred to in the Reply.
Regarding the positions taken in the Reply that Bakshi does not disclose the claimed deflavored cocoa as a bulking agent, respectfully the rejection does not rely on Bakshi for a deflavored cocoa bulking agent.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.E.M./Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791