DETAILED ACTION
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 .
Status of the Claims
Receipt of Remarks/Amendments filed on 06/01/2026 is acknowledged. Claim 10 is cancelled. Claims 18-42 are withdrawn. Claims 1, 4-5, 8, and 14-15 have been amended. Claim 43 is new. Claims 1-9, 11-17, and 43 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/01/2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
Modified Rejection As Necessitated by the Amendment Filed 06/01/2026
Claim Objections
Claim 12 is objected to because of the following informalities: Claim 12 is objected to under 37 CFR 1.75(c) as being in improper form because the claim depends on cancelled Claim 10. See MPEP § 608.01(n). For compact prosecution, the Examiner will interpret these claims to depend from independent Claim 8.
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 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Power Hungry (Of record) in view of Wang, J. (CN 108402433 A, Machine Translated in WIPO).
Regarding Claims 1 and 5, Power Hungry renders the claims obvious by teaching a 1-ingredient pumpkin butter (p. 1, Title). Power Hungry teaches first roasting the pepitas, and grinding in a blender (pp. 6-9).
Power Hungry does not expressly teach caustically treating the pumpkin seeds prior to roasting. Wang teaches soaking the pumpkin with seed in water with sodium carbonate, and removing the pulp (Claim 1, S1). Wang also teaches roasting the pumpkin seeds (Claim 1, S3). Wang teaches that this step elutes the pulp, i.e. is used to completely remove the pumpkin flesh (Description, p. 1, step 1). Hence, one with ordinary skill in the art would have applied the known technique of caustically treating the pumpkin seeds prior to roasting, adapting the teaching of Wang to the teachings of Power Hunger. It can be expected that using this technique would lead to successful elution of pumpkin pulp leaving the seeds for roasting. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Claims 8, 15, and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Power Hungry in view of Wang, as applied to Claims 1 and 5 above, and in view of Live-in Kitchen (Pumpkin Seed Butter Cups Published 09/30/2021. Obtained from URL:<https://theliveinkitchen.com/pumpkin-seed-butter-cups/>. Obtained on 07/06/2026).
The teachings of Power Hungry and Wang have been set forth supra.
Regarding Claim 8, the instant Specification does not limit the type of filler, nor restrict the definition of a filler. Nothing precludes the use of the ground pumpkin of Power Hungry to be used as a filler for any food composition including chocolate composition, as taught by Live-in Kitchen. Live-in Kitchen teaches pumpkin seed butter cups, showing the pumpkin seed butter filling inside the chocolate cups (p. 2). Because the ingredient lists chocolate, Claim 43, which requires cocoa flavor, is also obvious.
Regarding Claim 15, Power Hungry has rendered the seeds from pumpkin obvious (p. 1).
Claims 1-3, 6-9,13, 16-17, and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Bolenz et al. (Of record), hereinafter Bolenz in view of Aksoylu et al. (Akademik Gida 11(2) (2013) 70-79), hereinafter Aksoylu.
Bolenz discloses milk chocolate enriched with grape pomace products (Abstract). Grape pomace is a new ingredient for the chocolate industry, and Bolenz looks to the particle size distribution, flow properties, total phenol content, antioxidative capacity and sensory perception in their incorporation into milk chocolate (p. 624, L. Col. last paragraph).
Regarding Claims 1 and 8 , Bolenz teaches grape pomace product as an ingredient for incorporation into milk chocolate (p. 624, L. Col. last paragraph; p. 625, Recipes and materials 1st and 2nd paragraphs). The pomace product is mixed with cocoa butter, and fine grinding was performed, and the masses used in a conching step or mixed into the finished chocolate (p. 5, R. Col., 2nd and 3rd paragraph). Bolenz also teaches flour from seeds, which the Examiner interprets to mean whole seeds, and that the grape seeds are obtained from the pomace, which are dried and sieved, and resulting seeds milled to flour (Abstract; p. 624, 1st paragraph).
Regarding the “consisting essentially of” transitional phrase in Claims 1 and 8, the pomace product does not include any additives. Bolenz teaches that its milk chocolate recipes contain 20.91% added foodstuff including varying contents of grape products (3.5–10%).
Bolenz does not teach caustic treatment and roasting the grape seeds.
Regarding the caustic treatment and roasting, Aksoylu cures the deficiency of Bolenz. Aksoylu recognizes that cocoa and red grapes contains flavonol bioactive compounds (Abstract; p. 2, L. Col., 2nd paragraph). Aksoylu teaches fermentation and alkalization have significant effects on flavonol contents of cocoa beans, noting that catechins are susceptible to alkaline pH (p. 72, R. Col., 1st paragraph). Oxidation of catechins reduces the bitterness and astringency in cocoa beans, which appears to occur during fermentation, at alkaline pH conditions, and during baking and roasting (p. 72, R. Col., 1st paragraph; p. 75, L. Col.). Similar decrease in catechin content is reported by Aksoylu for thermal processing of grape seed flour by heating from 120 ˚C – 240 ˚C (p. 74, L. Col.).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Aksoylu with Bolenz, and apply alkalization and roasting to oxidize the catechins and decrease the bitter taste in grape seed compositions.
Regarding Claims 2-3, 6-7, 9, 13, and 16-17, Bolenz relates that during the winemaking, 20–30% of waste material accrue of grape pomace including skins, seeds and stems, and that the European wine industry produces 4M tons of grape pomace per year (Introduction, 1st paragraph). Bolenz teaches that grape pomace mainly consisting of peels and seeds, can be used in chocolate products to increase its polyphenol content and to get health benefits, and that dark chocolate and red wine have similar health benefits (p. 623, R. Col., 2nd paragraph to p. 624, 1st paragraph). Bolenz teaches that grape seeds are obtained by sieving and then milled to flour (p. 624, 1st paragraph and last paragraph; p. 629, R. Col. 1st paragraph).
Bolenz teaches varying particle size of chocolates with grape seed flour that are pre-ground and not pre-ground (Table 1). The target size is that for 90% of the particles to be <30 µm (p. 627, R. Col., 2nd and 3rd paragraphs). Table 1 shows that the pre-ground and not pre-ground products have a similar X90 of 23 ± 2 µm, (p. 629, R. Col. 2nd and 3rd paragraphs; Figs. 1 and 2).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use grapes seed in chocolate in order to help address the waste produced during the winemaking process. One would have been motivated to substitute the roasted and milled cocoa bean powder with roasted ground grape seed flour in chocolate products not only to upcycle the seeds from winemaking, but because Bolenz has that that chocolate and red wine have similar health benefits. A nice side-effect might be the principally inexpensive raw materials (p. 634, L. Col., 1st paragraph).
Regarding Claim 43, because Bolenz teaches mixing the seed flour with cocoa butter, the cocoa flavor is obvious. Because Bolenz teaches the same components, the composition must necessarily have the same cocoa flavor. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594).
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Bolenz in view of Aksoylu, as applied to Claims 1-3, 6-9,13, 16-17, and 43, and in view of Sinrod, A. (Of record).
The teachings of Bolenz have been set forth supra. Bolenz is silent on the grape seed varietal.
Sinrod describes the characterization study of chardonnay marc, which is the combination of grape skins, seeds, and stems left after the juice pressing (p. iii, Abstract).
Regarding Claims 4 and 14, Sinrod teaches that chardonnay seeds contain more protein, fat, and polysaccharides than the seedless marc which had more carbohydrates and sugars (p. iii, last paragraph). Sinrod teaches that chardonnay seeds beneficially altered rodent gut microbiomes by promoting commensal bacteria growth, including Bifidobacterium, while inhibiting pathogenic bacteria (p. 4, last paragraph). Sinrod also teaches that the marcs contain antioxidant phenolics with many health benefits, e.g. anti-inflammatory and helps mitigate obesity and diabetes, and recognizes their current use in the market in chocolate bars (p. 3, entirety; p. 5, 1st paragraph). Sinrod’s phenolic analysis of chardonnay marc also shows that the majority of chardonnay marc’s phenolics come from its seed fraction, containing more than seven times the phenolics concentration of the seedless marc (p. 17, Section 3.2; Figure 6). Sinrod relates that chardonnay seed extract had more than 90% and approximately 40% the phenolics content of cocoa powder and green tea by dry weight (p. 18, last paragraph).
Sinrod already comprehend the use of grape marcs in chocolate. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Sinrod with Bolenz and use chardonnay variety as the variety of grapes seed flour in the chocolate composition. One would have been motivated to do so because Sinrod has taught the many benefits provided by chardonnay grape seeds from promoting commensal bacteria growth and inhibiting pathogenic bacteria, to having high concentration of beneficial phenolic compounds.
Claims 8, 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Yimkis et al. (Of record), hereinafter Yimkis.
Yimkis discloses the production of grape seed milk caramel filled chocolate, produced by preparing a grape seed milk caramel filling from grape seed powder (Abstract).
Regarding the “consisting essentially of” transitional phrase in Claim 8, Yimkis teaches grape seed powder as an ingredient to be added to the milk caramel, and to make a filling caramel material to be injected in the chocolate; the grape seed powder does not include any additives prior to addition to the milk caramel (Abstract; p. 4, 2nd paragraph; Claim 2). In the absence of a definition in the Specification, the Examiner interprets the grape seed powder ingredient to be encompassed by “filler”.
Further regarding the “consisting essentially of” transitional phrase in Claim 8, according to the MPEP, the transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. See MPEP 2111.03. However, in the instant Specification, the Applicant did not provide any indication of what the basic and novel characteristics of the claimed invention are that would be materially affected. Therefore, it is unclear what materials would be included and excluded. As such, the recitation of “consisting essentially of” will be interpreted as “comprising”.
Regarding Claims 8 and 13, Yimkis teaches the preparation of grape seed milk caramel by mixing milk caramel (75%) and grape seed powder (25%).
Regarding the caustic treatment and roasting, Aksoylu recognizes that cocoa and red grapes contains flavonol bioactive compounds (Abstract; p. 2, L. Col., 2nd paragraph). Aksoylu teaches fermentation and alkalization have significant effects on flavonol contents of cocoa beans, noting that catechins are susceptible to alkaline pH (p. 72, R. Col., 1st paragraph). Oxidation of catechins reduces the bitterness and astringency in cocoa beans, which appears to occur during fermentation, at alkaline pH conditions, and during baking and roasting (p. 72, R. Col., 1st paragraph; p. 75, L. Col.). Similar decrease in catechin content is reported by Aksoylu for thermal processing of grape seed flour by heating from 120 ˚C – 240 ˚C (p. 74, L. Col.).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Aksoylu with Yimkis, and apply alkalization and roasting to oxidize the catechins and decrease the bitter taste in grape seed compositions.
Regarding Claim 11-12, Yimkis teaches the recommended composition of grape seed milk caramel filled chocolate in % by mass: cocoa mixture (35%), which encompasses the optional cocoa solids; sugar (34.5%), which is within or near the amount of filling claimed; cocoa butter (10%), lecithin (0.5%), and grape seed milk caramel filling (20%), which is within or near the amount of filling claimed.
Regarding the claimed amounts of cocoa butter claimed, while the exact amount is not disclosed by Yimkis, it is generally noted that differences in amounts do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Given that applicant did not point out the criticality of cocoa butter amount of the invention, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine the optimum cocoa butter amount based on desired consistency, flavor, texture etc. NOTE: MPEP 2144.05.
Response to Remarks:
The crux of Applicant’s argument with regards to the 102 and 103 rejections appears to be centered around the amended feature of the claims, which now requires that the fruit seeds be caustically treated prior to roasting.
Applicant’s arguments have been considered but are moot because the new ground of rejection supra have been issued as necessitated by the amendment, and now addresses the amended feature.
Applicant appears to argue that Bolenz’s also fails to disclose or even suggest roasting whole grape seeds, and that there is no motivation to roast the grape seed flour and use that roasted grape seed flour as a substitute for roasted and milled cocoa bean powder because Bolenz teaches using a drying cabinet at 60 °C to dry grape pomace, which Applicant does not equate to roasting whole grape seeds as amended.
The Examiner has weighed the argument, but was not persuaded. Alkalization and roasting are known techniques for treating grape seed as described by Aksoylu and as discussed in the modified rejection supra.
The Examiner also notes that using a drying cabinet at 60 °C to dry grape pomace prior to sieving to separate the whole grape seeds would mean roasting the whole grape seeds along with the peel. While Applicant appears to suggest that use of a drying cabinet at 60 °C is not the same as roasting, the instant disclosure indicates that “any suitable roasting temperature can be used” and gives examples of roasting temperature “e.g., about 300°F to about 450°F, about 325°F to about 425°F, or about 350°F to about 400°F”, but does not limit the temperature in the claims (p. 20). Applicant is reminded that one cannot import limitations in the specification in to the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues that modifying Bolenz to include a roasting step is inconsistent with Bolenz’s teaching that the beneficial polyphenol of the grape seeds, depends on "gently drying" the grape seed products.
As stated supra, Applicant has not indicated any roasting temperature in the claims, and has indicated that “any suitable roasting temperature can be used” (p. 20). Low roasting temperatures, as low as 145 ˚F, are known as evidenced by Off Family Ranch (Cooking – Off Family Ranch Cooking Tips and Tricks. Obtained on 07/10/2026 from Wayback Machine URL: <https://web.archive.org/web/20180819195819/http:/offfamilyranch.com/cooking/>, Aug. 19, 2018). This is near the 60 °C (140 ˚F) taught by Bolenz. One of ordinary skill in the art would find it obvious to adjust the temperature as a matter of experimentation and optimization. The adjustment of particular conventional working conditions, including temperature, is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Conclusion
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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