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 .
Response to Restriction and Status of Claims
Applicant’s election without traverse of the invention of Group I, Claims 1-17, drawn to a composition consisting essentially of roasted and ground fruit seeds, and a consumable product comprising a filler consisting essentially of roasted and ground fruit seeds, in the reply filed 10/03/2025, is acknowledged by the Examiner.
Claims 18-42 are withdrawn pursuant to 37 C.F.R. 1.142(b) as being drawn to non-elected subject matter. The claims corresponding to the elected subject matter are Claims 1-17, and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 10/03/2025, 02/25/2025, 12/2024, 07/12/2024, 04/02/2024, 12/05/2023, and 08/14/2023 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
Claim Objections
Claims 4 and 14 are objected to because of the following informalities: Niagara is misspelled as “niagra”. Petite sirah is misspelled as “petit sirah”.
Appropriate correction is required.
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 4 and 14 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.
Claims 4 and 14 are rejected for indefiniteness for reciting “table grapes”. It is unclear what Applicant considers as table grapes. It appears that the field considers a wide range encompassed by “table grapes”. For example, one source includes Sultana and Concord as table grapes. (See Spruce Eats. Types of Table Grapes. Linnea Covington. First published 08/19/2021. Obtained on 10/30/2025 from URL:< https://web.archive.org/web/20210919054744/https://www.thespruceeats.com/types-of-grapes-5192789>). However, the claims recite concord, niagara and sultana in the alternative to table grapes. Therefore, it is unclear what is being included and excluded by the recitation of “table grapes”, making the metes and bounds of the claim unclear.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 5, 8 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Power Hungry (1 Ingredient Pepita Butter. First published Aug 25, 2020. Obtained on 10/31/2025 from URL: https://www.powerhungry.com/2020/08/25/1-ingredient-pepita-butter/), hereinafter Power Hungry.
Regarding Claims 1, 5, 8 and 15, Power Hungry anticipates the claims 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). 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 the filler.
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”.
Claims 1, 3, 8 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dogancay, R. (DE 102013002873 A1, machine translated in IP.com).
Regarding Claims 1, 3, 8 and 13, Dogancay discloses roasting aromatic grape seeds and processing to powder using coffee grinder (p. 4, Claim 1). As noted above, the instant Specification does not limit the type of filler, nor restrict the definition of a filler. Nothing precludes the use of the powdered grape seed of Dogancay to be used as the filler.
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”.
Claims 1, 8 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schnell et al. (WO 2014/130539 A1), hereinafter Schnell.
Schnell discloses methods for processing fruit seeds, such as cocoa beans or cupuacu beans (Abstract).
Regarding Claims 1, 8 and 10, Schnell teaches that cocoa beans are the principal raw material for chocolate production, and that the chocolate flavor is influenced by different factors including the roasting process [0003]-[0004]. Schell teaches roasting and milling dried fruit seeds such as cocoa beans to produce cocoa products (Abstract; [00014], [00055]; Claims 31-34). As above, the instant Specification does not limit the type of filler, nor restrict the definition of a filler. Nothing precludes the use of the roasted and milled dried fruit seeds of Schnell to be used as fillers.
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”.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 6-10, 13, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Bolenz et al. (European Food Research and Technology (2021) 247:623–636), hereinafter Bolenz.
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, 8 and 10, 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).
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%).
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).
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Bolenz, as applied to Claims 1, 3, 8 and 13, and in view of Sinrod, A. (Unlocking the health enhancing potential of grape marc through chemical and microbial analysis of its oligosaccharides and phenolic compounds. MS thesis. University of California, Davis, 2021).
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, 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Yimkis et al. (TR201602859A, machine translated in Google translate), 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 Claim 10-12, 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.
Conclusion
No claims are allowed.
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.
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, Erik Kashnikow can be reached on (571) 270-3475. 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.
/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792