DETAILED ACTION
Amendments made January 14, 2026 have been entered.
Claims 67, 69, and 71-88 are pending;
Claims 83-88 have been withdrawn.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 .
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.
Claim Objections
The objections to claims 67-82 because of the following informalities have been withdrawn in light of applicant’s amendments made January 14, 2026.
Claims 80 and 81 are objected to because of the following informalities:
Claim 80 recites “a heated mixture”. Although understood in view of the claim language and disclosure, this should be amended to recite “the heated mixture” for antecedent basis.
Similarly, in claim 81, “the chocolate product from c and/or d” and “the product” should be amended to recite “the cooled mixture resulted from (c) and/or the treated mixture from (d)”; and “a heat resistant chocolate product” should be “the heat resistant chocolate product”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 69, 73, 74, and 77-82 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made January 14, 2026.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 67, 75-80, and 82 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Armstrong et al (US 2001/00125336) has been withdrawn in light of applicant’s amendments made January 14, 2026; specifically, Armstrong does not teach the provided mixture has heated until a water content of 4-20% as recited in amended claim 67, step b.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claim 71 under 35 U.S.C. 103 as being unpatentable over Armstrong et al (US 2001/00125336), further in view of Lebovitz (“The Great Book of Chocolate” Ten Speed Press 2004, pages 89-91) has been withdrawn in light of applicant’s amendments made January 14, 2026; specifically, Armstrong does not teach the provided mixture has heated until a water content of 4-20% as recited in amended claim 67, step b.
The rejection of claim 69 under 35 U.S.C. 103 as being unpatentable over Armstrong et al (US 2001/00125336) in view of Lebovitz (“The Great Book of Chocolate” Ten Speed Press 2004, pages 89-91), further in view of Kirk (“The Shelf Life of Chocolate” Chocolate University Online August 29, 2010 pages 1-4 https://www.chocolateuniversityonline.com/shelf-life-of-chocolate/) and Doguchi et al (WO 2017/1070676) has been withdrawn in light of applicant’s amendments made January 14, 2026; specifically, Armstrong does not teach the provided mixture has heated until a water content of 4-20% as recited in amended claim 67, step b.
The rejection of claim 72 under 35 U.S.C. 103 as being unpatentable over Armstrong et al (US 2001/00125336), further in view of Minifie (“Chocolate, Cocoa, and Confectionery 3rd Edition” Chapman and Hall 1989, pages 139-142) and Doguchi et al (WO 2017/1070676) has been withdrawn in light of applicant’s amendments made January 14, 2026; specifically, Armstrong does not teach the provided mixture has heated until a water content of 4-20% as recited in amended claim 67, step b.
The rejection of claims 73 and 74 under 35 U.S.C. 103 as being unpatentable over Armstrong et al (US 2001/00125336) in view of Lebovitz (“The Great Book of Chocolate” Ten Speed Press 2004, pages 89-91), further in view of Lees and Jackson (Sugar Confectionery and Chocolate Manufacture Leonard Hill 1973 page 137) and Kirk (“The Shelf Life of Chocolate” Chocolate University Online August 29, 2010 pages 1-4 https://www.chocolateuniversityonline.com/shelf-life-of-chocolate/) has been withdrawn in light of applicant’s amendments made January 14, 2026; specifically, Armstrong does not teach the provided mixture has heated until a water content of 4-20% as recited in amended claim 67, step b.
Claims 67, 71, 75, 76, 78, 80, and 82 are rejected under 35 U.S.C. 103 as being unpatentable over Latamer (US 2487931) in view of Crowley et al (US 2011/0177174).
Regarding claims 67, 75, 76, 80, and 82 Latamer teaches a method for preparing chocolate (column 4 lines 5-6) comprising:
Providing a mixture comprising:
One or more cocoa components including cocoa butter (column 1 lines 34-36 and column 3 lines 61-63)
Sugars including sucrose and one or more reducing sugars including dextrose (a monosaccharide also known as glucose) and/or lactose which was found in milk powder (column 1 lines 33-41, column 3 lines 70-75, and column 4 lines 2-4);
Water (column 2 lines 34-46 and column 4 lines 21-23); and
Milk fat which was found in milk powder (column 1 lines 33-41 and column 3 lines 70-75);
Heating the provided mixture to at least 150F (65C), including at 200F (93.3C) wherein the water content is reduced to less than 10% (claim 3, column 2 lines 42-54, column 4 lines 33-48, column 4 line 70 through column 5 line 7), i.e. heating the provided mixture at a temperature sufficiently high to effect evaporation of at least part of the water, wherein the provided mixture is heated to between 4-20% water; and
Pouring into forms, i.e. molds, and cooling the heated mixture to obtain a product with a reduced moisture content, including 6%, and less than 10% or 7%, and preferably greater than 4% which encompass the claimed range (column 3 lines 52-57, column 5 lines 8-10, Examples III, IV, and claims 1-3 and 7).
Regarding cooling the mixture from b to a temperature below 40C as recited in claim 67, as Latamer teaches forming a cooled product to be packaged for distribution (column 5 lines 8-10 and column 2 lines 5-10), wherein modified storage conditions, such as cooling and/or heating are not disclosed or required (all), one of ordinary skill in the art would understand, or alternately at least find it obvious that cooling as taught by Latamer encompass cooling to room temperature, i.e. below 40C as claimed.
Regarding step d and subjecting the cooled mixture from step c to a treatment at a temperature of 30-40C for at least 1 minute to induce formation of type V crystals as recited in claim 67, Latamer teaches the chocolate can be refined by standard procedures (column 4 lines 61-65), but is silent to the claimed limitation.
Crowley et al (Crowley) teaches cocoa butter can crystalize in 6 different forms, only one of which, type V which is most stable, is desired for the production of quality chocolate (paragraph 46). Crowley teaches chocolate with type V crystals are formed by tempering which includes heating to 45C to melt all six forms of crystals, cooling to about 27C which allow only crystal types IV and V to form, and then heating to about 31C to eliminate any type IV crystals, leaving just type V (paragraph 47).
It would have been obvious for the chocolate of Latamer which was heated above 45C to then be cooled to about 27C (step c), and then heated to about 31C in order to form a chocolate with type V crystals (step d) and thus, a high quality and stable product in view of Crowley. Although Crowley is not specific to the time for treatment, a time must necessarily be present. It would have been obvious to one of ordinary skill in the art for step d to be performed for a period of time to ensure all type IV crystals were eliminated, leaving just type V in order to complete the process taught by Crowley. Furthermore, since Crowley teaches of the same purpose for treatment as claimed and disclosed, i.e. formation of type V crystals, the claimed time of one minute or more is considered obvious over the teachings of the prior art.
Regarding the chocolate as heat resistant such that it does not melt when kept in an oven at 40C for a period of at least 30 minutes as recited in claim 67, as Latamer teaches that the product can withstand, without melting, any temperature encountered under climate conditions in any part of the world (column 1 lines 9-15 and column 2 lines 3-5), the product of Latamer would encompass a method which results in the product properties as claimed. The position is further supported as the prior art makes obvious a process of producing a chocolate that overlaps the method as claimed, and thus the same result would be expected from the process of the prior art.
Regarding cooling in a vessel, cooling tunnel, or surface as recited in claim 71, neither Latamer nor Crowley are specific to the container used for cooling, however, as the chocolate was heated, and thus, would be fluid prior to cooling, it would have been encompassed or at least obvious that the chocolate be in a vessel so that it did not spill and was contained during processing. The examiner takes official notice that vessels were known means for holding materials during processing.
Regarding claim 78, Latamer teaches based on the combined weight, the three base ingredients are 15-38% fat which is preferably cocoa butter and 35-70% sugars, wherein the fat and sugar does not exceed 95%, the balance is the powdered material which is cocoa powder and/or milk powder (column 3 lines 20-32, 61-63, and 73-75), and no other non-water ingredients are required (all). Thus, the teachings of Latamer encompass, or at least make obvious the method as comprising a mixture with 5-50% powdered material selected from cocoa powder and/or milk powder, and the cocoa components, i.e. cocoa butter and cocoa powder, would account for 20-65% of the mixture excluding water, wherein 15-38% is cocoa butter.
Claims 69, 73, 74, and 81 are rejected under 35 U.S.C. 103 as being unpatentable over Latamer (US 2487931) in view of Crowley et al (US 2011/0177174), further in view of Kirk (“The Shelf Life of Chocolate” Chocolate University Online August 29, 2010 pages 1-4 https://www.chocolateuniversityonline.com/shelf-life-of-chocolate/).
As discussed above, Latamer teaches a method for preparing chocolate comprising: a) providing a mixture; b) heating the provided mixture at a temperature sufficiently high to effect evaporation of at least part of the water; pouring into forms, i.e. molds; and c) cooling the heated mixture to obtain a heat-resistant chocolate, wherein it would have been further obvious to temper the chocolate by c) cooling and then d) heating in view of Crowley.
Latamer is silent to the mixture resulting from c and/or d as aged below 40C for at least 2 hours as recited in claim 69, to the mixture as heated to a temperature above 80C prior to aging as recited in claim 73, or to repeating steps c and/or d after the aging as recited in claim 74, or aging after molding as recited in claim 81.
Kirk teaches that age will naturally enhance the flavor of a chocolate product (page 1 lines 12-13). As Kirk teaches that shelf life of chocolates are from 6-12 months (page 1 lines 11-12 and 17) and does not teach that heating or cooling for storage is necessary (all), one of ordinary skill in the art would understand, or alternatively find it obvious that aging as taught by Kirk would encompass treatment at shelf/room temperature (about 20-22C) for up to 6-12 months. Kirk further teaches that if bloom is present on the surface of chocolate, melt, temper, and mold the chocolate again to improve the appeal of the appearance (page 1 lines 4-5 and 14-16).
Regarding aging the mixture resulting from step c and/or d as recited in claim 81, wherein aging is below 40C for at least 2 hours as recited in claim 69, it would have been obvious for the chocolate product of Latemar in view of Crowley, i.e. the chocolate produced by c and/or d poured into forms, i.e. molds, to be aged during storage, including at a temperature around 20-22C for 2 hours or more in order to naturally enhance the flavor in view of Kirk.
Regarding repeating steps c and/or d after the aging as recited in claim 74, as discussed above, it would have been obvious to age the product of steps c and/or d in view of Kirk. It would have been further obvious to repeat melting, and tempering, including steps c and d in order to remove any bloom present on the surface of the chocolate and provide the product with a more appealing appearance in view of Kirk.
Regarding the mixture as heated to a temperature above 80C prior to aging as recited in claim 73, as discussed above, it would have been obvious to age the product of steps c and/or d, and to repeat melting, and tempering, including steps c and d in view of Kirk. Latamer teaches that the product for mixing is advantageously at a temperature of at least 150F (above 66C), including for example 240F or higher (115C) to dissolve at least a major portion of the sugar (column 4 line 70 through column 5 line 2). Thus, when remelting, retempering, and remolding the aged composition of Latamer in view of Crowley and Kirk, it would have been obvious to remelt at a temperature of at least 66C, including 115C or higher prior to aging in order to ensure the sugar was dissolved in view of Latamer.
Claim 72 is rejected under 35 U.S.C. 103 as being unpatentable over Latamer (US 2487931) in view of Crowley et al (US 2011/0177174), further in view of Minifie (“Chocolate, Cocoa, and Confectionery 3rd Edition” Chapman and Hall 1989, pages 139-142).
As discussed above, Latamer teaches a method for preparing chocolate comprising: a) providing a mixture; b) heating the provided mixture at a temperature sufficiently high to effect evaporation of at least part of the water; pouring into forms, i.e. molds; and c) cooling the heated mixture to obtain a heat-resistant chocolate, wherein it would have been further obvious to temper the chocolate by c) cooling and then d) heating in view of Crowley. Latamer does not generally teach the cooling process, however, exemplifies cooling as gradual and with stirring, i.e. mixing, from a temperature of 200F (93C) (Example II), and that the chocolate may be refined with rollers after mixing in accordance with standard procedures (column 4 lines 61-69).
Minfie teaches that refining the chocolate paste is an important operation to produce a smooth texture (page 139 last full paragraph). Minifie teaches that rolling includes spreading a film of chocolate over the entire roll surface (page 141) and that each roller is cooled to dissipate heat from grinding and provide even grinding and prevent roll distortion (page 142). Minifie teaches the rolls are cooled from 49C to 26C (page 142).
Regarding cooling as comprising a first stage in a vessel with mechanical agitation to a temperature of 60-80C, it would have been obvious to cool the heated mixture, i.e. the mixture from step b, gradually with mixing to a temperature for refining, including 49C as taught by Minifie. One would have been motivated to do so in practicing the invention of Latamer because that is the method that Latamer exemplifies for a process which is not generically disclosed. It would have been further obvious to cool to a temperature for further processing, i.e. refining which is at 49C, and thus, the process step of the prior art would including gradually cooling from about 93C to 49C which would encompass cooling to the claimed range.
Regarding the cooling as including a second stage with a cooling surface, It would have been obvious to one of ordinary skill in the art for the cooled and agitated mixture of Latamer to be processed with a second cooling using a cooling surface as Latamer teaches the mixture is refined with rollers, and Minifie teaches that refining is done with cooled roller surfaces to produce a smooth texture.
Claim 77 is rejected under 35 U.S.C. 103 as being unpatentable over Latamer (US 2487931) in view of Crowley et al (US 2011/0177174), further in view of Armstrong et al (US 2001/00125336).
As discussed above Latamer teaches a method for preparing chocolate comprising: providing a mixture comprising sugars including sucrose and one or more reducing sugars including dextrose (a monosaccharide also known as glucose) and/or lactose which was found in milk powder (column 1 lines 33-41, column 3 lines 70-75, and column 4 lines 2-4).
Latamer is silent to the sucrose as 25-70% of the mixture, wherein the ratio of sucrose to the one or more reducing sugars is 50-95 to 50-5 as recited in claim 77.
Armstrong teaches a method of making chocolate products comprising providing a mixture comprising (abstract, paragraph 21, and claim 1): 3-20% one or more cocoa components (paragraph 16); 10-75% sugar which is sucrose and if desired up to 25% one or more other sugars including reducing sugars such as glucose, dextrose, lactose, fructose, invert sugar, and corn syrup solids (paragraph 14); and 1.5-7.5% water (paragraph 19). Thus, the ratio of sucrose to one or more reducing sugars would be 100:0 to 75:25.
It would have been obvious for the chocolate of Latamer to comprise a known amount of the disclosed sugars in the chocolate, including 10-75% sucrose and a ratio of sucrose to reducing sugar of 100:0 to 75:25 if desired as taught by Armstrong. To use a known amount of disclosed ingredients would have been obvious to one of ordinary skill in the art.
Claim 79 is rejected under 35 U.S.C. 103 as being unpatentable over Latamer (US 2487931) in view of Crowley et al (US 2011/0177174), further in view of Lees and Jackson (Sugar Confectionery and Chocolate Manufacture page 141).
As discussed above, Latamer teaches a method for preparing chocolate comprising: a) providing a mixture; b) heating the provided mixture at a temperature sufficiently high to effect evaporation of at least part of the water; pouring into forms, i.e. molds; and c) cooling the heated mixture to obtain a heat-resistant chocolate, wherein it would have been further obvious to temper the chocolate by c) cooling and then d) heating in view of Crowley.
Latamer nor Crowley are specific to mechanically agitating in step d) with stirring and/or kneading as recited in claim 79.
Lees teaches that the melting kettle for tempering must be continuously and efficiently stirred (page 141, paragraph 2).
Regarding said treatment in d as comprising mechanically agitating the mixture with stirring and/or kneading as recited in claim 79, it would have been obvious during tempering, i.e. including step d as taught by Latamer in view of Crowley to include mechanical stirring as Lees teaches the melting kettle must be continuously and efficiently stirred. Furthermore, it is noted that the use of mechanical stirring to replace manual stirring would not patently distinguish the claims as both would accomplish the same result of stirring. Applicant is referred to MPEP 2144. In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958); The court held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art.
Response to Arguments
Applicant’s arguments have been considered but are moot because the previous rejections have been withdrawn in light of applicant’s amendments as discussed above. The new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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 at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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