DETAILED ACTION
Background
The amendment dated August 24, 2026 (amendment) amending claim 5 has been entered. Claims 5-9 and 20-22 as filed with the amendment have been examined. Claims 1-2, 4, 10-17 and 19 have been withdrawn from consideration. In view of the amendment, any outstanding claim objections have been withdrawn.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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 24, 2026 has been entered.
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 5-9 and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0202035 A1 to Dunne et al. (Dunne) in view of DE3908704 A1 to Weineke (Weineke).
All references to Weineke refer to the Derwent Clarivate machine translation, a copy of which is provided with this Office action.
Unless otherwise indicated, the Office interprets all recited wt%s without a basis as a weight %, based on the total weight of the chocolate.
Regarding instant claims 5-6, at [0049]-[0052] Dunne discloses a refined chocolate comprising (at [0030]) a sweetener powder, cocoa butter (claim 6) and at least 15 wt%, based on the total weight of the chocolate of chocolate liquor (“cocoa liquor” in claim 6) and (at [0035]) from 5 to 25 wt%, based on the total weight of the chocolate of a non-dairy milk powder as well as (at [0040]) nuts, dried fruit or dried veggies or plant protein particles having an average particle size of about 500 µm (“D90 particle size of less than 800 µm” as in claim 5). Further, at [0017] Dunne discloses an average particle size of its powders as at most 95 µm. At Example 3, Dunne discloses a milk chocolate made from 31.8 wt% cocoa liquor, 34.8 wt% sweetener, 9.94 wt% rice milk powder and 22.86 wt% cocoa butter, based on the total weight of the chocolate (claim 6), further wherein at [0051] the refined chocolate has a particle size of at most 100 µm. At Example 5, Dunne discloses a method in Example 5 at [0096] wherein all of the particles have an average particle size of less than 15 µm and the method provides a chocolate having a smooth mouthfeel.
The Office considers the Dunne powders as including its non-dairy milk powders. Accordingly, Dunne discloses non-dairy milk powders having a particle size of at most 95 µm (“having a having a D90 particle size of less than 800 µm” and a “having a D90 particle size of 400 µm”).
Further and regarding instant claims 7 and 20, Dunne does not disclose a chocolate comprising from 6 to 40 wt%, based on the total weight of the chocolate of a tigernut flour as in claim 5 or disclose a chocolate comprising from 16 to 30 wt%, based on the total weight of the chocolate of a tigernut flour as in claim 20. Further, Dunne does not disclose a chocolate comprising a tigernut flour that consists of particles having a D90 particle size of less than 800 µm as in claim 5 or a tigernut flour having a D90 particle size of less than 400 µm claim 7.
Weineke at Abstract on page 2 discloses a chocolate bar comprising chufa milk or tigernut milk.
The Office considers the claimed tigernut flour as including a powder of the tigernut milk disclosed Weineke.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Weineke for Dunne to include as its non-dairy milk powder a tigernut milk powder or tigernut flour having a D90 particle size as claimed and in the claimed amount. Both references disclose chocolate comprising non-dairy milk. The ordinary skilled artisan in Dunne would have desired to include the claimed amount of a tigernut milk as in Weineke as its non-dairy milk powder to provide a tigernut flavor and to provide body to the Dunne chocolate while maintaining a smooth texture in the resulting chocolate.
Regarding instant claims 8 and 21, the Office finds that the chocolate of Dunne as modified by Weineke is a refined chocolate from cocoa butter and cocoa liquor and includes (at [0035]) dairy free chocolate from a plant milk powder, cocoa butter and cocoa liquor and forms a product having an average particle size of less than 15 µm. Accordingly, the chocolate product of Dunne as modified by Weineke and the claimed chocolate appear to be substantially the same thing. Thus, absent a clear showing as to how the solid fat content in Dunne as modified by Weineke differs from that of the chocolate as claimed, the Office considers the chocolate of Dunne at Example 3 and [0035] as modified by Weineke at Abstract on page 2 to comprise a chocolate foodstuff having a solid fat content at 20°C ranging from 50 to 65 wt%, measured with a stabilizing method at 26°C as in claim 8 and a chocolate foodstuff having a solid fat content at 20°C ranging from 50 to 60 wt%, measured with a stabilizing method at 26°C as in claim 21. See MPEP 2112.01.I.
Regarding instant claim 9, Dunne at Example 7 and [0103] discloses a coating of a baked good centre comprising its chocolate foodstuff of Example 3 and having a particle size of less than 15 µm. Further, at [0104] Dunne discloses chocolate coatings for biscuit centres, wherein at Example 6 a biscuit comprises shortbread of about 370 g mass, wherein 125 g are butter (fat), or about 35 wt% fat, based on the total weight of the centre. The ordinary skilled artisan would have found it obvious in Dunne to coat its biscuit of Example 6 because Dunne discloses coated biscuits as desirable centres.
Regarding instant claim 22, Dunne discloses nuts as inclusions at [0057] and in Example 2 at [0090] discloses candy and nut centres. The Office considers a centre having at least 20 wt% of fat, based on the weight of the centre, as including the nut in Example 2 and [0057] of Dunne. Further, the ordinary skilled artisan in Dunne as modified by Wienecke would have found it obvious to coat its candy and nut centres with the chocolate of Example 3 of Dunne as modified by Weineke because the references disclose the Example 3 chocolate of Dunne as suitable for making a desirable coated centre.
Response to Amendment
The Declaration under 37 CFR 1.132 of Elif KOGMEN (Kogmen Declaration) filed August 24, 2026 is sufficient to overcome the rejection of claims 5-6, 8-9 and 21-22 under 35 U.S.C. 103 as being unpatentable over US2022/0202035 A1 to Dunne et al. in view of "Vegan Chocolate with Tigernut, Cranberries and Caramelized Almonds," Stella Bernrain (Stella Bernrain, swisschocolate.ch, 2 pages, (2020) al.; and, the rejection of claims 5-9 and 20-22 under 35 U.S.C. 103 as being unpatentable over "Raw Chocolate and Tiger Nut Bar - 3 Pack," from https://www.thetigernutcompany.co.uk/productlraw-chocolate-and-tiger-nut-bar/, 4 pages (2020) (Tigernutco) in view of US2022/0202035 A1 to Dunne et al. (2020). The Office finds that the claimed tigernut flour does not include ground tiger nuts as disclosed in Stella Bernrain and Tigernutco.
Regarding the position taken in the Kogmen Declaration that the tiger nut is not a nut, the Office agrees.
Further, regarding the position taken in the Kogmen Declaration that Dunne is limited to particles having a sugar content that is disclosed in Dunne at Abstract including fruit and vegetable particles having a specific total sugar content as in [0063], respectfully the Office disagrees. Dunne at [0040] discloses using particles of nuts and plant proteins, as well as fruits and vegetables generally; and, at [0075] Dunne discloses a date/carrot blend. The Office finds that the particles suitable for use in Dunne are not limited to fruit and vegetable particles having 30 to 70 wt% of sugar or limited to any specific sugar content. Accordingly, Dunne clearly includes fruits and vegetables having a sugar content that includes or is lower than or the sugar content of tigernut flour.
Response to Arguments
In view of the amendment dated March 04, 2026, the following rejections are withdrawn as moot:
The rejections of claims 5, 9 and 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for reciting an indefinite “wt%” for tigernut flour;
The rejections of claims 5-6, 8-9 and 21-22 under 35 U.S.C. 103 as being unpatentable over US2022/0202035 A1 to Dunne et al. in view of "Vegan Chocolate with Tigernut, Cranberries and Caramelized Almonds," Stella Bernrain, swisschocolate.ch, 2 pages, (2020) al.; and,
The rejections of claims 5-9 and 20-22 under 35 U.S.C. 103 as being unpatentable over "Raw Chocolate and Tiger Nut Bar - 3 Pack," from https://www.thetigernutcompany.co.uk/productlraw-chocolate-and-tiger-nut-bar/, 4 pages (2020) in view of US2022/0202035 A1 to Dunne et al. (2020).
Regarding Applicant’s positions taken with respect to Stella Bernrain and Tigernutco, the positions have been considered but are moot because 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.
Regarding the positions taken in the remarks accompanying amendment dated August 24, 2026 (Reply), the positions have been considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply that the tiger nut is not a nut, the Office agrees. Further, the Office finds that a tiger nut is a tuber.
Regarding the positions taken in the Reply and in the Kogmen Declaration asserting that Dunne is limited to grinding or including particles that have the sugar content of 30 to 70 wt%, based on the total weight of the particles disclosed in Dunne at Abstract including fruit and vegetable particles having a specific total sugar content as in [0063], the Office respectfully disagrees. The position taken misreads Dunne and fails to properly read the art of Dunne as a whole. Dunne at [0040] discloses using particles of nuts and plant proteins, as well as fruits and vegetables generally; and, at [0075] Dunne discloses particles of a date/carrot blend. The Office finds that carrots, and vegetables generally have a much lower sugar content than the 19 wt% reported by Applicants for tiger nuts. Accordingly, the particles of Dunne are not only limited to fruit and vegetable particles having 30 to 70 wt% of sugar; and Dunne clearly discloses carrots and other particles, including vegetables, nuts and proteins that have the same as or a lower sugar content than does tigernut flour.
Regarding the positions taken in the Reply at pages 7-8, the arguments relating inclusions of ground tiger nuts in the art do not apply Donne which does not incorporate its particles as inclusions.
Regarding the positions taken in the Reply alleging that applicants have demonstrated unexpectedly improved bloom and reduced brittleness via the Examples in the instant specification at Tables 2 and 3, respectfully the data presented are not found adequate to show unexpected results. The data presented compare compositions that vary from the inventive example across multiple variables including cocoa butter content, cocoa mass content, and sugar and fat content as well as tigernut flour content. Meanwhile, neither of the Examples or the Reply provide anything to explain how the one example given presents a proper side-by-side comparison with any comparative example. Further, no example addresses any chocolate product in Dunne, much less its Example 3 sugar free and high fiber chocolate which is the closest prior art of Dunne.
Regarding the rejection over "Raw Chocolate and Tiger Nut Bar - 3 Pack," from https://www.thetigernutcompany.co.uk/productlraw-chocolate-and-tiger-nut-bar/, 4 pages (2020), the Office erred by incorrectly naming the reference in the rejection. The rejection has been withdrawn. The Office was in fact attempting to refer to the art of Vegan Chocolate Tigernuts & Cacao Nibs from Chocolate & More Delights, 4 pages (2020), of record, which art is not now cited in any rejection.
Conclusion
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.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
