DETAILED ACTION
Background
The amendment dated March 04, 2026 (amendment) amending claims 1, 5-11, 13 and 15, adding new claims 20-22 and canceling claims 3 and 18 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 Claims 1-2, 4, 10-17 and 19 have been withdrawn from consideration. In view of the cancelation of claims 3 and 18, all outstanding rejections of those claims have been withdrawn. In view of the amendment, all outstanding claim objections have been withdrawn.
Notice of Pre-AIA or AIA Status
2. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The replacement drawing sheet containing a replacement for Fig. 2 has been accepted.
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 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 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.
Regarding instant claim 5, the claim at line 1 recites an indefinite “wt%” for an ingredient because the wt% includes no basis or denominator for the percentage. Thus, for example, in claim 5, at line 2, does Applicant intend to claim a wt% based on the total weight of the chocolate, or based on the weight of the cocoa components, or based on some other weight?
Unless otherwise indicated, the Office interprets all recited wt%s without a basis as a weight %, based on the total weight of the chocolate.
Claims 9 and 22 are rejected as incorporating the limitations of a rejected base claim.
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 5-6, 8-9 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0202035 A1 to Dunne et al. (Dunne) in view of "Vegan Chocolate with Tigernut, Cranberries and Caramelized Almonds," Stella Bernrain, swisschocolate.ch, 2 pages, (2020) (Stella).
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]) milk or non-dairy milk powder as well as (at [0054]) nuts (nut flour) having an average particle size of about 500 µm (“D90 particle size of less than 800 µm” as in claim 5). At Example 3, Dunne discloses a milk chocolate made from 31.8 wt% cocoa liquor, 34.8 wt% sweetener and 22.86 wt% cocoa butter, based on the total weight of the chocolate (claim 6) made by 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.
Dunne does not disclose a chocolate comprising from 6 to 40 wt%, based on the total weight of the chocolate of a tigernut flour having a D90 particle size of less than 800 µm as in claim 5 or claim 6.
At page 2, “Ingredients” Stella discloses a chocolate comprising 10 wt%, based on the total weight of the chocolate, of ground tigernut (“tigernut flour”) and 59 wt% cocoa material from cocoa butter and cocoa mass (“cocoa liquor”), all wt%s based on the total weight of the chocolate. The Stella disclosed chocolate also includes in addition to the chocolate about 5 wt% dry cranberries and 5.5 wt% of almonds, as well as inulin and vanilla flavor. The Stella disclosed chocolate appears to comprise from 20 to 30 wt%, based on the total weight of the chocolate of a sugar sweetener. The chocolate comprises 37 wt% of carbohydrate from all sources, based on the total weight of the chocolate and appears to comprise from 25 to about 30 wt% of a sugar sweetener and comprises 40 wt% fat from cocoa butter as well as fat from cocoa mass, almonds and the ground tigernut. As listed in Example 1 at page 14 of the instant specification, ground tigernut consists of 5.68 wt.% saturated fat, 19.37 wt.% unsaturated fat, 19.4 wt.% sugars, 15.6 wt.% fibres and 61.3 wt.% total carbohydrate.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Stella for Dunne to include its tigernut flour having a D90 particle size of less than 800 µm. Both references disclose chocolate comprising cocoa butter or cocoa liquor, sweetener and added nut flours. The ordinary skilled artisan in Dunne would have desired to include the claimed amount of tigernut flour as in Stella in the particle size disclosed in Dunne to provide a tigernut flavor, or to provide the nutrition and fiber in the tigernut flour 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 Stella is a refined chocolate from cocoa butter and cocoa liquor and includes (at [0035]) dairy free chocolate from 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 at Example 3 as modified by Stella at page 2 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 Stella differs from that of the chocolate as claimed, the Office considers the chocolate of Dunne at Example 3 as modified by Stella at 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.
Claims 5-9 and 20-22 are rejected 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), of record, in view of US2022/0202035 A1 to Dunne et al. (Dunne).
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 and 20, Tigernutco discloses at page 1 a dairy free chocolate which is refined from a mixture of 19 wt% ground tigernuts (“tigernut flour” -claims 5-6 and 20), 25 wt% coconut sugar (“sweetener” in claim 6), 5 wt% cocoa nibs and the remainder as cocoa mass (”cocoa liquor” in claim 6) and cocoa butter (claim 6). The Tigernutco disclosed chocolate has a cocoa content of 52 wt%. As listed in Example 1 at page 14 of the instant specification, ground tigernut consists of 5.68 wt.% saturated fat, 19.37 wt.% unsaturated fat 19.4 wt.% sugars, 15.6 wt.% fibres and 61.3 wt.% total carbohydrate
Further, and regarding instant claim 7, Tigernutco does not disclose a chocolate comprising a tigernut flour having a D90 particle size of less than 800 µm as in claim 5 or claim 6 or a tigernut flour having a D90 particle size of less than 400 µm as in claim 7. However, the Tigernutco chocolate comprises refined tigernut flour.
Dunne at [0049]-[0052] discloses a refined chocolate comprising (at [0030]) a sweetener powder, cocoa butter and at least 15 wt%, based on the total weight of the chocolate of chocolate liquor (“cocoa liquor”) and (at [0035]) milk or non-dairy milk powder, wherein at [0051] the refined chocolate has a particle size of at most 100 µm. At Example 3, Dunne discloses a refined milk chocolate made from 31.8 wt% cocoa liquor, 34.8 wt% sweetener and 22.86 wt% cocoa butter, based on the total weight of the chocolate made by 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.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Dunne for Tigernutco to refine its chocolate so that its tigernut flour particles have a D90 particle size of less than 400 µm. Both references disclose refined dairy free chocolate comprising cocoa butter or cocoa liquor, sweetener and added flours. The ordinary skilled artisan in Tigernutco would have desired to form its refined chocolate including tigernut flour as in Dunne to have the claimed particle size to provide conched chocolate having a smooth mouthfeel.
Regarding instant claims 8 and 21, the Office finds that the chocolate of Tigernutco as modified by Dunne is a refined chocolate from cocoa butter and cocoa liquor comprising tigernut flour, cocoa butter and cocoa liquor and forms a product having the claimed D90 particle size or less. Accordingly, the chocolate product of Tigernutco as modified by Dunne at [0051] and Example 3 and the claimed chocolate appear to be substantially the same thing. Thus, absent a clear showing as to how the solid fat content in Tigernutco as modified by Dunne differs from that of the chocolate as claimed, the Office considers the chocolate of Tigernutco as modified by Dunne at Example 3 and at [0051] to comprise a chocolate 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 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 claims 9 and 22, Tigernutco does not disclose a chocolate foodstuff comprising: a) a centre comprising at least 20 wt. % of fat, based on the total weight of the centre; and b) a chocolate coating of said centre comprising at least 25 wt.% of said chocolate foodstuff as in claim 9; further, Tigernutco does not disclose a chocolate foodstuff having a centre comprising cocoa and/or nuts as in claim 22.
Dunne at Example 7 and [0103] discloses a coating of a baked good centre comprising its chocolate 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. In addition, 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 Office considers the claimed coating of a centre comprising at least 25 wt% of a chocolate foodstuff to include the coated centre or chocolate containing inclusions of Dunne. Particularly in the case of an inclusion, the chocolate foodstuff is primarily (more than 50 wt%, based on its weight) a chocolate.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Dunne for Tigernutco to coat a biscuit of Example 6 as in Dunne with its chocolate and to coat a nut as in disclosed in Dunne at [0057] and Example 2 to provide a coated centre wherein the centre comprises at least 20 wt% of fat, based on the total weight of the centre, and the coated centre comprises at least 25 wt% of chocolate, based on the total weight of the chocolate foodstuff. Both references disclose refined dairy free chocolates with additional flavorings. The ordinary skilled artisan in Tigernutco would have desired to coat a nut or biscuit with its chocolate as in Dunne to add a crunchy texture or additional flavor. Further, the ordinary skilled artisan would have desired to vary the thickness of a chocolate coating to make a chocolate foodstuff having a more luxurious chocolate quality.
Response to Arguments
In view of the amendment dated March 04, 2026, the following rejections are withdrawn as moot:
The rejections of claims 6-9 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for stating a “wt%” in claims 6-9 for an ingredient that includes no basis or denominator for the percentage; as being indefinite for reciting a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation in claims 5-9; as being indefinite for reciting the phrase "such as" in claim 6; as being indefinite for solid fat content in percent (%) that has no accompanying units in claim 8; and, as being indefinite for reciting the phrase "preferably” in claim 9;
The rejections of claims 5-8 under 35 U.S.C. 102(a)(2) as being anticipated by "Vegan Chocolate with Tigernut, Cranberries and Caramelized Almonds," Stella Barnrain, swisschocolate.ch, 2 pages, (2020), as evidenced by US2018/0295849 A1 to Earl et al.; and,
The rejection of claim 7 under 35 U.S.C. 103 as being unpatentable over US2022/0202035 A1 to Dunne et al. (Dunne) in view of "Vegan Chocolate with Tigernut, Cranberries and Caramelized Almonds," Stella Barnrain, swisschocolate.ch, 2 pages, (2020).
Regarding the positions taken in the remarks accompanying the amendment dated March 04, 2026 (Reply), the positions have been considered but are not found persuasive for the following reasons:
Regarding the remaining indefiniteness rejection, the recited “wt%” in claim 5 at line 2 remains in the claim and its lack of a basis or denominator for the wt% has not been addressed;
Regarding the position taken in the Reply and the Stella Bernrain reference (Stella), the Office finds that Stella does not disclose refining or conching its chocolate with a tigernut flour ingredient. However, all other arguments regarding the anticipation rejection over Stella are moot because that rejection has been withdrawn.
Regarding the position taken in the Reply that Dunne does not disclose additional inclusions and so cannot be combined with Stella to arrive at the claimed combination, respectfully Dunne at [0054] is not relied on for disclosing inclusions; and Dunne at [0057] does disclose inclusions. Further, regarding the position taken in the Reply that Stella does not finely grind its tigernut flour or that so doing would somehow ruin the “couverture” function in Stella, respectfully Stella is not relied on for disclosing finely ground tigernut flour. Rather, Dunne at [0054] discloses nuts, vegetables, a flavoring or a milk powder ground to a 500 µm particle size and added in a chocolate foodstuff. Further, Stella at page 2 discloses tigernut flour as a vegetable material in the claimed amount and provides multiple inclusions as fruits (cranberries) and nuts. Even if Stella cannot establish the claimed tigernut flour particle size, it does not follow that the tigernut flour of Stella is only suitable as an inclusion even if the tigernut flour is not refined with the chocolate ingredients, particularly as a flour would not be expected to form an inclusion. In view of Dunne, the ordinary skilled artisan would routinely provide milled or ground fruits, nuts and vegetables in the claimed particle size in a chocolate that is free of added sugar to enhance its smoothness.
Regarding the position taken in the Reply that the art does not disclose a tigernut flour for reducing bloom and citing the Comparative Examples in the instant specification, respectfully this position remains a bald assertion unsupported by evidence when viewed in light of Stella because none of the Comparative Examples in the instant specification contains any tigernut flour in any form. Arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II.
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.
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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.
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/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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