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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 46-61 and the tuber species in the reply filed on November 21, 2025 is acknowledged. Claims 62-64 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Furthermore, it is noted that the species restriction has been withdrawn in light of further consideration. Specifically, the species restriction has been withdrawn as Rikon (WO 80/0236) teaches a variety of flours including tuber, rice, wheat, soy, etc. were known to be used interchangeably in imitation cocoa powder (abstract and page 14 second paragraph).
Claim Objections
Claims 48 and 50 are objected to because of the following informalities:
Claims 48 and 50 are missing a period at the end of the sentence.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 46-61 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 46 recites the broad recitation of a moisture content below about 5%, and the claim also recites preferably about 1-3% which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Claims 48, 51, and 54 are rejected for substantially the same reasons.
Claim 47 recites the term “allergen free”. Although the term is defined in the instant specification to mean the absence of any EU declared allergens, page 8 line 23, as what is and is not declared an allergen could change over time, the scope of the claim is unclear.
Claim 60 recites the term “and/or” in a listed composition. It is unclear as to if the term applies to only the carbohydrate content and total sugars (c and d) such that a and b are both required, as well as c and/or d, or as to if the term applies to all components listed including the fat, protein, carbohydrates and sugars (a-d), such that only one or more of the list components is required. For the purpose of examination the claim will be considered in the broadest reasonable sense, wherein the term is in reference to each element recited.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 58 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 58, which depends from claim 57, recites further limitations of addition of the proteolytic enzyme and/or the protein hydrolysates, thus encompasses both steps with the inclusion of “and”. Thus, claim 58 is rejected to under 112d as claim 57 only requires treatment with a proteolytic enzyme or addition of protein hydrolysates, and does not include both in combination.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 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)(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.
Notes:
“Crumb” is defined in the specification as a co-dried mixture comprising sugar, dairy and/or plant milk, and optionally cocoa solids (page 8 lines 1-2).
“Plant-based milk” is defined as an aqueous suspension of plant material (page 7 lines 11-12).
“Allergen free” is defined as the absence of any EU declared allergens (page 8 line 23).
Claim 50 recites “the final crumb”. Although “a final crumb” was not previously recited, this term would be understood in view of the claims and disclosure. Regardless, it is suggested that applicant amend claim 46, from which claim 50 depends to recite “a final crumb”, or amend claim 50 to recite “the dried crumb”.
Claims 46, 48, 50, 51, and 55 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Willberg et al (WO 2021/069804).
Regarding claim 46, Willberg et al (Willberg) teaches a process of producing a crumb for chocolate production based on plant milk comprising:
Providing a mixture of sugar dissolved into water and a grain-based material, i.e. a plant-based milk;
Enzymatically reducing the sugars in the aqueous medium from the grain-based starch by enzymatic action, i.e. liquification and/or saccharification; and
Forming a crumb by: evaporating to form a condensed plant-based milk, heating, and drying to a moisture content of about 0.5-5% (abstract, paragraphs 14, 31, 37, 45, 47, 49, 50, 52, 53, 58, 64, 68, 70, 80-83, and 92, and claims 1, 3, 6, 8, 13, and 15).
Regarding claim 48, Willberg teaches the plant-based milk comprises plant material from nuts (paragraphs 76 and 77 and claims 10 and 11).
Regarding claim 50, as discussed above, Willberg teaches the addition of a sweetener, which is required by the instant definition of crumb. Willberg further teaches the final crumb is formed from a sugar content of about 25.5-70.5% (paragraphs 94 and 110), and thus would encompass the claimed method step of adding a sweetener to obtain a final crumb with a total carbohydrate mass within the claimed range. It is noted that the other ingredients disclosed by Willberg would not be expected to remove the carbohydrate level outside the claimed range. For example, even if the grain based contributed further carbohydrates, as the water content was about 5% and the cocoa mass, i.e. cocoa butter was 0-18.5%, the total carbohydrate level in the product produced by the method of Willberg would still encompasses the claimed range of between about 30-85%.
Regarding claim 51, Willberg teaches that the sweetener is sucrose (paragraphs 37 and 51).
Regarding claim 55, Willberg teaches that the enzymes include amylase and glucanase (paragraph 58).
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.
Claims 47, 52, 54, 56, 57, 59, and 61 are rejected under 35 U.S.C. 103 as being unpatentable over Willberg et al (WO 2021/069804).
As discussed above, Willberg teaches a process of producing a crumb based on plant milk.
Regarding claim 47, as discussed above, the claimed limitation is unclear. Regardless, as Willberg teaches that an ever number of people need vegan diets, or one which avoid milk or milk based products due to health reasons including allergies, wherein the present invention aims at filling the need (paragraphs 4 and 11), and wherein Willberg does not require known allergens, such as dairy or soy in the product, to form an allergen free product in order to satisfy the need of consumers with allergies would have been an obvious suggestion of the prior art.
Regarding claims 52 and 54, as discussed above, Willberg teaches of evaporation, heating, and drying to a moisture content of about 0.5-5%. Willberg further teaches that evaporation is under vacuum, i.e. a reduced pressure, wherein after vacuum the crumb is at a temperature of about 50-80C (paragraphs 80-82). Thus, at least at some point during evaporation, it would have been expected or alternatively obvious for the forming crumb to be at a temperature of about 50-80C and for drying to be at a temperature of about 50-80C, which encompass the claimed ranges. To use a disclosed temperature for processing the materials would have been an obvious suggestion of the prior art as it would be expected that said materials would dry and tolerate it.
Regarding claim 56, Willberg teaches that the plant-based milk comprises reducing sugars, including maltose, after liquification and/or saccharification (paragraphs 37, 49, and 51). Willberg is not specific to the amount of reducing sugars in the plant-based milk as recited in claim 56. However, Willberg teaches that the reaction of reducing sugars generates caramel flavor in the crumb which provides for a unique caramelized flavor in chocolate (paragraphs 3 and 36). Willberg teaches that enzymatic treatments of the plant-base milk may increase the level of reducing sugars to obtain more reactive components for the reaction (paragraphs 58 and 68) and that the flavor properties may be adjusted by adjusting the amount of reducing sugars (paragraphs 158 and 200). Thus, the claimed limitation is considered obvious over the teachings of the prior art as it would have been obvious to adjust the amount of reducing sugars in the plant-based milk depending on the desired flavor and color imparted during roasting as taught by Willberg.
Regarding claim 57, as Willberg teaches that the process preferably is free of protein hydrolysates (paragraph 23), the method of Willberg would encompass or alternatively make obvious, in non-preferred embodiments, the addition or formation of protein hydrolysates. It is noted that, “nonpreferred disclosures can be used. A nonpreferred portion of a reference disclosure is just as significant as the preferred portion in assessing the patentability of claims.” In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960).
Regarding claim 59, Willberg teaches that the process comprises at least one defatting step (paragraph 77), but is silent to the plant-based milk as reduced to no more than 30% fat dry weight as recited in claim 59. However, as Willberg teaches that the plant base milk comprises sugar and the grain material, wherein the grain may be selected from low fat containing products, such as wheat which only contains about 2% fat, the process with the claimed fat content is considered encompassed, or alternatively obvious over the teachings of the prior art.
Regarding claim 61, Willberg is not specific to grinding the particle to a size less than 300 microns. However, as Willberg teaches that the grain-based crumb is ground to pieces of desired size (paragraph 14), the claimed limitation is considered obvious over the teachings of the prior art. The position that the claimed limitation is obvious over the prior art is further supported as Willberg teaches in an example that a chocolate containing the crumb, and thus, the crumb, has a particle size of 27.8um (paragraph 117).
Claim 49 is rejected under 35 U.S.C. 103 as being unpatentable over Willberg et al (WO 2021/069804), further in view of Rikon (WO 80/02636).
As discussed above, Willberg teaches a process of producing a crumb based on plant milk comprising grains and nuts.
Willberg is silent to the plant-based milk as comprising tiger nut, rice, or a combination thereof, or tiger nut and sunflower seed as recited in claim 49.
Rikon teaches imitation cocoa powder for forming chocolates and milk crumbs wherein a wide variety of flours can be used including grains, rice, and tuber flours (abstract, page 7 lines 26-29, and page 14 lines 7-16).
It would have been obvious for the plant-based milk as taught by Willberg to comprise rice flour, as it was a known and successful flour for the use in making plant-based milk crumb in view of Rikon. To use one known plant source or another would have been obvious to one of ordinary skill in the art as Rikon teaches a variety of flours are available for such.
Claim 53 is rejected under 35 U.S.C. 103 as being unpatentable over Willberg et al (WO 2021/069804), further in view of Olsen (US 2008/0286845).
As discussed above, Willberg teaches a process of producing a crumb based on plant milk comprising grains and nuts. Willberg further teaches that the plant base, i.e. the plant product before evaporation, may be fermented (paragraphs 31, 32, 37, 49, 52, 55-58, 63, and 64).
Willberg is silent to the process as including the addition of an antifoaming agent prior to the evaporation step as recited in claim 53.
Olsen teaches that when fermenting a plant material, which may be processed with liquification and/or saccharification, the use of an antifoaming system is desired to prevent overflow and decreased capacity (abstract and paragraphs 2-4, 12, 53, 54, 58, and 61).
It would have been obvious for the fermentation of Willberg, which is before the evaporation step to include the addition of an antifoaming agent to prevent overflow and decreased capacity in view of Olesen.
Claims 57 and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Willberg et al (WO 2021/069804), further in view of Hansen et al (EP 1308094). It is noted that the rejection of claim 57 is an alternative to that as presented above.
As discussed above, Willberg teaches a process of producing a crumb based on plant milk for chocolates, wherein it would have been encompassed or alternatively obvious to have protein hydrolysates in non-preferred embodiments.
Willberg is not specific to the process as including the addition of papain or carboxypeptidase and/or a soy, pea, or hemp protein hydrolysate as recited in claim 58.
Hansen et al (Hansen) teaches manipulation of chocolate crumb to enhance flavor wherein the crumb contains 0.1-10% vegetable protein hydrolysates including soy and pea to generate a pool of free amino acids and peptides for Maillard reactions in chocolate flavor reactions (abstract and paragraphs 19-20).
It would have been specifically obvious for the plant-based milk of Willberg to include soy and/or pea protein hydrolysates in order to enhance the flavor and provide a further pool of amino acids and peptides for Maillard reactions in chocolate flavor in view of Hansen.
Claim 60 is rejected under 35 U.S.C. 103 as being unpatentable over Willberg et al (WO 2021/069804), further as evidenced by USDA (“Flour, oat, whole grain” pages 1-3 printed February 2026 https://fdc.nal.usda.gov/food-details/2261421/nutrients).
As discussed above, Willberg teaches a process of producing a crumb based on plant milk for chocolates.
Regarding claim 60, the claimed limitation is unclear for the reasons discussed above. Regardless, Willberg teaches that the grain-based crumb comprises or consists essentially of: 10-30% grain based dry material base, which is typically grain flour, including oat flour, 25-71% sugar which is a carbohydrate, 0-4% vegetable fat, and 0-20% cocoa mass/powder (paragraphs 56 and 94). As evidenced by USDA, oat flour comprises about 13.2% protein, 6.3% fat, and 69.9% carbohydrates, and thus the 10-30% grain base taught by Willberg would contribute about 1.3-4% protein, about 0.6-2% fat, and about 7-21% carbohydrates, and the composition of Willberg would encompass, or at least make obvious a crumb with an overlapping composition as claimed.
Conclusion
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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792