DETAILED ACTION
Amendments made January 19, 2026 have been entered.
Claims 1-20 are pending;
Claims 11-15 have been withdrawn.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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-10 and 16-20 in the reply filed on January 19, 2026 is acknowledged. The traversal is on the ground(s) that the groups of inventions have unity of invention because Group II, the product claims have been amended to require the method of claim 1 of Group I. This is not found persuasive. First it is noted that the process steps recited in a product by process claim, such as recited in group II, are not necessarily required. Rather, the product claimed is considered and the manner in which the method impacts said product. Regardless, the method recited in claim 1 is considered obvious over the prior art for the reasons discussed below and thus, even if the method were required, the groups of invention would not be linked by a special technical feature.
The requirement is still deemed proper and is therefore made FINAL. Claims 11-15 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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 3, 8-10, and 18 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.
Claim 3 recites “the cocoa solids are alkalized to an L-value of equal to or less than 7, an “a” value in the range from 1 to 3, and/or a “b” value in the range of 1 to 3. It is unclear as to if the term “or” within “and/or” is tied to both the L value and the “a value” or just the “a” value. Claim 18 is rejected for substantially the same reasons.
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 8 recites the broad recitation “further separation of fat”, and the claim also recites “preferably by means of extraction” 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. Claim 10 is rejected for substantially the same reasons due to the broad recitation of “fat” and the narrow limitation “in particular cocoa butter”.
Further regarding claim 10, as the claim recites that the cocoa solids are combined with a fat, it is unclear as to if the resulting product recited in claim 1, a powder remains, or if a different product, such as a chocolate is being claimed as the result. It is noted that if a method of forming a different product is claimed, it would not have unity of invention with the claimed process.
Regarding claim 9, the phrase "for example"/ “e.g.” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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)(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.
Note: The term “dark cocoa powder” was a known term in the art and is considered to be a cocoa powder which is alkalized. Furthermore, the recitation as claimed is not indefinite as the claim also specifically recites the darkness of the product of the claimed method in terms of L-value which is a measure of lightness and darkness.
Claims 1-3, 5, 16-18, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kruithof (WO 2018/237215)
Regarding claims 1-3 and 16-18, Kruithof teaches a method of producing a dark (i.e. alkalized) cocoa powder comprising: mixing 1-10% of an alkalizing agent with cocoa material (title, abstract, and paragraph 16). Kruithof teaches that the cocoa material used in the alkalizing step comprises cocoa beans and/or cocoa nibs (paragraph 15), both of which contain cocoa solids. Thus, the teachings of Kruithof encompass mixing 1-10% of an alkalizing agent with cocoa solids. Kruithof teaches the cocoa solids, which are within the cocoa material, are processed to have less than 2% cocoa butter by weight, thus encompassing a step of separating cocoa butter from cocoa solids (paragraphs 24 and 25). It is noted that the term “cocoa solids” is broad and encompasses both the cocoa solids before and/or after alkalization. Kruithof teaches the cocoa solids have an L value of 12 or less, preferably 9 or less, and more preferably 7 or less, including from 1-6; an “a” value of 2.0-2.0, and a “b” value of 1.0-7.0 (paragraph 27).
Regarding claims 5 and 20, Kruithof teaches that the alkalization is at 85-180C for 10-500 minutes and at a pressure of up to 12 bar (paragraphs 18 and 20).
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 4, 10, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kruithof (WO 2018/237215).
As discussed above, Kruithof teaches a method of producing a dark (i.e. alkalized) cocoa powder comprising: mixing an alkalizing agent with cocoa material including cocoa solids.
Regarding the particle size of the solids as in a range of from 15um to 1.5mm as recited in claim 4, preferably in a range of 20um to 1.0mm as recited in claim 19, Kruithof is not specific to a general particle size range of the solids, however, does exemplify the solids as ground in a mill using a 0.5mm sieve (paragraph 41). Thus, it would have been obvious for the cocoa solids as taught by Kruithof to be a size of about 0.5mm or less as exemplified. Wherein a reference does not teach a general range for processing conditions it would have been obvious and well within the purview of one of ordinary skill in the art to use the ranges found in the disclosed examples. Thus, the claimed range is considered obvious over the teachings of Kruithof. It is again noted that the term “solids” is broad and would be understood to encompass both the cocoa solids before and/or after alkalization.
Regarding the alkalized cocoa solids as added to fat as recited in claim 10, as discussed above, the claimed limitation is unclear. Regardless, as Kruithof teaches that the alkalized cocoa materials, i.e. the cocoa powder, disclosed can be used in the manufacture of food and beverage, including chocolates, bakery products, and compound coatings (paragraph 31), the teachings of Kruithof encompass or at least make obvious combining the alkalized cocoa solids with fat as claimed. The Examiner takes official notice that chocolates, bakery products, and compound coatings were known to comprise fats, and thus in forming the disclosed products, the alkalinized cocoa would necessarily be combined with fat.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Kruithof (WO 2018/237215), further in view of Adomako (“Knowing Your Cocoa And Its Quality Parameters: The PH Factor https://thecocoapost.com/knowing-your-cocoa-and-its-quality-parametres-the-ph-factor/, pages 1-4 February 19, 2020).
As discussed above, Kruithof teaches a method of producing a dark (i.e. alkalized) cocoa powder comprising: mixing an alkalizing agent with cocoa material including cocoa solids, wherein the cocoa material from which the solids are derived is selected from cocoa beans and/or cocoa nibs. It is noted that although the term “the cocoa” was not explicitly recited before, it would have been understood that the cocoa butter and cocoa solids which were separated necessarily come from a cocoa.
Kruithof is silent to the cocoa beans or nibs as having a pH of 5.8-6.3 and/or containing 3-35% free fatty acids as recited in claim 6.
Adomako teaches that lower pH in cocoa increases it’s sourness and astringency, which is a dry, rough feeling on the tongue and mouth, and that higher pH intensifies the dark color in cocoa which tends to influence the flavor and taste of the cocoa depending on the concentration (pages 3-4, Effects of Ph on Cocoa). Adomako teaches that a bean pH of 5.3-5.5 was found to have better taste compared to chocolates produced from a bean having a pH of 4.4-4.7 (pages 2-3, Cocoa Bean acidity paragraphs 6 and 7).
Regarding the cocoa beans or nibs as having a pH of 5.8-6.3 and/or containing 3-35% free fatty acids as recited in claim 6, it would have been obvious for the cocoa beans of Kruithof to have a pH above 5.3-5.5 in order to have beans that would provide a good taste and intensify the dark color in cocoa which tends to influence the flavor and taste in view of Adomako. Furthermore, as Kruithof teaches that the alkalized powder has a pH of less than 8.0 (paragraph 28), one of ordinary skill in the art would understand that the product before alkalizing also had a pH of less than 8, thus making the claimed range further obvious.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Kruithof (WO 2018/237215), further in view of Trout (WO 01/82714).
As discussed above, Kruithof teaches a method of product a dark (i.e. alkalized) cocoa powder comprising: mixing an alkalizing agent with cocoa material including cocoa beans and/or cocoa nibs which comprise cocoa solids. Kruithof teaches that the cocoa solids are defatted, including with pressing (paragraphs 24 and 25) thus encompassing separation of the cocoa butter and cocoa solids. Kruithof teaches the cocoa solids, which are within the cocoa material, are processed to have less than 2% cocoa butter by weight (paragraphs 24 and 25).
Kruithof is silent to separation of the cocoa butter and cocoa solids by means of a screw press as recited in claim 7, or with an additional fat separation processing as recited in claim 8.
Trout et al (Trout) teaches during alkalization soaps are formed from the reaction of cocoa fat and the alkalizing agents, thus it is desirable to reduce the fat content to less than 8% prior to alkalization to minimize soap formation, improve taste, and result in a processed cocoa having improved handling characteristics than cocoa which is alkalized first (page 1 lines 3-6, 27-28, page 2 lines 1 and 13-19). Trout teaches that the extent to which the fat is removed depends on the desired color of the chocolate, wherein the lower initial fat content, the darker the color. Trout teaches that it is more preferable for the cocoa solids to have less than 4% fat, even more preferably less than 1% fat. Refer to column 4 lines 7-22. Trout teaches that cocoa press cake is the cake formed from a hydraulic or screw press used to remove some fat from the cocoa liquid, or cocoa powder (page 3 lines 9-11), and that full hydraulic or screw pressing results in a fat content as low as about 8% (page 3 lines 13-16). Trout teaches that removing fat to achieve a cocoa solid with less than 4% is achieved through any combination of known fat removal process, including screw press and extraction (page 3 lines 20-25).
It would have been obvious to one of ordinary skill in the art for the defatted cocoa solids formed with pressing as taught by Kruithof to be pressed with a known apparatus for pressing, including a screw press as taught by Trout. To use a known species of the disclosed genius would have been obvious and well within the purview of one of ordinary skill in the art. Furthermore, as Kruithof teaches the cocoa solids as defatted as low as less than 2%, and Trout teaches that pressing results in cocoa fat content as low as about 8%, it would have been obvious to for the pressed cocoa solids to be further treated with extraction which could achieve the lower fat content desired in view of Trout. To use known means of achieving the taught result would have been obvious to one of ordinary skill in the art.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kruithof (WO 2018/237215), further in view of Australia (“Particle size analysis of chocolate powder” page 1 February 15, 2018 https://www.foodprocessing.com.au/content/processing/article/particle-size-analysis-of-chocolate-powder-830129532).
As discussed above, Kruithof teaches a method of producing a dark (i.e. alkalized) cocoa powder comprising: mixing an alkalizing agent with cocoa material including cocoa solids and milling the alkalized cocoa solids. Kruithof teaches that the alkalized cocoa materials, i.e. the cocoa powder, disclosed can be used in the manufacture of food and beverage, including chocolates, bakery products, and compound coatings (title and paragraph 31).
Kruithof is silent to the cocoa powder as milled to an average particle size smaller than 75um as recited in claim 9.
Australia teaches chocolate is a mix of powders (paragraph 1). Australia teaches that particle size affects the production process and final properties of chocolate in many ways (paragraph 2). Australia teaches a direct way to influence quality is to reduce the size of the cocoa particles to less than 30 microns as larger particles feel gritty in the mouth and the human tongue is very sensitive (paragraph 3).
It would have been obvious for the cocoa powder of Kruithof, which is milled and can be used for making chocolate, to be milled to a size of less than 30 microns so it avoids a gritty mouthfeel on the tongue hen consumed in view of Australia.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wiant et al (US 5,009,917) teaches removing fat from press cake, grinding, and then alkalizing to produce a dark chocolate powder (column 2 lines 35-41).
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.
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.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
Prosecution Insights