DETAILED ACTION
Amendments made December 15, 2025 have been entered.
Claims 1-5 and 7-9 are pending;
Claim 8 has been withdrawn.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 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 5 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the recitation of “the aqueous saccharide solution” in claim 1 has been withdrawn in light of applicant’s amendments made December 15, 2025.
Claim 1 recites “An oil-based food product”. It is unclear as to what the metes and bounds of the term “oil-based food product” are. For example, it is unclear as to if the term requires a continuous oil phase, or greater than 50% of an oil or an oil component, or a majority of oil relative to the other components. For the purpose of prior art comparison, the term will be considered encompassed with any food product containing fat or oil. Applicant is reminded that in amending the claims, the limitations need have support in the disclosure as originally filed.
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of claims 1, 3, 5, and 6 under 35 U.S.C. 102(a)(1) as being anticipated by CN 107410625 (machine translation) has been withdrawn in light of applicant’s amendments made December 15, 2025 which limit the legume type.
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 claims 2 and 4 under 35 U.S.C. 103 as being unpatentable over CN 107410625 (machine translation), further in view of Traska et al (US 5,202,147) has been withdrawn in light of applicant’s amendments made December 15, 2025 which limit the legume type.
The rejection of claim 7 under 35 U.S.C. 103 as being unpatentable over CN 107410625 (machine translation) has been withdrawn in light of applicant’s amendments made December 15, 2025 which limit the legume type.
Claims 1, 3, and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Kumie et al (JP 2015-027280 A machine translation) in view of Toshio et al (JP 57036938 A abstract machine translation).
Kumie et al (Kumie) teaches of a chocolate like food, which is a known oil-based food, wherein 10-50% cocoa is replaced with a chocolate substitute (abstract and claim 4). Kumie teaches that the chocolate like food also comprises oil and sugar, i.e. an unroasted saccharide (paragraph 25). Kumie teaches that the chocolate substitute is formed by roasting a composition that comprises: fermented liquids comprising glucose and a ground soybean product (abstract, paragraphs 11, 13-15, 17, 21-25, and claims 2 and 3), thus encompassing or at least making obvious a food product comprising a roasted legume derived powder wherein the legume is selected from one including soybean, and a roasted monosaccharide solution. It is additionally noted that the addition of the ingredients in a specific form, such as powdered or aqueous is a product by process limitation and is considered only as it effects the final product. Thus, so long as the final food contain a roasted legume and saccharide, it would encompass the product as claimed.
Although the roasted soybean element of Kumie may be full fat, i.e. contain phospholipids (paragraph 9), Kumie is not specific to the product as comprising both a legume derived roasted powdered material and a roasted phospholipid component as recited in claim 1.
Toshio et al (Toshio) teaches that the flavor of cocoa nibs, which naturally contain phospholipids, were enhanced by adding an aqueous saccharide solution and roasting (abstract).
It would have been obvious for the chocolate like food comprising cocoa and roasted legume powder of Kumie to have roasted phospholipids in view of Toshio. One would have been motivated to do so as Kumie teaches that the food comprises cocoa, and as Toshio teaches that the flavor of cocoa nibs, which naturally comprise phospholipids, was improved with roasting.
Claims 2, 4, 7, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Kumie et al (JP 2015-027280 A machine translation) in view of Toshio et al (JP 57036938 A abstract machine translation), further in view of Crespo (US 4,119,740).
As discussed above, Kumie teaches of a chocolate like food comprising a roasted aqueous monosaccharide solution wherein 10-50% cocoa is replaced with a roasted chocolate soybean substitute.
Kumie is silent to the mixture of the roasted saccharide and roasted legume powder as having an L value of 40-60 as recited in claim 2, or to the total amount of cocoa mass and cocoa solids in the food, including the amount as less than 5% as recited in claim 7.
Crespo teaches of a cocoa extender comprising soybean (abstract), and that the use of cocoa extenders was because of scarcity and increasing costs of cocoa beans (column 1 lines 5-20). Crespo teaches that chocolate made with a chocolate soybean extender comprises about 5-15% cocoa (column 4 lines 6-27). It is noted that as the term “about” means near or close to, about 5% as taught by Crespo encompasses overlapping products to that claimed, such as those with 4.9% cocoa mass and cocoa solids. Crespo teaches that the roasting is for a time and temperature sufficient to develop a rich brown cocoa imparting color to the cocoa extender (column 4 lines 6-15).
Regarding the mixture of the roasted saccharide and roasted legume powder as having an L value of 40-60 as recited in claim 2, the claimed limitation is a product by process limitation in that it only requires an ingredient, in some amount, that is included in the final product have an L value as claimed. Thus, the limitation is considered in as much as it effects the final food product claimed. In the instant case, it is expected to impart the desired color to the food product, and not necessarily a final product with an L value as claimed as the color of ingredients could be diluted or intensified by the other food components. As Crespo teaches that toasting is for a time and temperature to impart the desired color, it would have been obvious for the roasted components, including the saccharide and legume powder to be roasted to a desired L value (color) to achieve the desired color in the final product. Thus, the product as claimed is considered obvious over the teachings of the prior art.
Regarding the food as comprising 5% or less cocoa solids and cocoa mass as recited in claim 7, it would have been obvious for the chocolate food of Kumie to comprise about 5% cocoa mass and cocoa solids as taught by Crespo as Kumie does not limit the range of the cocoa, as Crespo teaches it was an acceptable range of cocoa for products comprising a replacer, and as Crespo teaches that cocoa was known to have an increased cost. Furthermore, it would have been obvious to decrease the amount of cocoa solids/mass as low as possible while maintaining the product as Crespo teaches of scarcity and increasing costs of cocoa beans.
Alternatively, claims 2, 4, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Kumie et al (JP 2015-027280 A machine translation) in view of Toshio et al (JP 57036938 A abstract machine translation), further in view of DeConinck et al (WO 2012/089257)
As discussed above, Kumie teaches of a chocolate like food comprising a roasted aqueous monosaccharide solution wherein 10-50% cocoa is replaced with a roasted chocolate soybean substitute.
Kumie is silent to the mixture of the roasted saccharide and roasted legume powder as having an L value of 40-60 as recited in claim 2.
DeConinck teaches improved color in ground and roasted materials including soybean, pea, and mung bean, wherein an L value of 30-58 was preferred (abstract, page 5 lines 20-23 and 28-34, page 6 lines 22-24, and page 9 lines 1-4).
Regarding the mixture of the roasted saccharide and roasted legume powder as having an L value of 40-60 as recited in claim 2, the claimed limitation is a product by process limitation in that it only requires an ingredient, in some amount, that is included in the final product have an L value as claimed. Thus, the limitation is considered in as much as it effects the final food product. In the instant case, it is expected to impart a desired color to the food product, and not necessarily one with an L value as claimed for the food ingredient as the color could be diluted or intensified by the other food components. Regardless, as roasting was known to alter color, it would have been obvious for the roasted elements of the prior art, including the roasted saccharide and legume powder to have an L value of 30-58 as DeConinck teaches it was a preferred color and that a food component with said color has an improved appearance.
Response to Arguments
Applicant's arguments filed December 15, 2025 regarding the 112 rejections have been fully considered but they are not persuasive.
Applicant argues that the term “oil-based” is now clear because the body of the claims require a roasted phospholipid and at least one component selected from the group including an oil and fat. This argument is not convincing as the term “based” means to have a foundation for something, and it is unclear as to how much oil must be included in the product for it to be considered “oil-based”, i.e. having a foundation of oil as claimed. It is further unclear as to if the term is limited to oil, or also encompasses non-oil fats.
Applicant’s arguments filed December 15, 2025 with respect to the prior art rejections have been considered but are moot because the previous rejections were withdrawn in light of the amendments and 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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792