DETAILED ACTION
Amendments made November 26, 2025 have been entered.
Claims 1-8 remain pending.
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 1-8 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(or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been partially withdrawn in light of applicant’s amendments and arguments made November 26, 2025. Specifically, the argument regarding the term “refined sugar” and the amendments were convincing to withdraw the rejections related to the term “sugar”, “besides date powder”, “its proportional composition”, and the optional inclusion of some fruit powders previously recited in claim 4.
The remaining rejection is presented below.
Claims 1-8 are 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 1 recites “the product predominantly comprises, for sweetening, powder of freeze-dried bananas, freeze-dried pineapple, and freeze-fried apples for sweetening and flavoring”. It is unclear as to if the term “predominantly” means that the named freeze-dried fruits are the majority by weight of the sweeteners and if so if they must amass to 50% or more of the total sweeteners, or of any ingredient which can contribute sweetening, or if they must amass to some other percentage to be considered predominate, and if so, what that percentage that must be. It is further unclear as to if predominance is based on a weight or another metric, such as flavor intensity. Alternatively, it is unclear as to if the term simply means that the fruit powder is added predominantly for sweetening, in the sense that the purpose of adding the powder is primarily for sweetening and thus the term does not relate to any restriction in the amount of other sweeteners relative to the fruit powder.
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 8 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. As claim 8 depends from claim 1, and only requires 9.84% freeze dried banana, apple, and pineapple powder, it does not include all the limitations of the claim from which it depends, i.e. claim 1 which must have at least 9.85% of said fruit powders.
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
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 and 2 under 35 U.S.C. 102(a)(1) as being anticipated by Wang et al (CN 107996788 machine translation) has been withdrawn in light of appellant’s amendments which require date powder.
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 claim 6 under 35 U.S.C. 103 as being unpatentable over Wang et al (CN 107996788 machine translation) has been withdrawn in light of appellant’s amendments which require date powder.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Sano et al (US 4307126) in view of Crowley et al (US 2011/0177174) and Lin (CN 1376398 machine translation).
Sano et al (Sano) teaches a sweetened chocolate without refined or crystalline sugar, wherein the chocolate comprises fine particles of dried fruit, i.e. fruit powder, as the primary sweetener and flavoring (abstract, column 2 lines 30-49, and column 3 lines 42-68). Sano teaches that the fruit includes one or more dehydrate fruits, such as and including dried apple, banana, and date (column 2 lines 53-56 and column 4 lines 4-5 and 13-16). Sano teaches that the chocolate comprises unsweetened cocoa mass, i.e. a chocolate base containing no sweetener, and cocoa butter (column 4 lines 21-35, column 5 lines 11-29, Examples 3-5, and claims 1-3). As Sano teaches the base is milk chocolate (column 5 lines 13-17), the teachings of Sano encompass the product as milk chocolate.
Sano is not specific to the dried fruit powders as freeze-dried or to the fruit powder as including pineapple and the specific combination of pineapple with date powder, freeze dried apple powder, and freeze dried banana powder, wherein the apple, banana, and pineapple freeze dried fruit powder together constitute 9.85-12.04% as recited in claim 1; and to the composition as comprising 52.55-64.23% unsweetened chocolate as recited in claims 7 and 8, or 58.39% unsweetened chocolate as recited in claims 3-5; 19.71-24.09% cocoa butter as recited in claims 7 and 8, or 21.90% cocoa butter as recited in claims 3-5; 7.88-9.64% date powder as recited in claims 7 and 8, or 8.76% date powder as recited in claims 3-5; 10.95% of freeze dried banana, pineapple, or apple powder as recited in claim 4, or 9.85-12.04% freeze dried banana, pineapple, and apple powder as recited in claim 7, or 10.95% freeze dried banana, pineapple, and apple powder, each in unequal amounts as recited in claim 5, or 3.28-4.01% freeze dried banana powder as recited in claim 8, or 3.65% freeze dried banana powder as recited in claim 3, 3.28-4.01% freeze dried apple powder as recited in claim 8, or 3.65% freeze dried apple powder as recited in claim 3, or 3.28-4.01% freeze dried pineapple powder as recited in claim 8, or 3.65% freeze dried pineapple powder as recited in claim 3.
Regarding the dried fruit powder as freeze-dried as recited in claim 1, Crowley et al (Crowley) teaches fruit chocolate comprising powdered freeze-dried fruit (title and abstract). Crowley teaches that it must be stressed that the fruit constituent must be freeze-dried and that the advantages of doing so include that it is anhydrous and can be incorporated into a lipid base, can be rendered to have a super-fine powder like consistency, and there is a high concentration in both flavor as well as health benefits present in the fruit (paragraphs 34 and 35). Thus, it would have been obvious for the fruit particles of Sano to be freeze-dried for the known benefits as taught by Crowley, including that it is anhydrous and can be incorporated into a lipid base, can be rendered to have a super-fine powder like consistency, and there is a high concentration in both flavor as well as health benefits present in the fruit. Furthermore, it is noted in view of the advantages of freeze drying as able to produce a powder of super fine consistency and preserving the flavor and health benefits of the fruit as taught by Crowley and the fact that Sano seeks fine particles of dried fruit powder to provide the taste of fruit, to use freeze-dried fruit powder as the dried fruit powder of Sano would have been particularly obvious.
Regarding the fruit powder as including pineapple as recited in claim 1, as discussed above, Sano teaches a chocolate comprising one or more fruit powders selected form the group including apple, banana, and date. Sano teaches the fruit powder is added for taste and aroma of the fruit and good sweetness (abstract). Lin teaches a multi-flavored chocolate containing powder of at least one freeze dried fruit including apple, pineapple, and banana (page 1 paragraphs 3, 8, and 13-15 and page 2 paragraphs 1 and 3). Lin teaches the invention not only retains the nutritional value of the fresh fruit, but also has various tastes, high vitamins, and high plant fiber (page 2 paragraph 6). It would have been obvious for the powdered fruit in the chocolate of Sano to comprise known fruits for chocolate inclusion, including apple, banana, pineapple, and date, and various amounts of said fruit depending on the desired nutrition and taste in the final product in view of Lin and/or depending on the desired flavor aroma and sweetness in view of Sano. For example, it would have been obvious to have a chocolate with banana, apple, date, and pineapple powder in order to have a final product with the flavor and nutrition of said fruits. As Sano teaches that the fruit can be one or more fruit, the addition of pineapple to the chocolate containing fruit powder of Sano would have a reasonable expectation of success.
Regarding the composition as comprising 52.55-64.23% unsweetened chocolate as recited in claims 7 and 8, or 58.39% unsweetened chocolate as recited in claims 3-5; 19.71-24.09% cocoa butter as recited in claims 7 and 8, or 21.90% cocoa butter as recited in claims 3-5; 7.88-9.64% date powder as recited in claims 7 and 8, or 8.76% date powder as recited in claims 3-5; or 9.85-12.04% of freeze dried banana, pineapple, and apple powder as recited in claims 1 and 7, or 10.95% as recited in claim 4, or 10.95% freeze dried banana, pineapple, and apple powder, each in unequal amounts as recited in claim 5, or 3.28-4.01% freeze dried banana powder as recited in claim 8, or 3.65% freeze dried banana powder as recited in claim 3, 3.28-4.01% freeze dried apple powder as recited in claim 8, or 3.65% freeze dried apple powder as recited in claim 3, or 3.28-4.01% freeze dried pineapple powder as recited in claim 8, or 3.65% freeze dried pineapple powder as recited in claim 3, Sano teaches the chocolate is made by mixing dried fruits with at least 10% fatty substances, including edible fatty substances from cocoa beans, pulverizing to form particles, and then mixing about 5-50% of the particles with an unsweetened chocolate base (claims 1-3, 8, and 9). Thus, the teachings of Sano encompass the chocolate as comprising: about 50-95% unsweetened chocolate, i.e. unsweetened chocolate base, and 5-50% fine particles comprising about 90% or less dried fruit particles, and 10% or more fatty substances which equates to about 0.5-49.5% fatty substances (10% fatty substance with 5% particles to 50% particles with about 99% fatty substance) and 0.05-45% dried fruit particles (1% dried fruit with 5% particles to 50% particles with 90% dried fruit) in the composition. Sano further teaches that the amount of finely pulverized dehydrated fruit to chocolate base is varied in order to provide for sufficiently strong taste of fruit, while allowing the chocolate to be shaped (column 5 lines 31-43), and the amount of fat is varied in order to prevent the fine particles of fruit from sticking (column 4 lines 44-55).
Regarding the composition as comprising 52.55-64.23% unsweetened chocolate as recited in claims 7 and 8, or 58.39% unsweetened chocolate as recited in claims 3-5, as the teachings of Sano encompass the chocolate as comprising: about 50-95% unsweetened chocolate, i.e. unsweetened chocolate base, Sano teaches of overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Furthermore, it would have been obvious to vary the amount of the chocolate base based on the desired amount of fruit taste in the final product as taught by Sano (page 5 lines 31-42).
Regarding the composition as comprising 19.71-24.90% cocoa butter as recited in claims 7 and 8, or 21.09% cocoa butter as recited in claims 3-5, as the teachings of Sano encompass the chocolate as comprising 0.5-49.5% fatty substances, including those derived from cocoa beans, Sano teaches of overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Furthermore, it would have been obvious to vary the amount of the fatty substance based on the selected fruits and the need for fat to prevent agglomeration as taught by Sano (column 4 lines 44-55). Specifically regarding the fat as cocoa butter, as cocoa butter is a fat extracted from cocoa beans, and Sano teaches the use of fatty substance derived from cocoa beans the use of cocoa butter as the fatty substance would have been an obvious suggestion of the prior art.
Regarding the composition as comprising: 7.88-9.64% date powder as recited in claims 7 and 8, or 8.76% date powder as recited in claims 3-5, or 9.85-12.04% of freeze dried banana, pineapple, and apple powder as recited in claims 1 and 7, or 10.95% as recited in claim 4, or 10.95% freeze dried banana, pineapple, and apple powder, each in unequal amounts as recited in claim 5, or 3.28-4.01% freeze dried banana powder as recited in claim 8, or 3.65% freeze dried banana powder as recited in claim 3, 3.28-4.01% freeze dried apple powder as recited in claim 8, or 3.65% freeze dried apple powder as recited in claim 3, or 3.28-4.01% freeze dried pineapple powder as recited in claim 8, or 3.65% freeze dried pineapple powder as recited in claim 3, the teachings of Sano encompass the chocolate as comprising 0.05-45% dried fruit particles, including dried powder of dates, apples, and bananas, wherein the addition of dried pineapple powder would have been obvious in view of Lin and wherein Sano teaches that the amount of finely pulverized dehydrated fruit to chocolate base is varied in order to provide for a sufficiently strong taste of fruit, while allowing the chocolate to be shaped. Thus, the prior art teaches overlapping ranges, wherein it would have been obvious to adjust the amount of each desired fruit component depending on the desired taste and/or nutrition from the fruit in the final product.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Response to Arguments
Applicant's arguments filed November 26, 2025, in the remarks and declaration, regarding the remaining rejections have been fully considered but they are not persuasive.
Applicant argues that the term predominantly is clear as it was amended to recite “for sweetening” and include a specific amount of the freeze-dried fruit powder. This argument is not convincing. The claim remains unclear. It is unclear as to if the term is just stating the purpose of the fruit powder when added in the claimed amount, i.e. it is “predominantly” added for the purpose of sweetening, or as to if the term intends to limit the other sweeteners within the product, such that the fruit powders are the “predominant” sweetening agents within. If it is the later it is unclear as to if predominance is measured by weight, or some other metric like sweetness intensity, and if so, what the threshold amount for predominance would be.
Applicant argues that the prior art, Sano, Crowley and Lin do not explicitly teach a composition which is the same as that claimed. This argument is not convincing to withdraw the rejections because the rejection is not a 102 anticipatory rejection, but rather a 103, obviousness rejection, and the teachings of the prior art are considered to make obvious the composition as claimed for the reasons stated above.
Applicant argues Sano teaches away from pineapple. This argument is not convincing as Sano only teaches that in an embodiment (diet or natural products) the use of candied fruit, including candied pineapple, it can be excluded. Sano does not restrict pineapple, such as dried pineapple, from all embodiments as argued. See column 4 lines 4-20.
Applicant argues in the remarks and declaration that the claimed combination of fruit powders provides for unexpected and critical results in terms of taste and the consistency of the chocolate. This argument is not convincing as: 1) the data does not compare the closest prior art of record; 2) some of the data does not show the full composition, for example comparative examples 1-8 do not show the amount of cocoa mass used; and 3) the evidence is not commensurate in scope with the claims. For example, the examples which are said to represent the invention are limited to about 58-65% cocoa mass and 21.9-22.52% cocoa mass, while claim 1 is not limited to any amount of said components, thus encompassing ranges of greater than 0% up to about 87%. It is noted that even the more narrow ranges recited in the dependent claims are not fully encompassed, such as by showing a point near each end point to show that the argued result would be present throughout the full scoop of the ranges claimed. Similarly, date powder is limited to 4.05-8.76%, banana powder is limited to 2.4-3.65%, apple powder is limited to 1.20-3.65%, and pineapple powder is limited to 2.4-3.65%.
Furthermore, the argued results of good flavor and consistency do not appear surprising/unexpected. Sano specifically teaches that the fruit powder is added to provide for taste and good sweetness (abstract), and that the amount of fruit powder should be controlled to prevent the shaping process from becoming difficult (column 5 lines 31-42), thus to adjust the amount and types of fruit powder to achieve a desired sweetness, taste, and workability, i.e. consistency, would have been an obvious suggestion of the prior art.
Additionally, Lees and Jackson (Lees et al- “Sugar Confectionery & Chocolate Manufacture” Leonard Hill 1973, page 124) teaches that it was known when increasing the sugar content, a matched increase in fat content should occur in order for a similar viscosity to be maintained (page 124, Section 8.4 paragraph 3). Thus, not only is the amount of cocoa butter shown in the examples and claimed relevant, but the results outside those that are “according to the claimed invention” and which do not have good results are not surprising because they have an increased sugar content, but a decreased fat content, and thus would be expected to have consistency issues (see for example composition 13). This further supports that the result being argued is not unexpected or surprising.
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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792