DETAILED ACTION
Amendments made May 18, 2026 have been entered.
Claims 1-20 are pending;
Claims 12-15 have been withdrawn.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 .
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 Objections
The objection to claim 2 because of minor informalities has been withdrawn in light of applicant’s amendments made May 18, 2026.
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 previous rejection of claims 1-11 and 16-20 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made May 18, 2026.
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.
Claims 10 and 20 are 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.
Claims 10 and 20 fail to include all the limitations of the claim upon which they depend. Claims 10 and 20 depend from claim 1 which recites a cocoa composition comprising at least 40% by weight sucrose (which is a sugar). Claim 10 recites the composition comprises 45% or less total sugars by weight, thus encompassing a composition comprising 0-45% total sugars and conflicting with claim 1 from which it depends which requires at least 40% total sugars from sucrose. Similarly, claim 20 recites the composition comprises 40% or less total sugars by weight, thus encompassing a composition comprising 0-40% total sugars and conflicting with claim 1 from which it depends which requires at least 40% total sugars from sucrose.
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 1-4, 6-11, 16, 17, 19 and 20 under 35 U.S.C. 102(a)(1) as being anticipated by Bobozhonova et al (“Influence of high-protein flour from sunflower shrot on the change in the properties of chocolate masses” pages 1-7, as cited by applicant on the IDS filed March 3, 2025) has been withdrawn in light of applicant’s amendments made May 18, 2026.
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 5 and 18 under 35 U.S.C. 103 as being unpatentable over Bobozhonova et al (“Influence of high-protein flour from sunflower shrot on the change in the properties of chocolate masses” pages 1-7, as cited by applicant March 3, 2025), further in view of Crank (WO 2007/103757) has been withdrawn in light of applicant’s amendments made May 18, 2026.
Notes:
“Cocoa composition” is a substantially homogenous and fat continuous composition as defined in the instant specification paragraph 13. It is noted that the term does not appear to require a cocoa component.
“Cocoa solids” refer to any component derived from cocoa beans, such as, but not limited to cocoa liquor, cocoa powder, cocoa butter, and/or cocoa mass (instant specification paragraphs 15 and 16).
“Defatted” refers to seed material whose fat content has been reduced (instant specification paragraph 25).
“Powder” refers to a substantially dry, bulk solid composed of particles that may flow freely when shaken or tiled (instant specification paragraph 27.
Claims 1-4, 6-11, 16-17, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Crank (WO 2007/103757) in view of Bareket (WO 2018/167788) and Igoe et al (Dictionary of Food Ingredients 4th Edition Aspen Publishing 2001, pages 37 and 139).
Crank teaches non-soy plant materials, including sunflower kernels that are separated into a fat enriched fraction and reduced fat fraction that are dried into powder and are for use in food products, including chocolates (abstract, page 3 lines 28-31, page 4 line 9-10, page 8 lines 1-3 and 17-19, page 9 lines 26-28, page 10 lines 5-7, page 11 lines 11-17, examples 2 and 4, and claims19, 29-31, 42, and 50). Thus, the use of defatted sunflower kernel powder in chocolate would have been encompassed or alternatively an obvious selection of the disclosed embodiments of Crank. As chocolate was a homogenous fat continuous and cocoa containing composition, the chocolate product of Crank encompasses a cocoa composition which is a homogenous and fat continuous chocolate. Furthermore, as Crank teaches that the reduced fat high protein fraction contains by dry weight 15% or less fat and 65% or more protein, and that the reduced fat high protein fraction is dried to a powder (page 3 lines 18-22, page 7 lines 27-28, page 8 lines 1-3 and 17-19, page 9 lines 29 and 27-28, and page 10 lines 5-7), the teachings of Crank would encompass or alternatively make obvious the defatted sunflower kernel powder a having a protein content of greater than about 50% and a fat content of less than about 15%. It is noted that a dried powder would consists essentially of dry materials and thus would be considered to have negligible water.
Crank is silent to the composition of the chocolate as comprising: at least 40% sucrose, at least 30% cocoa solids, less than 2% milk solids, and 5-30% of the defatted sunflower kernel powder as recited in claim 1, preferably 10-20% of the defatted sunflower kernel powder as recited in claim 2, or at least 40% cocoa solids as recited in claim 6, or at least 18% cocoa butter as recited in claim 7, or at least 26% cocoa butter as recited in claim 8, or to less than 1% milk solids as recited in claims 9 and 19, or 45% or less total sugars as recited in claim 10, or 40% or less total sugars as recited in claim 20, or one or more additional ingredient as recited in claim 11.
Bareket teaches that chocolate was shown to have health benefits including effects on peoples’ moods, improvement of cognitive performance, natural antioxidants, and the ability to reduce blood pressure (page 1 lines 19-21). Bareket teaches that some people are lactose intolerant or avoid consumption of animal products and thus it is essential to form a non-dairy replacement for milk chocolate that provides the same sensation and taste without the dairy components (page 1 line 27 through page 2 line 2). Bareket teaches a confectionery product comprising: at least one cocoa component, at least one dried powder of a non-dairy vegan source, and at least one flavoring produces said product (page lines 5-8 and 25-27). Bareket teaches that the confectionery product comprises 5-30% of the dried powder non-dairy vegan source (page 4 lines 30-32), and exemplifies the cocoa product as comprising: 39% cocoa solids (including 26% cocoa butter and 13% cocoa liquor), 38% sugar, 20% soy, i.e. a dried powder non-dairy vegan source, and lecithin which was a known emulsifier (page 7, Example 1).
Regarding the composition of Crank as comprising: at least 40% sucrose, at least 30% cocoa solids, less than 2% milk solids, and 5-30% of the defatted sunflower kernel powder as recited in claim 1, preferably 10-20% of the defatted sunflower kernel powder as recited in claim 2, or at least 40% cocoa solids as recited in claim 6, or at least 18% cocoa butter as recited in claim 7, or at least 26% cocoa butter as recited in claim 8, or to less than 1% milk solids as recited in claims 9 and 19, or 45% or less total sugars as recited in claim 10, or 40% or less total sugars as recited in claim 20, or one or more additional ingredient as recited in claim 11, it would have been specifically obvious for the composition of Crank to be a vegan and non-dairy chocolate confection in order to provide the health benefits of chocolate while allowing for vegan and/or lactose sensitive consumer consumption in view of Bareket. In doing so, it would have been further obvious to use a confectionery composition with the composition disclosed by Bareket as the basis. Thus, to form a chocolate comprising: 0% milk solids; 5-30% of the dried powder non-dairy vegan source, i.e. the defatted sunflower kernel powder of Crank; 39% cocoa solids (including 26% cocoa butter and 13% cocoa liquor); 38% sugar; and an emulsifier, would have been obvious in view of Bareket. Wherein a chocolate comprising non-vegan dried powder was disclosed, such as in Crank, but no specific composition is given, it would have been particularly obvious to use a known chocolate product composition comprising a non-vegan dried powder, such as taught by Bareket.
It is noted that the combination of Crank in view of Bareket teaches of 38%, i.e. about 40% sucrose and less than 45% total sugars, however is not specific to at least about 40% sucrose as recited in claim 1. However, Igoe et al (Igoe page 139), which is a dictionary of food ingredients and would thus be considered knowledge known or at least readily available to one of ordinary skill in the art, teaches that sucrose, i.e. sugar, was a universal sweetener added to foods. It would have been obvious to one of ordinary skill in the art for the sucrose to be greater than 38%, such as and including 40% or more, in order to obtain a final product with greater sweetness in view of Igoe.
It is further noted that the combination of Crank in view of Bareket teaches of 39% cocoa solids, i.e. about 40% solids, however is not specific to at least 40% cocoa solids as recited in claim 6. However, Igoe teaches that cocoa powder, i.e. cocoa solids, are added to impart flavor and color (page 37). It would have been obvious to one of ordinary skill in the art for the cocoa solids to be greater than 39%, such as and including 40% or more, in order to obtain a final product with cocoa flavor and/or color in view of Igoe.
To add known ingredients for their known and intended function would have been obvious and well within the purview of one of ordinary skill in the art. 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.
Regarding the particle size of the defatted sunflower kernel powder as less than 0.5mm as recited in claim 2, as discussed above Crank teaches of forming a non-soy high protein low fat plant material which can be dried. Crank further teaches that the material can be subject to microfiltration or ultrafiltration (claim 34), which would result in particles within the claimed range. Thus, for the defatted sunflower kernel powder to have a particle size of less than 0.5mm would have been encompassed or at least obvious over the teachings of Crank.
Claims 5 and 18 is rejected under 35 U.S.C. 103 as being unpatentable over Crank (WO 2007/103757) in view of Bareket (WO 2018/167788) and Igoe et al (Dictionary of Food Ingredients 4th Edition Aspen Publishing 2001, pages 37 and 139), further in view of Deak (“Thermal Treatment: Pasteurization”, pages 1-2 Food Safety Management 2014 https://www.sciencedirect.com/topics/food-science/pasteurization).
As discussed above, the teachings of Crank encompass a chocolate product comprising non-soy plant materials, including defatted sunflower kernel powder, i.e. a concentrated food powder with about 15% or less fat. Crank is silent to the powder as pasteurized as recited in claim 5.
Deak, Food Safety Management teaches that compared to sterilization, pasteurization is a low order heat treatment which extends product shelf life and which is frequently combined with other means of preservation such as concentration (page 1, last paragraph and page 2 first paragraph).
It would have been obvious to one of ordinary skill in the art for the defatted and concentrated sunflower kernel powder of Crank to be pasteurized in order to extend shelf life in view of Deak. To use a known food process for its known and intended function would have been obvious and well within the purview of one of ordinary skill in the art.
Response to Arguments
Applicant’s arguments have been considered but are moot because 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hollingsworth & Vose (“Microfiltration vs. Ultrafiltration: What’s the Difference?” pages 1-6, May 2021 https://www.hollingsworth-vose.com/blog/microfiltration-vs-ultrafiltration-difference/) show that microfiltration is at a pore size of 0.1-10 micrometers, and ultrafiltration is around 0.01 micron in dimension (pages 3-4).
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.
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