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
Claims 12-15 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on November 5, 2025.
Claim Objections
Claim 2 is objected to because of the following informalities:
Claim 2 depends from claim 1 and recites “a sunflower seed powder”. Although understood, this should be “the sunflower seed powder” as the term was previously recited in claim 1.
Appropriate correction is required.
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 1-11 and 16-20 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.
Claims 1-11 and 16-20 recite “cocoa composition”. The term has been defined in the instant specification, paragraph 13 as referring to a substantially homogenous and fat-continuous composition, however, the specification, paragraph 21 states the composition is “preferably homogenous”. Thus, the scope of the term “substantially homogenous” is unclear. It is unclear as to how homogenous a product must be in order to encompass a cocoa composition as defined.
Claim 1 recites “sunflower seed powder”. The instant specification paragraph 27 defines “powder” as a substantially dry bulk solid. It is unclear as to what would and would not be encompassed by the term “substantially dry”. For example, it is unclear as to if the term requires a certain percentage of water to be removed, or that the powder have a specific moisture content, such as less than 25% or some other amount.
The term “high protein” in claim 4 is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Although the instant disclosure states advantageously a high protein content is at least 20% protein (paragraph 26), the scope of the term “high protein” is unclear. It is unclear as to what level of protein would and would not be encompassed by the term. For example, it is unclear as to if the term requires 20% protein, or would also encompasses lower ranges, such as 19% or 18% protein.
The term “substantially free from milk solids” in claim 9 is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what level of milk solids may be present in the composition wherein it would be considered to meet the claimed limitation. For example, if dairy fat was added that contained milk solids, and milk solids were not directly added, it is unclear as to if that product would encompass the product as claimed, or as to if a composition with less than 1% milk solids would encompass the product as claimed. The metes and bounds of the claimed limitation are unclear.
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.
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, 19 and 20 are rejected 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).
Regarding claims 1-4, Bobozhonova et al (Bobozhonova) teaches of chocolate masses (title) which are known cocoa compositions, comprising: 5-25% high protein sunflower flour from sunflower shrot which is material left over after oil and fat extraction of sunflower seeds (Abstract, Introduction paragraph 4, Research and problem statement paragraphs 3-4, Section 3.1, and Tables 1 and 3), thus teaching the cocoa composition as comprising 5-25% high protein defatted sunflower seed powder.
Regarding the composition as comprising at least 30% cocoa solids as recited in claim 6, as noted above, the term “cocoa solids” refers 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). Bobozhonova teaches the composition as comprising 35-55% cocoa butter and cocoa solid components (Table 3), thus encompassing a “cocoa solids” content as claimed.
Regarding claim 7, Bobozhonova teaches the composition as comprising 30% cocoa butter (Table 3), thus encompassing a cocoa butter content as claimed.
Regarding claims 8, 9, and 19, Bobozhonova teaches the composition as a dark chocolate (page 4 paragraph 1) and the examiner takes official notice that dark chocolate is substantially free of milk solids. Thus, the composition of Bobozhonova would encompass a composition with milk solids within the claimed ranges. The position is further supported as Bobozhonova does not teach the addition of milk solids to the composition.
Regarding claims 10 and 20, the composition taught by Bobozhonova encompasses one with 45% or less sugars as recited in claim 10 and 40% or less sugars as recited in claim 10 as no sugar components are required, and as any component which may contain sugar, such as crude chocolate, is cumulatively included in an amount less than the claimed range.
Regarding claim 11, Bobozhonova teaches the composition comprises emulsifiers and flavoring (almond paste) (Table 3).
Regarding claims 16 and 17, Bobozhonova teaches the sunflower seed powder has less than 30% fat and greater than 20% protein (Introduction paragraph 4, Research and problem statement paragraphs 3-4, and Table 1).
Claim Rejections - 35 USC § 103
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 5 and 18 are rejected 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).
As discussed above, Bobozhonova teaches of a cocoa composition comprising: 5-25% high protein defatted sunflower seed powder.
Bobozhonova is silent to the defatted sunflower seed powder as sunflower kernel powder as recited in claims 5 and 18.
Crank teaches non-soy plant materials, including sunflower seed kernels that are separated into a fat enriched fraction and reduced fat fraction to be used in food products, including chocolates (abstract, page 3 lines 28-31, page 11 lines 11-17, and example 2). It would have been obvious for the high protein defatted sunflower seed flour of Bobozhonova to be extracted from a known seed source capable of producing a high protein defatted sunflower seed powder, including sunflower kernel as shown by Crank. To use a known source of sunflower seed, wherein sunflower seed was disclosed would have been a clear and obvious suggestion of the prior art. Thus, the teachings of the prior art make obvious the use of defatted kernel powder as claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
RU 2602286 (abstract - machine translation) teaches of a confection comprising sunflower seed powder.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792