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
Applicant’s election without traverse of Group I in the reply filed on 12/4/2025 is acknowledged.
Claim Objections
Claims 1, 3, 4, 5, 6, 16,17, 18 and 19 are objected to because of the following informalities:
Claim 1 recites the limitation "lauric acid" in line 5. Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 1 recites the limitation "stearic acid" in line 5. Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 1 recites the limitation "lauric acid" in line 6. Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 1 recites the limitation "palmitic acid" in line 6. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 3 recites the limitation "lauric acid" in line 4. Applicant is advised to consider stating "the lauric acid". Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 3 recites the limitation "palmitic acid" in line 5. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 3 recites the limitation "stearic acid" in line 6. Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 4 recites the limitation "lauric acid" in line 3. Applicant is advised to consider stating "the lauric acid". Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 4 recites the limitation "stearic acid" in line 3. Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 4 recites the limitation "lauric acid" in line 4. Applicant is advised to consider stating "the lauric acid". Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 4 recites the limitation "palmitic acid" in line 4. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 5 recites the limitation "total CN32" in line 3. Applicant is advised to consider stating "the total CN32" as "CN32" has already been stated.
Claim 5 recites the limitation "total CN44" in line 5. Applicant is advised to consider stating "the total CN44" as "CN44" has already been stated.
Claim 5 recites the limitation "total CN50" in line 7. Applicant is advised to consider stating "the total CN50" as "CN50" has already been stated.
Claim 5 recites the limitation "total triglycerides" in line 8. Applicant is advised to consider stating "the total triglycerides" as "total triglycerides" has already been stated.
Claim 6 recites the limitation "CN32" in line 3. Applicant is advised to consider stating "the CN32" as "CN32" has already been stated.
Claim 6 recites the limitation "CN34" in line 4. Applicant is advised to consider stating "the CN34" as "CN34" has already been stated.
Claim 6 recites the limitation "CN44" in line 6. Applicant is advised to consider stating "the CN44" as "CN44" has already been stated.
Claim 6 recites the limitation "CN46" in line 7. Applicant is advised to consider stating "the CN46" as "CN46" has already been stated.
Claim 6 recites the limitation "total triglycerides" in line 8. Applicant is advised to consider stating "the total triglycerides" as "total triglycerides" has already been stated.
Claim 16 recites the limitation "total caprylic acid" in line 3. Applicant is advised to consider stating "the total caprylic acid" as "total caprylic acid” has already been stated.
Claim 16 recites the limitation "lauric acid" in line 4. Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 16 recites the limitation "palmitic acid" in line 5. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 16 recites the limitation "stearic acid" in line 6. Applicant is advised to consider stating "the stearic acid". Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 16 recites the limitation "oleic acid" in line 7. Applicant is advised to consider stating "the oleic acid" as "oleic acid has already been stated.
Claim 16 recites the limitation "SAFA" in line 8. Applicant is advised to consider stating "the SAFA" as "SAFA” has already been stated.
Claim 17 recites the limitation "lauric acid" in line 3. Applicant is advised to consider stating "the lauric acid". Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 17 recites the limitation "stearic acid" in line 3. Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 17 recites the limitation "lauric acid" in line 4. Applicant is advised to consider stating "the lauric acid". Applicant is advised to consider stating "the lauric acid" as "lauric acid" has already been stated.
Claim 17 recites the limitation "palmitic acid" in line 4. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 17 recites the limitation "stearic acid" in line 5. Applicant is advised to consider stating "the stearic acid" as "stearic acid" has already been stated.
Claim 17 recites the limitation "palmitic acid" in line 5. Applicant is advised to consider stating "the palmitic acid" as "palmitic acid" has already been stated.
Claim 18 recites the limitation "total CN32" in line 3. Applicant is advised to consider stating "the total CN32" as "CN32" has already been stated.
Claim 18 recites the limitation "total CN44" in line 5. Applicant is advised to consider stating "the total CN44" as "CN44" has already been stated.
Claim 18 recites the limitation "total CN50" in line 7. Applicant is advised to consider stating "the total CN50" as "CN50" has already been stated.
Claim 19 recites the limitation "CN32" in line 3. Applicant is advised to consider stating "the CN32" as "CN32" has already been stated.
Claim 19 recites the limitation "CN34" in line 4. Applicant is advised to consider stating "the CN34" as "CN34" has already been stated.
Claim 19 recites the limitation "CN42" in line 5. Applicant is advised to consider stating "the CN42" as "CN42" has already been stated.
Claim 19 recites the limitation "CN44" in line 6. Applicant is advised to consider stating "the CN44" as "CN44" has already been stated.
Claim 19 recites the limitation "CN46" in line 6. Applicant is advised to consider stating "the CN46" as "CN46" has already been stated.
Claim 19 recites the limitation "total triglycerides" in line 8. Applicant is advised to consider stating "the total triglycerides" as "total triglycerides" has already been stated.
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 1-7 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.
The phrase “said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids” in Claim 1, lines 7-8 is vague and indefinite as it is unclear whether the “total weight of C8 to C24 fatty acids” are just based on the acids bound as acyl groups in glycerides (like triglycerides) as the claim does not specify or can it also include other C8 to C24 fatty acids in the fat composition. Fatty acids do not have be limited to those bound as acyl groups in glycerides but rather can be as independent acids like lauric acid or bound to other structures like phospholipids. Below are illustrations of lauric acid, a phospholipid with fatty acids chains and a triglyceride. They are 3 different structures.
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The phrase “wherein the fat composition is non-hydrogenated” in Claim 2 is vague and indefinite as it is unclear how one can determine whether the composition has been hydrogenated or not as identical triglycerides can be present in both hydrogenated and non-hydrogenated compositions including esterified fatty acid chains like C16:0 and C18:0.
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Applicant is advised to cancel this claim.
The phrase “said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids” in Claim 3, lines 9-10 is vague and indefinite as it is unclear whether the “total weight of C8 to C24 fatty acids” are just based on the acids bound as acyl groups in glycerides as claim does not specify. Fatty acids do not have be limited to those bound as acyl groups in glycerides but rather can be as independent acids like lauric acid or bound to other structures like phospholipids.
The phrase “said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids” in Claim 4, lines 6-7 is vague and indefinite as it is unclear whether the “total weight of C8 to C24 fatty acids” are just based on the acids bound as acyl groups in glycerides as claim does not specify. Fatty acids do not have be limited to those bound as acyl groups in glycerides but rather can be as independent acids like lauric acid or bound to other structures like phospholipids.
The phrase “from 30.0 to 65.0 solid fat content at 10° C; and/or from 10.0 to 40.0 solid fat content at 20° C; and/or at most 20.0 solid fat content at 25° C; and/or at most 10.0 solid fat content at 30° C; and/or at most 5.0 solid fat content at 35° C” in Claim 7 is vague and indefinite as it is unclear how this phrase can be possible for the conjunction “and” and opposed to just for the conjunction “or”. The phrase “from 10.0 to 40.0 solid fat content at 20° C” is questionable as it appears impossible for there to have a solid fat content of 40.0 at 20° C and a solid fat content of 30.0 at 10° C. As the temperature of a fat increases it appears the solid fat content must remain the same or decrease. In this scenario the amount of fat increases as the temperature increases. This appears impossible. It appears the maximum solid fat content at 20° C should be 30.0 and the minimum solid fat content should be 20.0 in view of the solid fat content at 25° C. The lower end of the range at 25° C should be 10.0. The lower end of the range at 30° C should be 5.0.
The phrase “wherein the fat composition has: from 32.0 to 60.0 solid fat content at 10° C; and/or from 11.0 to 35.0 solid fat content at 20° C; and/or from 1.0 to 19.0 solid fat content at 25° C; and/or at most 8.0 solid fat content at 30° C; and/or at most 4.0 solid fat content at 35° C in Claim 20 is vague and indefinite as it is unclear how this phrase can be possible for the conjunction “and” and opposed to just for the conjunction “or” because as the temperature of a fat increases it appears the solid fat content must remain the same or decrease. In these claimed scenarios the amount of fat increases as the temperature increases. This appears impossible.
Clarification and/or correction is required.
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.
Claim(s) 1-7 and 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Esteve et al. (US 2012/0052180) in view of Joshi et al. (2020) and Broaddus (2016).
Regarding claim 1, Esteve (‘180) teaches a fat composition in the form of a blend of cacao, coconut oil and sunflower oil comprising: lauric acid (C12:0), palmitic acid (C16:0), stearic acid (C18:0) usable in confectionary compositions similar to chocolate wherein one fat is cacao and the second being a cocoa butter replacer/substitutes which can be blends of coconut oil and sunflower oil to provide a blended oil where the fats have different melting points with high levels of aeration (See Abs., paras. 3-6, 13-18 where cocao butter is combined with cocoa butter replacers including a blend of coconut oil and sunflower oil. See as evidence, p. 6, Table 1 of Joshi et al. (2020) where cocao butter has significant amounts of C16:0, C18:0 and C18:1 and coconut oil has significant amounts of C8:0, C10:0, C12:0 and C18:0
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See as evidence, Broaddus (2016) where sunflower oil has some C16:0 and C18:0 and significant amounts of C18:1.),
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however, fails to expressly disclose the fat composition having from 18.0% to 45.0% by weight of lauric acid (C12:0); from 5.0% to 20.0% by weight of palmitic acid (C16:0); from 4.0% to 18.0% by weight of stearic acid (C18:0); a weight ratio of lauric acid (C12:0) to stearic acid (C18:0) of from 2.0 to 4.5; and a weight ratio of lauric acid (C12:0) to palmitic acid (C16:0) of from 1.5 to 5.0; said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids; and from 5.0% to 25.0% by weight of total CN32 triglycerides, CN34 triglycerides and CN36 triglycerides; from 10.0% to 45.0% by weight of total CN44 triglycerides, CN46 triglycerides and CN48 triglycerides; and from 2.0% to 12.0% by weight of total CN50 triglycerides and CN52 triglycerides; based on total triglycerides present in the composition.
Esteve’s (‘180) selection of a blend of coconut oil and sunflower oil is supported by the chart in Oil in the Family (2017).
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As can be seen in the chart, coconut oil (91%) and palm kernel oil (86%) are the only plant-based oils having a saturated fat content above that of cocoa butter (62%). Also, sunflower oil has a relatively high monosaturated (C18:1) content (86%) which is an ideal oil to blend to provide the unique plant-based combination of saturated and monosaturated (C18:1) fats of cocoa. Olive and avocado oils are not likely to be used as their cost are high and they are rich in polyphenols and chlorophyl which would have be removed which would further drive up the cost. Canola (rape) is not as desirable as sunflower as they have higher levels of PUFAs which may provide too different of properties (melting point, etc.) when used with cacao.
This blend provides a blended fatty acid profile of about 28% C12:0, 9% C16:0 and 6% C18:0 which is the same as claimed.
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Regarding the ratio of C12:0 to C18:0, this blend provides a ratio of about 4.5 which is within the range of 2.0 to 4.5.
Regarding the ratio of C12:0 to C16:0, this blend provides a ratio of about 3.1 which is within the range of 1.5 to 5.0
A fat composition of about 8% cocoa butter, 60% coconut oil and 32% sunflower oil would provide a fat composition of about 62% saturated fat (C8:0, C10:0, C12: 0, C14:0, C16:0 and C18:0) and 34% monosaturated fat (C18:1) which is about the same in cocoa butter.
Thus, it would have been foreseeable and obvious prior to the earliest effective filing date to blend cocoa butter, coconut oil and sunflower oil that provides a solid fat content of 62% and a monosaturated (C18:1) content of 34% that is consistent with cocoa butter while also having the advantage of different melting points that assist in forming emulsions having high levels of aeration as required by Esteve (‘180).
Regarding, the amounts of the triglycerides having 32 (f.e., C32), 34, 36, 44, 46, 48, 50 and 52 carbon lengths, it is noted Applicant does not set for any non-obvious unexpected results for have any particular combination over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar triglyceride profile would also be present.
Regarding claim 2, Esteve (‘180) teaches wherein the fat composition is non-hydrogenated (See Abs., paras. 3-6, 13-18. As discussed above, it is impossible to tell the difference between non-hydrogenated and hydrogenated fat as the triglycerides are identical.).
Regarding claim 3, Esteve (‘180) teaches wherein the fat composition comprises: from 3.5% to 11.0% by weight of total caprylic acid (C8:0) and capric acid (C10:0) (The above discussed blend provides about 8% combined.); and/or from 18.5% to 40.0% by weight of lauric acid (C12:0) (The above discussed blend provides about 28%.); and/or from 6.0% to 18.0% by weight of palmitic acid (C16:0) (The above discussed blend provides about 16%.); and/or from 4.5% to 16.0% by weight of stearic acid (C18:0) (The above discussed blend provides about 6%.); and/or from 9.0% to 37.0% by weight of oleic acid (C18:1) % (The above discussed blend provides about 34%.); and/or from 35.0% to 90.0% by weight of saturated fatty acid (SAFA) (The above discussed blend provides about 62%.); said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids.
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Regarding claim 4, Esteve (‘180) teaches wherein the fat composition comprises: a weight ratio of lauric acid (C12:0) to stearic acid (C18:0) of from 2.2 to 4.3; and/or a weight ratio of lauric acid (C12:0) to palmitic acid (C16:0) of from 1.7 to 4.5 (The ratio of C12:0 to C16:0 of this blend is about 3.1 which is within the range of 1.7 to 4.5.); and/or a weight ratio of stearic acid (C18:0) to palmitic acid (C16:0) of from 0.3 to 1.5 (The ratio of C18:0 to C16:0 of this blend is about 0.7 which is within the range of 0.3 to 1.5.); said percentages of acid referring to acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acids.
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Regarding claim 5, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition comprises: from 6.0% to 23.0% by weight of total CN32 triglycerides, CN34 triglycerides and CN36 triglycerides; and/or from 10.5% to 43.0% by weight of total CN44 triglycerides, CN46 triglycerides, and CN48 triglycerides; and/or from 3.0% to 11.0% by weight of total CN50 triglycerides and CN52 triglycerides; based on total triglycerides present in the composition.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular combination over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar triglyceride profile would also be present.
Regarding claim 6, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition comprises: at most 6.0% by weight of CN32 triglycerides; and/or at most 8.0% by weight of CN34 triglycerides; and/or from 7.0% to 20.0% by weight of CN42 triglycerides; and/or from 4.0% to 16.0% by weight of CN44 triglycerides; and/or from 3.0% to 15.0% by weight of CN46 triglycerides; based on total triglycerides present in the composition.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular combination over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar triglyceride profile would also be present.
Regarding claim 7, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition has: from 30.0 to 65.0 solid fat content at 10° C; and/or from 10.0 to 40.0 solid fat content at 20° C; and/or at most 20.0 solid fat content at 25° C; and/or at most 10.0 solid fat content at 30° C; and/or at most 5.0 solid fat content at 35° C; measured on unstabilized fat according to ISO 8292-1.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular fat content over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar solid fat content would also be present.
Regarding claim 17, Esteve (‘180) teaches wherein the fat composition comprises: a weight ratio of lauric acid (C12:0) to stearic acid (C18:0) of from 2.3 to 4.2; and/or a weight ratio of lauric acid (C12:0) to palmitic acid (C16:0) of from 1.8 to 4.0 (The ratio of C12:0 to C16:0 of this blend is about 3.1.); and/or a weight ratio of stearic acid (C18:0) to palmitic acid (C16:0) of from 0.4 to 1.3 (The ratio of C18:0 to C16:0 of this blend is about 0.7.).
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Regarding claim 18, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition comprises: from 8.0% to 21.0% by weight of total CN32 triglycerides, CN34 triglycerides and CN36 triglycerides; and/or from 11.0% to 42.0% by weight of total CN44 triglycerides, CN46 triglycerides, and CN48 triglycerides; and/or from 4.0% to 10.0% by weight of total CN50 triglycerides and CN52 triglycerides; based on total triglycerides present in the composition.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular combination over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar triglyceride profile would also be present.
Regarding claim 19, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition comprises: from 0.1% to 5.0% by weight of CN32 triglycerides; and/or from 0.1% to 7.0% by weight of CN34 triglycerides; and/or from 7.5% to 19.0% by weight of CN42 triglycerides; and/or from 4.5% to 15.0% by weight of CN44 triglycerides; and/or from 3.5% to 14.0% by weight of CN46 triglycerides; based on total triglycerides present in the composition.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular combination over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar triglyceride profile would also be present.
Regarding claim 20, Esteve (‘180) teaches the composition discussed above, however, fails to expressly teach wherein the fat composition has: from 32.0 to 60.0 solid fat content at 10° C; and/or from 11.0 to 35.0 solid fat content at 20° C; and/or from 1.0 to 19.0 solid fat content at 25° C; and/or at most 8.0 solid fat content at 30° C; and/or at most 4.0 solid fat content at 35° C; measured on unstabilized fat according to ISO 8292-1.
It is noted Applicant does not set for any non-obvious unexpected results for have any particular fat content over another. As discussed above, Esteve (‘180) teaches the same blended oils and the same fatty acid profile and thus it would have been foreseeable and obvious that a similar solid fat content would also be present.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT T O'HERN whose telephone number is (571)272-6385. The examiner can normally be reached M-Th 5:00 am - 3:30 pm.
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 January 16, 2026