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 .
DETAILED ACTION
Claim 9 has been amended.
Claims 1-13 are pending in the current application.
Claims 8-13 are withdrawn from considerations (see discussion, below).
Claims 1-7 are examined in the current application.
Election/Restrictions
Claims 8-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on December 30th, 2025.
Applicant's election with traverse of claims 1-7 in the reply filed on December 30th, 2025 is acknowledged. The traversal is on the ground that searching the limitations of claims 8-13 will not impose serious burden. This is not found persuasive because an election requirement was imposed on claims 1-13, as the current application is the national stage of a PCT (i.e., 371 of PCT), and not a use filed application where serious search burden standard is one of the considerations. Given the fact prior art applied provided the technical feature common to between groups I-V not a special technical feature. The five groups of claims were not so linked within the meaning of PCT Rule 13.2 so as to from a single inventive concept, which rendered the unity between group I-V broken (see Office Action of 12/4/2025).
The requirement is still deemed proper and is therefore made FINAL.
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.
Claims 1-7 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Regarding claim 1: The addition of the word “type” to an otherwise definite expressions “milk” and “white”, renders the claim indefinite, because it is unclear what “type[s]” were intended to convey. The phrases “milk-type” and “white-type” are not defined by the claim, nor does the specification provides a clear definite, and given its broadest reasonable interpretation, “type” extends the scope of the expressions “milk” and “white” so as to render them indefinite. Therefore, one of ordinary skill in the art would read it with more than one reasonable interpretation, and thus such skilled artisan would not be reasonably apprised of its meaning. Applicant is urged to correct and/or clarify the metes and bounds of the phrase and the claim as recited without introducing new matter.
Regarding claims 3, 4 and 7: The phrases “the fat content of the protein-rich fraction derived from chickpea seeds is at least 8.0% (w/w DM), preferably at least 10.0% (w/w DM)” in claim 3, “the ratio between the fat content of the protein-rich fraction derived from chickpea seeds and the protein content of the protein-rich fraction derived from chickpea seeds is at least 0.10, preferably at least 0.15” in claim 4 and “the chocolate comprises between 5.0 and 25.0 % (w/w), preferably between 10.0 and 20.0% (w/w), of a combination of a protein-rich fraction derived from chickpea seeds and one or more bulking agents” in claim 7, render the claims indefinite, because it is unclear what is the fat content in the protein-rich fraction of chickpeas, the ratio of fat to protein in the protein-rich fraction of chickpeas, and the content of protein and bulking agent in the chocolate composition. In view of the fact that the preferences recited are nothing more than suggestive language that does not limit the claim to a particular structure, such language does not properly limits the scope of the claim, thus rendering the claim indefinite (see MPEP §2106). Applicants are urged to correct and/or clarify the metes and bounds of the phrases and the claim as recited without introducing new matter.
Moreover regarding claims 2-7: In view of the fact that dependent claims 2-4 depend on independent claim 1, and since independent claim 1 is rejected under 35 U.S.C. 112(b) as being indefinite, claims 2-7 are rejected as being indefinite for depending on an indefinite claim.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over NPL “Chocolate Chickpea Truffles” (‘Northfield’) (from https://www.northfieldhospital.org/recipe/chocolate-chickpea-truffles). Evidence from NPL “Chickpea Protein Content” (GoogleSearch) (from https://www.google.com/search?q=what+is+the+protein+content+of+chickpeas&num).
Regarding claims 1, 2 and 5-7: Northfield discloses chocolate truffles without dairy constituents, wherein the chocolate truffles comprise about 40% chickpeas (see Northfield page 1). Given the fact chickpeas comprise about 20wt% protein (see GoogleSearch page 1), the protein contents recited in claims 1, 6 and 7 are met by the disclosure in Northfield.
As to the limitations that the protein are originated from a protein-rich fraction of chickpea seeds recited in claims 1 and 7, and the contents of the protein in the protein-rich fraction of chickpeas recited in claims 1 and 2: Northfield discloses chocolate truffles without dairy constituents, wherein the chocolate truffles comprise about 40% chickpea seeds (see Northfield page 1) where chickpeas are known to comprise about 20wt% protein (see GoogleSearch page 1), but fails to disclose the protein-rich fraction of chickpeas as the source of the protein; However, given the fact that chickpeas are known to comprise protein, and since Northfield does not disclose removing or adding additional chickpeas protein to the truffles, while the chickpea protein in Northfield is not from the same source recited in the claims, it appears that Applicant is merely putting the chickpea fraction source of the protein limitations not to differentiate the effect of having the chickpea protein in a particular amount from a other sources (the chickpeas in Northfield), but merely to give credence to where the source is. As such, it is Examiner’s position that the chickpea protein originating from a protein-rich fraction of chickpea seeds with a certain protein concentration recitations do not render the current limitations patentably distinct from the prior art.
Moreover regarding claims 5 and 7: Northfield discloses the truffles comprise about 8% bulking agent (i.e., rolled oats) (see Northfield page 1), which reads on protein and bulking agent content recited in claim 7.
Regarding claims 3 and 4: Northfield discloses chocolate truffles without dairy constituents, wherein the chocolate truffles comprise about 40% chickpea seeds (see Northfield page 1) where chickpeas are known to comprise about 20wt% protein (see GoogleSearch page 1), but fails to disclose the protein-rich fraction of chickpeas, with a certain fat content and fat to protein content, as the source of the protein; However, given the fact that chickpeas are known to comprise protein, and since Northfield does not disclose removing or adding additional chickpeas protein to the truffles, while the chickpea protein in Northfield is not from the same source recited in the claims, it appears that Applicant is merely putting the chickpea fraction source, its protein and fat and the ratio of fat to protein limitations not to differentiate the effect of having the chickpea protein in a particular amount from other sources (i.e., the chickpeas in Northfield), but merely to give credence to where the source is. As such, it is Examiner’s position that the chickpea protein originating from a protein-rich fraction of chickpea seeds, with a certain fat content and ratio of fat to protein recitations do not render the current limitations patentably distinct from the prior art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792