DETAILED ACTION
Amendments made July 28, 2026 have been entered.
Claims 1-5 are pending;
Claim 5 has been withdrawn.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.
Specification
The objection to the disclosure is objected to because of the following informalities: “8 is The main body” in paragraph 40 and “in FIG” in paragraph 46 have been withdrawn in light of applicant’s amendments made July 28, 2026.
Drawings
The objection to the drawings because the scale in Figures 2-4 is illegible has been withdrawn in light of applicant’s amendments made July 28, 2026.
The drawings remain objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “3)-1” has been used to designate both an atomization device and a pulverizer (see instant specification paragraph 40). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-4 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “a number of viable bacteria contained in the cylinder heated extruder processed ground product is 3,000/g or less”. Although the disclosure as originally filed, see claim 1 and paragraph 21 had support for “general bacteria” in an amount of 3,000g/less, there is no support found for the viable bacteria for being in an amount of 3,000g/less as instantly claimed.
Claim 1 recites “an average particle size of the non-oil components and fat components other than cocoa bean fat in the cylinder heated extruder-process ground product is in the range of 100 to 300um, as measured using laser diffraction particle size distribution measurement method”. Although the disclosure as originally filled has support for the average particle size of the ground processed food material as 100-300um (instant specification paragraph 47), there is no support for the average particle size of the non-oil components and fat components other than cocoa bean fat as being within the recited range.
The rejection of claims 1-4 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, due to “general bacteria” in claim 1, “3000/g or less” in claim 1, and "the non-oil and fat components" in claim 2 has been withdrawn in light of applicant’s amendments made July 28, 2026.
Claims 1-4 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.
Claim 1 recites “cacao and/or cacao processed product”. It is unclear as to if this term requires a cacao component, or if the term requires a component that can be processed with cacao. Although the term itself would suggest that cacao is required, it appears the claimed term may just be nomenclature because instant specification paragraph 10 recite that the cacao and/or cacao processed product is saccharides, powdered milk, plant-based milk substitutes, and vegetable oils and fats, all of which do not contain cacao, but can be used in cacao processing.
Similarly, claim 1 recites the term “extruder-processed ground product” and it is unclear as to if the term requires a product which has been extruded and ground, or if the term is simply nomenclature used to identify a product. Although the claim language would suggest the term require a product which has been extruded and ground, the instant specification paragraph 25 states “the term “extruder processed ground product” in the present invention can be a general term for food materials that can be added to foodstuffs as they are, dispersed/dissolved in liquids after addition, or incorporated into foods and drinks”. As such it is further unclear as to if the limitations which define “the extruder-processed ground product”, including those recited in claims 2 and 4, are defining the result of an extruded and ground product, or may refer to an intermediate product at any stage, including before grinding and/or extrusion, such that the food material need only align with the specification paragraph 25.
Claims 1 and 2 recite the limitation "non-oil components and fat components other than cocoa bean fat". It is unclear as to if the claimed limitation is requiring the food material comprise non-oil components and fat components other than cocoa bean fat, or as to if the limitation is simply limiting said components if they are present. Additionally, it is unclear as to if the term is meant to encompass all non-oil components which may be present, and all fat components other than cocoa bean fat that may be present, or if the claim only requires two or more of said elements meeting the claimed limitations. It is further unclear as to if the claimed limitations are product by process limitations which limit the particle sizes at some specific step, or as to if the limitations are intended to reflect a particle size within the final product claimed, or alternatively in a product that can be made therefrom, i.e. intended use.
Claim 2 recites “the average particle size of the non-oil components and the fat components other than the cocoa bean fat of a wet-pulverized product obtained by wet-pulverizing the cylinder heated extruder-processed ground product is in the range of 2.26-13.24um, as measured using laser diffraction particle size distribution measurement method”. It is unclear as to if the claimed limitation is intended use of the ground product recited in the body of claim 1, or as to if the claim intends to limit the ground processed food material to the claimed particle size. It is noted that if it is the latter, the claim may conflict with the claim from which it depends by encompassing a product with a particle size outside the particle size previously claimed.
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 under 35 U.S.C. 102(a)(1) as being anticipated by XP000680694 (“Proved extruder applications for chocolate and cocoa” pages 38-39) has been withdrawn in light of applicant’s amendments made July 28, 2026 which recite that the non-oil components and fat components other than cocoa butter in the ground product have an average particle size of 100-3000um.
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 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over XP000680694 (“Proved extruder applications for chocolate and cocoa” pages 38-39).
Regarding claims 1-4, as discussed above, the claimed limitations are unclear. Specifically, it is noted that it is unclear as to if the recited properties of the product are directed to the final product, i.e. food material being claimed, or as to if they are to an intermediate product, or if they are to a future product, i.e. an intended use limitation (see for example the different particle sizes recited in claims 1 and 2). Regardless, under the broadest reasonable interpretation, the prior art is considered to encompass the claimed limitations for the reasons herein.
XP000680694 ‘694 teaches short time chocolate process which employee extruders to pre-break cocoa nibs, mix ingredients, liquify the refined powder, and pasteurize the cocoa cake (page 38 Introduction).
Regarding claim 1, if intended, the limitation of processing in cylinder heated extruder would be considered a product by process limitation, wherein the process would be considered as much as it affects the claimed product. In the instant case, as no time or temperature for heating has been claimed, processing in a cylinder heated extruder is considered to impart a reduced bacterial level to an extruded product. As ‘694 teaches ground and heat extruded processed cocoa material which has a decreased germ content of less than 50 germs/gram and which is processed with steam and leaves the extruder at a temperature of 130-150C, i.e. a heated temperature, (page 38, Deagglomeration and pasteurization of cocoa cake paragraphs 1, 2, 4, 6, and page 39 paragraphs 1 and 3), the teachings of ‘694 are considered to encompass a cylinder heated extruder-processed ground product of cacao and/or cacao processed product wherein the viable bacteria range is 3,000/g or less. It is noted that as the total disclosed germ comprises viable bacteria and is taught to be less than 3,000/g, the number of viable bacteria would also be less than 3,000/g.
Regarding an average particle size of non-oil components and fat components other than cocoa bean fat in the ground product as in the range of 100-300um as measured using laser diffraction particle size distribution as recited in claim 1, or the average particle size of the non-oil components and fat components other than cocoa bean fat of a wet pulverized product obtained by wet-pulverizing the cylinder heated extruder processed ground product as in the range of 2.26-13.24um as measured using laser diffraction particle size distribution as recited in claim 2, as discussed above the claimed limitations are unclear and product by process limitations are considered only as they affect the final product. Intended use limitations only require the product be capable of functioning in the claimed manner. ‘694 is not specific to the claimed limitations. However, as ‘694 teaches that the cocoa cake is crushed to approximately 2-20mm, wherein the process includes extrusion with strong shear stresses which distegrate the cake, followed by separation of about 5% coarse particles with a size larger than 75um (page 39, column 1 paragraphs 1-3), the intermediate products of the prior art would travel from about 2000 microns to 75 microns or less, and thus, the process of the prior art would result at least in an intermediate product which had a particle size within the claimed range of 100-300um. It is noted that 5% particles larger than 75um as taught by ‘694, page 39 column 1 paragraph 3 would also encompass the range recited in claim 1. Furthermore, as ‘694 teaches additional pulverizing to a high degree of fineness, e.g. a high amount of particle sizes below 25um (page 39 paragraph 4), which encompasses the range recited in claim 2, the teachings of ‘694 would further encompass a product that was capable of being wet pulverized to the particle sizes claimed and/or a product with an overlapping particle size. It is noted that the cocoa cake would not contain any fat components other than cocoa bean fat, and it would have been obvious that the non-oil components be within the same average particle size as the product as a whole. Thus, the claimed limitations are considered encompassed, or at least obvious over the teachings of the prior art.
Regarding claim 3, ‘694 teaches the process is for cocoa nibs or products derived therefrom (page 38, column 1 and Deagglomeration and pasteurization of cocoa cake paragraph 1).
Regarding claim 4, ‘694 is not explicit to the form of the product as liquid, semi-solid, or solid, however as ‘694 teaches of extrusion, and extrusion is defined as forming a material with a desired cross section by forcing it through a die, the prior art would at least encompass a product which is semi-solid and would be able to be forced through a die. Furthermore, ‘694 teaches the product can be liquidified (page 39, columns 3-4 Liquefying of crumb chocolate), and it is noted that the conditions for which the liquid or semi-solid are present have not been claimed and chocolate products were known to become liquid or semi-solid, i.e. to melt, at elevated temperatures, even at higher room temperatures.
Response to Arguments
Applicant's arguments filed July 28, 2026 regarding the remaining objection to the drawings have been fully considered but they are not persuasive.
Applicant argues that the use of reference character 3-1 to designate both an atomizer and pulverizer is okay because the disclosed example of the device, “Starburst” can be used for both atomization and pulverization. This, however, does not cure the deficiencies. Although the disclosed device may be used for both, it is unclear as to if the reference character 3-1 would necessarily be required to be both an atomizer and pulverizer or if a machine with only one of those functions would also encompass the reference character.
Applicant's arguments filed July 28, 2026 regarding the remaining rejections have been fully considered but they are not persuasive.
Applicant argues that the term “cacao and/or cacao processed product” in claim 1 is clear because one of ordinary skill in the art would understand it in context of the disclosure as including at least one of cacao or a product that is processed from cacao. This argument is not convincing as the instant specification paragraph 10 recites that the cacao and/or cacao processed product is saccharides, powdered milk, plant-based milk substitutes, and vegetable oils and fats. As not all of the components in the recited Markush group contain cocoa or are a processed product of cocoa the term remains unclear. For example, powdered milk does not include at least one of cacao or a product that is processed from cacao. Rather than use the term as defined in the specification, it is suggested that applicant amend the claims to clearly recite the intended compositional elements of the food material.
Applicant argues that the term “extruder processed ground product” is clear because one of ordinary skill in the art would understand it in context of the disclosure, paragraph 30 as a material which undergoes grinding when passed through an extruder. This is not convincing. Although the claim language and paragraph 30 would suggest the term require a product which has been extruded and ground, the instant specification paragraph 25 states “the term “extruder processed ground product” in the present invention can be a general term for food materials that can be added to foodstuffs as they are, dispersed/dissolved in liquids after addition, or incorporated into foods and drinks”. As such, the metes and bounds of the term in regard to requiring a product that is extruded and ground remain unclear. It is suggested rather than use the term as defined in the specification, applicant incorporate clear product by process limitations, such as “extruding” or “grinding” into the claims.
Applicant argues that the term “non-oil and fat components” would not be unclear and would encompass any possible non-oil components and fat components other than cocoa bean fat. This argument is not convincing for the reasons stated above. Specifically, it is unclear as to if the claims require such elements be present, or are merely reciting optional limitations if they are present. It is also unclear as to if any two of the components would meet the claim limitations if present, or if the term would require all such components to meet the claimed limitations.
Applicant argues that ‘694 does not teach using a cylinder heat extruder to process chocolate. This argument is not convincing. First it is noted that the claims are directed to a product, and not a method of making, and product by process limitations are considered only in the manner that the recited method affects the final product. In the instant case, the limitation would only impart some degree of heating, as well as extrusion. Second, applicant is referred to ‘694 page 39 paragraph 2 which specifically teaches processing in an extruder under elevated temperatures, thus the product produced by the prior art would be expected to encompass the product as claimed.
Applicant argues that ‘694 does not teach the ground product as comprising 3,000/g or less of viable bacteria. This argument is not convincing as ‘694 teaches the total germ content after treatment is below 3,000/g (page 39 Table 1), thus as the total germ would include viable bacteria, the viable bacteria content must also be within the same range.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
LS Labor “Total microbial count determination” https://www.labor-ls.de/en/tests-studies/non-sterile-products/total-microbial-count-determination/ pages 1-5 printed October 2026 show that total germ count includes viable bacteria.
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.
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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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/ Primary Patent Examiner, Art Unit 1792
