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 .
The Amendment filed May 19, 2026 has been entered. Claims 1-3, 5-7 and 20-21 are pending. Claims 1 and 2 have been amended.
Claim Rejections - 35 USC § 103
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 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 1-2 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Bragg (“Healthy Recipe – Coconut Cocoa and Zeolite Chocolate”, February 23, 2015; Retrieved from Internet URL: wakeup-world.com/2015/02/24/healthy-recipe-coconut-oil-raw-cacao-and-zeolite-chocolate-dairy-free/) in view of Bohra et al. (“An Eco-friendly and Reusable Heat Source for Self-Heating Food Packaging”, International Journal of Engineering Research & Technology, Vol. 4 Issue 5, May 2015).
Regarding claim 1, Bragg discloses an oily food composition (i.e. chocolate) comprising zeolite (page 1 under Recipe).
Bragg fails to specifically teach that the zeolite is a heat-generating material that generates heat by contact with moisture, however, as evidenced by Bohra, zeolite is a known source for generating heat when coming into contact with moisture (page 365). Therefore, Bragg is considered to teach an oily food comprising a heat-generating material that generates heat by contact with moisture, wherein the heat-generating material is zeolite.
While Bragg discloses the composition as described above, Bragg teaches that the zeolite is present in the form of liquid drops and not in a state not in contact with moisture as claimed.
Bohra discloses a food composition comprising a heat-generating material that generates heat by contact with moisture (page 365 under Introduction: wherein the heat generating material is immersed in the food), wherein the heat-generating material is in a state not in contact with moisture (i.e. dehydrated, page 366-368; Fig. 3), and wherein the heat-generating material is zeolite.
It would have been obvious to one of ordinary skill in the art to have the zeolite of Bragg be zeolite powder as taught by Bohra as Bohra teaches that combining zeolite powder with food is well known in the art and would predictably provide the same results in the chocolate of Bragg. This is merely substitution of one known form of zeolite for another to yield the predictable result of incorporating zeolite into a food composition.
Regarding claim 2, as stated above, the prior art teaches an oily food comprising zeolite, a heat-generating material. With respect to the calorific value derived from the heat-generating material in the oily food, the prior art fails to teach that it is 1.0 J/g or more per oily food. However, the calorific value is dependent upon the amount ingredients in the oily food and the amount of heat-generating material added to the oily food. It would have been obvious to one of ordinary skill in the art to determine the optimum amount of ingredients that make up the oily food to achieve a desired calorific value. Further, it is well within the ordinary skill in the art to vary the amount of heat-generating material in the oily food depending on the desired amount of heat to be generated, which would result in a desired calorific value. This is merely routine experimentation that is well understood and conventional in the art.
Regarding claims 5-7, Bragg teaches the oily food as described above comprising 30-40 drops of zeolite (page 1 under Recipe). Bragg in view of Bohra render obvious the use of dehydrate zeolite (pages 366-368, Fig. 3) instead of zeolite drops as stated above with respect to claim 1.
It is well known in the art that 180 drops of a liquid equals 1 tablespoon. Therefore, 30-40 drops are equivalent to about 0.17 to 0.22 tablespoons. Combining the amounts of the additional ingredients (e.g. 4-12 tbsp coconut oil (16 tbsp = 1 cup) + 3-4 tbsp cacao powder + 4 tbsp coconut milk + 0.17-0.22 tbsp zeolite + 0.02 tbsp vanilla + 1-3 tbsp sugar = 13.19 - 26.24 total tablespoons), the amount of zeolite, or heat-generating material comprises 0.8-1.3% by weight of the total amount, which falls within the claimed range of 0.1 to 5.0 wt%.
Claims 3 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bragg (“Healthy Recipe – Coconut Cocoa and Zeolite Chocolate”, February 23, 2015; Retrieved from Internet URL: wakeup-world.com/2015/02/24/healthy-recipe-coconut-oil-raw-cacao-and-zeolite-chocolate-dairy-free/) in view of Bohra et al. (“An Eco-friendly and Reusable Heat Source for Self-Heating Food Packaging”, International Journal of Engineering Research & Technology, Vol. 4 Issue 5, May 2015) as applied to claims 1 and 2 above, and further in view of Taylor (“Homemade Chocolate”, October 17, 2020, Retrieved from Internet URL: https://www.inthekitchenwithmatt.com/homemade-chocolate).
Regarding claims 3 and 20, as stated above, Bragg teaches an oily food containing the heat-generating material. Bragg in view of Bohra render obvious using zeolite powder instead of drops and therefore the only moisture present in the chocolate of Bragg is due to the presence of coconut milk and vanilla extract.
Taylor teaches that it is known in the art to make chocolate without coconut milk or vanilla extract, using only coconut oil, cocoa powder and a sweetener (See Recipe).
It would have been obvious to one of ordinary skill in the art to eliminate the coconut milk and vanilla extract in the oily food of Bragg as it is well known in the art that a chocolate composition does not need coconut milk or vanilla extract as taught by Taylor.
As stated in MPEP 2144.04 II B: Omission of an element and its function is obvious if the function of the element is not desired. In the instant case, the coconut milk and vanilla extract would merely give the chocolate composition a different texture and flavor and therefore, depending on the desired texture and flavor, it would have been obvious to make the chocolate of Bragg without coconut milk or vanilla extract as taught by Taylor, thus resulting in an amount of moisture present in the chocolate, or oily food that is 5 wt% or less.
Regarding claim 21, Bragg teaches the oily food as described above comprising 30-40 drops of zeolite (page 1 under Recipe). Bragg in view of Bohra render obvious the use of dehydrate zeolite (pages 366-368, Fig. 3) instead of zeolite drops as stated above with respect to claim 1.
It is well known in the art that 180 drops of a liquid equals 1 tablespoon. Therefore, 30-40 drops are equivalent to about 0.17 to 0.22 tablespoons. Combining the amounts of the additional ingredients (e.g. 4-12 tbsp coconut oil (16 tbsp = 1 cup) + 3-4 tbsp cacao powder + 4 tbsp coconut milk + 0.17-0.22 tbsp zeolite + 0.02 tbsp vanilla + 1-3 tbsp sugar = 13.19 - 26.24 total tablespoons), the amount of zeolite, or heat-generating material comprises 0.8-1.3% by weight of the total amount, which falls within the claimed range of 0.1 to 5.0 wt%.
Claims 1-3, 5-7 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bohra et al. (“An Eco-friendly and Reusable Heat Source for Self-Heating Food Packaging”, International Journal of Engineering Research & Technology, Vol. 4 Issue 5, May 2015) in view of Bragg (“Healthy Recipe – Coconut Cocoa and Zeolite Chocolate”, February 23, 2015; Retrieved from Internet URL: wakeup-world.com/2015/02/24/healthy-recipe-coconut-oil-raw-cacao-and-zeolite-chocolate-dairy-free/).
Regarding claim 1, Bohra discloses a food composition comprising a heat-generating material that generates heat by contact with moisture (page 365 under Introduction: wherein the heat generating material is immersed in the food), wherein the heat-generating material is in a state not in contact with moisture (i.e. dehydrated, page 366-368; Fig. 3), and wherein the heat-generating material is zeolite.
While Bohra teaches that a heat-generating material can be immersed in a food composition, Bohra fails to specifically teach that the food is an oily food as claimed.
Bragg discloses an oily food composition (i.e. chocolate) comprising zeolite (Page 1 under recipe).
It would have been obvious for the food of Bohra to which the zeolite is immersed be an oily food as taught by Bragg. Bragg clearly teaches that it is well known in the art to combine zeolite with an oily food composition and therefore would have been obvious for the food of Bohra be a chocolate, or oily food, as it would predictably function the same.
Regarding claim 2, as stated above, the prior art renders obvious an oily food comprising zeolite, a heat-generating material. With respect to the calorific value derived from the heat-generating material in the oily food, Bohra in view of Bragg fail to teach that it is 1.0 J/g or more per oily food. However, the calorific value is dependent upon the type of food and ingredients, and amount of ingredients and heat-generating material added. It would have been obvious to one of ordinary skill in the art to determine the optimum amount of ingredients that make up the food to achieve a desired calorific value. Further, it is well within the ordinary skill in the art to vary the amount of heat-generating material in the food depending on the desired amount of heat to be generated, which would result in a desired calorific value. This is merely routine experimentation that is well understood and conventional in the art.
Regarding claims 3 and 20, as stated above, Bohra discloses a food composition comprising the heat-generating material. Bohra is generic with respect to the type of food and ingredients in the food as Bohra merely states immersing the zeolite into the food (page 365 under Introduction).
Bohra, however, teaches the zeolite is activated after being immersed in the food due to the additional of water so as to heat the food (page 365 under Introduction). Therefore, it would have been obvious to one of ordinary skill in the art to have the food of Bohra contain 5 wt% or less moisture such that the zeolite is not activated and generates heat when it is desirable to activate.
Regarding claims 5-7 and 21, Bohra teaches the addition of zeolite to a food, but fails to teach the amount of zeolite added.
Bragg teaches the oily food as described above comprising 30-40 drops of zeolite (page 1 under Recipe). It is well known in the art that 180 drops of a liquid equals 1 tablespoon. Therefore, 30-40 drops are equivalent to about 0.17 to 0.22 tablespoons. Combining the amounts of the additional ingredients (e.g. 4-12 tbsp coconut oil + 3-4 tbsp cacao powder + 4 tbsp coconut milk + 0.17-0.22 tbsp zeolite + 0.02 tbsp vanilla + 1-3 tbsp sugar = 13.19 - 26.24 total tablespoons), the amount of zeolite, or heat-generating material comprises 0.8-1.3% by weight of the total amount, which falls within the claimed range of 0.1 to 5.0 wt%.
It would have been obvious to have the food of Bohra comprising the dehydrated zeolite in a similar amount as taught by Bragg as Bragg teaches that such amount is suitable for use in a food product.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejections have been fully considered but were not found persuasive.
Applicant argues on page 5 that it would not have been obvious to arrive at the claimed invention as Bohra is not analogous art. Applicant states that Bohra is not in the same field of endeavor as the claimed invention because Bohra is in the field of food packaging while the claimed invention is in the field of oily food.
This is not found persuasive. In response to applicant's argument that Bohra is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Bohra is considered to be in the same field of endeavor as both Bohra and the instant invention pertain to a food product comprising zeolite that is used to generate heat when immersed within the food product. Just because Bohra teaches packaging the food product, does not mean it is not in the same field of endeavor.
Applicant further argues on page 6 that it would not have been obvious to substitute the liquid zeolite in Bragg with the dehydrated zeolite in Bohra to mix in the oily food of Bragg.
This is not found persuasive as both liquid and dehydrated forms of zeolite are known in the art to be useful in food and therefore, the prior art suggests the use of either/or in a food product. One of ordinary skill would have been motivated to use dehydrated zeolite in the oily food of Bragg as Bohra teaches that combining zeolite powder with food is well known in the art and would predictably provide the same results in the chocolate of Bragg. This is merely substitution of one known form of zeolite for another to yield the predictable result of incorporating zeolite into a food composition.
Applicant’s arguments with respect to the unexpected results are not found persuasive as the combination of the prior art would expectedly provide the oily food, or chocolate, of Bragg with heat generative properties as taught by Bohra. Therefore, it would be expected that adding dehydrated zeolite to the chocolate composition of Bragg would improve the texture due to the heat generation. Further, the unexpected results appear to use specific ingredients in specific amounts, which are not reflected in the claim 1. Do the unexpected results occur for any oil food with ingredients in any amount? Therefore, applicant’s arguments are not commensurate in scope with the claims.
Applicant’s arguments on page 7 are not found persuasive for the same reasons as stated above.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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