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 .
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 1-3, 5-7 and 20-21 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.
Regarding claim 1, it is not clear if the oily food comprising the heat-generating material is “in a state not in contact with moisture” or if the heat-generating material is “in a state not in contact with moisture”. For purposes of examination, the examiner is interpreting the claim to recite that the heat-generating material is in a state not in contact with moisture, consistent with the interpretation at [0017] of the instant specification. It is suggested to amend the claim to clarify what is in a state not in contact with moisture (e.g. wherein the heat-generating material is in a state not in contact with moisture).
Regarding claim 2, it is not clear how the calorific value is measured as it recites “1.0 J/g or more per oily food”. Is the measurement per total weight of oily food?
Claims 3, 5-7 and 20-21 are included as they depend from rejected claims 1 and 2.
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.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional cited references related to food compositions comprising zeolite:
US 2013/0309291 A1: [0080] teaches adding zeolite to a confection.
US 2013/0101722 A1: [0136] teaches adding zeolite to a chocolate beverage.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791