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 Objections
Claims 2-10 are objected to because of the following informalities: there are discrepancies in the preamble of the claims as the preamble is not the same for each claim and varies between “Chocolate drink composition according to claim 1” and “A chocolate drink composition according to claim 1”. It is suggested to use the same preamble for all claims depending from the same independent claim. 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.
Claim 2 is 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 2 recites that the “couverture chocolate has a cocoa content of at least 40%”. This limitation is indefinite as it is not clear what the unit of measurement is for the 40% as it does not recite any unit of measurement, such as 40% by weight.
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 1-3 and 6-11 are rejected under 35 U.S.C. 103 as being unpatentable over Flora (Vegan Dark Hot Chocolate, Flora & Vino, July 19, 2019, made of record by applicant) in view of Mitchell (Couverture Hot Chocolate, Broadsheet, July 13, 2017, Retrieved from Internet URL: https://www.broadsheet.com.au/sydney/food-and-drink/article/five-try-hot-chococlate-2017).
Regarding claim 1, Flora discloses a chocolate drink composition comprising dark chocolate and vegetal milk (page 13 under Recipe).
While Flora teaches dark chocolate, Flora fails to specifically teach that the chocolate is couverture chocolate.
Mitchell discloses a chocolate drink composition comprising couverture chocolate and milk. Mitchell teaches that couverture chocolate has a higher ratio of cocoa butter that gives the chocolate a glossy sheen with a mellow flavor and perfectly balanced sweetness (page 2, para 1).
It would have been obvious to one of ordinary skill in the art to have the dark chocolate of Flora be couverture chocolate as taught by Mitchell as Mitchell teaches that using couverture chocolate in a hot chocolate drink is well known in the art and provides the hot chocolate with a creamier texture due to the cocoa butter and balanced sweetness. This is simply substitution of one known chocolate for another to yield the predictable result of provide a hot chocolate having a higher cocoa butter content that provides a richer, creamier taste.
Flora teaches that the dark chocolate is present in an amount of 3-4 TBSP and the vegetal milk is present in an amount of 1 cup, or 16 TBSP. The recipe also includes 1 TBSP cacao powder with the additional ingredients recited as optional. Therefore, the total amount of ingredients in the vegan dark hot chocolate is 20-21 TBSP.
Flora, therefore, teaches that the total amount of chocolate is present in an amount of 24% by weight (4 TBSP dark chocolate + 1 TBSP cacao powder out of a total 21 TBSP), while the instant claim requires an amount of at least 33% by weight.
Flora teaches that the vegetal milk is present in an amount of 76% by weight (16 TBSP out of a total 21 TBSP), thus falling within the claimed range of at least 50% by weight.
With respect to the exact amount of couverture chocolate, it would have been obvious to one of ordinary skill in the art to increase the amount over what is taught by Flora depending on the desired taste of the composition. Increasing the amount of chocolate will give the composition a richer, more chocolate taste.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Further, From In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of couverture chocolate and vegetal milk in the claimed amounts as they both continue to function predictably, as expected.
With respect to the composition having a viscosity measure at 70 C between 150 and 500 mPa.s, the prior art fails to specifically teach such viscosity, however, the exact viscosity is dependent on the specific amount and type of ingredients. One of ordinary skill in the art can vary the amount and type of ingredients to achieve a desired viscosity through routine experimentation. It is well understood in the art, that using a high amount of vegetal milk will reduce the viscosity of the composition, while using a higher amount of chocolate will increase the viscosity. Therefore, it would have been obvious to one of ordinary skill in the art to determine the optimum viscosity through routine experimentation.
Regarding claim 2, Flora teaches that the chocolate has a cocoa content of 70% or higher (page 13 under recipe).
Mitchell teaches that the couverture chocolate has a cocoa content of 55.4% (page 3), thus falling within the claimed range of at least 40%.
Regarding claim 3, Flora teaches that the vegetal milk is almond milk (page 13 under Recipe), which is a milk obtained from oleaginous fruits.
Regarding claim 6, as stated above, Flora teaches that the dark chocolate is present in an amount of 3-4 TBSP and the vegetal milk is present in an amount of 1 cup, or 16 TBSP. The recipe also includes 1 TBSP cacao powder with the additional ingredients recited as optional. Therefore, the total amount of ingredients in the vegan dark hot chocolate is 20-21 TBSP.
Flora, therefore, teaches that the total amount of chocolate is present in an amount of 24% by weight (4 TBSP dark chocolate + 1 TBSP cacao powder out of a total 21 TBSP), while the instant claim requires an amount of 33-45% by weight.
Flora teaches that the vegetal milk is present in an amount of 76% by weight (16 TBSP out of a total 21 TBSP), while the instant claim requires an amount of 50-70% by weight.
With respect to the exact amount of couverture chocolate, it would have been obvious to one of ordinary skill in the art to increase the amount over what is taught by Flora depending on the desired taste of the composition. Increasing the amount of chocolate will give the composition a richer, more chocolate taste.
With respect to the exact amount of vegetal milk, it would have been obvious to one of ordinary skill in the art to decrease the amount over what is taught by Flora depending on the desired taste and consistency of the hot chocolate. Decreasing the amount will give the hot chocolate a more chocolate taste and would have been obvious to do if desired.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 7, Mitchel teaches that the couverture chocolate has a higher ratio of cocoa butter (page 2, para 1), and therefore the chocolate drink of Flora in view of Mitchell further comprises cocoa butter.
Regarding claim 8, Flora further teaches that the vegan dark hot chocolate can include coconut sugar, which is a sweetening agent, and cinnamon, which is a flavoring agent (page 13 under Recipe).
Regarding claim 9, Flora teaches that the chocolate drink composition is free of milk and/or milk derivatives of animal origin as Flora teaches a vegan couverture hot chocolate comprising almond milk.
Regarding claim 10, with respect to the composition having a viscosity measure at 25 C between 1500 and 3000 mPa.s, the prior art fails to specifically teach such viscosity, however, the exact viscosity is dependent on the specific amount and type of ingredients. One of ordinary skill in the art can vary the amount and type of ingredients to achieve a desired viscosity through routine experimentation. It is well understood in the art, that using a high amount of vegetal milk will reduce the viscosity of the composition, while using a higher amount of chocolate will increase the viscosity. Therefore, it would have been obvious to one of ordinary skill in the art to determine the optimum viscosity through routine experimentation.
Regarding claim 11, Flora teaches a process for preparing a chocolate drink composition comprising the steps consisting of mixing dark chocolate and vegetal milk, heating the mixture and whisking, which corresponds to applicant’s homogenizing, the mixture.
With respect to the exact temperature for heating, Flora teaches heating until the milk is warm and steaming. It would have been obvious to heat to a temperature of at least 75C in order to ensure the ingredients are sufficiently warm enough to combine and homogenize together. Again, as stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.
While Flora teaches dark chocolate, Flora fails to specifically teach that the chocolate is couverture chocolate.
Mitchell discloses a chocolate drink composition comprising couverture chocolate and milk. Mitchell teaches that couverture chocolate has a higher ratio of cocoa butter that gives the chocolate a glossy sheen with a mellow flavor and perfectly balanced sweetness (page 2, para 1).
It would have been obvious to one of ordinary skill in the art to have the dark chocolate of Flora be couverture chocolate as taught by Mitchell as Mitchell teaches that using couverture chocolate in a hot chocolate drink is well known in the art and provides the hot chocolate with a creamier texture due to the cocoa butter and balanced sweetness. This is simply substitution of one known chocolate for another to yield the predictable result of provide a hot chocolate having a higher cocoa butter content that provides a richer, creamier taste.
Flora teaches that the dark chocolate is present in an amount of 3-4 TBSP and the vegetal milk is present in an amount of 1 cup, or 16 TBSP. The recipe also includes 1 TBSP cacao powder with the additional ingredients recited as optional. Therefore, the total amount of ingredients in the vegan dark hot chocolate is 20-21 TBSP.
Flora, therefore, teaches that the total amount of chocolate is present in an amount of 24% by weight (4 TBSP dark chocolate + 1 TBSP cacao powder out of a total 21 TBSP), while the instant claim requires an amount of at least 33% by weight.
Flora teaches that the vegetal milk is present in an amount of 76% by weight (16 TBSP out of a total 21 TBSP), thus falling within the claimed range of at least 50% by weight.
With respect to the exact amount of couverture chocolate, it would have been obvious to one of ordinary skill in the art to increase the amount over what is taught by Flora depending on the desired taste of the composition. Increasing the amount of chocolate will give the composition a richer, more chocolate taste.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Further, From In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the combination of couverture chocolate and vegetal milk in the claimed amounts as they both continue to function predictably, as expected.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Flora (Vegan Dark Hot Chocolate, Flora & Vino, July 19, 2019, made of record by applicant) and Mitchell (Couverture Hot Chocolate, Broadsheet, July 13, 2017, Retrieved from Internet URL: https://www.broadsheet.com.au/sydney/food-and-drink/article/five-try-hot-chococlate-2017) as applied to claim 1 above, and further in view of Claudepierre (Vegan Hot Chocolate Recipe from Scratch, The Conscious Plant Kitchen, Jan. 27, 2021, made of record by applicant).
Regarding claim 4, Flora teaches the composition comprising vegetal milk as described above with respect to claim 1, wherein the milk is almond milk, but fails to further teach that the milk is obtained from cereals.
Claudepierre discloses a vegan hot chocolate recipe that can use oat milk (e.g. a milk obtained from cereal) as it is creamier and provides a smooth thick hot chocolate (page 5).
It would have been obvious to one of ordinary skill in the art to have the vegetal milk of Flora comprise oat milk as taught by Claudepierre as it would predictably provide the hot chocolate of Flora with a creamier taste and a thicker consistency.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Flora (Vegan Dark Hot Chocolate, Flora & Vino, July 19, 2019, made of record by applicant), Mitchell (Couverture Hot Chocolate, Broadsheet, July 13, 2017, Retrieved from Internet URL: https://www.broadsheet.com.au/sydney/food-and-drink/article/five-try-hot-chococlate-2017), and Claudepierre (Vegan Hot Chocolate Recipe from Scratch, The Conscious Plant Kitchen, Jan. 27, 2021, made of record by applicant) as applied to claim 4 above, and further in view of The Green Creator (How to Make Oat Milk, Sept. 9, 2017, Retrieved from Internet URL: https://thegreencreator.com/how-to-make-oat-milk/).
Regarding claim 5, as stated above with respect to claim 4, it would have been obvious to use oat milk in the hot chocolate of Flora.
The Green Creator further teaches that oat milk is made with 100 g oats and 750 g water (See Recipe, pages 9-10). Therefore, The Green Creator teaches that oat milk comprises 88% by weight of water (e.g. 750 g out of total 850 g), thus falling within the claimed range of at least 80% by weight, and 12% by weight oats (e.g. cereal) (100 g out of total 850 g), thus falling within the claimed range of at least 10% by weight.
It would have been obvious to one of ordinary skill in the art to use an oat milk as taught by The Green Creator as The Green Creator teaches that the oat milk is great for drinks and provides a suitable creaminess (pages 3-4).
Conclusion
No claims are allowed.
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