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 .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-11 and 13-17
Withdrawn claims: 1-11
Previously canceled claims: None
Newly canceled claims: 12
Amended claims: 1, 3-11 and 13-17
New claims: None
Claims currently under consideration: 13-17
Currently rejected claims: 13-17
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group II claims 13-17 in the reply filed on 6 May 2026 is acknowledged.
Claims 1-11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6 May 2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 13-16 are objected to because of the following informalities:
In claim 13, “20.0wt%” should read, “20.0 wt%”.
In claim 14, “1.0wt% and 45.0wt%” should read, “1.0 wt% and 45.0 wt%”.
In claim 15, “0.2wt% and 15.0wt%” should read, “0.2 wt% and 15.0 wt%”.
In claim 16, “0.6wt% and 27wt%” should read, “0.6 wt% and 27 wt%”.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 13-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bachmüller et al. (EP 3685673 B1, cited on the IDS filed on 15 May 2024, see translation provided) as evidenced by Santa Barbara Chocolate (Organic Cocoa Mass Specifications. (2019, July 19). Santa Barbara Chocolate. Retrieved May 27, 2026 from https://web.archive.org/web/20190719170746/https://www.santabarbarachocolate.com/ organic-cocoa-mass-specifications/) and Molin et al. (WO 89/08405 A1).
Regarding claim 13, Bachmüller teaches a chocolate product – “a vegan chocolate crumb” ([0041] – [0044]).
comprising a plant-based composition, said plant-based composition comprising (i) plant protein – “cocoa mass 12,00” wt% ([0042]). As evidenced by Santa Barbara Chocolate, cocoa mass contains 14g/100g protein (p. 4, Table, “Protein”).
and (ii) a plant flour – “Oatmeal (hydrolyzed with α-amylase) 10,00” wt% ([0042]). Bachmüller also refers to hydrolyzed oatmeal as hydrolyzed oat flour ([0016], [0028], [0029]).
Regarding the recitation that the plant flour “comprises greater than 20.0 wt% soluble dry matter based on the total weight of dry matter in the plant flour”, Applicant is reminded that the claim is toward the chocolate product in its final form. In its final form, the amount of soluble dry matter of the plant flour used to prepare the chocolate product is not discernable. Therefore, this property of the plant flour does not limit the claim.
Even if the recited clause were limiting, Bachmüller teaches that processes for the preparation of oat flour hydrolyzed with α-amylase are described in WO 89/08405 A1 (i.e., evidentiary reference Molin) ([0016]). Molin provides:
In the method, the cereal flour is suspended in water, and α-amylase is added, either in the form of malt flour, pure α-amylase, or in the form of α-amylase-containing microorganisms. The suspension is brought to the boil under agitation to the suitable temperature which, if it is an oat suspension, is maximally 95°C. Then, the suspension is allowed to cool about 50°C, whereupon β-glucanase is added which is allowed to act for 1-2 hours at about 50 C, where- upon the viscosity has decreased to about 0.020 Pas. (p. 5, lines 1-10; see also Example, p. 6, lines 20-29)
As evidenced by the instant specification, a substantially similar process wherein oat flour is mixed with amylase, heated to 80 °C for 4 min, cooled to 56 °C, glucanase added, and the mixture incubated for 60 min at 56 °C results in an oat flour with 85% soluble dry matter (p. 29, lines 15-19 and Table).
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). See MPEP § 2112.01(I).
Claim 13 is therefore anticipated.
Regarding claim 14, Bachmüller teaches that the chocolate product comprises between 1.0 wt% and 45.0 wt% of the plant-based composition based on the weight of the chocolate product – Where the claimed plant-based composition is interpreted as the amount of cocoa mass and hydrolyzed oatmeal disclosed by Bachmüller, the chocolate product comprises 12.00 wt% + 10.00 wt% = 22.00 wt% of the plant-based composition ([0042]). This amount lies inside the claimed range.
Claim 14 is therefore anticipated.
Regarding claim 15, Bachmüller teaches that the chocolate product comprises between 0.2 wt% and 15.0 wt% of the plant protein based on the weight of the chocolate product – Bachmüller teaches that the chocolate product contains 12.00 wt% cocoa mass ([0042]). As evidenced by Santa Barbara Chocolate, cocoa mass contains 14g/100g protein (p. 4, Table, “Protein”). Therefore, the chocolate product comprises 12.00 wt% x 0.14 = 1.68 wt% of the plant protein. This amount lies inside the claimed range.
Claim 15 is therefore anticipated.
Regarding claim 16, Bachmüller teaches that the chocolate product comprises between 0.6 wt% and 27 wt% of the plant flour – Bachmüller teaches that the chocolate product contains 10.00 wt% hydrolyzed oatmeal ([0042]). This amount lies inside the claimed range.
Claim 16 is therefore anticipated.
Regarding claim 17, Bachmüller teaches that the chocolate product is devoid of animal products – Bachmüller teaches that the chocolate product is vegan ([0041]) and therefore is devoid of animal products.
Claim 17 is therefore anticipated.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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