DETAILED ACTION
Background
The amendment dated June 05, 2026 (amendment) amending claims 1, 11, 23 and 39 and canceling claims 9, 19 and 37 has been entered. Claims 1-2, 4-5, 8, 10-18, 20 and 22 have been examined. Claims 3, 6-7, 9, 19, 21, 25-35, 37-38 and 40-45 have been canceled. Claims 23-24, 36 and 39 are withdrawn from consideration.
The status identifiers for non-elected claims 23-24, 36 and 39 are incorrect. A non-elected claim should recite “withdrawn” as part of its status modifier so that claims 23 and 39 should have the status modifier (“withdrawn - currently amended”) and claims 24 and 36 should have the status modifier “(withdrawn - original)”. 37 CFR 1.121(c)(3).
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 .
Election/Restrictions
Applicant's election with traverse of the invention of group I, claims 1-2, 4-5, 8-18, 20 and 22 in the reply filed on June 05, 2026 (Reply) is acknowledged. The traversal is on the ground(s) that the claims as amended distinguish over the Purkayastha reference. This is not found persuasive because the claims 1 and 23 as presented do in fact lack unity of invention over Example 2, b and Sample 7 of Purkayastha and the propriety of the restriction was determined on that basis. The position taken in the Reply relies on an amendment and, in effect admits that the claims as presented lack unity of invention. Further, as Applicants have been given a shortened statutory time period for reply to the restriction requirement so the claims have not been held in abeyance on restriction to allow Applicants to amend for restriction to be determined on a second claim set. Even notwithstanding this, the amended claims also lack unity of invention over Example 15 and [0170]-[0171] of Markosyan (US2020/0100530 A1).
The requirement is still deemed proper and is therefore made FINAL.
Applicants are reminded that rejoinder of non-elected method claims may apply upon an indication of the allowability of the elected composition claims so long as the method claims recite all intervening features of the elected composition claims.
Claims 23-24, 36 and 39 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on June 05, 2026.
Claim Objections
Claim 20 is objected to because of the following informalities:
In claim 20, at line 1, after “wherein” insert -- a--.
Appropriate correction is required.
Claim 1 is objected to because the element of a “sugar substitute” is not separated by a line indentation. 37 CFR 1.75(i).
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 1-2, 4-5, 8, 10-18, 20 and 22 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.
In claim 1, the wt% of each of dicaffeoylquinic acids and salts thereof and total dicaffeoylquinic acids and monocaffeoylquinic acids and salts thereof is indefinite for lacking a basis or denominator. Is the recited amount based on the weight of a sensory modifier, the weight of the recited composition or some other weight basis?
The Office interprets all such wt%s as being based on the total weight of the sensory modifier.
In claim 11, the wt% of total dicaffeoylquinic acids and monocaffeoylquinic acids and salts thereof is indefinite for lacking a basis or denominator. Is the recited amount based on the weight of a sensory modifier, the weight of the recited composition or some other weight basis?
The Office interprets the wt% of total dicaffeoylquinic acids and monocaffeoylquinic acids and salts thereof as being based on the total weight of the sensory modifier.
In claim 12, the wt% of the sensory modifier is indefinite for lacking a basis or denominator. Is the recited amount based on the weight of the sugar substitute, the weight of the recited composition or some other weight basis?
The Office interprets the wt% of the sensory modifier as being based on the total weight of the recited composition.
In each of claims 14 and 15, the wt% of non-fatty cocoa solids is indefinite for lacking a basis or denominator. Is the recited amount based on the weight of total cocoa liquor, cocoa powder or combinations thereof, the weight of the recited composition or some other weight basis?
The Office interprets the wt% of non-fatty cocoa solids as being based on the total weight of the composition.
Regarding instant claim 20, where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “equivalent composition” in claim 20 is used by the claim to mean “the same composition” while the accepted meaning is “a composition that performs the same way as another in any way, stated or implied” The term is indefinite because the specification does not clearly redefine the term.
The Office interprets the claim as reciting a cooked milk flavor decreased relative to the same composition lacking a sensory modifier.
Claims 2, 4-5, 8, 10, 13, 16-18 and 22 are rejected as depending from a rejected base claim.
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 1-2, 4, 8, 10-18, 20 and 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US2020/0100530 A1 to Markosyan et al. (Markosyan).
Markosyan is equivalent to US2018/0168212 A1, of record.
Unless otherwise disclosed or claimed, all weight %s (wt%s) are interpreted as a wt%, based on the total weight of a given composition.
Regarding instant claims 1, 13-17 and 22, Markosyan at Example 15 at [0169]-[0170] and Table 7 discloses a chocolate (”food product” in claim 22) comprising milk powder (“milk solids”), 0.1 wt% a sweetener composition (“sugar substitute”), 30 wt% of chocolate liquor (“cocoa liquor”), cocoa butter (claim 13), sorbitol (“bulking agent” in claim 17) and lecithin (“emulsifier” in claim 16). All wt%s are based on the total weight of the composition. Further, as stated at Table 4 of page 36 of the instant specification disclosing that cocoa liquor is 53 wt% fat, the chocolate composition of Example 15 of Markosyan comprising 30 wt% of cocoa liquor includes about 14 wt% of non-fatty cocoa solids, based on the total weight of the composition (claims 14-15).
Further, and regarding instant claims 2, 4, 8 and 10-11, Markosyan at Example 15 in [0171] discloses that its sugar substitute comprises a mixture of about 95 wt% Rebaudioside A (claim 4 as a “steviol glycoside” in claim 2), based on the total weight of the sugar substitute, and 5 wt%, based on the total weight of the sugar substitute of a purified non-steviol glycoside extract (“sensory modifier”) which comprises 68.53 wt% of dicaffeoylquinic acids and salts thereof and monocaffeoylquinic acids and salts thereof, based on the total weight of the sensory modifier (claim 11), including about 66.5 wt% of dicaffeoylquinic acids, based on the total weight of the sensory modifier. As disclosed at [0018], the dicaffeoylquinic acids disclosed in the sensory modifier of Example 15 of Markosyan include iso-CGA-A or 3,5-dicaffeoylquinic acid, iso-CGA-B or 3,4-dicaffeoylquinic acid and iso-CGA-C or 4,5-dicaffeoylquinic acid (claim 8). The disclosed sensory modifier in Example 15 of Markosyan also comprises about 1.8 wt% of monocaffeoylquinic acids including chlorogenic acid, neo-chlorogenic acid and crypto-chlorogenic acid (claim 10).
Regarding instant claim 12, the Example 15 composition of Markosyan comprises 5% of 0.1 wt% as the sensory modifier or about 0.005 wt% of the sensory modifier, based on the total weight of the composition.
Regarding instant claims 18 and 20, the Office considers the chocolate composition of Example 15 of Markosyan to be substantially the same thing as the claimed composition. Accordingly, absent a clear showing as to how the composition of Example 15 of Markosyan differs from that as claimed, the Office considers the Example 15 chocolate composition of Markosyan to comprise a composition wherein cocoa flavor and/or cream flavor of the composition is increased relative to an equivalent composition lacking the sensory modifier as in claim 18; and to comprise a composition wherein cooked milk flavor of the composition is decreased relative to an equivalent composition lacking the sensory modifier as in claim 20. See MPEP 2112.01.I.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 4-5, 8, 10-12, 14-16, 18, 20 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US2020/0157480 A1 to Chien et al. (Chien) in view of US8784914 B2 to Leloup et al. (Leloup) and WO2019/071220 A1 to Gaspard et al.
Unless otherwise disclosed or claimed, all weight %s (wt%s) are interpreted as a wt%, based on the total weight of a given composition.
Regarding instant claims 1, 2, 10 and 12, Chien at [0010]-[0012] discloses a consumable comprising an amount of chlorogenic acid (claim 10) to modify off-tastes of the consumables (as a “sensory modifier”) including metallic and bitter tastes, wherein the amount of the chlorogenic acid ranges from about 0.001 to about 0.1 wt%, based on the total weight of the composition (claim 12); and, the composition further comprises a non-nutritive sweetener (“sugar substitute”) including acesulfame salts (“acesulfame K” in claim 2) and steviol derivatives. The Office considers the recited steviol glycosides in claim 2 to include the steviol derivatives disclosed in Chien at [0012].
Further and regarding instant claim 8, Chien at Example 4 at [0048-[0049] and the Table accompanying discloses a sensory modifier of a chlorogenic acid containing extract of green Robusta coffee extracted three times and cleaned by resin chromatography comprising 58.88 wt% of chlorogenic acids including about 49.8 wt% of caffeoylquinic acids dicaffeoylquinic acids. Further, at claim 9 Chien discloses sensory modifiers selected from caffeoylquinic acids, and dicaffeoylquinic acids including the 3,4-dicaffeoylquinic acids, 3,5- dicaffeoylquinic acids and 4,5- dicaffeoylquinic acids and combinations thereof (claim 8). The ordinary skilled artisan in Chien would have found it obvious to select any fraction from the chromatographic column in Example 4 so as to select any one or more of caffeoylquinic acids and dicaffeoylquinic acids as claimed or their combination because Chien discloses that the claimed caffeoylquinic acids and dicaffeoylquinic acids and their combinations provide a desirable sensory modifier for its non-nutritive sweetener containing foods and beverages. Larger dicaffeoylguinic acids in Chien will elute from the column first.
Still further and regarding instant claim 22, at [0018] Chien discloses that its consumables comprise foods (”food product” in claim 22), and specifically chocolate and beverages wherein the beverages include cocoa. The Office considers the claimed composition comprising cocoa liquor, cocoa powder or combinations thereof as including the chocolate food product and cocoa beverage disclosed at [0018] of Chien.
Chien does not disclose that its chocolate or cocoa mix composition comprises milk solids, milk solid alternatives or combinations thereof; does not disclose a sensory modifier comprising 20 wt% or more of one or more dicaffeoylquinic acids, based on the total weight of the sensory modifier; and, does not disclose a sensory modifier wherein the total amount of caffeoylquinic acids and dicaffeoylquinic acids comprises more than 50 wt%, based on the total weight of the sensory modifier.
Moreover regarding instant claims 4-5, 11 and 16, Chien does not disclose that its sugar substitute that comprises a steviol glycoside selected from the group consisting of rebaudioside M, rebaudioside D, rebaudioside A, and combinations thereof as in claim 4; does not disclose a composition wherein the steviol glycoside and the sensory modifier are present in the composition at a ratio between 1:0.3 and 1:3 as in claim 5; does not disclose a sensory modifier wherein the total amount of caffeoylquinic acids and dicaffeoylquinic acids comprises more than 60 wt%, based on the total weight of the sensory modifier as in claim 11; and does not disclose a composition comprising an emulsifier as in claim 16. However, Chien at [0018] discloses chocolate compositions and powdered cocoa beverages.
Gaspard at [0007] discloses a composition with reduced sweetness linger comprising a steviol glycoside and a sensory modifier, wherein (at [0019]) the composition comprises a weight ratio of 1:0.3 to 1:3 of steviol glycosides to the sensory modifier compound. The compositions disclosed in Gaspard include confections (at [0155]) and beverages that include cocoa drinks at [0172]. At [0093], Gaspard discloses that its sensory modifier compounds comprise extracts from yerba mate and comprise monocaffeoylquinic acids and 20 wt% or more or 50wt% or more or 60 wt% or more based on the total weight of the sensory modifier of dicaffeoylquinic acids. Further, Gaspard discloses use of multiple botanical sources of dicaffeoylquinic acids. At Example 4, Gaspard discloses compositions with reduced sweetness linger comprising a combination of 700 ppm of a yerba mate extract comprising monocaffeoylquinic acids and dicaffeoylquinic acids with 315 ppm, 600 ppm and 946 ppm of rebaudioside A or 236 ppm, 472 ppm or 708 ppm of rebaudioside M.
Leloup at the Abstract discloses green coffee bean extracts that comprise (at col. 3, 55-68) chlorogenic acids. At col 4, lines 4-42, Leloup discloses food and beverage compositions including cocoa or chocolate beverages that comprise a powdered beverage including cocoa liquor, cocoa powder or combinations thereof, sweeteners, milk (“milk powder”) and emulsifiers. The Office considers the claimed compositions comprising at least 2 wt% of non-fatty cocoa solids and comprising at least 5 wt% of non-fatty cocoa solids, based on the total weight of the composition to include the cocoa or chocolate beverage of Leloup.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Gaspard for Chien to supplement its coffee extract with botanical extracts having enhanced dicaffeoylquinic acid content to make its sensory modifier comprise 20 wt% or more of one or more dicaffeoylquinic acids, based on the total weight of the sensory modifier, and to comprise a total amount of caffeoylquinic acids and dicaffeoylquinic acids comprises more than 50 wt% and more than 60 wt%, based on the total weight of the sensory modifier as in Gaspard; to use a steviol derivative sugar substitute that is rebaudioside M, rebaudioside D, rebaudioside A, and combinations thereof as in Gaspard and claim 4; and, to make its composition so that it comprises the steviol glycoside and the sensory modifier are present in the composition at a ratio between 1:0.3 and 1:3 as in claim 5. Both references disclose food and beverage compositions, confections and cocoa beverages containing caffeoylquinic and dicaffeoylquinic acids and comprising steviol glycosides as sugar substitutes. To improve its off taste reducing results, the ordinary skilled artisan in Chien would have desired to do each of: Including additional botanical extracts rich in dicaffeoylquinic acids as in Gaspard to provide sensory modifier compositions having at least 20 wt% of dicaffeoylquinic acids and 50 wt% or more or 60 wt% or more of monocaffeoylquinic acids and dicaffeoylquinic acids, based on the total weight of the sensory modifier as in Gaspard; and, making its composition using as steviol glycosides rebaudioside M, rebaudioside D, rebaudioside A, and combinations thereof as in Gaspard wherein the chlorogenic acid sensory modifier are present in the composition at a ratio between 1:0.3 and 1:3.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Leloup for Chien to include milk solids, milk solids alternatives or combinations thereof and an emulsifier in its cocoa beverage. Both references disclose powdered cocoa beverage compositions comprising a sugar substitute and caffeoylquinic acids and dicaffeoylquinic acids. The ordinary skilled artisan in Chien would have desired to include an emulsifier and milk solids in its cocoa or chocolate beverage as in Leloup to ease its mixing into liquid and provide a richer, milk chocolate or cocoa flavor.
Regarding instant claims 14 and 15, The Office considers the claimed composition comprising at least 2 wt% of non-fatty cocoa solids, based on the total weight of the composition as in claim 14 and the claimed composition comprising at least 5 wt% of non-fatty cocoa solids, based on the total weight of the composition as in claim 15 to include the chocolate and the cocoa beverage of Chien.
Regarding instant claims 18 and 20, the Office considers the chocolate and cocoa beverage composition of Example 4 and [0018] of Chien to be substantially the same thing as the claimed composition. Accordingly, absent a clear showing as to how the composition of Chien differs from that as claimed, the Office considers the chocolate or cocoa mix composition disclosed at [0018] and in Example 4 of Chien to comprise a composition wherein cocoa flavor and/or cream flavor of the composition is increased relative to an equivalent composition lacking the sensory modifier as in claim 18; and to comprise a composition wherein cooked milk flavor of the composition is decreased relative to an equivalent composition lacking the sensory modifier as in claim 20. See MPEP 2112.01.I.
Claims 1-2, 4, 8, 10-18, 20 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US2020/0157480 A1 to Chien et al. (Chien) in view of US2020/0100530 A1 to Markosyan et al. (Markosyan).
Unless otherwise disclosed or claimed, all weight %s (wt%s) are interpreted as a wt%, based on the total weight of a given composition.
Regarding instant claims 1, 2, 10 and 12, Chien at [0010]-[0012] discloses a consumable comprising an amount of chlorogenic acid (claim 10) to modify off-tastes of the consumables (as a “sensory modifier”) including metallic and bitter tastes, wherein the amount of the chlorogenic acid ranges from about 0.001 to about 0.1 wt%, based on the total weight of the composition (claim 12); and, the composition further comprises a non-nutritive sweetener (“sugar substitute”) including acesulfame salts (“acesulfame K” in claim 2) and steviol derivatives. The Office considers the recited steviol glycosides in claim 2 to include the steviol derivatives disclosed in Chien at [0012].
Further and regarding instant claim 8, Chien at Example 4 at [0048-[0049] and the Table accompanying discloses a sensory modifier of a chlorogenic acid containing extract of green Robusta coffee extracted three times and cleaned by resin chromatography comprising 58.88 wt% of chlorogenic acids including about 49.8 wt% of caffeoylquinic acids dicaffeoylquinic acids. Further, at claim 9 Chien discloses sensory modifiers selected from caffeoylquinic acids, and dicaffeoylquinic acids including the 3,4-dicaffeoylquinic acids, 3,5- dicaffeoylquinic acids and 4,5- dicaffeoylquinic acids and combinations thereof (claim 8).
Still further and regarding instant claim 22, at [0018] Chien discloses that its consumables comprise foods (”food product” in claim 22), and specifically chocolate and beverages wherein the beverages include cocoa. The Office considers the claimed composition comprising cocoa liquor, cocoa powder or combinations thereof as including the chocolate food product and cocoa beverage disclosed at [0018] of Chien.
Chien does not disclose that its chocolate or cocoa mix composition comprises milk solids; and, Chien does not disclose a sensory modifier wherein the total amount of caffeoylquinic acids and dicaffeoylquinic acids comprises more than 50 wt% or more than 60 wt%, based on the total weight of the sensory modifier as in claims 1 and 11.
Moreover regarding instant claims 4, 11, 13 and 16-17, Chien does not disclose a sugar substitute that comprises a steviol glycoside selected from the group consisting of rebaudioside M, rebaudioside D, rebaudioside A, and combinations thereof as in claim 4; Chien does not disclose a composition comprising cocoa butter as in claim 13; does not disclose a composition comprising an emulsifier as in claim 16; and does not disclose a composition additionally comprising a bulking agent as in claim 17. However, Chien at [0018] discloses chocolate compositions.
Markosyan at Example 15 at [0169]-[0171] and Table 7 discloses a chocolate food product comprising milk powder, 0.1 wt% of a sugar substitute comprising rebaudioside A, 30 wt% of cocoa liquor, cocoa butter, sorbitol as a bulking agent, lecithin, and mixed with the sugar substitute a purified non-steviol glycoside extract sensory modifier which comprises 68.53 wt% of dicaffeoylquinic acids and salts thereof and monocaffeoylquinic acids and salts thereof, based on the total weight of the sensory modifier, including about 66.5 wt% of dicaffeoylquinic acids, based on the total weight of the sensory modifier. As disclosed at [0018], the dicaffeoylquinic acids disclosed in the sensory modifier of Example 15 of Markosyan include iso-CGA-A or 3,5-dicaffeoylquinic acid, iso-CGA-B or 3,4-dicaffeoylquinic acid and iso-CGA-C or 4,5-dicaffeoylquinic acid . The disclosed sensory modifier in Example 15 of Markosyan also comprises about 1.8 wt% of monocaffeoylquinic acids. Further, as stated at Table 4 of page 36 of the instant specification disclosing that cocoa liquor is 53 wt% fat, the chocolate composition of Example 15 of Markosyan comprising 30 wt% of cocoa liquor includes about 14 wt% of non-fatty cocoa solids, based on the total weight of the composition.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Markosyan for Chien to use a chlorogenic acid botanical extract sensory modifier from the stevia plant as in Markosyan and comprising 20 wt% or more of one or more dicaffeoylquinic acids, based on the total weight of the sensory modifier; comprising a total amount of caffeoylquinic acids and dicaffeoylquinic acids comprises more than 50 wt% and more than 60 wt%, based on the total weight of the sensory modifier; to use a steviol derivative sugar substitute that is rebaudioside A. Both references disclose food and beverage compositions, confections and cocoa beverages comprising steviol glycosides as sugar substitutes containing caffeoylquinic and dicaffeoylquinic acids. To improve its off taste reducing results, the ordinary skilled artisan in Chien would have desired to use the stevia extracts of Markosyan, having at least 20 wt% of dicaffeoylquinic acids and 50 wt% or more and 60 wt% or more of monocaffeoylquinic acids and dicaffeoylquinic acids based on the total weight of the sensory modifier as in Markosyan, and to make its composition using as steviol glycosides rebaudioside M, rebaudioside D, rebaudioside A, and combinations thereof as in Markosyan.
In addition, regarding instant claims 13, 16 and 17, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Markosyan for Chien to add a milk powder, cocoa butter, a bulking agent and an emulsifier in its chocolate as in Example 15 of Markosyan. Both references disclose a chocolate composition comprising a sugar substitute and a steviol glycoside sensory modifier comprising dicaffeoylquinic acids to reduce the off-tastes or the sugar substitute. The ordinary skilled artisan in Chien would have desired to include the milk powder of Markosyan to give its chocolate a rich, milk chocolate flavor, to include the emulsifier of Markosyan to make its chocolate more stable and easier to mix, to include the bulking agent of Markosyan for body and to include a low calorie carbohydrate in its chocolate and to add cocoa butter as in Markosyan to make a lighter, richer chocolate.
Regarding instant claims 14 and 15, The Office considers the claimed composition comprising at least 2 wt% of non-fatty cocoa solids, based on the total weight of the composition as in claim 14 and the claimed composition comprising at least 5 wt% of non-fatty cocoa solids, based on the total weight of the composition as in claim 15 to include the chocolate and the cocoa beverage of Chien.
Regarding instant claims 18 and 20, the Office considers the chocolate and cocoa beverage composition of Example 4 and [0018] of Chien to be substantially the same thing as the claimed composition. Accordingly, absent a clear showing as to how the composition of Chien differs from that as claimed, the Office considers the chocolate or cocoa mix composition disclosed at [0018] and in Example 4 of Chien to comprise a composition wherein cocoa flavor and/or cream flavor of the composition is increased relative to an equivalent composition lacking the sensory modifier as in claim 18; and to comprise a composition wherein cooked milk flavor of the composition is decreased relative to an equivalent composition lacking the sensory modifier as in claim 20. See MPEP 2112.01.I.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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