DETAILED ACTION
Background
The amendment dated June 11, 2026 (amendment) amending claims 1, 11, 13-15 and 18 and canceling claims 2-3 and 12 has been entered. Claims 1-11 as filed with the amendment have been examined. Claims 13-18 are withdrawn from consideration.
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 without traverse of the method of Group I, claims 1-11 in the reply filed on June 11, 2026 is acknowledged.
Claims 13-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Drawings
The drawings are objected to because the writing in the labels on the axes of each of FIGs 1 and 2 are too small. Numbers and letters in the drawings must be at least 0.32 cm (1/8 inch) in height. 37 CFR 1.84(p)(3). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 4 and 9 are objected to because of the following informalities:
In claim 1, at line 14 after “the dry” insert --plant-based--;
In claim 4, at line 2 after “b.” replace [[involves the addition of]] with --comprises adding--; and,
In claim 9, at line 4 before “other nut oil” delete [[or ]].
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.
Claims 9-10 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 9, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Does the group of oils require the recited 25 high oleic sunflower oil, the recited high oleic rapeseed oil, the recited high oleic palm oil, the recited high oleic soybean oils, the recited high stearin sunflower oil, or does it just require an “emerging seed oil”?
The % aeration degree is indefinite because it lacks a basis or denominator and lacks units. Is the aeration degree based on the whole chocolate product? And does the aeration degree amount to a volume percent (%) of the chocolate product?
The Office interprets the recited aeration degree to be a % of aeration by volume, based on the total volume of the chocolate product.
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 and 4-11 are rejected under 35 U.S.C. 103 as being unpatentable over US2018/0295849 A1 to Earl et al. (Earl), of record, in view of US2003/0157231 A1 to Roberts (Roberts).
method of making a chocolate product comprising adding a plant protein to water to form a plant protein mixture; adding a sugar, polyol, one or more polysaccharides thereof or mixtures thereof to the plant protein mixture; adding an enzyme and enzyme treatment; dispersing a fat source in the plant protein mixture; homogenizing the plant protein mixture; applying a thermal treatment to form a plant-based liquid; drying the plant-based liquid to form a dry plant-based composition; and combining the dry plant-based composition with other ingredients to form a chocolate product
Regarding instant claims 1 and 7, Earl at [0002] discloses a plant-based milk alternative and method for making it as well as (at Example V at [0072]-[0074] a method of making a chocolate product from a plant milk powder as a milk alternative. Earl discloses the method comprising (at [0013] and in Example II at Table 7 and [0066]) making a plant milk by adding a plant-based protein as a chickpea plant protein (“plant protein from a legume source) to a liquid as water to form a plant protein mixture; adding a carbohydrate as maltodextrin (“polysaccharide” as in claim 7) to the plant protein mixture and adding fat source as coconut and palm oils, and forming a stable emulsion by agitating to form a plant milk (“dispersing a fat source in the plant protein mixture” and “homogenizing the plant protein mixture”). Further, at [0048], Earl discloses immersion blending at from 1000 to 15000 rpm or homogenizing the plant protein mixture. In addition, at Example V and Table 10 on page 7 and at [0072]-[0074], Earl discloses making a chocolate by combining with other ingredients a dehydrated composition from its plant-based milk (at [0076]) that is made by a method comprising drying the plant protein mixture to form a “dry plant-based composition” or dry sweetened plant milk. At Table 10, Earl discloses the other ingredients as comprising sugar, cocoa mass and cocoa butter to form a milk chocolate (“chocolate product”). The Office considers the claimed drying the plant-based liquid to include the Example V method of Earl that discloses drying the plant-based liquid to form a dry plant-based composition.
Further, Earl does not provide an example wherein the method comprises applying a thermal treatment to the plant protein mixture to form a plant-based liquid. However, at [0063] Earl generally discloses homogenizing and pasteurizing (applying thermal treatment) to its compositions before or in packaging to prepare them for commercial sale or use. The ordinary skilled artisan in Earl would have found it obvious to apply a thermal treatment to its plant based mixture or milk before drying to prepare it as a dehydrated plant-based milk for later use or sale for use in making its chocolate product because Earl discloses that applying a thermal treatment is desirably used to make a plant milk powder or dry plant-based composition suitable for use in making its chocolate composition.
Still further and regarding instant claim 10, Earl does not disclose aerating its chocolate product. Further, Earl does not disclose a chocolate product that is aerated to an aeration degree of from 5% to 30% by volume, based on the total volume of the chocolate product as in claim 10. However, Earl at Example V discloses making its chocolate product from a sweetened dried plant-based composition as a milk powder
Roberts at Abstract discloses a low density chocolate formed by (at [0022]) reducing the density of its chocolate, wherein the final density of the chocolate is from 0.6 to 1.25 g/ml and a non-aerated chocolate has a density of about 1.30 g/ml, or a chocolate having an aeration degree of about 3.3% to about 53.3 % by volume, based on the total volume of its chocolate product. Further, Roberts at [0037] discloses making its chocolate from a mix comprising milk powder and other ingredients including sugar and cocoa fat.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Roberts for Earl to aerate its chocolate. Both references disclose make chocolate products from a mix comprising a milk powder. The ordinary skilled artisan in Roberts would have desired to make a chocolate from the legume dry plant-based composition or milk powder to provide a meltable chocolate without animal or dairy products.
Regarding instant claim 4, Earl at [0047] discloses adding sugar as a sweetener to its plant based liquid in a mixture with stabilizers including pectin, gums or starches (“polysaccharides”).
Regarding instant claims 5 and 6, while the Office considers optional limitations including all of the sugars listed in claim 5 and the polyols listed in claim 6, the claims themselves do not require them.
Regarding instant claims 8 and 9, at Table 7 Earl discloses the plant-based liquid or milk comprising palm oil and coconut oil as fat sources.
Regarding instant claim 11, the plant-based composition of Table 7 of Earl comprises, based on its dry weight, 7 (protein), 5 (fat), and 18 (sugar, polyol and/or polysaccharide) or, out of 30 total weight parts about 23.3 wt% of plant protein, about 16.6 wt% of a fat and about 60 wt% of the sugar, polyol and/or polysaccharide, all based on the total weight of the dry plant-based composition.
Claim 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over US2018/0295849 A1 to Earl et al. (Earl), of record, in view of US2003/0157231 A1 to Roberts (Roberts) as applied to claim 1 above, and further in view of WO2022/162174 A1 to Brunt et al. (Brunt).
As applied to claim 1, Earl at [0013], [0036], [0048], Example II at Table 7 and [0066] and Example V at [0072]-[0074], Table 10 and [0076] on page 7 as modified by Roberts at [0022], [0029] and [0037] discloses a method of making a chocolate product comprising adding a plant protein to water to form a plant protein mixture; adding a sugar, polyol, one or more polysaccharides thereof or mixtures thereof to the plant protein mixture; dispersing a fat source in the plant protein mixture; homogenizing the plant protein mixture; applying a thermal treatment to form a plant-based liquid; drying the plant-based liquid to form a dry plant-based composition; combining the dry plant-based composition with other ingredients to form a chocolate product; and aerating the chocolate product.
Regarding instant claims 4-6, Earl does not disclose an Example of a method comprising adding a mixture of a sugar and at least one polysaccharide to its plant protein mixture as in claim 4; further, although the limitations of each of claims 5-6 is optional, Earl does not provide an example wherein sugar is selected from the group consisting of sucrose, fructose, glucose, dextrose, galactose, allulose, maltose, high dextrose equivalent hydrolysed starch syrup, xylose, and combinations thereof as in claim 5; and, further, does not disclose an example wherein the polyol is selected from the group consisting of sorbitol, mannitol, isomalt, maltitol, lactitol, xylitol, erythritol or glycerol as in claim 6. However, Earl at [0047] discloses adding sugar to its plant protein mixture as a sweetener in a mixture with stabilizers including pectin, gums or starches.
Brunt at page 1 (top of page), lines 3-6 discloses processes and ingredient formulations for the preparation of a plant-based chocolate crumb and of making a chocolate product therefrom, wherein the process for producing a crumb based on a plant-based milk (“plant protein mixture”) comprises heating a plant-based milk and drying it to form a crumb. Further, at Examples 1-6, Brunt discloses making a chocolate product from the crumb comprising mixing the crumb with other ingredients. At page 18, lines 10-27 Brunt discloses that its plant protein mixture comprises sugars as sweeteners, including sucrose, fructose, glucose and galactose; and, at page 1, lines 37-48, Brunt discloses adding a combination of carbohydrates to the plant protein mixture, including maltodextrin as well as (at page 19, lines 31-33) inulin or fiber in addition to a sweetener. Further, at page 19, lines 22-29, Brunt discloses adding sugar alcohols as sweeteners, including sorbitol, mannitol, isomalt, maltitol, lactitol, xylitol, and/or erythritol.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Brunt for Earl to add a sugar and a polysaccharide, including maltodextrin, inulin or other fructo-oligosaccharides as fiber to its plant protein mixture or to add a sugar alcohol including any of sorbitol, mannitol, isomalt, maltitol, lactitol, xylitol, and/or erythritol to its plant protein mixture. Both references disclose methods of making a chocolate product from a dried plant-based liquid or milk. The ordinary skilled artisan in Earl would have desired to use any of the claimed sweeteners, including sugar or sugar alcohols as in Brunt to sweeten its plant protein mixture; and, further, would have desired to include any of the claimed polysaccharides listed Brunt, including dietary fiber, alone or with a sugar in its plant-based liquid to stabilize the liquid in drying and to provide bulk or digestive fiber.
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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