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 .
Applicant's submission filed on 5/4/2026 confirming the election has been entered as compliant. Claims 3-4 are withdrawn from consideration, claims 1-2 have been amended in the current response of 5/4/26. Claims 1-27 are pending and elected claims 1-2 and 5-27 are examined in the current application.
Double Patenting
The nonstatutory double patenting rejection made in the previous office letter of 2/2/2026 has been withdrawn based on applicant’s filing of terminal disclaimer.
Terminal Disclaimer
The terminal disclaimer filed on 5/4/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US patent # 11832632 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. 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.
Previous rejection of claims 1-2, 5-27 have been withdrawn based on applicant’s amendment to claims.
Claims 1-2 , 7-15, 18-23 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN-105995111-A), hereinafter Wang as evidenced by NPL to Antoniou et al, hereinafter Antoniou (cited), and Stavrou et al., hereinafter Stavrou (applicant provided) where carob volatiles and polyphenols are addressed, in view of Kawasaki (JP-2006121958-A), hereinafter Kawasaki, Nakel (US 3619210), hereinafter Nakel and applicant cited NPL references to Gorodyska et al. “grapeseed powder as an alternative to cocoa powder, hereinafter Gorodyska and “The carob kitchen” reference with carob almond bar, hereinafter Carob kitchen.
All references to text of Wang and Kawasaki references is to the text of full English translation of these references that have been provided to the applicant in parent application 17/865729 with the office action dated 1/9/2023.
Claims in general are directed to “A chocolate replica comprising:
a plant-based solid substrate” present in an amount of “about 10wt.% to about 99.9 wt.% of chocolate replica” and chocolate replica as claimed also requires one or more of volatile organic compounds (VOCs) and non-volatile organic compounds (NVCs).
As recited claim 1 does not limit the chocolate replica to include isolated VOCs and NVCs, i.e., the VOCs and NVCs can be part of the foods or ingredients of chocolate replica, such as fats or flavor or plant based solid substrate. Claim 1 also does not list and NVCs nor does it require the chocolate replica/ replacer/ substitute/ extender composition to “exhibit taste and aroma of traditionally produced chocolate”, thus as recited a combination of one or more of the VOCs listed in claim 1 with any non-volatile component in any amount when present in a chocolate or chocolate replica (replacer, substitute, extender etc.) containing about 10% or more of plant based solid substrate meets the claim 1 as recited.
Wang teaches a chocolate replica (such as “Cocoa butter substitute” described in para 7) comprising: a plant-based solid substrate (comprising at least carob powder “vegetable matter powder, corn starch” described in para 14 and “soybean lecithin” in para 15 and carob bean powder in para ), wherein (as recited in claim 1) the plant-based solid substrate does not contain cocoa solids (para 8).
In response to applicant’s amendments and arguments that Wang does not teach the invention as claimed as Wang’s chocolate does not contain claimed VOCs and NVCs Wang’s chocolate does not contain any volatile organic compounds, hereinafter VOCs and Non-volatile compounds, hereinafter NVCs. It is noted that although Wang does not teach any VOCs or NVCs in chocolate replica product but the reference teaches carob bean powder (Para 8 and 14), which as evidenced by NPL to Antoniou inherently contains VOCs like acetoin, ethyl acetate, butyrate, acetic acid, propanol, isobutyric acid, 2 methyl butyric acid to list a few (Table 1 on pages 5-6 of NPL), which includes VOCs listed in claims 1, 8-9. Similarly NVCs are also present in carob bean powder as evidenced by NPL to Stavrou (page 358-366) where NVCs present in carob bean powder include vanillin, vanillic acid, syringic acid, cinnamic acid, etc., which are part of carob bean. These NVCs also fall in the list of NVCs listed in claims 10-11.Stavrou also recognizes the utility of carob powder as a cocoa powder substitute (page 356).
Thus, the specific utility of carob as cocoa substitute was known in the art at the time of effective filing date of the invention as taught by NPL 3 (page 356 and 357) and list of volatile and non-volatile compounds present in carob bean is taught by Antoniou and Stavrou, which includes at least one VOCs and at least one NVCs as instantly claimed (claims 1, 8-11).
As inclusion of carob products as chocolate replacers or at least to supplement chocolates was known in the art before the effective filing date of the invention based at least on the evidence provided by NPL references to Antoniou and Stavrou, Carob bean product was also known to not only include VOCs and NVCs in general, but rather include specifically listed VOCs and NVCs from the lists recited in claims 1, 8-11 of current application. Further, Since the independent claim does not require the VOCs and NVCs to be isolated, they can be part of the foods or ingredients of chocolate replica, such as fats or flavor or plant based solid substrate and in the instant case part of carob bean, therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention that the composition as taught by Wang includes one or more VOCs and NVCs as recited in claim 1, 8-11.
Note” Some compounds are listed in VOCs as well as NVCs lists as claimed, for example, Vanillin is listed in claim 8 as VOC and claims 10-11 as NVC.
In case the VOCs and NVCs identified in claims 1, 8-11 are isolated and then added to chocolate replica, then, previously applied art to Kawasaki and Nakel also teach chocolate flavor compositions and provide evidence that identifying and /or isolating chocolate flavor and aroma compounds was known and practiced at the time of effective filing date of the invention.
Kawasaki teaches cocoa like aroma composition for use in food and beverage products, i.e., at the time of the effective filing date of the invention it was known to create fragrance/ flavor composition having cocoa or chocolate flavor (para 3 best mode Kawasaki) and compounds taught by Kawasaki include one or more of compounds ( geraniol, para 8; acetoin and 2, 3, pentadione in para 11, Propionic acid and valeric acid in para 12 of machine translation). Kawasaki also teaches of some non-volatile chocolate flavor compounds including dihydroxy benzoic acid, 4-hydroxy-3 methoxycinnamic acid in para 12 and 2, 3 dimethyl pyrazine, trimethyl pyrazine and tetramethyl pyrazine in para 15 of machine translation). All above mentioned compounds taught by Kawasaki are also known to have cocoa-like flavor (para 6, 7-17). Also see para 6-17 for additional chocolate flavor compounds.
Other prior art to Nakel teaches that alkyl pyrazines with 1 to 4 alkyl groups are known flavor providers (Col. 1, lines 20-40) and that they are known to be added as flavor additives for flavors such as cocoa butter and cocoa beans (Col. 1, lines 50-72). Thus the claimed compounds were known before the effective filing date of the invention for their individual as well as combined cocoa flavor imparting and enhancing properties.
Since prior art to Wang teaches cocoa substitute based on vegetable powder and other ingredients which contain carob bean powder which inherently contains at least one VOC and at least one NVC as recited, therefore, in view of the abundance of art identifying cocoa / chocolate flavoring compounds, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to include additional amount of one or more of the above identified flavor imparting compounds (as identified in carob products). The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using known additives that are known substitutes for cocoa type flavors to help make a product that is either devoid of cocoa or uses cocoa in smaller quantities (such as Wang’s “cocoa butter substitute” product), have a desirable more pronounced chocolate or cocoa aroma and flavor.
Further, regarding claims 1-2, Wang teaches a chocolate replica of claim 1, wherein the plant-based solid substrate was derived from oil plant based product seed (such as “carob” bean powder or “corn” powder or “soybean”, or “cocoa butter” (para 8-10 of Wang) which were recited in claim 1 and acknowledged by applicant response page 2, para 3 of 5/4/2026) . Further, Wang discloses “vegetable powder” in general (para 8), thus suggesting that any or multiple vegetables or seed sources may be suitable for use, and includes maize/ corn and soybean both are recited in claim 1.
Although claim 1 has been amended to exclude walnut, sesame, soybean and from the list of fruit and vegetable seeds and oil seeds in claim 1, but list of oil seeds or vegetable seeds includes sources of seeds that are functional equivalents of one another. Based on the teaching of Wang, (such as “carob” bean powder or “corn” powder or “soybean”, or “cocoa butter” and Wang’s teaching of “vegetable powder” in general (para 8), that includes vegetable seeds based solid material, utilizing functional substitutes for vegetable and oil seed products would have been a matter of routine determination based at least on cost, availability, flavor etc. Further use of oilseeds like almonds and grape seeds in chocolates or chocolate replacers was known at the time of the effective filing date of the invention. Gorodyska teaches grape seeds (page 1 abstract) where grape seeds are being taught as alternative to cocoa powder and “The carob kitchen” reference teaches with carob almond bar as chocolate replica. Based at least on the teaching of Wang, (such as “carob” bean powder or “corn” powder or “soybean”, or “cocoa butter” and Wang’s teaching of “vegetable powder” in general (para 8), that includes vegetable seeds based solid material, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wang and utilize a desired combination of vegetable and oil seeds as part of plant based solids component of chocolate substitute components. Choosing a desired vegetable or fruit seed like grape seed or an oilseed like almonds as a functional substitute to a vegetable component in a chocolate replica provides a specific flavor or a specific fiber content and specific nutritive benefit. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using a specific vegetable seed or oilseed based on its cost, availability, flavor profile and /or nutritive value in the finished chocolate product, and also based on customer nutritional preference.
Note: Although, applicant has removed soybean seeds and hulls from the list of oil seeds, claim 27 which depends from claim 1, still includes lecithin, a soybean product, hence Wang is still applicable.
Regarding claims 1-2, where relative proportion of each of the compounds is recited. Regarding the proportion of solid substrate from 10 to 99% and claim 2 recites 10 to 30% applicant is referred to para 8 of Wang where chocolate composition includes solids in the claimed range and para 10 which refers to an exemplary composition where solids carob powder, vegetable powder and corn starch comprise 170 parts from a total of 1000 parts of chocolate, i.e., the plant/ vegetable based solids are about 17% of the chocolate which falls in the claimed range of comprises “about 10 wt.% to about 30 wt.%.
Further, Wang teaches that ingredients can vary (see ranges given for para 8) and the product is only claimed as “comprises”; i.e. all the ingredients of final product are not listed, and they all affect the recited wt.% of the solid substrate. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the plant based solids from the desired source in an amount desired. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of including a specific vegetable seed or oilseed in a desired amount based on its nutritive benefits in the finished chocolate product, and also based on the effect of plant based solids on the organoleptic quality of finished chocolate.
Regarding claim 7 Wang in view of evidentiary art to Antoniou and Stavrou as applied above teaches chocolate replica with the VOC and NVC compounds and Wang does not teach the cocoa replacement replica containing cocoa solids.
Regarding claims 8-11 where various compounds are listed and their relative proportion recited but since they all depend directly or indirectly on claim 1, where Kawasaki (para 10-17 of machine translation) teaches known fragrance/ flavor composition having cocoa or chocolate flavor (para 3 best mode) and compounds taught by Antoniou and Stavrou as applied above. Carob products contain VOCs like acetoin, ethyl acetate, butyrate, acetic acid, propanol isobutyric acid, 2 methyl butyric acid to list a few (NPL to Antoniou Table 1 on pages 5-6 of NPL), which includes VOCs listed in claims 1, 8-9.
Similarly NVCs are also present in carob bean powder as evidenced by NPL to Stavrou (page 358-366) where NVCs present in carob bean powder include vanillin, vanillic acid, syringic acid, cinnamic acid, etc., which are part of carob bean. These NVCs also fall in the list of NVCs listed in claims 10-11.Stavrou also recognizes the utility of carob powder as a cocoa powder substitute (page 356).
Kawasaki and Nakel identify chocolate flavors. Kawasaki include at least the volatile compounds, especially benzaldehyde, hexanal, butyraldehyde, butyric acid, isobutyric acid, valeric acid, butyl acetate, isoamyl acetate and geranyl acetate, as recited in claim 8 and at least 2, 3 pentadione as recited in claim 9. Regarding the non-volatile compounds of claims 10 and 11 Kawasaki teaches vanillin, maltol and cinnamic acid. All above mentioned compounds taught by Kawasaki are also known to have cocoa-like flavor (para 6, 7-17). Also see para 6-17 for additional chocolate flavor compounds. Thus, presence of VOCS and NVCs that impart chocolate flavor compounds as recited in claims 8-11 was known in the art to be part of carob, (as addressed by evidentiary NPL to Antoniou and Stavrou) and chocolate flavor replacing isolated VOCs and NVCs were also known (as taught by Kawasaki and Nakel) before the effective filing date of the invention. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include carob which includes one or more of recited VOCs and NVCs with or without additional VOCs and non-VOCs from the claimed list as flavor imparting compounds. The ordinary artisan would have been motivated to modify Wang, if desired, at least for the purpose of incorporating known cocoa type flavoring compounds to help make a product that is either devoid of cocoa or uses cocoa in smaller quantities (such as Wang’s “cocoa butter substituted” product), have a more pronounced chocolate or cocoa aroma and flavor.
Regarding claims 12-14, Wang teaches vegetable powder, carob meal, lecithin but is silent regarding oil, which is taught by Kawasaki, (Para 21). Examples of Wang and Kawasaki teach the relative amount of chocolate flavor composition including oil. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the oil in the chocolate composition and the type and amount of oil as recited in claims 13 and 14, would have been based on the desired calorie content of the imitation chocolate as desired. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of adding other additives and nutritional additives to the final product.
Regarding claims 15 and 18, Wang teaches carob meal (Para 8, 10) , which is seed meal and claim 18 recites “about 0 to about 30 wt.% seed meal”, i.e., seed meal is not a required ingredient but an optional one. Also see the NPL to Gorodyska (grape seed) and the carob kitchen (almond) which also teach seed meal.
Regarding claims 19-21, Wang teaches of sugar, para 8 and 10 , which meets the limitation of claim 19 which requires “chocolate replica further comprises a sugar, an amino acid, or a combination thereof”. Claim 20 depends from 19 but sugar/sucrose is listed. And regarding the amount of sugar “about 0 to about 75 wt.% sugar” (Claim 21), Wang para 8 and 10 have sugar amount that falls in the claimed range.
Claims 22-23 lists amino acids but depends from claim 19 where the “chocolate replica further comprises a sugar, an amino acid, or a combination thereof”, thus amino acids as recited are not required for the composition. Further claim 23 recites that “the chocolate replica comprises about 0 to about 3 wt.% of the amino acid”, further confirming that amino acids are not required for the claimed chocolate product.
However, amino acids are essential part of soybean and locust bean meal of Wang (para 8) and arginine, aspartic acid, glutamine, alanine, lysine, isoleucine and valine are part carob powder, thus meeting the claimed requirement.
Regarding claim 27, Wang teaches lecithin (Para 8 and 10).
Claims 5-6, 16-17, and 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Wang as evidenced by Antoniou and Stavrou in view of Kawasaki, Nakel , Gorodyska and Carob kitchen as applied to 1-2, 8-15, 18-23 and 27, further in view of Rikon et al (WO 8002636), hereinafter Rikon.
Regarding claims 5-6 Wang as evidenced by Antoniou, Stavrou and in view of Kawasaki as applied above teach chocolate replica with the VOCs and NVC compounds but the references are silent regarding the chocolate replica containing plant-based solid substrate was derived from a food stream waste product. Applied NPL to Gorodyska teaches grapeseed powder in chocolate type products, which can be regarded as a food industry waste. Rikon teaches seed and nut based meal (Page 14) and also teaches bran based flours, such as wheat, soy, barley and wheat bran (Page 14, last 2 lines and page 15, lines 1-2 and Table 6), wherein bran and its flours are food stream waste products obtained during seed milling, as it is the outermost coating of seeds which in not digestible a waste for flour milling process. Brans fall in the category where food stream waste product from which at least 75% of a starting amount of starch, protein, sugar, fat-soluble components, and flavor has been removed. Therefore, inclusion of food stream waste as claimed was routine in imitation chocolate and cocoa product, and it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include salt based on the general teaching of Rikon from page 2 and specific example on page 14 and 15. The ordinary artisan would have been motivated to modify Wang further and chose to include food stream waste as a part of solid substrate to create an imitation chocolate or chocolate replacer without undue experimentation.
Regarding claims 16-17, Wang as evidenced by Antoniou, Stavrou and in view of Kawasaki as applied above teach chocolate replica with the VOC and NVC compounds but the references are silent regarding the chocolate replica containing seed meal as per claims 16 and 17, where “ chocolate replica of claim 15, wherein the seed meal comprises sunflower meal or flour, coconut meal or flour, almond meal or flour, pecan meal or flour, hazelnut meal or flour, walnut meal or flour, pistachio meal or flour, cashew meal or flour, peanut meal or flour, canola meal or flour, safflower meal or flour, palm kernel meal or flour, mango kernel meal or flour, chia meal or flour, pumpkin seed meal or flour, Brazil nut meal or flour, macadamia nut meal or flour, chestnut meal or flour, flax meal or flour, hemp meal or flour, tiger nut meal or flour, or a combination thereof”. Rikon teaches of imitation cocoa powder where seeds and nut based flours are utilized (Page 14, ,lines 11-16) where finely ground nut flours and examples of peanut and walnut flours are taught. The selection of these flours or seed meals are based on the carbohydrate, fiber and protein content they provide (Rikon, page 14, lines 3-5) . Further, Wang as applied above teaches carob meal, which is a seed meal. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the above identified source of seed meal as taught by Rikon. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of adding easily available inexpensive source of seeds that provides carbohydrate, fiber and protein content (Rikon, page 14, lines 3-5). and nutritional additives to the final product.
Rikon does not provide specific example of sunflower seed meal or flour but sunflower seeds are inexpensive source it is well known and easily available seed. Therefore, it would have been a matter of routine determination to change one source of seed meal for another. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to choose a suitable source of seed meal based on the general teaching of Rikon from page 14. The ordinary artisan would have been motivated to modify Wang further and chose a specific seed meal, such as , sunflower meal, at least for the purpose of adding an easily available, inexpensive source of seeds that provides carbohydrate, fiber and protein content (Rikon, page 14, lines 3-5) to the imitation chocolate.
Regarding claims 23-26, Wang as evidenced by Antoniou, Stavrou and in view of Kawasaki as applied above teach chocolate replica with the VOC and NVC compounds but the references are silent regarding the chocolate replica containing salt, specially “salt comprises sodium chloride, potassium chloride, magnesium chloride, sea salt, or a combination thereof” (Claim 17) and “the chocolate replica comprises about 0 to about 1.5 wt.% salt “ (claim 18). However, Rikon teaches that chocolate typically includes sugar, salt, lecithin, vanillin (Page 2, lines 10-15) and specifically shows inclusion of salt in imitation cocoa powder or chocolate compositions. See Example 2 on pages 23 where the amount of salt falls in the claimed range. Where salt is being interpreted as table salt, sodium chloride. Therefore, inclusion of salt as claimed was routine in chocolates and cocoa product, and it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include salt based on the general teaching of Rikon from page 2 and specific example on page 23. The ordinary artisan would have been motivated to modify Wang further and chose to include salt as is routinely done in chocolate manufacture.
Response to Arguments
Applicant’s arguments filed 5/4/26 with respect to claim(s) 1-2, 5-27 have been considered , but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed 5/4/26 that are considered pertinent have been fully considered but they are not persuasive.
Applicants arguments regarding applied art are addressed below.
Applicants argument against prior art combination of Wang, Kawasaki, and Nakel, alone or in any combination, fail to disclose or even suggest a chocolate replica having a solid substrate as presently claimed (see page 2 para 2 of remarks). This argument is not persuasive. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In the instant case, applicant is referred to claims. Claims listed in 5/4/2026 amendment in general are directed to “A chocolate replica”/ a replacer, a substitute or a an extender of chocolate comprising “a plant-based solid substrate” and claim 1 specifies that “plant based solid substrate” is present in an amount of “about 10 wt.% to about 99.9 wt.% of chocolate replica” and wherein the plant based solid substrate comprises oil seed, fruit and vegetable seed or combinations thereof followed by a list of fruit and vegetable seeds and a list of oil plant seeds. In addition claim 1 also includes one or more of volatile organic compounds (VOCs) and non-volatile organic compounds (NVCs).
In the instant case some general observations about the claims include:
Independent claim 1 does not specify whether the chocolate replica contains any cocoa products or not and whether the chocolate replica contains sugars, milk products or is sugar free and/or dairy free.
Independent claim 1 also does not specify that the VOCs and NVCs present in the chocolate replica of claim 1 are isolated or are natural/ inherent components of the chocolate replica ingredients.
Claim 1 also does not require the chocolate replica to “exhibit taste and aroma of traditionally produced chocolate”, thus as recited a combination of one or more of the VOCs listed in claim 1 with any non-volatile component in any amount when present in a chocolate or chocolate replica (replacer, substitute, extender etc.) containing about 10% or more of plant based solid substrate meets the claim 1 as recited.
Applicant has removed soybean, sesame and walnuts from the list of oil seeds in claim 1, but claim 27 still includes lecithin, a typical soybean product.
Independent claim 1 further does not specify the consumer of the chocolate replica product, i.e., whether the chocolate replica is for a specific consumer type, human, animal , specific category of humans or animals.
1) The main argument is that “chocolate replica” of claim 1 having a list of VOCs and NVCs. Applicant’s main argument is that Prior art especially Wang does not teach “chocolate replica having a solid substrate as presently claimed”, where applicant argues that “Wang, Kawasaki, and Nakel, alone or in any combination, fail to disclose or even suggest a chocolate replica” (page 2, para 2 of remarks).
This argument is not persuasive. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the argument has been addressed above in view of evidentiary NPL to Antoniou and Stavrou where VOCs and NVCs are part of carob bean product as taught by Wang(see rejection above).
2) Applicant argues that “there is no motivation to combine the teachings of no motivation to combine the teachings of the cited references to arrive at the claimed chocolate replicas: applicant supports this argument with “The chocolate compositions disclosed by Wang are designed for consumption by pets, and are already devoid of cocoa in order to eliminate caffeine and theobromine (which can cause side effects or even life-threatening problems of traditional chocolate when fed to pets” (Page 3, para 3-5 of remarks). This argument is not persuasive. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Wang teaches a chocolate replica (such as “Cocoa butter substitute” described in para 7) comprising: a plant-based solid substrate (comprising at least carob powder “vegetable matter powder, corn starch” described in para 14 and “soybean lecithin” in para 15 and carob bean powder in para ), wherein (as recited in claim 1) the plant-based solid substrate does not contain cocoa solids (para 8).
Applicant is referred to rejection above where evidentiary art to Antoniou teaches that carob bean contains VOCs like acetoin, ethyl acetate, butyrate, acetic acid, propanol isobutyric acid, 2 methyl butyric acid to list a few (Table 1 on pages 5-6 of NPL), which includes VOCs listed in claims 1, 8-9. Similarly NVCs are also present in carob bean powder as evidenced by NPL to Stavrou (page 358-366) where NVCs present in carob bean powder include vanillin, vanillic acid, syringic acid, cinnamic acid, etc., which are part of carob bean. These NVCs also fall in the list of NVCs listed in claims 10-11.Stavrou also recognizes the utility of carob powder as a cocoa powder substitute (page 356). Thus, the specific utility of carob as cocoa substitute was known in the art at the time of effective filing date of the invention as taught by Stavrou (page 356 and 357) and list of volatile and non-volatile compounds present in carob bean is taught by Antoniou and Stavrou, which includes at least one VOCs and at least one NVCs as instantly claimed (claims 1, 8-11).
As inclusion of carob products as chocolate replacers or at least to supplement chocolates was known in the art before the effective filing date of the invention based at least on the evidence provided by NPL references to Antoniou and Stavrou, Carob bean product was also known to not only include VOCs and NVCs in general, but rather include specifically listed VOCs and NVCs from the lists recited in claims 1, 8-11 of current application. Further, Since the independent claim does not require the VOCs and NVCs to be isolated, they can be part of the foods or ingredients of chocolate replica, such as fats or flavor or plant based solid substrate and in the instant case part of carob bean, as taught by Wang includes one or more VOCs and NVCs as recited in claim 1, 8-11.
Applied art to Kawasaki and Nakel are provided to support if the VOCs and NVCs identified in claims 1, 8-11 are isolated and then added to chocolate replica, then, previously applied art to Kawasaki and Nakel also teach chocolate flavor compositions and provide evidence that identifying and /or isolating chocolate flavor and aroma compounds was known and practiced at the time of effective filing date of the invention.
Kawasaki teaches cocoa like aroma composition for use in food and beverage products, i.e., at the time of the effective filing date of the invention it was known to create fragrance/ flavor composition having cocoa or chocolate flavor (para 3 best mode Kawasaki) and compounds taught by Kawasaki are also known to have cocoa-like flavor (para 6, 7-17). Also see para 6-17 for additional chocolate flavor compounds. Other prior art to Nakel teaches that alkyl pyrazines with 1 to 4 alkyl groups are known flavor providers (Col. 1, lines 20-40) and that they are known to be added as flavor additives for flavors such as cocoa butter and cocoa beans (Col. 1, lines 50-72). Thus the claimed compounds were known before the effective filing date of the invention for their individual as well as combined cocoa flavor imparting and enhancing properties. Since prior art to Wang teaches cocoa substitute based on vegetable powder and other ingredients which contain carob bean powder which inherently contains at least one VOC and at least one NVC as recited, therefore, in view of the abundance of art identifying cocoa / chocolate flavoring compounds, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to include one or more of the above identified additional flavor imparting compounds. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using known additives that are known substitutes for cocoa type flavors to help make a product that is either devoid of cocoa or uses cocoa in smaller quantities (such as Wang’s “cocoa butter substitute” product), have a desirable chocolate or cocoa aroma and flavor.
3) Applicant’s other argument is that Wang does not teach the invention as claimed as Wang’s chocolate is for pets and cannot be modified to include additional VOCs and NVCs (Page 2, para 2 to page 3, para 4 of remarks). Applicant supports the argument by stating that “A person of ordinary skill in the art would have appreciated that the addition of new chemicals may pose an unknown level of risk. Moreover, the carob powder is disclosed by Wang to provide chocolate color and flavor and to be "an effective substitute for cocoa powder" (paragraph [0021], above), further supporting the lack of motivation to modify the composition of Wang, which already "tastes like chocolate" (paragraph [0021]).”This argument is also not persuasive. As pointed above Wang in view of NPL evidentiary references to Antoniou and Stavrou address that carob bean includes one or more VOCs and NVCs from applicant’s recited claims 1, 8-11. Kawasaki and Nakel address providing chocolate flavor by adding isolated flavor compositions including VOCs and NVCs. Since prior art to Wang teaches cocoa substitute based on vegetable powder and other ingredients which contain carob bean powder which inherently contains at least one VOC and at least one NVC as recited, therefore, in view of the abundance of art identifying cocoa / chocolate flavoring compounds, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to include additional amount of one or more of the above identified flavor imparting compounds (as identified in carob products). The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using known additives that are known substitutes for cocoa type flavors to help make a product that is either devoid of cocoa or uses cocoa in smaller quantities (such as Wang’s “cocoa butter substitute” product), have a desirable more pronounced chocolate or cocoa aroma and flavor.
Further, in response In response to applicant's argument that carob bean containing chocolate as taught by Wang is pet product , the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In the instant case although Wang teaches a chocolate replica with an intention to use it for pets, where carob bean ingredients is being utilized as cocoa powder replacement, however, making chocolates for humans using carob as the base was also known as taught by applicant cited art to “The carob kitchen”. NPL to Stavrou clearly recognizes the carob product as cocoa replacer regardless of the intended consumer. Thus, given the state of the art the combined teachings of the references would have suggested to those of ordinary skill in the art that use of carob products with their natural VOCs and NVCs to make chocolates for not only pets but also for humans was known in the art at the time of effective filing date of the invention and based on the intended consumer, and the flavor and aroma intensity desired, it would have been a matter of routine experimentation to add chocolate like flavoring composition as taught by Kawasaki and/or Nakel to achieve an optimal organoleptic profile.
4) Applicant’s argument that Wang is not pertinent as it does not teach the fruit vegetable seed and oil seeds as recited in claim 1. This argument is also not persuasive. Applicant is once arguing against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In the instant case Wang teaches inclusion of vegetable powder, carob powder and corn starch, as cited in rejection and as acknowledged by applicant (see remarks, page 2 para 3) prior art Gorodyska as cited by the applicant teaches grapeseed powder in chocolate and “carob kitchen” teaches carob bean based chocolate bars containing almonds, which meet the claim 1 limitations for fruit and vegetable seed and oil seeds. Inclusion of carob products as chocolate/ cocoa replacers or at least to supplement chocolates with additional seed byproducts like grape powder and/or almond or other nut powders, would have been a matter of routine experimentation for one of ordinary skill before the effective filing date of the invention is also supported by articles by the Stavrou and carob kitchen.
Based at least on the teaching of Wang, (such as “carob” bean powder or “corn” powder or “soybean”, or “cocoa butter” and Wang’s teaching of “vegetable powder” in general (para 8), that includes vegetable seeds based solid material, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Wang and utilize a desired combination of vegetable and oil seeds as part of plant based solids component of chocolate substitute components. Choosing a desired vegetable or fruit seed like grape seed or an oilseed like almonds as a functional substitute to a vegetable component in a chocolate replica provides a specific flavor or a specific fiber content and specific nutritive benefit. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using a specific vegetable seed or oilseed based on its cost, availability, flavor profile and /or nutritive value in the finished chocolate product, and also based on customer nutritional preference.
It is further noted that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In case the VOCs and NVCs identified in claims 1, 8-11 are isolated and then added to chocolate replica, then, previously applied art to Kawasaki and Nakel also teach chocolate flavor compositions and provide evidence that identifying and /or isolating chocolate flavor and aroma compounds was known and practiced at the time of effective filing date of the invention.
Kawasaki teaches cocoa like aroma composition for use in food and beverage products, i.e., at the time of the effective filing date of the invention it was known to create fragrance/ flavor composition having cocoa or chocolate flavor (para 3 best mode Kawasaki) and compounds taught by Kawasaki include one or more of compounds ( geraniol, para 8; acetoin and 2, 3, pentadione in para 11, Propionic acid and valeric acid in para 12 of machine translation). Kawasaki also teaches of some non-volatile chocolate flavor compounds including dihydroxy benzoic acid, 4-hydroxy-3 methoxycinnamic acid in para 12 and 2, 3 dimethyl pyrazine, trimethyl pyrazine and tetramethyl pyrazine in para 15 of machine translation). All above mentioned compounds taught by Kawasaki are also known to have cocoa-like flavor (para 6, 7-17). Also see para 6-17 for additional chocolate flavor compounds.
Other prior art to Nakel teaches that alkyl pyrazines with 1 to 4 alkyl groups are known flavor providers (Col. 1, lines 20-40) and that they are known to be added as flavor additives for flavors such as cocoa butter and cocoa beans (Col. 1, lines 50-72). Thus the claimed compounds were known before the effective filing date of the invention for their individual as well as combined cocoa flavor imparting and enhancing properties.
Since prior art to Wang teaches cocoa substitute based on vegetable powder and other ingredients which contain carob bean powder which inherently contains at least one VOC and at least one NVC as recited, therefore, in view of the abundance of art identifying cocoa / chocolate flavoring compounds, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to include one or more of the above identified additional flavor imparting compounds. The ordinary artisan would have been motivated to modify Wang for at least for the purpose of using known additives that are known substitutes for cocoa type flavors to help make a product that is either devoid of cocoa or uses cocoa in smaller quantities (such as Wang’s “cocoa butter substitute” product), have a desirable chocolate or cocoa aroma and flavor.
Conclusion
Applicant's amendment and IDS necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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