UNITED STATES PATENT AND TRADEMARK OFFICE

UNITED STATES DEPARTMENT OF COMMERCE

United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov

APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.

14/744,242 06/19/2015 Gregory Aharonian 4710.0010008 6889

26111 7590 07/28/2021 EXAMINER

STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
GWARTNEY, ELIZABETH A
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
ART UNIT PAPER NUMBER

1796

NOTIFICATION DATE DELIVERY MODE

07/28/2021 ELECTRONIC

Please find below and/or attached an Office communication concerning this application or proceeding.

The time period for reply, if any, is set in the attached communication.

Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
e-office@sternekessler.com

PTOL-90A (Rev. 04/07)

 UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte GREGORY AHARONIAN

Appeal 2021-001246
Application 14/744,242
Technology Center 1700

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and

JENNIFER R. GUPTA, Administrative Patent Judges.

GUPTA, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant 2 appeals from the
Examiner’s decision to reject claims 1–13. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1
In this Decision, we refer to the Specification filed June 19, 2015
(“Spec.”); the Non-Final Office Action dated February 27, 2019 (“Non-Final
Act.”); the Appeal Brief filed October 25, 2019 (“Appeal Br.”); and the
Examiner’s Answer dated December 13, 2019 (“Ans.”).
2
“Appellant” refers to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Mr. Gregory
Aharonian. Appeal Br. 3.
Appeal 2021-001246
Application 14/744,242

CLAIMED SUBJECT MATTER

The claims are directed to a cocoa-based foodstuff having reduced
bitterness to taste. Independent claim 1, reproduced below, illustrates the
claimed subject matter:
1. A cocoa-based foodstuff having reduced bitterness
to taste, comprising:
i) C grams of unsweetened, cacao butter-free cocoa;
ii) AL grams of at least one coca alkaloid, said at least
one coca alkaloid being effective to reduce the bitterness of said
unsweetened cocoa; and
iii) F grams of fat and S grams of sugar with (F + S) <
̰ C;
iv) provided that said at least one alkaloid is not nicotine.
Appeal Br. 22 (App. A).

REJECTIONS
I. Claims 1–4, 7, 8, and 10–13 are rejected under 35 U.S.C. §103
as unpatentable over Cooking with Amy, 3 Jenkins, 4 Backyard Patch Herbal
Blog, 5 Good Girl Gone Green 6, and Appellant’s Admitted Prior Art (Spec.
¶ 21);

3
Amy Sherman, Tea-infused Hot Cocoa Recipe, COOKING WITH AMY: A
FOOD BLOG (Dec. 20, 2010),
http://cookingwithamy.blogspot.com/2010/12/tea-infused-hot-cocoa-
recipe.html.
4
Amanda J. Jenkins et al., Identification and Quantification of Alkaloids in
Coca Tea, 77 Forensic Sci. Int. 179–189 (1996).
5
Marcy Lautanen-Raleigh, Tea Infused Hot Chocolate, BACKYARD P ATCH
HERBAL BLOG (Dec. 19, 2012), https://backyardpatch.blogspot.com/2012/.
6
Stephanie Moram, Green Tea Hot Chocolate, GOOD GIRL GONE GREEN
BLOG (Nov. 16, 2012),
2
Appeal 2021-001246
Application 14/744,242

II. Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over

Cooking with Amy, Jenkins, Backyard Patch Herbal Blog, Good Girl Gone
Green, Appellant’s Admitted Prior Art (Spec. ¶ 21), and Carroll; 7
III. Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Cooking with Amy, Jenkins, Backyard Patch Herbal Blog, Good Girl Gone
Green, Appellant’s Admitted Prior Art (Spec. ¶ 21), and Burdock; 8
IV. Claim 9 is rejected under 35 U.S.C. § 103 over Cooking with
Amy, Jenkins, Backyard Patch Herbal Blog, Good Girl Gone Green,
Appellant’s Admitted Prior Art (Spec. ¶ 21), and Genius Kitchen. 9

DISCUSSION
We sustain the Examiner’s rejection for the reasons presented by the
Examiner in the Final Office Action and Answer. In doing so, we adopt the
Examiner’s well-reasoned, well-articulated response to arguments presented
in the Answer, and add the following for emphasis.
Appellant argues the claims as a group, including separately rejected
claims 5, 6, and 9. See Appeal Br. 4. We select claim 1 as representative for
disposition of this appeal. All claims stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv) (2019).

https://web.archive.org/web/20130403154931/http://www.goodgirlgonegree
n.com/recipes/vegan-green-tea-hot-chocolate.
7
Eleanor Carroll, M.A., Chapter II Coca: The Plant and Its Use, in
COCAINE: 1977, National Institute on Drug Abuse Research (Robert C.
Petersen, Ph.D. & Richard C. Stillman, M.D., eds., 1977).
8
George A. Burdock, PH.D., Fenaroli’s Handbook of Flavor Ingredients
1136, 1163 (5th ed., CRC Press 2005).
9
Talia 3, Cinnamon Vanilla Hot Chocolate Recipe, GENIUS KITCHEN,
https://www.geniuskitchen.com/recipe/cinnamon-vanilla-hot-chocolate-
382837 (last visited Feb. 6, 2019).
3
Appeal 2021-001246
Application 14/744,242

The Examiner finds that Cooking with Amy teaches a tea-infused hot
cocoa recipe that includes tea, cocoa powder, and sugar, and teaches that the
sugar in its recipe can be adjusted to one’s liking. Non-Final Act. 4; Cooking
with Amy 1–2. The Examiner finds that Cooking with Amy also teaches that
a variety of teas, including herbal tea, work in its recipe, and encourages
experimenting with different types of teas not specifically named. Id. The
Examiner acknowledges, however, that Cooking with Amy does not disclose
coca tea or at least one coca alkaloid derived from coca tea. Id.
The Examiner finds that Jenkins teaches coca tea (i.e., leaves from a
plant that is a member of the genus Erythroxylum) is known and consumed
in many South American countries. Non-Final Act. 4 (citing Jenkins,
Abstract). The Examiner finds that Jenkins also teaches that prepared coca
tea contains alkaloids, such as benzoylecgonine. Id. (citing Jenkins 4).
Given that Cooking with Amy encourages experimenting with
different types of teas and Jenkins teaches coca tea is a known tea that is
consumed in many South American countries, the Examiner determines that
it would have been obvious to one of ordinary skill in the art to use coca tea
in Cooking with Amy’s Tea-Infused Hot Cocoa recipe. Non-Final Act. 5;
Ans. 12.
Appellant argues that Cooking with Amy only invites a reader to try
any possible tea, but does not provide a motivation or suggestion to choose
coca tea from all the possible choices of tea. Appeal Br. 15. Appellant
argues that neither Cooking with Amy nor Jenkins, alone or in combination,
teaches or suggests that coca leaves or any coca alkaloid has any sort of
coca-de-bittering property. Id. Appellant argues that the Examiner
erroneously claims that the claimed de-bittering agent is an inherent property

4
Appeal 2021-001246
Application 14/744,242

of coca tea. Id. Appellant also argues that the Examiner makes the bald
assertion that one of ordinary skill would have decreased the amount of fat
and sugar to within the claimed range when Cooking with Amy actually
teaches away from the claimed invention by stressing the need for milk and
a sweetener to overcome the inherent bitterness of cocoa. Id.
Appellant’s arguments do not persuade us of reversible error in the
Examiner’s rejection. Although Cooking with Amy does not list coca tea as
an example of a tea for use in its tea-infused hot cocoa recipe, Cooking with
Amy states that “types of tea that work with chocolate vary,” and aside from
the mentioned teas, “[t]here could be other types of tea that are wonderful
with cocoa,” and “it’s certainly worth more experimentation.” Cooking with
Amy 1. Jenkins evinces that coca tea is a known tea that is commonly
consumed in South American countries. Jenkins, Abstract. “[I]t has been
held that the simple substitution of one known element for another to obtain
predictable results is obvious.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007). Thus, as the combination of Cooking with Amy and Jenkins
suggest, it would have been obvious to use coca tea in Cooking with Amy’s
recipe. Moreover, Cooking with Amy suggests the general conditions of
claim 1, and teaches that one can adjust the sugar in the recipe to one’s
liking (Cooking with Amy 2), such that determining the concentration of
sugar becomes a mere matter of routine experimentation to find the
workable or optimal amount. In re Aller, 220 F.2d 454, 456 (CCPA 1955)
(“[W]here the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.”).

5
Appeal 2021-001246
Application 14/744,242

Appellant argues that the Declaration under 37 C.F.R. § 1.132 of

Angus Kennedy executed May 3, 2017, demonstrates that the present
invention “addresses a long-felt commercial need in the chocolate industry
for cacao-based foods that have enjoyable taste and mouth feel, but with
reduced sugar and fat.” Appeal Br. 20 (citing Kennedy Decl. ¶ 10).
Establishing long-felt need requires objective evidence that a
recognized problem existed in the art for a long period of time without
solution. Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 768 (Fed. Cir.
1988). Once a long-felt need has been established, it must further be shown
that the claimed invention satisfied the need. In re Cavanagh, 436 F.2d 491,
496 (CCPA 1971). We note that “long-felt need is analyzed as of the date of
an articulated identified problem and evidence of efforts to solve that
problem.” Texas Instr. Inc. v. Int’l Trade Comm’n, 988 F.2d 1165, 1178
(Fed. Cir. 1993).
Appellant has not produced sufficient objective evidence to establish a
long-felt need or the failure of others to satisfy a long-felt need. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (discussing that arguments and
conclusions unsupported by factual evidence carry no evidentiary weight).
Because we are not persuaded of reversible error in the Examiner’s
rejection, we sustain the obviousness rejections of claims 1–13.

CONCLUSION
The Examiner’s obviousness rejections are affirmed.

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Appeal 2021-001246
Application 14/744,242

DECISION SUMMARY
In summary:
Claim(s) 35 U.S.C. Reference(s)/Basis Affirmed Reversed
Rejected §
1–4, 7, 8, 103 Amy, Jenkins, 1–4, 7, 8,
10–13 Backyard Patch 10–13
Herbal Blog, Good
Girl Gone Green,
Appellant’s
Admitted Prior Art
5 103 Amy, Jenkins, 5
Backyard Patch
Herbal Blog, Good
Girl Gone Green,
Appellant’s
Admitted Prior
Art, Carroll
6 103 Amy, Jenkins, 6
Backyard Patch
Herbal Blog, Good
Girl Gone Green,
Appellant’s
Admitted Prior
Art, Burdock
9 103 Amy, Jenkins, 9
Backyard Patch
Herbal Blog, Good
Girl Gone Green,
Appellant’s
Admitted Prior
Art, Genius
Kitchen
Overall 1–13
Outcome

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Appeal 2021-001246
Application 14/744,242

TIME PERIOD FOR RESPONSE

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED