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Kraft Foods Schweiz Holding GmbH v Mars, Incorporated [2023] APO 41 – Crumb Chocolate Flavour Compositions


On 1 December 2016, Mars filed Australian patent application no. 2016365338 (the Application) for a composition which modifies a final food aroma to mimic the aroma of chocolate crumb powder. 

Claim 1 of the Application is directed to a chocolate composition that has two parts, namely;

(a) dry milk chocolate, which is milk chocolate made with milk powder and without chocolate crumb powder or without the crumb process; and 

(b) an extraneous flavour composition that includes at least the nine recited odorants and provides an overall aroma of crumb chocolate, a creamy aroma of crumb chocolate, or an overall aroma and creaminess of crumb chocolate. 

The application was opposed by Kraft. In their statement of grounds and particulars, Kraft made many allegations. 

This article will consider Kraft’s allegation that claim 1 of the Application does not reflect the results described in the specification (i.e. that claim 1 was not supported) due to “glaring inconsistencies in the data and the interpretation of the results.”


A comparison between the invention described in the claims and the specification was undertaken to determine whether the claims were supported by the disclosure in the description when read by a person skilled in the art. 

In asserting a lack of support, the Opponent relied upon evidence from three independent food scientists. The Applicant relied on evidence from Dr Dizbalis, a flavour scientist from Mars and an inventor on the present application.

Interestingly, relying on evidence and the merits of such evidence where the evidence is adduced from someone who is also an inventor of the application in question was not considered by the Delegate.

The Experiments

The patent application outlined that determining the compounds for inclusion in claim 1 involved three key experiments. We summarise the goal of each of these experiments in the table below. 

Experiment 1

Identify the compounds responsible for creating the crumb chocolate flavour more than traditional chocolate. 

Experiment 2

Identify the odour activity value, that is, how important a compound is to the overall odour of a sample. 

Experiment 3

Perform omission experiments whereby a single odorant is omitted at a time and a trained panellist will evaluate the creaminess and aroma to determine which odorants are important for creating the crumb chocolate aroma.

The first two experiments identified a key compound (for the chemistry and chocolate nerds – furanone), that had a significant impact on the crumb chocolate aroma. 
In their evidence, Dr Dizbalis commented that the identification of the compounds of experiments 1 and 2 involved research that extended over a period of 10-years. 
The omission experiments (experiment 3) found the key compound identified in experiments 1 and 2 to be unimportant in providing the crumb chocolate aroma. 
The key compound was not listed in claim 1 of the patent application. 
In the declaration of Dr Dizbalis, it was noted that, “Both FD factor and OAV values, being quantitative methods rather than human sensory experiments, are a useful method of narrowing down the odorants that may be of importance to the overall aroma of a food sample, but it is ultimately human sensory experiments that provide an answer as to how the human brain perceives the combined overall aroma of a food sample.”

The Decision

In the decision, the Delegate held that the apparent inconsistencies in individual results for a particular odorant simply indicates there are limitations in the analytical techniques used. The Delegate considered that any apparent inconsistencies in the empirical data do not provide sufficient basis to find the claims lack support.

In reaching this conclusion, the Delegate noted that the specification gives more weight and importance to human sensory testing when selecting the key compounds that significantly contribute to an overall aroma of crumb chocolate, a creamy aroma of crumb chocolate or an overall aroma and creaminess of crumb chocolate. 

This raises the question of why Mars invested 10 years of research into steps 1 and 2 when what would ultimately be given weight for the patent application was the information discerned from step 3.  

Regardless, this decision gives us helpful insight into support requirements and is a reminder to ensure that your patent description also includes discussion as to why certain integers may be selected for inclusion in the claims over other integers. 

Book a free consultation with the expert team at Kings today to ensure that your patent application fulfils the support requirements to be properly protected. 

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