DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 07/29/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment: the 35 U.S.C. §112(b) rejection of claim 18 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3-13, 16-19
Withdrawn claims: None
Previously cancelled claims: 2, 14-15
Newly cancelled claims: None
Amended claims: 1, 10-11, 13, 16, 18
New claims: 19
Claims currently under consideration: 1, 3-13, 16-19
Currently rejected claims: 1, 3-13, 16-19
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/29/2025 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-13, and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Aeschbach (US 5,585,130; previously cited) in view of Dionisi (WO 2017/220511; cited on IDS) as evidenced by Ruiz (Ruiz, L.D., Sheri-Zidenberg-Cherr; “Nutrition and Health Info Sheet: Fat”, 2016, Center for Nutrition in Schools, University of California, Davis; previously cited).
Regarding claim 1, Aeschbach teaches a composition (corresponding to protected fat) (col. 4, line 1) comprising (a) animal or vegetable fat containing unsaturated fatty acids (col. 2, lines 29-31). Since Aeschbach teaches that component (a) contains unsaturated fatty acids and unsaturated fatty acids contain allylic hydrogen atoms as evidenced by the Figure on page 1 of Ruiz, Aeschbach teaches that component (a) is a compound comprising an allylic hydrogen atom as claimed. Aeschbach also teaches that the composition comprises: (b) an antioxidant system (corresponding to antioxidants) (col. 2, lines 10-11) obtained by an extraction method comprising the steps of (i) contacting an apolar extractant (corresponding to animal or vegetable fat containing unsaturated fatty acids) (col. 2, lines 29-31) with a combination of plant powders (corresponding to finely ground vegetable material) (col. 2, lines 20-21) to prepare an extract (col. 1, line 54-56; col. 1, lines 60-63), wherein the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder, wherein ginger, sage, and rosemary are included in an amount approaching 0 wt.% to an amount approaching 100 wt.% (col. 2, lines 11-14); and (ii) separating the extract from at least part of the residue of the plant powders (col. 3, lines 22-24). The disclosed content range of the ginger, sage, and rosemary powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Aeschbach discloses that pressure is applied to the apolar extractant and plant powders after they have been combined to form a mixture during a pretreatment step (col. 1, lines 60-64; col. 2, lines 57-64). This pretreatment step corresponds to the extraction in step (i) of present claim 1 as step (i) merely requires the plant powders and the apolar extractant to be combined together. Since Aeschbach does not disclose increasing pressure during this pretreatment step (col. 2, lines 42-44), a skilled practitioner would readily understand that the extraction is carried out at ambient pressure. Therefore, carrying out the extraction in step (i) of present claim 1 at ambient pressure is rendered obvious.
Aeschbach also discloses that the weight ratio of the plant powders to the apolar extract is selected to obtain an acceptable concentration of extract in a high yield; and exemplifies weight ratios of the plant powders to the apolar extract of 1:0.1 to 1:2.5 (col. 3, lines 13-15). These exemplified weight ratios do not fall within the claimed weight ratio range; however, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05.I. Furthermore, since Aeschbach exemplifies these ratios as being suitable to obtain an acceptable concentration of extract, Aeschbach at least suggests that other suitable weight ratios exist outside of the exemplified range.
Although Aeschbach teaches that the plant material is finely ground (col. 2, lines 20-21) and that the vegetable material containing antioxidants protects fat against oxidation by directly contacting the fat with the vegetable material (col. 1, lines 14-17), Aeschbach does not teach the particle sizes of the ginger, sage, and rosemary powders to be less than 800 µm, less than 500 µm, and less than 500 µm, respectively.
However, Dionisi teaches a composition (corresponding to stabilized fat blend) comprising vegetable powders (corresponding to micronized vegetable material) and a fat blend, wherein the vegetable powders contain antioxidants and protect the fat from oxidation (page 1, paragraph 1). Dionisi teaches that the composition comprises: (a) a second fat component (page 8, lines 19-20) selected from rapeseed oil, corn oil, olive oil, sunflower oil, nut oil, soybean oil, flaxseed oil, and safflower oil (page 8, lines 19-25) which are compounds comprising an allylic hydrogen atom since they contain unsaturated fatty acids as evidenced by Ruiz (Figure on page 1; page 1, paragraphs 2-3). Dionisi also teaches that the composition comprises: (b) an antioxidant system obtained by an extraction method comprising the steps of (i) contacting an apolar extractant (corresponding to first fat component) with a combination of plant powders (page 5, lines 5-15), wherein the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder (page 6, lines 9-10). Dionisi teaches that the plant powders have a particle size of less than 250 µm (page 5, lines 25-26), which falls within the claimed particle size ranges.
It would have been obvious for a person of ordinary skill in the art to have modified the sage, ginger, and rosemary powders of Aeschbach to have a particle size of less than 250 µm as taught by Dionisi. Since Aeschbach teaches that its composition protects fat against oxidation by directly contacting the fat with vegetable material (col. 1, lines 14-17) and that the vegetable material is finely ground (col. 2, lines 20-21), but does not disclose a specific particle size for the vegetable material, a skilled practitioner would have been motivated to consult an additional reference such as Dionisi in order to determine a suitable particle size for vegetable powders used in composition to protect fat against oxidation. Therefore, the claimed particle size is rendered obvious.
Although the combination of Aeschbach and Dionisi render the method steps recited in present claim 1 obvious, it is noted that claim 1 (and its dependents) is a product-by-process claim and "even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113.I. Therefore, claim 1 and its dependents only require the presence of the allylic hydrogen atom and “an antioxidant system” comprising ginger, sage, and rosemary powder. Even if compounds were not extracted from the powders, a blend of the three powders would still contain the “extraction components” even though they were not extracted.
Regarding claim 3, modified Aeschbach teaches the invention as disclosed above in claim 1, including the particles of the ginger powder, sage powder, and rosemary powder have a particle size of less than 250 µm (Dionisi, page 5, lines 25-26), which falls within the claimed particle size range.
Regarding claim 4, modified Aeschbach teaches the invention as disclosed above in claim 1, including the combination of plant powders also comprises pepper powder (Dionisi, page 6, line 9; Aeschbach (corresponding to pimento skins), col. 2, line 14), wherein the particles of the pepper powder have a size of less than 250 µm (Dionisi, page 5, lines 25-26), which falls within the claimed particle size range.
Regarding claim 5, Aeschbach teaches the invention as disclosed above in claim 4, including the antioxidant-containing vegetable material used in the composition contains ginger, sage, and rosemary from an amount approaching 0 wt.% to an amount approaching 100 wt.% (col. 2, lines 11-14). The disclosed content range of the ginger, sage, rosemary, and pepper powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. The selection of a value within the overlapping range renders the claim obvious. MPEP 2144.05.I.
Regarding claim 6, modified Aeschbach teaches the invention as disclosed above in claim 1, including the combination of plant powders also comprises clove powder (Dionisi, page 6, line 8), wherein the particles of the clove powder have a size of less than 250 µm (Dionisi, page 5, lines 25-26), which falls within the claimed particle size range.
Regarding claim 7, modified Aeschbach teaches the invention as disclosed above in claim 6, including the antioxidant-containing vegetable material used in the composition contains ginger, sage, rosemary, and clove (Dionisi, page 6, line 8-10) from an amount approaching 0 wt.% to an amount approaching 100 wt.% (Aeschbach, col. 2, lines 11-14). The disclosed content range of the ginger, sage, rosemary, and clove powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. The selection of a value within the overlapping range renders the claim obvious. MPEP 2144.05.I.
Regarding claim 8, modified Aeschbach teaches the invention as disclosed above in claim 6, including the antioxidant-containing vegetable material used in the composition contains ginger, sage, rosemary, pepper, and clove (Dionisi, page 6, line 8-10; Aeschbach, col. 2, lines 11-14) from an amount approaching 0 wt.% to an amount approaching 100 wt.% (Aeschbach, col. 2, lines 11-14). The disclosed content range of the ginger, sage, rosemary, pepper, and clove powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. The selection of a value within the overlapping range renders the claim obvious. MPEP 2144.05.I.
Regarding claim 9, modified Aeschbach teaches the invention as disclosed above in claim 1, including the apolar extractant is an edible oil (Dionisi, page 8, lines 12-16).
Regarding claim 12, Aeschbach teaches a food composition according to claim 1 (corresponding to protected fat) (col. 4, line 1).
Regarding claim 13, Aeschbach teaches a method for preparing an antioxidant system (col. 1, lines 14-17) comprising the steps of (i) contacting an apolar extractant (corresponding to animal or vegetable fat containing unsaturated fatty acids) (col. 2, lines 29-31) with a combination of plant powders (corresponding to finely ground vegetable material) (col. 2, lines 20-21) to prepare an extract (col. 1, line 54-56; col. 1, lines 60-63). Aeschbach teaches that the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder, wherein ginger, sage, and rosemary are included in an amount approaching 0 wt.% to an amount approaching 100 wt.% (col. 2, lines 11-14). Aeschbach teaches that the method further comprises (ii) separating the extract from at least part of the residue of the plant powders (col. 3, lines 22-24). The disclosed content range of the ginger, sage, and rosemary powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. The selection of a value within the overlapping range renders the claimed weight ratio range obvious. MPEP 2144.05.I.
Aeschbach discloses that pressure is applied to the apolar extractant and plant powders after they have been combined to form a mixture during a pretreatment step (col. 1, lines 60-64; col. 2, lines 57-64). This pretreatment step corresponds to the extraction in step (i) of present claim 13 as step (i) merely requires the plant powders and the apolar extractant to be combined together. Since Aeschbach does not disclose increasing pressure during this pretreatment step (col. 2, lines 42-44), a skilled practitioner would readily understand that the extraction is carried out at ambient pressure. Therefore, carrying out the extraction in step (i) of present claim 13 at ambient pressure is rendered obvious.
Aeschbach also discloses that the weight ratio of the plant powders to the apolar extract is selected to obtain an acceptable concentration of extract in a high yield; and exemplifies weight ratios of the plant powders to the apolar extract of 1:0.1 to 1:2.5 (col. 3, lines 13-15). These exemplified weight ratios do not fall within the claimed weight ratio range; however, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05.I. Furthermore, since Aeschbach exemplifies these ratios as being suitable to obtain an acceptable concentration of extract, Aeschbach at least suggests that other suitable weight ratios exist outside of the exemplified range.
Although Aeschbach teaches that the plant material is finely ground (col. 2, lines 20-21) and that the vegetable material containing antioxidants protects fat against oxidation by directly contacting the fat with the vegetable material (col. 1, lines 14-17). Aeschbach does not teach the particle sizes of the ginger, sage, and rosemary powders to be less than 800 µm, less than 500 µm, and less than 500 µm, respectively.
However, Dionisi teaches a method for preparing an antioxidant system (page 2, lines 15-19) comprising the steps of (i) contacting an apolar extractant (corresponding to first fat component) with a combination of plant powders (page 5, lines 5-15), wherein the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder (page 6, lines 9-10). Dionisi teaches that the plant powders have a particle size of less than 250 µm (page 5, lines 25-26), which falls within the claimed particle size ranges.
It would have been obvious for a person of ordinary skill in the art to have modified the sage, ginger, and rosemary powders in the method of Aeschbach to have a particle size of less than 250 µm as taught by Dionisi. Since Aeschbach teaches that its method produces a composition to protect fat against oxidation by directly contacting the fat with vegetable material (col. 1, lines 14-17) and that the vegetable material is finely ground (col. 2, lines 20-21), but does not disclose a specific particle size for the vegetable material, a skilled practitioner would have been motivated to consult an additional reference such as Dionisi in order to determine a suitable particle size for vegetable powders used in composition to protect fat against oxidation. Therefore, the claimed particle size is rendered obvious.
Regarding claim 10, Aeschbach teaches the invention as disclosed above in claim 13, including that the pretreatment step corresponding to step (i) of present claims 13 and 10 may be carried out for 60-90 minutes (col. 2, lines 56-61). Therefore, the extract may be separated from the residue of the plant powders at least 60-90 minutes after commencement of the contacting step (i), which falls within the claimed range.
Regarding claim 11, Aeschbach teaches the invention as disclosed above in claim 13, including known extraction methods include converting the extractants into a powder form or into more viscous liquids (col. 1, lines 27-29). This disclosure means that concentrating the extract by at least partially removing the apolar extractant from the extract is known in the art, even if the method of Aeschbach does not disclose such a step to be present in its method. Furthermore, Aeschbach recognizes the importance of concentrated antioxidant systems and discloses method of producing a concentrated extract (col. 3, lines 44-50; col. 4, lines 1-6), especially wherein the concentrated extract and the non-concentrated extract are not required to contain any specific amount of extract. “Factors to be considered in determining whether a purified form of an old product is obvious over the prior art include whether the claimed chemical compound or composition has the same utility as closely related materials in the prior art, and whether the prior art suggests the particular form or structure of the claimed material or suitable methods of obtaining that form or structure. In re Cofer, 354 F.2d 664, 148 USPQ 268 (CCPA 1966)”. MPEP 2144.04.VII. Therefore, the claim is rendered obvious.
Regarding claim 16, Aeschbach teaches a composition (corresponding to protected fat) (col. 4, line 1) comprising (a) animal or vegetable fat containing unsaturated fatty acids (col. 2, lines 29-31). Since Aeschbach teaches that component (a) contains unsaturated fatty acids and unsaturated fatty acids contain allylic hydrogen atoms as evidenced by the Figure on page 1 of Ruiz, Aeschbach teaches that component (a) is a compound comprising an allylic hydrogen atom as claimed. Aeschbach also teaches that the composition comprises: (b) an antioxidant system (corresponding to antioxidants) (col. 2, lines 10-11) obtained by an extraction method, wherein the composition comprises up to 7 wt.% of the antioxidant system (col. 3, lines 49-50), which encompasses the claimed concentration of antioxidant system recited in present claim 16. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Aeschbach discloses that the method of making the antioxidant system comprises the steps of (i) contacting an apolar extractant (corresponding to animal or vegetable fat containing unsaturated fatty acids) (col. 2, lines 29-31) with a combination of plant powders (corresponding to finely ground vegetable material) (col. 2, lines 20-21) to prepare an extract (col. 1, line 54-56; col. 1, lines 60-63), wherein the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder, wherein ginger, sage, and rosemary are included in an amount approaching 0 wt.% to an amount approaching 100 wt.% (col. 2, lines 11-14); and (ii) separating the extract from at least part of the residue of the plant powders (col. 3, lines 22-24). The disclosed content range of the ginger, sage, and rosemary powders includes amounts that would provide weight ratios that overlap the claimed weight ratio range. The selection of a value within the overlapping range renders the claimed weight ratio obvious. MPEP 2144.05.I.
Aeschbach discloses that the plant powders are enzyme-inactivated and dehydrated prior to contacting the powders with the apolar extractant (col. 3, lines 4-12) as recited in present claim 16. Aeschbach does not explicitly state that the plant powders are dried to a maximum water content of 20 wt.% as presently claimed. However, it is known in the art that powders may comprise moisture in amounts nearly as low as 0 wt.%; and it is known in the art that dried plant powders may comprise amounts of water lower than 20 wt.%. Therefore, the moisture content of the dried powder is considered to at least overlap the claimed moisture content. The selection of a value within the overlapping range renders the claimed moisture content obvious. MPEP 2144.05.I.
Aeschbach discloses that pressure is applied to the apolar extractant and plant powders after they have been combined to form a mixture during a pretreatment step (col. 1, lines 60-64; col. 2, lines 57-64). This pretreatment step corresponds to the extraction in step (i) of present claim 16 as step (i) merely requires the plant powders and the apolar extractant to be combined together. Since Aeschbach does not disclose increasing pressure during this pretreatment step (col. 2, lines 42-44), a skilled practitioner would readily understand that the extraction is carried out at ambient pressure. Therefore, carrying out the extraction in step (i) of present claim 16 at ambient pressure is rendered obvious.
Although Aeschbach teaches that the plant material is finely ground (col. 2, lines 20-21) and that the vegetable material containing antioxidants protects fat against oxidation by directly contacting the fat with the vegetable material (col. 1, lines 14-17), Aeschbach does not teach the particle sizes of the ginger, sage, and rosemary powders to be less than 800 µm, less than 500 µm, and less than 500 µm, respectively.
However, Dionisi teaches a composition (corresponding to stabilized fat blend) comprising vegetable powders (corresponding to micronized vegetable material) and a fat blend, wherein the vegetable powders contain antioxidants and protect the fat from oxidation (page 1, paragraph 1). Dionisi teaches that the composition comprises: (a) a second fat component (page 8, lines 19-20) selected from rapeseed oil, corn oil, olive oil, sunflower oil, nut oil, soybean oil, flaxseed oil, and safflower oil (page 8, lines 19-25) which contain unsaturated fatty acids as evidenced by Ruiz (page 1, paragraphs 2-3). Since unsaturated fatty acids contain allylic hydrogen atoms as evidenced by the Figure on page 1 of Ruiz, Dionisi teaches that its second fat component, which corresponds to the claimed component (a), is a compound comprising an allylic hydrogen atom as claimed. Dionisi also teaches that the composition comprises: (b) an antioxidant system obtained by an extraction method comprising the steps of (i) contacting an apolar extractant (corresponding to first fat component) with a combination of plant powders (page 5, lines 5-15), wherein the combination of plant powders comprises: (1) ginger powder, (2) sage powder, (3) and rosemary powder (page 6, lines 9-10). Dionisi teaches that the plant powders have a particle size of less than 250 µm (page 5, lines 25-26), which falls within the claimed particle size ranges.
It would have been obvious for a person of ordinary skill in the art to have modified the sage, ginger, and rosemary powders of Aeschbach to have a particle size of less than 250 µm as taught by Dionisi. Since Aeschbach teaches that its composition protects fat against oxidation by directly contacting the fat with vegetable material (col. 1, lines 14-17) and that the vegetable material is finely ground (col. 2, lines 20-21), but does not disclose a specific particle size for the vegetable material, a skilled practitioner would have been motivated to consult an additional reference such as Dionisi in order to determine a suitable particle size for vegetable powders used in composition to protect fat against oxidation. Therefore, the claimed particle size is rendered obvious.
Although the combination of Aeschbach and Dionisi render the method steps recited in present claim 16 obvious, it is noted that claim 16 is a product-by-process claim and "even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113.I. Therefore, claim 16 only requires the presence of the allylic hydrogen atom and “an antioxidant system” comprising ginger, sage, and rosemary powder. Even if compounds were not extracted from the powders, a blend of the three powders would still contain the “extraction components” even though they were not extracted.
Regarding claim 17, Aeschbach teaches the invention as disclosed above in claim 1, including the composition comprises up to 7 wt.% of the antioxidant system (col. 3, lines 49-50), which encompasses the claimed concentration of antioxidant system. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 18, Aeschbach teaches the invention as disclosed above in claim 1, including the composition comprises up to 7 wt.% of the antioxidant system (col. 3, lines 49-50), which encompasses the claimed concentration of antioxidant system. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 19, Aeschbach teaches the invention as disclosed above in claim 1, including that the plant powders are dehydrated prior to contacting the powders with the apolar extractant (col. 3, lines 4-12). Aeschbach does not explicitly state that the plant powders are dried to a maximum water content of 20 wt.% as presently claimed. However, it is known in the art that powders may comprise moisture in amounts nearly as low as 0 wt.%; and it is known in the art that dried plant powders may comprise amounts of water lower than 20 wt.%. Therefore, the moisture content of the dried powder is considered to at least overlap the claimed moisture content. The selection of a value within the overlapping range renders the claimed moisture content obvious. MPEP 2144.05.I.
Double Patenting
Claim 13 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 10, and 12 of U.S. Patent No. 11,793,223 (i.e., U.S. Application No. 16/970,959). Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 13 requires the same weight ratios and particle sizes of ginger powder, sage powder, and rosemary powder to be present in a composition wherein the composition further comprises an apolar extractant (corresponding to unsaturated lipids in patented claim 12) as recited in the patented claims. Patented claim 10 requires that a weight ratio of the plant powders to apolar extractant of be from 1:19,999 (corresponding to a composition comprising 0.005 wt.% by dry matter of plant powder as recited in patented claim 10) to 1:1:19 (corresponding to a composition comprising 5 wt.% by dry matter of plant powder as recited in patented claim 10). These values overlap the weight ratio of plant powders to apolar extract recited in instant claim 13. The selection of a value within the overlapping range renders the weight ratio recited in the instant claim obvious. MPEP 2144.05.I.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claim 18: Applicant amended the claim to fully address the rejection; therefore, the rejection is withdrawn.
Claim Rejections- 35 U.S.C. §103 of claims 1, 3-13, and 16-18 over Aeschbach and Dionisi: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant amended claims 1 and 13 to recite that the weight ratio of the plant powders to the apolar extractant is from 1:1000 to 1:3; and that the extraction in step (i) is carried out at ambient pressure. Applicant then argued that Aeschbach none of the weight ratios disclosed by Aeschbach in column 1, lines 13-17 falls within or overlaps the claimed weight ratio. Applicant also argued that Dionisi discloses a weight ratio of plant powders to apolar extractant from 3:7 to 7:3, which also does not fall within or overlap the claimed weight ratio. Applicant the stated that Aeschbach requires a pressure of at least 40 bar for extraction while Dionisi requires reduced pressure for extraction. For these reasons, Applicant then argued that neither Aeschbach nor Dionisi discloses extraction under ambient pressure (Applicant’s Remarks, page 6, 1st paragraph under “Rejection under 35 U.S.C. § 103 – page 8, 1st paragraph).
However, as described above in the rejections of amended claims 1 and 13, Aeschbach discloses that pressure is applied to the apolar extractant and plant powders after they have been combined to form a mixture during a pretreatment step (col. 1, lines 60-64; col. 2, lines 57-64). This pretreatment step corresponds to the extraction in step (i) of present claims 1, 13, and 16 as step (i) merely requires the plant powders and the apolar extractant to be combined together. Since Aeschbach does not disclose increasing pressure during this pretreatment step (col. 2, lines 42-44), a skilled practitioner would readily understand that the extraction is carried out at ambient pressure. Therefore, carrying out the extraction in step (i) of amended claims 1, 13, and 16 at ambient pressure is rendered obvious. Furthermore, Applicant has not demonstrated ambient pressure
Also as described above in the rejections of amended claims 1 and 13, Aeschbach discloses that the weight ratio of the plant powders to the apolar extract is selected to obtain an acceptable concentration of extract in a high yield; and exemplifies weight ratios of the plant powders to the apolar extract of 1:0.1 to 1:2.5 (col. 3, lines 13-15). These exemplified weight ratios do not fall within the claimed weight ratio range; however, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). MPEP 2144.05.I. Furthermore, since Aeschbach exemplifies these ratios as being suitable to obtain an acceptable concentration of extract, Aeschbach at least suggests that other suitable weight ratios exist outside of the exemplified range.
Applicant amended claim 16 to further recite that the plant powder is enzyme-inactivated and dehydrated to a maximum water content of 20 wt.%; and that the composition comprises 0.00025-0.25 wt.% of the antioxidant system by dry weight of the composition. Applicant then argued that neither Aeschbach nor Dionisi disclose that the plant powder is enzyme-inactivated and dehydrated as now presently claimed; or that the composition comprises 0.00025-0.25 wt.% of the antioxidant system by dry weight of the composition as now presently claimed. Applicant stated that Ruiz does not remedy the aforementioned deficiencies of Aeschbach and Dionisi (Applicant’s Remarks, page 8, 2nd paragraph – page 9, 3rd paragraph).
However, as described above in the rejection of amended claim 16, Aeschbach also teaches that the composition comprises: (b) an antioxidant system (corresponding to antioxidants) (col. 2, lines 10-11) obtained by an extraction method, wherein the composition comprises up to 7 wt.% of the antioxidant system (col. 3, lines 49-50), which encompasses the claimed concentration of antioxidant system recited in present claim 16. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Also, as described above in the rejection of amended claim 16, Aeschbach discloses that the plant powders are enzyme-inactivated and dehydrated prior to contacting the powders with the apolar extractant (col. 3, lines 4-12) as recited in present claim 16. Aeschbach does not explicitly state that the plant powders are dried to a maximum water content of 20 wt.% as presently claimed. However, it is known in the art that powders may comprise moisture in amounts nearly as low as 0 wt.%; and it is known in the art that dried plant powders may comprise amounts of water lower than 20 wt.%. Therefore, the moisture content of the dried powder is considered to at least overlap the claimed moisture content. The selection of a value within the overlapping range renders the claimed moisture content obvious. MPEP 2144.05.I.
For these reasons, the cited prior art is considered to render the present claims obvious. As such, Applicant’s arguments are shown to be unpersuasive and the rejections of the claims are maintained as written herein.
Double Patenting Rejection: Applicant defers the filing of a terminal disclaimer until such a time that allowable claims are identified (Applicant’s Remarks, page 9, 1st-2nd paragraphs under “Double Patenting”).
The double patenting rejection stands as written herein.
New Claim 19: Applicant stated that new claim 19 is patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 9, 1st – 2nd paragraphs under “New Claim”).
Claim 1 and claim 19 are rejected for the reasons provided above.
Conclusion
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