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 .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-2, 4, 6-17, 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Buttery Caramel Sauce NPL [twoplaidaprons.com] in view of Sriracha-Caramel Sauce NPL [foodnetwork.com], Rasile [US 2011/0097020A1], Buffalo Chicken Wing Sauce NPL [allrecipes.com], and Chef John NPL [allrecipes.com].
Buttery Caramel Sauce NPL (BCS) teaches a method for making sauce by combining granulated white sugar and water over heat to dissolve the sugar, then add lemon juice (Step 1), simmer the sugar water until amber (Step 2), stir in butter to form butter caramel sauce (Step 3), then refrigerate or use while fluid (Step 4), an absence of butter separation (see whole document), and product being pourable or fluid before being placed in a refrigerator (Step 4).
BCS does not explicitly recite adding vinegar pepper sauce to the butter caramel sauce, packaging, and pourability at room temperature (claim 1, 12, 17), adding pepper sauce before hardening or cooling (claim 6-7), the pepper sauce including chili pepper (claim 9, 15), approximately equal portions of butter caramel and pepper sauce (claim 10, 16), adding salt (claim 11), shipping (claim 19), and pouring from a package (claim 20).
Sriracha-Caramel Sauce NPL (SCS) teaches a method for making sauce by caramelizing sugar (Step 2), adding a cream mixture including butter (Step 2), and adding sriracha sauce into the caramel sauce (Step 3). Sriracha sauce was a commonly known hot sauce made from chili peppers.
It would have been obvious to one of ordinary skill in the art to incorporate the claimed pepper sauce addition into the method of BCS, in view of SCS, since both are directed to methods of making sauce, since BCS already included butter caramel sauce, since sriracha sauce was commonly added to liquified butter caramel sauce as shown by SCS, since many consumers preferred spicy tasting sauces for their food, and since the addition of pepper sauce to BCS would have provided increased consumer appeal.
Rasile teaches a condiment package (title) comprising a sealed container (Figure 1, #10) adapted for highly acidic condiments such as pepper sauce (paragraph 0036).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed packaging, sealed container, and shipping into the process and product of BCS, in view of SCS and Rasile, since all are directed to sauce products and methods, since BCS already included a process for making the sauce but simply did not mention how to store or market the sauce, since food products were commonly prepared at one site (eg a processing plant) then sold and shipped to a store/restaurant at a distant location where the food was stored prior to being finally prepared and sold to the consumer, since high acid condiments such as pepper sauce were commonly packaged in a sealed container as shown by Rasile, since the additional steps of packaging ,storing, shipping, and selling the sauce of BCS would have enabled consumers to purchase the sauce from the manufacturer rather than preparing the sauce themselves, since many consumers preferred purchasing prepared food products due to the increased convenience, since selling the sauce of BCS would have provided a desirable source of income for the producer, and since packaging, shipping, storage, and selling the sauce would have resulted in a wider distribution of the sauce and thus the potential for increased profits to the producer.
Buffalo Chicken Wing Sauce NPL (Buffalo) teaches a method for making sauce by using 2/3 cup hot sauce, ½ cup butter, 1.5 tbspn white vinegar, and 0.25 tspn Cayennee pepper (page 1).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed pepper sauce amounts and room temperature pourability into the method of BCS, in view of SCS and Buffalo, since all are directed to methods of making sauce, since sauces were typically pourable at room temperature, since BCS already included butter caramel, since hot sauce was commonly added to butter caramel as shown by SCS, since Buffalo sauce was commonly made with 2/3 cup hot sauce and ½ cup butter (page 1) as shown by Buffalo, since many consumers desired the flavor and taste of Buffalo sauce, since a large amount of pepper sauce would aid in making the sauce of BCS, in view of SCS and Buffalo, more flowable and more easily poured at room temperature, since many sauces are consumed at room temperature and consumers typically expect a sauce to be pourable at room temperature, since many consumers desired spicy sauces, and since the claimed amounts would have been used during the course of normal experimentation and optimization due to factors such as the food to be eaten with the sauce, and/or the personal taste and flavor preferences of the consumer.
Chef John NPL teaches a homemade sriracha sauce recipe including distilled white vinegar and red jalapeno peppers (Ingredients).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed peppers and vinegar into the method of BCS, in view of SCS and Chef John NPL, since all are directed to methods of making sauce, since SCS already included sriracha sauce but simply did not mention its ingredients, since sriracha sauce was commonly made from distilled white vinegar and red jalapeno peppers as shown by Chef John NPL, since many people desired the taste of jalapeno peppers and vinegar sauces, and since the use of these additional ingredients would have provided increased appeal for the sauce of BCS, in view of SCS and Chef John.
In conclusion, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over BCS, in view of SCS, Buffalo, Chef John, and Rasile, as applied above, and further in view of Pour Some Sugar on Me: Caramelizing Sugar NPL [carftsy.com].
BCS, SCS, Buffalo, Chef John, and Rasile teach the above mentioned concepts. BCS does not explicitly recite heating the sugar to at least 170C (claim 3). Pour Some Sugar on Me: Caramelizing Sugar NPL (Pour) teaches caramelizing sugar by heating to 340-350F or 171-177C (page 5). It would have been obvious to one of ordinary skill in the art to incorporate the claimed temperature into the method of BCS, in view of Pour, since both are directed to methods of caramelizing sugar, since BCS simply did not mention a temperature, since sugar caramelized at 340-350F or 171-177C (page 5) as shown by Pour, and since heating to the claimed temperature rather than just using color would provide a more accurate and precise measurement of caramelization.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over BCS, in view of SCS, Buffalo, Chef John, and Rasile, as applied above, and further in view of Science of Cooking NPL.
BCS, SCS, Buffalo, Chef John, and Rasile teach the above mentioned components and concepts. BCS does not explicitly recite a concentrated sugar level of 100% (claim 5). Science of Cooking NPL teaches caramelizing sugar reaches a sugar concentration of 100% (page 3). It would have been obvious to one of ordinary skill in the art to incorporate the claimed concentrated sugar level of 100% into BCS, in view of Science of Cooking NPL, since BCS already included a step of heating and dissolving the sugar and caramelize it, and since it was commonly accepted that caramelized sugar possessed 100% concentration as shown by Science of Cooking NPL.
Response to Arguments
Applicant's arguments filed 10/28/25 have been fully considered but they are not persuasive.
Applicant argues that stabilizing the butter by addition of caramelized sugar and acidic hot sauce provided an unexpected/unpredicted result. However, SCS also taught making sauce by caramelizing sugar (Step 2), adding a cream mixture including butter (Step 2), and adding sriracha sauce into the caramel sauce (Step 3). The sauce of SCS would have also naturally possessed a stabilized structure due to the use of the same ingredients and steps. In addition, DCS already taught using acidic lemon juice in its buttery caramel sauce.
In response to applicant's argument that the references do not address phase separation, congealing, or visual degradation; the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case, the claimed ingredients were well known and commonly used in the art to produce sauce products with different desired flavor and texture profiles.
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). 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).
Applicant argues that the references possessed different flavor profiles. However, it was well within the skill level of one of ordinary skill in the art to combine known ingredients with different flavors in varied amounts and ratios to arrive at a desired flavor and texture profile.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., phase separation, congealing, or visual degradation) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
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/DREW E BECKER/Primary Examiner, Art Unit 1792