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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
Claims 1-4, 6-13, and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Stradal US 5,252,188 in view of Hyuseinov et al. US 2016/0360772 in view of Majerski et al. US 2004/0022912 in view of Piskorz et al. US 2015/0250198 as evidenced by Palmer US 2017/0354165 in view of Sandra US 2016/0198728.
Regarding claim 1, Stradal discloses a composition consisting of natural smoke flavor (precipitated HAA) containing active carbonyl compounds having the ability to react with and cross-link protein molecules (precipitated HAA) (col. 7, lines 42-51, col. 10, lines 66-68). To elaborate since Stradal broadly teaches that precipitated HAA produced by the invention may be used in a wide variety of applications in the food industry and generically teaches applying the HAA to food products, Stradal suggests a composition of 100% precipitated HAA can be used for application to food products. It is noted that Stradal recites “for example many different meat sources…may be contacted with aqueous solutions of HAA” and thus application as an aqueous solution is only an example of how the precipitated HAA can be applied to food products.
Stradal discloses that the active carbonyl compounds include glycolaldehyde (HAA). Stradal discloses that the natural smoke flavor (precipitated HAA) is obtained by condensing pyrolyzates of wood, 6-carbon sugars (dextrose) (‘188, col. 3, lines 18-60, col. 4, lines 52-57).
Claim 1 differs from Stradal in the recitation that the composition further includes buffered vinegar. However, Stradal already suggests combining the precipitated HAA with other well-known additives such as preservatives (col. 7, lines 51-65).
Hyuseinov discloses a food additive that is a buffered vinegar ([0055]-[0061], [0063], [0071]) for preservation of food products ([0065], [0066], [0067], [0045]).
It would have been obvious to one of ordinary skill in the art to modify the composition of Stradal to include a buffered vinegar as taught by Hyuseinov, in order to provide a composition which provides browning and preservative effect for a food product and since Stradal already discloses that the natural smoke flavor (precipitated HAA) can be combined with other well-known additives such as preservatives (col. 7, lines 51-65) and Hyuseinov teaches a known additive for preserving food products includes buffered vinegar. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness (MPEP 2144.07) and “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Additionally, it is noted that Stradal already teaches that precipitated HAA can be used in a solution in an amount of at least about 0.5-10% by weight (col. 7, lines 51-57), and teaches that HAA can be included in a generic aqueous solution for a purpose such as imparting varying degrees or coloring or browning (col. 7, lines 44-51). It is also noted that Hyuseinov already discloses that the buffered vinegar is in liquid form and is added to food products for preservative effect (‘772, ([0065], [0066], [0067], [0045]). Therefore, based on these teachings of Stradal and Hyuseinov as a whole, it would have been obvious to one of ordinary skill in the art to combine the buffered vinegar and precipitated HAA (glycolaldehyde) of Stradal to result in the composition being a mixture of buffered vinegar and natural smoke flavor containing active carbonyl compounds wherein the active carbonyl compounds include glycolaldehyde and total content of the glycolaldehyde (HAA) in the composition is 1.9% by weight or higher, in order to provide a composition which provides browning and preservative effect for a food product.
Claim 1 differs from Stradal in view of Hyuseinov in the recitation that the active carbonyl compounds of the natural smoke flavor specifically include glyoxal. It is noted that Stradal already discloses that the glycolaldehyde (HAA) can mixed with other carbonyl compounds for imparting brown color to a foodstuff (col. 17, line 14-17).
Piskorz discloses hodge carbonyls include glyoxal, and specifically discloses that hodge carbonyls are used as browning agents ([0010]). It is noted that Piskorz also discloses that hodge carbonyls are obtained as a condensate produced by pyrolysis of biomass, such as wood ([0007]-[0010]).
Majerski discloses a commercial browning agent comprising 4.6% glycolaldehyde and 0.6% of glyoxal ([0061]).
Since Stradal already teaches that the composition can include a mixture of HAA with other carbonyl compounds for browning foodstuff, and since Piskorz and Majerski already recognize that glyoxal is a known carbonyl compound used in a browning agent composition, it would have been obvious to one of ordinary skill in the art to modify the composition of Stradal in view of Hyuseinov such that the active carbonyl compounds of the natural smoke flavor include glyoxal, thereby selecting a known material based on its suitability for its intended use (MPEP 2144.07). Additionally, it would have been obvious to include the glyoxal in an amount such as 0.6% of the composition as suggested Majerski, since Majerski recognizes such an amount was a common amount of glyoxal to include in a composition for browning of a food product. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
The prior art as a whole therefore suggests a composition consisting of a mixture of a. buffered vinegar and b. natural smoke flavor containing active carbonyl compounds having the ability to react with react with and cross link protein molecules, wherein the active carbonyl compounds include glycolaldehyde (HAA) and glyoxal and a total content of the glycolaldehyde and glyoxal in the composition is 1.9% by weight or higher, the natural smoke flavor is obtained by condensing pyrolyzates of wood or 6-carbon sugars (dextrose).
It is noted that Palmer provides evidence that suggests that it was known to add both smoke flavor and buffered vinegar to a meat product ([0011]).
Claim 1 differs from Modified Stradal in the recitation that the buffered vinegar is 40-91% by weight of the composition.
Sandra discloses an antimicrobial composition that comprises 10-90wt% Buffered vinegar ([0029], [0030]). Thus, Sandra recognizes that a suitable amount of buffered vinegar to include in a composition for desired antimicrobial effect includes 10-90wt% buffered vinegar. It would have been obvious to one of ordinary skill in the art to modify Modified Stradal such that the buffered vinegar is 40-91% by weight of the composition as suggested by Sandra in order to provide desired antimicrobial effect.
Regarding claim 2, Modified Stradal discloses that the composition contains the buffered vinegar and the buffered vinegar is 300 grain vinegar (300 grain distilled vinegar) (‘772 [0071]) buffered with a powdered weak base (‘772, [0055], [0057]-[ 0059]) to a range of about 4.0 to about 5.5 (‘772, [0057], [0058]) encompassing the claimed range.
Regarding claim 3, Modified Stradal teaches that the natural smoke flavor containing the active carbonyl compounds (precipitated HAA (0.5wt-10wt) and glyoxal (0.6wt%)) is 1.1wt%-10.6wt% of a total weight of the mixture, overlapping the claimed range (MPEP 2144.05).
Regarding claim 4, claim 4 is rejected for the same reasons given above as for claim 1. Stradal discloses that the natural smoke flavor (precipitated HAA) is obtained from pyrolyzates of wood, 6-carbon sugars (dextrose) (‘188, col. 3, lines 46-60).
Regarding claim 6, claim 6 is seen to be an intended use of the composition of claim 1, since Modified Stradal discloses that the composition is intended for use in food products, the composition of Modified Stradal is seen to be capable of being used in food products, including meat products and ready to eat food products.
Regarding claim 9, Stradal discloses a composition (aqueous HAA solution) (col. 7, lines 42-51) comprising:
a. a preservative (col. 7, lines 61-65); and
b. natural smoke flavoring containing more than 35% by weight of active carbonyl compounds with the ability to react with and cross link protein molecules (precipitated HAA is a crosslinking agent) (col. 7, lines 52-57, col. 10, lines 66-68, col. 11, lines 1-3) (mixtures of HAA with other carbonyl compounds may also be used) (col. 17, lines 14-17); Stradal discloses that the active carbonyl compounds include glycolaldehyde (HAA) and a total content of the glycolaldehyde in the composition is 1.9% weight or higher (0.5wt%- 10wt% HAA solution) (col. 7, lines 52-55). Stradal discloses that the active carbonyl compounds (HAA) are obtained from pyrolyzates of wood, 6-carbon sugars (dextrose) (‘188, col. 3, lines 46-60).
Claim 9 differs from Stradal in the recitation that the composition includes buffered vinegar. However, it is noted that Stradal discloses that the composition can include other well-known additives such as preservatives (col. 7, lines 51-65).
Hyuseinov discloses a food additive that is a buffered vinegar ([0055]-[0061], [0063], [0071]) for preservation of food products ([0065], [0066], [0067], [0045]). It would have been obvious to one of ordinary skill in the art to modify the composition of Stradal to include a buffered vinegar as taught by Hyuseinov, since Stradal already discloses that the composition can include other well-known additives such as preservatives (col. 7, lines 51-65) and Hyuseinov teaches a known additive for preserving food products includes buffered vinegar. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness (MPEP 2144.07) and “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
Claim 9 differs from Stradal in view of Hyuseinov in the recitation that the active carbonyl compounds of the natural smoke flavor include glyoxal.
Piskorz discloses hodge carbonyls include glyoxal, and specifically discloses that hodge carbonyls are used as browning agents ([0010])
Majerski discloses a commercial browning agent comprising 4.6% glycolaldehyde and 0.6% of glyoxal ([0061]).
Since Stradal already teaches that the composition can include a mixture of HAA with other carbonyl compounds for browning foodstuff, and since Piskorz and Majerski already recognize that glyoxal is a known carbonyl compound used in a browning agent composition, it would have been obvious to one of ordinary skill in the art to modify the composition of Stradal in view of Hyuseinov such that the active carbonyl compounds of the natural smoke flavor include glyoxal, thereby selecting a known material based on its suitability for its intended use (MPEP 2144.07). Additionally, it would have been obvious to include the glyoxal in an amount such as 0.6% of the composition as suggested Majerski, since Majerski recognizes such an amount was a common amount of glyoxal to include in a composition for browning of a food product. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
It is noted that Palmer provides evidence that suggests that it was known to add both smoke flavor and buffered vinegar to a meat product ([0011]).
Claim 9 differs from Modified Stradal in the recitation that the buffered vinegar is 40-91% by weight of the composition.
Sandra discloses an antimicrobial composition that comprises 10-90wt% Buffered vinegar ([0029], [0030]). Thus, Sandra recognizes that a suitable amount of buffered vinegar to include in a composition for desired antimicrobial effect includes 10-90wt% buffered vinegar. It would have been obvious to one of ordinary skill in the art to modify Modified Stradal such that the buffered vinegar is 40-91% by weight of the composition as suggested by Sandra in order to provide desired antimicrobial effect.
Regarding claims 10-11, Modified Stradal discloses that the buffered vinegar which is 300 grain vinegar (300 grain distilled vinegar) (‘772 [0071]) buffered with powdered weak bases (sodium bicarbonate, sodium carbonate, potassium carbonate, and potassium bicarbonate) (‘772, [0055], [0057]-[ 0059]) to a range of about 4.0 to about 5.5 (‘772, [0057], [0058]) overlapping the claimed range. “About 5.5” is seen to overlap 5.85, see paragraph [0074] of Hyuseinov).
Regarding claim 12, Modified Stradal discloses that the buffered vinegar is 300 grain vinegar (300 grain distilled vinegar) (‘772 [0071]) buffered with powdered weak bases (‘772, [0055], [0057]-[ 0059]) to a range of about 4.0 to about 5.5 (‘772, [0057], [0058]) encompassing the claimed range.
Regarding claim 13, Modified Stradal discloses that the natural smoke flavoring (precipitated HAA (0.5-10%) and glyoxal (0.6%)) can be at least about 1.1wt -10.6wt% of the mixture (aqueous solution of HAA with additive) (‘188, col. 7, lines 52-65), overlapping the claimed range (MPEP 2144.05).
Regarding claim 15, Modified Stradal discloses that the 6-carbon sugar is dextrose (‘188, Fig. 2, 3 col. 3, lines 46-60).
Regarding claim 16, Modified Stradal discloses that the natural smoke flavoring (precipitated HAA and glyoxal) contains more than 50% by weight of the active carbonyl compounds, since the natural smoke flavoring consists only of precipitated HAA and glyoxal, the natural smoke flavoring obviously contains more than 50% by weight of the active carbonyl compounds.
Regarding claim 17, Modified Stradal discloses that the composition contains 4.5% to 5.5% by weight of the active carbonyl compounds (precipitated HAA (0.5-10%) and glyoxal (0.6%)) can be at least about 1.1wt -10.6wt% of the mixture (aqueous solution of HAA with additive) (‘188, col. 7, lines 52-65), encompassing the claimed range (MPEP 2144.05).
Regarding claim 18, Stradal discloses a composition consisting of natural smoke flavor (precipitated HAA) containing more than 35% by weight of active carbonyl compounds (the precipitated HAA is 100% HAA), the active carbonyl compounds having the ability to react with and cross-link protein molecules (HAA is a cross-linking agent) (col. 7, lines 42-51, col. 10, lines 66-68, col. 8, lines 5-8). To elaborate since Stradal broadly teaches that precipitated HAA produced by the invention may be used in a wide variety of applications in the food industry and generically teaches applying the HAA to food products, Stradal suggests a composition of 100% precipitated HAA can be used for application to food products. It is noted that Stradal recites “for example many different meat sources…may be contacted with aqueous solutions of HAA” and thus application as an aqueous solution is only an example of how the precipitated HAA can be applied to food products.
Stradal discloses that the active carbonyl compounds include glycolaldehyde (HAA). Stradal discloses that the natural smoke flavor (precipitated HAA) is obtained by condensing pyrolyzates of wood, 6-carbon sugars (dextrose) (‘188, col. 3, lines 18-60, col. 4, lines 52-57).
Claim 18 differs from Stradal in the recitation that the composition further includes buffered vinegar. However, Stradal already suggests combining the precipitated HAA with other well-known additives such as preservatives (col. 7, lines 51-65).
Hyuseinov discloses a food additive that is a buffered vinegar ([0055]-[0061], [0063], [0071]) for preservation of food products ([0065], [0066], [0067], [0045]).
It would have been obvious to one of ordinary skill in the art to modify the composition of Stradal to include a buffered vinegar as taught by Hyuseinov, in order to provide a composition which provides browning and preservative effect for a food product, and since Stradal already discloses that the natural smoke flavor (precipitated HAA) can be combined with other well-known additives such as preservatives (col. 7, lines 51-65) and Hyuseinov teaches a known additive for preserving food products includes buffered vinegar. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness (MPEP 2144.07) and “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
Additionally, it is noted that Stradal already teaches that precipitated HAA can be used in a solution in an amount of at least about 0.5-10% by weight (col. 7, lines 51-57), and teaches that HAA can be included in a generic aqueous solution for a purpose such as imparting varying degrees or coloring or browning (col. 7, lines 44-51). It is also noted that Hyuseinov already discloses that the buffered vinegar is in liquid form and is added to food products for preservative effect (‘772, ([0065], [0066], [0067], [0045]). Therefore, based on these teachings of Stradal and Hyuseinov as a whole, it would have been obvious to one of ordinary skill in the art to combine the buffered vinegar of Hyuseinov and precipitated HAA (glycolaldehyde) of Stradal to result in the composition being a mixture of buffered vinegar and natural smoke flavor containing active carbonyl compounds wherein the active carbonyl compounds include glycolaldehyde and total content of the glycolaldehyde (HAA) in the composition is 1.9% by weight or higher, in order to provide a composition which provides browning and preservative effect for a food product.
Claim 18 differs from Stradal in view of Hyuseinov in the recitation that the active carbonyl compounds of the natural smoke flavor specifically include glyoxal. It is noted that Stradal already discloses that the glycolaldehyde (HAA) can mixed with other carbonyl compounds for imparting brown color to a foodstuff (‘188, col. 17, line 14-17).
Piskorz discloses hodge carbonyls include glyoxal, and specifically discloses that hodge carbonyls are used as browning agents ([0010]). It is noted that Piskorz also discloses that hodge carbonyls are obtained as a condensate produced by pyrolysis of biomass, such as wood ([0007]-[0010]).
Majerski discloses a commercial browning agent comprising 4.6% glycolaldehyde and 0.6% of glyoxal ([0061]).
Since Stradal already teaches that the composition can include a mixture of HAA with other carbonyl compounds for browning foodstuff, and since Piskorz and Majerski already recognize that glyoxal is a known carbonyl compound used in a browning agent composition, it would have been obvious to one of ordinary skill in the art to modify the composition of Stradal in view of Hyuseinov such that the active carbonyl compounds of the natural smoke flavor include glyoxal, thereby selecting a known material based on its suitability for its intended use (MPEP 2144.07). Additionally, it would have been obvious to include the glyoxal in an amount such as 0.6% of the composition as suggested Majerski, since Majerski recognizes such an amount was a common amount of glyoxal to include in a composition for browning of a food product. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness. (MPEP 2143.I.A).
The prior art as a whole therefore suggests a composition consisting of buffered vinegar and natural smoke flavor containing more than 35% by weight of active carbonyl compounds, the active carbonyl compounds having the ability to react with react with and cross link protein molecules, wherein the active carbonyl compounds include glycolaldehyde (HAA) and glyoxal and a total content of the glycolaldehyde and glyoxal in the composition is 1.9% by weight or higher, the natural smoke flavor is obtained by condensing pyrolyzates of wood or 6-carbon sugars (dextrose).
It is noted that Palmer provides evidence that suggests that it was known to add both smoke flavor and buffered vinegar to a meat product ([0011]).
Claim 18 differs from Modified Stradal in the recitation that the buffered vinegar is 40-91% by weight of the composition.
Sandra discloses an antimicrobial composition that comprises 10-90wt% Buffered vinegar ([0029], [0030]). Thus, Sandra recognizes that a suitable amount of buffered vinegar to include in a composition for desired antimicrobial effect includes 10-90wt% buffered vinegar. It would have been obvious to one of ordinary skill in the art to modify Modified Stradal such that the buffered vinegar is 40-91% by weight of the composition as suggested by Sandra in order to provide desired antimicrobial effect.
Regarding claim 19, Modified Stradal discloses adding the composition to food products (‘188, col. 3, lines 11-15) including meat products which are subsequently cooked (col. 4, lines 19-29). Hyuseinov also discloses applying the buffered vinegar to meat (‘772, [0038], [0037]) and discloses that the effective amount of food additive applied to a food product for preservation can vary based on several factors including the type of food product, the surface area of the food product and storage conditions (‘772, [0065]). Stradal discloses using the composition as a browning agent for food products and varying the degree of coloring or browning (col. 3, lines 8-15, col. 4, lines 19-31, col .7, lines 42-50, col. 9, lines 49-56). Therefore, it would have been obvious to one of ordinary skill in the art to apply the composition of claim 9 of Modified Stradal to meat, adjust the amount of the composition applied based on desired browning and preservative properties and subsequently cook the treated meat (MPEP 2144.05.II).
Regarding claim 20, claim 20 is rejected for the same reasons as claim 19, additionally Stradal in view of Hyuseinov discloses that the natural smoke flavor containing the active carbonyl compounds (precipitated HAA) can be at least about 0.5 -10% of the mixture (aqueous solution of HAA with additive) (‘188, col. 7, lines 52-65), encompassing the claimed range.
Regarding claim 21, Modified Stradal discloses that the meat is raw prior to cooking (‘188, Example 3).
Regarding claim 7, Modified Stradal discloses that the composition contains the buffered vinegar and the buffered vinegar is 300 grain vinegar (300 grain distilled vinegar) (‘772 [0071]) buffered with a powdered weak base (‘772, [0055], [0057]-[ 0059]) to a range of about 4.0 to about 5.5 (‘772, [0057], [0058]), which is the pH utilized by Applicant, and therefore is obviously configured to provide desired organoleptic attributes to the cooked meat product and to provide antimicrobial activity.
Regarding claim 8, Modified Stradal suggests the claimed composition and therefore is configured to optimize organoleptic attributes and shelf life of the cooked meat product.
Response to Arguments
Applicant's arguments filed 08/27/2025 have been fully considered but they are not persuasive.
On pg. 9 of the remarks Applicant argues that as previously explained the claimed combination of smoke flavor and buffered vinegar obtains unexpected superior results. Applicant argues that Stradal is only directed to smoke flavor and Hyuseinov is only directed to buffered vinegar. Applicant argues that no document applied by the office discloses a composition that contains both smoke flavor and buffered vinegar in combination.
This argument has not been found persuasive. Palmer US 2017/0354165 provides evidence that suggests that it was known to add both smoke flavor and buffered vinegar to a meat product ([0011]). “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” "The fact that appellant 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." (MPEP 2145.II).
On Pg. 10 of the remarks Applicant argues that the Examiner relies on Stradal as disclosing that its liquid smoke flavor may be combined with a preservative. Applicant argues that Stradal is merely referring to a preservative for preserving its liquid smoke flavor and not to the addition of a preservative for preserving another product.
This argument has not been found persuasive, Stradal discloses “In addition well known additives such as gums, thickeners, preservatives or flavorings may be incorporated in the aqueous HAA solutions to produce browning and flavoring solutions most suitable for application to a particular type of foodstuff” (col. 7, lines 58-65). Stradal does not specifically recite or require that the purpose of the preservative is to preserve the HAA solution. Additionally, since for example the purpose of the other ingredients are to enhance the food product (for example flavoring enhances the flavor of a food product) they are applied to it is obvious that the purpose of the preservative can include preserving the food product.
On Pg. 11 Applicant argues that Stradals liquid smoke flavor is not a meat, poultry or fish food product.
While Stradal does not recite that the aqueous HAA solution is a meat product, Stradal teaches that the aqueous HAA solution is added to meat products (col. 7, lines 42-65, Example 3).
On Pg. 11 Applicant argues that the results are tied to the composition and that the Office has not presented any evidence that other types of non-tested meat have a protein that is substantially structurally different.
The Examiner notes that the results for example 1 include specifically “force need to puncture skin of white meat samples”, the result of a force need to puncture skin of white meat samples would not be applicable to a meat product without skin.
Conclusion
Applicant's amendment 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792