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 .
This office action is in regard to the application filed on April 7, 2021 and in response to Applicant’s Amendments and Arguments/Remarks filed on February 13, 2026.
Status of Application
The amendment filed February 13, 2026 has been entered. Claims 1-6, 8-13, 15-17, and 19-21 are currently pending in the application. Claim 19 has been amended; claims 7, 14, and 18 are canceled; claims 12, 13, and 15-17 are withdrawn. Claims 1-6, 8-11, and 19-21 are hereby examined on the merits.
The previous claim objection to claim 19 has been withdrawn in view of applicant’s claim amendments.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 5, 6, 8, 10, 11, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Percel et al. (US Patent 4,511,584; listed on IDS dated April 7, 2021) in view of Schnee (US PG Pub 2011/0052772; cited on PTO-892 dated March 22, 2024) and Mori et al. (US Patent 3,619,212) herein after referred to as Percel, Schnee, and Mori, respectively.
Regarding claims 1, 2, and 21, Percel discloses a particulate food acidulant (i.e., a particulate flavoring composition), comprising 55-60 wt.% lactate particles (col. 3 lines 25-29) (the other proportion of the particulate food acidulant being a lipid coating in an amount of 40-45%), the lactate particles comprising
(i) a calcium lactate carrier (i.e., a lactate particle containing calcium lactate); and
(ii) lactic acid (i.e., edible acid) (col. 2 lines 66-68);
the lactate particle having a weight ratio of 50% of each calcium lactate and lactic acid (i.e., edible acid) (col. 2 line 65-col. 3 line 1), which lies within the claimed range of 25-99.5 wt.% calcium lactate and 0-70 wt.% edible acid.
Percel does not teach 0.5-40 wt.% of a liquid flavoring absorbed into the calcium lactate, the liquid flavoring being liquid at 20°C and atmospheric pressure and consisting of essential oil and/or oleoresin and, optionally, a liquid solvent comprising propylene glycol, triglyceride oil, diglyceride oil, monoglyceride oil, and/or terpene.
Schnee, in the same field of invention, teaches a foodstuff treatment composition comprising lactate particles (claim 1) and 3-30 wt.% of a flavor compound ([0026]; claim 2) that is applied as an aqueous solution (i.e., liquid flavoring being liquid at 20°C and atmospheric pressure) [0014] and comprises oleoresins [0013], wherein the oleoresins are in a glycerol/water solvent mixture [0050]. Schnee offers the motivation that flavoring compounds cover off-flavors caused by lactic acid and lactates [0013]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the lactate particle composition of Percel by incorporating the liquid flavoring of Schnee at the taught amounts, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of masking any off-flavors caused by the calcium lactate and/or lactic acid.
By incorporating the liquid flavoring of Schnee into the lactate particles of Percel, the combination of calcium lactate, edible acid, and the liquid flavoring constitutes 100 wt.% of the lactate particle. The compositions adjust to 48.5 wt.% each calcium lactate and lactic acid at 3 wt.% liquid flavoring, and adjust to 35 wt.% each calcium lactate and lactic acid at 30 wt.% liquid flavoring, all of which lie within the claimed ranges.
Percel and Schnee are silent as to that the oleoresin is in a solvent comprising propylene glycol, triglyceride oil, diglyceride oil, monoglyceride oil, and/or terpene. However, Schnee does teach that the oleoresin is in a glycerol/water solvent mixture [0050].
Mori, in the same field of invention, teaches liquid flavor compositions adsorbed onto powder particles (claim 1) wherein the flavors are essential oils and oleoresins (col. 1 lines 11-13) dissolved in propylene glycol (col. 1 lines 16-19). Mori offers the motivation that the oleoresins and essential oils can be dissolved in a suitable solvent such as alcohol (e.g., glycerol) or propylene glycol (col. 1 lines 16-19). This liquid flavoring thereby consists of only essential oil, oleoresin, and a liquid solvent consisting of propylene glycol. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have substituted the glycerol solvent of Schnee with the propylene glycol of Mori, as well as incorporating essential oils into the flavoring, thereby arriving at the claimed invention. One would have been motivated to make this modification as both glycerol and propylene glycol are known suitable solvents for oleoresins.
Regarding claim 5, modified Percel teaches that the lactate particle comprises 12-18 wt.% of the liquid flavoring (Schnee: [0026]; claim 2), which lies within the claimed range of 1-24.5 wt.%.
Regarding claim 6, modified Percel teaches that the lactate particle comprises 40-45 wt.% calcium lactate and 55-60 wt.% lactic acid (i.e., edible acid) (Percel: col. 3 lines 25-29), which lie within the claimed ranges of 35-90 wt.% calcium lactate and 10-65 wt.% edible acid.
Regarding claim 8, modified Percel teaches that the edible acid is lactic acid (Percel: Abstract).
Regarding claim 10, modified Percel teaches that the calcium lactate is calcium lactate pentahydrate (i.e., 100 wt.% of the calcium lactate in the lactate particle is calcium lactate pentahydrate) (Percel: col. 5 lines 49-51).
Regarding claim 11, modified Percel teaches introducing the particulate food acidulant (i.e., lactic acid) into a sausage meat product (i.e., edible composition) in an amount of 2 parts by weight lactic acid per 100 parts by weight lean beef and beef trimmings (i.e., edible ingredients) (Percel: Example 6), which falls within the claimed range of 0.1-10 parts by weight of a particulate flavoring composition per 100 parts by weight of edible ingredients.
Regarding claims 19 and 20, Percel in view of Schnee and Mori teach the particulate flavoring composition as set forth above with regard to claim 1.
Schnee teaches that the liquid flavoring comprises oleoresins [0013].
Mori teaches that the liquid flavoring composition consists of essential oils dissolved in propylene glycol (col. 1 lines 11-19). Mori offers the motivation that both essential oils and oleoresins are suitable flavor components for a liquid flavoring composition adsorbed onto powder particles (claim 1; col. 1 lines 11-19), as well as that the essential oils can be dissolved in a suitable solvent such as propylene glycol (col. 1 lines 16-19). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have substituted the oleoresins of Schnee with the essential oils of Mori in the propylene glycol, thereby arriving at the claimed invention. One would have been motivated to make this modification as both oleoresins and essential oils are known in the art as suitable flavor components in a liquid flavoring composition that is adsorbed onto powder particles.
Claims 3, 4, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Percel et al. (US Patent 4,511,584; listed on IDS dated April 7, 2021) in view of Schnee (US PG Pub 2011/0052772; cited on PTO-892 dated March 22, 2024) and Mori et al. (US Patent 3,619,212), as applied to claims 1 and 6 above, and further in view of Maarschal et al. (US PG Pub 2015/0150835; cited on PTO-892 dated Nov. 17, 2023), herein after referred to as Maarschal.
Percel in view of Schnee and Mori, referred to as modified Percel, teaches the particulate flavoring composition as set forth above with regard to claims 1 and 6.
Regarding claims 3 and 4, modified Percel is silent as to that the lactate particles have a volume weighted mean diameter in the range of 10-1000 μm or 50-800 μm.
Maarschal, in the same field of invention, teaches a lactate powder having a volume weighted mean diameter of 100-500 μm [0044]. Maarschal offers the motivation that particulate materials within this range are considered to be a powder [0028]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have fabricated the particulate flavoring composition of modified Percel to have the volume weighted mean diameter of Maarschal, thereby arriving at the claimed invention, with the reasonable expectation that the particulate flavoring composition will be a powder.
Regarding claim 9, modified Percel is silent as to that at least 50 wt.% of the calcium lactate is anhydrous calcium lactate.
Maarschal teaches a lactate powder wherein the bulk of the lactate salt and calcium lactate is in its anhydrous form ([0032]; [0067]). Maarschal offers the motivation that anhydrous calcium lactate should be used in mixtures containing hygroscopic components so as to prevent water uptake of the hygroscopic component (i.e., all, or 100% of the calcium lactate should be anhydrous calcium lactate) [0005]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have switched the calcium lactate pentahydrate of modified Percel for the anhydrous calcium lactate of Maarschal because the calcium lactate is plated with lactic acid, which is a highly hygroscopic compound. One would have been motivated to make this modification for the benefit of preventing water uptake of the lactic acid in the plated lactate particles.
Response to Arguments
Applicant’s arguments filed February 13, 2026 have been fully considered but they are not persuasive.
Applicant argues that Mori does not teach adsorption of essential oils or oleoresins dissolved in propylene glycol on any powdered particle, arguing that the propylene glycol taught by Mori functions only as a suspension medium not a solvent (Remarks, p. 5-6).
This argument is not persuasive. Mori explicitly states “extracts, essential oils, oleoresins, or synthetic flavors…dissolved in alcohol, propylene glycol, or other solvent” (col. 1 lines 16-19), thereby teaching essential oils and oleoresins dissolved in a solvent that is propylene glycol. Furthermore, Mori is only used to teach oleoresin in a propylene glycol solvent. Mori does not need to teach the entirety of the claimed invention since that is already taught by the other references and Mori is used only to teach that which is silent.
Applicant argues that the substitution of the solvent of Schnee with the solvent of Mori would fail to provide the liquid flavoring of instant claim 1 because Schnee teaches a glycerol/water solvent while Mori teaches only propylene glycol. Applicant argues that the substitution of Mori would lead to a propylene glycol/water solvent which does not read on the claims where the claims exclude water (Remarks, p. 6-7).
This argument is not persuasive. The propylene glycol of Mori is a substitute for the glycerol solvent solution of Schnee, the glycerol solvent solution of which is the glycerol/water mixture. Therefore, when substituted, the propylene glycol of Mori replaces the mixture of glycerol and water and the resulting composition does not include any water. Thereby the claims are rendered obvious.
In the absence of any further arguments with regard to the rejections of the additional dependent claims, the rejections of these dependent claims are maintained.
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 MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791