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 .
Response to Amendment
In applicant’s reply on 12/01/2025, the claims were amended. Based on these amendments,
revised rejections under 35 U.S.C. 103 can be found below, as well as rejections of new claims.
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, 12-13 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Visser (US 2018/0073044 A1) in view of Pesaro (US 2016/0100574 A1).
Regarding Claim 1, Visser teaches an additive for enhancing the shelf life of a food product (manufacturing propionate products via a fermentation process Par. 0001; for use in food preservation Par. 0003)
comprising: a powder (product is a solid particulate material Par. 0025)
of 50-90% calcium propionates (calcium propionate Par. 0002; final product with 50-90% propionate salt Par. 0047)
0-15% calcium lactates (possible to include other components in the fermentation broth before spray drying, e.g., additional carboxylic acid salts such as lactates Par. 0026; calcium propionate, succinate, acetate make up at least 85% Par. 0025; calcium lactate Par. 0017). This leaves at maximum 15% for calcium lactates, therefore a range of 0-15%. Further, as Visser teaches calcium lactate as a preferred lactate source for the fermentation, it would have been obvious to use the same lactate as a later additional lactate component.
3-20% calcium acetates (acetate salt in range of 3-20% Par. 0025). As Par. 0002 teaches calcium hydroxide added to the broth during fermentation, the acetate produced would be calcium acetate.
0-5% other calcium salts including calcium succinates (succinate salt in an amount of 0-5% Par. 0047). As Par. 0002 teaches calcium hydroxide added to the broth during fermentation, the succinate produced would be calcium succinate.
Regarding 78.6%-83.3% calcium propionates, Visser teaches 50-90% calcium propionates (Par. 0047). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 78.6%-83.3% calcium propionates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 78.6-83.3%) from the taught range of 50-90% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 9.3%-14.3% calcium lactates, Visser teaches 0-15% calcium lactates (Par. 0025). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 9.3%-14.3% calcium lactates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 9.3-14.3%) from the taught range of 0-15% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 5.5%-5.7% calcium acetates, Visser teaches 3-20% calcium acetate (Par. 0025). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 5.5%-5.7% calcium acetates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 5.5-5.7%) from the taught range of 3-20% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 1.4%-1.9% other calcium salts including calcium succinates and gluconates, Visser teaches 0-5% calcium succinates (Par. 0047). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have at most 1.9% calcium succinates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 0-1.9%) from the taught range of 0-5% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Visser does not teach a mold-inhibitory bakery additive, other calcium salts including gluconates, the calcium salts in the mold-inhibitory bakery additive are fermentation products of microbial fermentation of natural carbohydrate sources from non-edible grain flours of wheat or corn by a bacterial consortium comprising Propionibacterium theonii NCIM 2932, Propionibacterium freudenreichii NCIM 2111, and Propionibacterium shermanii NCIM 5137, which are fortified with calcium, or a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery product of 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates.
Regarding the additive is a mold-inhibitory bakery additive, Visser teaches the same product as the claimed invention. As such, one having ordinary skill in the art would recognize the same product would inherently have the same properties, including inhibiting mold in bakery items.
Though Visser does not teach gluconates, it does teach the addition of other carboxylate salts (Par. 0047), which would motivate one having ordinary skill in the art to look to the art for other known carboxylate salts to use in the invention of Visser.
Pesaro, in the same field of invention discloses an additive comprising .2% gluconates (chlorhexidine digluconate Par. 0036; .2% chlorhexidine digluconate Table LXVI). As Pesaro teaches the invention can be used for food compositions (Par. 0344) yet no examples, one having ordinary skill in the art would look to the examples for potential concentrations of gluconates. It would have been obvious to one having ordinary skill in the art to modify the invention of Visser with the component of Pesaro. One would have been motivated to make this modification to use a carboxylate salt known in the art, which has antimicrobial properties (Pesaro Par. 0036).
Regarding 1.4%-1.9% other calcium salts including calcium succinates and gluconates, modified Visser teaches .2-5.2% calcium succinates and gluconates (Visser Par. 0047; Pesaro Table LXVI). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 1.4-1.9% other calcium salts including calcium succinates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 1.4-1.9%) from the taught range of .2-5.2% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Pesaro does not teach the calcium salts in the mold-inhibitory bakery additive are fermentation products of microbial fermentation of natural carbohydrate sources from non-edible grain flours of wheat or corn by a bacterial consortium comprising Propionibacterium theonii NCIM 2932, Propionibacterium freudenreichii NCIM 2111, and Propionibacterium shermanii NCIM 5137, which are fortified with calcium, or a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery product of 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates.
Regarding the calcium salts in the mold-inhibitory bakery additive are fermentation products of microbial fermentation of natural carbohydrate sources from non-edible grain flours of wheat or corn by a bacterial consortium comprising Propionibacterium theonii NCIM 2932, Propionibacterium freudenreichii NCIM 2111, and Propionibacterium shermanii NCIM 5137, which are fortified with calcium, this is a product-by-process claim. As such, the claim is not limited to the manipulations of the recited steps, only the structure implied by the steps. Visser teaches a product which appears to be substantially identical to the invention, so the burden shifts to applicant to show a nonobvious difference (See MPEP 2113).
Regarding a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery product of 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates, modified Visser teaches the same product as the claimed invention, therefore the same product would inherently have the same properties, including enhancing the shelf-life of the bakery product at a dosage level of 0.3% to 0.5%.
Regarding Claim 2, modified Visser teaches the same product as the claimed invention, therefore the product would inherently have the same properties, including imparting antimicrobial properties, flavor, and texture when added into a bakery product.
Regarding Claim 12, modified Visser teaches the same product as the claimed invention, therefore the same product would inherently have the same properties, including enhancing the shelf-life of the bakery product up to 25-30 days at a minimal dose of 0.3% to 0.5 % by weight of dough mix or batter.
Regarding Claim 13, Visser teaches the additive is a powder (product is a solid particulate material Par. 0025).
Regarding the additive is spray dried, this is a product-by-process claim. As such, the claim is not limited to the manipulations of the recited steps, only the structure implied by the steps. Visser teaches a product which appears to be substantially identical to the invention, so the burden shifts to applicant to show a nonobvious difference (See MPEP 2113).
Regarding Claim 17, Visser teaches an additive for enhancing the shelf life of a food product (manufacturing propionate products via a fermentation process Par. 0001; for use in food preservation Par. 0003)
comprising: a powder (product is a solid particulate material Par. 0025)
of 50-90% calcium propionates (calcium propionate Par. 0002; final product with 50-90% propionate salt Par. 0047)
0-15% calcium lactates (possible to include other components in the fermentation broth before spray drying, e.g., additional carboxylic acid salts such as lactates Par. 0026; calcium propionate, succinate, acetate make up at least 85% Par. 0025). This leaves at maximum 15% for calcium lactates, therefore a range of 0-15%. Further, as the other salts comprise calcium, calcium lactate would be an obvious lactate to use.
3-20% calcium acetates (acetate salt in range of 3-20% Par. 0025). As Par. 0002 teaches calcium hydroxide added to the broth during fermentation, the acetate produced would be calcium acetate.
0-5% other calcium salts including calcium succinates (succinate salt in an amount of 0-5% Par. 0047). As Par. 0002 teaches calcium hydroxide added to the broth during fermentation, the succinate produced would be calcium succinate.
Visser does not teach a mold-inhibitory bakery additive of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates, or a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery product of 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates.
Regarding 78.6%-83.3% calcium propionates, Visser teaches 50-90% calcium propionates (Par. 0047). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 78.6%-83.3% calcium propionates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 78.6-83.3%) from the taught range of 50-90% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 9.3%-14.3% calcium lactates, Visser teaches 0-15% calcium lactates (Par. 0025). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 9.3%-14.3% calcium lactates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 9.3-14.3%) from the taught range of 0-15% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 5.5%-5.7% calcium acetates, Visser teaches 3-20% calcium acetate (Par. 0025). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 5.5%-5.7% calcium acetates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 5.5-5.7%) from the taught range of 3-20% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding 1.4%-1.9% other calcium salts including calcium succinates and gluconates, Visser teaches 0-5% calcium succinates (Par. 0047). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have at most 1.9% calcium succinates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 0-1.9%) from the taught range of 0-5% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding the additive is a mold-inhibitory bakery additive, Visser teaches the same product as the claimed invention. As such, one having ordinary skill in the art would recognize the same product would inherently have the same properties, including inhibiting mold in bakery items.
Though Visser does not teach gluconates, it does teach the addition of other carboxylate salts (Par. 0047), which would motivate one having ordinary skill in the art to look to the art for other known carboxylate salts to use in the invention of Visser.
Pesaro, in the same field of invention discloses an additive comprising .2% gluconates (chlorhexidine digluconate Par. 0036; .2% chlorhexidine digluconate Table LXVI). As Pesaro teaches the invention can be used for food compositions (Par. 0344) yet no examples, one having ordinary skill in the art would look to the examples for potential concentrations of gluconates. It would have been obvious to one having ordinary skill in the art to modify the invention of Visser with the component of Pesaro. One would have been motivated to make this modification to use a carboxylate salt known in the art, which has antimicrobial properties (Pesaro Par. 0036).
Regarding 1.4%-1.9% other calcium salts including calcium succinates and gluconates, modified Visser teaches .2-5.2% calcium succinates and gluconates (Visser Par. 0047; Pesaro Table LXVI). As Visser discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Visser to have 1.4-1.9% other calcium salts including calcium succinates. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 1.4-1.9%) from the taught range of .2-5.2% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Pesaro does not teach a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery product of 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates.
Regarding a dosage level of 0.3% to 0.5% by weight of the bakery additive is added into a bakery product, the shelf life of the bakery productof 25-30 days is achieved, compared to a bakery additive that does not comprise the levels of 78.6%-83.3% calcium propionates, 9.3%-14.3% calcium lactates, 5.5%-5.7% calcium acetates, 1.4%-1.9% other calcium salts including calcium succinates and gluconates, modified Visser teaches the same product as the claimed invention, therefore the same product would inherently have the same properties, including enhancing the shelf-life of the bakery product at a dosage level of 0.3% to 0.5%.
Regarding Claim 18, Visser further teaches a spray dried powder (spray drying Par. 0024).
Response to Arguments
The Declaration under 37 CFR 1.132 filed 12/01/2024 is insufficient to overcome the rejections of claims 1-2 and 13-12 based upon Visser and Pesaro applied under 35 USC 103 as set forth in the last Office action because:
Applicant asserts Exhibit 1 shows that the claimed invention enhances the shelf life of baked goods when compared to Visser’s invention. The sample which is intended to mimic Visser’s composition contains calcium propionate, calcium acetate, and calcium succinate. It is the office’s position that Visser’s composition contains calcium lactate, as seen above in the rejection of claim 1. Visser teaches the addition of lactates to the composition (Par. 0026) as well as teaching calcium lactate as a preferred lactate source for fermentation (Par. 0017). With this in mind, it would have been obvious to use the preferred calcium lactate as the suggested lactates added to the composition post fermentation. Therefore, for a proper comparison to Visser the sample should additionally contain calcium lactate.
Applicant asserts that Exhibit 2 shows that the mold-inhibitory effect at a calcium propionate concentration of 80% is superior to 50 and 90%. Though it does appear that the composition containing 80% calcium propionate does perform better than the compositions containing 50% or 90% calcium propionate, these examples are not sufficient to distinguish the claimed ranges from those of the prior art. To establish unexpected results, objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. Particularly the composition with 50% calcium propionate is not close enough to the lower end of the claimed range of calcium propionate to establish criticality over the entire claimed range. See MPEP 716.02(d).
Applicant's arguments filed 12/01/2025 have been fully considered but they are not persuasive.
Applicant argues the office cannot overlook that the fermentation products are not augmented with additional salts or that the salts are natural fermentation products. Due to the present invention being a product, limitations which are directed to a process are only limiting when there is structure implied by the steps. Looking at the product in its final form, these steps do not appear to distinguish the claimed invention from that taught by modified Visser. Modified Visser teaches a product which appears to be substantially identical to the invention, so the burden shifts to applicant to show a nonobvious difference in the product (See MPEP 2113).
Applicant argues the data provided in the declaration shows that the claimed invention enhances the shelf life of baked goods when compared to Visser’s invention. The sample which is intended to mimic Visser’s composition contains calcium propionate, calcium acetate, and calcium succinate. Visser’s composition additionally contains calcium lactate, so for a proper comparison to Visser the sample should additionally contain calcium lactate.
Applicant argues the data provided in the declaration shows that the mold-inhibitory effect at a calcium propionate concentration of 80% is superior to 50 and 90%. Though it does appear that the composition containing 80% calcium propionate does perform better than the compositions containing 50% or 90% calcium propionate, however these examples are not sufficient to distinguish the claimed ranges from those of the prior art. Particularly the composition with 50% calcium propionate, the calcium propionate percentage of the composition is not close enough to the lower end of the claimed range to establish criticality over the entirety of the claimed range. See MPEP 716.02(d). Considering applicant appears to be focusing on the impact of calcium propionate on the mold-inhibitory effect of the composition, the examiner would find it more persuasive to have data closer to the claimed amount of calcium propionate on the lower end rather than the complete low end of Visser’s taught range (50%), with the rest of the composition also falling within Visser’s taught amounts. See 2144.05.III.A.
Applicant’s argument regarding the Visser process discusses method steps, but does not argue a difference in the final product. It is emphasized that as explained in the rejections of claims 1 and 13, due to the present invention being a product, limitations which are directed to a process are only limiting when there is structure implied by the steps. Modified Visser teaches a product which appears to be substantially identical to the invention, so the burden shifts to applicant to show a nonobvious difference in the product (See MPEP 2113).
Applicant argues there is no teaching or suggestion in Visser for how to adjust the fermentation reaction to arrive at the ratio of calcium salts in claim 1. As seen in the above rejection of claim 1, Visser teaches ranges of calcium salts which overlap with the claimed ranges and therefore render them obvious. See MPEP 2144.05 (I). Moreover, as the present invention is a product, limitations which are directed to a process are only limiting when there is structure implied by the steps. In this case, the fermentation reaction is a process step which has not been proven to result in a difference in the product when compared to the product of Visser.
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).
Applicant argues adding calcium salts after the formation is not equivalent to in situ generation via fermentation. Regardless of whether they are a product of fermentation or added after, modified Visser teaches ranges of the same calcium salts which overlap with the claimed ranges and therefore render the ranges obvious. See MPEP 2144.05 (I).
Applicant argues Visser's lactates are not produced via fermentation. The present invention is a product, therefore limitations which are directed to a process are only limiting when there is structure implied by the steps. Modified Visser teaches a product which appears to be substantially identical to the invention, so the burden shifts to applicant to show a nonobvious difference in the product (See MPEP 2113).
Applicant argues lactates are selected from a provided list of optional additional components, which is picking and choosing using hindsight knowledge. The provided list of additional components is reasonable enough for one having ordinary skill in the art to select preferred components with reasonable expectation of success. Further, the presence of lactates in the list of potential additional components is motivation enough to try. 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).
Applicant argues Visser does not teach the amount of lactate salts to be added. Visser teaches 50-90% calcium propionates, 3-20% calcium acetates, and 0-5% calcium succinates (Par 0025, 0047). This leaves 0-15% that could be made up of other components. As Visser discloses lactate salts as a potential additional component, it would be obvious for one to choose lactate salts to make up the remaining 0-15% of the composition (Par. 0026, Par. 0025). Further, as the other salts comprise calcium, calcium lactate would be an obvious lactate to use.
Applicant argues Visser does not teach calcium lactate. Visser discloses the generic use of lactate salts (Par. 0026), as the other salts of the composition are calcium salts, it would have been obvious for one to also use calcium for the lactate salt.
Applicant argues the bacterial strains used in Visser do not produce lactates or gluconates. Examiner agrees Visser does not teach lactates or gluconates are produced by the bacterial strains disclosed. As seen in the rejection of claim 1, Visser teaches the possibility of addition of other components, such as lactates (par. 0026). The present invention is a product, therefore limitations which are directed to a process are only limiting when there is structure implied by the steps. Visser teaches the combination of calcium salts which overlaps with the claimed amounts, with the exception of gluconates, so the burden shifts to applicant to show a nonobvious difference in the product (See MPEP 2113). Visser is not relied on for gluconates.
Applicant argues the declaration shows a difference in mold inhibition between the product of Visser (calcium propionate+calcium acetate+calcium succinate) and the product of the present invention (calcium propionate+calcium lactate+calcium acetate+calcium succinate and calcium gluconates). As clarified above, despite the fact that Visser teaches the addition of lactates after fermentation, they are still a component in the final product. Visser’s composition additionally contains calcium lactate, so for a proper comparison to Visser the sample should additionally contain calcium lactate.
Applicant asserts that Exhibit 2 shows that the mold-inhibitory effect at a calcium propionate concentration of 80% is superior to 50 and 90%. Though it does appear that the composition containing 80% calcium propionate does perform better than the compositions containing 50% or 80% calcium propionate, however these examples are not sufficient to distinguish the claimed ranges from those of the prior art. Particularly the composition with 50% calcium propionate, the calcium lactate percentage of the composition is outside of the taught range, so it isn’t a useful comparison to use for the composition of Visser. Considering applicant appears to be focusing on the impact of calcium propionate on the mold-inhibitory effect of the composition, the examiner would find it more persuasive to have data closer to the claimed amount of calcium propionate on the lower end rather than the complete low end of Visser’s taught range (50%), with the rest of the composition also falling within Visser’s taught amounts. See 2144.05.III.A.
Applicant argues Pesaro teaches calcium ketogluconate rather than calcium gluconate and has provided the structural difference. What is claimed is “calcium salts including calcium succinates and gluconates”. The “s” at the end of “gluconates” opens up interpretation to salts of gluconic acid, of which calcium ketogluconate falls under that interpretation. It is made note of the pertinent prior art found below which shows art that additionally teaches the use of calcium gluconate in the field of baking.
Applicant argues Pesaro is not in the field of fermentation or bakery products. Applicant argues Pesaro is not in the field of fermentation. Pesaro is not in the field of fermentation, it describes an antimicrobial agent for food, which is in the same field of endeavor as the invention. It would have been obvious to apply a component of Pesaro’s antimicrobial agent to the product of Visser to achieve the antimicrobial properties. Applicant argues Pesaro is not used for bakery products. Pesaro teaches the invention can be used for food compositions, specifically baked goods (Par. 0344).
Applicant argues that one would also apply the glyceryl ether of Pesaro because the teachings of Pesaro require glyceryl ether to act synergistically with the gluconate. Though Pesaro teaches the mixture of the taught invention works synergistically, there is no indication that the preservative component, the gluconate in this case (Par. 0036), would be ineffective without the glyceryl ether component. One having ordinary skill in the art would still recognize the preservative nature of the gluconate and be motivated to combine it with the propionate product of Visser to enhance its preservative properties.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2011/0189348 A1 discloses calcium gluconate as a sweetness providing agent or a pH adjustor (Par. 0102-0103).
US 2016/0088869 A1 discloses calcium lactate as an additive with preservative properties used in bakery food items (Par. 0051, 0063).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 5712703475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792