DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
This Office Action was written in response to the Applicants Remarks filed 8/12/25. Claims 2, 5, 7-15, 17-37 are pending and have been examined on the merits. Claims 25-37 are new.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 17, 18, 25, 30, and 37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 11/071,304. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 17, 18, 25, 30, and 37 recite:
Claim 17 of Application 17/497,062 recites A process for preserving a meat or meat product, the process comprising: contacting said meat or meat product with a natural curing agent, wherein the curing agent comprises a plant-based nitrite and an inactivated organism, the curing agent was obtained by fermenting a composition including a plant material and the organism followed by inactivating the organism, the organism was added to the composition and was capable of converting nitrate to nitrite before its inactivation, and the plant material was pasteurized and/or sterilized before adding the organism to the composition; where
Claim 1 of U.S. Patent No. 11/071,304 recites A process for preserving a meat or meat product comprising contacting the meat or meat product to be preserved with a curing agent comprising a plant-based nitrite and an added organism, the plant-based nitrite being derived from a plant material comprising at least about 50 ppm nitrate and the organism, wherein the plant material is heat treated prior to addition of the organism so as to have a reduced microbial load relative to a naturally occurring microbial load of the plant material, the organism inactivated, wherein the organism was capable of converting nitrate to nitrite before the inactivation, and preserving the contacted meat or meat product.
The only significant difference being where U.S. Patent No. 11/071,304 recites the amount of nitrate contained within the plant based nitrite portion. Essentially claim 1 of U.S. Patent No. 11/071,304 is more narrow than claim 17 of Application 17/497,062.
6. Claim 25 of Application 17/497,062 recites A process for preserving a meat or meat product, the process comprising: contacting said meat or meat product with a natural curing agent comprising plant-based nitrite in an amount effective to preserve the meat or meat product, wherein the curing agent was obtained by: pasteurizing and/or sterilizing a plant material containing nitrate; and exposing a composition including the pasteurized and/or sterilized plant material to an organism capable of converting nitrate to nitrite, and allowing the organism to interact with the nitrate in the plant material to reduce the plant-based nitrate to the plant-based nitrite, wherein the plant material was pasteurized and/or sterilized before exposing the plant material to the organism;
Claim 25 does not recite an inactivation step. However, later in dependent claim 30, a sterilization step is recited.
Claim 30 recites wherein the composition is subjected to filter sterilization after the allowing the organism to interact with nitrate in the plant material to reduce the plant-based nitrate to the plant-based nitrite.
Claim 1 of U.S. Patent No. 11/071,304 recites A process for preserving a meat or meat product comprising contacting the meat or meat product to be preserved with a curing agent comprising a plant-based nitrite and an added organism, the plant-based nitrite being derived from a plant material comprising at least about 50 ppm nitrate and the organism, wherein the plant material is heat treated prior to addition of the organism so as to have a reduced microbial load relative to a naturally occurring microbial load of the plant material, the organism inactivated, wherein the organism was capable of converting nitrate to nitrite before the inactivation, and preserving the contacted meat or meat product.
The only significant difference being where U.S. Patent No. 11/071,304 recites the amount of nitrate contained within the plant based nitrite portion. Essentially claim 1 U.S. Patent No. 11/071,304 is more narrow than claims 25 and 30 of Application 17/497,062.
Claim 18 of Application 17/497,062 recites A cured meat or meat product, said meat or meat product obtained by the process of claim 17.
Claim 37 of Application 17/497,062 recites A cured meat or meat product, said meat or meat product obtained by the process of claim 25.
Claim 5 of U.S. Patent No. 11/071,304 recites A cured meat or meat product, the meat or meat product having been treated with a curing agent comprising plant-based nitrite and an added organism, the plant-based nitrite being derived from a plant material comprising at least about 50 ppm nitrate and the organism, wherein the plant material is heat treated prior to addition of the organism so as to have a reduced microbial load relative to a naturally occurring microbial load of the plant material, the organism inactivated, wherein the organism was capable of converting nitrate to nitrite before the inactivation.
The only significant difference being where claim 5 of U.S. Patent No. 11/071,304 recites the amount of nitrate contained within the plant based nitrite portion. Essentially claim 5 U.S. Patent No. 11/071,304 is more narrow than claims 18 and 37 of Application 17/497,062.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 18, 35, and 37 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 18 and 37, the claims are to a cured meat or meat product. However in the body of the claim, it recites that the meat or meat product is obtained by the process of claim 17. If the claims are to a cured meat and claim 17 is drawn to a process of curing or preserving meat, then why is the claims to “said meat or meat product obtained by”. The claim construction is confusing. The claims are not to a method of making meat or a meat product. The claims are to a method of preserving meat or a meat product. The body of the claim should recite that the subject meat is a cured meat or meat product obtained by the process. The current claim construction implies that the claims involve the production of meat rather than the preservation of such. Appropriated correction is required.
Regarding claim 35, it is unclear as to what the “effective amount” in claim 35 is directed. Is Applicant referring to the plant material, a composition containing plant material and microorganism? The nitrate content? The nitrite content? When reading the claim, “effective amount’ is lacking in an object. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claims 18-20 and 37 are rejected under pre-AIA 35 U.S.C. 102(a)(1) as being anticipated by Pöhnl (WO 2005/013703) Machine Translation.
Regarding Claims 18-20: Pöhnl discloses meat cured by using a curing agent [pg. 1; pg. 13; claims 8,10-12]. Pöhnl discloses whole or emulsified meat in the form of ham or sausage [pg. 5].
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claims 18-20 have been considered regarding its disclosure of a cured meat or cured meat product
“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 art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Regarding Claim 37: Pöhnl discloses meat cured by using the curing agent [pg. 1; pg. 13; claims 8,10-12]].
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 37 has been considered regarding its disclosure of a cured meat or cured meat product
“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 art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Claim Rejections - 35 USC § 103
5. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
6. Claims 17, 2, 7, 8, 9, 10, 11, 12, 14, 15, 18, 19, 20, 21, and 22 are rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation).
Regarding Claims 17, 2, 10, 12, 14, 15: Fast discloses the presence of nitrates in vegetables [pg. 2, lines 9 and 10]. Fast discloses that the nitrates are present in vegetables at 1000 ppm or more and discloses lettuce as having elevated nitrate levels [pg. 2, lines 9 and 10]. Fast discloses the conversion of nitrates into nitrites by using suitable starter cultures including S. carnosus and lactic acid bacteria as nitrate reducing bacteria and discloses prior art disclosing the use of the bacteria to reduce nitrates in carrot juice [pg. 2, lines 16, 23-25]. Fast discloses that the plant material can be carrots and also discloses lettuce [pg. 2, lines 9 and 10]. Fast also discloses using the nitrite produced for use in developing the red color of cured meat and therefore discloses the application of the nitrites in meat [pg. 2, lines 1-27]. Fast discloses using microorganisms for nitrate and nitrite reduction in vegetables in general [pg. 2, lines 30-33].
Further, Fast in an example, discloses washing and blanching (heat treating) carrots for the preparation of carrot juice for inoculation with S. carnosus in order to reduce the nitrate content in the carrot juice [pg. 13, lines 50-54]. Although Fast discloses including a nitrite reducing bacteria along with the nitrate reducing bacteria S. carnosus in this experiment, it would have been obvious that when treating a vegetable material to produce nitrite, to wash and to heat treat the vegetable material in order to prepare it for subsequent inoculation.
Fast discloses nitrites used to produce color in meat but does not explicitly disclose contacting meat or meat products with the curing agent.
Fast does not disclose inactivating the organism.
Pöhnl discloses a method of curing food with a natural pickling substance [abstract; claim 8]. Pöhnl discloses foods cured with a combination of nitrate reducing microorganisms and plant material containing nitrate [pg. 4, pg. 6]. Pöhnl discloses mixing the microorganisms and plant material and then applying to meat products [pg. 6, pg. 8]. Pöhnl discloses adding a curing agent to a meat [claims 8,10-12].
Yamamoto discloses a method of modifying a vegetable material [0001]. Yamamoto discloses beets, celery, cabbage, cucumber, lettuce, onion, radish, and spinach [0010-0011]. Yamamoto discloses that the vegetable material is first sterilized in order to disinfect the vegetable material [0019; 0020]. Yamamoto discloses that the vegetable material is inoculated with a microorganism and is then fermented [0021]. Yamamoto discloses inactivating the microorganism after a desired level of fermentation is achieved by sterilizing a fermented vegetable material [0007; 0008; 0027].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to include nitrate reducing microorganisms as in Pöhnl in order to further control the level of nitrate converted to nitrite as the conversion would not have been limited to the naturally occurring nitrate reductase present in the vegetable product.
Further, it would have been obvious to one of ordinary skill in the art to modify the method of Fast to inactivate the microorganisms at the end of the fermentation of the plant material as in Yamamoto in order to stop the fermentation of the plant material.
Regarding Claim 7: Fast as modified discloses as discussed above in claim 17. Fast as modified discloses that the nitrite is derived from the conversion of nitrate to nitrite by contacting the vegetable material with a microorganism as discussed above in claim 17. Therefore Fast renders obvious the composition being free of non-natural nitrate and nitrite.
Regarding Claim 8: Fast as modified discloses as discussed above in claim 17.
Although Fast does not disclose that the fermentation comprises converting to a predetermined amount of plant based nitrate to nitrite, Fast does discloses starting amounts of nitrate in plant material and that the nitrate is converted to nitrite by fermentation with nitrate reducing bacteria.
At the time of the invention it would have been obvious to one of ordinary skill in the art to determine the level of conversion required to achieve the desired nitrite content especially where the starting nitrate level was known.
Regarding Claim 9: Fast as modified discloses as discussed above in claim 17. Fast in an example, discloses washing and blanching (heat treating) carrots for the preparation of carrot juice for inoculation with S. carnosus in order to reduce the nitrate content in the carrot juice [pg. 13, lines 50-54].
Fast as modified does not explicitly disclose sterilizing the plant material before adding a microorganism.
Yamamoto discloses a method of modifying a vegetable material [0001]. Yamamoto discloses beets, celery, cabbage, cucumber, lettuce, onion, radish, and spinach [0010-0011]. Yamamoto discloses that the vegetable material is first sterilized in order to disinfect the vegetable material [0019; 0020]. Yamamoto discloses that the vegetable material is inoculated with a microorganism and is then fermented [0021]. Yamamoto discloses inactivating the microorganism after a desired level of fermentation is achieved by sterilizing the fermented vegetable material [0007; 0027]. Yamamoto is directed to the sterilization of the vegetable material before inoculating and is directed to controlling the microorganisms which take part in the fermentation of the vegetable material [0006; 0021].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to sterilize the plant material as in Yamamoto before contacting it with the desired microorganism in order to clean and prepare it for inoculation.
Regarding Claim 11: Fast as modified discloses as discussed above in claim 8. Yamamoto discloses inactivating the microorganism after a desired level of fermentation is achieved by sterilizing the fermented vegetable material [0007; 0027].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to inactivate the microorganisms at the end of the fermentation of the plant material as in Yamamoto in order to stop the fermentation of and the activity of the microorganisms in the plant material.
Regarding Claim 18: Fast as modified discloses as discussed above in claim 17.
Pöhnl discloses meat cured by using a curing agent [pg. 13].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that a cured meat would have been made by the process of claim 17.
Regarding Claims 19 and 20: Fast as modified discloses as discussed above in claim 18. Pöhnl discloses the meat as sausage (emulsified meat) or ham (whole meat) [pg. 7].
Regarding Claim 21: Fast as modified discloses as discussed above in claim 9. Fast as modified by Yamamoto discloses sterilizing vegetables before adding a microorganism. Although Fast does not disclose heat treatment at 121°C, it would have been obvious that the heat treatment was at that temperature since it is known in the art the sterilization is performed at temperatures of 121°C and above.
Regarding Claim 22: Fast discloses as discussed above in claim 17.
Fast does not disclose further comprising a member selected from the group consisting of yeast extract, protein hydrolyzates, amino acids, vitamins, minerals, carbohydrates, salts, acids, bases, and combinations thereof.
Pöhnl discloses including yeasts and salt [pg. 5].
At the time of the invention it would have been obvious to modify the composition of modified Fast to include salt or yeast as on Pohl in order aid in activation of the microorganisms and for flavor in the final product.
7. Claim 5 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), and Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) as applied to claim 17 above and in further view of Hsu et al. (US 4,490,396).
Regarding Claim 5: Fast as modified discloses as discussed above in claim 17. Fast does not disclose that the plant material further comprises sodium chloride in an amount of about 6 wt.% or less.
Hsu discloses fermenting vegetable materials in the presence of 1 to 4.5% sodium chloride [abstract; col. 1, lines 41-57].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the vegetable material of Fast to include sodium chloride at amounts of 1 to 4.5% as in Hsu in order to provide flavor enhancing properties to the curing agent of Fast since it is known in the art that salt adds or enhances the flavor of foods.
8. Claims 3 and 13 are rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) as applied to claims 12 and 17 above and in further view of Ronald Walker Journal of the Science of Food Agriculture 1975 vol. 26 pages 1735-1742.
Regarding Claims 3 and 13: Fast as modified discloses as discussed above in claims 12 and 17. Fast does not disclose celery.
Walker discloses radishes and beets as having mean nitrate concentrations of 1000 -2000 ppm and celery, cabbage, lettuce, and spinach having mean nitrate concentrations of over 1000 ppm; and carrots having 300 ppm nitrate on average and also discloses a range of 286-600 ppm [pg. 1735 and 1736; 1737].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to include celery as a starting plant material given that the starting nitrate levels are similar for lettuce, radishes, and carrots as disclosed in Fast and as disclosed by Walker it would have been obvious that the nitrite produced in Fast would have been at least in the range of at least 100 ppm as recited in the instant claim since Walker discloses that the vegetables have similar starting nitrate levels.
9. Claim 23 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) Machine Translation as applied claim 17 as discussed above and in further view of Janda et al. (US 5,731,018).
Regarding Claim 23: Fast as modified discloses juice as discussed above in claim 17. Fast does not disclose that the plant material is celery juice concentrate.
Janda discloses that plant material is a juice concentrate and discloses celery juice concentrate [col. 2, lines 53-59].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the form of the juice in Fast for the concentrated juice in Janda in order to increase the level of flavor of the agent.
10. Claim 24 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) as applied to claim 17 above and in further view of Buhler et al. (US 5,192,565).
Regarding Claim 24: Fast discloses as discussed above in claim 17.
Fast discloses blanching carrots but does not disclose pasteurizing the plant material.
Buhler discloses treatment of vegetables under pasteurization conditions before fermentation [abstract; col. 2, lines 33-60; col. 4, lines 56-60].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the blanching step of Fast for the pasteurizing step of Buhler in order to reduce the microbial load of the plant material since blanching and pasteurizing are both method of applying enough heat to plant materials to reduce or kill microorganisms.
11. Claims 25, 26, 32, 35, and 37 are rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186).
Regarding Claims 25, 26, 32, 35: Fast discloses the presence of nitrates in vegetables [pg. 2, lines 9 and 10]. Fast discloses that the nitrates are present in vegetables at 1000 ppm or more and discloses lettuce as having elevated nitrate levels [pg. 2, lines 9 and 10]. Fast discloses the conversion of nitrates into nitrites by using suitable starter cultures including S. carnosus and lactic acid bacteria as nitrate reducing bacteria and discloses prior art disclosing the use of the bacteria to reduce nitrates in carrot juice [pg. 2, lines 16, 23-25]. Fast discloses that the plant material can be carrots and also discloses lettuce [pg. 2, lines 9 and 10]. Fast also discloses using the nitrite produced for use in developing the red color of cured meat and therefore discloses the application of the nitrites in meat [pg. 2, lines 1-27]. Fast discloses using microorganisms for nitrate and nitrite reduction in vegetables in general [pg. 2, lines 30-33].
Further, Fast in an example, discloses washing and blanching (heat treating) carrots for the preparation of carrot juice for inoculation with S. carnosus in order to reduce the nitrate content in the carrot juice [pg. 13, lines 50-54]. Although Fast discloses including a nitrite reducing bacteria along with the nitrate reducing bacteria S. carnosus in this experiment, it would have been obvious that when treating a vegetable material to produce nitrite, to wash and to heat treat the vegetable material in order to prepare it for subsequent inoculation.
Fast does not disclose contacting meat or meat products with the natural curing agent.
Fast does not disclose wherein the effective amount is 50 ppm to 200 ppm (claim 35).
Pöhnl discloses a method of curing food with a natural pickling substance [abstract; claim 8]. Pöhnl discloses foods cured with a combination of nitrate reducing microorganisms and plant material containing nitrate [pg. 4, pg. 6]. Pöhnl discloses mixing the microorganisms and plant material and then applying to meat products [pg. 6, pg. 8]. Pöhnl discloses adding a curing agent to a meat [claims 8,10-12].
Holdren discloses a curing agent containing sodium nitrite, for meat, and that 156 ppm is an amount that is adequate to cure meat [abstract; col. 14, lines 8-21; col. 15 ,lines 26-34].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to include nitrate reducing microorganisms as in Pöhnl in order to further control the level of nitrate converted to nitrite as the conversion would not have been limited to the naturally occurring nitrate reductase present in the vegetable product and to apply the nitrite agent to meat in order to provide cured.
At the time of the invention it would have been obvious to one of ordinary skill in the a rt to modify the method of Fast to include the sodium nitrite curing agent in a meat at 156 ppm as in Holdren as Holdren discloses this amount as adequate to cure meat.
Regarding Claim 37: Fast as modified discloses as discussed above in claim 25.
Pöhnl discloses meat cured by using a curing agent [pg. 13].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that a cured meat would have been made by the process of claim 25.
12. Claim 27 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) as applied to claim 25 above and in further view of Ronald Walker Journal of the Science of Food Agriculture 1975 vol. 26 pages 1735-1742.
Regarding Claim 27: Fast as modified discloses as discussed above in claim 25. Fast does not disclose celery.
Walker discloses radishes and beets as having mean nitrate concentrations of 1000 -2000 ppm and celery, cabbage, lettuce, and spinach having mean nitrate concentrations of over 1000 ppm; and carrots having 300 ppm nitrate on average and also discloses a range of 286-600 ppm [pg. 1735 and 1736; 1737].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to include celery as a starting plant material given that the starting nitrate levels are similar for lettuce, radishes, and carrots as disclosed in Fast and as disclosed by Walker it would have been obvious that the nitrite produced in Fast would have been at least in the range of at least 100 ppm as recited in the instant claim since Walker discloses that the vegetables have similar starting nitrate levels.
13. Claims 28 and 33 are rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) and Holdren et al. (US 5,736,186) Machine Translation as applied to claim 25 above and in further view of Hsu et al. (US 4,490,396).
Regarding Claim 28: Fast as modified discloses as discussed above in claim 25. Fast does not disclose wherein sodium chloride was added to the composition before exposing the composition to the organism, the amount of sodium chloride being 6 wt.% or less.
Hsu discloses fermenting vegetable materials in the presence of 1 to 4.5% sodium chloride [abstract; col. 1, lines 41-57]. Hsu discloses including yeast extract [col. 2, lines 3-10]. Hsu discloses combining salt, and hydrolyzing protein with vegetable juice, mixing and then fermenting [col. 2, lines 13-28; Ex. 1].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the vegetable material of Fast to include sodium chloride at amounts of 1 to 4.5% and to add before fermenting as in Hsu in order to provide flavor enhancing properties to the curing agent of Fast since it is known in the art that salt adds to or enhances the flavor of foods.
Further regarding the processing steps, any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Regarding Claim 33: Fast discloses as discussed above in claim 25.
Fast does not disclose further comprising a yeast extract added before exposing the composition to the organism.
Hsu discloses fermenting vegetable materials in the presence of hydrolyzed proteins including yeast extract [col. 2, lines 3-10]. Hsu discloses combining salt, and hydrolyzing protein with vegetable juice, mixing and then fermenting [col. 2, lines 13-28; Ex. 1].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the vegetable material of Fast to include yeast extract and to add before fermenting as in Hsu in order to provide flavor maintenance during processing and in the final product.
Further regarding the processing steps, any order of mixing ingredients is prima facie obvious. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
14. Claim 29 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) as applied to claim 25 above and in further view of Yamamoto et al. (JP 2001352935 Machine Translation).
Regarding Claim 29: Fast as modified discloses as discussed above in claim 25. Fast in an example, discloses washing and blanching (heat treating) carrots for the preparation of carrot juice for inoculation with S. carnosus in order to reduce the nitrate content in the carrot juice [pg. 13, lines 50-54].
Fast as modified does not explicitly disclose sterilizing the plant material before adding a microorganism.
Yamamoto discloses a method of modifying a vegetable material [0001]. Yamamoto discloses beets, celery, cabbage, cucumber, lettuce, onion, radish, and spinach [0010-0011]. Yamamoto discloses that the vegetable material is first sterilized in order to disinfect the vegetable material [0019; 0020]. Yamamoto discloses that the vegetable material is inoculated with a microorganism and is then fermented [0021]. Yamamoto discloses inactivating the microorganism after a desired level of fermentation is achieved by sterilizing the fermented vegetable material [0007; 0027]. Yamamoto is directed to the sterilization of the vegetable material before inoculating and is directed to controlling the microorganisms which take part in the fermentation of the vegetable material [0006; 0021].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fast to sterilize the plant material as in Yamamoto before contacting it with the desired microorganism in order to clean and prepare it for inoculation.
15. Claim 30 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) as applied to claim 25 above and in further view of Kim (US 6,217,925).
Regarding Claim 30: Fast discloses as discussed above in claim 25. Fast does not disclose wherein the composition is subjected to filter sterilization after the allowing the organism to interact with nitrate in the plant material to reduce the plant-based nitrate to the plant-based nitrite.
Kim discloses filter sterilizing cabbage extract or celery extract that has been contacted with nitrate reducing bacteria [col. 3, lines 51-60; col. 5, lines 53-56; col. 8 lines 1-4]. Kim discloses adding the vegetable extracts to beef or other meats [col. 3, lines 58-65].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art having the teachings of Fast and Kim before him or her to filter sterilize the plant material after the formation of nitrite as in Kim in order to stop the further conversion of nitrate to nitrite and to further remove any contaminating microorganisms.
16. Claim 31 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) as applied to claim 25 above and in further view of Grant et al. 9US 5,002,778)
Regarding Claim 31: Fast discloses as discussed above in claim 25. Fast does not disclose wherein the composition is subjected to centrifugation after the allowing the organism to interact with nitrate in the plant material to reduce the plant-based nitrate to the plant-based nitrite.
Grant discloses a method of incubating vegetable matter with a brine and discloses the presence of microorganisms [abstract]. Grant discloses that following fermentation, removal of the microorganisms from the brine/liquid is performed by centrifuging or filtering [claims 1-4].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art having the teachings of Fast and Grant before him or her to remove the microorganism from the vegetable matter by centrifugation as in Grant in order to separate out of the microorganisms and further purify the remaining liquid for use as curing agent.
17. Claim 33 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) as applied to claim 25 above and in further view of Alden et al. (US 5,639,495).
Regarding Claim 33: Fast discloses as discussed above in claim 25.
Fast does not disclose further comprising a yeast extract added before exposing the composition to the organism.
Pöhnl discloses including yeasts and salt [pg. 5].
Alden discloses adding yeast extract as an additional protein component in the production of sausage [abstract]. Alden discloses the additional protein as providing desirable flavor or lacking flavor detractors and that is provides more uniform shrinkage during heat treatment [col. 2, lines 38-58; col. 3, lines 21-33]. Alden discloses that the protein can be added during any stage of sausage preparation although it is typically mixed in with the curing agents [col. 3, lines 20-25].
At the time of the invention it would have been obvious to modify the composition of modified Fast to include yeast extract as in Alden in order to aid in flavor maintenance and structure.
Further it would have been obvious to mix the yeast extract before the curing agent (organism of Fast) is added to the meat since Alden allows for the yeast extract/additional proteins to be added at any processing step.
Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
18. Claim 34 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) as applied claim 25 as discussed above and in further view of Janda et al. (US 5,731,018).
Regarding Claim 34: Fast as modified discloses juice as discussed above in claim 25. Fast does not disclose that the plant material is celery juice concentrate.
Janda discloses that plant material is a juice concentrate and discloses celery juice concentrate [col. 2, lines 53-59].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the form of the juice in Fast for the concentrated juice in Janda in order to increase the level of flavor of the agent.
19. Claim 36 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) as applied to claim 35 above and “Notice of Reasons for Refusal" disclosing a summary of JP-A-S48-082054 pg. 2-4.
Regarding Claim 36: Fast discloses as discussed above in claim 35. Fast does not disclose wherein the curing agent comprises at least 1020 ppm of the plant-based nitrite.
“Notice for Reasons of Refusal" discloses that JP-A- S48-082054 describes a plant material including radishes in which the nitrate content of the plant is converted to nitrite and discloses that the nitrite content is at least 100 ppm [pg. 2]. “Notice for Reasons of Refusal" discloses that the nitrite produced is used as an agent in meat processing [pg. 2].
At the time of the invention it would have been obvious to ferment the vegetable material in Fast in order to reduce the level of nitrate in the plant material in Fast to nitrite at levels of at least 100 ppm as in "Notice of Reasons for Refusal" since as discussed in "Notice of Reasons for Refusal" at this amount, the fermented vegetable material is utilizable as a curing agent. Further, Fast discloses that the microorganisms which convert the nitrate in the plant material into nitrite work by action of nitrate reductase [abstract]. “Notice for Reasons of Refusal” discloses that JP-A-S48-082054 describes plant material that contains nitrate that is contacted with nitrate reductase which converts the nitrate to nitrite and then using the nitrite agent produced for meat processing. “Notice for Reasons of Refusal" discloses that JP-A-S48-082054 describes that a nitrite agent can be added to meat after it processed from a nitrate containing plant material that has been treated with nitrate reductase, it would have been obvious to one of ordinary skill in the art to add the nitrate reduced plant material to meat that it can therefore be used as a curing agent.
Although Notice of Reasons does not explicitly disclose at least 1020 ppm one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Notice of Reasons overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
20. Claims 17, 2, 3, 7, 8, 9, 10, 12, 13, 14, 15, 18, 21, 22, 25, 26, 27, 29, 30, 32 and 37 are rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation.
Regarding Claims 17, 2, 3, 7, 9, 10, 12, 13: Kim discloses a method of making a composition containing a nitrate rich plant material and contacting the plant material with bacteria that are capable of reducing the nitrate to nitrite and actively converting nitrate to nitrite to form a plant extract [claim 1 and 2]. Kim discloses the composition as able to slow bacterial growth in food by adding the treated plant extract to food [col. 3, lines 51-65]. Kim discloses that it is known in the art that vegetables such as cabbage, beets, celery, radishes, and lettuce have a high nitrate content [col. 1, lines 26-40].
Kim discloses filter sterilizing cabbage extract or celery extract before contacting with a nitrate reductase producing bacteria [col. 3, lines 10-20]. Kim discloses that the concentration of nitrite was higher than 20ug/ml (20 ppm) after incubation of the plant material with the bacteria [col. 5, lines 33-40, 58-61; col. 6, lines 61-67]. Kim discloses pasteurizing or filter or heat sterilizing the media/Chinese cabbage and celery extracts and storing [col. 3, lines 22-24; 60-65]. Kim discloses adding the treated plant material to a meat product [col. 3, lines 60-65].
Kim acknowledges sodium nitrate and nitrite as compositions which are added to meat products to preserve the meat and to prevent the growth of bacteria and that they are also responsible for the red color of cured meat [col. 1, lines 26-31]. Kim expressly discloses that it’s invention provides for a method of slowing or preventing bacterial growth in foods by adding plant extracts [col. 2, lines 35-45]. Kim also expressly discloses the need for a more natural source of meat preservatives [col. 2, lines 20-34].
Kim does not explicitly disclose the composition as a curing agent.
Pöhnl discloses a method of curing food with a natural pickling substance [abstract; claim 8]. Pöhnl discloses foods cured with a combination of nitrate reducing microorganisms and plant material containing nitrate [pg. 4, pg. 6]. Pöhnl discloses mixing the microorganisms and plant material and then applying to meat products [pg. 6, pg. 8]. Pöhnl discloses adding a curing agent to a meat [claims 8,10-12]. Pöhnl discloses mixing the microorganisms and plant material (to form a pickling substance), followed by fermenting the mixture such that a curing agent is formed and then applying it to meat products [pg. 6, pg. 8; claim 1 part e. and f.; claim 3; 7-12]. Pöhnl also does specifically disclose S. carnosus and M. varians as a bacteria capable of converting nitrate to nitrite in plant material [pg. 4]. Pöhnl discloses that its process of curing meat can be performed in any order [pg. 13; Claims 1-15].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to include adding the treated plant extract to meat for the purpose of using it as a curing agent as in Pöhnl and preserving the meat or meat product since Kim acknowledges the preservation of meat products and the with nitrite and the need for natural preservatives. Further, since Pöhnl discloses that its method can occur in any order it would have been obvious to preparing the plant material incubated with nitrate reducing microorganism and then combining with meat.
Regarding Claim 8: Kim as modified discloses as discussed above in claim 17.
Although Kim does not disclose that the fermentation comprises converting to a predetermined amount of plant based nitrate to nitrite, Kim and Pöhnl do disclose starting and target amounts of nitrate and nitrite in plant material and that the nitrate is converted to nitrite by fermentation with nitrate reducing bacteria.
At the time of the invention it would have been obvious to one of ordinary skill in the art to determine the level of conversion required to achieve the desired nitrite content especially where the starting nitrate level was known.
Regarding Claims 14 and 15: Kim as modified discloses as discussed above in claim 17. Kim discloses that nitrate reductase can be derived from E. coli [col. 2, lines 15-20]. Kim does not disclose wherein the organism is wherein the organism is selected from the group consisting of the Micrococcaceae family, the Micrococcus genus, the Staphylococcus genus, gram positive cocci, Enterococcus, Lactococcus, Leuconostoc, Pediococcus, Streptococcus, lactic acid bacteria, and combinations thereof (claim 14); wherein the organism is M. varians, S. carnosus, or a combination thereof (claim 15).
Pöhnl discloses Staphylococcus xylosus, Staphylococcus carnosus Staphylococcus equorum, Kocuria varians (Micrococcus varians) used as the microorganism that converts nitrate to nitrite [claim 3].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to include the Staphylococcus carnosus, Staphylococcus equorum, or Kocuria varians (Micrococcus varians) as the nitrate reducing bacteria as in Pöhnl since Pöhnl similarly discloses using a bacteria to convert nitrate to nitrite and it would have been desirable to utilize bacteria that achieve the most desirable nitrite levels.
Regarding Claim 18: Kim as modified discloses as discussed above in claim 17.
Pöhnl discloses meat cured by using a curing agent [pg. 13].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that a cured meat would have been made by the process of claim 17.
Regarding Claim 21: Kim as modified discloses as discussed above in claim 9. Kim as modified discloses sterilizing vegetables before adding a microorganism. Although Kim does not disclose heat treatment at 121°C, it would have been obvious that the heat treatment was at that temperature since it is known in the art the sterilization is performed at temperatures of 121°C and above.
Regarding Claim 22: Kim discloses as discussed above in claim 17.
Kim does not disclose further comprising a member selected from the group consisting of yeast extract, protein hydrolyzates, amino acids, vitamins, minerals, carbohydrates, salts, acids, bases, and combinations thereof.
Pöhnl discloses including yeasts and salt [pg. 5].
At the time of the invention it would have been obvious to modify the composition of modified Kim to include salt or yeast as on Pohl in order aid in activation of the microorganisms and for flavor in the final product.
Regarding Claims 25, 26, 27, 29, and 30: Kim discloses a method of making a composition containing a nitrate rich plant material and contacting the plant material with bacteria that are capable of reducing the nitrate to nitrite and actively converting nitrate to nitrite to form a plant extract [claim 1 and 2]. Kim discloses the composition as able to slow bacterial growth in food by adding the treated plant extract to food [col. 3, lines 51-65]. Kim discloses that it is known in the art that vegetables such as cabbage, beets, celery, radishes, and lettuce have a high nitrate content [col. 1, lines 26-40].
Kim discloses filter sterilizing cabbage extract or celery extract before contacting with a nitrate reductase producing bacteria [col. 3, lines 10-20]. Kim discloses that the concentration of nitrite was higher than 20ug/ml (20 ppm) after incubation of the plant material with the bacteria [col. 5, lines 33-40, 58-61; col. 6, lines 61-67]. Kim discloses pasteurizing or heat sterilizing the media/Chinese cabbage and celery extracts and storing [col. 3, lines 22-24; 60-65]. Kim discloses adding the treated plant material to a meat product [col. 3, lines 60-65].
Kim acknowledges sodium nitrate and nitrite as compositions which are added to meat products to preserve the meat and to prevent the growth of bacteria and that they are also responsible for the red color of cured meat [col. 1, lines 26-31]. Kim expressly discloses that it’s invention provides for a method of slowing or preventing bacterial growth in foods by adding plant extracts [col. 2, lines 35-45]. Kim also expressly discloses the need for a more natural source of meat preservatives [col. 2, lines 20-34].
Kim does not explicitly disclose the composition as a curing agent.
Pöhnl discloses a method of curing food with a natural pickling substance [abstract; claim 8]. Pöhnl discloses foods cured with a combination of nitrate reducing microorganisms and plant material containing nitrate [pg. 4, pg. 6]. Pöhnl discloses mixing the microorganisms and plant material and then applying to meat products [pg. 6, pg. 8]. Pöhnl discloses adding a curing agent to a meat [claims 8,10-12]. Pöhnl discloses mixing the microorganisms and plant material (to form a pickling substance), followed by fermenting the mixture such that a curing agent is formed and then applying it to meat products [pg. 6, pg. 8; claim 1 part e. and f.; claim 3; 7-12]. Pöhnl also does specifically disclose S. carnosus and M. varians as a bacteria capable of converting nitrate to nitrite in plant material [pg. 4]. Pöhnl discloses that its process of curing meat can be performed in any order [pg. 13; Claims 1-15].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to include adding the treated plant extract to meat for the purpose of using it as a curing agent as in Pöhnl and preserving the meat or meat product since Kim acknowledges the preservation of meat products and the with nitrite and the need for natural preservatives. Further, since Pöhnl discloses that its method can occur in any order it would have been obvious to preparing the plant material incubated with nitrate reducing microorganism and then combining with meat.
Regarding Claim 32: Kim as modified discloses as discussed above in claim 25. Kim discloses that nitrate reductase can be derived from E. coli [col. 2, lines 15-20]. Kim does not disclose wherein the organism is wherein the organism is selected from the group consisting of the Micrococcaceae family, the Micrococcus genus, the Staphylococcus genus, gram positive cocci, Enterococcus, Lactococcus, Leuconostoc, Pediococcus, Streptococcus, lactic acid bacteria, and combinations thereof.
Pöhnl discloses Staphylococcus xylosus, Staphylococcus carnosus Staphylococcus equorum, Kocuria varians (Micrococcus varians) used as the microorganism that converts nitrate to nitrite [claim 3].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to include the Staphylococcus carnosus, Staphylococcus equorum, or Kocuria varians (Micrococcus varians) as the nitrate reducing bacteria as in Pöhnl since Pöhnl similarly discloses using a bacteria to convert nitrate to nitrite and it would have been desirable to utilize bacteria that achieve the most desirable nitrite levels.
Regarding Claim 37: Kim as modified discloses as discussed above in claim 25.
Pöhnl discloses meat cured by using a curing agent [pg. 13].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that a cured meat would have been made by the process of claim 17.
20. Claim 5 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation.) as applied to claim 17 above and in further view of Hsu et al. (US 4,490,396).
Regarding Claim 5: Kim as modified discloses as discussed above in claim 17. Kim does not disclose that the plant material further comprises sodium chloride in an amount of about 6 wt.% or less.
Hsu discloses fermenting vegetable materials in the presence of 1 to 4.5% sodium chloride [abstract; col. 1, lines 41-57].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the vegetable material of Kim to include sodium chloride at amounts of 1 to 4.5% as in Hsu in order to provide flavor enhancing properties to the curing agent of modified Kim since it is known in the art that salt adds or enhances the flavor of foods.
21. Claim 11 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) as applied to claims 17 and 8 above and in further view of Yamamoto et al. (JP 2001352935 Machine Translation).
Regarding Claim 11: Kim as modified discloses as discussed above in claim 8. Kim discloses inactivating the plant extract after fermenting/reacting as discussed above.
Kim does not disclose not explicitly disclose inactivating the organism after the predetermined amount of nitrite is produced.
Yamamoto discloses inactivating the microorganism after a desired level of fermentation is achieved by sterilizing the fermented vegetable material [0007; 0027].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to inactivate the microorganisms at the end of the fermentation of the plant material as in Yamamoto in order to stop the fermentation of and the activity of the microorganisms in the plant material.
22. Claims 23 and 34 are rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) as applied claim 17 as discussed above and in further view of Janda et al. (US 5,731,018).
Regarding Claim 23: Kim as modified discloses celery extract as discussed above in claim 17. Kim does not disclose that the plant material is celery juice concentrate.
Janda discloses that plant material is a juice concentrate and discloses celery juice concentrate [col. 2, lines 53-59].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the form of the juice in Kim for the concentrated juice in Janda in order to increase the level of flavor of the agent.
Regarding Claim 34: Kim as modified discloses juice as discussed above in claim 25. Kim does not disclose that the plant material is celery juice concentrate.
Janda discloses that plant material is a juice concentrate and discloses celery juice concentrate [col. 2, lines 53-59].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the form of the juice in Kim for the concentrated juice in Janda in order to increase the level of flavor of the agent.
23. Claim 24 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) as applied to claim 17 above and in further view of Buhler et al. (US 5,192,565).
Regarding Claim 24: Kim discloses as discussed above in claim 17.
Kim discloses sterilizing the plant but does not disclose pasteurizing the plant material.
Buhler discloses treatment of vegetables under pasteurization conditions before fermentation [abstract; col. 2, lines 33-60; col. 4, lines 56-60].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the blanching step of Kim for the pasteurizing step of Buhler in order to reduce the microbial load of the plant material since sterilizing and pasteurizing are both method of applying enough heat to plant materials to reduce or kill microorganisms.
24. Claim 31 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation as applied to claim 25 above and in further view of Grant et al. 9US 5,002,778)
Regarding Claim 24: Kim discloses as discussed above in claim 25. Kim does not disclose wherein the composition is subjected to centrifugation after the allowing the organism to interact with nitrate in the plant material to reduce the plant-based nitrate to the plant-based nitrite.
Grant discloses a method of incubating vegetable matter with a brine and discloses the presence of microorganisms [abstract]. Grant discloses that following fermentation, removal of the microorganisms from the brine/liquid is performed by centrifuging or filtering [claims 1-4].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art having the teachings of Kim and Grant before him or her to remove the microorganism from the vegetable matter by centrifugation as in Grant in order to separate out of the microorganisms and further purify the remaining liquid for use as curing agent.
25. Claim 33 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation as applied to claim 25 above and in further view of Alden et al. (US 5,639,495).
Regarding Claim 33: Kim discloses as discussed above in claim 25.
Kim does not disclose further comprising a yeast extract added before exposing the composition to the organism.
Pöhnl discloses including yeasts and salt [pg. 5].
Alden discloses adding yeast extract as an additional protein component in the production of sausage [abstract]. Alden discloses the additional protein as providing desirable flavor or lacking flavor detractors and that is provides more uniform shrinkage during heat treatment [col. 2, lines 38-58; col. 3, lines 21-33]. Alden discloses that the protein can be added during any stage of sausage preparation although it is typically mixed in with the curing agents [col. 3, lines 20-25].
At the time of the invention it would have been obvious to modify the composition of modified Kim to include yeast extract as in Alden in order to aid in flavor maintenance and structure.
Further it would have been obvious to mix the yeast extract before the curing agent (organism of Kim) is added to the meat since Alden allows for the yeast extract/additional proteins to be added at any processing step.
Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
26. Claim 35 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation as applied to claim 25 above and in further view of Holdren et al. (US 5,736,186).
Regarding Claim 35: Kim as modified discloses as discussed above in claim 25.
Kim does not disclose wherein the effective amount is 50 ppm to 200 ppm (claim 35).
Pöhnl discloses a method of curing food with a natural pickling substance [abstract; claim 8]. Pöhnl discloses foods cured with a combination of nitrate reducing microorganisms and plant material containing nitrate [pg. 4, pg. 6]. Pöhnl discloses mixing the microorganisms and plant material and then applying to meat products [pg. 6, pg. 8]. Pöhnl discloses adding a curing agent to a meat [claims 8,10-12].
Holdren discloses a curing agent containing sodium nitrite, for meat, and that 156 ppm is an amount that is adequate to cure meat [abstract; col. 14, lines 8-21; col. 15 ,lines 26-34].
At the time of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Kim to include the sodium nitrite curing agent in a meat at 156 ppm as in Holdren as Holdren discloses this amount as adequate to cure meat.
19. Claim 36 is rejected under 35 U.S.C. 103(a) as being unpatentable over Kim (US 6,217,925), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) as applied to claim 35 above and “Notice of Reasons for Refusal" disclosing a summary of JP-A-S48-082054 pg. 2-4.
Regarding Claim 36: Kim discloses as discussed above in claim 35. Fast does not disclose wherein the curing agent comprises at least 1020 ppm of the plant-based nitrite.
“Notice for Reasons of Refusal" discloses that JP-A- S48-082054 describes a plant material including radishes in which the nitrate content of the plant is converted to nitrite and discloses that the nitrite content is at least 100 ppm [pg. 2]. “Notice for Reasons of Refusal" discloses that the nitrite produced is used as an agent in meat processing [pg. 2].
At the time of the invention it would have been obvious to ferment the vegetable material in Kim in order to reduce the level of nitrate in the plant material in Kim to nitrite at levels of at least 100 ppm as in "Notice of Reasons for Refusal" since as discussed in "Notice of Reasons for Refusal" at this amount, the fermented vegetable material is utilizable as a curing agent. “Notice for Reasons of Refusal” discloses that JP-A-S48-082054 describes plant material that contains nitrate that is contacted with nitrate reductase which converts the nitrate to nitrite and then using the nitrite agent produced for meat processing. “Notice for Reasons of Refusal" discloses that JP-A-S48-082054 describes that a nitrite agent can be added to meat after it processed from a nitrate containing plant material that has been treated with nitrate reductase, it would have been obvious to one of ordinary skill in the art to add the nitrate reduced plant material to meat that it can therefore be used as a curing agent.
Although Notice of Reasons does not explicitly disclose at least 1020 ppm one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Notice of Reasons overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Response to Arguments
20. Applicant's arguments filed 8/12/25 have been fully considered but they are not persuasive.
21. The Applicants assert that the Examiner’s position is contrary to the PTAB decision for 14/269,455.
The Examiner maintains the rejections because the instant application is a separate application from 14/269,455. An Examiner searches and examines every pending claim when they are put before The Office. The Examiner further notes that the instant application is not a continuation/child application of 14/269,455. The instant application is a continuation of 12/119,990 which went abandoned.
22. The Applicants assert that due to the allowances of claims 23, 26-29 in 14/269,455 (now US 11,071,304) claims 1-5, that the instant application is also in condition for allowance.
The Examiner disagrees and maintains the rejections.
The Examiner maintains that Pöhnl discloses mixing the microorganisms and plant material (to form a pickling substance), fermenting the mixture such that a curing agent is formed and then applying it to meat products [pg. 6, pg. 8; claim 1 part e. and f.; claim 3; 7-12]. Pöhnl also does specifically disclose S. carnosus and M. varians as a bacteria capable of converting nitrate to nitrite in plant material [pg. 4]. Further, Yamamoto not only discloses the step of heat treating the plant material before incubating with a microorganism but it also discloses inactivating the microorganisms by heat treating once the plant material was satisfactorily fermented. These are obvious steps that 1.) control the type of fermenting microorganisms present with the plant material and keep the by-products of the fermentation predictable and 2.) control the level of fermentation and fermentation by-product formation by stopping the fermentation when a desirable level is attained. The Examiner also maintains that the rejection was not over Fast in view of Pöhnl alone but was Fast in view of Pöhnl and Yamamoto.
23. The Applicants assert that their inter Parties review of 14/269,455 (now US 11,071,304) was terminated as evidence of the allowability of the claims.
The Examiner acknowledges Applicants arguments that although the PTAB did withdraw their 4/26/23 Final Written Decision (FWD), which rendered the invention of Kerry ‘304 unpatentable, that the Federal Circuit vacated and remanded the PTABs 4/26/23 FWD and the PTAB in turn vacated the inter partes review (IPR). The Applicants assert that the IPR was terminated at the PTAB’s discretion.
The Examiner disagrees with this last part however, because the 6/2/25 IPR proceeding appears to have been terminated due to a confidential agreement reaches between the parties. This is contrary to the Applicants assertion that the IPR was terminated at the PTAB’s discretion.
The remaining arguments made by the Applicants state that the claims are patentable for the same reasons that the claims in the ‘304 Kerry patent are patentable.
The Examiner disagrees because the instant claims before the office are being examined on their merits. Further, the instant invention is not a child of the allowed patent.
The claims are not in condition for allowance and the rejections have been maintained.
Additionally, Double Patenting, 112 (b) and 102, and new 103(a) rejections have been made.
Pertinent Prior Art
19. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sato et al. (US 3,943,263) discloses a curing agent used at about 10ppm to 200 ppm or about 20 ppm to 150 ppm [abstract; col. 2, lines 23-28].
Conclusion
20. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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