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 8/27/26. Claims 3, 5, 7-15, and 17-25, 27-37 are pending and have been examined on the merits. Claims 2, 4, 6, 16, 26 have been cancelled.
The Examiner notes that the Allowable Subject Matter designations for claims 3, 7-15, 17-21, 23-27, 34-37 have been withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 36 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The claims recites that the curing agent comprises 1020ppm nitrite but the claim upon which is depends (claim 35) recites that the effective amount is 50 ppm to 200pm. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
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 3, 7-15, 17-21, 23-27, 34-37 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; wherein the plant material is selected from the group consisting of celery, beet, cabbage, cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke, green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof.;
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize celery as a plant material in a method for curing meat.
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.
Claim 1 recites plant material in general but does not recite celery, beet, cabbage,
cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke,
green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof. However, these plant materials are edible and are known to be used as a natural sources of nitrite. Using the claims plants would have been obvious plant substrates. Further the instant specification of US Patent 11/071,304 discloses celery, beet, cabbage, cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke, green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize these plants in a method for curing meat.
Claim 3 of Application 17/497,062 further recites wherein the plant material is celery; where;
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize celery as a plant material in a method for curing meat.
Claim 7 of Application 17/497,062 recites wherein the curing agent is substantially free of non-natural nitrate and nitrite; where
Claim 4 of U.S. Patent No. 11/071,304 recites wherein the curing agent is substantially free of non-natural nitrate and nitrite.
Claim 8 of Application 17/497,062 recites wherein the fermentation comprises converting a predetermined amount of plant-based nitrate to nitrite; where
Claim 1 of U.S. Patent No. 11/071,304 recites the plant-based nitrite being derived from a plant material comprising at least about 50 ppm nitrate and the organism, and converting plant based nitrate to nitrite. This renders obvious converting a predetermined amount of nitrate to nitrite since Claim 1 claims an amount of nitrate.
Claim 9 of Application 17/497,062 recites wherein the plant material is
sterilized by a heat treatment 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.
Although US 11/071,304 does not recite sterilizing by heat treatment, it does indicate heat treatment prior to adding an organism. Sterilizing is a type of heat treatment and would have been an obvious method for treating to one of ordinary skill in the art. Further the specification of 11/071,304 discloses sterilizing as a heat treatment method [col. 3, lines 4-8].
Claim 10 of Application 17/497,062 recites wherein the organism is inactivated by heating the composition; where
Claim 1 of U.S. Patent No. 11/071,304 recites that the organism is inactivated. Although 11/071,304 does not recite that the organism is inactivated by heating, it would have been obvious to one of ordinary skill in the art to utilize a heating method to inactivate the organism since this would be an efficient way of inactivating without adding additional chemicals or components to the food. Further, the specification of US 11/071,304 discloses inactivating the organism by heating the composition [col. 4, lines 38-45].
Claim 11 of Application 17/497,062 recites wherein the organism is inactivated after the predetermined amount of nitrite is produced; 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 recitation in bold discloses inactivating after a predetermined amount of nitrite is formed. Further the specification of US 11/071,304 discloses inactivating after a predetermined amount of nitrite is reached [col. 4, lines 38-40].
Claim 12 of Application 17/497,062 recites wherein the plant material is a plant
extract, a plant juice, and/or a plant powder- obtained from a plant selected from the group; 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… The disclosure of plant material is broader than the plant juice, extract and powder recited in claim 12 of application 17/497, 062. However, it would have been obvious to utilize plant material in these forms since they are forms of plant material that have a wider surface area and would have been easier to homogenize with the organisms allowing the conversion of the nitrate to nitrite to be more efficient. Further the specification of US 11/071,304 discloses plant material as including plant extracts, juice and powders inactivating after a predetermined amount of nitrite is reached [col. 2, lines 14-17].
Claim 13 of Application 17/497,062 recites wherein the plant material is celery;
where
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize celery as a plant material in a method for curing meat.
Claim 14 of Application 17/497,062 recites 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, Pedi coccus, Streptococcus, lactic acid bacteria, and combinations thereof; 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. US 11/071,304 does not recite the specific microorganisms. However, the microorganisms recited in claim 14 are known in the art as nitrate reducing microorganism and it would have been obvious to utilize those microorganisms. Further the instant specification of US Patent 11/071,304 discloses Micrococcaceae family, the Micrococcus genus, the; Staphylococcus genus, gram positive cocci, Enterococcus, Lactococcus, Leuconostoc, Pediococcus, Streptococcus, lactic acid bacteria, and combinations thereof; [col. 3, lines 30-40]. It would have been obvious to one of ordinary skill in the art to utilize the claimed nitrate reducing organisms to produce nitrite.
Claim 15 of Application 17/497,062 recites wherein the organism is M. varians, S. carnosus, or a combination thereof; 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. US 11/071,304 does not recite the specific microorganisms. However, the microorganisms recited in claim 14 are known in the art as nitrate reducing microorganism and it would have been obvious to utilize those microorganisms. Further the instant specification of US Patent 11/071,304 discloses M. varians, S. carnosus [col. 3, lines 35-40]. It would have been obvious to one of ordinary skill in the art to utilize the claimed nitrate reducing organisms to produce nitrite.
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 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.
Claim 19 of Application 17/497,062 recites wherein the meat or meat product is a whole muscle cured meat or an emulsified cured meat.
Claim 5 of U.S. Patent 11/071,304 recites A cured meat or meat product... Although claim 5 does not recite the type of cured meat or meat product, since typical cured meats and meat products would be either whole meat such as ham or bacon or a sort of processed meat product such as sausage it would have been obvious that the cured meat and meat product of claim 5 encompassed cured whole meats and emulsified cured meats. Further, US 11/071,304 in the specification discloses whole cured meats and emulsified meats [col. 5, lines 26-33].
Claim 19 of Application 17/497,062 recites wherein the meat or meat product is a whole muscle cured meat or an emulsified cured meat.
Claim 5 of US 11/071,304 recites A cured meat or meat product... Although claim 5 does not recite the type of cured meat or meat product, since typical cured meats and meat products would be either whole meat such as ham or bacon or a sort of processed meat product such as sausage it would have been obvious that the cured meat and meat product of claim 5 encompassed cured whole meats and emulsified cured meats. Further, US 11/071,304 in the specification discloses whole cured meats and emulsified meats [col. 5, lines 26-33].
Claim 20 of Application 17/497,062 recites wherein the meat or meat product is selected from the group consisting of ham, turkey, chicken, hot dogs, lunch meat, and bacon.
Claim 5 of U.S. 11/071,304 recites A cured meat or meat product... Although claim 5 does not recite the type of cured meat or meat product, since typical cured meats and meat products would be either whole meat such as ham or bacon or a sort of processed meat product such as sausage it would have been obvious that the cured meat and meat product of claim 5 encompassed cured whole meats and emulsified cured meats. Further, US 11/071,304 in the specification discloses ham, turkey, chicken, hot dogs, lunch meat, and bacon [col. 5, lines 26-33].
Claim 21 of Application 17/497,062 recites wherein the temperature of the
heat treatment 121°C; 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.
Although US 11/071,304 does not recite heat treatment at 121°C, it does indicate heat treatment prior to adding an organism. Sterilizing is a type of heat treatment and would have been an obvious method for treating to one of ordinary skill in the art and it is known in the art that a temperature of 121°C at minimum is required for sterilization. Further the specification of 11/071,304 discloses sterilizing as a heat treatment method and sterilization at 121°C [col. 3, lines 4-8; Col. 5, Ex. 1; col. 6, Ex. 2].
Claim 23 of Application 17/497,062 recites wherein the plant material is celery juice concentrate; where
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery juice concentrate. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material and also discloses using a concentrate [col. 2, lines 14-24; 30-35]. It would have been obvious to one of ordinary skill in the art to utilize celery juice concentrate as a plant material in a method for curing meat.
Claim 24 of Application 17/497,062 recites wherein the plant material was pasteurized before adding the organism to the composition.
Claim 1 of U.S. Patent No. 11/071,304 recites that the organism is inactivated. Although 11/071,304 does not recite that the plant material is pasteurized, it would have been obvious to one of ordinary skill in the art to utilize pasteurization as a means for preparing plant material as it is gentler way of treating plant material and since this would be an efficient way of treating without adding additional chemicals or components to the food. Further, the specification of US 11/071,304 discloses treating plant material by heating the composition via pasteurization [col. 2, lines 30-35].
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; the plant material is selected from the group consisting of celery, beet, cabbage, cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke, green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof.
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.
Claim 1 recites plant material in general but does not recite celery, beet, cabbage,
cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke, green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof. However, these plant materials are edible and are known to be used as a natural sources of nitrite. Using the claims plants would have been obvious plant substrates. Further the instant specification of US Patent 11/071,304 discloses celery, beet, cabbage, cucumber, eggplant, mushroom, lettuce, squash, zucchini, mixed salad greens, carrot, artichoke, green beans, lima beans, broccoli, cauliflower, collard greens, corn, mustard, okra, onion, Chinese pea pods, black eyed peas, green peas, potatoes, turnips, radishes, and combinations thereof as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize these plants in a method for curing meat.
Claim 27 of Application 17/497,062 further recites wherein the plant material is celery; where;
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material [col. 2, lines 14-24]. It would have been obvious to one of ordinary skill in the art to utilize celery as a plant material in a method for curing meat.
Claim 29 of Application 17/497,062 recites wherein the plant material is
sterilized by a heat treatment 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.
Although US 11/071,304 does not recite sterilizing by heat treatment, it does indicate heat treatment prior to adding an organism. Sterilizing is a type of heat treatment and would have been an obvious method for treating to one of ordinary skill in the art. Further the specification of 11/071,304 discloses sterilizing as a heat treatment method [col. 3, lines 4-8].
Claim 30 of Application 17/497,062 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; 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.
Although US 11/071,304 does not recite inactivating by filter sterilizing, it does indicate a method of inactivation. Filter Sterilizing is a type of treatment and would have been an obvious method for inactivating to one of ordinary skill in the art. Further the specification of 11/071,304 discloses filter sterilizing as an inactivation method [col. 4, lines 40-45].
Claim 31 of Application 17/497,062 recites 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.; 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.
Although US 11/071,304 does not recite inactivating by centrifugation, it does indicate a method of inactivation. Centrifugation is a type of treatment and would have been an obvious method for inactivation to one of ordinary skill in the art. Further the specification of 11/071,304 discloses centrifugation as an inactivation method [col. 4, lines 40-45].
Claim 32 of Application 17/497,062 recites 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 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. US 11/071,304 does not recite the specific microorganisms. However, the microorganisms recited in claim 14 are known in the art as nitrate reducing microorganism and it would have been obvious to utilize those microorganisms. Further the instant specification of US Patent 11/071,304 discloses Micrococcaceae family, the Micrococcus genus, the; Staphylococcus genus, gram positive cocci, Enterococcus, Lactococcus, Leuconostoc, Pediococcus, Streptococcus, lactic acid bacteria, and combinations thereof; [col. 3, lines 30-40]. It would have been obvious to one of ordinary skill in the art to utilize the claimed nitrate reducing organisms to produce nitrite.
Claim 34 of Application 17/497,062 recites wherein the plant material is celery juice concentrate; where
Claim 1 of U.S. Patent No. 11/071,304 recites plant material in general but does not recite celery juice concentrate. However, celery is an edible plant material and is known to be used as a natural source of nitrite. Using celery would have been an obvious plant substrate. Further the instant specification of US Patent 11/071,304 discloses celery as a desirable plant material and also discloses using a concentrate [col. 2, lines 14-24; 30-35]. It would have been obvious to one of ordinary skill in the art to utilize celery juice concentrate as a plant material in a method for curing meat.
Claim 35 of Application 17/497,062 recites wherein the effective amount of the plant-based nitrite is 50 ppm to 200 ppm.
Claim 3 of U.S. Patent No. 11/071,304 recites wherein the nitrite in the curing agent is present at about 50 ppm to 200 ppm. The US 11/071,304 specification discloses an effective amount of about 50 to 200 ppm [col. 4, lines 55-60].
Claim 36 of Application 17/497,062 recites wherein the curing agent comprises at least 1020 ppm of the plant-based nitrite.
Claim 3 of U.S. Patent No. 11/071,304 recites wherein the nitrite in the curing agent is present at about 50 ppm to 200 ppm. The US 11/071,304 specification discloses a curing agent comprising about 50 to 24,000 ppm and about 1000ppm [col. 4, lines 57-67; col. 5, lines 1-3]. It would have been obvious to ferment the plan material to treat to produce the desired amount of nitrite.
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.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: Claims 5, 22, 28, and 33 are allowable over the prior art of record.
Response to Arguments
Applicant's arguments filed 8/27/26 regarding the Double Patenting have been fully considered but they are not persuasive.
The Examiner maintains the double patenting rejection and that the amendments made to claims 18 and 37 do not render the rejections of claims 17, 18, 25, 30 and 37 moot. The Double Patenting rejection has been maintained.
Conclusion
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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/Felicia C Turner/ Primary Examiner, Art Unit 1793
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