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 2/24/26. Claims 2, 3, 5, 7-15, and 17-37 are pending and have been examined on the merits.
Withdrawn Rejections
The 112(b) rejections of claims 18, 35, and 37 have been withdrawn due to the corrections to the claims.
The 102(a)(1) rejections of claims 18-20 and 37 as being anticipated by Pöhnl (WO 2005/013703) Machine Translation have been withdrawn.
The 103(a) rejections of claims 17, 2, 7, 8, 9, 10, 11, 12, 14, 15, 18, 19, 20, 21, and 22 over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) have been withdrawn.
The 103(a) rejection of claim 5 over Fast et al. (EP0805205), and Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) and Hsu et al. (US 4,490,396) has been withdrawn.
The 103(a) rejections of claims 3 and 13 over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) and Ronald Walker Journal of the Science of Food Agriculture 1975 vol. 26 pages 1735-1742 have been withdrawn.
The 103(a) rejection of claim 23 over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) Machine Translation and Janda et al. (US 5,731,018) has been withdrawn.
The 103(a) rejection of claim 24 over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Yamamoto et al. (JP 2001352935 Machine Translation) and Buhler et al. (US 5,192,565) has been withdrawn.
The 103(a) rejections of claims 25, 26, 32, 35, and 37 over Fast et al. (EP0805205) in view of Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) have been withdrawn.
The 103(a) rejection of claim 27 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) and Ronald Walker Journal of the Science of Food Agriculture 1975 vol. 26 pages 1735-1742 has been withdrawn.
The 103(a) rejections of claims 28 and 33 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) and Holdren et al. (US 5,736,186) Machine Translation and Hsu et al. (US 4,490,396) have been withdrawn.
The 103(a) rejection of claim 29 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) and Yamamoto et al. (JP 2001352935 Machine Translation) has been withdrawn.
The 103(a) rejection of claim 30 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) and Kim (US 6,217,925) has been withdrawn.
The 103(a) rejection of claim 33 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) and Alden et al. (US 5,639,495) has been withdrawn.
The 103(a) rejection of claim 34 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) and Janda et al. (US 5,731,018) has been withdrawn.
The 103(a) rejection of claim 36 over Fast et al. (EP0805205), Pöhnl (WO 2005/013703) Machine Translation, and Holdren et al. (US 5,736,186) and “Notice of Reasons for Refusal" disclosing a summary of JP-A-S48-082054 pg. 2-4 have been withdrawn.
The 103(a) rejections of claims 17, 2, 3, 7, 8, 9, 10, 12, 13, 14, 15, 18, 21, 22, 25, 26, 27, 29, 30, 32 and 37 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation have been withdrawn.
The 103(a) rejection of claim 5 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation and Hsu et al. (US 4,490,396) has been withdrawn.
The 103(a) rejection of claim 11 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) and Yamamoto et al. (JP 2001352935 Machine Translation) has been withdrawn.
The 103(a) rejections of claims 23 and 34 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) and Janda et al. (US 5,731,018) have been withdrawn.
The 103(a) rejection of claim 24 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation) and Buhler et al. (US 5,192,565) has been withdrawn.
The 103(a) rejection of claim 31 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation and Grant et al. (US 5,002,778) has been withdrawn.
The 103(a) rejection of claim 33 over Kim (US 6,217,925) in view of Pöhnl (WO 2005/013703) Machine Translation and Alden et al. (US 5,639,495) has been withdrawn.
The 103(a) rejection of 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 and Holdren et al. (US 5,736,186) has been withdrawn.
The 103(a) rejection of claim 36 over Kim (US 6,217,925), Pöhnl (WO 2005/013703) Machine Translation and Holdren et al. (US 5,736,186) and “Notice of Reasons for Refusal" disclosing a summary of JP-A-S48-082054 pg. 2-4 has been withdrawn.
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.
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.
Allowable Subject Matter
32. The following is a statement of reasons for the indication of allowable subject matter: Claims 2, 3, 5, 7-15, and 17-37 are allowable over the prior art of record.
Response to Arguments
33. The 112(b) rejections of claims 18, 35, and 37 have been withdrawn due to the corrections to the claims.
34. The 102(a)(1) rejections of claims 18-20 and 37 as being anticipated by Pöhnl (WO 2005/013703) Machine Translation have been withdrawn.
35. The 103(a)rejections of the claims have been withdrawn as discussed above.
36. Applicant's arguments filed 2/24/26 regarding the Double Patenting have been fully considered but they are not persuasive.
37. Regarding the Double Patenting Rejections of claims 17, 18, 25, 30, and 37 over US 11/071,304, the Applicants requested that the Examiner review the previously filed declaration and assert that the amendments of the claims may change such that the rejection becomes moot for most if not all of the claims.
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
38. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
39. 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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Felicia C Turner/Primary Examiner, Art Unit 1793
Prosecution Insights