DETAILED ACTION
Background
The amendment dated March 27, 2026 (amendment) amending claim 1 and canceling claim 9 has been entered. Claims 1, 3-8 and 10-14 as filed with the amendment have been examined. Claims 2 and 9 have been canceled.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-8 and 10-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CN106306621 A to Bi (Bi) in view of CN 107815389 A to Wang (Wang), of record, and as evidenced by EP 3120711 A1 to Bellini (Bellini), of record, and RU2385924 C1 to Koshelev et al. (Koshelev).
All references to Bi, Koshelev and Wang refer to the Clarivate machine translation. A copy of Bi and Koshelev have been provided with this Office action; a copy of Wang was provided in an earlier Office action.
The Office considers vinegar as comprising chlorogenic acid and caffeic acid (Bellini at [0024]); and, further, unless otherwise disclosed considers a disclosure of wine to comprise grape wine having from 11 to 15 wt% alcohol as ethanol, as is disclosed in Koshelev at the 2nd paragraph after “Description” on page 2.
Regarding instant claims 1, 3 and 12, Bi at Abstract on page 1 discloses a fishy smell removing (“for reducing an off-flavor”) and appetizing fruit sauce composition (as a product in claim 12), wherein raw materials comprise, by weight raspberry 30-40 parts, grape 20-30 parts of monascus, 5-6 parts of clove, 0.6-0.8 parts of konjak, 0.8 parts of citric acid (“organic acid” in claim 3) 1-3 parts of fructus amomi globosi, 3-5 parts of medlar, 2-4 parts of amomum cardamomum, 3-5 parts of rhizoma gastrodiae, grape and white sugar 4-6 parts in a weight ratio of 10:3, 2-4 parts of vinegar, and 6-8 parts of wine, including the acetic acid from the vinegar (claim 3 as the “organic acid” of claim 1). The total content of the sauce in Bi amounts to at least (30+20+5+0.6+0.8 +1+3+2+3+4+2+6 or) 77.4 parts to at most (40+30+6+0.8+0.8+3+5+ 4+5+6+4+8 or) 112.6 parts. Accordingly, the amount of alcohol (ethanol) in the composition of Bi comprises (0.11 to 0.15 proportion of alcohol)•4-6 parts or 0.44 to 0.9 parts in 77.4 to 112.6 parts or from about 0.4 wt% to about 1.16 wt% alcohol as ethanol, which the claimed range of 0.2 to 0.96 wt% overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Bi would have found it obvious to include the claimed amount from 0.2 to 0.96 wt% of ethanol in its composition because Bi discloses that the claimed amount of ethanol provides a desirable composition for reducing an off-flavor.
Further, the Office finds that an amount of organic acid in vinegar comports with the cooking vinegar ginger (B2B and B2C) and cooking vinegar rosemary (B2B and B2C) products at [00118] and the accompanying Tables 3 and 4 at [00130] and [00133] of the instant specification comprising 8-12 wt% of vinegar and having a content of from 0.6 to 0.7 wt% (6.1 to 7.1 g/L) of an organic acid comprising acetic acid, based on the total weight of the total composition having 8 to 12 wt% vinegar or from about 1/12th to about 1/8th part of vinegar. Adjusting to 100% vinegar gives an acetic acid content of from about 49 to about 88 g/L or about 4.9 to about 8.8 wt% of acetic acid. Thus, the Office considers the amount organic acid from the vinegar in the composition of Bi as comprising (0.049 to 0.088 proportion of acetic acid)•2-4 parts or (0.098 to 0.354 parts in 77.4 to 112.6 parts) or from about 0.00088 wt% to about 0.0046 wt% acetic acid from its vinegar plus the 0.8 parts in 77.14 to 112.6 parts of about 0.7 to about 1.03 wt% of citric acid. Accordingly, the total amount of organic acid in the Bi disclosed composition ranges from about 0.701 to about 1.035 wt%.
Still further, Bi discloses 0.4 wt% to 1.16 wt% ethanol, giving a content of organic acid of from 0.70/1.16 X 100 parts to 1.035/0.4 X 100 parts or about 66 to about 251 parts by weight organic per hundred parts by weight (pbw) of ethanol, which the claimed 80 to 200 pbw organic acid per 100 pbw ethanol lies within. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Bi to formulate its composition to include the claimed weight ratio of organic acid to ethanol because Bi discloses that the claimed weight ratio of organic acid to ethanol provides a desirable off-flavor reducing composition.
Still further, and regarding instant claims 4-6, Bi does not say that its composition comprises a content of caffeic acid of from 0.03 ppm to 2 ppm, based on the total weight of the composition and chlorogenic acid in a content of from 0.2 ppm to 6 ppm, based on the total weight of the composition as in claim 1; further, Bi does not disclose a source of polyphenols isolated from fermented vinegar as in claim 4; does not disclose the identity of any organic acid isolated from fermented apple vinegar as in claim 5; and does not disclose a content of polyphenols of from 0.003 to 0.1 parts by weight based on 100 parts by weight (pbw) of ethanol as in claim 6.
Wang at Abstract on page 1 discloses a healthy acetic acid bacteria fermented apple vinegar which (at the last paragraph of text prior to the claims on page 6) comprises 8.22mg/L (ppm) chlorogenic acid content and 4.35mg/L (ppm) caffeic acid. Accordingly, use of 2-4 parts of the Wang vinegar in a composition of from 77.4 to 112.6 parts represents from about 1.8 to about 5 wt% vinegar, based on the total weight of the composition which converts to from about 0.16 to 0.4 ppm of chlorogenic acid, which the claimed 0.2 to 6 ppm in claim 1 overlaps, and from about 0.087 to about 0.218 ppm of caffeic acid, which the claimed 0.03 to 2 ppm in claim 1 overlaps.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Wang for Bi to include the apple cider vinegar of Wang as its vinegar and a source of polyphenols, and to provide a composition comprising the claimed content of from 0.2 to 6 ppm of chlorogenic acid and from 0.03 to 2 ppm of caffeic acid as polyphenols and organic acids, based on the total weight of the total composition. Both references disclose vinegar for its beneficial use in food. The ordinary skilled artisan in Bi would have desired to include the acetic fermented vinegar from apple juice as in Wang as its vinegar to enhance the desired off-flavor reducing effect of its compositions. Further, based on 100 parts of alcohol as about 0.4 wt% to about 1.16 wt% alcohol in Bi, the total of chlorogenic acid and caffeic acid in Bi as modified by Wang based on use of the vinegar of Wang in the composition of Bi is (0.16 ppm + 0.087 ppm up to 0.4 ppm + 0.218 ppm or) 0.247 to 0.618 ppm polyphenol in 0.4 to 1.16 wt% or 4000 ppm to 11600 ppm ethanol or, a weight ratio of from 0.247/116 to 0.618/40 parts polyphenol per 100 parts ethanol, which is 0.0021 to 0.0155 pbw polyphenol per 100 pbw of ethanol and which the claimed 0.003 to 0.1 pbw polyphenols per 100 pbw ethanol in claim 6 overlaps. See MPEP 2144.05.I.
Regarding instant claim 7, the Office considers the composition of Bi as modified by Wang to be substantially the same composition. Accordingly, absent a clear showing as to how the contents of the composition of Bi as modified by Wang differs from the claimed composition, the Office considers the composition of Bi at Abstract on page 1 as modified by Wang at the last paragraph before the claims to comprise a content of the polyphenol that equals a total content of chlorogenic acid and caffeic acid in its composition as in claim 7.
Regarding instant claims 9-10, the Office considers the vinegar, wine and citric acid containing composition for removing a fishy smell as disclosed in the Abstract of Bi as modified by Wang to be substantially the same thing as the claimed composition and, further considers its use on fish to be the same method as that claimed. Accordingly, absent a clear showing as to how the composition of Bi as modified by Wang differs from that as claimed, the Office considers the composition of Bi at Abstract on page 1 as modified by Wang at page 6, the last paragraph before the claims to be a composition for reducing an off-flavor as a “fishy odor” in claim 9; and to be a composition wherein the composition reduces an off-flavor generated by a nitrogenous compound as in claim 10. See MPEP 2112.01.I.
Regarding instant claim 11, Bi at “invention contents” on page 2 discloses use on fish meat (“adding the composition to an off-flavor generating material”).
Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over CN106306621 A to Bi (Bi) in view of CN 107815389 A to Wang (Wang) and as evidenced by EP 3120711 A1 to Bellini (Bellini) and RU2385924 C1 to Koshelev et al. (Koshelev) as applied to claim 12 above, and further in view of KR 20190055941 A to Chung et al. (Chung), of record.
As applied to claim 12, Bi at Abstract on page 1 as modified by Wang at the last paragraph on page 6 before the claims discloses a product containing a composition for reducing an off-flavor comprising polyphenol, ethanol, and an organic acid, wherein the polyphenol comprises chlorogenic acid and caffeic acid, wherein the content of the chlorogenic acid is from 0.2 ppm to 6 ppm based on the total weight of the composition, wherein the content of the caffeic acid is from 0.03 ppm to 2 ppm based on the total weight of the composition, and the content of the organic acid is 80 to 200 parts by weight based on 100 parts by weight of ethanol.
Regarding instant claim 13, Bi as modified by Wang does not disclose a product composition comprising a cooking vinegar. However, at the Abstract on page 1 Chung discloses fermented grape which the Office interprets as including mashing or juicing the grapes; and, further, Chung discloses the release of organic acids from “tomato” which the Office interprets as being the medlar.
Chung at Abstract on pages 1-2 discloses compositions for removing fishy smells comprising (at page 4, last 3 paragraphs) from 0.01 to 20 wt% of deodorizing components of alcohol ("ethanol") and vinegar, including the acetic acid from the vinegar. Further, Examples 1, 3, 4, 5, 6 and 8 of Chung at the top of page 7 and accompanying Table 1 comprise each of vinegar and ethanol as well as 1 wt% citric acid with the remainder of the composition comprising water. In addition, Chung at page 6, 2nd to last paragraph discloses use on fresh fish flesh. The Office considers the composition of Chung to comprise a cooking vinegar.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Chung for Bi as modified by Wang to formulate its composition as a cooking vinegar, including a marinade. Both references disclose vinegar and organic acid containing fluid compositions for reducing fishy odor when used on fish. The ordinary skilled artisan would have desired to strain the fluid from the composition of Bi or add water to it to make what is a , while maintaining the contents of its effective deodorizers to enhance its effectiveness at treating the surface of its fish substrate
Regarding instant claim 14, Bi at the Abstract on page 1 discloses its composition comprising grape and white sugar 4-6 parts in a weight ratio of 10:3 ( respectively, “fructose” and “sugar”).
Response to Arguments
Responsive to the positions taken in the remarks accompanying the amendment dated March 27, 2026 (Reply), the following rejection has been withdrawn as moot:
The rejections of claims 1 and 3-13 under 35 U.S.C. 103 as being unpatentable over KR 20190055941 A to Chung et al. in view of CN 107815389 A to Wang.
The remarks accompanying the amendment dated March 27, 2026 (Reply) have been fully considered but are moot in view of the new grounds of rejection which do not rely on the Chung reference in relation to any of the positions taken in the Reply. In regard to unexpected results, to address the art of record and issues raised to date, comparisons will need at the very least to address compositions that have all of the claimed materials but more than the disclosed ranges of ethanol and/or organic acids. In addition, for reasons unrelated to the law the Office has withheld a rejection of claim 7 as not fully enabled. However, it is not clear how a composition comprising vinegar from grapes or apples can contain only chlorogenic acid and caffeic acid polyphenols as in claim 7.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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