DETAILED ACTION
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 12/17/2024 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 21-40
Withdrawn claims: None
Previously canceled claims: 1-20
Newly canceled claims: None
Amended claims: None
New claims: None
Claims currently under consideration: 21-40
Currently rejected claims: 21-40
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 21-40 are rejected under 35 U.S.C. 103 as being unpatentable over Ludwig (U.S. 2010/0310738 A1) in view of Toledo (U.S. 2007/0059423 A1).
Regarding claim 21, Ludwig discloses a method of preparing a concentrated food additive ([0058]), the method consisting of (a) treating vinegar with a basic neutralizing agent to partially neutralize the vinegar to a pH of below about 7.0 without adding acid to adjust the pH to be within the range ([0059]); and (b) evaporating water from and drying the product of step (a) to produce the concentrated food additive having an acetate ([0060]).
Ludwig does not explicitly disclose the pH of the treated vinegar as being in the range of about 4.0 to less than 5.5 or the concentrated food additive as having an acid in the form of a dry powder ([0062]).
Regarding the pH, though, Toledo discloses a similar method of producing a partially-neutralized vinegar food additive ([0002], [0015]), wherein the pH may be adjusted to 4.76 ([0024]-[0025]).
It would have been obvious to a skilled practitioner practicing the method of Ludwig to adjust the pH of the neutralized vinegar to within the range of 4.0 to 5.5. Since Ludwig teaches only generally that the pH at that step should be adjusted to within the broader range of “below about 7.0” ([0056], [0059]), a skilled practitioner would be motivated to consult Toledo for additional instruction on an appropriate pH. Toledo then discloses that a pH of 4.76 may be attained for such a solution where an equimolar ratio of sodium acetate and acetic acid is present ([0024]) and that such an equimolar composition is considered the “active antimicrobial component” ([0025]). A skilled practitioner would thus find the production of the partially-neutralized vinegar of Ludwig to a pH of 4.76 to be obvious, since such a value falls within the broader range disclosed in Ludwig and is described as being characteristic of the “active antimicrobial component” in Toledo, which renders the claimed range of about 4.0 to less than 5.5 obvious.
Regarding step (b), MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The claimed process is substantially identical to the disclosed process, involving only two steps—partially neutralizing vinegar and drying the product. As such, the resultant claimed product would inherently exhibit the same characteristics as the resultant prior art product. Thus, producing a concentrated food additive as in the method of Ludwig that contains an acetate and an acid in the form of a dry powder would be obvious.
Regarding claim 22, Ludwig discloses a method of preparing a concentrated food additive ([0058]), the method consisting of (a) treating vinegar with a basic neutralizing agent to partially neutralize the vinegar to a pH of below about 7.0 without adding acid to adjust the pH to be within the range ([0059]); (b) evaporating water from and drying the product of step (a) to produce the concentrated food additive having an acetate ([0060]); and (c) adding untreated vinegar to the product of step (b) (and only after the evaporation step) to produce the concentrated food additive in the form of an acetate-vinegar and acid dry powder ([0062])
Ludwig does not explicitly disclose the pH of the treated vinegar as being in the range of about 4.0 to less than 5.5 or the concentrated food additive as having an acid in the form of a dry powder ([0062]).
Regarding the pH, though, Toledo discloses a similar method of producing a partially-neutralized vinegar food additive ([0002], [0015]), wherein the pH may be adjusted to 4.76 ([0024]-[0025]).
It would have been obvious to a skilled practitioner practicing the method of Ludwig to adjust the pH of the neutralized vinegar to within the range of 4.0 to 5.5. Since Ludwig teaches only generally that the pH at that step should be adjusted to within the broader range of “below about 7.0” ([0056], [0059]), a skilled practitioner would be motivated to consult Toledo for additional instruction on an appropriate pH. Toledo then discloses that a pH of 4.76 may be attained for such a solution where an equimolar ratio of sodium acetate and acetic acid is present ([0024]) and that such an equimolar composition is considered the “active antimicrobial component” ([0025]). A skilled practitioner would thus find the production of the partially-neutralized vinegar of Ludwig to a pH of 4.76 to be obvious, since such a value falls within the broader range disclosed in Ludwig and is described as being characteristic of the “active antimicrobial component” in Toledo, which renders the claimed range of about 4.0 to less than 5.5 obvious.
Regarding step (b), MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The claimed process is substantially identical to the disclosed process, involving only two steps—partially neutralizing vinegar and drying the product. As such, the resultant claimed product would inherently exhibit the same characteristics as the resultant prior art product. Thus, producing a concentrated food additive as in the method of Ludwig that contains an acetate and an acid in the form of a dry powder would be obvious.
As for claim 23, Ludwig discloses the concentrated food additive as having a pH of about 4.5-5.7 (specifically, about 4.5 to 7.0) ([0056]).
As for claims 24 and 25, Ludwig discloses the basic neutralizing agent as being sodium bicarbonate ([0059]).
As for claims 26 and 27, Ludwig discloses the acetate as being sodium acetate ([0060]).
As for claim 28, Ludwig discloses the concentrated food additive as consisting essentially of an acetate and an acid ([0056]).
Regarding claim 29, Ludwig discloses a concentrated food additive ([0056], [0058]) that is produced by a process consisting of (a) treating vinegar with a basic neutralizing agent to partially neutralize the vinegar to a pH of below about 7.0 without adding acid to adjust the pH to be within the range ([0059]); and (b) evaporating water from and drying the product of step (a) to produce the concentrated food additive consisting essentially of an acetate ([0060]).
Ludwig does not explicitly disclose the pH of the treated vinegar as being in the range of about 4.0 to less than 5.5 or the concentrated food additive as having an acid in the form of a dry powder ([0062]).
Regarding the pH, though, Toledo discloses a similar method of producing a partially-neutralized vinegar food additive ([0002], [0015]), wherein the pH may be adjusted to 4.76 ([0024]-[0025]).
It would have been obvious to a skilled practitioner practicing the method of Ludwig to adjust the pH of the neutralized vinegar to within the range of 4.0 to 5.5. Since Ludwig teaches only generally that the pH at that step should be adjusted to within the broader range of “below about 7.0” ([0056], [0059]), a skilled practitioner would be motivated to consult Toledo for additional instruction on an appropriate pH. Toledo then discloses that a pH of 4.76 may be attained for such a solution where an equimolar ratio of sodium acetate and acetic acid is present ([0024]) and that such an equimolar composition is considered the “active antimicrobial component” ([0025]). A skilled practitioner would thus find the production of the partially-neutralized vinegar of Ludwig to a pH of 4.76 to be obvious, since such a value falls within the broader range disclosed in Ludwig and is described as being characteristic of the “active antimicrobial component” in Toledo, which renders the claimed range of about 4.0 to less than 5.5 obvious.
Regarding step (b), MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The claimed process is substantially identical to the disclosed process, involving only two steps—partially neutralizing vinegar and drying the product. As such, the resultant claimed product would inherently exhibit the same characteristics as the resultant prior art product. Thus, producing a concentrated food additive as in the method of Ludwig that contains an acetate and an acid in the form of a dry powder would be obvious.
Regarding claim 30, Ludwig discloses a concentrated food additive ([0056], [0058]) that is produced by a process consisting of (a) treating vinegar with a basic neutralizing agent to partially neutralize the vinegar to a pH of below about 7.0 without adding acid to adjust the pH to be within the range ([0059]); (b) evaporating water from and drying the product of step (a) to produce the concentrated food additive consisting essentially of an acetate ([0060]); and (c) adding untreated vinegar to the product of step (b) (and only after the evaporation step) to produce the concentrated food additive in the form of a concentrated acetate-vinegar and acid dry powder having a pH of about 4.5-5.7 (specifically, about 4.5 to 7.0) ([0056], [0062]).
Ludwig does not explicitly disclose the pH of the treated vinegar as being in the range of about 4.0 to less than 5.5 or the concentrated food additive as having an acid in the form of a dry powder ([0062]).
Regarding the pH, though, Toledo discloses a similar method of producing a partially-neutralized vinegar food additive ([0002], [0015]), wherein the pH may be adjusted to 4.76 ([0024]-[0025]).
It would have been obvious to a skilled practitioner practicing the method of Ludwig to adjust the pH of the neutralized vinegar to within the range of 4.0 to 5.5. Since Ludwig teaches only generally that the pH at that step should be adjusted to within the broader range of “below about 7.0” ([0056], [0059]), a skilled practitioner would be motivated to consult Toledo for additional instruction on an appropriate pH. Toledo then discloses that a pH of 4.76 may be attained for such a solution where an equimolar ratio of sodium acetate and acetic acid is present ([0024]) and that such an equimolar composition is considered the “active antimicrobial component” ([0025]). A skilled practitioner would thus find the production of the partially-neutralized vinegar of Ludwig to a pH of 4.76 to be obvious, since such a value falls within the broader range disclosed in Ludwig and is described as being characteristic of the “active antimicrobial component” in Toledo, which renders the claimed range of about 4.0 to less than 5.5 obvious.
Regarding step (b), MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” The claimed process is substantially identical to the disclosed process, involving only two steps—partially neutralizing vinegar and drying the product. As such, the resultant claimed product would inherently exhibit the same characteristics as the resultant prior art product. Thus, producing a concentrated food additive as in the method of Ludwig that contains an acetate and an acid in the form of a dry powder would be obvious.
As for claims 31 and 32, Ludwig discloses the concentrated food additive as being a concentrated antimicrobial food additive ([0064]).
As for claims 33 and 34, Ludwig discloses the acetate as being sodium acetate ([0060]).
As for claims 35 and 36, Ludwig discloses the basic neutralizing agent as being sodium bicarbonate ([0059]).
As for claim 37, Ludwig discloses a method of reducing bacterial growth and retaining flavor in meat, comprising injecting and/or massaging an effective amount of the concentrated food additive of claim 29 into the meat to reduce bacterial growth during storage ([0065]; [0033]; [0038], “preserving the meat by offering protection against antimicrobials”; [0039]; [0052]).
As for claim 38, Ludwig discloses a food product comprising an effective amount of the concentrated food additive of claim 29, wherein the effective amount is effective to increase the shelf life of the food product ([0037]) and prevent/slow the growth of at least one pathogenic or spoilage microorganisms ([0033]).
As for claim 39, Ludwig discloses the food product as being a meat product ([0052]).
As for claim 40, Ludwig discloses the concentrated food additive as consisting essentially of an acetate and an acid ([0056]).
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 21-40 over Ludwig and Toledo: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that “[t]he prosecution history of Toledo teaches away from a pH value of 4.76” (Applicant’s Remarks, p. 7, ¶2). Applicant asserted that the Toledo application “was amended away from the equimolar ratio of sodium acetate and acetic acid and the pH value of 4.76 to obtain an allowance”, citing arguments from the subsequent prosecution history of Toledo purporting to teach that a pH value of 4.76 is detrimental (Applicant’s Remarks, p. 7, ¶3 – p. 8, ¶4).
Applicant’s arguments are unpersuasive for multiple reasons, though. First, the argument wholly disregards the teaching of the primary reference, Ludwig, to “partially neutralize the vinegar to a pH of below about 7.0” ([0059]), which provides the presumption that all values within such a range would be suitable for practicing the disclosed method. The secondary reference, Toledo, is relied on merely to clarify the instruction in Ludwig, but its prosecution history cannot be deemed to teach away from a pH value that is already disclosed in Ludwig as being within the range considered suitable.
Further, the response in Toledo indicates only that “commercial grade” vinegar cannot achieve “the required relative molar amounts of acetic acid and acetate”, where the present claims are not limited to such vinegar, thus undermining the comparison. The indication that “neutralizing high grain vinegar” results in a vinegar with “no buffering capacity” is irrelevant as the present claims do not require any particular buffering capacity to be maintained upon performance of the method. The assertion that a pH of 4.7 “would be detrimental” is narrower than the scope of the present independent claims that do not require the use of the food additive on meat, and even dependent claims that do require the treatment of meat (e.g., claims 37-39) do not require the meat to retain particular “water retention properties”, which undermines Applicant’s argument.
Lastly, the cited prosecution history occurs well after Toledo was published. The published patent application is relied on as the prior art reference. The subsequent prosecution of the application cannot fairly be relied on to discredit the plain instruction in the reference, particularly when it substantially post-dates the publication of the application. The application publication stands alone as the cited prior art reference. Examiner maintains that Toledo is adequate for providing motivation to achieve a pH of 4.76 in light of the instruction at paragraphs [0024]-[0025].
Applicant’s arguments are unpersuasive.
The rejections of claims 21-40 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Claims 21-40 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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