DETAILED ACTION
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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response and Amendment filed 07/10/2026 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Withdrawn claims: None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: 41-48
Claims currently under consideration: 21-48
Currently rejected claims: 21-48
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/10/2026 has been entered.
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 45-48 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 45-48 recite the broad recitation “at least about 5% to about 50%”, and the claim also recites “about 7% toa bout 12%”, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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 21-48 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]).
As for claims 41-44, Ludwig discloses partial neutralization of vinegar without providing any limit on the degree of neutralization beyond being merely “partial” and wherein the final pH is below about 7.0 ([0056]). Any attainable acidity corresponding to pH values in that range are thus considered implicitly disclosed and consequently obvious. Since the methods of parent claims 21, 22, 29, and 30 result in a pH in the range of about 4.0 to less than 5.5, which falls within the disclosed range, the claimed acidity of “at least about 5%” is considered to fall within a range implied by the method of Ludwig and is thus considered obvious to a skilled practitioner. MPEP 2112.01 I (“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.”).
As for claims 45-48, Ludwig discloses partial neutralization of vinegar without providing any limit on the degree of neutralization beyond being merely “partial” and wherein the final pH is below about 7.0 ([0056]). Any attainable acidity corresponding to pH values in that range are thus considered implicitly disclosed and consequently obvious. Since the methods of parent claims 21, 22, 29, and 30 result in a pH in the range of about 4.0 to less than 5.5, which falls within the disclosed range, the claimed acidity of “about 5% to about 50%” is considered to fall within a range implied by the method of Ludwig and is thus considered obvious to a skilled practitioner. MPEP 2112.01 I (“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.”).
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 Toledo teaches adding untreated vinegar to neutralized vinegar to achieve the noted pH, whereas the present claims require no addition of acid to achieve the pH (Applicant’s Remarks, p. 8, ¶2).
However, Toledo is relied on only as a secondary reference. The primary reference, Ludwig, recites a first step of the preparation of the additive as follows: “treating vinegar with a basic neutralizing agent (e.g. sodium bicarbonate, sodium carbonate, or potassium bicarbonate) to partially neutralize the vinegar to a pH of below about 7.0” ([0059]). Examiner thus maintains that the instruction in Ludwig that the vinegar is only partially neutralized is adequate for deeming the relevant claim limitation obvious. Appellant’s argument against Toledo alone is unpersuasive due to disregarding the instruction in Ludwig that the vinegar is only partially neutralized.
Applicant then argued that Toledo allegedly teaches away from partial neutralization, citing its prosecution history as showing that direct neutralization cannot achieve an equimolar ratio at the pKa of acetic acid (Applicant’s Remarks, p. 8, ¶3 - p. 9, ¶1). Applicant alleged that Toledo directly teaches away from a direct-neutralization approach (Applicant’s Remarks, p. 9, ¶2). Applicant further argued that the grade of vinegar and timing of the cited prosecution history are inconsequential. Id. Applicant then alleged that Toledo does not actually teach adjusting the pH to 4.76 (Applicant’s Remarks, p. 9, ¶3).
Examiner maintains the position in the Examiner Answer filed 12/10/2025 at page 12, ¶3, and page 13, ¶2. Toledo cannot fairly be relied on as teaching away from using direct neutralization, at least in the context of the combination of the two prior art references, since Ludwig specifically teaches direct neutralization. Examiner maintains the Applicant’s arguments are unpersuasive due to wholly disregarding 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. Examiner maintains that Toledo is adequate for all that is relied on in the present claim rejections and that the reference does not teach against the modification of Ludwig as described in the claim rejection.
Applicant next argued that the claim rejection is insufficient to the extent it relies “on the theory that the claimed pH merely falls within Ludwig’s broader disclosed range” (Applicant’s Remarks, p. 9, ¶4). Applicant further asserted that the disclosure of Ludwig is essentially insufficient to be relied on for any instructive use whatsoever (Applicant’s Remarks, p. 10, ¶1).
Applicant’s arguments improperly disregard the plain language of the disclosure of Ludwig and are consequently unpersuasive. The claim rejections merely rely on the plain language of the reference. Applicant’s attempt to fully discredit what is specifically recited in the reference (which Examiner does not even concede is correct) extends well beyond any degree of scrutiny to which a skilled practitioner would subject the disclosed process steps. Examiner maintains that the claim rejections are proper and that the cited references are adequate for all that is relied on in the present claim rejections.
The rejections of claims 21-40 have been maintained herein.
Conclusion
Claims 21-48 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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