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 .
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4 Sep 2025 has been entered.
Response to Amendment
All rejections not repeated in this Office Action has been withdrawn.
Claims 1-23 are currently pending in this Office Action. Claims 1-15 have been withdrawn due to being drawn to the non-elected claim.
Claim Rejections - 35 USC § 103
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.
Claim(s) 16, 19, 21, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Goodman (US 2019/0200655 A1) in view of Xu et al. (NPL reference- L-lysine and L-arginine inhibit the oxidation of lipids and proteins of emulsion sausage by chelating iron ion and scavenging radical).
Regarding Claim 16, Goodman discloses a curing composition (curing agent) comprising a combination of salt and sugar (paragraph 25), wherein said composition comprises no nitrite (see paragraph 25 where the curing agent is optionally nitrite and/or sodium nitrite among many non-nitrite curing agents).
Goodman is silent to comprising amino acid, wherein said amino acid comprises L-arginine. Xu is relied on to teach the effects of L-arginine on the oxidation of lipids and proteins of emulsion sausages. It was found that samples of sausages with L-arginine were shown to inhibit oxidation of lipids and proteins by scavenging free radicals and chelating ferrous ions during storage (see Conclusion, page 2). Since Goodman is directed to treating meat product using a curing agent for the purpose of extending shelf life (paragraph 23), it would have been obvious to one of ordinary skill in the art to modify Goodman as taught by Xu and to further comprise L-arginine for the purpose of inhibiting oxidation of lipids and proteins during storage. As to the limitation of “generates nitric oxide from meat”, since the prior art suggest the claimed composition of salt, sugar, and L-arginine, the composition taught by the prior art would have necessarily generated nitric oxide from meat. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01.II.
Regarding Claim 19, Goodman further teaches wherein said composition further comprises erythorbate (sodium erythorbate, paragraph 25).
Regarding Claim 21 and 22, the claim further limits the term “meat” recited in Claim 16; however, the claim is directed to “a curing composition” that is capable of generating nitric oxide from meat, where “meat” is not part of the claimed composition. Therefore, Claims 21 and 22 are directed to an intended use of the claimed composition that is to be used with meat. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, since Goodman is also directed to a curing composition for meat (jerky, see abstract of Goodman), the curing composition of the prior art is construed to be capable of being used with both pre-rigor and post-rigor meat.
Claim(s) 17 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied in Claim 16, further in view of Shao (CN 104323192 A- see translations).
Regarding Claim 17, the combination is silent to further comprising citrulline. Shao discloses a flavoring agent of stewing meat material, wherein citrulline is provided in proper quantity to maintain muscle and liver health (paragraph 18). Citrulline also helps nitrogen and metabolic balance of important nutritional supplement (paragraph 18).
Therefore, since both Goodman and Shao are directed to compositions that are applied to meat products, it would have been obvious to one of ordinary skill in the art to further comprise citrulline for the purpose of providing nutritional benefits that supports muscle and liver health as taught by Shao.
Regarding Claim 23, the claim is rejected for reasons discussed in Claims 16 and 17. That is, the combination of Goodman and Xu is relied on to teach a curing composition comprising salt, sugar, amino acid, wherein the amino acid comprises L-arginine, and wherein said composition comprises no nitrite (see rejection of Claim 16). Shao is further relied on to comprise citrulline (see rejection of Claim 17 above).
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 16, further in view of Dang et al. (CN 106509673 A) and Kanner et al. (WO 2019/026073 A1).
Regarding Claim 18, Goodman is silent to the specific amounts of the sugar, salt, and amino acids. For purpose of applying prior art, since Applicant’s curing composition appears to be a composition without meat or water (As shown in Example 24, page 101 of the Specification), Dang is relied on to disclose the following composition see in Example 2, page 4 of the translations:
Ingredients
Parts by weight
Percent by weight (%)
L-Arginine (amino acid)
0.3
7.1
Cysteine (amino acid)
0.5
11.8
L-Ascorbic
0.4
9.4
Sodium Chloride (salt)
1.7
40
Potassium Chloride (salt)
0.5
11.8
Monosodium glutamate (salt)
0.3
7.1
Sugar
0.5
11.8
Nitrite (salt)
0.01
0.2
Spice Powder
0.04
0.9
Total parts ~ 4.25
In this example, Dang discloses a curing composition (sans meat and water) comprising 18.8% amino acids (7.1% L-Arginine + 11.8% Cysteine), 11.8% Sugar, and 59.1% salt (40% Sodium Chloride + 11.8% Potassium Chloride + 7.1% Monosodium glutamate + 0.2% Nitrite). This composition achieved a desired taste, mouthfeel, and color (see Page 2, second paragraph).
Since Dang is also directed to a process of curing meat using salt, sugar, and amino acids, it would have been obvious to one of ordinary skill in the art to use known amounts of salt, sugar, and amino acids to achieve the desired flavor, color, and mouthfeel. The composition of the amino acid and the sugar are within, or merely close, to the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05.
As to the salt component, while the amount of salt is below the claimed range, the salt would have been an obvious matter of taste preference. That is, since Goodman and Dang are directed to seasoning meat products, it would have been obvious to one of ordinary skill in the art to increase the salt based on desired taste.
In any case, Kanner is relied on to teach a curing composition comprising 80% to 98% sodium chloride (see page 10, first paragraph). Therefore, since it is known to comprise up to 98% sodium chloride in curing compositions for meat, it would have been obvious to one of ordinary skill in the art to increase the amount of salt based on taste preference.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 16, and evidenced by Sausage Maker Supplies (NPL Reference – Additives Information Sheet).
Regarding Claim 20, as discussed in Claim 19, Goodman further teaches comprising erythorbate (sodium erythorbate, paragraph 25) which is also construed to be a cure accelerator as evidenced by Sausage Maker Supplies. That is, erythorbates increases the rate at which nitrates reduces to nitric oxide, thus facilitating a faster cure (Page 5).
Response to Arguments
The arguments in the response filed 4 Sep 2025 has been considered, but is found not persuasive over the prior art.
As to Claim 16, Applicant argues that the prior art do not describe the generation of nitric oxide from meat. The argument is not persuasive because Claim 16 is solely directed to a composition and does not comprise meat; rather, the composition is capable of generating nitric oxide from meat. Since the prior art discloses all of the claimed components of the composition, the prior art is also construed to be capable of generating nitric oxide from meat. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01.II. For these reasons, the prior art is maintained.
As to Claim 17, Applicant argues that one of ordinary skill in the art would not look to Shao for curing because Shao is not directed to a curing composition. However, the argument is not persuasive while Shao does not explicitly recite a “curing” composition, Shao’s composition does contain an amino acid such as lysine which the Xu reference incorporates into a curing agent. Therefore, Shao’s composition is necessarily a curing agent. In any case, Shao is not relied on to further modify the curing aspect of Goodman; rather, Shao is relied on to teach an agent comprising citrulline for its health and nutritious benefits. Therefore, since Shao discloses an agent comprising an amino acids such as lysine and citrulline, and Xu discloses a curing agent comprising lysine, it would have been reasonable for one of ordinary skill in the art to combine citrulline with the curing agent of Goodman. For these reasons, the prior art is maintained.
As to Claim 18, Applicant argues that the Dang reference is not an appropriate reference to be considered since Dang requires nitrite. The argument is not persuasive because Dang is simply relied on to teach known proportions of amino acids, sugar, and salt within curing compositions. There is no evidence to suggest that one of ordinary skill in the art would not turn to the Dang reference for the salt, sugar, and amino acid components based on the presence of nitrite, especially since Goodman is directed to a curing composition that optionally comprises nitrite (paragraph 25). For these reasons, the prior art is maintained.
As to Claim 19 and 20, the prior art is maintained in view of the responses above with respect to Claim 16. In response to Applicant’s argument that the Sausage Maker reference teaches the use of nitrite in the composition, the argument is not persuasive because Sausage Maker is merely provided as evidentiary reference to support that erythorbate increases the rate at which nitrates reduces to nitric oxide, thereby being a “cure accelerator”. Sausage Maker Supplies has not been combined with the prior art for any modification and therefore cannot teach away from the presently claimed composition.
Conclusion
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792