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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/25/25 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/25/25 was filed after the mailing date of the Final Office Action on 8/25/25. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
The objections and/or rejections not repeated in this Office Action have been withdrawn.
Claims 1, 9, 10-11, 13-14, 16-17, 19-20, 22-30, 32-33, 35-37, 39-40, 42-44, 46-48, 49-51, 53-56, 58-59, 61-67, 69-71, 73-109, 111-121 and 133 are being examined.
Claims 122-132 are withdrawn from consideration.
Claims 2-8, 12, 15, 18, 21, 31, 34, 38, 41, 45, 48, 52, 57, 60, 68, 72, 110 are canceled.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 9-11, 16-17, 19-20, 24-26, 29-30, 32-33, 35-36, 39-40, 42-44, 46-47, 49-51, 55-56, 58-59, 71, 73-74, 82, 83, 92, 94-95, 98-100, 106-107, 111-113, 116 and 118-120, is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by Payne [AU 2017239498 A1], evidenced by Guo et al. [Influence of roasting condition on flavor profile of sunflower seeds: A flavoromics approach, 2019], hereinafter Guo, NIH [Gamma-Butyrolactone, 2005], and Kaur et al. [Lipid profile of hyperlipidemic males after supplementation of multigrain bread containing sunflower seed flour, 2020], hereinafter Kaur, or, in the alternative, under 35 U.S.C. 103 as obvious over Payne in view of Didzbalis et al. [WO 2020072957 A1], hereinafter Didzbalis.
Regarding claim 1, Payne teach a nut butter replica [0007, 0010] comprising:
A solid substrate comprising plant seed material, wherein the plant seed material comprises two or more of legume seed material [0017] and roasted oil plant seed material [0013]. The legume seed material is selected from one or more of lentil, mung bean, pea, chickpea [0017] and faba beans [0023]. The roasted oil plant seed material is selected from one or more of roasted sunflower seeds [0013], roasted chia seeds [0033], and roasted linseeds [0062], one or more volatile organic compounds (VOCs) selected from 2,5-dimethylpyrazine (inherently present and/or formed during roasting in the roasted sunflower seeds of Payne, see Guo, Abstract), and one or more non-volatile compounds (citric acid [0025], sugar and salt [0026], protein [0075]).
If one was to argue that the nut butter replica of Payne does not comprise one or more volatile organic compounds (VOCs) selected from 2,5-dimethylpyrazine;
Didzbalis teach flavor compositions that can provide and/or enhance a nut flavor [Abstract] in food products such as peanut flavor without ingesting actual peanuts (nut better replica) [Didzbalis, p.5, l.1-3 and p.6, l.12-13], and comprise one or more VOC compounds that include 2,5-dimethylpyrazine [Didzbalis, p.8, l.7-8].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more volatile organic compounds (VOCs) selected from 2,5-dimethylpyrazine as taught by Didzbalis, into the invention of Payne, since both are directed to methods of making nut flavored products comprising VOCs that are free from tree nuts, peanuts and allergens associated with them [Didzbalis, p.5, l.1-3, and Payne, 0007, 0075]. Doing so would provide flavor compositions that can provide and/or enhance a nut flavor, a flavor composition that comprises aroma compounds (VOCs) that contribute to a nut flavor, methods of producing a food product and/or enhancing a roasted peanut flavor of a food product using the compounds and/or flavor compositions disclosed by Didzbalis [Didzbalis, Abstract].
Regarding claims 9-11, 16-17, 19-20, 24-26, 29-30, 32-33, 35-36, 39-40, 42-44, 46-47, 49-51, 55-56, 58-59, Payne teach the nut butter replica of claim 1 comprising roasted sunflower seeds comprising one or more VOCs as evidenced by Guo, wherein the one or more VOCs comprise at least one compound selected from furfural of claim 9 (inherently present in roasted sunflower seeds, see Guo, Table 1), wherein 2,5-dimethylpyrazine is present in an amount of no greater than about 10 ppm of claim 10 (0.10 to 5.17 µg/g (0.10 to 5.17 ppm), see Guo, Table 1), wherein the VOCs comprise one or more of an ester of claim 11 (see Guo, Abstract), one or more alcohols of claim 16 (see Guo, Abstract), selected from the group consisting of 1-octen-3-ol of claim 17 (see Guo, Table 1), one or more aldehyde of claim 19 (see Guo, Abstract), selected from the group consisting of phenylacetaldehyde of claim 20 (see Guo, Table 1), one or more benzene selected from the group consisting of toluene of claims 24-25 (see Guo, Table 1), one or more esters of claim 26 (see Guo, Abstract), one or more furans of claim 29 (see Guo, p.2. par.5) selected from the group consisting of 2-pentylfuran of claim 30 (see Guo, Table 1), one or more ketones selected from the group consisting of 3-penten-2-one of claims 32-33 (see Guo, Abstract, Table 1) in amounts of at least about 0.0001 ppm of claim 35 (0.14 µg/g or 0.14 ppm) of said ketones, one or more lactones of claim 36 (see Guo, Table 1 for gamma-butyrolactone, and NIH, page 21, 3.4 Chemical class-Lactones), one or more phenol selected from the group consisting of phenol in amounts of at least about 0.05 ppm (0.14 µg/g or 0.14 ppm) of claims 39-40 and 42 (see Guo, Table 1), one or more pyrazines selected from the group consisting of 2,5-dimethylpyrazine of claims 43-44 (see Guo, Abstract, Table 1, p.4), one or more pyridines selected from the group consisting of pyridine in amounts no greater than about 1.68 ppm (1.19 µg/g or 1.19 ppm) of claims 46-47 and 49 (see Guo, Abstract, Table 1), one or more pyrroles selected from the group consisting of 2-acetylpyrrole of claims 50-51 (see Guo, p.2, par.2, and p.4), one or more sulfur compounds selected from the group consisting of methional of claims 55-56 (see Guo, Tables 1-2), one or more terpenes selected from the group consisting of alpha/beta-pinene of claims 58-59 (see Guo, Abstract, Table 1).
If one was to argue that the nut butter replica of Payne does not comprise one or more volatile organic compounds (VOCs) selected from the compounds recited in claims 9-11, 16-17, 19-20, 32-33, 35, 39-40, 42-44, 46-47, 49 and 55-56 above;
Didzbalis teach flavor compositions that can provide and/or enhance a nut flavor [Abstract] in food products such as peanut flavor without ingesting actual peanuts (nut better replica) [Didzbalis, p.5, l.1-3 and p.6, l.12-13], and comprise one or more VOC compounds that include furfural of claim 9 [Didzbalis, p.8, l.9], 2,5-dimethylpyrazine [Didzbalis, p.8, l.7-8] present in an amount of no greater than about 10 ppm of claim 10 [Didzbalis, p.11, l.20-21], one or more of an aldehyde (phenylacetaldehyde) of claim 11 [Didzbalis, p.1, l.31], one or more alcohols of claim 16, selected from the group consisting of furfuryl alcohol of claim 17 [Didzbalis, p.8, l.8], one or more aldehyde of claim 19, selected from the group consisting of phenylacetaldehyde of claim 20 [Didzbalis, p.1, l.31], one or more ketones selected from the group consisting of 2,3-pentanedione of claims 32-33 [Didzbalis, p.1, l.30], in amounts of at least about 0.0001 ppm of claim 35 [Didzbalis, p.11, l.20], one or more phenol selected from the group consisting of 2-methoxy-4-vinylphenol in amounts of at least about 0.05 ppm of claims 39-40 and 42 [Didzbalis, p.11, l.20], one or more pyrazines selected from the group consisting of 2,3-dimethylpyrazine of claims 43-44 [Didzbalis, p.8, l.9], one or more pyridines selected from the group consisting of 2-acetylpyridine [Didzbalis, p.8, l.14] in amounts no greater than about 1.68 ppm of claims 46-47 and 49 [Didzbalis, p.11, l.21], one or more sulfur compounds selected from the group consisting of dimethyl sulfide of claims 55-56 [Didzbalis, p.8, l.22-23].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more volatile organic compounds (VOCs) selected from the groups recited in the claims mentioned above as taught by Didzbalis, into the invention of Payne, since both are directed to methods of making nut flavored products comprising VOCs that are free from tree nuts, peanuts and allergens associated with them [Didzbalis, p.5, l.1-3, and Payne, 0007, 0075]. Doing so would provide flavor compositions that can provide and/or enhance a nut flavor, a flavor composition that comprises aroma compounds (VOCs) that contribute to a nut flavor, methods of producing a food product and/or enhancing a roasted peanut flavor of a food product using the compounds and/or flavor compositions disclosed by Didzbalis [Didzbalis, Abstract].
Regarding claims 71, 73-74, Payne teach the nut butter replica of claim 1, wherein the one or more non-volatile compounds may be an acid (citric acid [0025]), or one or more acid [Payne, claim 6], a sugar and a salt [0026], and a protein [0075].
Regarding claims 82, 83, Payne teach the nut butter replica of claim 1 comprising roasted sunflower seeds, and the evidence of Kaur disclose roasted sunflower seeds [Kaur, Abstract] comprise one or more amino acids selected from the group consisting of phenylalanine, leucine, methionine, aspartic acid, glutamic acid and tyrosine [Kaur, p.2, par.2].
Regarding claim 92, Payne teach the nut butter replica of claim 1, wherein the one or more non-volatile compounds may be a protein [0075].
Regarding claims 94-95, Payne teach the nut butter replica of claim 1 comprising roasted sunflower seeds, and the evidence of Guo disclose that roasted sunflower seeds comprise one or more non-volatile such as 2,3-dimethylpyrazine [Guo, Abstract, p.2, par.4].
Regarding claims 98-99, Payne teach the nut butter replica of claim 1, wherein the one or more non-volatile compounds comprise one or more sugars such as glucose [0026].
Regarding claim 100, Payne teach the nut butter replica of claim 1, wherein the one or more non-volatile compounds comprise one or more polyphenols [0066].
Regarding claims 106-107, Payne teach the nut butter replica of claim 1, wherein the one or more non-volatile compounds comprise cocoa products [0073] such as chocolate [Payne, claim 6].
Regarding claim 111, Payne teach the nut butter replica of claim 1, wherein the solid substrate comprises chickpeas [0017].
Regarding claims 112-113, Payne teach the nut butter replica of claim 1, wherein the nut butter replica further comprises a liquid medium such as water [0037].
Regarding claim 116, Payne discloses blending the nut butter replica comprising roasted oil plant seeds of the invention with oil (a fat) [Payne, 0052, 0077], proteins [Payne, 0075], sugar, and salt [Payne, 0026], and polyphenols [Payne, 0066], which are non-volatiles disclosed in the instant specification (“the isolated non-volatiles include: proteins, fat, sugar, salt, polyphenol” as disclosed on page 29, lines 12-18 and page 31, lines 14-22 (antioxidants i.e., polyphenols) of the instant specification), without requiring nuts [Payne, 0010]. Therefore, the nut butter replica of Payne would comprise less than about 95% or less than about 85% identity of one non-volatile compound in a reference or traditional nut butter, because Payne is disclosing a nut butter replica made out of roasted seed and therefore would necessarily comprise one non-volatile compound with an identity that is less than 95% or less than 85% identity of one non-volatile compound (i.e. 100% different). Additionally, it is noted that since the limitation of a single reference nut butter comprise no specifics of what a single reference nut butter is, making the claim limitation broad as to what it can be construed, and since the claim only requires one non-volatile.
Regarding claim 118-120, Payne teach the nut butter replica of claim 1, wherein the nut butter replica does not comprise tree nut protein allergens, and is a solution, suspension or emulsion such as a nut butter spread [0007, 0075].
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) 13, 14, 16-17, 32-33, 35, 39-40, 42-44, 46-47, 49, 55-56, 63-65, 94-95, 121, and 133 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Didzbalis et al. [WO 2020072957 A1], hereinafter Didzbalis.
Regarding claims 13-14, Payne teach the nut butter replica comprising VOCs of claim 1, but is silent regarding the VOCs comprise one or more acids selected from the group recited in claim 14.
Didzbalis teach flavor compositions that can provide and/or enhance a nut flavor [Abstract] in food products such as peanut flavor without ingesting actual peanuts (nut better replica) [Didzbalis, p.5, l.1-3], and comprise one or more VOC compounds that include one or more acids including acetic acid [Didzbalis, p.2, l.29].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Payne to incorporate the teachings of Didzbalis by including of one or more acids based on the desired flavor of the final product, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073] and other edible acids [Payne, claim 6], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., sour taste) [Didzbalis, p.5, l.26-32].
Regarding claims 16-17, Payne teach the nut butter replica as discussed above in claim 1, and Payne in view of Didzbalis teach the nut butter replica wherein the VOCs comprise one or more alcohols including furfuryl alcohol [Didzbalis, p.13, l.16].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more alcohols into the invention of Payne in view of Didzbalis by including of one or more alcohols to obtain a desired taste, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., roasted taste) [Didzbalis, p.5, l.5, l.28].
Regarding claims 32-33, 35, 39-40 and 42, Payne teach the nut butter replica as discussed above in claim 1, and Payne in view of Didzbalis teach the nut butter replica wherein the aromatic compounds or VOCs comprise one or more ketones including 2,3-pentanedione [Didzbalis, p.1, l.30], and/or 1-octen-3-one [Didzbalis, p.8, l.17], and at least one phenol including 2-methoxy-4-vinylphenol [Didzbalis, p.8, l.6], wherein the one or more VOC compound can be present in the flavor composition in an amount of 0.01 ppm to 4 ppm [Didzbalis, p.11, l.20], which encompass at least 0.0001 ppm of ketones of claim 35 and at least 0.05 ppm of phenols of claim 42.
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more ketones and phenol at the claimed amounts into the invention of Payne in view of Didzbalis by including of one or more selected ketone(s) and or phenol to obtain a desired taste, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., roasted taste) [Didzbalis, p.5, l.5, l.28].
Regarding claims 43-44, Payne teach the nut butter replica as discussed above in claim 1, and Payne in view of Didzbalis teach the nut butter replica wherein the aromatic compounds or VOCs comprise one or more pyrazines including 2,3-dimethylpyrazine [Didzbalis, p.8, l.9], 2,3-diethyl-5-methylpyrazine [Didzbalis, p.2, l.7-8], and 2,3,5-trimethylpyrazine [Didzbalis, p.3, l.10].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more pyrazines into the invention of Payne in view of Didzbalis by including of one or more selected pyrazine(s) to obtain a desired taste, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., roasted taste) [Didzbalis, p.5, l.5, l.28].
Regarding claims 46-47 and 49, Payne teach the nut butter replica as discussed above in claim 1, and Payne in view of Didzbalis teach the nut butter replica wherein the aromatic compounds or VOCs comprise one or more pyridines [Didzbalis, p.8, l.10], including 2-acetylpyridine [Didzbalis, p.8, l.14], wherein the one or more VOC compound can be present in the flavor composition in an amount of 0.01 ppm to 1 ppm [Didzbalis, p.11, l.21], which encompass the claimed no greater than about 1.68 ppm of pyridines of claim 49.
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more pyridines at the claimed amounts into the invention of Payne in view of Didzbalis by including of one or more selected pyridine(s) to obtain a desired taste, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., roasted taste) [Didzbalis, p.5, l.5, l.28].
Regarding claims 55-56, Payne teach the nut butter replica as discussed above in claim 1, and Payne in view of Didzbalis teach the nut butter replica wherein the aromatic compounds or VOCs comprise one or more sulfur compounds including methanethiol, dimethyl trisulfide [Didzbalis, p.2, l.10], and dimethyl sulfide [Didzbalis, p.8, l.22-23].
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more pyridines at the claimed amounts into the invention of Payne in view of Didzbalis by including of one or more selected pyridine(s) to obtain a desired taste, since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide for the modification of flavors [Didzbalis, p.7, l.27-30] and taste profiles (i.e., roasted taste) [Didzbalis, p.5, l.5, l.28].
Regarding claim 63, Payne teach the nut butter replica as discussed above in claim 1, but is silent regarding the VOCs comprising at least 20, 30, 40, or 50 compounds selected from the ones disclosed in claim 63.
Payne in view of Didzbalis teach the nut butter replica as discussed above, wherein the aromatic compounds or VOCs comprise at least 20 compounds including any compound listed in Tables 1-18, p.24-46, any derivative or analog thereof, or any combination thereof [Didzbalis, p.8, l.18-19], wherein the compounds include:
2,3-pentanedione [Didzbalis, Table 1, p.25]
phenylacetaldehyde [Didzbalis, Table 1, p.24]
dimethyl trisulfide [Didzbalis, Table 1, p.25]
2-methoxy-4-vinylphenol [Didzbalis, Table 1, p.25]
nonanal [Didzbalis, Table 1, p.25]
octanal [Didzbalis, Table 1, p.25]
hexanal [Didzbalis, Table 1, p.25]
hexanoic acid [Didzbalis, Table 1, p.25]
2,3,5-trimethylpyrazine [Didzbalis, Table 1, p.25]
oleic acid [Didzbalis, p.8, l.20]
2-acetylpyridine [Didzbalis, Table 1, p.25]
2,5-dimethylpyrazine [Didzbalis, Table 1, p.25]
1-octanol [Didzbalis, Table 1, p.25]
furfural [Didzbalis, Table 1, p.25]
furfurylalcohol [Didzbalis, Table 1, p.25]
2,6-dimethylpyrazine [Didzbalis, Table 4, p.29]
2,3-diethyl-5-methylpyrazine [Didzbalis, Table 7, p.33]
delta-octalactone [Didzbalis, Table 14, p.43]
1-octen-3-one [Didzbalis, Table 6, p.31]
gamma-nonalactone [Didzbalis, Table 4, p.29]
2,3-dimethylpyrazine [Didzbalis, Table 1, p.25]
Regarding claim 64, Payne in view of Didzbalis teach the nut butter replica as discussed above, wherein the aromatic compounds or VOCs comprise at least 10 compounds including any compound listed in Tables 1-18, p.24-46, any derivative or analog thereof, or any combination thereof [Didzbalis, p.8, l.18-19], wherein the compounds include:
2,3,5-trimethylpyrazine [Didzbalis, Table 1, p.25]
2,3-diethyl-5-methylpyrazine [Didzbalis, Table 7, p.33]
2,5-dimethylpyrazine [Didzbalis, Table 1, p.25]
2,6-dimethylpyrazine [Didzbalis, Table 4, p.29]
2,3-dimethylpyrazine [Didzbalis, Table 1, p.25]
dimethyl trisulfide [Didzbalis, Table 1, p.25], (DMTS) as disclosed on p.126, Table 8 of the instant specification.
furfural [Didzbalis, Table 1, p.25]
acetic acid [Didzbalis, Table 1, p.24]
3-methylbutanoic acid [Didzbalis, Table 1, p.25]
dimethyl sulfide [Didzbalis, Table 2, p.26]
It would have been obvious one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed selected VOC compounds of at least 10 or 20 VOCs into the invention of Payne in view of Didzbalis based on the desired flavor of the final product since both Payne and Didzbalis are interested in allergen free butters [Payne, 0007, 0075 and Didzbalis, p.5, l.1-3] having roasted flavors [Payne, 0013], and Payne also teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide and/or enhance nut flavors [Didzbalis, Abstract], and allow the modification of flavors and textures [Didzbalis, p.7, l.27-30]. Doing so would allow the skilled artisan to select combinations of compounds to add to foods by various delivery systems to enhance/impart a peanut flavor [Didzbalis, p.1, l.10-11, Abstract].
Regarding claim 65, Payne teach the nut butter replica (substitute) made from roasted oil plant seeds [Payne, 0013]. As such, the nut butter replica produced from roasted oil plant seeds of Payne, may be considered a nut butter replica comprising volatile compounds that are NOT the same volatile compounds in traditional or reference nut butters and does not require any VOC that is present in traditional nut butter.
Moreover, since the nut butter of Payne is made with roasted oil plant seeds and does not necessarily includes any level of VOCs present in a single reference nut butter, the VOCs in the nut butter replica of Payne would be less than 95% and less than 85% identity to the VOCs in a single reference nut butter (“overall population of VOCs in a nut butter replica have less than 95% or less than 85% identity to the population of VOCs in a corresponding reference nut butter (i.e., single species, variety, etc.…..), disclosed by Applicant on page 58, lines 26-30, and page 59, lines 1-2). A nut butter comprising VOCs that are different from the VOCs in traditional nut butter, wherein said VOCs in the nut butter does not includes any amount/level of a VOC that is present in nut butter (traditional or reference nut butter) would have 0% identity to the VOCs in a single reference nut butter, which satisfies the claimed less than about 95% or less than about 85% identity of VOCs in a single reference nut butter.
Furthermore, the combination of Payne in view of Didzbalis teach the nut butter replica comprising VOCs, wherein Didzbalis teach one embodiment where the nut flavor composition may comprise a first aroma that may comprise a combination of 5 VOCs not present in nut, and a second and third aroma that may comprise each 1 VOC that is present in a nut [Didzbalis, p.1, l.24-32], which would provide less than 95% and less than 85% identity to the VOCs in a nut flavor composition and/or nut butter replica of Payne in view of Didzbalis.
Regarding claims 94-95, Payne in view of Didzbalis teach the nut butter replica as discussed above, wherein the compounds may include any compound listed in Tables 1-18, p.24-46, any derivative or analog thereof, or any combination thereof [Didzbalis, p.8, l.18-19], wherein the compounds comprise one or more pyrazines including 2,3,5-trimethylpyrazine, and 2,3-dimethylpyrazine [Didzbalis, Table 1, p.25].
It would have been obvious one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed pyrazine compounds into the invention of Payne in view of Didzbalis based on the desired flavor of the final product. Doing so would allow the skilled artisan to select combinations of compounds to add to foods by various delivery systems to enhance/impart a peanut flavor [Didzbalis, p.1, l.10-11, Abstract], provide compositions that contributes to nut flavors [Didzbalis, p.8, l.2-3] and flavor compositions and methods for making and modifying such compositions across a variety of food products [Didzbalis, p.1, l.24-25]; since Payne teach that additional ingredients/compounds can be added to modify flavor [Payne, 0073], which when combined with Didzbalis, would further provide and/or enhance nut flavors [Didzbalis, Abstract], and allow the modification of flavors and textures [Didzbalis, p.7, l.27-30].
Regarding claim 121, Payne teach the nut butter replica as discussed above in claim 1 rejection but does not explicitly teach the nut butter replica is soluble in water.
Payne in view of Didzbalis teach the nut butter replica as discussed above, wherein the peanut flavor composition can be in the form of liquid, solution, powder, spray, paste or suspension [Didzbalis, p.6, l.10-12], that can be dissolved in liquids such as water (equivalent to water soluble as claimed) [Didzbalis, p.19, l.14-16].
It would have been obvious one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed water-solubility into the invention of Payne in view of Didzbalis based on the particular application in which the flavor composition is being used (i.e., food or medicinal products) [Didzbalis, p.19, l.12-14]. Doing so would provide the skilled artisan innumerable ways to apply and/or combine the flavor composition directly to a variety of products and/or to precursors of comestible or medicinal products [Didzbalis, p.19, l.22-23].
Regarding claim 133, Payne teach the nut butter replica as discussed above in claim 1 rejection, but does not explicitly teach the one or more VOCs are present in the nut butter replica in a total amount of at least 100 ppm.
Payne in view of Didzbalis teach the nut butter replica may comprise one or more VOCs [Didzbalis, p.2, l.23-33], and wherein the one or more VOC compound may be present at concentrations of from 0.01-1000 ppm or 100-1000 ppm or any intermediate value thereof [Didzbalis, p.11, l.13-14, l.27-29].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed isolated VOCs in a reference nut butter in an amount of at least 100 ppm into the invention of Payne, in view of Didzbalis, since both are directed to methods of making nut flavored products comprising VOCs. Doing so would provide flavor compositions that can provide and/or enhance a nut flavor, a flavor composition that comprises aroma compounds (VOCs) that contribute to a nut flavor, methods of producing a food product and/or enhancing a roasted peanut flavor of a food product using the compounds and/or flavor compositions disclosed by Didzbalis [Didzbalis, Abstract].
Claim(s) 22-28, 36-37, 58-59, 69, 75-77, 82-83, 88-89 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Yontz [US 20110274643 A1], evidenced by NIST Chemistry WebBook: N,N-dimethyl-methylamine, (used for trimethylamine and N,N-dimethyl-methylamine synonyms in claim 23, attached to previous Office Action).
Regarding claims 22-28, 36-37, 58-59, 69, 75-77, 82-83, and 88-89, Payne teach the nut butter replica comprising VOCs of claim 1, but does not explicitly recites the VOCs comprise one or more amines as required by claim 22, one or more amine selected from the group of amines in claim 23, or one or more benzenes (claim 24), selected from the group of benzenes in claim 25, one or more esters selected from the group of esters in claims 26-27, wherein the nut butter replica comprises at least about 0.005 ppm of esters (claim 28), or one or more lactones selected from the group of lactones claimed in claims 36-37, or one or more terpenes selected from the group of terpenes as required by claims 58-59, or wherein the one or more isolated non-volatile compound comprise at least one compound of the ones recited in claim 69, or one or more non-volatile aldehyde (claim 75) said aldehyde comprising vanillin (claim 76), or one or more amino acids (claim 82) selected from the group recited in claim 83, or one or more lactones, wherein the lactone is sotolon (claims 88-89).
Yontz teach fragrant formulation comprising a fragrant composition [Abstract], wherein said fragrant composition comprises at least one fragrant compound also referred to as a fragrant molecule and fragrant molecule is also referred to as an aroma compound (VOC) [0064]. The fragrant molecules (VOCs) of the invention may include one or more amines including trimethylamine which is also known by the name of N,N-dimethyl-methylamine (see NIST, page 1, other names) [0067], for claims 22-23. The fragrant formulation of Yontz may be used as flavorant in foods [0061]. The fragrant formulation is a fragrant composition with an additional solvent [0016], wherein said additional solvent may be benzene and/or toluene [0070], for claims 24-25. Further, as discussed above, fragrant composition refers to fragrant compound such as a single or combination of aroma compounds (VOCs) [0013], also referred to as fragrant molecules [0064], and these fragrant molecules present in the fragrant formulation of Yontz may be one or more esters such as benzyl benzoate [0068-0069], hexyl acetate, methyl butyrate, and isoamyl acetate as claimed [0067], for claims 26-27. The fragrant composition, known as the aroma compound (VOC) [0013], which includes the one or more esters, may be present in the formulation in amounts of about 0.001 to 10 wt% (10 ppm to 100000 ppm) [0056], which encompass the claimed “at least about 0.005 ppm of esters” of claim 28. Yontz also teach the VOCs may comprise one or more lactones including gamma-decalactone, massoia lactone and/or sotolon [0067], for claims 36-37, and one or more terpenes including limonene, linalool and indole [0067], for claims 58-59. Yontz further teach the fragrant molecules may comprise benzaldehyde [0067] and glucosamine [0072], for claim 69. The fragrant formulation may comprise aldehydes such as vanillin [0067-0068], for claims 75-76, where these aldehydes or vanillin are referred to as “fragrant composition” and/or “aroma compound” [0013] as previously discussed, and may be present in the formulation in amounts of about 0.001 to 10 wt% (10 ppm to 100000 ppm) [0056], which encompass the claimed “at least about 0.001 ppm of aldehydes” of claim 77. The fragrant formulation may also comprise amino acids such as glucosamine, glycine, arginine, lysine, proline, glutamine, histidine, serine, glutamic acid, tryptophan alone or in combination [0072]. As mentioned above, the composition may comprise lactones including sotolon [0067], as required by claims 88-89.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more amines, benzenes, esters in the claimed amounts, lactones (sotolon), terpenes, non-volatiles, glucosamine, aldehydes, vanillin, amino acids into the invention of Payne, in view of Yontz, since all are directed to methods of making aromas or VOC-containing food products, since Payne express interest in roasted flavors produced by roasting sunflower seeds [Payne , 0013], and Yontz also express interest in roast (burnt) aroma and flavor [Yontz,0067]. Doing so would provide methods and products that can alter the flavor of foods by using natural or artificial flavors [Yontz,0003], and/or alter the smell of a food product while keeping its original taste [Yontz,0004-0005]. It would also provide solvents that are suitable for solubilizing or compatibilizing various components in the fragrance formulation, or other ingredients useful for making a final product that meets the desired performance criteria [Yontz,0008]. It would also provide lactones with different flavor and odor profiles such as creamy and sweet coconut, maple and peach flavors and odors and/or terpenes with floral, sweet, woody aroma/flavors [Yontz,0067].
Claim(s) 29-30, 50-51, 53-54, 66-67, 84-85, 86-87, 115 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Kawasaki [JP 2006025706 A].
Regarding claims 29-30, 50-51, 53-54, 84-85, 86-87, and 115, Payne teach the nut butter replica as discussed above but is silent regarding the VOCs comprising one or more furans as required by claim 29, selected from the group of furans in claim 30, or VOCs comprising one or more pyrroles (claim 50), wherein the pyrroles comprise at least one of the specific pyrroles from claim 51, or one or more sugars or sugar alcohols (claim 53), wherein the sugar or sugar alcohols are ethyl maltol and maltol (claim 54), or one or more furans (claim 84) such as hydroxymethylfurfural (claim 85), or one or more ketones (claim 86) selected from the group disclosed in claim 87, or at least 5 or at least 10 compounds from the group recited in claim 115.
Kawasaki teach a nut-like (nutty) or nut flavor composition obtained by combining various flavor imparting compounds including furans [Abstract], such as 2-ethylfuran, [0036] and one or more pyrroles including indole, 2-acetylpyrrole, 2-acetyl-1-methylpyrrole [0030], and one or more sugar or sugar alcohols including maltol and ethyl maltol [0024]. The nut flavor composition may also comprise acids [Abstract], such as salicylic acid, 3,4-dihydrobenzoic acid, vanillic acid and pyruvic acid [0025-0026], and one or more furans such as hydroxymethylfurfural [0036], and one or more ketone including 2(5H)-furanone [0036]. The nut flavor composition may comprise at least 5 non-volatile compounds such as 1) vanillin [0021], 2) vanillic acid [0025], 3) 2,3-dimethylpyrazine [0031], 4) 2,3,5-trimethylpyrazine [0031], and may be used in food products as seasonings with other ingredients such as acidulants including 5) citric acid [0041].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more furans and/or pyrroles and/or sugars or sugar alcohols and/or acids and/or hydroxymethylfurfural and/or 2(5H)-furanone and/or at least 5 non-volatile compounds into the invention of Payne, in view of Kawasaki, since all are directed to methods of making VOC-containing nut flavored food compositions, since Payne express interest in roasted nuts flavors [Payne, 0013, claim 2], and Kawasaki also express interest in nut flavor compositions [Kawasaki, Abstract]. Doing so would provide methods to produce flavored food products and products with nut flavors that solves problems in which conventional nut-like flavor composition con not satisfy such as masking and/or improving the flavors of raw materials used for foods [Kawasaki, Abstract].
Regarding claims 66-67, Payne teach the nut butter replica made with roasted oil plant seeds which comprise various VOCs that may or may not be the same VOCs present in nuts (peanuts), but does not explicitly recites the nut butter replica comprises at least 71 VOCs wherein no more than 70 of the VOCs are found in a single reference nut butter (claim 66), or wherein the nut butter replica comprises at least 51 VOCs wherein no more than 50 of the VOCs are found in a single reference nut butter (claim 67).
Kawasaki teach the nut-like or nut flavor composition as discussed above and further teach that the nut-flavor composition may comprise various VOCs including at least 71 VOCs or at least 51 VOCs as claimed [Kawasaki, 0019-0036], where VOCs that are not found in a single reference nut butter such as isopropenylpyrazine [0031], and gamma-decalactone [0028] are included (as disclosed on pages 126-127 of Table 8 of the instant specification where isopropenylpyrazine and gamma-decalactone are not present or found in any of the reference nut butter samples 1-7 and 9-16, and as disclosed on page 41, lines 24-30 of the instant specification).
Further regarding VOCs not found in a single reference nut butter, Kawasaki teach VOCs that are not present in a corresponding reference nut butter such as delta-hexalactone [0029], and eugenol [0035] (as disclosed on page 41, lines 24-30 of the instant specification), may be present in the nut flavor composition. Therefore any composition comprising 71 VOCs or 51 VOCs and including one or all 4 of the VOCs not present in a nut butter reference would produce a nut butter replica with 71 VOCs where no more than 70 VOCs (70-67 VOCs) are found in a single reference nut butter (as required by claim 66), or a nut butter replica with 51 VOCs where no more than 50 VOCs (50-47 VOCs) are found in a single reference nut butter (as required by claim 67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed VOC compositions into the invention of Payne, in view of Kawasaki, since Payne express interest in roasted nuts flavors [Payne, 0013, claim 2], and Kawasaki also express interest in nut flavor compositions [Kawasaki, Abstract], and since the amount of flavoring added to the nut-flavor composition may be selected depending on the nut flavor of interest, the target food or preference [Kawasaki, 0038]. Doing so would provide methods to produce flavored food products and products with nut flavors that solves problems that conventional nut-like flavor compositions cannot satisfy such as masking and/or improving the flavors of raw materials used for foods [Kawasaki, Abstract].
Claim(s) 61, 78-79, 96-97 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Kunieda [US 20060159818 A1].
Regarding claims 61, 78-79, 96-97, Payne teach the nut butter replica as discussed above but is silent regarding the VOCs comprising one or more thiophenes (claim 61), or one or more alkaloids (claim 78) such as piperine (claim 79), or one or more pyridines (claim 96), wherein the one or more pyridine comprise at least one pyridine selected from the group consisting of pyridine and pyroxidine, or a combination thereof (claim 97).
Kunieda teach a flavor enhancer and method of flavor enhancement for foods using the flavor enhancer [Abstract]. The flavor enhancer may comprise a flavor and/or spice (referred to as component (C)) [0036], wherein said component (C) may be an aroma compound such as thiophene (claim 61) [0049], and/or an alkaloid such as piperine (claims 78-79) [0020], and/or pyridine (claims 96-97).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more thiophenes and/or alkaloids such as piperine and/or pyridine into the invention of Payne, in view of Kunieda, since all are directed to methods of making VOC-containing food compositions and flavor modification of foods with aroma or volatile compounds, since Payne express interest in nut flavors [Payne, claim 2], and Kunieda also express interest in nut flavor compositions [Kunieda, 0049-0050]. Doing so would provide methods to enhance food flavors [Kunieda, Abstract], and products with nut flavors such as hazelnut, almond, walnut, pecan, and macadamia nuts [Kunieda, 0049], and other nut flavors without limitations of the examples provided in Kunieda’s disclosure [Kunieda, 0050].
Claim(s) 62 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Yao [Brew methods effect on coffee flavor and aroma, 2017].
Regarding claim 62, Payne teach the nut butter replica as discussed above but is silent regarding the nut butter replica comprising 2,7-dimethyl-oxepine.
Yao teach how brew methods influence coffee aroma and flavor [Yao, Abstract], and that more than 1,500 distinct chemical compounds responsible for flavor and aroma can be extracted (isolated) from coffee beans, where these compounds are volatile (VOCs) and non-volatile compounds [Yao, p.11]. The VOCs are classified as sulphur compounds, pyrazines, pyridines, pyrroles, oxazoles, furans, aldehydes, ketones and phenols [Yao, p.12, Table 2.1], wherein said VOCs influence the aroma and are responsible for all flavor attributes other than the basic taste attributes caused by non-volatile compounds [Yao, p.12]. Yao disclose that the roasting process of coffee beans controls the developmental progress of the VOCs [Yao, p.12], where some of the VOCs are characterized by having a nutty and/or peanut aroma and flavor attributes [Yao, p.32], including nutty roasted [Yao, p.73, Table 4.9], as well as specific nut flavors such as roasted peanuts and/or peanut-like [Yao, p.23, Table 2.2], with 2,7-dimethyl-oxepine being associated with a nutty aroma [Yao, p.81].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed 2,7-dimethyl-oxepine VOC into the invention of Payne, in view of Yao, since all are directed to VOC-containing food compositions and flavor/aroma influence/modification methods in foods with aroma or volatile compounds [Yao, Abstract]. Doing so would provide nut flavored compositions and methods to produce nut flavored food products by providing VOCs that have different nut flavors according to the selected individual VOC, since Yao teach isolation, identification, quantification and collection of VOCs by gas chromatography (GC) to isolate VOCs into individual compounds and mass spectrometry (MS) to identify the compound chemical structure and characterize the aroma/flavor associated with each individual VOC [Yao, p.29-30 and p.18], which would allow a skilled artisan in the field of flavor and aroma compositions from VOCs the ability to select the VOC with the desired flavor/aroma characteristic such as 2,7-dimethyl-oxepine which is associated with a nutty aroma as taught by Yao [Yao, p.81], and since Payne already express interest in providing nut flavors [Payne, claim 2].
Claim(s) 70, 80-81, 101, 114, 117 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payne, or, over Payne in view of Didzbalis as applied to claim 1 above, and further in view of Whittinghill et al. [US 20120177798 A1], hereinafter Whittinghill.
Regarding claims 70, 80-81, 101, Payne teach the nut butter replica comprise polyphenols [Payne, 0066] as discussed above but is silent regarding the nut butter replica comprising one of the options of claim 70 in any combination with their respective ppm amounts (claim 70), or one or more amines (claim 80) such as tryptamine (claim 81), or wherein the one or more isolated non-volatile compounds comprise one or more tannins, phenols, polyphenols, or anthocyanins selected from the group consisting of the compounds recited in claim 101.
Whittinghill teach compositions and methods for producing enriched shortening compositions and nut butters [Title and Abstract]. The disclosure teach one of the embodiments wherein the nut butter or shortening composition may include at least one stabilizing agent such as an antioxidant, wherein said stabilizing agent is selected from a group that includes chlorogenic acid, propyl gallate, hesperetin and caffeic acid, and may be present in an amount of from less than 0.01% (less than 100 ppm) by weight of enriched soybean oil [0040, 0029], and may also comprise at least one additional antioxidant stabilizer(s) alone or in combination, including chlorogenic acid, propyl gallate, hesperetin and caffeic acid, in amounts from about 0.001% (10 ppm) to 5% by weight or 0.01% (100 ppm) to 1% by weight [0034], which encompass the claimed ppm range of at least about 0.08 to at least about 32 ppm of claim 70. The shortening composition and/or nut butter may also comprise amine(s) such as tryptamine as stabilizing agent [0029, 0034, 0040] (as claimed in claims 80-81). Whittinghill teach one of the embodiments wherein the nut butter may include at least one stabilizing agent such as an antioxidant, selected from a group that includes catechin, ellagic acid, epicatechin, epicatechin gallate, gallic acid, hesperetin, methyl gallate, propyl gallate, quercetin, resveratrol, syringic acid, and/or tyramine [0040], (as claimed in claim 101).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed one or more compounds alone or in combination at the claimed amounts from claim 70 and/or amines such as tryptamine and/or at least 10 non-volatile compounds into the invention of Payne, in view of Whittinghill, since all are directed to methods of making VOC-containing food compositions and flavor modification of foods with aroma or volatile compounds [Whittinghill, 0098], since Payne already teach the composition comprises polyphenols [Payne, 0066] and providing nut flavors [Payne, claim 2]. Doing so would provide compositions and methods to produce shortening compositions and nut butters [Whittinghill, Abstract], wherein the at least one antioxidant/stabilizer is added in a suitable amount to prevent oxidation of the stearidonic acid enriched soybean oil [Whittinghill, 0033], which would aid in producing food products with increased amounts of omega-3 fatty acids (n-3 PUFAs) that retain the taste, structure and aroma of typical food products [Whittinghill, 0098], as well as food products with roast aromatic characteristics [Whittinghill, 0119], which are associated with roasted nutmeat having toasted characteristics of dark roasted nuts [Whittinghill, Table 15, p.16, “Dark roasted” attribute, definition and References].
Regarding claim 114, modified Payne teach the nut butter replica comprising one or more isolated non-volatile compounds as discussed above but is silent regarding the non-volatile compounds comprise at leas