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 .
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.
Claims 1, 3, 5, 6, 8-10, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Shigemura USPN 9072313 and Mutka USPN 6607778 with evidence provided by TGSC (https://www.thegoodscentscompany.com/data/rw1590361.html), HMDB (https://www.hmdb.ca/metabolites/HMDB0031306) and Embuscado, Milda E. (2014).Functionalizing Carbohydrates for Food Applications - Texturizing and Bioactive/Flavor Delivery Systems. DEStech Publications., Table 5.11. Retrieved 11/23/24 from https://app.knovel.com/hotlink/itble/rcid:kpFCFATBF7/id:kt012QQVOF/functionalizing-carbohydrates/table-5-11-properties.
Regarding claims 1 and 8, Shigemura teaches a flavoring particle composition that can be simply mixed as a solid with other flavoring ingredients to produce a flavor powder. (Col. 38, lines 22-29)
Shigemura teaches a composition (Ex. 1) comprising:
A first particle comprising (Ex. 1):
First oil: Neobee M-5 medium chain triglyceride (Col. 85, lines 34-42)
Flavor (compound 1)
Carrier: starch (Col. 85, lines 47-55)
Flavor compound 1 (N-(heptan-4-yl)benzo[d][1,3]dioxole-5-carboxamide) of Shigemura has a boiling point of 378-379°C (See TGSC) and is interpreted to be oxidation susceptible since it would degrade if subjected to oxidation. Therefore, all of the components of the flavor oil of Shigemura are oxidation susceptible and have a boiling point higher than 100°C as recited for the second particle of claim 1.
Shigemura is silent regarding particles having a composition that reads on the first particles recited in claim 1.
Mutka teaches a solid delivery system for volatile aromatic components comprising aromatic compounds such as 3-hydroxy-4,5-dimethyl-2(5H)-furanone (sotolone, b.p. 93-95°C, see HMDB) in amount of up to 60% by weight of the dried extruded product. (Col. 12, lines 9-54) The particles of Mutka comprise a carrier such as sucrose, glucose, lactose, levulose, fructose, maltose, ribose, dextrose, isomalt, sorbitol, mannitol, xylitol, lactitol, maltitol, pentatol, arabinose, pentose, xylose, galactose, hydrogenated starch hydrolysates, maltodextrin, preferably a maltodextrin having a dextrose equivalent not above twenty (≤20 DE) and more preferably a DE of 18. (Col. 7, lines 13-30) The particles of Mutka read on the first particles recited in claim 1.
Shigemura and Mutka are both directed to particles comprising flavorant. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have mixed the flavor particles of Mutka with the flavor particles of Shigemura to form a blended flavor composition since Shigemura explicitly recognizes the utility of mixtures of flavors. Additionally, as stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
The obvious combination of the particles of Shigemura with the particles of Mutka would have produced a particle delivery system with a distinct sensory profile. While Shigemura is silent regarding twin-screw extrusion or melt-extrusion as recited in claim 1, these limitations are merely product-by-process limitations recited in such little detail as to fail to impart any materially distinguishing characteristics to the claimed particles. (See MPEP 2113) Therefore, the modification of Shigemura with Mutka renders obvious the composition recited in claims 1 and 8.
Regarding claim 3, Shigemura discloses an exemplary carrier of 10 DE maltodextrin (Col. 86, lines 19-24) and Mutka discloses 18 DE maltodextrin as a carrier (Col. 7, lines 13-30).
Embuscado evidences that 10 DE maltodextrin has a molecular weight of 1800 g/mol and 18 DE maltodextrin has a molecular weight of 1000 g/mol.
Therefore, the modification of Shigemura with Mutka encompasses embodiments where the molecular weight of the first and second carriers fall within the ranges recited in claim 3. 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05 I)
Regarding claim 5, sotolone is a furanone-ketone.
Regarding claim 6, flavor compound 1 of Shigemura is a ketone.
Regarding claims 9 and 10, the disclosure of mixtures of particles in Shigemura is effectively a disclosure of mixtures comprising greater than 0-100% of the particles of Shigemura with the remainder being the other particles that mixed. These proportions encompass the proportions recited in claims 9 and 10. 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Regarding claims 13 and 14, Shigemura teaches making a sausage with the disclosed particle mixture which is a savory consumer product as recited in claims 13 and 14. (Table 36-3a) Sotolone was known to impart maple syrup flavor which is a known flavor desired in sausage. Therefore, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the combination of Shigemura and Mutka in a savory good as claimed.
Response to Arguments
Applicant's arguments filed 6 March 2026 have been fully considered but they are not persuasive.
Applicant asserts on page 5 of the remarks that the cited references fail to disclose combinations of particles wherein “each of which is engineered for different classes of flavor oils and produced by different extrusion technologies to address different degradation mechanisms”. This assertion has no relevance to the instantly pending claims as there are not pending limitations commensurate with these assertions.
In response to applicant's arguments against the references individually on page 6 of the remarks, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant’s remarks regarding motivation on pages 6 and 7 of the remarks fail to address the merits of the rejection which relied on the established legal standard of In re Kerkhoven which states “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.”
Applicant assertions on page 7 of the remarks regarding product-by-process limitations are not persuasive as any distinction regarding citrus oils is not germane as no claim presently recites citrus oil. While different extrusion methods may influence specific flavor oils, the instant claims do not recite the flavor oils claimed with any specificity commensurate with any demonstrated difference.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Michele L Jacobson/Primary Examiner, Art Unit 1793