DETAILED ACTION
Background
The amendment dated May 19, 2026 (amendment) adding new claim 21 has been entered. Claims 1-9 and 11-21 as filed with the amendment have been examined..
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 § 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 14 and 18 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.
In claim 14, at lines 6-7, the claim recites “iv. preferably at least 1 mg/g of pyroglutamate” and “v. preferably at least 1 mg/g of cyclo-cysteinyl-glycine”. The phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 18 is rejected as depending from a rejected base claim.
The Office interprets the claim as reciting a natural flavoring composition comprising the claimed at least 1 mg/g of pyroglutamate and at least 1 mg/g of cyclo-cysteinyl-glycine.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 4-8 and 13-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-2, 4-6 and 9 of copending Application No. 17/283,065 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of both applications recite a method for the preparation of a flavouring by providing a reaction mixture of the same yeast extract, at least 2 wt.% of the same mineral acid or organic acid, which overlaps the at least 1 wt.% recited in claim 1; at least 10 wt.% of water, which lies within the recited from 0 to 20 wt% in claim 1, and heating at temperatures of 90 to 160 °C, which overlaps the claimed 150 to 220 °C for overlapping periods of time including from 1 to 15 minutes. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, the Office considers any mixing as “shear” and kneading as claim 1 recites shear and kneading, without more.
The process of the copending application would in turn provide the composition of claims 13 and 14 in the instant application.
Regarding claims 2 and 4-5, claim 2 of the reference application corresponds to claim 2, claim 4 of the reference application corresponds to claim 4, claim 5 of the reference application corresponds to claim 5.
Regarding claims 6-7, claim 6 of the reference application reciting 2 wt.% or more of an organic acid lies within the claimed at least 1 wt.% of an organic acid. See MPEP 2144.05.I.
Regarding claim 8, claim 9 of the reference application recites a pH of 4-5 that lies within the claimed pH of 3.5 to 6.0.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-9, 11-17 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0165304 A1 to Kortes et al. (Kortes) in view of WO 2016/185233 to Cepanec et al. (Cepanec), US 3,645,753 to Gasser (Gasser) and US2016/0249649 A1 to Kortes et al. (Kortes ‘649), all of record.
Unless otherwise stated, all percent units (%) are read as weight percent (wt%), and mass % is read as interchangeable with weight %.
Regarding the instant claims 1-3, 5, 9, 11 and 13, Kortes at Abstract discloses a method to produce a food or feed flavour (“natural flavouring composition”- claim 13) comprising incubating a composition comprising a cysteine and/or glutathione under conditions of temperature and reaction time sufficient for the feed or food flavour to develop (claim 9). In Example 1 at [0025]-[0027] and accompanying Table 1, Kortes discloses a method of extruding (claim 11) a reaction mixture of 20 parts of a yeast extract (“second yeast extract” in claims 2 and 3) containing 15 wt% glutathione (claim 5 as a “thiol containing compound” in claims 1, 2 and 3), based on the dry matter weight of the yeast, and 78 parts of a yeast extract sold as GISTEX LS powder (“first yeast extract”) in a reaction mixture containing 1 wt% water. Kortes discloses extruding (“incubating the reaction mixture wherein shear is applied to the reaction mixture”) for 1 minute at 175°C and 180°C in a twin screw extruder to make a natural flavouring composition as a chicken flavor. the Office considers the claimed incubating the reaction mixture for a time t (minutes) according to the formula: t= 240000۰℮-bT where: 150°C < T < 220°C, and 0.062 < b < 0.072 which converts to incubating for about 0.031 to about 21 minutes to include the 1 minute incubation disclosed in Kortes at Example 1. Moreover, Kortes discloses at [0017] that at higher incubation temperatures the incubation time be shorter in order to obtain the desired food or feed flavour, whereas at lower incubation temperatures of (at [0014]) as low as 140 °C the incubation time may be longer than in Example 1 in order to obtain the desired composition. Further, Example 1 in Kortes does not comprise a step of adding a reducing sugar in addition to the yeast extract.
Further and regarding instant claims 4, 6-8 and 16-17, Kortes does not disclose a method for preparing a flavouring wherein the reaction mixture comprises at least 1 wt.% of a mineral acid or organic acid (claims 1 and 7), by weight of the reaction mixture; further, Kortes does not disclose that its first yeast extract comprises at least 0.5 wt.% of glycosylamine as in claims 1 and 2 or that it comprises at least 5 wt.% glycosylamine as in claim 3; still further, Kortes does not disclose that its compositions comprise a glycosylamine and/or derivatives thereof comprising a ribose moiety as in claim 4; yet still further, Kortes does not disclose a reaction mixture comprising at least 1 wt.% of an organic acid, wherein the organic acid has a first dissociation constant (pKa) at 25°C in water of 4.35 or less as in claim 6; yet even still further, Kortes does not disclose an incubated reaction mixture that has a pH wherein a 1 wt.% solution of said composition in water also comprising 0.5 wt.% of sodium chloride has a pH in the range of 3.5 to 6 at 20 °C as in claim 8. And, Kortes does not disclose a reaction mixture comprising an organic acid taken from the group consisting of lactic acid, citric acid, malic acid, tartaric acid, succinic acid and ascorbic acid as in claim 16.
In addition, Kortes does not disclose a yeast extract that comprises at least 20 mg/g of ribonucleotides, at least 20 mg/g of organic acids, and at least 0.1 mg/g of glutathione, and to have a pH wherein a 1 wt.% solution of said composition in water also comprising 0.5 wt.% of sodium chloride has a pH in the range of 3.5 to 6 at 20 °C as in claim 14; and, Kortes does not disclose a method wherein the glycosylamine or its derivatives are selected from a ribonucleotide, a ribonucleoside or combinations thereof as in claim 17.
Cepanec at the Abstract on page 1 discloses an umami and kokumi flavor enhancer comprising one or more yeast extracts and/or hydrolyzed vegetable protein as source of natural glutamic acid, one or more yeast extracts as source of natural 5'-ribonucleotides, and a yeast extract as source of natural glutathione, wherein at Table 5 on page 23, Cepanec discloses a yeast extract based on ribonucleotides. The Office considers the claimed yeast extract comprising at least 0.5 wt.% of glycosylamine in claims 1 and 2, and the yeast extract comprising at least 5 wt.% glycosylamine in claim 3 as including the yeast extract containing ribonucleotides disclosed in Cepanec.
Gasser at Abstract discloses a meat-flavored composition made by heating together a yeast autolysate (“yeast extract”) and lactic acid with vegetable protein hydrolysate. At col. 1, lines 13-28, Gasser discloses a method of heating a reaction mixture of 40-50 parts by weight (pbw) of the yeast extract, 30 to 40 parts of the vegetable protein hydrolysate and 0.9 to 2.7 pbw of the lactic acid in about 10 to 30 pbw of water in a total mixture, which the claimed at least 1 wt% of a mineral acid or organic acid in the reaction mixture overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Gasser would have found it obvious to use the claimed amount of lactic acid to make its meat flavouring because Gasser discloses that the claimed amount of lactic acid provides a desirable flavouring composition when heated in water with a yeast extract.
Kortes ‘649 at the Abstract on page 1 discloses a flavoring comprising a mixture of one or more yeast extracts comprising autolyzed and/or hydrolyzed yeasts, wherein at [0014] the autolyzed yeast is a source of amino acids, and, at [0015] and [0107], hydrolyzed yeast extract is a source of nucleotides as ribonucleotides which provide an umami flavor or improved mouthfeel. Further, at [0020] Kortes ‘649 discloses incubating its mixture in an extruder, such as a twin-screw extruder. And, at [0075]-[0076] Kortes ‘649 discloses kneading and heating its mixture at a temperature of from 110 to 190 °C. The Office considers the claimed yeast extract comprising at least 0.5 wt.% of glycosylamine in claims 1 and 2, and the yeast extract comprising at least 5 wt.% glycosylamine in claim 3 as including the hydrolyzed yeast extract containing ribonucleotides disclosed in Kortes ‘649.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Cepanec for Kortes to include in its reaction mixture a yeast extract comprising at least 0.5 wt.% glycosylamine and at least 5 wt.% glycosylamine as in claims 1-3, wherein the glycosylamine contains a ribose moiety in claim 4, and wherein the glycosylamine is a ribonucleotide, a ribonucleoside or their combination as in claim 17. Both references disclose methods for preparing a flavouring comprising mixing a reaction mixture comprising a yeast extract comprising glutathione and a second yeast extract. The ordinary skilled artisan working in Kortes would have desired to include a yeast extract comprising at 0.5 wt.% and at least 5 wt.% of a ribonucleotide as in Cepanec in addition to its yeast extract having glycosylamine and ribonucleotides to form a flavoring composition having improved umami and kokumi flavor.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Gasser for Kortes to include the claimed amount of at least 1 wt% of lactic acid or an organic acid in its reaction mixture. Both references disclose natural flavouring compositions and methods of making them from yeast extracts by reacting them in water with hydrolyzed compositions comprising amino acids. The ordinary skilled artisan in Kortes would have desired to include the lactic acid of Gasser to hydrolyze its yeast extract in incubation to improve the meat like flavor of its natural flavouring composition.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kortes ‘649 for Kortes to knead its natural flavoring composition because both references disclose combining mixtures in a twin-screw extruder. Further, Kortes ‘649 at [0075] characterizes such mixing from Kortes at Example 1 as kneading.
Further regarding instant claims 6 and 8, the Office considers the claimed reaction mixture at the incubation temperature of 150 to 220 °C and comprising at least 1.0 wt.% of an organic acid as including the extruded or incubated reaction mixture of Kortes as modified by Gasser and Cepanec. Absent a clear showing as to how the organic acid in the flavouring composition of the art the differs from that of the flavouring composition as claimed, the Office considers the flavouring composition of Kortes Example 1 as modified by Gasser at Abstract and Cepanec at Table 5 on page 23 containing at least 1.0 wt.% lactic acid to comprise an organic acid having a first dissociation constant (pKa) at 25°C in water of 4.35 or less as in claim 6, and to have the claimed pH wherein a 1 wt.% solution of said composition in water also comprising 0.5 wt.% of sodium chloride has a pH in the range of 3.5 to 6 at 20 °C as in claim 8. See MPEP 2112.01.I.
Regarding instant claims 12 and 15, the Office considers the reaction mixture to be plasticized as claimed in claim 12 and the natural flavouring composition product to be in a glassy state as claimed in claim 15 when the yeast extract containing reaction mixture as in Example 1 of Kortes is subject to heated extrusion and kneading.
Regarding instant claim 14, the reaction mixture of Kortes in Example 1 as modified by Gasser at Abstract to include the lactic acid and the yeast extract comprising a ribonucleotide of Table 5 of Cepanec to be substantially the same thing as the reaction mixture of claim 1 and, further, considers the incubating in Example 1 of Kortes and the method as claimed in claim 1 as being substantially the same method. Accordingly, absent a clear showing as to how the pH and the contents of the natural flavouring composition of the art the differs from that of the natural flavouring composition as claimed, the Office considers the natural flavouring composition of Kortes (Example 1) as modified by Cepanec to comprise a yeast extract that comprises at least 20 mg/g of ribonucleotides, at least 20 mg/g of organic acids, and at least 0.1 mg/g of glutathione, and to have a pH wherein a 1 wt.% solution of said composition in water also comprising 0.5 wt.% of sodium chloride has a pH in the range of 3.5 to 6 at 20 °C. See MPEP 2112.01.I.
Regarding instant claims 19 and 20, the Example 1 composition of Kortes and the reaction mixture of Example 1 of Kortes as modified by Cepanec to include lactic acid does not include any reducing sugars. Accordingly, the Office considers the claimed method wherein substantially no Maillard reactions occur during the incubating of step (ii) as in claim 19 and the method wherein the reaction mixture is substantially free from Maillard precursors that are capable of undergoing a Maillard reaction with the thiol containing compounds as in claim 20 to include the reaction mixture of Kortes as modified by Cepanec.
Regarding instant claim 21, the Office considers the method of making a natural flavoring composition of Kortes as modified by Gasser, Cepanec and Kortes ‘649 as being substantially the same thing as the claimed method. Accordingly, absent a clear showing as to how the method of Kortes at Example 1 as modified by Gasser (Abstract and col. 1, lines 13-30), Cepanec at Table 5 on page 23 and Kortes ‘649 at [0075]-[0076] differs from that as claimed, the Office considers the method of Kortes as modified by Gasser, Cepanec and Kortes ‘649 to comprise a method wherein the reaction mixture is kneaded in step (ii) with an applied torque of from 1.2 to 4.9 Nm as in claim 10. See MPEP 2112.01.I
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over US 2011/0165304 A1 to Kortes et al. (Kortes) in view of WO 2016/185233 to Cepanec et al. (Cepanec), US 3,645,753 to Gasser (Gasser) and US2016/0249649 A1 to Kortes et al. (Kortes ‘649), as applied to claim 14 above, as evidenced by JP 38161277 B2 to Nishimura et al. (Nishimura), of record.
As applied to claim 14, Kortes at Example 1 as modified by Gasser (Abstract and col. 1, lines 13-30), Cepanec at Table 5 on page 23 and Kortes ‘649 at [0075]-[0076] discloses a natural flavoring composition made by a method of shearing and kneading a reaction mixture of a yeast extract comprising glutathione or thiol compounds and glycosylamine, the flavouring composition comprising a ribonucleotide, organic acids and.
Kortes as modified by Gasser, Cepanec and Kortes ‘649 does not disclose a natural flavoring composition wherein a yeast extract comprises at least 1 mg/g of a pyroglutamate and at least 1 mg/g of cyclo-cysteinyl-glycine.
Nishimura at [0001] on page 1 discloses a natural food material made by subjecting a yeast extract containing glutathione to heat treatment. At [0011] on page 3, Nishimura discloses that glutathione is N- (N-γ-L-glutamyl-L-cysteinyl) glycine; and, at [0016] on the bottom of page 3 and the top of page 4, Nishimura discloses that in heating a glutathione containing composition at a pH of 1 to 7 and 50 to 120 ° C. in water decomposes the γ-glutamyl peptide bond to form cysteinyl glycine. Moreover, as disclosed at [0020] on page 4 of Nishimura, the cysteinyl glycine produced by the heat treatment is partially cyclized to cyclocysteinyl glycine (“cyclo-cysteinyl-glycine”).
Further, the Office considers the natural flavoring of Example 1 of Kortes made of a reaction mixture comprising an extrusion incubated yeast extract comprising a glutathione to be substantially the same thing as the natural flavoring comprising at least 1 mg/g of pyroglutamate.
Accordingly, Nishimura discloses that the natural flavouring composition of Kortes as modified by Gasser, Cepanec and Kortes ‘649 and made by heat treating a yeast extract containing glutathione in water at a pH of 1 to 7 gives cyclo-cysteinyl-glycine in substantially the same composition as the composition claimed. And, absent a clear showing as to how the pH and the contents of the natural flavouring composition of the art the differs from that of the natural flavouring composition as claimed, the Office considers the natural flavouring composition of Kortes (Example 1) as modified by Cepanec at Table 5 on page 23 and Gasser (Abstract) to have the claimed at least 1 mg/g of pyroglutamate and at least 1 mg/g of cyclo-cysteinyl-glycine. See MPEP 2112.01.I.
Response to Arguments
Regarding the position taken in the remarks accompanying the amendment dated May 19, 2026 (Reply) with respect to claims 1-9 and 11-20, the remarks have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply that Kortes only generally provides that its incubation step is carried out in an extruder, which may be of any type suitable for the production of process flavours (para. [0020]); that Kortes, however, is silent with respect to further operational details of the extruder, specifically whether any kneading operation(s) is/are applied, and any value or range of values of either rotational speed or torque applied to the composition in the extruder; and that Kortes cannot reasonably be considered to teach or suggest the requisite kneading of the reaction mixture in step (ii) of claim 1, respectfully the position is not found persuasive because Kortes discloses twin-screw extrusion as an additional detail of its operation. This is characterized in Kortes ‘649 at [0075]-[0076] as kneading. However, even without Kortes ‘649, it is hard to see how one can extrude a composition in a twin-screw extruder without kneading or torquing the composition.
Regarding the position taken in the Reply that none of the cited references teaches or reasonably suggests that the combination of kneading and lactic acid has a surprising and synergistic effect on the claimed compositions, respectfully the Office has shown that the ordinary skilled artisan would know to add lactic acid to autolyzed yeast as in Gasser at col. 1, lines 13-30 to make a meaty flavored composition. In addition, “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).
Regarding the position taken in the Reply that Gasser's composition requires vegetable protein hydrolysate, hydrolysed meat extract, yeast extract, and lactic acid in combination and without any indication or hint that any one of these particular components on its own improves the meat-like flavor, the Office respectfully disagrees because Gasser at col. 1, lines 16-30 discloses that adding lactic acid to autolyzed yeast compositions helps improve the meaty flavor of the compositions. To make a proper prima facie case of obviousness, the Office has no duty to find the exact claimed composition in a secondary obviousness reference; rather, the Office only has to find reasonable evidence suggesting the desirability of a given combination.
Regarding the position taken in the Reply that Nishimura does not teach or suggest a composition comprising at least 1 wt% organic acid, respectfully it does not follow from this that Nishimura cannot be applied to remedy the aforementioned deficiencies of Kortes, Cepanec, and Gasser to arrive at the method for the preparation of a flavoring of claim 1. Especially where as here Nishimura at [0020] on page 4 is cited merely to show that partially cyclized to cyclocysteinyl glycine is produced by heat treatment of a glutathione composition, the rejection is based on what is clearly already found in the art of Kortes.
In general in regard to obvious rejections and arguments against the references individually, 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). Aside from the fact that none of the references anticipates the claims, nothing in the Reply provides a sufficient and clear reason for why the art is improperly combined.
Regarding the evidentiary evidence on the record, the alleged comparison in Example 9 and Comparative Example E, nothing on the record shows that the method in Kortes fails to disclose kneading. In fact, Kortes ‘649 at [0075]-[0076] discloses that twin screw extrusion as in Example 1 of Kortes constitutes kneading as claimed. So, the comparison does not address Example 1 of Kortes. Further, none of the comparatives includes a GISTEXTM yeast extract as in Kortes and Kortes says it gets a chicken flavor. In addition, in regard to water content discrepancies, the position baldly asserts its view that such a difference in water content makes no difference without evidence. However, arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II. To the contrary, the claims recite water content which is thereby presumptively critical.
Regarding the position taken in the Reply and double patenting, no terminal disclaimer overcoming the rejection has been filed and the Reply provides no reason for why the rejection should be withdrawn. Be advised that the filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection and should be accompanied by a reply requesting reconsideration of the prior Office action. See MPEP § 804, subsection I.B.1 and 37 CFR 1.111(a).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791
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