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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 29 September 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 5 is 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.
Claim 5 recites that the flavor composition of claim 4 “has citrus flavor or ginger flavor”. Claim 1, from which claim 5 depends, recites that the flavor composition consists of elements selected from the Markush group recited. Since “consisting of” claim language is closed, other elements are excluded from the scope of claim 4. Therefore, art which reads on claim 5 does not read on claim 1 because citrus and ginger flavor are excluded from claim 4. Given that claim 5 is inconsistent with claim 4, the scope of claim 5 is unclear. For the purpose of examination art which reads on claim 4 will be interpreted to read on claim 5.
Claim Rejections - 35 USC § 102
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 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 4-7 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Blandino USPGPub 20190350826.
Regarding claim 4 and 5, Blandino teaches the compound ambrettolide. [0043]
Regarding claim 6, the recitation in claim 6 that the off flavor is caused by p-cresol is only directed to the intended use of the composition of claim 4. The composition of Blandino comprising ambrettolide can be used to mask off flavors caused by p-cresol since it is the same composition disclosed by applicant to mask off flavors caused by p-cresol and therefore Blandino also anticipates claim 6.
Regarding claim 7, the compound of Blandino is capable of being used as recited in claim 7.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Blandino USPGPub 20190350826.
Regarding claims 8 and 9, Blandino teaches a composition comprising ambrettolide and citrus or ginger. [0035,0043,0046]
Blandino teaches that the fragrance components of the composition can vary depending on the intended use of the product. [0050] Therefore, while Blandino is silent regarding the precise proportion of ambrettolide recited in claim 8, this concentration is merely an obvious variant of the prior art. The composition of Blandino may comprise citral or ginger and can be comprised of edible components and therefore is interpreted to be a food as recited in claim 9. [0035,0046]
Blandino is silent regarding the content of p-cresol of the composition disclosed. Given that applicant discloses that the off-flavors that develop in citrus flavored beverages are caused by p-cresol, the citrus flavored composition of Blandino would eventually comprise p-cresol under the effect of light or heat. While the exact proportions of p-cresol are not disclosed in the art, there is no criticality to the content of p-cresol claimed because it is only present in the claimed invention as an adulterant that must be mitigated. Blandino discloses the same means of mitigation as applicant. As such, the content of p-cresol recited in claim 8 does not provide a non-obvious distinction from the prior art.
Response to Arguments
Applicant’s arguments with respect to claims 4-9 submitted 29 September 2026 have been considered but are not found persuasive.
Applicant asserts on page 6 of the remarks that Blandino requires ethyl linalool and therefore cannot anticipate claim 4. However, Blandino teaches that ambrettolide exists as a distinct composition and therefore the disclosure of ambrettolide in Blandino is sufficient to anticipate the claims. While Blandino may include disclosures of specific embodiments that include other compounds, nonetheless, the simple disclosure of ambrettolide as a compound that can be independently used demonstrates that ambrettolide as claimed is a credible intermediate composition used in the invention of Blandino and is therefore anticipated by Blandino.
Applicant asserts on page 7 of the remarks that there is “no encompassment and no overlap” of the content of ambrettolide in Blandino, however, the rejection was not premised on this assertion and therefore this argument is not germane.
Applicant asserts on page 7 of the remarks that the level of ambrettolide is not disclosed to be a result effective variable for affecting the p-cresol off-flavor. This assertion is not germane as the presently pending claims have not been shown to contain a critical amount of p-cresol to produce off-flavor or that the proportion of ambrettolide recited is critical to combat the off-flavors. Claim 8 is directed to an unspecified amount of one or more citral compounds present in an unspecified matrix of other ingredients and compounds in an unspecified “product” that is not even required to be food. There is nothing of record to establish that the proportion of ambrettolide recited in claim 8 has a nexus with the proportion of p-cresol recited that the effect of off-flavor suppression is necessarily present in every possible food matrix. Blandino specifically says that the fragrance compounds disclosed can vary depending on the intended use of the product and applicant has not provided any evidence to rebut this optimization since none of the proportions claimed have been demonstrated to be critical.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Applicant asserts on page 8 of the remarks that there is “no “citrus beverage of Blandino” containing ambrettolide. This assertion is not accurate. Blandino clearly includes an embodiment comprising ambrettolide and citrus or ginger. The presence of other embodiments does not negate that the rejection reasonably relies on an embodiment of Blandino. Applicant has failed to rebut the position in the rejection that the beverages comprising citral disclosed by Blandino develop p-cresol contamination in the same way as in applicant’s beverages.
Applicant asserts on page 9 of the remarks that “a three-component composition with two quantified minor constituents” is not disclosed by Blandino and Blandino provides no reason to formulate such. While the rejection highlighted the components claimed, that does not mean that the obviousness rejection relies on separating these components from the larger matrix of the composition of Blandino. The instantly pending claims are such that the additional compounds of Blandino are not excluded. Applicant’s assertion is therefore not directed to the merits of the rejection and is not found persuasive.
Conclusion
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.
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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.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
