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 § 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 a composition comprising ambrettolide and citrus or ginger. [0035,0043,0046]
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 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Blandino USPGPub 20190350826.
Regarding claims 8 and 9, 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]
Regarding claim 10, 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 Bolen 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 10 does not provide a non-obvious distinction from the prior art.
Response to Arguments
Applicant’s arguments with respect to claims 4-10 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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