DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 01/14/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-8, 12-13
Withdrawn claims: None
Previously cancelled claims: 9-11
Newly cancelled claims: None
Amended claims: 1
New claims: None
Claims currently under consideration: 1-8, 12-13
Currently rejected claims: 1-8, 12-13
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/14/2026 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.
Claims 4-5 are rejected under 35 U.S.C. 112(b) 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 4 recites that the composition comprises 200-800 mg lactic acid equivalent per gram of dry matter. However, claim 1, from which claim 4 depends, requires propionic acid, lactic acid, and acetic acid; and recites that the total amount of propionic acid, lactic acid, and acetic acid in the composition is 75-800 mg acid equivalent. Therefore, claim 4 recites an amount of lactic acid equivalent which would not allow the composition to also contain propionic acid and acetic acid equivalents in the amount recited by claim 1 (i.e., a lactic acid equivalent of 800 mg means that the composition cannot further comprise propionic acid and acetic acid equivalent as the maximum 800 mg is already reached). As such, it is unclear as to how the composition of claim 4 may comprise 800 mg lactic acid equivalent and still contain propionic acid and acetic acid equivalents to achieve an organic acid equivalent of 75-800 mg. Therefore, the claim is indefinite.
For the purpose of this examination, claim 4 will be considered to recite that the lactic acid equivalent is from 200 mg to an amount less than 800 mg.
Claim 5 recites that the composition comprises 75-450 mg propionate equivalent per gram of dry matter. It is unclear as to what is meant by the term "propionate equivalent”; therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the composition comprises 75-450 mg propionic acid equivalent per gram of dry matter.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-6, 8, and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Hilhorst (WO 2018/106109; IDS citation).
Regarding claims 1, 4, and 5, Hilhorst teaches a fermented onion composition (corresponding to meat treatment composition) having a dry matter content of 7-100 wt.%, such as 10-45 wt.% (page 12, lines 8-12), which falls within the claimed dry matter content range. Hilhorst teaches that the fermented onion composition may be in the form of a powder (page 13, lines 9-13, 27-32). Hilhorst teaches that the composition comprises propionic acid, lactic acid, and/or acetic acid in amounts of not more than 99.9 wt.%, such as 10-99 wt.%, based on the total dry matter (page 7, lines 8-12). Therefore, the concentration of each of propionic acid, lactic acid, and acetic acid may be from an amount of 0 wt.% to an amount of 99 wt.%, which provides amounts of propionic acid, lactic acid, acetic acid, and combinations thereof which at least overlap the claimed amount(s) recited in present claims 1, 4, and 5 (e.g., 1000 mg of a fermented onion composition having a dry matter content of 45 wt.%, a lactic acid content of 45 wt.%, a propionic acid content of 18 wt.%, and an acetic acid content of 12 wt.% would contain 203 mg lactic acid equivalent per gram dry matter, 81 mg propionic acid equivalent per gram dry matter, and 54 mg acetic acid equivalent per gram dry matter for a total organic acid content of 338 mg organic acid equivalent per gram dry matter. These values fall within the claimed ranges of organic acids, lactic acid, and propionic acid recited in present claims 1, 4, and 5).
Hilhorst also teaches that the composition may comprise at least 0.5 wt.% of fructose, glucose, and/or sucrose based on the dry matter content (page 11, lines 19-22). This disclosure and the disclosure regarding the composition having a dry matter content of 7-100 wt.%, such as 10-45 wt.% (page 12, lines 8-12) provides amounts of fructose, glucose, and/or sucrose which at least overlap the claimed amount (e.g., 1000 mg of a fermented onion composition having a dry matter content of 45 wt.% and containing 0 wt.% fructose, 2 wt.% glucose, and 2 wt.% sucrose would contain 0 mg fructose per gram dry matter, 9 mg glucose per gram dry matter, and 9 mg sucrose per gram dry matter for a total saccharide content of 18 mg per gram dry matter. This value falls within the claimed saccharides content range recited in present claim 1).
In regard to the aforementioned overlapping ranges, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Regarding claim 2, Hilhorst teaches the invention as described above in claim 1, including the fermented onion composition has a dry matter content of 7-100 wt.% (page 12, lines 8-12). Therefore, the composition has a water content of 0-93 wt.%, which encompasses the claimed water concentration. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 6, Hilhorst teaches the invention as described above in claim 1, including the fermented onion composition may contain 0.05-5 wt.% nitrite based on the dry matter content of the composition (page 10, lines 19-20). Nitrite has a molecular weight of 46.006 g/mol and contains one atom of nitrogen. Nitrogen has a molecular weight of 28.014 g/mol. Therefore, nitrite is comprised of 61 wt.% nitrogen so that a composition containing 0.05-5 wt.% of nitrite contains 0.031-3 wt.% of nitrogen. This nitrogen content provides amounts of total nitrogen in the fermented onion composition which at least overlap the claimed concentration (e.g., 1000 mg of a fermented onion composition having a dry matter content of 45 wt.% and containing 2 wt.% nitrogen would contain 9 mg nitrogen per gram dry matter for a total nitrogen content of 9 mg per gram dry matter. This value falls within the claimed saccharides content range recited in present claim 6). The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 8, Hilhorst teaches the invention as described above in claim 1, including the onion ferment is not purified after inoculating and incubating the onion substrate with lactic acid bacteria (page 9, lines 3-28); therefore, the fermented onion composition comprising the onion ferment would still contain the cellular material from the lactic acid bacteria.
Regarding claim 12, Hilhorst teaches a process of preparing a food product wherein the process comprises combining the fermented onion composition of claim 1 with other ingredients (corresponding to buffered food acid component and meat) (page 13, lines 9-10; page 14, lines 8-14).
Regarding claim 13, Hilhorst teaches a method of preserving food wherein the method comprises adding the fermented onion composition (corresponding to meat treatment composition) to meat, thereby increasing the resistance of the meat to microbial spoilage (page 14, lines 3-14). Therefore, the prior art teaches a method of preserving food wherein the method comprises adding the fermented onion composition of claim 1 to food.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Hilhorst (WO 2018/106109; IDS citation) as applied to claim 1 above, in view of Salamal (Salamal et al., “Sugar and Organic Acid Changes in Stored Onion Bulbs Treated with Maleic Hydrazide”, 1990, Hortscience, 25(12), pages 1625-1628; previously cited) and Kimoto (JP 2019103460A; IDS citation; English translation relied on for citations).
Regarding claim 3, Hilhorst teaches the invention as described above in claim 1, including the fermented onion (corresponding to the nitrite source obtained by fermentation) may comprise citric acid (page 4, line 31; page 11, lines 3-7).
Hilhorst does not teach that the fermented onion composition comprises at least one of the recited onion acids.
However, Salamal teaches that the citric acid content of onions may vary according to storage conditions and metabolic utilization of organic acids during storage (page 1625, 2nd column, 3rd paragraph). Salamal also discloses that contents of citric acid in onions include about 10 and 30 mg/g dry matter (page 1627, Fig. 2). Kimoto discloses a LAB-fermented onion composition [0001], wherein the citric acid content of the composition did not change during fermentation [0049].
Since the onions in the compositions of Hilhorst may have various citric acid contents due to storage conditions and metabolic utilization of the citric acid during storage as taught by Salamal (page 1625, 2nd column, 3rd paragraph), a skilled practitioner would readily recognize that the onions of Hilhorst may contain various amounts of citric acid such as about 10 and 30 mg/g dry matter as taught by Salamal (page 1627, Fig. 2). After LAB fermentation, the practitioner would understand that the citric acid content of the fermented composition containing those onions may not change as taught by Kimoto [0049]. Therefore, the fermented onion composition of modified Hilhorst may contain citric acid in amounts of about 10 and 30 mg/g dry matter, which falls within the claimed citric acid concentration. Therefore, the claim is rendered obvious.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hilhorst (WO 2018/106109; IDS citation) as applied to claim 1 above, in view of Iqbal (Iqbal et al., “Effect of Onion Juice (Allium cepa) on Egg Quality Traits during Different Storage Time in Laying Hens”, 2019, ETHABD, vol. 2, issue 3, pages 11-18; IDS citation) and Hur (Hur et al., “Effect of fermentation on the antioxidant activity in plant-based foods”, 2014, 160, pages 346-356; previously cited).
Regarding claim 7, Hilhorst teaches the invention as described above in claim 1, including that the fermented onion composition may comprise at least 0.5 wt.% of citric acid and malic acid based on the dry matter content (page 11, lines 19-22). Hilhorst also teaches that the composition may have a dry matter content of 7-100 wt.% (page 12, lines 8-12). These disclosures provide amounts of citric acid and malic acid in the composition which at least overlap the claimed amount (e.g., 1000 mg of a fermented onion composition having a dry matter content of 45 wt.% and containing 2 wt.% citric acid and 2 wt.% malic acid would contain 9 mg citric acid per gram dry matter and 9 mg malic acid per gram dry matter which fall within the claimed content ranges). The selection of a value within the overlapping range renders the claimed concentration obvious. MPEP 2144.05.I.
Hilhorst teaches that the composition may contain varying amounts of ferment such as 22.90 wt.%, 39.97 wt.%, and 18.18 wt.% (page 18, Table 1, wt.% celery ferment in compositions C, D, and E). Hilhorst also teaches that the substrate to produce the ferment through lactic acid fermentation may be onion juice (page 8, lines 1-2; page 8, lines 14-17; page 9, lines 3-14).
Hilhorst does not disclose that the fermented onion composition contains the claimed amount of gallic acid.
However, Iqbal discloses that onion juice may contain the polyphenol gallic acid in an amount of 2.659 mg/L (page 13, Table 2.0). Hur discloses that the total content of polyphenols increase during lactic acid fermentation (page 348, 1st column , 1st and 3rd-4th paragraphs).
Since the compositions of Hilhorst may be produced through lactic acid fermentation of onion juice (page 8, lines 1-2; page 8, lines 14-17; page 9, lines 3-14) and the total content of polyphenols increases during lactic acid fermentation (Hur, page 348, 1st column , 1st and 3rd-4th paragraphs), a skilled practitioner would readily recognize that the gallic acid content of the composition may increase from the 2.659 mg/L disclosed in Iqbal (page 13, Table 2.0) during fermentation. Furthermore, since the compositions of Hilhorst may contain various amounts of onion ferment as can be seen in Table 1 on page 18 of Hilhorst and the compositions may also contain various amounts of dry matter content (i.e., 7-100 wt.% as disclosed on page 12, lines 10-12 of Hilhorst), the actual amount of gallic acid in the overall fermented onion composition would also vary. Therefore, the amount of gallic acid in the fermented onion compositions of the prior art is considered to at least overlap the claimed gallic acid content. The selection of a value within the overlapping range renders the claimed gallic acid content obvious. MPEP 2144.05.I.
Double Patenting
Claims 1-2, 4-5, 7-8, and 12-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9-17 of co-pending Application No. 17/962,215 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because: instant claim 1 requires the features of co-pending claims 9 and 10; instant claim 2 requires the features of co-pending claim 11; instant claim 4 requires the features of co-pending claim 12; instant claim 5 requires the features of co-pending claim 13; instant claim 7 requires the features of co-pending claim 14; instant claim 8 requires the features of co-pending claim 15; instant claim 12 requires the features of co-pending claim 12; and instant claim 13 requires the features of co-pending claim 17.
Instant claim 1 further requires that the fermented onion composition be in the form of a powder. However, the co-pending claims do not require the fermented onion composition be in any specific form. Powder forms of edible onion products are well-known in the art (e.g., onion powder, onion flakes). As such, it is well within the knowledge and skill of a practitioner to form the composition of the co-pending claims into a powder. Therefore, the selection of a powder form of the composition of the co-pending claims would render this feature of the instant claims obvious.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-5, 7-8, and 12-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of co-pending Application No. 18/634,343 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1 and 3 requires the features of co-pending claims 1 and 2; instant claim 4 requires the features of co-pending claim 3; instant claim 5 requires the features of co-pending claim 4; instant claim 7 requires the features of co-pending claim 8; and instant claim 8 requires the features of co-pending claim 9.
Instant claim 1 further requires that the fermented onion composition be in the form of a powder. However, the co-pending claims do not require the fermented onion composition be in any specific form. Powder forms of edible onion products are well-known in the art (e.g., onion powder, onion flakes). As such, it is well within the knowledge and skill of a practitioner to form the composition of the co-pending claims into a powder. Therefore, the selection of a powder form of the composition of the co-pending claims would render this feature of the instant claims obvious.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-2, 4, 6, 8, and 12-13 over Roberts as evidenced by Andersen: Applicant’s arguments with respect to claim(s) 1-2, 4, 6, 8, and 12-13 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.
Claim Rejections – 35 U.S.C. §103 of claim 3 over Roberts, Salamal, and Kimoto as evidenced by Andersen: Applicant’s arguments have been fully considered and are considered moot in light of the new grounds of rejection for amended claim 1.
Applicant argued that Salamal and Kimoto do not remedy the aforementioned deficiencies of Roberts and Andersen by teaching that (i) the fermented onion composition comprises propionic acid, lactic acid, and acetic acid; and (ii) the composition is in the form of a powder (Applicant’s Remarks, page 5, section B).
However, in the new grounds of rejection necessitated by the amendment of claim 1, claim 1 is rendered obvious by Hilhorst. Salamal and Kimoto are continued to relied for their teachings regarding the additional features of claim 3. Therefore, Applicant’s arguments are moot and the rejection of claim 3 stands as written herein.
Claim Rejections – 35 U.S.C. §103 of claim 5 over Roberts and Babuchowski as evidenced by Andersen: Applicant’s arguments have been fully considered and are considered moot in light of the new grounds of rejection for amended claim 1.
Applicant argued that Babuchowski does not remedy the aforementioned deficiencies of Roberts and Andersen (Applicant’s Remarks, pages 5-6, section C).
However, in the new grounds of rejection necessitated by the amendment of claim 1, claim 1 and claim 5 are rendered obvious by Hilhorst while none of Roberts, Andersen, or Babuchowski is cited. Therefore, Applicant’s arguments are moot and the rejection of claim 5 stands as written herein.
Claim Rejections – 35 U.S.C. §103 of claim 7 over Roberts, Cheng, and Hur as evidenced by Andersen: Applicant’s arguments have been fully considered and are considered moot in light of the new grounds of rejection for amended claim 1.
Applicant argued that Cheng and Hur do not remedy the aforementioned deficiencies of Roberts and Andersen (Applicant’s Remarks, page 6, section D).
However, in the new grounds of rejection necessitated by the amendment of claim 1, claim 1 is rendered obvious by Hilhorst while none of Roberts, Andersen, or Cheng is cited. Hur is continued to be relied on for its teachings regarding the additional features of claim 7. Therefore, Applicant’s arguments are moot and the rejection of claim 7 stands as written herein.
Double Patenting Rejections: Applicant will address the rejections when the present claims are deemed otherwise allowable (Applicant’s Remarks, pages 6-7, section labeled “Double Patenting”).
The double patenting rejections are maintained as written herein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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, Nikki Dees can be reached at (571) 270-3435. 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.
/KELLY P KERSHAW/Examiner, Art Unit 1791
Prosecution Insights