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 Response and Amendment after Non-Final Office Action filed 07/02/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the 35 U.S.C. §112(b) rejections of claims 4-5 have been withdrawn; and (2) the 35 U.S.C. §103 rejection of claim 8 over Hilhorst has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-7, 12-14
Withdrawn claims: None
Previously cancelled claims: 9-11
Newly cancelled claims: 8
Amended claims: 1, 4-5
New claims: 14
Claims currently under consideration: 1-7, 12-14
Currently rejected claims: 1-7, 12-14
Allowed claims: None
Claim Objections
Claim 3 is objected to because of the following informalities:
“further comprising (c) 3-120 mg acid equivalent” should be read as “further comprising (d) 3-120 mg acid equivalent”
Appropriate correction is required.
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.
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.
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 1-2, 4-6, and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Hilhorst (WO 2018/106109; IDS citation) in view of Hundt (WO 2019/243566; IDS citation).
Regarding claims 1, 4, and 5, Hilhorst teaches a fermented onion composition (corresponding to meat treatment composition produced by fermentation of onion) having a dry matter content of 7-100 wt.%, such as 10-45 wt.% (page 8, lines 14- 17; page 9, lines 19-27; 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 2 wt.% fructose, 2 wt.% glucose, and 0 wt.% sucrose would contain 9 mg fructose per gram dry matter, 9 mg glucose per gram dry matter, and 0 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.
Hilhorst further teaches that 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 as recited in present claim 1. Hilhorst teaches that the composition may comprise propionic acid obtained by fermentation (page 11, lines 3-18). Hilhorst does not teach that the fermented onion composition contains cellular material from Propionibacterium as recited in present claim 1.
However, Hundt teaches a fermented onion composition comprising lactic acid, propionic acid, and/or acetic acid (page 4, lines 3-4; page 8, lines 14- 17; page 9, lines 19-27; page 12, lines 3-4, 8-12). Hundt teaches that the lactic acid and propionic acid added to the onion composition by fermentation of the onion substrate by lactic acid bacteria and Propionibacterium, respectively (page 8, lines 15-22). Hundt teaches that the onion ferment contains cellular material from the fermenting microorganism (page 2, lines 7-9). Since the fermenting microorganism is lactic acid bacteria and Propionibacterium, Hundt teaches that the composition contains cellular material from lactic acid bacteria and Propionibacterium.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the fermented onion composition containing lactic acid bacteria of Hilhorst to also contain cellular material from Propionibacterium as taught by Hundt. Since Hilhorst teaches that the composition may comprise propionic acid obtained by fermentation (page 11, lines 3-18), but does not teach an organism to perform propionic acid fermentation, a skilled practitioner would have been motivated to consult an additional reference such as Hundt in order to determine a suitable organism to perform propionic acid fermentation, thereby rendering fermentation by Propionibacterium obvious. In consulting Hundt, the practitioner would find that, like Hilhorst, the method of preparing the fermented onion composition in Hundt does not comprise a step of removing the fermenting microorganism from the composition. Therefore, the combination of Hilhorst and Hundt render the inclusion of cellular material from lactic acid bacteria and Propionibacterium in the fermented onion composition obvious.
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 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.
Regarding claim 14, Hilhorst teaches the invention as described above in claim 1, including that the composition may comprise fructose, glucose, and/or sucrose based on the dry matter content (page 11, lines 19-22). Since sucrose is an optional component, the composition of Hilhorst is considered to encompass embodiments wherein sucrose is not present, thereby rendering claim 14 obvious.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Hilhorst (WO 2018/106109; IDS citation) in view of Hundt (WO 2019/243566; IDS citation) as applied to claim 1 above, and further 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) in view of Hundt (WO 2019/243566; 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 increases 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
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, 4-5, 7, 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, 10, and 15; 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 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, 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, 2, and 9; instant claim 4 requires the features of co-pending claim 3; instant claim 5 requires the features of co-pending claim 4; and instant claim 7 requires the features of co-pending claim 8.
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. §112(b) of claims 4-5: Applicant amended the claims to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-2, 4-6, 8, and 12-13 over Hilhorst: Applicant’s amendments and arguments have been fully considered and the amendments are considered to overcome the rejections over Hilhorst as written in the previous Office Action. However, the present claims now stand rejected by the combination of Hilhorst and Hundt.
Applicant canceled claim 8, thereby mooting its rejection. Applicant argued that Hilhorst does not disclose the presence of Proponibacterium in the fermented onion composition as now recited by amended claim 1. Applicant argued that a composition produced by merely adding food-grade acetic acid, lactic acid, and propionic acid into a fermented vegetable extract as taught by Hilhorst would not contain cellular material from the bacteria or bioactive onion compounds produced by bacterial fermentation of the onion (Applicant’s Remarks, pages 5-6, section 1).
However, as described in the new grounds of rejection necessitated by the amendment of the claims, Hilhorst teaches that 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 as recited in present claim 1. Hilhorst also teaches that the composition may comprise propionic acid obtained by fermentation (page 11, lines 3-18). Hundt teaches a fermented onion composition comprising lactic acid, propionic acid, and/or acetic acid, wherein the lactic acid and propionic acid are added to the onion composition by fermentation of the onion substrate by lactic acid bacteria and Propionibacterium, respectively (page 8, lines 15-22; page 4, lines 3-4; page 12, lines 3-4). Hundt teaches that the lactic acid and propionic acid are added to the onion composition by fermentation of an onion substrate by lactic acid bacteria and Propionibacterium, respectively (page 8, lines 15-22). Hundt teaches that the resulting onion ferment contains cellular material from the fermenting microorganisms (page 2, lines 7-9). Since the fermenting microorganisms are lactic acid bacteria and Propionibacterium, Hundt teaches that the composition contains cellular material from lactic acid bacteria and Propionibacterium. Therefore, the combination of Hilhorst and Hundt render the inclusion of cellular material from lactic acid bacteria and Propionibacterium in the fermented onion composition obvious.
Applicant then argued that Example 4 of the present specification demonstrates that a fermented onion composition containing cellular material from lactic acid bacteria and Propionibacterium used for fermentation of an onion substrate and the onion-bioactive compounds produced during the fermentation provides superior results in terms of inhibiting growth of resistant lactic acid bacteria when compared to a composition containing only food-grade acids. Applicant argued that the inventive composition having this result is unexpected since the inventive composition has a higher pH than the comparative composition and higher pH is generally less favorable for organic acid-based antimicrobial activity. Applicant argued that since the amounts of organic acids were the same in the inventive composition and in the comparative composition, the superior antimicrobial performance cannot be attributed to organic acids alone but to the presence of the cellular material and onion-derived bioactive compounds in the inventive composition which are absent from the comparative composition. Applicant argued that Hilhorst does not teach that replacing its added food-grade organic acids with fermentation-derived organic acids from an onion substrate would provide improved antimicrobial performance (Applicant’s Remarks, page 6,1st paragraph under section 2 – page 7, 4th paragraph).
However, the Examiner points out that the inventive composition of Example 4 further contains vinegar while the same vinegar was not added to the comparative composition of Example 4. Vinegar contains at least the organic acid acetic acid. Therefore, for at least this reason, Example 4 does not match the amounts of organic acids between the inventive composition and the comparative composition. Also, due to the addition of vinegar to the inventive composition and the omission of vinegar from the comparative composition, it is not clear that the asserted “superior” and “unexpected” results of the inventive composition are due to the presence of onion-derived compounds or cellular material from fermenting organisms. The Examiner also points out that Table 11 of the present specification shows at week 26, both the inventive composition and the comparative composition have the same amount of bacterial growth.
In response to Applicant’s assertion that Hilhorst does not teach that replacing its added food-grade organic acids with fermentation-derived organic acids from an onion substrate would provide improved antimicrobial performance, Hilhorst teaches that the organic acids lactic acid and propionic acid in the composition may be obtained by fermentation (page 11, lines 3-18). Hilhorst also teaches lactic acid fermentation of an onion substrate (page 9, lines 3-28) while Hundt teaches propionic acid fermentation of an onion substrate. Both references teach that their composition inhibits microbial activity that causes food spoilage (Hilhorst, page 14, lines 3-4; Hundt, page 2, lines 18-22), thereby disclosing that the prior art recognizes the antimicrobial performance of the fermented onion composition. The prior art does not need to recognize “improved” antimicrobial performance of the composition when compared to a composition containing food-grade acid only as the prior art renders the claimed composition obvious, let alone the Applicant not having demonstrated the asserted improved performance for at least the results stated above. Furthermore, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Since the new combination of prior art renders the claims obvious and Applicant’s arguments have been shown to be unpersuasive or moot, the rejections of the claims stand as written herein.
Claim Rejections- 35 U.S.C. §103 of claim 3 over Hilhorst, Salamal, and Kimoto: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Salamal and Kimoto do not remedy the aforementioned deficiencies of Hilhorst (Applicant’s Remarks, page 8, section B).
However, the features of claim 1 are now rendered obvious by the combination of Hilhorst and Hundt. Salamal and Kimoto continue to be relied on for their teachings regarding the additional features of claim 3.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of claim 3 stands as written herein.
Claim Rejections – 35 U.S.C. §103 of claim 7 over Hilhorst, Iqbal, and Hur: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Iqbal and Hur do not remedy the aforementioned deficiencies of Hilhorst (Applicant’s Remarks, page 8, 1st-2nd paragraphs under section C).
However, the features of claim 1 are now rendered obvious by the combination of Hilhorst and Hundt. Iqbal and Hur continue to be relied on for their teachings regarding the additional features of claim 7.
Applicant then argued that neither Iqbal nor Hur provide any basis for concluding that fermentation would increase the gallic acid content to the extent necessary to reach the claimed range (Applicant’s Remarks, page 8, 3rd paragraph under section C – page 9, 1st paragraph).
However, since the prior art discloses gallic acid increase during lactic acid fermentation and the present claims do not recite a method of fermentation comprising factors which influence the amount of fermentation products (e.g., time, temperature, amount of sugars present in substrate), it is presumable that the amount of gallic acid produced during the fermentation is capable of reaching the claimed range, especially wherein the Applicant has neither provided any evidence to the contrary nor demonstrated that its fermented onion substrate contains the claimed amount of gallic acid.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of claim 7 stands as written herein.
Double Patenting Rejection: Applicant will address rejections at such time as the present claims are deemed otherwise allowable (Applicant’s Remarks, page 9, section IV).
The double patenting rejections are maintained as written herein.
New Claim 14: Applicant argued that Hilhorst does not teach invertase treatment of the onion substrate so that a composition derived from the process of Hilhorst would be expected to contain residual sucrose from the onion substrate (Applicant’s Remarks, page 7, 5th paragraph).
However, as stated above in the rejection of claim 14, Hilhorst teaches that the composition may comprise fructose, glucose, and/or sucrose based on the dry matter content (page 11, lines 19-22). Since sucrose is an optional component, the composition of Hilhorst is considered to encompass embodiments wherein sucrose is not present, thereby rendering claim 14 obvious.
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.
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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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