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 .
This office action is in response to the application filed on November 17, 2022. The earliest effective filing date of the application is November 17, 2022.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 29, 2025 has been entered.
Status of Application
The amendment filed October 29, 2025 with the Request for Continued Examination has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 22, and 23
Withdrawn claims: None
Previously cancelled claims: 9, 10, 19, and 20
Newly cancelled claims: 2 – 8, 11 – 18, and 21
Amended claims: 1
New claims: 22 and 23
Claims currently under examination: 1, 22, and 23
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: A new objection of claim 22 is made in light of Applicant’s amendments.
Withdrawn Rejections: All rejections of claims 2 – 8, 11 – 18, and 21 are withdrawn due to the cancellation of claims 2 – 8, 11 – 18, and 21. The previous rejection under 35 U.S.C § 103 of claim 1 over Soma has been withdrawn in light of Applicant’s amendments. The previous rejection under 35 U.S.C § 103 of claim 22 over Hsieh has been withdrawn in light of Applicant’s amendments.
35 U.S.C. 112(b) Rejections: New rejections under 35 U.S.C. 112(b) of claims 1, 22, and 23 are made in light of Applicant’s amendments.
35 U.S.C. § 103 Rejections: A new rejection under 35 U.S.C. § 103 of claim 1 over Soma is made in light of Applicant’s amendments. A new rejection under 35 U.S.C. § 103 of claim 22 over Moore is made in light of Applicant’s amendments. A new rejection under 35 U.S.C. § 103 of claims 23 over Soma is made in light of Applicant’s amendments.
Claim Objections
Claim 22 is objected to because of the following informalities:
- Claim 22 is objected to because the status identifier is incorrect and should instead read “Currently Amended”. The added text in claim 22 must also be presented with markings to indicate the changes that have been made relative to the immediate prior version. See MPEP § 714(II)(C).
- Claim 22 recites “without materially altering the flavor profile and nutritional profile” which should be rewritten as “without materially altering the flavor profile and nutritional profile of the aqueous plant seed medium” to avoid potential misinterpretation.
Appropriate correction is required.
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 22, and 23 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.
Claim 22 recites “the food product” in lines 8 and 14 which renders the claim indefinite. There is insufficient antecedent basis for this limitation in the claim. Absent a definition in the instant specification, the food product is interpreted broadly to be the aqueous plant seed medium.
Claim 22 fails to disclose the basis (i.e., weight, volume, molar, etc.) of the percentages recited for some of the components of the aqueous plant seed medium. The basis of the percentages recited for some of the components of the aqueous plant seed medium are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purpose of examination, the percentages recited for some of the components of the aqueous plant seed medium is interpreted to be by weight/volume.
Claim 23 recites “the food product” in line 14 which renders the claim indefinite. There is insufficient antecedent basis for this limitation in the claim. Absent a definition in the instant specification, the food product is interpreted broadly to encompass a mixture of the aqueous plant seed medium and the fermentation medium.
Claim 23 fails to disclose the basis (i.e., weight, volume, molar, etc.) of the percentages recited for some of the components of the aqueous plant seed medium. The basis of the percentages recited for some of the components of the aqueous plant seed medium are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purpose of examination, the percentages recited for some of the components of the aqueous plant seed medium is interpreted to be by weight/volume.
Claim 23 fails to disclose the basis (i.e., weight, volume, molar, etc.) of the percentages recited for some of the components of the fermentation medium. The basis of the percentages recited for some of the components of the fermentation medium are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purpose of examination, the percentages recited for some of the components of the fermentation medium is interpreted to be by weight.
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.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Soma et al. (US 20210386101 A1) in view of Moore et al. (EP 0247245 A1), Lu et. al. (Inactivation of foodborne pathogenic and spoilage bacteria by single and dual wavelength UV-LEDs: Synergistic effect and pulsed operation. Food Control. Vol. 125. (2021)), Song et al. (Microorganisms inactivation by continuous and pulsed irradiation of ultraviolet light-emitting diodes (UV-LEDs). Chemical Engineering Journal. Vol. 343. pp. 362 – 370. (2018)), and Hariyadi (Sterilisasi UHT dan Pengesmasan Aseptik. In: SUSU: Berbagai SUmber Nutrisi Pertumbuhan Anak. (pp.53-68). Edition: 1. (2010) – Google Machine Translation), as evidenced by Csapó et al. (Effect of UV Light on Food Quality and Safety. Acta Univ. Sapientiae, Alimentaria, Vol 12. Pp. 21 – 44. (2019)).
Regarding claim 1, Soma teaches a method of inactivating and pasteurizing food additives for the preservation of meat and seafood comprising the steps of:
preparing the source material liquid by obtaining a source material comprising natural nitrates such as celery seed ([0030] – [0032]; Figure 1, 101); blending by adding water and additional nutrients to the source material to produce source material liquid ([0032]; Figure 1, 102); and pasteurizing to kill any competing microorganisms before fermentation ([0037]; Figure 1, 103));
fermenting the source material liquid to produce a broth, after adding yeast ([0039]; [0083]; Figure 1, 104);
treating the broth by inactivating the microorganisms in the broth by, for example, using heat, filtration, pH change etc. ([0043]; Figure 1, 105); and pasteurizing a second time to kill microorganisms, which is accomplished through an UHT pasteurizer (i.e., exposing the food product to ultra-high-temperature processing for a period of time – [0044]); Figure 1, 106); then
centrifuging (Figure 1, 107); evaporating (Figure 1, 108); and completing final processing of the food additive (Figure 1, 109).
Soma does not teach, during the pasteurization of step (c) (i.e., exposing the food product to ultra-high-temperature processing for a period of time), exposing the broth (i.e., food product) to at least approximately 148 °C for between approximately one and approximately three seconds.
Moore teaches a method of sterilizing juices. The process comprises:
heating juice concentrate to a temperature of about 220 °F (104 °C) to about 300 °F (149 °C) by means of direct contact steam infusion for a period of about 0.5 to about 15 seconds to sterilize the juice;
cooling the product to below about 220 °F by releasing the pressures resulting in an immediate temperature drop;
recondensing the vapors into the juice; and
quickly chilling the product to below 60 °F (Abstract).
Moore teaches the process can be applied to juices from vegetables such as celery (p. 3, lines 20 – 21). Moore teaches the advantage to ultra-high temperature processing at 275 – 300 °F lies in the fact that the rate of microbe inactivation increases faster at ultra-high temperatures than the rate of the chemical degradation of the product (p. 2, lines 15 – 18). Moore teaches as the temperature is increased, so does the rate of the browning or Maillard reaction, i.e. the reaction of amino acids and proteins with reducing sugars to produce burnt, cooked or off-flavor. Moore teaches minimizing the amount of contact time that the foods have with high temperatures can prevent the development of off-flavors (p. 3, lines 29 – 33).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to heat the food product to 148 °C – 149 °C for between one and three seconds during the UHT pasteurization of step (c) of Soma, as taught by Moore because processing at 275 °F (135 °C) – 300 °F (149 °C) has the advantage of killing bacteria faster than chemical degradation, and as the temperature increases, the exposure time must decrease to avoid off-flavors.
Soma does not teach the inactivation of step (c) comprises the step of exposing the broth (i.e., food product) to an electromagnetic radiation source.
Lu teaches a method of microorganism deactivation by irradiating bacteria with UV-LED. Lu teaches ultraviolet (UV) light irradiation (i.e., electromagnetic radiation) is commonly regarded as an effective approach for inactivating pathogenic and spoilage microorganisms. Lu teaches UV disinfection minimizes the overall quality damage to food products compared to conventional thermal treatment and high-pressure processing (p.1, 1. Introduction, paragraph 1).
Soma and Lu are combinable because they are concerned with the same field of endeavor, namely, microorganism inactivation. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize UV light for microorganism inactivation, as taught by Lu in the inactivation step of step (c) of Soma because UV disinfection minimizes the overall quality damage to food products compared to conventional thermal treatment and high-pressure processing.
Soma does not teach the electromagnetic radiation is UV-B.
Lu teaches a method of microorganism deactivation by irradiating bacteria with a pulsed 288nm (i.e., UV-B) UV-LED. Lu teaches UV-LEDs are mercury-free and thus suitable for the food industry (p. 2, 1. Introduction, paragraph 3). Lu teaches UV-LEDs emitting at around 288 nm (i.e., UV-B) show a particularly high inactivation efficiency for some specific bacterial strains (p. 6, 3.1.2. 288 nm UVB-LED, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a 288nm (i.e., UV-B) LED as a UV light source, as taught by Lu in the modified method of Soma because UV-LEDs are suitable for the food industry and UV-LEDs emitting at around 288 nm (i.e., UV-B) show a particularly high inactivation efficiency for some specific bacterial strains.
Soma does not teach the UV-B electromagnetic radiation is pulsed.
Lu teaches in pulsed experiments, all modules showed comparable inactivation effects in continuous and pulsed power modes under equivalent UV dose (p. 9, 4. Conclusion, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize pulsed UV-B light, as taught by Lu in the modified method of Soma because one of ordinary skill in the art would have reasonably expected comparable inactivation effects in continuous and pulsed power modes under equivalent UV dose.
Soma does not teach the broth (i.e., food product) is exposed to pulsed electromagnetic radiation for a total duration of less than approximately 5 seconds.
Lu teaches the total UV exposure duration ranges from 10 – 90 seconds (p. 4, 2.3. Inactivation experiments, paragraph 3). Lu teaches as total UV exposure time increases, bacteria inactivation increases (Figure 3).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a total exposure duration of 5 seconds in the modified method of Soma because one of ordinary skill in the art would have reasonably expected to be able to control bacteria inactivation by adjusting total exposure time.
Soma does not teach the electromagnetic radiation has a pulse duration of less than approximately 5 milliseconds.
Lu teaches the pulse duration is 100 Hz (i.e., 10 milliseconds/pulse – p. 4, 2.4 Pulsed UV-LED irradiation, paragraph 1).
Song teaches a method of microorganism deactivation by irradiating bacteria with a pulsed UV-LED. Song teaches there is no significant difference in the log inactivation of E. coli between the continuous and pulsed irradiation with various frequencies of 0.1 Hz (10 seconds/pulse), 1 Hz (1 second/pulse), 10 Hz (100 milliseconds/pulse), 100 Hz (10 milliseconds/pulse), and 1 k Hz (1 millisecond/pulse – p. 365, 3.2.1 E. coli, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a pulse duration of 5 milliseconds in the modified method of Soma because one of ordinary skill in the art would have reasonably expected pulse durations between 1 millisecond and 10 seconds to exhibit the same effect on a given bacteria.
Soma does not teach the pasteurization (i.e., exposing the food product to ultra-high-temperature processing for a period of time) of step (c) provides a greater than approximately 8 Log reduction in undesirable matter in less than approximately 1 to approximately 10 seconds.
Hariyadi teaches applying UHT temperatures at or above 148 °C for 1 second provides a 9-log destruction of spores in milk (i.e., an aqueous medium – p. 63, paragraph 1; Figure 6). Hariyadi teaches as the temperature of UHT increases, the amount of time needed to achieve a 9-log reduction decreases (p. 63, paragraph 1; Figure 6). Hariyadi teaches operating at higher temperatures, or for longer than necessary may begin to destroy desirable nutritional components (p. 63, paragraph 1; Figure 6).
Soma and Hariyadi are combinable because they are concerned with the same field of endeavor, namely, ultra-high temperature processing. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the time and temperature of UHT pasteurization in the modified method of Soma during routine optimization to find the method that results in the food additive with the desired destruction of spores (i.e., undesirable matter) while balancing nutritional quality. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed reduction in undesirable matter during the step of ultra-high-temperature processing the food product, 8-log, would thus be obvious.
With respect to the limitation that the treating occurs without materially altering the nutritional profile of the food product, Moore teaches the advantage to ultra-high temperature processing at 275 °F (135 °C) – 300 °F (149 °C) lies in the fact that the rate of microbe inactivation increases faster at ultra-high temperatures than the rate of the chemical degradation of the product (p. 2, lines 15 – 18). Because the modified method of Moore performs UHT processing at 148 – 149 °C for between one and three seconds, which lies within the range of undesirable matter deactivation and nutrient preservation, as taught by Hariyadi on p. 63, Figure 6, the UHT processing of the modified method of Moore inherently preserves the nutritional profile of the food product. Additionally, as evidenced by Csapó, UV treatment in no respect causes more negative changes in composition than the equally efficient mild heat treatment (such as UHT – p. 34, paragraph 4, p. 35, paragraph 1). Therefore, the UV treatment in the modified method of Soma preserves the nutritional profile of the juice. Thus, the treating (i.e., the combined UHT and UV treatments) of the modified method of Soma does not materially alter the nutritional profile of the broth (i.e., food product).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Moore et al. (EP 0247245 A1) in view of Wang et al. (CN 106389489 A – Clarivate Machine Translation), Love and Lemons (What is Nutritional Yeast? Love and Lemons. (2021) Retrieved from: https://www.loveandlemons.com/nutritional-yeast/), Biotecnica (Flavor and science: peptones and cutting-edge gastronomy. Biotecnica. (2020) Retrieved from: https://biotecnica.com.mx/flavor-and-science-peptones-and-cutting-edge-gastronomy/), Liem et al. (Reducing Sodium in Foods: The Effect on Flavor. Nutrients. Vol 3. Pp. 694 – 711. (2011)), Lu et. al. (Inactivation of foodborne pathogenic and spoilage bacteria by single and dual wavelength UV-LEDs: Synergistic effect and pulsed operation. Food Control. Vol. 125. (2021)), Song et al. (Microorganisms inactivation by continuous and pulsed irradiation of ultraviolet light-emitting diodes (UV-LEDs). Chemical Engineering Journal. Vol. 343. pp. 362 – 370. (2018)), and Hariyadi (Sterilisasi UHT dan Pengesmasan Aseptik. In: SUSU: Berbagai SUmber Nutrisi Pertumbuhan Anak. (pp.53-68). Edition: 1. (2010) – Google Machine Translation), as evidenced by Claus, H. (Ozone Generation by Ultraviolet Lamps. Photochemistry and Photobiology. Vol. 97. pp. 471 – 476. (2021)) and Csapó et al. (Effect of UV Light on Food Quality and Safety. Acta Univ. Sapientiae, Alimentaria, Vol 12. Pp. 21 – 44. (2019)).
Moore teaches a method of sterilizing fluid foods (p. 2, paragraph 1). The process comprises:
a. Ultra-high-temperature Processing: heating juice concentrate to a temperature of about 220 °F (104 °C) to about 300 °F (149 °C) by means of direct contact steam infusion (i.e., direct infusion-based heating system) for a period of about 0.5 to about 15 seconds to sterilize the juice; then
b. Flash Cooling: cooling the product to below about 220 °F by releasing the pressures resulting in an immediate temperature drop (Abstract).
Moore teaches the process is applicable to most fluid foods such as extracts of vegetable materials such as tea, coffee, cocoa, vanilla and other flavorants which require sterilization for shelf stability (p. 3, lines 13 – 17). Moore teaches the advantage to ultra-high temperature processing at 275 – 300 °F lies in the fact that the rate of microbe inactivation increases faster at ultra-high temperatures than the rate of the chemical degradation of the product (p. 2, lines 15 – 18). Moore teaches as the temperature is increased, so does the rate of the browning or Maillard reaction, i.e. the reaction of amino acids and proteins with reducing sugars to produce burnt, cooked or off-flavor. Moore teaches minimizing the amount of contact time that the foods have with high temperatures can prevent the development of off-flavors (p. 3, lines 29 – 33).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to heat the celery seed extract to 148 °C – 149 °C for between one and three seconds, as taught by Moore because doing so would produce a shelf-stable fluid vegetable extract, and because processing at 275 °F (135 °C) – 300 °F (149 °C) has the advantage of killing bacteria faster than chemical degradation, and as the temperature increases, the exposure time must decrease to avoid off-flavors.
Moore does not teach the fluid vegetable extract comprises celery seed.
Wang teaches a celery seed extract consisting of celery seed and water (Claim 1 and Claim 8). Wang teaches celery seed is often used for seasoning food (p. 1, paragraph 2).
Moore and Wang are combinable because they are concerned with the same field of endeavor, namely, vegetable extracts. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected the celery seed extract of Wang as the fluid food in the process of Moore because the celery seed extract of Wang is a fluid food extract suitable for use in the method of Moore.
The modified method of Moore does not teach the celery seed extract comprises yeast powder.
Love and Lemons teaches nutritional yeast (i.e., yeast powder) adds a nutty and savory flavoring to food (p. 3, paragraph 1).
Moore and Love and Lemons are combinable because they are concerned with the same field of endeavor, namely, food seasonings. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add nutritional yeast (i.e., yeast powder) to the celery seed extract of Wang, as taught by Love and Lemons because nutritional yeast adds a nutty and savory flavor to the celery extract.
While Moore does not teach the celery seed extract comprises 0.3 – 0.7% yeast powder, one of ordinary skill in the art would have adjusted the amount of nutritional yeast (i.e., yeast powder) in the celery extract during routine optimization to find the celery extract with the desired degree of nutty and savory flavor because it is well known in the art that increasing the amount of a flavoring increases the perception of said flavor in a given food. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed yeast powder content in the aqueous plant seed medium, 0.3 – 0.7% yeast powder, would thus be obvious.
The modified method of Moore does not teach the celery seed extract comprises peptone.
Biotecnica teaches peptones, traditionally used in microbiology and biotechnology as nitrogen sources for microorganism cultivation, have begun to attract the attention of chefs and culinary technologists for their potential to transform the dining experience (p. 1, paragraph 1). Biotecnica teaches one of the most promising uses is the enhancement of umami flavor without resorting to excessive salt or monosodium glutamate (p. 2, paragraph 3).
Moore and Biotecnica are combinable because they are concerned with the same field of endeavor, namely, food seasonings. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add peptone to the celery seed extract of Wang, as taught by Biotecnica because peptone adds an umami flavor to the celery extract.
While Moore does not teach the celery seed extract comprises 0.1 – 0.5% peptone, one of ordinary skill in the art would have adjusted the amount of peptone in the celery extract during routine optimization to find the celery extract with the desired degree of umami flavor because it is well known in the art that increasing the amount of a flavoring increases the perception of said flavor in a given food. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed peptone content in the aqueous plant seed medium, 0.1 – 0.5% peptone would thus be obvious.
The modified method of Moore does not teach the celery seed extract comprises sodium chloride.
Liem teaches sodium chloride (NaCl) is the prototypical stimulus for salty taste (p. 694, paragraph 1). Liem teaches sodium improves the sensory properties of foods, by increasing saltiness, decreasing bitterness, and increasing sweetness and other congruent flavor effects, while excessive sodium intake is associated with an increase in blood pressure, which is a major cause of cardiovascular diseases (p. 695, paragraph 1).
Moore and Liem are combinable because they are concerned with the same field of endeavor, namely, food seasonings. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to add sodium chloride to the celery seed extract of Wang, as taught by Liem because sodium chloride adds saltiness to the celery extract.
While Moore does not teach the celery seed extract comprises 0.1 – 0.3% sodium chloride, one of ordinary skill in the art would have adjusted the amount of sodium chloride (i.e., salt) in the celery extract during routine optimization to find the celery extract with the desired degree of saltiness without providing an excessive amount of sodium. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed sodium chloride content in the aqueous plant seed medium, 0.1 – 0.3% sodium chloride would thus be obvious.
The modified method of Moore does not teach controllably exposing the celery seed extract to electromagnetic radiation.
Lu teaches a method of microorganism deactivation by irradiating bacteria with UV-LED. Lu teaches ultraviolet (UV) light irradiation (i.e., electromagnetic radiation) is commonly regarded as an effective approach for inactivating pathogenic and spoilage microorganisms. Lu teaches UV disinfection minimizes the overall quality damage to food products compared to conventional thermal treatment and high-pressure processing (p.1, 1. Introduction, paragraph 1).
Moore and Lu are combinable because they are concerned with the same field of endeavor, namely, microorganism inactivation. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize UV light for microorganism inactivation, as taught by Lu in the method of Moore because UV disinfection minimizes the overall quality damage to food products compared to conventional thermal treatment and high-pressure processing.
While Moore does not teach the electromagnetic radiation occurs between heating and cooling the celery seed extract, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have performed the electromagnetic radiation treatment between heating and cooling the celery seed extract.
The modified method of Moore does not teach the electromagnetic radiation source is UV-B.
Lu teaches a method of microorganism deactivation by irradiating bacteria with a pulsed 288nm (i.e., UV-B) UV-LED. Lu teaches UV-LEDs are mercury-free and thus suitable for the food industry (p. 2, 1. Introduction, paragraph 3). Lu teaches UV-LEDs emitting at around 288 nm (i.e., UV-B) show a particularly high inactivation efficiency for some specific bacterial strains (p. 6, 3.1.2. 288 nm UVB-LED, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a 288nm (i.e., UV-B) LED as a UV light source, as taught by Lu in the modified method of Moore because UV-LEDs are suitable for the food industry and UV-LEDs emitting at around 288 nm (i.e., UV-B) show a particularly high inactivation efficiency for some specific bacterial strains.
The modified method of Moore does not teach the UV-B electromagnetic radiation is pulsed.
Lu teaches in pulsed experiments, all modules showed comparable inactivation effects in continuous and pulsed power modes under equivalent UV dose (p. 9, 4. Conclusion, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize pulsed UV-B light, as taught by Lu in the modified method of Moore because one of ordinary skill in the art would have reasonably expected comparable inactivation effects in continuous and pulsed power modes under equivalent UV dose.
The modified method of Moore does not teach the electromagnetic radiation has a pulse duration of less than approximately 5 milliseconds.
Lu teaches the pulse duration is 100 Hz (i.e., 10 milliseconds/pulse – p. 4, 2.4 Pulsed UV-LED irradiation, paragraph 1).
Song teaches a method of microorganism deactivation by irradiating bacteria with a pulsed UV-LED. Song teaches there is no significant difference in the log inactivation of E. coli between the continuous and pulsed irradiation with various frequencies of 0.1 Hz (10 seconds/pulse), 1 Hz (1 second/pulse), 10 Hz (100 milliseconds/pulse), 100 Hz (10 milliseconds/pulse), and 1 k Hz (1 millisecond/pulse – p. 365, 3.2.1 E. coli, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a pulse duration of 5 milliseconds in the modified method of Moore because one of ordinary skill in the art would have reasonably expected pulse durations between 1 millisecond and 10 seconds to exhibit the same effect on a given bacteria.
The modified method of Moore does not teach the celery seed extract (i.e., food product) is exposed to pulsed electromagnetic radiation for a total duration of less than approximately 5 seconds.
Lu teaches the total UV exposure duration ranges from 10 – 90 seconds (p. 4, 2.3. Inactivation experiments, paragraph 3). Lu teaches as total UV exposure time increases, bacteria inactivation increases (Figure 3).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to utilize a total exposure duration of 5 seconds in the modified method of Moore because one of ordinary skill in the art would have reasonably expected to be able to control bacteria inactivation by adjusting total exposure time.
With respect to the limitation that the pulsed UV-B electromagnetic radiation has a percent transmission of less than 80% at below 240 nanometers, Lu teaches the 288nm LED has relatively zero irradiance below 260 nm (Figure 2). Therefore, the UV-B LED of Lu has a percent transmission of less than 80% at below 240 nanometers.
With respect to the limitation that the pulsed UV-B electromagnetic radiation is from a source that is substantially mercury free, Lu teaches UV-LEDs are mercury-free and thus suitable for the food industry (p. 2, 1. Introduction, paragraph 3).
With respect to the limitation that the pulsed UV-B electromagnetic radiation is from a source that is substantially free from generating ozone, as evidenced by Claus, ozone is a product of O2 absorbing light at a wavelength of less than 240nm (p. 1, Abstract). Because the UV-B LED of Lu has relatively zero irradiance below 260 nm, the UV-B LED of Lu is substantially free from generating ozone.
The modified method of Moore does not teach the treatment achieves a greater than 8 Log reduction in undesirable matter in less than 10 seconds.
Hariyadi teaches applying UHT temperatures at or above 148 °C for 1 second provides a 9-log destruction of spores in milk (i.e., an aqueous medium – p. 63, paragraph 1; Figure 6). Hariyadi teaches as the temperature of UHT increases, the amount of time needed to achieve a 9-log reduction decreases (p. 63, paragraph 1; Figure 6). Hariyadi teaches operating at higher temperatures, or for longer than necessary may begin to destroy desirable nutritional components (p. 63, paragraph 1; Figure 6).
Moore and Hariyadi are combinable because they are concerned with the same field of endeavor, namely, ultra-high temperature processing. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the time and temperature of UHT pasteurization in the modified method of Moore during routine optimization to find the method that results in the food additive with the desired destruction of spores (i.e., undesirable matter) while balancing nutritional quality. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed reduction in undesirable matter during UHT and UV treatment of the food product, 8-log, would thus be obvious.
With respect to the limitation that the greater than 8 log reduction in undesirable matter occurs without materially altering the flavor profile and nutritional profile, Moore teaches the advantage to ultra-high temperature processing at 275 °F (135 °C) – 300 °F (149 °C) lies in the fact that the rate of microbe inactivation increases faster at ultra-high temperatures than the rate of the chemical degradation of the product (p. 2, lines 15 – 18). Hariyadi further teaches degradation reactions of biological matter such a spores and vegetative cells (i.e., undesirable matter) have low z-values (8 – 22 °F – p. 61, paragraph 3). Hariyadi teaches degradation reactions of nutritional and flavor compounds have high z-values (44 – 80 °F – p. 61, paragraph 3). A z-value in the context of thermal processing is the temperature change required to reduce a process time by a factor of 10. Therefore by performing UHT within the range of temperatures and times acceptable for preserving the nutritional profile of a composition also preserves the flavor profile. Because the modified method of Moore performs UHT processing at 148 – 149 °C for between one and three seconds, which lies within the range of undesirable matter deactivation and nutrient preservation, as taught by Hariyadi on p. 63, Figure 6, the UHT processing of the modified method of Moore inherently preserves the nutritional and flavor profile of the aqueous celery extract.
Additionally, as evidenced by Csapó, UV treatment in no respect causes more negative changes in composition than the equally efficient mild heat treatment (such as UHT – p. 34, paragraph 4, p. 35, paragraph 1). Therefore, the UV treatment in the modified method of Moore preserves the nutritional profile of the juice.
Further, with respect to the precisely claimed recipe for the aqueous plant seed medium, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of this specific 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.
All the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. The prior art included each element claimed although not necessarily in a single reference, and one of ordinary skill in the art could have combined the elements as claimed by known cooking methods, and in combination, each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. Further, a predictable use of prior art elements according to their established functions to achieve a predictable result is prima facie obvious. See KSR Int'l Inc. v. Teleflex Inc., 127 S Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Soma et al. (US 20210386101 A1) in view of Rodríguez-Daza et al. (Obtaining nitrite from vegetables sources by fermentative process using nitrate-reducing bacteria Sthaphylococcus carnosus and S. xylosus. Revista DYNA. Vol 86. Iss 210. Pp. 254 – 261. (2019)), Moore et al. (EP 0247245 A1), Lu et. al. (Inactivation of foodborne pathogenic and spoilage bacteria by single and dual wavelength UV-LEDs: Synergistic effect and pulsed operation. Food Control. Vol. 125. (2021)), Song et al. (Microorganisms inactivation by continuous and pulsed irradiation of ultraviolet light-emitting diodes (UV-LEDs). Chemical Engineering Journal. Vol. 343. pp. 362 – 370. (2018)), and Hariyadi (Sterilisasi UHT dan Pengesmasan Aseptik. In: SUSU: Berbagai SUmber Nutrisi Pertumbuhan Anak. (pp.53-68). Edition: 1. (2010) – Google Machine Translation), as evidenced by LabMal (Brain Heart Infusion Broth 500g. LabMal. (n.d.) Retrieved from: https://labmal.com/product/brain-heart-infusion-broth-500g/).
Soma teaches a method of inactivating and pasteurizing food additives for the preservation of meat and seafood comprising the steps of:
a. providing a pasteurized source material liquid comprising natural nitrates such as celery seed or celery juice, water, and additional nutrients (Figure 1, 101 – 103; [0030] – [0032]; [0037]);
b. fermenting the source material liquid to produce a broth ([0038]; Figure 1, 104);
treating the broth by inactivating the microorganisms in the broth by, for example, using heat, filtration, pH change etc. ([0043]; Figure 1, 105); and pasteurizing a second time to kill microorganisms, which is accomplished through an UHT pasteurizer (i.e., exposing the food product to ultra-high-temperature processing for a period of time – [0044]); Figure 1, 106).
While Soma does not teach the source material liquid is an aqueous plant seed medium and a fermentation medium prior to combining in fermentation, MPEP § 2144.04.IV.C states selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP § 2144.04.IV.C also states the selection of any order of mixing ingredients is prima facie obvious. Therefore, It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have measured out two (a first and second) source material liquids (i.e., an aqueous plant seed medium and a fermentation medium), then combining them for fermentation.
First Source Material Liquid (i.e., an aqueous plant seed medium)
Soma teaches the source material liquid comprises celery seed and water ([0030] – [0032]).
Soma teaches additional nutrients could be added to the source material liquid (i.e., the first source material liquid) to supplement the existing macro-nutrients and micro-nutrients for the bacterial culture ([0035]). Soma teaches examples of macronutrients could be commonly used carbon and nitrogen sources ([0035]). Soma teaches a commonly used nitrogen source is peptone ([0035]).
Soma does not teach the first source material liquid (i.e., an aqueous plant seed medium) comprises 0.1 – 0.5% peptone.
Rodríguez-Daza teaches a culture media composition for obtaining nitrite from vegetables sources by fermentation comprising celery. Rodríguez-Daza teaches the culture media composition comprises 1% w/v of brain heart infusion (p. 256, Table 1, Fermentable Culture media 1). As evidenced by LabMal, the brain heat infusion broth used by Rodríguez-Daza is 27 wt% peptone. Therefore the culture media composition comprises 0.27% w/v peptone (p. 1, Formula, Proteose peptone).
Soma and Rodríguez-Daza are combinable because they are concerned with the same field of endeavor, namely, obtaining nitrite from vegetables sources by fermentative process. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added 0.27% w/v of peptone to the source material liquid (i.e., an aqueous plant seed medium), as taught by Rodríguez-Daza because Rodríguez-Daza shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed particle size when making a source material liquid (i.e., an aqueous plant seed medium), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Soma teaches a commonly used micronutrients are mineral salts ([0035]).
While Soma does not teach the mineral salt is sodium chloride, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select sodium chloride as the mineral salt in the method of Soma because one of ordinary skill in the art, without evidence to the contrary, would have expected sodium chloride would behave as any other mineral salt in the source material liquid.
Soma does not teach the first source material liquid (i.e., an aqueous plant seed medium) comprises 0.1 – 0.3% sodium chloride.
Rodríguez-Daza teaches a culture media composition for obtaining nitrite from vegetables sources by fermentation. Rodríguez-Daza teaches the culture media composition comprises 0.2% w/v NaCl (p. 256, Table 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added 0.2% w/v NaCl to the source material liquid (i.e., an aqueous plant seed medium), as taught by Rodríguez-Daza because Rodríguez-Daza shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed particle size when making a source material liquid (i.e., an aqueous plant seed medium), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Soma teaches a commonly used nitrogen source is yeast extract (i.e., yeast powder – [0035]).
Soma does not teach the source material liquid (i.e., the first source material liquid) comprises 0.3 – 0.7% yeast powder.
Rodríguez-Daza teaches a culture media composition for obtaining nitrite from vegetables sources by fermentation. Rodríguez-Daza teaches the a culture media composition comprises 0.5% w/v yeast extract (i.e., yeast powder – p. 256, Table 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added 0.5% w/v yeast extract (i.e., yeast powder) to the source material liquid (i.e., an aqueous plant seed medium), as taught by Rodríguez-Daza because Rodríguez-Daza shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed particle size when making a source material liquid (i.e., an aqueous plant seed medium), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Second Source Material Liquid (i.e., a fermentation medium)
Soma teaches the source material liquid (i.e., the second source material liquid) comprises celery juice and water ([0030] – [0032]). Soma teaches the celery juice is a source of natural nitrates ([0030] – [0031]). Soma teaches the source material liquid can have a nitrate concentration of at least 100 ppm to at least 140,000 ppm ([0033]). Soma teaches the source material liquid is automatically adjusted for nitrates ([0032]).
While Soma does not teach the second source material liquid (i.e., a fermentation medium) comprises 25 – 40% celery juice, one of ordinary skill in the art would have adjusted the amount of celery juice in the second source material liquid (i.e., a fermentation medium) during routine optimization to find the second source material liquid (i.e., a fermented medium) with the desired nitrate content, including nitrate content from at least 100 ppm to at least 140,000 ppm. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed celery juice content in the second aqueous plant seed medium (i.e., a fermentation medium), 25 – 40% celery juice would thus be obvious.
Soma teaches additional nutrients could be added to the source material liquid (i.e., the first source material liquid) to supplement the existing macro-nutrients and micro-nutrients for the bacterial culture ([0035]). Soma teaches examples of macronutrients could be commonly used carbon and nitrogen sources ([0035]). Soma teaches a commonly used nitrogen source is peptone ([0035]).
Soma does not teach the second source material liquid (i.e., an aqueous plant seed medium) comprises 0.1 – 0.5% peptone.
Rodríguez-Daza teaches a culture media composition for obtaining nitrite from vegetables sources by fermentation comprising celery. Rodríguez-Daza teaches the culture media composition comprises 1% w/v of brain heart infusion (p. 256, Table 1, Fermentable Culture media 1). As evidenced by LabMal, the brain heat infusion broth used by Rodríguez-Daza is 27 wt% peptone. Therefore the culture media composition comprises 0.27% w/v peptone (p. 1, Formula, Proteose peptone).
Soma and Rodríguez-Daza are combinable because they are concerned with the same field of endeavor, namely, obtaining nitrite from vegetables sources by