DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
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 1-5, 7-9, 12-13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 4,463,026 (CHANDLER) in view of McKeith, A, Alternative Curing, TRADITIONAL VS “NATURAL” CURING, Factsheet Pork Information Gateway, accessed at https://meatscience.org/docs/default-source/publications-resources/fact-sheets/alternative-curing1.pdf?sfvrsn=4030ff77_5 (2014) (MCKEITH).
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CHANDLER teaches a curing salt comprising a precipitated Silica and a diluent (col. 4, lines 40-50). The silica is present to allow free flow of the product and would naturally create a non-hygroscopic environment.
CHANDLER is silent as to adding a celery juice concentrate.
MCKEITH teaches that celery juice concentrate is an excellent curing agent as it naturally contains nitrites (pg. 3, paragraph 2). MCKEITH teaches that vegetable powders such as celery juice powder has can contains nitrites in amounts more than 25,000 ppm (pg. 3, paragraph 2). The range taught by McKeith overlaps and thereby renders obvious the claimed range.
It would have been obvious to add the celery juice concentrate of MCKEITH to CHANDLER, as MCKEITH teaches celery juice, a naturally occurring nitrate source, when combined with a starter culture, is one of the most commonly used sources of nitrite in natural and organic meat products (pg. 3, paragraph 2).
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CHANDLER does not teach the nitrite content. However, CHANDLER does teach that nitrites and/or nitrates can be added (col. 6, lines 55-68).
However, MCKEITH teaches that vegetable powders such as celery juice powder has can contains nitrites in amounts more than 25,000 ppm (pg. 3, paragraph 2). The range taught by McKeith overlaps and thereby renders obvious the claimed range.
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As to claims 3-5, CHANDLER teaches a maximum level of 2 percent, the concentration of the silica particles is generally controlled at a level of 2 percent by weight to levels as low as about 1 percent by weight. (col. 2, lines 15-45). However, it would have been obvious to vary the amount of silica based on the amount needed to maintain the flow of the product. CHANDLER teaches that the particulate silica flow agent is added to assure good flowability (col. 4, lines 25-42).
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As to claims 7 and 8, CHANDLER teaches inorganic metal salts in the form of magnesium silicate (col. 6, lines 5-25). It would have been obvious to one skilled in the to the citrate salt form of magnesium.
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CHANDLER teaches that silicon dioxide is added as a flow agent and can range from 0 to 0.30 % (col. 5, lines 40-44, Table 1). However, it would have been obvious to vary the amount of silicon dioxide based on the amount needed to keep the powder free flowing.
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Chandler teaches the addition of lecithin which does have emulsification and hydrophobic properties and can be added to oil (col. 6, lines 30-50). It would have been obvious to vary the amount of lecithin based on the needed amount of emulsification properties.
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CHANDLER teaches that silica particles can be added with a bulk density of about 3 to about 15 pounds per cubic foot (i.e., 0.05 g/cc to 0.24 g/cc) but silent as the overall bulk density (col. 6, lines 20-38). It would have been obvious to one skilled in the art to vary the bulk density to maintain a stable dispersion (col. 5, liens 20-50).
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CHANDLER teaches a free flowing product with ingredients that remain uniformly distributed (col. 4, lines 35-45, col. 8, lines 20-25). It would have been obvious to provide a composition that does not absorb moisture and is easily reconstituted so that the product continues to flow freely to make sure that the constituents in the mixture remain uniformly distributed.
Moreover, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Claims 6 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over CHANDLER and MCKEITH as applied to claim 1 above, and further in view of United States Patent No. 3,852,487 (VAN WERVEN).
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The references above are both directed to curing agents but silent as to adding binder.
VAN WERVEN teaches providing cured meat products with binders (col. 7, lines 15-30).
It would have been obvious to vary the amount of binder based on the desired texture and reduce fluid loss.
It would have been obvious to add cellulosic materials to the references above, as they help provide texture and reduce fluid loss to the product.
Response to Arguments
Applicant's arguments filed 12/12/2055 have been fully considered but they are not persuasive.
The indefiniteness rejection is withdrawn in view of the changes to the claims.
As to the obviousness rejection, the applicant argues that Chandler does not disclose or suggest a composition that includes a celery juice concentrate. Rather, Chandler is focused on how to provide dl-alpha-tocopherol in a curing material that more uniformly disperses the dl-alpha-tocopherol over meat to be cured. It is also argued that McKeith does not cure the deficiencies of Chandler. McKeith discusses the use of celery juice concentrate in meat curing processes. However, McKeith does not indicate that there was any reason to alter the celery juice concentrate, let alone with the composition described in Chandler. It is only with the improper use of hindsight that one skilled in the art would arrive at the presently claimed invention.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Additionally, both McKeith and Chandler are directed to curing agents/salts. CHANDLER teaches a curing salt comprising a precipitated Silica and a diluent (col. 4, lines 40-50). MCKEITH teaches that celery juice concentrate is an excellent curing agent as it naturally contains nitrites (pg. 3, paragraph 2). “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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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.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791