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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claims 1-9 and 20-25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/30/2025.
Applicant’s election without traverse of claims 10-19 in the reply filed on 09/30/2025 is acknowledged.
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.
Claim 19 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 19 recites the broad recitation “wherein the weight ratio of propionate to acetate salts ranges from 10:90 to 90:10”, and the claim also recites “preferably wherein the portion of propionate salts exceeds the portion of acetate salts in weight, such as a ratio between 50:50 to 90:10”, and “with more preference wherein in the weight ratio of propionate to acetate salts is about 80:20”, that are narrower statements of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Further regarding claim 19, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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(s) 10-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Visser et al (EP 2 227 965 A1) in view of Eady et al (Detection of Salmonella from chicken rinsate with visible/near-infrared hyperspectral microscope imaging compared against RT-PCR).
Independent claim 10 recites the following:
Method for inhibiting growth of gram-negative bacteria in or on a meat product, comprising
treating said meat product with a combination of sodium salts of propionate and acetate, wherein said combination is provided as a powder composition comprising sodium salts of propionate and acetate; and
testing for the presence of gram-negative bacteria in or on the meat product.
In regard to claim 10, Visser et al discloses treatment of meat with a composition comprising sodium salts of propionate and acetate (Abstract, [0008], [0009], [00010], [0017]).
In regard to the recitation of “inhibiting growth of gram-negative bacteria in or on a meat product”, Visser et al discloses:
The present invention may be used against various micro-organisms such as yeasts, molds and bacteria. Preferably the present invention is used for improving the resistance of food and drink products and in particular meat products against food spoilage and food poisoning bacteria such as Listeria (in particular Listeria Monocytogenes spp), Escherichia coli (in particular Escherichia coli 0157:H7 spp), Salmonella (in particular Salmonella typhimurium spp, Salmonella enteriditis spp), Pseudomonas spp, Enterobacter (in particular Enterobacter Sakazaki spp), Clostridium (in particular Clostridium botulinum and Clostridium perfringens) and Campylobacter (in particular Campylobacter jejuni spp) ([0014]).
It is noted that Escherichia coli, Salmonella, Pseudomonas spp, Enterobacter, Campylobacter are gram-negative bacteria. Visser et al also discloses that “[t]he components of the antibacterial composition may be present on the surface of said products or inside the products” ([0015]). Therefore, Visser et al meets the limitation of inhibiting growth of gram-negative bacteria in or on a meat product.
In regard to the recitation of the meat product, Visser et al discloses:
Examples of suitable uncooked/fresh real meat products are beef, ground beef, beef steak, beef oxtails, neckbones, short ribs, beef roasts, stew meat, beef briskets, pork, pork chops, pork steaks, cutlets, pork roasts, lamb, veal, game goat, filet américain, steak tartar, patties or carpaccio. Examples of fresh poultry include chicken, turkey, duck and other poultry such as cornish hen, dove, quail and pheasant. Examples of fresh fish includes both finfish (fillet, anchovy, barracuda, carp, catfish, cod, croaker, eel, flounder, haddock, herring, mackerl, mullet, ocean perch, pike, pompano, porgy, ray, salmon, sardines, sea bass, shark, smelt, sturgeon, swordfish, trout, tuna, whiting), shellfish (abalone, clams, crouch, crab, crayfish, lobster, mussels, oysters, scallops, shrimp and snails) and other seafoods such as jellyfish, octopus, roe, squid, turtle, frog legs ([0012]).
Examples of suitable cooked meat products are roast beef, roast lamb, roast pork, ham, salami, frankfurters and other sausages. Examples of suitable cured meat products are cured pork ham, frankfurters, and other cured sausages. Examples of suitable uncured meat products are cooked chicken, turkey meat, and roast beef or lamb ([0013]).
In regard to o the recitation of the powder composition, Visser et al discloses that propionate and acetate may be added is solid, particulate form or dissolved in an aqueous solution ([0017]). Hence, Visser et al meets the limitation of the salt composition being in powder form (i.e. “solid, particulate form”).
Visser et al does not disclose testing for the presence of gram-negative bacteria in or on the meat product.
Eady et al discloses importance of testing food products for the presence of gram-negative bacteria (Introduction section):
1. Introduction
The detection of foodborne pathogens is a vital public health issue that the food industry currently faces. The presence of gram-negative Enterobacteriaceae bacteria such as Salmonella Typhimurium in meat, poultry, and other agricultural products has been known to be a leading cause of gastroenteritis, among other illnesses, in humans [1]. The prevalence of Salmonella in the food industry poses a public health risk, and results in millions of dollars spent annually in the United States on medical treatments [2]. While there are various methods for the detection of Salmonella strains and other pathogens in food samples, the challenge lies in efficiency—a method that can detect extremely small concentrations of the pathogen in a relatively short period of time.
One of ordinary skill in the art would have been motivated to modify Visser et al in view of Eady et al and to perform testing for the presence of gram-negative bacteria in or on the meat product in order to avoid public health risk which results in millions of dollars spent annually in the United States on medical treatments as suggested by Eady et al.
In regard to claims 11-14, Visser et al discloses Escherichia coli (i.e. Enterobacteriaceae family), Salmonella (in particular Salmonella typhimurium spp, Salmonella enteriditis spp) :
The present invention may be used against various micro-organisms such as yeasts, molds and bacteria. Preferably the present invention is used for improving the resistance of food and drink products and in particular meat products against food spoilage and food poisoning bacteria such as Listeria (in particular Listeria Monocytogenes spp), Escherichia coli (in particular Escherichia coli 0157:H7 spp), Salmonella (in particular Salmonella typhimurium spp, Salmonella enteriditis spp), Pseudomonas spp, Enterobacter (in particular Enterobacter Sakazaki spp), Clostridium (in particular Clostridium botulinum and Clostridium perfringens) and Campylobacter (in particular Campylobacter jejuni spp) ([0014]).
In regard to claim 15, Visser et al discloses raw meat:
Examples of suitable uncooked/fresh real meat products are beef, ground beef, beef steak, beef oxtails, neckbones, short ribs, beef roasts, stew meat, beef briskets, pork, pork chops, pork steaks, cutlets, pork roasts, lamb, veal, game goat, filet américain, steak tartar, patties or carpaccio. Examples of fresh poultry include chicken, turkey, duck and other poultry such as cornish hen, dove, quail and pheasant. Examples of fresh fish includes both finfish (fillet, anchovy, barracuda, carp, catfish, cod, croaker, eel, flounder, haddock, herring, mackerl, mullet, ocean perch, pike, pompano, porgy, ray, salmon, sardines, sea bass, shark, smelt, sturgeon, swordfish, trout, tuna, whiting), shellfish (abalone, clams, crouch, crab, crayfish, lobster, mussels, oysters, scallops, shrimp and snails) and other seafoods such as jellyfish, octopus, roe, squid, turtle, frog legs ([0012]).
In regard to claim 16, Visser et al discloses that the presence of lactate salts is optional ([0010], [0019]).
In regard to claim 17, Visser et al discloses that propionate and acetate salts could be added in combination or separately ([0017]). Hence, the sodium salts may be added separately, which reads on a composition consisting of sodium salts of propionate and acetate.
In regard to claim 18, Visser et al discloses “[t]he components of the antibacterial composition may be present on the surface of said products or inside the products” ([0015]). Hence, any conventional technique for surface or inner application of an antibacterial salt composition would be appropriate absent any clear and convincing evidence to the contrary.
In regard to claim 19, Visser et al discloses:
In a preferred embodiment the ratio of acetate/propionate is in the range of 0.05 to 2 and even more preferred in the range of 0.5 to 1.5 while most preferred is a range of 0.6 to 1.2 ([0007]).
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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) (MPEP 2144.05, II A).
Further, regarding the temperature ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Federalregister.gov (Food Ingredients and Sources of Radiation Listed and Approved for Use in the Production of Meat and Poultry Products, A Rule by the Food Safety and Inspection Service on 03/07/2013) discloses sodium propionate as acceptable antimicrobial agents that may be used in combination with other approved ingredients to inhibit the growth of Listeria monocytogenes ( Lm) in ready-to-eat (RTE) meat and poultry products. Federalregister.gov also discloses using sodium propionate and sodium diacetate in combination with each other.
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/VERA STULII/Primary Examiner, Art Unit 1791