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 Objections
Claims 1, 11 and 22 are objected to because of the following informalities: the claims recite “two or more off-note blocking compounds” and then require a “combination” of two specific off-note blocking compounds. The claim language is open to including more than two off-note blocking compounds, but it is suggested to remove the phrase “or more” since there are only two off-note blocking compounds listed in each claim.
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) 1-9, 11-13, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2019/228957 (Zhang ‘957) in view of WO 02/100192 (Chien) and WO 2017/037181 (Chakraborty).
Zhang ‘957 teaches suppressing off-notes on non-animal derived proteins contained in consumables using flavor compositions comprising ethyl cyclohexanoate (abstract). The flavor system is combined with ethyl cyclohexanoate and with a protein binder (pages 3 and 5). The protein binders may be selected from terpenes and carbonyls (pages 5-6 list these compounds). Regarding claims 11-13, the consumable may be a meat analogue or a beverage with a high concentration of soy or pea protein (page 8, Examples 1-4). While no example is given combining the ethyl cyclohexanoate with the protein binders (masking agents), Zhang ‘957 expressly teaches such an embodiment.
Zhang ‘957 does not disclose the presence of green coffee extract (chloragenic acid) in combination with the ethyl cyclohexanoate as part of a flavorant for the non-animal derived protein product. Chien discloses chlorogenic acid can be used as a taste modifier for adjusting taste of a consumable in a variety of ways. The off-taste may be imparted by a non-nutritive sweetener, artificial sweetener, alcohol, soy products, or carbonation. For soy products, the taste has been described as beany (page 3). Besides modifying an off-taste, chlorogenic acid may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. Green coffee beans are a good source of chlorogenic acid, thus chlorogenic acid is considered a green coffee extract. Chien discloses that chlorogenic acid is useful in a wide variety of consumables for modifying taste, including vegetable products. Zhang ‘957 discloses products made from leguminous plants, such as soy or pea, display a flavor profile described as grassy, beany, green, earthy, nutty and/or bitter (page 1). Since Chien discloses the usefulness of chlorogenic acid for taste modification of a wide variety of consumables, including soy which is used in Zhang ‘957, it would have been obvious to use chlorogenic acid in the products of Zhang ‘957 with a reasonable expectation of modifying the taste of the consumable. The amounts of chlorogenic acid added may vary depending upon the consumable and the degree of taste modification desired and the suggested amount is 0.0001-0.01%w/v.
Zhang ‘957 does not expressly disclose the amounts of carbonyls and terpenes that may be added but does incorporate by reference WO 2017/037181 (Chakraborty) which discloses inclusion of the protein binder may be in an amount of 0.05-1wt% (page 9) which overlaps the range of claim 16. Regarding ratio of the ethyl cyclohexanoate combined with chlorogenic acid to the off-note blocking agents (protein binders of carbonyls/terpenes), attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the 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. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product.
Regarding claims 2 and 4-8, the claims do not positively require the selection of fatty acids, sulfur compounds, sweet browns, esters other than ethyl cyclohexanoate, sweeteners or lactones.
Claim(s) 22 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/185318 (Zhang ‘318) in view of WO 02/100192 (Chien) and WO 2018/109464 (Fletcher).
Claim 22 is a combination of claims 1 and cancelled claim 20. The combination of references relied upon to meet claim 20 are presented here for new claim 22.
Zhang ‘318 discloses a flavor modifier composition for a meat analog comprising a non-animal protein such as soy (page 18). The flavor modifier composition includes a yeast extract; a fatty acid; peptide material; and two free amino acids. The peptide material is part of a flavor composition and may be derived from rice or peas (page 4). Zhang ‘318 discloses that the flavor modifier compositions may, optionally, include additional ingredients which include, but are not limited to, flavorants, stabilizers, emulsifiers, preservatives, gums, starches, dextrins, vitamins and minerals, functional ingredients, organic acids such as succinic acid and lactic acid, umami compounds, ribotides, vegetable oil, salts, antioxidants and sweeteners (luo han guo, rubusoside, stevioside, glycosylated stevia extract, rebauadiosides (A, C, D, M, X). Zhang describes that by "flavorant" it is meant a composition created by a flavorist using methods known to the skilled person that is a mixture of tastants, aroma compounds and sensates. Examples of suitable flavorants include natural flavors, artificial flavors, spices, seasonings, and the like. Exemplary flavorants include synthetic or natural flavor oils and flavoring aromatics and/or oils, oleoresins, essences, and distillates, and a combination comprising at least one of the foregoing (page 5).
Zhang ‘318 does not disclose the presence of green coffee extract in combination with the rice or pea peptides as part of a flavorant for the meat analog product. Chien discloses chlorogenic acid can be used as a taste modifier for adjusting taste of a consumable in a variety of ways. The off-taste may be imparted by a non-nutritive sweetener, artificial sweetener, alcohol, soy products, or carbonation. For soy products, the taste has been described as beany (page 3). Besides modifying an off-taste, chlorogenic acid may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. Green coffee beans are a good source of chlorogenic acid, thus chlorogenic acid is considered a green coffee extract. Chien discloses that chlorogenic acid is useful in a wide variety of consumables for modifying taste, including vegetable products. Zhang ‘318 discloses products made from leguminous plants, such as soy or pea, display a flavor profile described as grassy, beany, green, earthy, nutty and/or bitter (page 1). Since Chien discloses the usefulness of chlorogenic acid for taste modification of a wide variety of consumables, including soy which is used in Zhang ‘318, it would have been obvious to use chlorogenic acid in the products of Zhang ‘318 with a reasonable expectation of modifying the taste of the consumable. The amounts of chlorogenic acid added may vary depending upon the consumable and the degree of taste modification desired and the suggested amount is 0.0001-0.01%w/v.
Zhang ‘318 discloses the addition of sweeteners such as distillates but does not specify molasses distillates. Fletcher discloses flavoring agents known in the art to impart or help impart a sweet flavor and includes molasses distillates (page 14). Absent a showing of unexpected results, it would have been obvious to one of ordinary skill to use any known flavoring agent that imparts or helps to impart a sweet flavor, such as molasses distillates as disclosed by Fletcher, as the sweetener in Zhang ‘318 with a reasonable expectation of successfully adjusting the taste of the product as desired.
Zhang ‘318 further discloses that a protein binder and one or more off-note blocking compounds (considered to be the claimed masking agents) may be added. The protein binder may include a mixture of a terpene such as farnesol and a carbonyl such as acetone. The off-note blocking compounds include fatty acids such as oleic acid, sweeteners such as steviol glycoside, sulfur compounds such as dimethyl sulfide, lactones such as gamma decalactone, esters such as ethyl caprate, and sweet browns such as maltol (pages 20-22). Zhang ‘318 discloses that the off-note blocking compounds may be present in an amount of 0.1-1wt% and may include a plurality of off-note blocking compounds such as 30 or more compounds (page 22). It would have been obvious to provide multiple off-note blocking compounds as indicated by Zhang to impart the desired taste to the final product and to adjust the relative amounts of each ingredient to achieve the desired taste. Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the 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. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product.
Regarding the ratio of claim 1, Zhang ‘318 discloses that the peptide material may be present in an amount of 0.5-5wt% which contributes to the claimed off-note blocking compounds in addition to the modification adding of chlorogenic acid. Given that the range of off-note blocking compounds (i.e. masking agents) of Zhang ‘318 is 0.1-1wt% and the amount of peptides is 0.5-5wt%, the addition of chlorogenic acid to the peptide flavor modifier composition will result in a ratio of pea/rice peptides and chlorogenic acid to the amount of off-note blocking agents (masking agents) that meets or overlaps the claimed range.
Response to Arguments
Applicant's arguments filed 09/11/2026 have been fully considered but they are not persuasive.
Applicant’s amendment incorporates claim 18 into claims 1 and 11, thus requiring the off-note blocking compounds to be a combination of green coffee extract and ethyl cyclohexanoate. Likewise, new claim 22 is a combination of claim 1 and claim 20 to require the two off-note blocking compounds to be green tea extract and molasses distillates.
The rejection over Zhang ‘957 in view of Chien and Chakraborty of claims 1-9, 11-13 and 16 is maintained. Note that claim 13 was specifically addressed in the rejection mailed 06/11/2026 and the statement of rejection has been corrected to include claim 13 in the list of claims. Applicant argues that every working example of Zhang ‘957 relies on ethyl cyclohexanoate by itself to achieve masking of beany, soy, and bitter off-notes and in the vegetarian meatball study, the best effect was achieved. Applicant concludes that a skilled artisan would have no reason or motivation to add Chien’s structurally unrelated chlorogenic acid to Zhang ‘957. These arguments are not persuasive. Zhang ‘957 discloses that ethyl cyclohexanoate may be admixed with other food additives such as flavor agents, sweeteners etc. (page 3) and that flavor agents may include natural flavors, artificial flavors, flavoring aromatics or oils, distillates and combinations of these and further lists coffee flavors on page 4. Still further, page 5 of Zhang ‘957 states that ethyl cyclohexanoate may be admixed with further off-note maskers and/or flavor systems comprising off-note maskers. Zhang ‘957 states that depending on the final product one may, for example, increase the sweetness or saltiness of a product to mask off-notes such as bitterness. Thus, Zhang ‘957 specifically contemplates the addition of other off-note maskers. Zhang ‘957 is not limited to only the examples and clearly indicates that other off-note maskers may be added. Turning to Chien, one of ordinary skill would have been motivated to use the off-note masker chlorogenic acid (green coffee extract) for its use for masking bitterness and for the described use with soy products. Both Zhang ‘957 and Chien disclose using off-note maskers for soy products and Zhang ‘957 acknowledges that the ethyl cyclohexanoate may be combined with other off-note maskers and Chien describes an off-note masker for bitter and soy taste masking. Chien describes that chlorogenic may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. This is seen to coincide with Zhang ‘957s teaching that one may increase sweetness to mask off-notes such as bitterness and Chien discloses that chlorogenic acid can also enhance sweetness perception. One of ordinary skill in the art would have found ample motivation to use chlorogenic acid in combination with ethyl cyclohexanoate given all the above similarities, express disclosures in Zhang ‘957 to use a combination of off-note maskers, and the additional feature of chlorogenic acid of enhancing sweetness.
Applicant cites Appeal 2020-002183 but this case is not seen to be relevant as it concerns anti-caking agents as opposed to taste modifiers and flavorings.
Applicant argues that the combination fails to disclose or suggest the claimed weight ratio of off-note blocking compounds to masking agents of between 2.5:1 and 500:1. Here, the claims do require the off-note blocking compound to include only the green coffee extract (chlorogenic acid) and separately each of molasses and ethyl cyclohexanoate. The claimed ratio is between all off-note blocking compounds and all masking agents and materials that may be each. For instance, applicant notes that the Office refers to peptide material in Zhang ‘957 (this appears to be a typo as Zhang ‘318 is described as disclosing peptides derived from rice or peas) but the instant claims do not recite peptide material. However, the instant specification recognizes that pea or rice peptides are off-note blocking compounds. The rejection over Zhang ‘318 in view of Chien and Fletcher combines off-note blocking compounds of pea or rice peptides with chlorogenic acid as well as a sweetener in the form of molasses distillates which is also disclosed by applicant to be an off-note blocker. Here, all three are considered to meet the claimed off-note blockers of claim 22. In other words, the ratio claimed is not limited to only the off-note blockers listed in the claims but encompasses non-claimed off-note blockers such as the pea or rice peptides and molasses distillates. As explained in the rejection, in Zhang ‘318, the masking agent (called off-note blockers in Zhang ‘318) may be present in amounts of 0.1-1wt%, the pea or rice peptides (claimed off-note blockers) may be present in an amount of 0.5-5wt% in the meat analog. Further, as noted in the rejection, optimization of the amounts of each off-note blocking compound and the masking agents which also impart flavor and masking properties would have been obvious to one of ordinary skill depending upon the other ingredients in the consumable and the desired final taste profile. Applicant has not disclosed any unexpected results regarding the ratio between the off-note blockers and the masking agents and increasing or decreasing the relative amounts of the off-note blockers and masking agents is seen to be within the purview of one of ordinary skill and indeed will vary depending upon desired taste profiles and other ingredients.
Likewise, Zhang ‘957 in view of Chien and Chakraborty disclose a combination of ethyl cyclohexanoate and chlorogenic acid and protein binders (masking agents). The masking agents are present in amounts of 0.5-1wt%, the ethyl cyclohexanoate is present in amounts up to 15 ppt (1.5 wt%) in a beverage (example 1 of Zhang ‘957) and chlorogenic acid can be added in amounts of 0.0001-0.1wt%. Also, the amount of these materials varies depending upon the consumable as shown in Zhang ‘957 where the content of ethyl cyclohexanoate in a beverage varies from a meatball. One of ordinary skill would have found it obvious to vary the amounts of each compound that affects the flavor of a consumable. Such optimization is well within the purview of one of ordinary skill and no showing of anything unexpected has been found in the record.
Regarding Fletcher, applicant argues that using molasses distillates as flavoring agents does not provide one of ordinary skill with any reason or motivation to modify Zhang ‘957 to include such compounds as off-note blocking compounds. The rejection of claim 22 above is over Zhang ‘318 which discloses the addition of sweeteners. Fletcher discloses flavoring agents that impart a sweet flavor and includes molasses distillates as one such agent. Thus, based upon the disclosure of Zhang ‘318 that sweeteners may be used and disclosure of Fletcher that molasses distillates provide sweet flavor, one of ordinary skill would have found it obvious to use a known material suggested by Fletcher to provide the desire sweet flavor. While the instant disclosure refers to molasses distillates as an off-note blocker, this does not negate its property of providing sweet flavor as disclosed by Fletcher.
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).
Here, new claim 22 was rejected with the same art and has relied upon the same teachings. Since the claim is new, the rejection is also considered new. Similarly, claims 1 and 11 were amended to include dependent claim 18.
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 JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tiffany Legette-Thompson can be reached at 5712707078. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1723
/Jennifer McNeil/Primary Examiner, Art Unit 1723
Prosecution Insights