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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed April 17, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 3-6, 8-15
Withdrawn claims:
9-15
Previously canceled claims:
2, 7
Newly canceled claims:
None
Amended claims:
None
New claims:
None
Claims currently under consideration:
1, 3-6, 8
Currently rejected claims:
1, 3-6, 8
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 4-6, 8 are rejected under 35 U.S.C. 103 as being unpatentable over Baublits (US 2009/0098254 A1)(IDS Reference filed 01/22/2025) in view of Campano (US PGPub 2011/0028550 A1)(IDS Reference filed 01/22/2025), Singh (US 2007/0207257 A1)(IDS Reference filed 01/22/2025), and Stojiljkovic (Stojiljkovic, Nenad, et al. “The encapsulation of lycopene in nanoliposomes enhances its protective potential in methotrexate-induced kidney injury model”, Oxidative Medicine and Cellular Longevity, Vol. 2018, Article 2627917, published March 13, 2018 [accessed online January 6, 2026]).
Regarding claim 1, Baublits teaches a composition for improving sensory and shelf life characteristics of raw meat products comprising an organic acid and bioflavonoid compound (Abstract), where the organic acid can be any organic acid suitable for meat products, including acetic acid, and that the bioflavonoid may be anthocyanidins, and are present in an amount from about 0.001 to about 7.5 wt.% ([0020], which encompasses the claimed range of “between about 0.04 and 2.5% (w/w)”).
Baublits does not teach the composition comprising between 40 and 80% (w/w) of an organic acid component comprising an acid equivalent of lactate, between 0.3 and 10 mg/kg of a carotenoid, or wherein the source of the carotenoid is encapsulated lycopene.
Regarding the composition comprising between 40 and 80% (w/w) of an organic acid component comprising an acid equivalent of lactate, Campano teaches of a method for inhibiting growth of pathogenic microbes in food products using a preservative composition (Abstract). Campano also teaches that the antimicrobial composition comprises at least about 40% by weight lactic acid or a salt thereof, at least 10% by weight of acetic acid or a salt thereof, and at least about 10% by weight propionic acid or a salt thereof ([0045]), which results in a total amount of at least 60% w/w acid component, which overlaps with the claimed range of “between 40 and 80% (w/w)”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition for improving shelf life taught by Baublits with the use of the acid component comprising lactate at the amount taught by Campano. One would have been motivated to make this modification because Campano teaches that the pH of the antimicrobial composition may impact the effect it has on microbes ([0046]) and one of ordinary skill would recognize that the acid component is the leading factor in determining the pH of the composition. Thus, one of ordinary skill in the art would have added the amount of acid as taught by Campano because Campano teaches a composition that inhibits growth of pathogenic microbes in food (Abstract).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the composition comprising between 0.3 and 10 mg/kg of a carotenoid, Singh teaches a carotenoid stabilizing composition (Abstract) and that the composition can comprise carotenoids such as lycopene ([0043]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition for preserving raw meat taught by Baublits with the addition of a carotene composition taught by Singh. One would be motivated to make this modification because, as taught by Singh, consumers are informed about freshness and desirability by a food’s interior and exterior color, and unexpected colors are negatively perceived by consumers ([0005]) and that the use of the carotenoid stabilizing composition stabilizes the meat product so that it retains its internal and external color ([0025]).
Regarding the carotenoid source being encapsulated lycopene, Stojiljkovic teaches that encapsulated lycopene showed a stronger antioxidant than free lycopene (p. 9, col. 2, Conclusion).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Baublits in view of Singh with the use of encapsulated lycopene as taught by Stojiljkovic. One of ordinary skill would have been motivated to make this modification because Stojiljkovic teaches that encapsulated lycopene showed a stronger antioxidant than free lycopene (p. 9, col. 2, Conclusion).
Regarding claim 4, Baublits also teaches that the bioflavonoid may be anthocyanidins and are present in an amount from about 0.001 to about 7.5 wt.% ([0020]), which encompasses the claimed range of “between about 0.08 and 1.2% (w/w)”.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 5, Baublits does not teach the composition comprising between 0.5-8 mg/kg of a carotenoid.
However, in the same field of endeavor, Singh teaches a carotenoid stabilizing composition (Abstract) where the carotenoid composition may be an oleoresin from paprika ([0031]) in an amount of less than 1% by weight ([0033]), which encompasses the claimed range of “0.5-8 mg/kg” (equivalent to 0.00005 and 0.0008%).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition for preserving raw meat taught by Baublits with the addition of a carotene composition taught by Singh. One would be motivated to make this modification because, as taught by Singh, consumers are informed about freshness and desirability by a food’s interior and exterior color, and unexpected colors are negatively perceived by consumers ([0005]) and that the use of the carotenoid stabilizing composition stabilizes the meat product so that it retains its internal and external color ([0025]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 6, As stated above, Baublits teaches that the composition may comprise anthocyanidins in an amount from about 0.001 to about 7.5 wt.% ([0020]).
Baublits does not teach the ratio of anthocyanidin to carotenoid as being in the range of 300:1 to 6000:1.
However, as stated above, Singh teaches a composition comprising less than 1% carotenoid composition.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition for preserving raw meat taught by Baublits with the addition of a carotene composition taught by Singh. One would be motivated to make this modification because, as taught by Singh, consumers are informed about freshness and desirability by a food’s interior and exterior color, and unexpected colors are negatively perceived by consumers ([0005]) and that the use of the carotenoid stabilizing composition stabilizes the meat product so that it retains its internal and external color ([0025]).
In an embodiment where the composition comprises 7.5% anthocyanidin and 0.02% carotenoid, the ratio of anthocyanidin to carotenoid would be 375:1, which falls in the claimed range of “300:1 to 6000:1”.
Regarding claim 7, Baublits does not teach wherein the carotenoid is lycopene.
However, in the same field of endeavor, Singh teaches that the composition can comprise carotenoids such as lycopene ([0043]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition for preserving raw meat taught by Baublits with the addition of lycopene taught by Singh. One would be motivated to make this modification because, as taught by Singh, consumers are informed about freshness and desirability by a food’s interior and exterior color, and unexpected colors are negatively perceived by consumers ([0005]) and that the use of the carotenoid stabilizing composition stabilizes the meat product so that it retains its internal and external color ([0025]).
Regarding claim 8, Baublits also teaches the invention comprises at least one bioflavonoid (Abstract), where bioflavonoids are a type of polyphenol. One of ordinary skill in the art would recognize that a second bioflavonoid could be added to the composition along with the anthocyanidin as discussed above. Therefore, the composition of Baublits can comprise 0.001 to 7.5 wt.% of polyphenols as bioflavonoids ([0020]), which encompasses the claimed range of “200-10000 mg/kg” (equivalent to 0.02-1%).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Baublits (US 2009/0098254 A1)(IDS Reference filed 01/22/2025) in view of Campano (US PGPub 2011/0028550 A1)(IDS Reference filed 01/22/2025), Singh (US 2007/0207257 A1)(IDS Reference filed 01/22/2025), and Stojiljkovic (Stojiljkovic, Nenad, et al. “The encapsulation of lycopene in nanoliposomes enhances its protective potential in methotrexate-induced kidney injury model”, Oxidative Medicine and Cellular Longevity, Vol. 2018, Article 2627917, published March 13, 2018 [accessed online January 6, 2026]) as applied to claim 1 above, and further in view of Ramirez-Hernandez (Ramirez-Hernandez, Alejandra, et al. “Efficacy of Lactic Acid, Lactic Acid-Acetic Acid Blends, and Peracetic Acid to Reduce Salmonella on Chicken Parts under Simulated Commercial Processing Conditions”. Journal of Food Protection, Vol . 81, No. 1, p. 17-24, published December 13, 2017 [accessed online 2/27/2025]).
Regarding claim 3, The cited prior art does not teach the composition comprising acetate and lactate in a molar ratio of acetate:lactate of 3:1 to 1:8.
However, in the same field of endeavor, Ramirez-Hernandez teaches of a study evaluating a lactic acid-acetic acid blend for reducing loads of Salmonella in chicken (p.18, right-hand col., ¶ 3).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Baublits with the use of a blend of lactic acid and acetic acid as taught by Ramirez-Hernandez. One would be motivated to make this modification because, as taught by Ramirez-Hernandez, the lactic acid-acetic acid blend produced a significant reduction in bacteria levels in skin-on chicken thighs compared with the control (p. 20, left-hand col., ¶ 2).
Although Ramirez-Hernandez does not teach the molar ratio of the lactic acid-acetic acid blend, one of ordinary skill in the art would have adjusted the molar ratio of acetic acid to lactic acid during routine optimization to find the ratio of acetic acid to lactic acid that results in the best composition to preserve meat. 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 ratio would thus be obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 4-6, and8 over Baublits, Campano, Singh, and Stojiljkovic: Applicant’s arguments filed April 17, 2026 have been fully considered but they are not persuasive.
Applicant argued that the office relies on Stojiljkovic only for the encapsulated lycopene, and that a generic teaching in a biomedical study does not supply an articulated reason with rational underpinning for selected encapsulated lycopene in a meat preservation composition. Applicant further argued that Stojiljkovic is not directed to food preservation, meat color stability, or preservative compositions and is silent regarding various properties (Remarks, p. 6, ¶ 1-4).
This argument has been considered. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the composition being intended for food preservation) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The Examiner maintains that one of ordinary skill in the art would have been motivated to use encapsulated lycopene as the carotenoid source of Baublits in view of Campano and Singh with a reasonable expectation of success because Stojiljkovic teaches that teaches that encapsulated lycopene showed a stronger antioxidant than free lycopene (p. 9, col. 2, Conclusion). The combinations of the compositions taught by the prior art would result in nothing less than a reasonable expectation of success.
Additionally, MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” The Applicant has failed to provide evidence to show that there was a lack of reasonable expectation of success in combining the compositions of Baublits, Campano, Singh, and Stojiljkovic.
Additionally, Stojiljkovic is merely relied upon to teach encapsulated lycopene as a carotenoid source as described above. 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). Examiner maintains that Stojiljkovic is adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
Applicant further argued that one of ordinary skill in the art would not have been motivated to employ the lycopene in a meat preservation composition, and wouldn’t have had a reasonable expectation of success (Remarks, p. 6, ¶ 5- p. 7, ¶ 1).
This argument has been considered. However, the Examiner maintains that one of ordinary skill in the art would have been motivated to use encapsulated lycopene as the carotenoid source of Baublits in view of Campano and Singh with a reasonable expectation of success because Stojiljkovic teaches that teaches that encapsulated lycopene showed a stronger antioxidant than free lycopene (p. 9, col. 2, Conclusion). The combinations of the compositions taught by the prior art would result in nothing less than a reasonable expectation of success. MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” The Applicant has failed to provide evidence to show that there was a lack of reasonable expectation of success in combining the compositions of Baublits, Campano, Singh, and Stojiljkovic.
Applicant also asserts that the rejection rests on impermissible hindsight (Remarks, p. 7, ¶ 2).
This argument has been considered. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The Examiner maintains that it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the instant application to have added the encapsulated lycopene of Stojiljkovic as the carotenoid source in the composition of Baublits, Campano, and Singh.
Applicant then argued that the specification evidences unexpected results for the claimed composition (Remarks, p. 7, ¶ 3- p. 9, ¶ 2).
This argument has been considered. However, the Examiner maintains that the data provided by the instant specification is not commensurate in scope with the claimed invention. MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” At present, claim 1 is broader than the data provided in the examples. Thus, the provided data does not demonstrate unexpected results for the claimed composition.
Claim Rejections – 35 U.S.C. §103 of claim 3 over Baublits, Campano, Singh, Stojiljkovic, and Ramirez-Hernandez: Applicant’s arguments filed April 17, 2026 have been fully considered but they are not persuasive.
Applicant argued that because claim 1 is non-obvious, claim 3 is therefore also non-obvious (Remarks, p. 9, ¶ 3-4).
This argument has been considered. However, Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 1, 3-6, 8 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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 Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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