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 § 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 22 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.
Regarding claim 22, claim 22 recites “the surface of the dough product”. There is insufficient antecedent basis “the dough product”.
Claim Rejections - 35 USC § 103
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.
Claims 1, 4, 6, 8, 10-13, 15, 17, 19, 20, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Campano et al. US 2011/0028550 in view of De Levita et al. US 2005/0136166 in view of Visser et al. US 2012/0115952.
Regarding claim 1, Campano discloses a method of producing a microbiologically stable product (food product with inhibited growth of pathogenic microbes) ([0002], [0046], [0033]), the method comprising, a) blending a food product with an organic acid preservative composition ([0021]-[0023], and c) baking the resulting food product ([0024]). Campano discloses that the organic acid preservative composition comprises:
(i) an acetate component comprising acetic acid or one or more acetic acid salts ([0034], [0042], [0043]) and (ii) a propionate component comprising propionic acid or propionic acid salt ([0034], [0040]).
Claim 1 differs from Campano in the recitation that the organic acid preservative composition is specifically blended with a dough and that the method comprises shaping or molding the dough prior to baking.
De Levita discloses a method of producing a microbiologically stable edible farinaceous product comprising blending a dough with an organic acid preservative composition ([0002], claim 1, 57, [0021], [0050]). De Levita discloses molding the dough ([0143]) and baking the molded dough to produce an edible product ([0145]). De Levita discloses that any suitable preservative or combination of preservatives can be used ([0043]). It is noted that De Levita discloses that the preservative can be added in a low concentration, such as less than 0.5% ([0027]). Thus, DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm).
Since Campano broadly teaches that the preservative can be applied to food products (MPEP 2123), and is therefore not limiting as to the particular food product to which the preservative can be applied, and since De Levita shows a common food product to which preservatives are added to includes dough, it would have been obvious to one of ordinary skill in the art to modify the method of Campano to be for producing a microbiologically stable edible farinaceous food product, specifically including the steps of blending a dough with the organic acid preservative of Campano, molding the dough and baking the molded dough to produce an edible product as taught by De Levita, thereby combining known prior art elements according to known methods to yield the predictable result of providing a microbiologically stable edible farinaceous product. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2141.III.A, MPEP 2144.06.II)
Further regarding claim 1, claim 1 differs from Campano in view of De Levita in the recitation that the acetate component and the propionate component are present in a ratio within the range of 0.2/1 to 0.4/1
Visser teaches a composition comprising about 1 to 65wt% propionate, an 1-44wt% acetate and 0 to 62wt% lactate ([0044]) and teaches a weight based ratio of acetate to propionate can be 0.05 to 3.5 (i.e. 0.05:1 to 3.5:1) in other words the ratio of propionate to acetate can be from 1:0.05 to 1:3.5 (put in to similar form as the claims the ratio of propionate to acetate is 20:1 to 0.28:1) and that the ratio provides increased resistance to microorganisms such as molds, yeasts and food spoilage or food poisoning bacteria, while at the same time the taste of the food and drink product is not detrimentally affected and is even improved in some aspects ([0009], [0011] abstract, claim 1), Visser also discloses that the invention provides improved sensory properties for food products (Abstract, [0032], claim 1). It is noted that sensory properties of food products include aroma. Thus, Visser suggests utilizing a ratio of propionate component to acetate component such as 0.28/1, and that such ratio provides a food product with improved sensory properties. It would have been obvious to one of ordinary skill in the art to specifically select ratio of 0.28/1 as suggested by Visser in order to provide the food product with improved sensory properties.
Regarding the remaining limitation that mold is not visible on the edible farinaceous product for at least 5 days from baking when the edible farinaceous product is held at 78 °F, it is noted that the specification does not specify a specific amount of preservative that results in mold not appearing on the on the edible farinaceous product (pg. 15 lines 15-22). The specification discloses in the next paragraph that satisfactory results can be attained by applying the acetate component in an amount of 500-40,000ppm. And that satisfactory results can be obtained by applying the preservative in a quantity providing a dosage of 25-20,0000ppm of the propionate component (Pg. 16, lines 1-7).
DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm). Thus, DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm).
It is noted that Campano generically teaches that the preservative composition can comprise about 1-80wt% lactic acid or salt thereof, about 1 -20wt% acetic acid or salt thereof and about 1-20wt% propionic acid or a salt thereof (‘550, claims 1, 4).
Based on the art as whole above, the preservative composition can comprise 1% lactate component, 3% propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component) and when a preservative composition with 3% propionic component is added to the dough of DeLevita at 0.5%, the dough comprises 0.015% propionate component which equates to 150ppm propionate component (3% propionate component of 0.5%preservative = 0.015%=150ppm), which is inside the range of propionate component claimed in claim 1. When a preservative composition 10.71% acetate component is added to the dough of DeLevita at 0.5%, the dough comprises 0.05355% acetate component which equates to 535.5ppm, which is inside the claimed range of acetate component for claim 1.
Additionally, regarding the remaining limitations based on the art as whole above, the preservative composition can comprise 1% lactate component, 3 % propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component). The prior art as a whole suggests that the acetate component and the propionate component make up at least 85wt% of the total amount of carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 13.71/14.71%= 93wt%) (claim 1, 4). The prior art as a whole discloses that the propionate component makes up 20.3wt% of the carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 3%/14.71%= 20.3%) (claim 1, 4).
Campano in view of De Levita in view of Visser discloses that the method inhibits mold growth (‘550, [0002]) (‘166, [0043]-[0045]).
Therefore, since the prior art makes obvious adding the propionate and acetate components to dough in the claimed amounts, it is expected that mold is not visible on the edible farinaceous product for at least 5 days from baking when the edible farinaceous product is held at 78 °F (‘166, [0046]). 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, claimed properties or functions are presumed to be inherent (MPEP 2112.01).
Regarding claim 4, Campano in view of De Levita in view of Visser discloses that the dough comprises flour, water, yeast, and salt in amounts for forming dough (‘166, [0115]). It is additionally noted that “in amounts for forming dough” has been interpreted as any amount of the recited ingredients that can be used to form a dough.
Regarding claim 5, Campano in view of De Levita in view of Visser discloses that the method inhibits mold growth (‘550, [0002]) (‘166, [0043]-[0045]).
Regarding the limitation that the preservative composition enhances the aroma of the farinaceous product, it is noted that Visser as already relied upon above, teaches a composition comprising about 1 to 65wt% propionate, an 1-44wt% acetate and 0 to 62wt% lactate ([0044]) and teaches a weight based ratio of acetate to propionate can be 0.05 to 3.5 (i.e. 0.05:1 to 3.5:1) in other words the ratio of propionate to acetate can be from 1:0.05 to 1:3.5 (put in to similar form as the claims the ratio of propionate to acetate is 20:1 to 0.28:1) and that the ratio provides increased resistance to microorganisms such as molds, yeasts and food spoilage or food poisoning bacteria, while at the same time the taste of the food and drink product is not detrimentally affected and is even improved in some aspects ([0009], [0011] abstract, claim 1), Visser also discloses that the invention provides improved sensory properties for food products (Abstract, [0032], claim 1). It is noted that sensory properties of food products include aroma. Thus, Visser suggests utilizing a ratio of propionate component to acetate component such as 0.28/1, and that such ratio provides a food product with improved sensory properties. It would have been obvious to one of ordinary skill in the art to specifically select ratio of 0.28/1 as suggested by Visser in order to provide the food product with improved sensory properties. Since sensory properties include aroma, it is obvious that the preservative composition made obvious by Campano in view of De Levita in view of Visser enhances the aroma of the farinaceous product.
Regarding claim 6, since Campano discloses that the propionate acid component can comprise propionic acid or salts thereof including sodium propionate or calcium propionate (‘550, [0034], [0039], [0040], claim 1, 4), Campano is seen to suggest that both the propionic acid and salts thereof are suitable for use as the propionate acid component, therefore it would have been obvious to use them in combination.
Regarding claim 8, since Campano discloses that the acetate component can be acetic acid or salt thereof including sodium acetate (‘550, [0034], [0042], [0043], claim 1, 4), Campano is seen to suggest that both the acetic acid and salts thereof are suitable for use as the acetate component, therefore it would have been obvious to use them in combination.
Regarding claim 10, Campano in view of De Levita in view of Visser discloses that the organic acid preservative composition further comprises a lactate component comprising lactic acid or lactic acid salts (‘550, [0034]-[0037], claim 1, 4).
Regarding claim 11, Campano discloses a diluted form of the composition can have a pH such as 5 (‘550, [0047]), therefore it would have been obvious to one of ordinary skill in the art to modify the preservative system to have a pH value such as 5 when dissolved in water at 10% (w/v). It is noted that in view of the recitation, “when,” the claim does not explicitly require the preservative composition to be dissolved in water at 10%.
Regarding claim 21, since Campano discloses that the propionate acid component can comprise propionic acid or salts thereof including sodium propionate or calcium propionate (‘550, [0034], [0039], [0040], claim 1, 4), Campano is seen to suggest that both the propionic acid and salts thereof are suitable for use as the propionate acid component, therefore it would have been obvious to use them in combination. Therefore, Campano discloses that the propionic component consists of calcium propionate and propionic acid (‘550, [0039], [0040]).
Regarding claim 22, it is noted that claim 22 raises 112b issues as discussed above. It is noted that Campano does not require a step of applying a preservative to the surface of the food product, and De Levita discloses that a preservative or pH adjusting agent can be applied to the surface (‘166, [0039], [0053]). Therefore, where only the pH adjusting agent is added to the surface, the method does not comprise an additional step of applying the specific organic acid preservative composition to the surface of the dough.
Regarding claim 12, Campano discloses a food product ([0020]) comprising an organic acid preservative composition comprising:
(i) an acetate component comprising acetic acid or one or more acetic acid salts ([0034], [0042], [0043]) and (ii) a propionate component comprising propionic acid or propionic acid salt ([0034], [0040]).
Claim 12 differs from Campano in the recitation that the food product is specifically a dough comprising flour and water and the organic acid preservative composition.
De Levita discloses a dough comprising flour, water and an organic acid preservative composition ([0002], claim 1, 57, [0021], [0050]).
Since Campano broadly teaches that the preservative can be applied to food products (MPEP 2123), and since De Levita shows a common food product to which preservatives are added to includes dough, it would have been obvious to one of ordinary skill in the art to modify Campano such that the food product is specifically a dough comprising flour and water and the organic acid preservative composition as taught by De Levita, thereby combining known prior art elements according to known methods to yield the predictable result of providing a preserved dough product. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2141.III.A, MPEP 2144.06.II).
Further regarding claim 12, claim 12 differs from Campano in view of De Levita in the recitation that the acetate component and the propionate component are present in a ratio within the range of 0.2/1 to 0.4/1
Visser teaches a composition comprising about 1 to 65wt% propionate, an 1-44wt% acetate and 0 to 62wt% lactate ([0044]) and teaches a weight based ratio of acetate to propionate can be 0.05 to 3.5 (i.e. 0.05:1 to 3.5:1) in other words the ratio of propionate to acetate can be from 1:0.05 to 1:3.5 (put in to similar form as the claims the ratio of propionate to acetate is 20:1 to 0.28:1) and that the ratio provides increased resistance to microorganisms such as molds, yeasts and food spoilage or food poisoning bacteria, while at the same time the taste of the food and drink product is not detrimentally affected and is even improved in some aspects ([0009], [0011] abstract, claim 1), Visser also discloses that the invention provides improved sensory properties for food products (Abstract, [0032], claim 1). It is noted that sensory properties of food products include aroma. Thus, Visser suggests utilizing a ratio of propionate component to acetate component such as 0.28/1, and that such ratio provides a food product with improved sensory properties. It would have been obvious to one of ordinary skill in the art to specifically select ratio of 0.28/1 as suggested by Visser in order to provide the food product with improved sensory properties.
It is noted that Campano generically teaches that the preservative composition can comprise about 1-80wt% lactic acid or salt thereof, about 1 -20wt% acetic acid or salt thereof and about 1-20wt% propionic acid or a salt thereof (‘550, claims 1, 4).
Based on the art as whole above, the preservative composition can comprise 1% lactate component, 3% propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component) and when a preservative composition with 3% propionic component is added to the dough of DeLevita at 0.5%, the dough comprises 0.015% propionate component which equates to 150ppm propionate component (3% propionate component of 0.5%preservative = 0.015%=150ppm), which is inside the range of propionate component claimed in claim 12. When a preservative composition 10.71% acetate component is added to the dough of DeLevita at 0.5%, the dough comprises 0.05355% acetate component which equates to 535.5ppm, which is inside the claimed range of acetate component for claim 12.
Additionally, regarding the remaining limitations based on the art as whole above, the preservative composition can comprise 1% lactate component, 3 % propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component). The prior art as a whole suggests that the acetate component and the propionate component make up at least 85wt% of the total amount of carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 13.71/14.71%= 93wt%) (claim 1, 4). The prior art as a whole discloses that the propionate component makes up 20.3wt% of the carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 3%/14.71%= 20.3%) (claim 1, 4).
Regarding claim 15, claim 15 is rejected for the same reasons given above as for claim 6.
Regarding claim 17, claim 17 is rejected for the same reasons given above as for claim 8.
Regarding claim 19, claim 19 is rejected for the same reasons given above as for claim 10.
Regarding claim 20, Campano discloses a method of extending the shelf life of a baked food product comprising adding an organic acid preservative composition to a food product and baking the resulting food product ([0006], [0020]-[0024]). Campano discloses that the organic acid preservative composition comprises:
(i) an acetate component comprising acetic acid or one or more acetic acid salts ([0034], [0042], [0043]) and (ii) a propionate component comprising propionic acid or propionic acid salt ([0034], [0040]).
Claim 20 differs from Campano in the recitation that the organic acid preservative composition is specifically added to a dough to produce a baked dough product and wherein the shelf life of the baked dough product is extended to at least 5 days from baking.
De Levita discloses a method of extending the shelf life of a baked dough product comprising adding an organic acid preservative composition to a dough ([0002], claim 1, 57, [0021], [0050]). De Levita discloses baking the dough to produce a baked dough product ([0145]).
Since Campano broadly teaches that the preservative can be applied to food products (MPEP 2123), and since De Levita shows a common food product to which preservatives are added to includes dough, it would have been obvious to one of ordinary skill in the art to modify the method of Campano to be for producing a extending the shelf life of a baked dough product, specifically including the steps adding the organic acid preservative of Campano to dough, and baking the dough to produce the baked dough product as taught by De Levita, thereby combining known prior art elements according to known methods to yield the predictable result of providing a preserved dough product. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2141.III.A, MPEP 2144.06.II).
Further regarding claim 20, claim 20 differs from Campano in view of De Levita in the recitation that the acetate component and the propionate component are present in the ratios claimed.
Visser teaches a composition comprising about 1 to 65wt% propionate, an 1-44wt% acetate and 0 to 62wt% lactate ([0044]) and teaches a weight based ratio of acetate to propionate can be 0.05 to 3.5 (i.e. 0.05:1 to 3.5:1) in other words the ratio of propionate to acetate can be from 1:0.05 to 1:3.5 (put in to similar form as the claims the ratio of propionate to acetate is 20:1 to 0.28:1) and that the ratio provides increased resistance to microorganisms such as molds, yeasts and food spoilage or food poisoning bacteria, while at the same time the taste of the food and drink product is not detrimentally affected and is even improved in some aspects ([0009], [0011] abstract, claim 1). Visser also discloses that the invention provides improved sensory properties for food products (Abstract, [0032], claim 1). It is noted that sensory properties of food products include aroma. Therefore, the prior art suggests a similar ratio of propionate component to acetate component (0.28/1) that provides a food product with improved sensory properties, and therefore can be considered to teach that the preservative composition enhances the aroma of the farinaceous product. It would have been obvious to one ordinary skill in the art to modify Campano in view of De Levita such that the ratio of the propionate component to the acetate component is 0.28/1 as taught by Visser in order to provide the product with improved sensory properties, including improved aroma.
It is noted that Campano generically teaches that the preservative composition can comprise about 1-80wt% lactic acid or salt thereof, about 1 -20wt% acetic acid or salt thereof and about 1-20wt% propionic acid or a salt thereof (‘550, claims 1, 4).
Based on the art as whole above, the preservative composition can comprise 1% lactate component, 3% propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component) and when a preservative composition with 3% propionic component is added to the dough of DeLevita at 0.5%, the dough comprises 0.015% propionate component which equates to 150ppm propionate component (3% propionate component of 0.5%preservative = 0.015%=150ppm), which is inside the range of propionate component claimed in claim 20. When a preservative composition 10.71% acetate component is added to the dough of DeLevita at 0.5%, the dough comprises 0.05355% acetate component which equates to 535.5ppm, which is inside the claimed range of acetate component for claim 20.
Additionally, regarding the remaining limitations based on the art as whole above, the preservative composition can comprise 1% lactate component, 3 % propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component). The prior art as a whole suggests that the acetate component and the propionate component make up at least 85wt% of the total amount of carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 13.71/14.71%= 93wt%) (claim 1, 4). The prior art as a whole discloses that the propionate component makes up 20.3wt% of the carboxylic acids (for 1% lactic acid, 10.71% acetic acid, 3% propionic acid, 3%/14.71%= 20.3%) (claim 1, 4).
Regarding the remaining limitations that the organic acid preservative enhances the aroma of the baked dough product compared to the same product lacking the organic acid preservative and that the shelf life of the baked dough product is specifically extended to at least 5 days from baking when the baked dough is held at 78 °F, 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, claimed properties or functions are presumed to be inherent (MPEP 2112.01). It is additionally noted that Campano in view of De Levita in view of Visser discloses that the method inhibits mold growth (‘550, [0002]) (‘166, [0043]-[0045]).
Claim 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Campano et al. US 2011/0028550 in view of De Levita et al. US 2005/013166 in view of Visser et al. US 2012/0115952 in view of Roozen WO 2015/147638.
Regarding claims 7 and 16, claims 7 and 16 differs from Campano in view of De Levita in view of Visser in the recitation that the propionate component comprises a partially or completely neutralized propionic acid ferment.
Roozen discloses that a source of a propionate component is a partially or completely neutralized propionic acid ferment (Pg. 16, lines 16-31, Abstract, Pg. 21), where the ferment can result in favorable organoleptic profiles which contribute positively to the taste and flavor characteristics of the food products to which they are added (Pg. 11, lines 5-11). Since Roozen teaches a suitable source of a propionate component is a partially or completely neutralized propionic acid ferment, it would have been obvious to one of ordinary skill in the art to modify Campano in view of De Levita in view of Visser such that that the source of the propionate component is partially or completely neutralized propionic acid ferment as taught by Roozen, and since the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness and since it has been held that the use of known techniques to improve similar products in the same way supports a conclusion of obviousness, and where such a modification would have been obvious to one having ordinary skill in the art for the purpose of providing the desired flavor to the product.
Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Campano et al. US 2011/0028550 in view of De Levita et al. US 2005/013166 in view of Visser et al. US 2012/0115952 in view of Hull et al. US 2013/0267603.
Regarding claims 9 and 18, claims 9 and 18 differs from Campano in view of De Levita in view of Visser in the recitation that the acetate component comprises a concentrated buffered vinegar.
Hull discloses a source of an acetate component includes a concentrated buffered vinegar ([0008]). It would have been obvious to one of ordinary skill in the art to modify Campano in view of De Levita in view of Visser such that the source of the acetate component is a concentrated buffered vinegar as taught by Hull, since the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness.
Response to Arguments
Applicant's arguments filed 10/13/2025 have been fully considered but they are not persuasive. In light of the claim amendments the 103 rejection has been updated.
On Pg. 9 of the remarks Applicant argues that the Office has not shown why a person of ordinary skill in the art would have been motivated to modify the concentration of acetate component of Campano modified by Visser and De Levita to arrive at the claimed 500-40,000 ppm dosage of amended claims 1, 12, and 12. Applicant argues that importantly, claims 1 and 20 specify "blending a dough with an organic acid preservative composition" containing the claimed dosage of acetate component. Claim 12 specifies that the organic acid preservative composition "is blended with the dough." Meaning, the organic acid preservative composition is mixed in the dough. Applicant argues that in contrast, De Levita, the only reference that relates specifically to preparation of dough and bread products, describes applying a calcium propionate preservative to the surface of the dough. In [0025], De Levita describes that surface application of the preservative can be used "in combination with the addition of an amount of preservative in the dough," but then goes on to teach in [0026] that "the present invention is preferably used to reduce or eliminate the use of preservatives added in the dough, and thus to reduce or avoid the problem of yeast inhibition (and consequent need to increase yeast dosages to offset the inhibition during processing) as well as the problems of off-flavor, odor, color and/or textures resulting from the use of preservatives in dough." Applicant argues that De Levita teaches a maximum dosage of 0.5% preservative should be used in the dough ([0050]).
This argument has not been found persuasive, 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). Campano was also generally relied upon for teaching a method of producing a microbiologically stable product (food product with inhibited growth of pathogenic microbes) ([0002], [0046], [0033]), the method comprising, a) blending a food product with an organic acid preservative composition ([0021]-[0023], and c) baking the resulting food product ([0024]).
De Levita was relied upon for disclosing a method of producing a microbiologically stable edible farinaceous product comprising blending a dough with an organic acid preservative composition ([0002], claim 1, 57, [0021], [0050]). De Levita discloses molding the dough ([0143]) and baking the molded dough to produce an edible product ([0145]). De Levita discloses that any suitable preservative or combination of preservatives can be used ([0043]). It is noted that De Levita discloses that the preservative can be added in a low concentration, such as less than 0.5% ([0027]). Thus, DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm). Thus, De Levita recognizes that any preservative can be blended into the dough in low concentrations, such concentrations including for example less than 5000ppm. Since Campano broadly teaches that the preservative can be applied to food products (MPEP 2123), and is therefore not limiting as to the particular food product to which the preservative can be applied, and since De Levita shows a common food product to which preservatives are added to includes dough, and that any preservative can be used, it would have been obvious to one of ordinary skill in the art to modify the method of Campano to be for producing a microbiologically stable edible farinaceous food product, specifically including the steps of blending a dough with the organic acid preservative of Campano, molding the dough and baking the molded dough to produce an edible product as taught by De Levita, thereby combining known prior art elements according to known methods to yield the predictable result of providing a microbiologically stable edible farinaceous product. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2141.III.A, MPEP 2144.06.II).
On Pg.9-10 of the remarks, Applicant argues that Example 2 of De Levita compares properties of white bread made from a dough containing calcium propionate in amounts of 0%, 0.15%, 0.275%, or 0.40%, and concludes that "higher calcium propionate levels in the dough tended to yield loaves with poorer crumb structure" and "flavor seemed to worsen with increased calcium propionate in the dough piece Id., [0111]. Applicant argues that De Levita therefore teaches away from the claimed dosage of acetate component in the organic acid preservative composition blended with a dough.
This argument has not been found convincing. As discussed in the rejection DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm). Thus, DeLevita discloses broadly that the preservative can be added in a low concentration and for example a low concentration can include less than 0.5% (less than 0.5% = less than 5,000 ppm).
It is noted that Campano generically teaches that the preservative composition can comprise about 1-80wt% lactic acid or salt thereof, about 1 -20wt% acetic acid or salt thereof and about 1-20wt% propionic acid or a salt thereof (‘550, claims 1, 4).
Based on the art as whole above, the preservative composition can comprise 1% lactate component, 3% propionic component and 10.71% acetate component (Campano claims 1, 4 taking into account a ratio of 0.28/1 propionate component to acetate component) and when a preservative composition with 3% propionic component is added to the dough of DeLevita at 0.5%, the dough comprises 0.015% propionate component which equates to 150ppm propionate component (3% propionate component of 0.5%preservative = 0.015%=150ppm), which is inside the range of propionate component claimed in claim 1. When a preservative composition 10.71% acetate component is added to the dough of DeLevita at 0.5% (5,000 ppm), the dough comprises 0.05355% acetate component which equates to 535.5ppm, which is inside the claimed range of acetate component for claim 1. The examiner notes that the dough would contain 0.05355% acetate component and 0.015% propionate component which is lower than or 0.40% calcium propionate. In any case, regarding that example, “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” (MPEP 2123).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Baret US 2008/0152770, Pg. 7, Table 9 discloses the effect of acetic acid/propionic acid mixtures on the microbiological contamination of flour, including the effect on yeasts and molds (YM in table: counting of the yeasts and molds) ([0090]). Baret discloses that the results of example 7 show a decontaminating effect with doses of between 0.4 and 1.25% of each product, as percentages by weight in the wetting water. The reductions observed are between a factor of 5 and 10 for the total flora, the yeasts/molds and the fecal coliforms. No reduction is observed on average with regard to the total coliforms. The statistical analysis of this example indicates in addition that the acidification via these two acids is effective in reducing the overall state of contamination of the flour, that propionic acid has a significant microbial activity with regard to yeasts and molds, the total flora and the total coliforms, while acetic acid contributes to significantly reducing the level of thermotolerant coliforms of the flour ([0119]).
Veltrop US 2013/0156921 discloses that typical sensory properties include aroma ([0021]).
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.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792