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 .
Election/Restrictions
Applicant’s election without traverse of group I, claims 1-17 in the reply filed on 24 July 2025 is acknowledged. Claims 18-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claims 1-8 are 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.
Claim 1 recites “creole seasoning”. It is unclear from the claim or applicant’s specification what ingredients constitute “creole seasoning”. As such, it is unclear what constituents are required to be present in the claimed composition. Since this limitation does not identify any sufficiently specific ingredient, for the purpose of examination seasoning compositions that read on the remainder of claim 1 will be interpreted to read on the claim. Claims 2-8 depend from claim 1 and necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
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.
Claims 1-17 are rejected under 35 U.S.C. 103 as being unpatentable over Square USPGPub 20100178399.
Regarding claims 1 and 9, Square teaches a meat tenderizing seasoning composition comprising [0048,0050]:
Garlic
Onion
Cayenne pepper
Other pepper
Parsley
Salt
MSG
Lemon juice
Square is silent regarding garlic salt with parsley, however, this combination is interpreted to be a product-by-process limitation directed to the ingredients being added to the composition together. Since the ingredients of Square comprise salt, garlic and parsley, the final composition is interpreted to comprise garlic salt with parsley. Similarly, Square discloses lemon and pepper which is interpreted to read on “lemon pepper” as recited in claim 9.
Square does not explicitly disclose the onion and garlic are provided in powder form or the parsley is “flakes”, however, dried comminuted versions of these seasonings are universally known in the culinary arts and would have been obvious to one of ordinary skill in the art to use for expedience. The composition of Square is disclosed to tenderize meat [0013] and is therefore interpreted to comprise no salt tenderizer as recited in claim 9. Therefore, the composition of claims 1 and 9 is rendered obvious by Square.
Regarding claims 2-8 and 10-17, Square is silent regarding the exact proportions of ingredients recited in claims 2-8 and 10-17. However, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have varied the proportions of individual ingredients in the composition of Square depending on the flavor profile desired or the volume of spice blend being produced. As such, the proportions recited in claims 2-8 and 10-17 are merely obvious variants of the prior art.
Further, 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793