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 October 17, 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the 112(b) rejections have been withdrawn; (2) the 101 rejections of the claims have been withdrawn.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 6, 7
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
2-5
Amended claims:
1
New claims:
6, 7
Claims currently under consideration:
1, 6, 7
Currently rejected claims:
1, 6, 7
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 6 are rejected under 35 U.S.C. 103 as being unpatentable over Oku (US PGPub 2004/0209841 A1)(IDS Reference filed 02/16/2023) in view of Shimazaki (US PGPub 2005/0249861 A1) and Meng (CN 104085956 B).
Regarding claim 1, Oku teaches a composition comprising a bittern component (Abstract) and that the product can be used for foods including healthy foods and drinks including tofu ([0052]). Oku also teaches that tofu is soybean curd ([0048]). Therefore, it logically follows that the tofu would comprise soybean. Oku also teaches that typical bittern comprises 17.5% w/w magnesium chloride and 8.1% w/w calcium chloride ([0049]), which equates to a proportion of magnesium content to calcium content of 2.16:1, which falls within the claimed range of 2:1 to 7:1.
Oku does not teach the health food comprising 0.8 wt% to 1.5 wt% of bittern, that the bittern is derived from deep-ocean sea water, wherein said bittern per 100g comprises 2500 mg to 6000 mg of magnesium content and 500 mg to 2000 mg of calcium content, or wherein the hardness of said bittern is 144000 mg/L to 383000 mg/L.
Regarding the health food comprising 0.8 wt% to 1.5 wt%, Shimazaki teaches a tofu-like food composition comprising bittern in an amount from 0.01% to 20% by mass (which encompasses the claimed range of 0.8 wt% to 1.5 wt%; [0010]).
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 food taught by Oku with the use of 0.01% to 20% by mass of bittern as taught by Shimazaki. One of ordinary skill would have been motivated to make this modification because Shimazaki teaches that the bittern serves as a coagulant and that controlling the amount used adjusts the time it takes for the food product to coagulate ([0010]).
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 the bittern being derived from deep-ocean sea water, wherein said bittern per 100g comprises 2500 mg to 6000 mg of magnesium content and 500 mg to 2000 mg of calcium content, or wherein the hardness of said bittern is 144000 mg/L to 383000 mg/L, Meng teaches a marine nanofiltration concentrate ([0001]) where the water source is from the deep sea ([0017]). Meng also teaches that the concentrate has a magnesium concentration of 50000-100000 mg/L (equivalent to 5000-10000 mg/100 g, which overlaps with the claimed range of 2500 to 6000 mg/100 g) and a hardness of 355000-425000 mg/L (which overlaps with the claimed range of 144000 to 383000 mg/L; [0039]).
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 bittern composition used in Oku with the source, magnesium content, and hardness of the concentrate taught by Meng. One of ordinary skill would be motivated to make this modification because, as taught by Meng, the disease with the highest incidence is trace element deficiency or imbalance ([0005]). Therefore, one of ordinary skill would have used the amount of magnesium and the hardness (which is understood in the art to be the measure of mineral ions present) of the composition of Meng to provide a solution that can treat the mineral imbalance. Furthermore, one of ordinary skill would have been motivated to use deep sea water as the source because Meng teaches that deep sea water naturally has a high salt content ([0017]).
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.
Although Oku and Meng don’t teach that the amount of calcium in the composition being 500 mg to 2000 mg, Oku teaches that the ratio of magnesium to calcium is 2.16:1 as described above, and Meng teaches the magnesium concentration of 5000 to 10000 mg/100 g as described above. Because Meng does not teach the amount of calcium in the composition, one of ordinary skill would have determined the amount of calcium to include in the bittern composition of Meng. Applying the ratio of Oku to the composition of Meng would result in a calcium content of 2314-4623 mg/100 g, which lies close to the claimed range of 500 mg to 2000 mg.
One of ordinary skill in the art would have found it obvious to modify the composition of Oku with the use of calcium in the amount of 2314-4623 mg/100 g based on the amount of magnesium taught by Meng. One of ordinary skill would be motivated to make this modification because, as taught by Meng, the disease with the highest incidence is trace element deficiency or imbalance ([0005]). Therefore, one of ordinary skill would have used the amount of calcium of the composition of Meng to provide a solution that can treat the mineral imbalance.
With respect to the close range, MPEP §2144.05 states 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).
Regarding the limitation “wherein the bittern derived from the deep-ocean water increases and activates an Equol producing bacterium after ingestion of the intestinal flora-improving health tofu”, this limitation is interpreted as a necessary property of the bittern derived from the deep-ocean water. MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present.
Regarding claim 6, Oku does not teach that the deep-ocean water is from a depth of at least 200 m or below and does not contain isoflavones.
However, in the same field of endeavor, Meng teaches that the deep ocean water used was obtained from a depth below 200 m ([0017]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use the same source of sea water as taught by Meng. One of ordinary skill would have been motivated to use deep sea water as the source because Meng teaches that deep sea water naturally has a high salt content ([0017]).
Although the cited prior art does not teach that the deep ocean water does not contain isoflavones, Meng is silent regarding the presence of isoflavones in ocean water. Thus, one of ordinary skill would have found it obvious to use ocean water that does not comprise isoflavones.
Claims 1 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Oku (US PGPub 2004/0209841 A1)(IDS Reference filed 02/16/2023) in view of Shimazaki (US PGPub 2005/0249861 A1) and Meng (CN 104085956 B) as applied to claim 1 above, and further in view of Chen (CN103315285B).
Regarding claim 7, the cited prior art does not teach wherein the hardness of the bittern is 144000 mg/L to 242473 mg/L.
However, in the same field of endeavor of deep-sea mineral concentrates (i.e., bittern), Chen teaches a deep-sea concentrated mineral solution (i.e., bittern) with a hardness of 160000 to 190000 mg/L ([0055]), which falls within the claimed range of 144000 mg/L to 242473 mg/L.
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 product of Oku with the mineral hardness taught by Chen. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Response to Arguments
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1-5 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. §101: Applicant has overcome the 35 U.S.C. § 101 rejections of claim 1 based on amendments to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 101 rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-4 over Oku, Shimazaki, and Meng: Applicant’s arguments filed October 17, 2025 have been fully considered but they are not persuasive.
Applicant argued that Oku fails to teach wherein the bittern increases and activates Equol producing bacterium after ingesting (Remarks, p. 4, ¶ 7).
This argument has been considered. However, as stated above, this limitation is interpreted as a necessary property of the bittern derived from the deep-ocean water. MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present. Thus, Oku is sufficient for all that is relied upon.
Applicant further argued that Shimazaki does not provide what Oku lacks. Applicant argued that a mayonnaise-type food is not tofu, regardless of whether it is made form soybeans, and Shimazaki does not teach wherein the bittern increases and activates Equol producing bacterium after ingesting (Remarks, p. 5, ¶ 1-2).
This argument has been considered. However, Shimazaki is not relied upon to teach the food being a tofu or wherein the bittern increases and activates Equol producing bacterium. Shimazaki is considered sufficient for all that it is relied upon to teach.
Applicant argued that Meng does not provide what Oku and Shimazaki lack. Applicant further argued that Oku does not teach or suggest an intestinal flora-improving health tofu or increasing and activating an Equol producing bacterium after ingestion of the intestinal flora-improving health tofu (Remarks, p. 5, ¶ 3- p. 5, ¶ 2).
This argument has been considered. However, Meng is not relied upon to teach an intestinal flora-improving health tofu or increasing and activating an Equol producing bacterium after ingestion of the intestinal flora-improving health tofu. Meng is considered sufficient for all that it is relied upon to teach.
Applicant argued that the combination of Oku, Shimazaki and Meng would not result in the claimed invention and does not teach or suggest wherein the bittern increases and activates Equol producing bacterium after ingesting (Remarks, p. 6, ¶ 4- p. 7, ¶ 1).
This argument has been considered. However, as described the in 35 USC 103 rejection of claim 1 above, the combination of Oku, Shimazaki, and Meng is sufficient to teach the claimed invention.
The rejections of claim 1 has 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.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793