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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/29/2026 has been entered.
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.
Claim(s) 18 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ogawa(JP2003250594A) in view of Mackenzie(Natural Advantage’s gamma-Dodecalactone) as evidenced by Chemnet.com(Gamma-Dodecen-6-lactone).
Regarding claims 18,23, Ogawa teaches a method of making taste compounds comprising the steps of:
Culturing at least one non-pathogenic lactic acid bacterium and at least one yeast (para 22 and 30, lactic acid bacteria and yeast are precultured, para 13, yeast and bacteria can be added to the medium together);
b. fermenting a non-hydrolyzed vegetable oil in the mixed culture to create a mixed culture fermentation medium(para 13 and 15, yeast and bacteria can be added together to a non-hydrolyzed linoleic vegetable oil such as sunflower oil);
c. acidifying the mixed culture fermentation medium by admixing an acid following the fermentation step to create an acidified mixed culture fermentation medium(para 35); and
d. lactonizing the acidified mixed culture fermentation medium by heating the acidified mixed culture fermentation medium(para 35, lactonization is promoted by heating); wherein the method generates at least one of a gamma lactone(para 36, cis-6-dodecene-4-olide(aka gamma-dodecen-6-lactone as evidenced by Chemnet.com)) is created.
Ogawa teaches pre-culturing both yeast and bacteria and that the yeast and bacteria can be added together to the vegetable oil(para 13,22 and 30) but does not specifically teach co-culturing the yeast and bacteria to make a mixed culture. However, it would have been obvious to co-culture the yeast and the bacteria in order to save time and resources, since they are intended to work together during fermentation.
Ogawa does teach that vegetable oil needs to be hydrolyzed in order to liberate the linolenic acid for fermentation and lactonization. However, Ogawa further teaches(para 16), “In particular, hydrolysis using a lipase having activity in the neutral to acidic region can be carried out simultaneously with the conversion reaction of linoleic acid using lactic acid bacteria, so that the reaction time can be shortened. “
Therefore, if one hydrolyzes and ferments the vegetable oil simultaneously with lipase and lactic acid bacteria, the starting material in the culture of step b) is a non-hydrolyzed vegetable oil.
Ogawa teaches that the lactone produced in claim 6 can be used as a taste compound in food(para 37).
Ogawa does not specifically teach the new limitation “wherein the non-hydrolyzed vegetable oil has less than 2% free fatty acids and at least 75% linoleic acid as a triglyceride material; wherein the step of fermenting by the yeast in the mixed culture hydrolyzes the non- hydrolyzed vegetable oil”
It is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Ogawa meets the requirements of the claimed taste compound, Ogawa clearly meets the requirements of the present claims.
Ogawa teaches lactonizing the acidified mixed culture fermentation medium by heating the acidified mixed culture fermentation medium(para 35, lactonization is promoted by heating); wherein the method generates at least one of a gamma lactone(para 36, cis-6-dodecene-4-olide(aka gamma-dodecen-6-lactone as evidenced by Chemnet.com)) is created. Ogawa further teaches that the composition can further comprise gamma-dodecalactone as a flavor component(para 40).
Furthermore, Mackenzie teaches gamma-dodecalactone “occurs naturally in fruit, cheddar cheese, milk, beer and meats. It has a creamy, fatty, dairy flavor with peach and nutty nuances”(p.1). It would have been obvious to include gamma-dodecalactone in with the gamma-dodecen-6-lactone as produced by the method in Ogawa since both lactones have similar dairy flavors. It would have been obvious to adjust the amounts of each component depending on the flavor desired in the composition.
Allowable Subject Matter
Claims 6-17,21,22,24-27 are allowed. Ogawa teaches the use of lipase to hydrolyze the vegetable oil and does not specifically teach or render obvious “wherein the non-hydrolyzed vegetable oil has less than 2% free fatty acids and at least 75% linoleic acid as a triglyceride material; wherein the step of fermenting by the yeast in the mixed culture hydrolyzes the non- hydrolyzed vegetable oil.
Response to Arguments
Applicant's arguments filed 5/29/2026 have been fully considered but they are not persuasive.
Method claims 6-17,21,22,24-27 are allowable. Product claims are rejected over Ogawa in view of Mackenzie which render obvious achieving a mix of gamma-dodecalactone and gamma-dodecen-6-lactone as produced by the method since both lactones have similar dairy flavors. It would have been obvious to adjust the amounts of each component depending on the flavor desired in the composition. While gamma-dodecalactone is added to the composition made in Ogawa and not inherently there, a product by process claim is not required to be made by the claimed method. Therefore, since Ogawa and Mackenzie render obvious a composition comprising gamma-dodecalactone and gamma-dodecen-6-lactone the references meet the product claims.
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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