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 § 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 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ogawa(JP2003250594A) as evidenced by Chemnet.com(Gamma-Dodecen-6-lactone).
Regarding claim 18, 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.
Allowable Subject Matter
Claims 6-17,21,22 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, pertaining to method claims 6-17,21,22 filed 3/4/2026, with respect to Ogawa have been fully considered and are persuasive. The 103 rejections of claims 6-17 have been withdrawn. However, see the 103 rejection of product claim 18 as necessitated by amendment.
Conclusion
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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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791