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 Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 5 June 2026 is acknowledged. Applicant’s Arguments/Remarks submitted in the Response After Final Action filed 20 May 2026 are acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the 35 U.S.C. § 102(a)(1) rejection of claim 9 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-7, 9, 11, and 13-21
Withdrawn claims: 1-7, 13, and 15-20
Previously canceled claims: 8, 10, and 12
Newly canceled claims: None
Amended claims: 9
New claims: None
Claims currently under consideration: 9, 11, 14, and 21
Currently rejected claims: 9, 11, 14, and 21
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 2026 has been entered.
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 9, 11, 14, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Kirschning et al. (WO 2019/141357 A1, cited on the IDS filed on 28 March 2023) in view of EFSA (EFSA Panel on Food Contact Materials, Enzymes, Flavourings and Processing Aids (CEF), Silano, V., Bolognesi, C., et al. (2017). Scientific opinion of flavouring group evaluation 502 (FGE. 502): grill flavour ‘Grillin’5078’. EFSA Journal, 15(9), e04973. https://doi.org/10.2903/j.efsa.2017.4973) and as evidenced by Scent.vn (1-Dodecene. (2025, August 29). Scent.vn. Retrieved August 29, 2025 from https://scent.vn/en/pages/compound/1-dodecene-2198.) and Scent.vn-a (Oleic Acid. (2025, August 29). Scent.vn. Retrieved August 29, 2025 from https://scent.vn/en/ pages/compound/oleic-acid-777).
Regarding claim 9, Kirschning teaches an aroma composition ([0074] – [0076], Example 1 – B1) comprising:
(a) at least one type(s) of linear or branched, saturated or unsaturated aliphatic C8 to C20 monocarboxylic acids – capric acid (C10), caprylic acid (C8), and pelargonic acid (C9) ([0076]).
(b) at least one type(s) of α,ß-unsaturated C6 to C14 aldehydes – (E,E)-2,4-decadienal ([0076]).
(c) at least one type(s) of α,ß-unsaturated C6 to C14 alkenes – 1-decene, 1-undecene, 1,3-undecadiene ([0076]).
Kirschning also teaches that: component (a) is capric acid and oleic acid, component (b) is 2E-decenal, and component (c) is 1-dodecene – While not all of the claimed molecules are explicitly disclosed in the WO 2019/141357 A1 document, the instant specification performs a comparative study with the Kirschning method and provides the details of the aroma composition in Table 4 (pp. 41-50). According to Table 4, Kirschning discloses an aroma composition comprising:
56.541 ppm capric acid and 140.090 ppm oleic acid
4.420 ppm 2E-decenal
6.808 ppm 1-dodecene
Kirschning does not teach that the capric acid is in the range from 150 ppm to 230 ppm, the oleic acid is in the range from 250 ppm to 350 ppm, the 2E-decenal is in the range from 30 ppm to 650 ppm, and the 1-dodecene is in the range from 50 ppm to 120 ppm.
However, Kirschning also teaches that the flavoring substance compositions according to the invention have a harmonious and balanced grill-like flavor profile, characterized in that they produce and/or enhance woody and/or bacon-like and/or waxy and/or fried flavor notes while suppressing ashy and/or charcoal-like and/or tarry flavor notes ([0017]). The flavoring composition contains (a) at least five linear or branched, saturated C5-C16 monocarboxylic acids and (b) at least two α,ß-unsaturated C10 aldehydes ([0019]). Kirschning teaches that the combination of components (a) and (b) according to the invention is capable of removing petroleum, tarry, and tart aroma notes ([0029]). Kirschning teaches that the flavor composition comprises capric acid, caproic acid, caprylic acid, enanthic acid, and pelargonic acid as C5-C16 monocarboxylic acids, and 2E,4E-decadienal as an α,ß-unsaturated C10 aldehyde ([0076], Example 1 – B1). Via Table 4 of the instant specification (pp. 41-50), Kirschning discloses that the flavor composition comprises 2E-decenal (p. 48) as an α,ß-unsaturated C10 aldehyde. Table 4 also shows that the flavor composition of Kirschning comprises 1-dodecene (p.45) and oleic acid (p. 50). As evidenced by Scent.vn, 1-dodecene has a waxy odor (p. 1, “Odor profile”). As evidenced by Scent.vn-a, oleic acid has high fatty, waxy, and oily odor components (p. 1, “Odor profile”). Kirschning indicates that increased waxy and fried flavor notes are desirable in the flavor composition ([0017]).
EFSA teaches a food flavor composition (Grillin’ 5078) with a charbroiled or grilled aroma (Abstract) comprising 2E-decenal as a major volatile component (p 6, § 3.1.4, ¶ 3; p. 7, Table 3) “2-decenal” as listed in EFSA refers to 2E-decenal (p. 18, Table A1, “Chemical structure”). Hence, 2E-decenal is a flavor compound known to provide a charbroiled or grilled flavor/aroma perception.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to increase the amount of 2E-decenal in the composition of Kirschning as taught by EFSA in order to increase the charbroiled/grilled flavor/aroma of the composition because Kirschning teaches that the object of the invention was to provide flavoring compositions with novel grill-like flavor profiles that have a harmonious and balanced flavor profile ([0012]). One of ordinary skill in the art would have had a reasonable expectation of success in doing so because, via Table 4 of the instant specification (pp. 41-50), Kirschning discloses that the flavor composition comprises 2E-decenal (p. 48), and EFSA teaches that 2E-decenal is a major volatile component that contributes to a charbroiled or grilled aroma.
It is noted that the disclosed linear, saturated C5-C16 monocarboxylic acids (e.g., capric acid), oleic acid, α,ß-unsaturated C10 aldehydes (e.g., 2E-decenal), and 1-dodecene are known result effective variables. Increasing the amounts of these compounds increases positive grill-like flavors (i.e., woody, bacon-like, waxy, and/or fried) and decreases the undesirable petroleum, tarry, and tart aroma notes.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide a flavor composition comprising increased amounts of the desirable flavor compounds disclosed by Kirschning and EFSA, including capric acid is in the range from 150 ppm to 230 ppm, the oleic acid is in the range from 250 ppm to 350 ppm, the 2E-decenal is in the range from 30 ppm to 650 ppm, and the 1-dodecene is in the range from 50 ppm to 120 ppm as claimed, through routine experimentation, to impart to the product more concentrated desirable grill-like flavors (i.e., woody, bacon-like, waxy, and/or fried) and to decrease the undesirable petroleum, tarry, and tart aroma notes of the product.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered a 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.
Therefore, absent a proper showing of coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function and that the claimed amounts are critical to such relationship, claim 9 is rendered obvious.
Regarding claim 11, Kirschning and EFSA teach the aroma composition according to claim 9.
Kirschning does not teach that components (a) and (b) and (c) are present in a weight ratio of 4.5 to 6.5 : 6.5 to 8.5 : 4.5 to 6.5.
However, as described regarding claim 9, the disclosed linear, saturated C5-C16 monocarboxylic acids (e.g., capric acid), oleic acid, α,ß-unsaturated C10 aldehydes (e.g., 2E-decenal), and 1-dodecene are known result effective variables. Increasing the amounts of these compounds increases positive grill-like flavors (i.e., woody, bacon-like, waxy, and/or fried) and decreases the undesirable petroleum, tarry, and tart aroma notes.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal proportions of these flavor compounds, including the claimed (a) capric acid or oleic acid, (b) 2E-decenal, and (c) 1-dodecene, as disclosed by Kirschning and EFSA, through routine experimentation, to confer desirable grill-like flavors (i.e., woody, bacon-like, waxy, and/or fried) and decrease the undesirable petroleum, tarry, and tart aroma notes, including wherein the components (a) and (b) and (c) are present in a weight ratio of 4.5 to 6.5 : 6.5 to 8.5 : 4.5 to 6.5 as claimed.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered a 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.
Therefore, absent a proper showing of coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function and that the claimed ratios are critical to such relationship, claim 11 is rendered obvious.
Regarding claim 14, Kirschning teaches the aroma composition according to claim 9.
Kirschning also teaches a foodstuff, food supplement or animal feed comprising the aroma composition – “Furthermore, the invention relates to foodstuffs comprising the flavoring substance compositions according to the invention.” ([0067]).
Claim 14 is therefore rendered obvious.
Regarding claim 21, Kirschning teaches the aroma composition according to claim 9.
Kirschning also teaches the aroma composition further comprising a solid or liquid carrier and/or other suitable food additives – “Additionally, the products of the present invention can be used in a spray-dried form associated with a suitable carrier such as maltodextrin, starch, or other carrier known to those skilled in the art.” ([0070]).
Claim 21 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 102: Applicant’s amendment to claim 9 filed on 5 June 2026 is sufficient to overcome the rejection under 35 U.S.C. § 102. Accordingly, the 35 U.S.C. § 102 rejection has been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 20 May 2026 have been fully considered, but they are not persuasive.
Applicant argued that the present invention offers unexpected results that could not have been predicted from Kirschning, alone or in combination with the secondary references cited (p. 7, ¶ 3). Applicant argued that since both 1-dodecene and oleic acid have pronounced waxy notes, as evidenced by the cited Scent.vn references, one of ordinary skill in the art developing compositions that suppress or reduce waxy flavor notes would not consider adding these compounds in higher amounts, yet, surprisingly, the present inventors found that the specific combination of components, including 1-dodecene and oleic acid, as claimed allows for providing or enhancing a fatty/oily and/or smoky and/or roasted and/or burnt and/or animalic flavor while simultaneously suppressing and/or reducing a waxy flavor (Id.). Applicant argued that while the present invention includes higher amounts of the waxy flavor compounds 1-dodecene and oleic acid than the product of Kirschning, the present invention exhibits reduced waxy notes as compared to the product of Kirschninng, and as such, the aroma profile of the specific combination and amounts of ingredients as presently claimed could not have been predicted based on the cited prior art (p. 7, ¶ 4). Applicant asserted that the amended claims are commensurate in scope with the evidence of unexpected results provided by Table 4 and Figure 8 of the instant specification and as summarized on pp. 10-11 of the response filed on 8 December 2025 (p. 7, ¶¶ 2 and 5).
Applicant’s assertion of unexpected results is acknowledged. Applicant is reminded that “[w]hether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960)”. See MPEP § 716.02(d).
In the present case, Applicant asserted that the alleged unexpected result is demonstrated for the claimed composition comprising capric acid in the range from 150 ppm to 230 ppm, the oleic acid in the range from 250 ppm to 350 ppm, the 2E-decenal in the range from 30 ppm to 650 ppm, and the 1-dodecene in the range from 50 ppm to 120 ppm by the data in Table 4 of the specification and as summarized on pp. 10-11 of the response filed on 8 December 2025. These data show an embodiment of the invention comprising 259.44 ppm of capric acid, 290.821 ppm of oleic acid, 439.499 ppm of 2E-decenal, and 146.998 ppm of 1-dodecene.
Applicant’s evidentiary data in Table 4 do not support an embodiment wherein the amounts of the claimed compounds are all inside the claimed ranges; the evidentiary amount of 259.44 ppm of capric acid lies outside the claimed range of 150-230 ppm, and the evidentiary amount of 146.998 ppm of 1-dodecene lies outside the claimed range of 50-120 ppm. For at least this reason, the data are not commensurate with the claimed invention. Applicant is also reminded that to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.
Additionally, the open language “comprising” used in the present claims broadens the scope of the claims to include any amount of any number of other components. Importantly, this includes other components in amounts that can mask sensory attributes of the claimed compounds. Applicant’s data are not commensurate with this broad scope of the claims.
Furthermore, Applicant’s data are insufficient to establish that the claimed components in the claimed ranges are what contributes to the aroma profile of the composition. Table 4 indicates that several other molecules exhibit a substantial increase over the composition of Kirschning and/or are present in the aroma composition of the invention in considerable quantities. Non-limiting examples of which are 1-heptene, 1-octene, C5-C9 aldehdyes, 1,8-nonadiene, 4E-decene, 1-undecene, 1,3E-undecadiene, 2E-decenal, pentacosadiene, 2E-undecenal, and others. The alleged unexpected results cannot be tied to only the claimed components, or necessarily, even the claimed components based on Applicant’s evidence.
For at least these reasons, Applicant’s arguments are not persuasive, and claims 9, 11, 14, and 21 are rejected under 35 U.S.C. § 103 as presented hereinabove.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
