DETAILED ACTION
Amendments filed September 3, 2025 have been entered.
Claims 1, 2 and 5 remain pending.
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 .
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.
Specification
The objection to the disclosure for containing typographical errors has been withdrawn in light of applicant’s amendments made September 3, 2025.
Claim Objections
Claim 5 is objected to because of the following informalities: Claim 5 includes a space between “claim 1” and the comma that follows which is grammatically incorrect. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The previous rejections of claims 1, 2, and 5-7 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inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention have been withdrawn in light of applicant’s amendments made September 3, 2025. It is noted however, that the claim limitations as amended are also rejected for lack of clarity for the reasons stated below.
Claims 1, 2, and 5 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 the sauce as comprising 0.12-4% of at least one calcium chemical compound, 0.05-2% of at least one magnesium compound, and “0-20% aqueous solution of the at least one calcium and magnesium chemical compounds water up to 100% by percentage mass”. First it is unclear as to if the sauce composition can contain more than 0.12-4% of at least one calcium compound and more than 0.05-2% of the at least magnesium compound, as the claim appears to recite 0-20% of an aqueous solution may contain additional amounts of said components. Second, it is unclear as to if the 0-20% recited is the amount of the aqueous solution in the sauce or the amount of chemical compounds, wherein the rest would be formed from water up to 100%.
Claim 1 recites the sauce as comprising 0.12-4% of at least one calcium chemical compound, 0.05-2% of at least one magnesium compound, 0.5-3.3% calcium lactate and 0.2-1.0% citric acid magnesium salt. It is unclear as to how the sauce can comprise as little as 0.12% of at least one calcium compound when the claim further requires at least 0.5% calcium lactate, i.e. 0.5% or more of at least one calcium compound. Similarly, it is unclear as to how the sauce can comprise as little as 0.05% of at least one magnesium compound when the sauce also requires at least 0.2% citric acid of magnesium salt, i.e. 0.2% or more of a magnesium compound.
Claim 1 recites “the sauce has 0.5-3.3% of calcium lactate and 0.2-1.0% citric acid magnesium salts by mass, or a mixture thereof”. As the claim recites “or a mixture thereof”, it is unclear as to if both the calcium lactate and magnesium citrate are both required, or if the claim may be satisfied by a composition containing one or the other, wherein the mixture of both is one possible option that may be present.
Claim 5 recites “The sauce according to claim 1, wherein the sauce is further enriched with calcium and magnesium, citrates, or lactates”, thus making it unclear as to if the ranges of calcium, magnesium, citrates and lactates recited in claim 1 are in fact required, or if claim 5 allows for broader ranges outside the scope recited in claim 1. It is noted that if applicant intends the latter, the claim would be rejected under 112d for failing to include all the limitations of the claim from which it depends.
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 2, and 5 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the sauce as comprising 0.12-4% of at least one calcium chemical compound, 0.05-2% of at least one magnesium compound, 0.5-3.3% calcium lactate and 0.2-1.0% citric acid magnesium salt. The disclosure as originally filed does not have support for up to 7.7% calcium compounds and up to 3% magnesium compounds. It is noted that the instant disclosure, page 4 lines 12-15, states the sauce has 0.5-3.3% calcium lactate and 0.2-1.3% magnesium citrates or a mixture thereof from 0.7-4.6% or an aqueous solution thereof from 5-20%. Thus, the mineral components as claimed do not have support in the disclosure as original filed.
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.
The rejection of claims 1, 2, and 5 under 35 U.S.C. 103 as being unpatentable over Blumenstein-Stahl et al (WO 01/62265 A1) in view of Frederick (GB 2480146) and Igoe et al (Dictionary of Food Ingredients 4th Edition pages 123-124) has been withdrawn in view of the amendments made September 3, 2025.
Claims 1, 2, and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Blumenstein-Stahl et al (WO 01/62265 A1) in view of Cookistry (“Tomato Juice- yes, you can make your own” August 25, 2011, pages 1-3 https://www.cookistry.com/2011/08/tomato-juice-yes-you-can-make-your-own.html) and Igoe et al (Dictionary of Food Ingredients 4th Edition pages 123-124).
Blumenstein-Stahl et al (BS) teaches of food and beverage compositions (page 2 lines 23-27 and page 11 lines 11-15) comprising:
more preferably at least about 50%, even more preferably about 70-95% water (page 11 lines 21-29), and thus more preferably less than about 50% dry matter, even more preferably about 5-30% dry matter;
preferably flavoring including about 0.1-99%, more preferably about 1-50% fruit juice with a solids content of about 20-80% and selected from the group including tomato juice which contains tomatoes (page 13 line 30 through page 14 line 6 and page 14 line 10);
preferably about 0.1-40% sweetener for effective sweetness (page 15 lines 19-20 and 26-28);
about 0.01-15% soluble fibers, including pectin and other gums which are thickeners (page 21 line 29 through page 22 line 29);
nutrients including minerals which are included from at least about 1% up to about 200% of the US Daily Recommended Intake, including magnesium in the form of magnesium citrate, and preferably about 0.01-0.5% calcium including in the form of calcium lactate (page 17 lines 9-10 and 14-17 and page 19 lines 3-5, 8-9, 12, and 28-29); and
acidity regulators including acid to balance between microbial inhibition and desired flavor (page 23 lines 4-8).
Regarding the composition as comprising 0% of more of certain ingredients as recited in claim 1, as the ingredients are recited at 0% they are not required and thus need not be taught by the prior art.
Regarding the composition as a sauce as recited in claim 1, a sauce is generally defined as a liquid or semi-liquid product usually eaten accompanying other foods. Eating accompanying other foods is intended use, and thus the product as claimed only need to be capable of functioning in the claimed manner. As the composition disclosed by BS is a liquid or semi-liquid product and encompasses an overlapping composition, including the claimed and disclosed solid to liquid ratio it would be able to function as a sauce and is considered to encompass the product as instantly claimed.
Regarding the composition as comprising 0.12-4% of at least one calcium compound, 0.5-3.3% calcium lactate, and 10-40% dry matter comprising 0.12-0.8% calcium element, and thus 0.012-0.32% calcium element, as discussed above, the claimed limitations are unclear. Regardless, BS teaches the product as comprising nutrients including minerals which are included from at least about 1% up to about 200% of the US Daily Recommended Intake, including preferably about 0.01-0.5% calcium including in the form of calcium lactate (page 17 lines 9-10 and 14-17 and page 19 lines 3-5, 8-9, 12, and 28-29). As calcium lactate contains about 13% calcium, the product of BS would thus contain about 0.08-3.85% calcium lactate which is both a calcium compound and calcium lactate. In view of the lack of clarity discussed above, this is considered to encompass a composition as claimed, wherein it would have been further obvious to use a variety of calcium compounds as disclosed by BS to achieve the desired calcium concentration (page 19 paragraph 3). Furthermore, as BS teaches the dry matter is preferably from 5-30%, the 0.01-0.5% calcium would be from a bout 0.0003-0.1% dry weight.
BS is silent to the composition as having heat-treated tomatoes, and comprising 0.5-15% acids and/or acidity regulators, 0.4-4% sodium chloride, and 0.05-2% of at least one magnesium chemical compound, 0.2-1.0% citric acid magnesium salts, and 10-40% dry matter comprising 0.05-0.4% magnesium element as recited in claim 1.
Regarding the composition as having 5-90% heat-treated tomatoes as recited in claim 1, as discussed above BS teaches the use of tomato products including tomato juice within the nutritional composition, wherein the juice is from 0.1-99%, preferably from 1-50%. Cookistry teaches a method of making tomato juice that tastes fresher (page 1 paragraph 5). Cookistry teaches that to make tomato juice, you just cook the tomatoes as long as you need to reduce the consistency as desired, wherein salt can be added for taste as needed (page 1 last paragraph, and pages 2 and 3 all). It would have been obvious for the tomato juice with various solids content taught by BS to include cooked, i.e. heat-treated, tomatoes as BS teaches of tomato juice and Cookistry teaches cooked tomatoes provide tomato juice that taste fresh and which can be made to the desired consistency. Thus, the product of BS in view of Cookery would comprise about 0.1-99%, more preferably about 1-50% heat treated tomatoes in the form of juice. It is noted that as heating would break down tomatoes, and as the claims recite a sauce product and do not require the tomatoes be in the form of whole tomatoes, or pieces, or require every part of the tomato, heat-treated tomatoes within the juice is encompassed by the claims. This is similar to the examples in the instant disclosure which incorporate tomatoes through tomato paste.
Regarding the sauce as having a dry matter content of 10-40% of which the dry matter comprises 5-20% tomatoes as recited in claim 1, and thus 0.5-8% tomato solids as BS teaches preferably flavoring including about 0.1-99%, more preferably about 1-50% fruit juice with a solids content of about 20-80% and selected from the group including tomato juice which contains tomatoes (page 13 line 30 through page 14 line 6 and page 14 line 10), wherein it would have been obvious for the tomato juice to be heated treated tomatoes reduced to the desired concentration/consistency, the composition of the prior art has a tomato solids concentration of preferably about 0.2% (about 1% tomato juice with 20o Brix) to about 40% (about 50% tomato juice with 80o Brix) tomato solids which encompasses the claimed range.
Regarding the composition as comprising 0.5-15% acids and/or acidity regulators, as discussed above, BS teaches acidity regulators including acid to balance between microbial inhibition and desired flavor (page 23 lines 4-8). Thus, it would have been obvious to adjust the amount of acidity regulators, including acid, based on the desired balance between flavor and microbial inhibition. To adjust the amount of a result effective variable based on the desired result would have been obvious to one of ordinary skill in the art.
Regarding the composition as comprising 0.4-4% sodium chloride, Igoe et al (Igoe) teaches that salt was a known preservative and seasoning (pages 123-124). Additionally, as discussed above, Cookistry teaches adding salt to the tomato juice for taste. It would have been obvious to one of ordinary skill in the art for the nutrient tomato product of BS to include an amount of salt depending on the desired preservation and salt flavoring in view of Igoe and/or flavoring in view of Cookistry. To add a known ingredient for its known and intended purpose would have been obvious to one of ordinary skill in the 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.
Regarding the composition as comprising 0.05-2% of at least one magnesium chemical compound, 0.2-1.0% citric acid magnesium salts, and 10-40% dry matter comprising 0.05-0.4% magnesium element as recited in claim 1, as discussed above, the claimed limitations are unclear. Regardless, BS teaches the composition as comprising nutrients including minerals which are included from at least about 1% up to about 200% of the US Daily Recommended Intake, including magnesium in the form of magnesium citrate (page 17 lines 9-10 and 14-17 and page 19 lines 3-5). Thus, it would have been obvious to one of ordinary skill in the art to adjust the amount of magnesium, and thus amount of magnesium citrate based upon the desired supplementation in the product. Additionally, it is noted that as it is disclosed that the instant product provides about 15% of the recommended nutritional value (see instant specification page 6 lines 3-4), the disclosure of the composition as comprising about 1-200% of the daily recommended intake is expected to encompass, or at least make obvious the claimed range.
Regarding the calcium and magnesium chemical compounds as recited in claims 2 and 5, as BS teaches the calcium is particularly preferred and preferred source include calcium lactate, calcium chloride, calcium hydroxide, and calcium citrate-malate (page 19 paragraph 3), the use of the disclosed calcium sources in combination would have been an obvious suggestion of the prior art. As BS teaches the magnesium sources include magnesium citrate, magnesium gluconate, and magnesium sulfate (page 19 paragraph 2), the use of the disclosed magnesium sources in combination would have been an obvious suggestion of the prior art. To form the product of the prior art comprising the disclosed elements in combination would have been obvious and well within the purview of one of ordinary skill in the art.
The prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Response to Arguments
Applicant's arguments filed September 3, 2025 have been fully considered but they are not persuasive.
Applicant argues that a person would not look to a decaffeinated green tea drink for hydrating their skin as taught by BS to learn how to make a tomato-based sauce of applicant’s invention without hindsight and that the fruit juice of BS does not equate to the dry matter of heat-treated tomatoes as claimed. This argument is not convincing. As discussed above, BS is not limited to a decaffeinated green tea drink for hydrating skin as argued, and encompasses food and drink products which overlap the product as claimed.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues that BS does not teach of dry matter, and the disclosed water would not account for water in components added to the food of BS. This argument is not convincing as BS specifically teaches on page 11 lines 23-25 that the term water includes the total amount of water present in the composition, including within the components added.
Applicant argues that tomato juice only has a Brix of 4-6 and thus the tomato solids of BS are not accurate. This argument is not convincing as it does not consider the teachings of the reference which specifically teach the juice may be a puree, comminute, single strength or concentrated juice with a Brix of 20-80 degrees (page 14 paragraph 1).
Applicant argues that the prior art does not teach the full range claimed by applicant. This argument is not convincing as the rejection is a 103 and the composition of the prior art overlaps that as claimed. It is further noted that the ranges recited in the claims, such as 5-90% heat treated tomatoes is extremely broad; and that some of the ranges recited are unclear for the reasons discussed above.
Applicant’s arguments regarding Fredrick are moot as the rejection with said reference was withdrawn in light of applicant’s amendments.
In response to applicant's argument that Igoe does not teach the tomato composition as claimed, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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