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 .
Specification
The disclosure is objected to for containing typographical errors.
For example, page 3 line 8 recites “is enriched with water-soluble or calcium, or magnesium chemical compounds….”. This appears to be a typographical error as there is no noun or article following the adjective “water-soluble”.
For example page 3 line 27 recites “chloride, , or”. This appears to be a typographical error as there are two sets of commas and spaces between the words.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 2, and 5-7 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 “sauce consisting of: water, heat-treated tomatoes and/or products thereof, thickeners, sweeteners, acidity regulators, table salt, herbs/spices and vegetables, wherein the sauce is enriched with additionally added water-soluble or calcium or magnesium compounds or a mixture of these, such that the sauce is composed of…” ingredients including fruits and an additionally added calcium element and an additionally added magnesium element. Claims 2 and 5 also recite that the sauce “further comprises additional ingredients”.
As the term “consisting of” limits the claimed composition to only those elements recited it is unclear as to how the composition can contain additional ingredients, such as fruits or further additional mineral ingredients. As the claim is contradictory in nature, it is further unclear as to if the additional elements, including the additionally added calcium and magnesium elements recited in claim 1 and calcium and magnesium compounds recited in claims 2 and 5-7 are those already recited, or additional compounds. For the purpose of prior art comparison, the claim will be considered in the broadest reasonable sense as reciting a non-limiting composition, i.e. comprising, wherein the “additional” calcium and magnesium are either part of the claimed compounds, or added as additional compounds, thus increasing the calcium and magnesium compound concentrations. It is suggested that applicant amend the claim such that the composition is only recited in the body of claim and not in both the body and the preamble.
Claim 1 lines 3-4 recites “with additionally added water-soluble or calcium…”. It is unclear as to what water-soluble element is being recited as no article or noun following the adjective “water soluble”.
Claim 1 recites “herbs/spices”. It is unclear as to if “/” means “or”, “and”, or both “and” and “or”.
Claim 1 recites “sugar or sweeteners”. Although sugar is a sweetener, as it is listed as a distinct component it is unclear as to if the term “sweeteners” as claimed excludes or includes sugar. If the term “sweeteners” is intended to be inclusive of all sweeteners, including sugar, it is suggested that applicant amend the claim to just recite “sweeteners”.
Claim 1 recites “acids and/or acidity regulators”. Although acid is an acidity regulator, as it is listed as a distinct component it is unclear as to if the term “acidity regulators” as claimed excludes or includes acid. If the term “acidity regulators” is intended to be inclusive of all acidity regulators, including acid, it is suggested that applicant amend the claim to just recite “acidity regulators”.
Claim 1 recites the composition as comprising tomatoes and/or products thereof from 5-90% in line 6 and vegetables and/or fruits from 0-25% in line 12. It is unclear as to if the vegetables and/or fruits recited in line 12 can include tomatoes, or are limited to other non-tomato vegetables and/or fruits. As such, it is unclear as to what percentage of tomatoes the claimed product is limited to.
Claim 1 recites “calcium chemical compounds 0-4, magnesium chemical compounds 0-2”. As the claim recites “compounds” plural, it is unclear as to if a singular compound, such as calcium lactate in a quantity of more than one would read on the claimed “compounds” or as to if the term requires a plurality of different compounds.
Claim 1 recites “the sauce has a dry matter content of 10% to 40%, of which dry matter of tomatoes of 5% to 20%”. It is unclear as to if the tomato dry matter is by weight of the total sauce composition, or by weight of the dry matter within the sauce.
Claims 1, 6, and 7 include parenthetical references. It is unclear as to if these references are merely duplicative, optional, or intend to limit the claims in some additional manner. It is suggested that the parenthetical references be removed and the claims be distinctly recited.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1, 2, and 5-7 are rejected 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).
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 is a product of tomato (page 13 line 30 through page 14 line 6 and page 14 line 10), and thus the composition has a tomato solids concentration of preferably about 0.2% (about 1% tomato juice with a 20o Brix) to about 40% (about 50% tomato juice with a 80o Brix) tomato solids;
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).
BS 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.
Regarding the composition as “consisting of the named ingredients” as recited in claim 1, as discussed above, the claim is unclear and has been considered as recited “comprising”. Thus, the teachings of BS encompass the claimed composition. Additionally, it is noted that several of the ingredients disclosed by BS are optional and thus are not necessarily required
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 a solid to liquid ratio it would be able to function as a sauce and is considered to encompass the product as instantly claimed.
BS is silent to the composition as having heat-treated tomatoes and/or products thereof, and comprising 0.5-15% acids and/or acidity regulators, 0.4-4% sodium chloride, and 0.05-0.4% magnesium as recited in claim 1, preferably 0.2-1.3% magnesium citrates as recited in claims 6 and 7.
Regarding the composition as having heat-treated tomatoes and/or products thereof as recited in claim 1, as discussed above BS teaches the use of tomato products within the nutritional composition. Frederick teaches of edible compositions with fruit and vegetable products, including tomatoes as a base for nutritional supplements (abstract and page 2 lines 1-20). Frederick teaches that heat treatment of the fruit and/or vegetable can help to prevent and/or hinder undesirable degradation of the fruit/vegetables during storage and/or manufacture, and for tomatoes, develop more desirable textures (page 26 lines 11-21). Thus, it would have been obvious for the tomato product of BS to include heat treated tomatoes in order to prevent or hinder degradation and/or develop more desirable textures in view of Frederick.
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, Frederick teaches that salt could be added to the nutritionally fortified fruit and/or vegetable compositions (abstract and page 16 line 24) and exemplifies salt in tomato products in amounts of 2.1%, 3.1%, 4%, and 4.95% (Examples 1-8, pages 20-23). It would have been obvious to one of ordinary skill in the art for the nutrient tomato product of BS to include salt up to 4.95% as exemplified by Frederick depending on the desired about of preservation and salt flavoring in view of Igoe. 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 0.05-0.4% magnesium as recited in claim 1, preferably 0.2-1.3% magnesium citrates as recited in claims 6 and 7, as discussed above, 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 5422128 teaches a calcium supplemented beverage concentrate comprising 0.2-1.2% solubilized calcium, including calcium lactate; 0.7-8.25% acid; 20-65% water, and thus 35-80% dry matter; 0.1-70% flavoring, including tomato juice; and other materials.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792