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 .
The amendment filed December 24, 2025 is acknowledged. Claims 1-3 and 5-7 are pending in the application. Claims 4 and 8-9 have been cancelled.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Hühn US 20180192665 (hereinafter “Hühn”) in view of Nakel et al. US 3579353 (hereinafter ”Nakel”) and Woelfel et al. US 20110027442 (“hereinafter “Woelfel”).
Evidence is provided by Chemical Book and Cameo Chemicals. Chemical Book and Cameo Chemicals are merely used to show the synonyms for 2-methylpyrazine and 2-furnamethanol, respectfully.
With respect to claim 1, Hühn teaches a cocoa butter composition (paragraph [0054]).
Regarding the recitation of the edible vegetable fat and oil comprising 2-methylpyrazine, dimethylpyrazine, and 2-furanmethanol in claim 1, Hühn teaches the cocoa butter composition comprises methylpyrazine (2-methylpyrazine), dimethylpyrazine, and 2-furanmethanol (paragraph [0054]). As evidenced by Chemical Book, methylpyrazine is a synonym for 2-methylpyrazine as presently claimed (P2, Synonyms).
Regarding the recitation of wherein a content of the 2-methylpyrazine is 6 µg or more in 100 mg of the edible vegetable fat and oil and is larger than a content of the dimethylpyrazine and a content of the 2-furanmethanol in claim 1, Hühn does not expressly disclose the quantities of these claimed components.
Nakel teaches pyrazine compounds used as flavors in food. The pyrazine compounds can be used in concentrations as low as 0.15 ppm and up to 5000 ppm or more of the food. In one embodiment, dimethylpyrazine and/or methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food. The food can be cocoa butter (C1, L53-56; C2, L55-63; C9, L28-31; C10, L9-14; and C15, L56-59).
Woelfel teaches a fat-based confection. The fat-based confection comprises cocoa butter as the fat component and 2-furfuryl alcohol (2-furanmethanol) in the amount of 2.5 ppm to 50 ppm (.25 µg to 5 µg in 100 mg of the fat component) as a flavor component (Abstract; and paragraphs [0003], [0019], [0021], [0028], [0055], and [0058]). As evidenced by Cameo Chemicals, 2-furfuryl alcohol is a synonym for 2-furanmethanol as presently claimed (P4, Alternate Chemical Names).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Nakel and Woelfel, to select any portions of the disclosed ranges, including the instantly claimed ranges of 2-methylpyrazine, dimethylpyrazine, and 2-furanmethanol, from the ranges disclosed in the prior art references with the expectation of successfully preparing an organoleptically desirable cocoa butter product. One of ordinary skill in the art would have been motivated to do so because Hühn, Nakel, and Woelfel similarly teach cocoa butter comprising similar flavoring ingredients, Hühn teaches preparing a desirable cocoa butter product with desirable flavors comprising at least 40 mg/kg total of methylpyrazine (2-methylpyrazine), dimethylpyrazine, and 2-furanmethanol (at least 4µm of methylpyrazine (2-methylpyrazine), dimethylpyrazine, and 2-furanmethanol per 100 mg of the cocoa butter) (paragraphs [0053] and [0055]), Nakel teaches the amount of methylpyrazine (2-methylpyrazine) and dimethylpyrazine depends on the food product, the flavor to be produced, and the amounts of flavorful substances present from other sources (C2, L64-67), and Woelfel teaches the fat-based confection has special flavor attributes and varying amounts of the 2-furfuryl alcohol (2-furanmethanol) results in different flavor notes brought to the forefront of the taste profile (paragraphs [0022] and [0059]). There would have been a reasonable expectation of success. 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 recitation of the edible vegetable fat and oil further comprising furfural and pyrazine in claim 1, Hühn teaches the cocoa butter composition further comprises furfural (paragraph [0054]).
However, Hühn does not expressly disclose the cocoa butter composition comprises pyrazine.
Nakel teaches pyrazine compounds, such as pyrazine, used as flavors in food. The food can be cocoa butter (C1, L20-38 and 53-56; and C2, L52-53).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Nakel, to select pyrazine in the cocoa butter of Hühn based in its suitability for its intended purpose with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because Hühn and Nakel similarly teach cocoa butter compositions comprising flavors, Hühn teaches preparing a desirable cocoa butter product with desirable flavors and additional flavors may be included in the product (paragraphs [0053], [0072], and [0078]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Regarding the recitation of wherein a content of the pyrazine is larger than a content of the furfural and is smaller than the content of the dimethylpyrazine and the content of the 2-furanmethanol in claim 1, modified Hühn teaches the content of the pyrazine is smaller than the content of the dimethylpyrazine and the content of the content of the 2-furanmethanol since Nakel is relied upon for the teaching of pyrazine in the cocoa butter composition and its quantity (about 0.15 ppm to about 10,000 ppm or about 0.015 µg to about 1,000 µg per 100 mg of food) as well as the quantity of dimethylpyrazine (about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) (C10, L9-14)) as addressed above. Additionally, Woelfel is relied upon for the teaching of the content of 2-furanmethanol as addressed above (2.5 ppm to 50 ppm (.25 µg to 5 µg in 100 mg of the fat component)). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Hühn also teaches the cocoa butter composition further comprises furfural as addressed above (paragraph [0054]). However, Hühn does not expressly disclose the content of furfural.
Woelfel teaches a fat-based confection. The fat-based confection comprises cocoa butter as the fat component and furfural in the amount of .10 ppm to 60 ppm (.010 µg to 6 µg in 100 mg of the fat component) as a flavor component (Abstract; and paragraphs [0003], [0019], [0021], [0028], [0053], and [0058]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Woelfel, to select any portions of the disclosed range, including a quantity of furfural that is smaller than the quantity of pyrazine as claimed, from the range disclosed in the prior art reference with the expectation of successfully preparing an organoleptically desirable cocoa butter product. One of ordinary skill in the art would have been motivated to do so because Hühn and Woelfel similarly teach cocoa butter comprising furfural, Hühn teaches preparing a desirable cocoa butter product with desirable flavors (paragraphs [0053]), and Woelfel teaches the fat-based confection has special flavor attributes and varying amounts of the furfural results in different flavor notes brought to the forefront of the taste profile (paragraphs [0022] and [0059]). There would have been a reasonable expectation of success. 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 recitation of having a scent of sesame oil in the preamble of claim 1, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the edible vegetable fat and oil would naturally display this claimed feature since this characteristic is a function of the ingredients present in the edible vegetable fat and oil, Hühn teaches a desirable cocoa butter product with desirable flavors comprising 2-methylpurazine, dimethylpyrazine, 2-furanmethanol, and furfural that is substantially similar to the presently claimed product as addressed above (paragraphs [0053] and [0054]) and the claimed quantities of the flavoring ingredients have been shown to be obvious in view of Hühn as modified by Nakel and Woelfel.
With respect to claim 2, modified Hühn is relied upon for the teaching of the edible vegetable fat and oil as addressed above in claim 1.
Regarding the recitation of wherein a content ratio of the dimethylpyrazine to the 2-methylpyrazine is from 0.40 to 0.90 in claim 2, Hühn as modified by Nakel teaches this limitation since Nakel is relied upon for the teaching of the contents of 2-methylpyrazine and dimethylpyrazine as addressed above in claim 1, and Nakel teaches dimethylpyrazine and/or methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14). Thus, the ratio of dimethylpyrazine to 2-methylpyrazine is from .25 to 4 and encompasses the presently claimed range (calculated from 50 ppm:200 ppm to 200 ppm:50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 3, modified Hühn is relied upon for the teaching of the edible vegetable fat and oil as addressed above in claims 1 and 2.
Regarding the recitation of wherein a mass ratio between the dimethylpyrazine and the 2-furanmethanol is from 70:30 to 40:60 in claim 3, Hühn as modified by Nakel and Woelfel teaches this limitation since Nakel is relied upon for the teaching of the contents of 2-methylpyrazine and dimethylpyrazine as addressed above in claim 1, and Woelfel is relied upon for the teaching of the 2-furanmethanol content in claim 1. As previously addressed in claim 1, Nakel teaches dimethylpyrazine and/or methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14), and Woelfel teaches 2-furfuryl alcohol in the amount of 2.5 ppm to 50 ppm (.25 µg to 5 µg in 100 mg of the fat component) as a flavor component in the fat-based composition (paragraph [0055]). Thus, the ratio of dimethylpyrazine to 2-furanmethanol is from 99:1 to 50:50 and overlaps with the presently claimed range (calculated from (200 ppm/(200 ppm + 2.5 ppm)) x 100 to (2.5 ppm/(200 ppm + 2.5 ppm)) x 100 and 50 ppm to 50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 5, modified Hühn is relied upon for the teaching of the edible vegetable fat and oil as addressed above in claim 1.
Regarding the recitation of wherein a content ratio of the furfural to the 2-methylpurazine is 0.20 or smaller in claim 5, Hühn as modified by Nakel and Woelfel teaches the claimed ratio. As previously addressed in claim 1, Woelfel is relied upon for the teaching of the quantity of furfural (.10 ppm to 60 ppm or .010 µg to 6 µg in 100 mg of the fat component). Nakel is relied upon for the teaching of the content of 2-methylpyrazine as addressed above in claim 1, and Nakel teaches methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14). Thus, the ratio of furfural to 2-methylpyrazine is from .0005 to 1.2 and overlaps with the presently claimed range (calculated from .10 ppm:200 ppm to 60 ppm:50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 6, modified Hühn is relied upon for the teaching of the edible vegetable fat and oil as addressed above in claim 1.
Regarding the recitation of wherein the content of the 2-methylpyrazine is from 10 µg to 100 µg in 100 mg of the edible vegetable fat and oil in claim 6, Hühn as modified by Nakel teaches this limitation since Nakel is relied upon for the teaching of the 2-methylpyrazine content as addressed above in claim 1, and Nakel teaches using from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) of 2-methylpyrazine to enhance flavor of the food in one embodiment (C10, L9-14). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the recitation of wherein a content ratio of the dimethylpyrazine to the 2-methylpyrazine is from 0.40 to 0.70 in claim 6, Hühn as modified by Nakel teaches this limitation since Nakel is relied upon for the teaching of the contents of 2-methylpyrazine and dimethylpyrazine as addressed above in claim 1, and Nakel teaches dimethylpyrazine and/or methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14). Thus, the ratio of dimethylpyrazine to 2-methylpyrazine is from .25 to 4 and encompasses the presently claimed range (calculated from 50 ppm:200 ppm to 200 ppm:50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the recitation of wherein a mass ratio between the dimethylpyrazine and the 2-furanmethanol is from 55:45 to 45:55 in claim 6, Hühn as modified by Nakel and Woelfel teaches this limitation since Nakel is relied upon for the teaching of the contents of 2-methylpyrazine and dimethylpyrazine as addressed above in claim 1, and Woelfel is relied upon for the teaching of the 2-furanmethanol content in claim 1. As previously addressed in claim 1, Nakel teaches dimethylpyrazine and/or methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14), and Woelfel teaches 2-furfuryl alcohol in the amount of 2.5 ppm to 50 ppm (.25 µg to 5 µg in 100 mg of the fat component) as a flavor component in the fat-based composition (paragraph [0055]). Thus, the ratio of dimethylpyrazine to 2-furanmethanol is from 99:1 to 50:50 and overlaps with the presently claimed range (calculated from (200 ppm/(200 ppm + 2.5 ppm)) x 100 to (2.5 ppm/(200 ppm + 2.5 ppm)) x 100 and 50 ppm to 50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 7, modified Hühn is relied upon for the teaching of the edible vegetable fat and oil as addressed above in claims 1 and 6.
Regarding the recitation of wherein a content ratio of the furfural to the 2-methylpurazine is 0.20 or small in claim 7, Hühn as modified by Nakel and Woelfel teaches the claimed ratio. As previously addressed in claim 1, Woelfel is relied upon for the teaching of the quantity of furfural (.10 ppm to 60 ppm or .010 µg to 6 µg in 100 mg of the fat component). Nakel is relied upon for the teaching of the content of 2-methylpyrazine as addressed above in claim 1, and Nakel teaches methylpyrazine (2-methylpyrazine) can be used in an amount of from about 50 ppm to about 200 ppm (about 5 µg to about 20 µg in 100 mg of the food) to enhance flavor of the food in one embodiment (C10, L9-14). Thus, the ratio of furfural to 2-methylpyrazine is from .0005 to 1.2 and overlaps with the presently claimed range (calculated from .10 ppm:200 ppm to 60 ppm:50 ppm). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
Applicant’s remarks filed December 24, 2025 are acknowledged.
Due to the amendments to the claims, the claim objection in the previous Office Action has been withdrawn (P4).
Applicant’s arguments have been fully considered but they are unpersuasive.
Applicant argues there is no discussion in Hühn of sesame oil or a scent of sesame oil. Those skilled in the art would not be motivated to relay on Hühn for any teachings relevant to the presently claimed invention. Hühn does not appear to support a prima facie rejection for obviousness. Nakel nor Woelfel appear to cure the deficiencies identified with respect to Hühn. Nakel fails to teach the use of pyrazines as food flavorings. There is no discussion in Nakel that might lead those skilled in the art to a compound including pyrazine, let alone a compound including pyrazine in relation to furfural, dimethylpyrazine, and 2-furanmethanol, for example. Woelfel does not appear to be directed to an edible fat and oil having a scent of sesame oil. There does not appear to be any discussion in Woelfel that might be said to lead those skilled in the art to the combination of elements now recited by the claims (P4-P7).
Examiner disagrees. As addressed above, modified Hühn teaches the claimed invention. It is noted that this recitation of having a scent of sesame oil in the preamble of claim 1 relates to functional language. Absent any clear and convincing evidence to the contrary, the edible vegetable fat and oil would naturally display this claimed feature since this characteristic is a function of the ingredients present in the edible vegetable fat and oil, Hühn teaches a desirable cocoa butter product with desirable flavors comprising 2-methylpurazine, dimethylpyrazine, 2-furanmethanol, and furfural that is substantially similar to the presently claimed product as addressed above (paragraphs [0053] and [0054]) and the claimed quantities of the flavoring ingredients have been shown to be obvious in view of Hühn as modified by Nakel and Woelfel. While Nakel and Woelfel do not disclose all the features of the presently claimed invention, Nakel and Woelfel are used as teaching references, and therefore, it is not necessary for this secondary references to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981).
Conclusion
THIS ACTION IS MADE FINAL. 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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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793