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 .
Examiner Notes
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
It is noted that claim 20 is identified as “Previously Presented”, however, this claim should be properly marked “Withdrawn”. Correction is earnestly solicited in any forthcoming responses in order to avoid the possibility of a non-compliant amendment for improper claim identification.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
Claims 1, 2, 4, 5, 7-9 and 14-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shigemura USPN 9072313 (hereafter referred to as Shigemura).
Regarding claims 1, 2 and 7, Shigemura teaches a composition (Ex. 35) comprising:
A first particle comprising (Ex. 1):
First oil: Neobee M-5 medium chain triglyceride (Col. 85, lines 34-42)
Flavor (compound 1)
Carrier: starch (Col. 85, lines 47-55)
A second particle comprising (Ex. 24)
First oil: Neobee M-5 medium chain triglyceride (Col. 86, lines 1-24)
Flavor (compound 24)
Carrier: maltodextrin (Col. 86, lines 1-24)
These particles were mixed for use in Italian sausage seasoning in Ex. 36. (Col. 86, table 36-3a) In the mixture of particles disclosed in Ex. 36 the two particles have different carriers (first particle: starch, second particle: maltodextrin) and different flavor oils because they comprise different flavor compounds. Mixing such particles would necessarily result in some agglomerates of the different particles as recited in claim 1. Clearly, the combination of particles would have a distinct sensory profile compared to a sensory profile of the first particle and a sensory profile of the second particle because the combination has a different matrix of flavors compared to the individual particles. As such, Shigemura anticipates the limitations of claims 1, 2 and 7.
Regarding claim 4, the first and second flavor oils of Shigemura are both interpreted to be heat and oxidation susceptible since both oils would degrade if subjected to heat or oxidation.
Regarding claim 5, flavor compounds 1 and 24 of Shigemura are both ketones.
Regarding claims 8 and 16, the particle mixture of Shigemura contains the first and second particles in a ratio of 1:1.39 which reads on claims 8 and 16. (Table 36.3a)
Regarding claims 9 and 17, the particles of Shigemura are obtained by different processes because they particles do not have the same composition. While Shigemura is silent regarding twin-screw extrusion or melt-extrusion as recited in claim 17, these limitations are merely product-by-process limitations recited in such little detail as to fail to impart any materially distinguishing characteristics to the claimed particles. (See MPEP 2113)
Regarding claims 14 and 15, Shigemura teaches making a sausage with the disclosed particle mixture which is a savory consumer product as recited in claims 14 and 15. (Table 36-3a)
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.
Claims 3 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Shigemura USPN 9072313 with evidence provided by Embuscado, Milda E. (2014).Functionalizing Carbohydrates for Food Applications - Texturizing and Bioactive/Flavor Delivery Systems. DEStech Publications., Table 5.11. Retrieved 11/23/24 from https://app.knovel.com/hotlink/itble/rcid:kpFCFATBF7/id:kt012QQVOF/functionalizing-carbohydrates/table-5-11-properties.
Regarding claim 3, Shigemura discloses exemplary carriers including 10 DE maltodextrin (Col. 86, lines 19-24) and 18 DE maltodextrin (Table 38-1).
Embuscado evidences that 10 DE maltodextrin has a molecular weight of 1800 g/mol and 18 DE maltodextrin has a molecular weight of 1000 g/mol.
Therefore, Shigemura encompasses embodiments where the molecular weight of the second carrier falls within the ranges recited in claim 3. In the case where the claimed ranges “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) (MPEP 2144.05 I)
Regarding claim 6, flavor compound 1 has a molecular weight of 263.33 g/mol which is greater than 100 Dalton as recited in claim 6. Shigemura further discloses that the flavor compounds of the invention can be compounded with table salt (NaCl). (Ex. 32). Table salt has a molecular weight, 58.44 g/mol that is less than 100 Dalton as recited in claim 6. In the case where the claimed ranges “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) (MPEP 2144.05 I)
It would have been obvious to one of ordinary skill in the art at the time the application was filed to have varied the concentration of these flavoring components in the flavor concentrate particles disclosed depending on the amount of flavor that was desired to be imparted to the final product. 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.
As such, claim 6 is obvious over Shigemura.
Response to Arguments
Applicant's arguments filed 22 December 2025 have been fully considered but they are not persuasive.
Applicant asserts on pages 5 and 6 of the remarks that Shigemura requires the same carrier because maltodextrin is added to the spray dried particles. The instant claims do not exclude the presence of maltodextrin and maltodextrin is a known carrier composition. Therefore, maltodextrin is reasonably interpreted as a carrier in the second particle and applicant’s argument is not found persuasive.
Applicant asserts that agglomeration is a distinct method from spray drying in Shigemura, however, this assertion does not negate the assertion by the examiner that mixing particles would necessarily lead to at least some agglomeration. Claim 1 only requires the agglomeration of one first particle and one second particle. Clearly, the examiners position that this limitation is satisfied by the mixing together of particles in Shigemura is reasonable in the absence of evidence to the contrary.
Applicant’s assertions regarding the “significant and unique benefits” of the claimed agglomerates compared to individual particles on page 6 of the remarks is not commensurate in scope with the claims. The examples referenced by applicant only illustrate what happens for specific combinations of flavor oils. The instantly pending claims do not contain any limitations identifying specific flavor oils. Additionally, applicant’s remarks regarding the examples demonstrating a “significantly different” flavor are not germane as the claims are not limited to these specific examples nor do they require any specific magnitude of difference. Clearly, mixing two flavors yields a different flavor from the individual components and therefore this limitation is satisfied by Shigemura.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793