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 .
Application Status
Claim 1-27 are under examination.
Claim 1-27 are rejected.
Claim Objections
Claim 16, 17, 21, 22, 23 and 27 are objected to because of the following informalities: claim 16, 17, 21, 22, 23 and 27 recite “a mineral-containing composition” should be “the mineral-containing composition” since antecedent basis has been established in claim 1.
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.
Claim 1-27 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 is not under proper claim construction, wherein “comprising” or “consisting” is not recited, hence it is not clear if the claim is open-ended or closed ended claim. The claim is indefinite.
Claim 1 recites the limitation "the metal ions" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the chloride ion content" in line 2-3. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the food" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 4, the phrase " a low-salt type" renders the claim(s) indefinite because the claim(s) include(s) elements i.e., “type” not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
The term “a low-salt type” in claim 4 is a relative term which renders the claim indefinite. The term “low” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 7 recites the limitation "the calcium ion content" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the magnesium ion content" in line 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the sodium content" in line 2. There is insufficient antecedent basis for this limitation in the claim.
The claim 16 is indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors, with term “whose”.
Claim 16-21 recites a method whereas the claim 16-22 are dependent upon the composition claim of claim 1. It is not clear how the claims are further limiting the claimed composition of claim 1. The claims are improper, confusing and indefinite.
Claim 22-27 recites a product whereas the claims are dependent upon the composition claim of claim 1. It is not clear how claim 22-27 are further limiting the claimed composition of claim 1. The claims are improper, confusing and indefinite.
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.
Claim(s) 1-27 are rejected under 35 U.S.C. 103 as being unpatentable over Mohlenkamp, Jr. et al. (US 4,243,691) as evidenced by Web QC (Ref. U and Ref. V).
Regarding claim 1, Mohlenkamp, Jr. et al. (Mohlenkamp) discloses a salt substitute (composition) comprising potassium phosphate in a range of about 10% to about 40% and potassium chloride in a range of about 15% to about 50% (‘691, col. 8, claim 1); wherein a content of potassium ions from the potassium phosphate and the potassium chloride, is in a range of about 13.39% to about 48.34%, as evidenced by Web QC (Ref. U and Ref. V). The potassium ions in Mohlenkamp’s salt substitute (composition) is the only metal ion, hence it is the highest content of metal ions present in the salt substitute (composition).
Mohlenkamp’s potassium chloride in the range of about 15% to about 50% (‘691, col. 8, claim 1) provides a range of about 7.13% to about 23.72% of chloride ion content as evidenced by Web QC (Ref. U), which overlaps the claimed range of not more than 50% of the content of potassium ions as taught by Mohlenkamp. 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).
Regarding claim 2, Mohlenkamp discloses the salt substitute (composition) in an aqueous solution has a pH from about 5.5 to 7.5 (‘691, col. 5, ln. 21-24), which overlaps the cited range. 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).
Regarding claim 3 and 5, Mohlenkamp discloses the salt substitute (composition), as a food additive is added to foodstuff, including soup (soup stock) (‘691, col. 5, ln. 63-68; col. 6, ln. 1-5).
Regarding claim 4, Mohlenkamp’s salt substitute (composition), as a food additive is added to foodstuff, including soup (‘691, col. 5, ln. 63-68; col. 6, ln. 1-5) is considered a low-salt type, since Mohlenkamp teaches a low amount of the salt substitute (composition) is added to the soup (‘691, col. 6, ln. 2-3).
Regarding claim 6 and 9, Mohlenkamp discloses the salt substitute (composition) contains no more than 0.5% by weight of sodium (sodium ion) (‘691, col. 3, ln. 24-25). With respect to claim 9, Mohlenkamp’s no more than 0.5% by weight of sodium (sodium ion) (‘691, col. 3, ln. 24-25) overlaps the cited range.
Regarding claim 7, the recitation of “the calcium ion content…is not more than 2.0% of the potassium content” encompass a value of zero amount of calcium ion content. Mohlenkamp’s salt substitute (composition) in Example I (‘691, col.6) discloses a zero amount of a calcium ion content.
Regarding claim 8, the recitation of “the magnesium ion content…is not more than 1.0% of the potassium content” encompass a value of zero amount of magnesium ion content. Mohlenkamp’s salt substitute (composition) in Example I (‘691, col.6) discloses a zero amount of a magnesium ion content.
Regarding claim 10 and 11, Mohlenkamp discloses the salt substitute (composition) comprising vegetable proteins, isolates (active carbon extract/plant-derived material/food residues) (‘691, col. 4, ln. 20-25).
Regarding claim 12, 13, 14 and 15, are considered recitation of the intended use of the claimed invention as recited in claim 1, must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding claim 16, 17, and 18, Mohlenkamp discloses adding the salt substitute (composition), as the food additive to the foodstuff, including the soup (‘691, col. 5, ln. 63-68; col. 6, ln. 1-5). When reading the preamble in the context of the entire claim, the recitation “with enhanced flavor” in claim 16, “”with increased umami and/or umami richness” in claim 17 and 18, is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Regarding claim 19, 20 and 21, Mohlenkamp discloses adding the salt substitute (composition), as the food additive to the foodstuff, including the soup (‘691, col. 5, ln. 63-68; col. 6, ln. 1-5) in an amount of about 0.5% to about 4% (‘691, col. 5, ln. 68 – col. 6, ln. 1). Mohlenkamp does not disclose the cited range, however, it would have been obvious to one of ordinary skill in the art to adjust amounts including the cited amount of Mohlenkamp’s salt substitute (composition) in the foodstuff to provide a desired flavor profile. With respect to claim 20, Mohlenkamp discloses the salt substitute (composition) in the aqueous solution has a pH from about 5.5 to 7.5 (‘691, col. 5, ln. 21-24), which overlaps the cited range. 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). With respect to claim 21, it was well known practice to add noodles in soup for a desired finished soup.
Regarding claim 22, 23, 24, 25, 26 and 27, Mohlenkamp’s salt substitute (composition), as a food additive is added to foodstuff, including soup (‘691, col. 5, ln. 63-68; col. 6, ln. 1-5) is considered a low-salt type, since Mohlenkamp teaches a low amount of the salt substitute (composition) is added to the soup (‘691, col. 6, ln. 2-3). When reading the preamble in the context of the entire claim, the recitation “with enhanced flavor” in claim 22, “”with increased umami and/or umami richness” in claim 23 and 24, is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02. With respect to claim 25, Mohlenkamp discloses the salt substitute (composition) in the aqueous solution has a pH from about 5.5 to 7.5 (‘691, col. 5, ln. 21-24), which overlaps the cited range. 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). With respect to claim 27, it was well known practice to add noodles in soup for a desired finished soup.
Conclusion
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/HONG T YOO/ Primary Examiner, Art Unit 1792