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 .
Claim status
The examiner acknowledged the amendment to the claims filed 08/04/2025.
Claims 1, 5-7 and 9-18 are pending in the application. Claim 1 is currently amended. Claims 5-7 are previously presented (applicant incorrectly marks that claim 5 is currently amended). Claims 2-4 are previous canceled. Claim 8 is newly canceled. Claims 9-18 are newly presented. Claims 1, 5-7 and 9-18 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 1, 5-7 and 9-18 are rejected under 35 U.S.C. 103 as being unpatentable over Regismond US Patent Application Publication No. 2017/0049140 A1 (hereinafter referred to as Regismond) in view of Nakajima US Patent No. 7,029,719 B1 (hereinafter referred to as Nakajima) and Suyama JP2017121214 A (cited in IDS, Abstract and English translation relied upon for reference, hereinafter referred to as Suyama).
Regarding claims 1, 5-7 and 9-18, Regismond teaches an acidic O/W type emulsified liquid seasoning (e.g., mayonnaise having a pH of 3-5, 0042; 0024) comprises, inter alia, 65-78% an edible oi and fat (e.g., one of or a combination of rapeseed oil, sunflower oil, olive oil and soybean oil, 0020; 0044), 0.1-2% by weight of an acid such as acetic acid provided as vinegar (0046), 0.5-10% or narrowly 2-6% an emulsifying material (e.g., egg yolk, 0023; 0054), 0.25-5% by weight of a ground mustard seed ( 0022), and water (0020).
The amount of edible oil and fat as disclosed by Regismond falls within the ranges as recited in claims 1 and 6. The amount of acetic acid by weight of an aqueous phase as disclosed by Regismond renders obvious the range as recited in the claim (calculation: the liquid seasoning contains 65-78% oil and 0.1-2% acetic acid, thus, the amount of acetic acid by weight of the aqueous phase is from 0.1% x100%/(100%-65%) =~ 0.3% to 2% x100%/(100%-78%) = ~10%). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regismond as recited above teaches that the mayonnaise comprises one of or a combination of rapeseed oil, sunflower oil, olive oil and soybean oil, but is silent regarding the mayonnaise comprising unroasted sesame or the amount thereof with respect to a total amount of the edible oil and fat in the liquid seasoning.
Nakajima in the same field of endeavor teaches that vegetable oil such as soybean oil, sunflower oil, sesame oil, rapeseed oil, olive oil can be used as the oil source in mayonnaise (column 4, line 35-38; column 3, line 8-10).
Suyama in the same field of endeavor teaches an acidic (e.g., vinegar-containing, page 3, 3rd para.) liquid seasoning comprising an oil phase and an aqueous phase (see Abstract), wherein the liquid seasoning comprises an emulsifier (page 2, 5th para.); wherein the oil phase comprises perilla oil (page 2, 5th para. from the bottom), rapeseed oil/soybean oil/corn oil (3rd para. from the bottom of page 2), and roasted or unroasted sesame oil (page 3, 2nd para.); and wherein the amount of sesame oil by weight of the oil phase is 8-20% which can suppress the deterioration of flavor during long-term storage (page 3, 2nd para.).
Both Regismond and Nakajima are directed to mayonnaise. Both Regismond and Suyama are directed to an acid liquid emulsified O/W seasoning. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Regismond by including unroasted sesame oil or roasted oil in the liquid seasoning with reasonable expectation of success, for the reason that prior art has established that it is suitable to use sesame oil as the oil source for mayonnaise and that it is suitable to use an unroasted sesame oil or a roasted sesame oil as the source of sesame oil in an acidic liquid seasoning.
Further, where Suyama teaches that both roasted or unroasted sesame oil are suitable for suppressing the deterioration of flavor during long-term storage of the liquid seasoning (page 3, 2nd para.), one of ordinary in the ordinary skill in the art would have been motivated to combine roasted and roasted sesame oil in the liquid seasoning with reasonable expectation of success since, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06. Further, one of ordinary skill in the art would have been motivated to manipulate the ratio of roasted and roasted sesame oil in the liquid seasoning provided that the total amount of sesame oil (roasted plus unroasted) is 8-20% by weight of the oil phase. As such, the amounts of unroasted sesame oil with respect to a total amount of the edible oil and fat as recited in claims 1 and 5 are merely obvious variants of the prior art.
On the ratios of unroasted sesame oil content in the liquid seasoning to the emulsifier content in the liquid seasoning as recited in claims 1 and 9-10: the ratio as recited necessarily depend on the amount of unroasted sesame oil in the liquid seasoning and the amount of emulsifier in the liquid seasoning. In the instant case, Regismond teaches that the liquid seasoning comprises 0.5-10% or narrowly 2-6% emulsifier; Further, since the amount of unroasted sesame oil with respect to a total amount of the edible oil and fat is obvious over the prior art, then the amount of unroasted sesame oil with respect to the liquid seasoning is also obvious over the prior art. Therefore, the ratio of unroasted sesame oil content in the liquid seasoning to the emulsifier content in the liquid seasoning is merely an obvious variant of the prior art.
On the ratio of unroasted sesame oil content in the liquid seasoning to the acetic acid content in the aqueous phase as recited in claims 1 and 11-18: the ratio as recited necessarily depends on the amount of unroasted sesame oil in the liquid seasoning and the amount of acetic acid in the aqueous phase. In the instant case, Regismond teaches that the amount of acetic acid by weight of the aqueous phase as disclosed by Regismond is 0.3-10%; Further, since the amount of unroasted sesame oil with respect to a total amount of the edible oil and fat is obvious over the prior art, then the amount of unroasted sesame oil with respect to the liquid seasoning is also obvious over the prior art. Therefore, the ratio of unroasted sesame oil content in the liquid seasoning to the acetic acid content in the aqueous phase is merely an obvious variant of the prior art.
Claims 1, 5-7 and 9-18 are rejected under 35 U.S.C. 103 as being unpatentable over Saito US Patent Application Publication No. 2006/0003077 A1 (hereinafter referred to as Saito).
Regarding claims 1, 5-7 and 9-18, Saito teaches an acidic emulsified mayonnaise like liquid seasoning (abstract) comprising, inter alia, acetic acid provided by vinegar (0030; Table 1), an edible oil and fat at an amount of 50-65% by weight of the liquid seasoning (0029), 0.1-5% an emulsifying material by weight of the liquid seasoning (e.g., alkenyl succinic acid starches, 0007; 0018; 0022; note that 0028 of the instant specification recites that alkenyl succinic acid starches are emulsifying starch), and water (0033; Table 1-Table 2), wherein the edible oil and fat comprises unroasted sesame oil (e.g., sesame salad oil, para. 0028-0029; note that 0020 of the instant specification indicates that sesame salad oil is unroasted sesame oil).
Regarding the content of acetic acid by weight of the aqueous phase, Saito teaches that acetic acid is provided in the form of a vinegar, and the content of the vinegar is preferably in the range of 0.3-1.5% of the liquid seasoning (e.g., acidic emulsified mayonnaise-like food) (0030); thus given that the amount of aqueous phase is 35-50% (e.g., oil is 50-65%, para. 0029) and that vinegar is known to commonly contain 4-6% acetic acid, the content of acetic acid by weight of aqueous phase is at little as 0.3% x 4%/50% = ~0.02% and as much as 1.5% x 6%/35% = ~0.25%. More specifically, Table 4 of Saito teaches 7% edible vinegar in 43% aqueous phase, thus assuming that the edible vinegar has 4-6% acetic acid, the amount of acetic acid by weight of the aqueous phase is 7% x (4%-6%)/43% = 0.65-0.98%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding the limitations about the content of the unroasted sesame oil with respect to the total amount of edible oil as recited in claim 1 or claim 5, Saito teaches that the edible oil and fat of the liquid seasoning includes two or more of soybean oil, rapeseed oil, corn oil, unroasted sesame oil (e.g., sesame salad oi), linseed oil, peanut oil, safflower oil, sunflower oil, cotton seed oil, walnut oil, perilla oil, etc. (0028), and the total amount of oil and fat by width of the liquid seasoning is 50-65% (0029); therefore, one of ordinary skill in the art would have been motivated to manipulate the amount of individual oil such as unroasted sesame oil based on preference and/or availability. Alternatively, where Saito teaches 50-65 wt% an oil admixture comprising soybean oil, rapeseed oil, corn oil, unroasted sesame oil (e.g., sesame salad oi), linseed oil, peanut oil, safflower oil, sunflower oil, cotton seed oil, walnut oil, perilla oil, etc., the proportion of each of the oil type is reasonably 0-100% within 50-65% thus encompassing the ranges as recited in the claims.
Since the content of unroasted sesame oil by weight of oil and fat is an obvious variant of the prior art, the content of unroasted sesame oil by weight of the liquid seasoning would have been obvious over prior art as well; further, Saito teaches specific ranges of acetic acid or emulsifying material in the liquid reasoning (e.g., amount of emulsifier in the seasoning is 0.1-5% and the amount of acetic acid in the aqueous phase is 0.65-0.98%), therefore, the ratio of unroasted sesame oil to the acetic acid or the emulsifying material as recited in claims 1 and 9-18 are reasonably obvious variants of the prior art.
Response to Arguments
Applicant's arguments filed 08/04/2025 have been fully considered but they are not persuasive.
Regarding the 35 USC 103 rejection over Regismond in view of Nakajima and Suyama, applicant argues on page 6 of the Remarks that the arts as cited do not teach the ratio of 0.01-0.37 for the unroasted sesame oil content/emulsifier.
The argument is considered but found moot over the new ground rejection set forth in the instant office action. See para. 14 of the instant office action. Further, the examiner notes that applicant has not shown by convincing evidence any new result associated with the ratio of 0.01-0.37.
Applicant argues on the para. that bridges pages 6 and 7 of the Remarks that cited arts do not recognize the technical concept of adjusting the unroasted sesame oil content/emulsifier in the seasoning in order to maintain the original flavor thereof while not being blurred even after preservation thereof, as shown in para. 0015 and 0022 of the instant specification.
Applicant’s arguments are considered but found unpersuasive. The examiner submits that applicant has not shown by convincing evidence any new result associated with the range of ratio of 0.01-0.37 for the unroasted sesame oil content/emulsifier. Data is needed to show that the whole range of 0.01-0.37 for the unroasted sesame oil content/emulsifier is important in maintaining the original flavor thereof after preservation, while meeting limitations that the liquid seasoning has 0.1-3% acetic acid by weight of the aqueous phase, the content is oil is 50% or more, the content of unroasted sesame oil is 0.1-15% with respect to the total amount of oil, and the weight ratio of unroasted sesame oil/acetic acid is 0.1-10. Further, applicant’s attention is drawn to MPEP 716.01(c) II which states that “Attorney arguments cannot take the place of evidence”, and to MPEP 2145 I which states that “Argument does not replace evidence where evidence is necessary”.
Regarding the 35 USC 103 rejection over Saito, applicant argues on page 7 bottom para. of the Remarks that Saito fails to teach the ratio of 0.01-0.37 for the unroasted sesame oil content/emulsifier.
The examiner disagrees. Where the content of unroasted sesame oil by weight of oil and fat is an obvious variant of the prior art, the content of unroasted sesame oil by weight of the liquid seasoning would have been obvious over prior art as well; further, Saito teaches specific ranges of emulsifying material in the liquid reasoning (e.g., amount of emulsifier in the seasoning is 0.1-5%), therefore, the ratio of unroasted sesame oil to the emulsifying material are reasonably obvious variants of the prior art.
Unfortunately, applicant has not shown any new result associated with the range of 0.01-0.37 for the unroasted sesame oil content/emulsifier.
Applicant argues on page 8 of the Remarks that Saito does not recognize the technical concept of adjusting the unroasted sesame oil content/emulsifier in the seasoning in order to maintain the original flavor thereof while not being blurred even after preservation thereof, as shown in para. 0015 and 0022 of the instant specification. Applicant further argues that from the generic teaching of Saito, one of the ordinary skill in the art would not achieved the claimed subject matter with a reasonable expectation of success.
Applicant’s arguments are considered but found unpersuasive. The examiner submits that applicant has not shown by convincing evidence any new result associated with the range of ratio of 0.01-0.37 for the unroasted sesame oil content/emulsifier. Data is needed to show that the whole range of 0.01-0.37 for the unroasted sesame oil content/emulsifier is important in maintaining the original flavor thereof while not being blurred even after preservation thereof, while meeting limitations that the liquid seasoning has 0.1-3% acetic acid by weight of the aqueous phase, the content is oil is 50% or more, the content of unroasted sesame oil is 0.1-15% with respect to the total amount of oil, and the weight ratio of unroasted sesame oil/acetic acid is 0.1-10. Further, applicant’s attention is drawn to MPEP 716.01(c) II which states that “Attorney arguments cannot take the place of evidence”, and to MPEP 2145 I which states that “Argument does not replace evidence where evidence is necessary”.
For the reason set forth above, applicant’s argument regarding prior art lacking a reasonable expectation of success is not persuasive, either.
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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/CHANGQING LI/Primary Examiner, Art Unit 1791