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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-6 in the reply filed on October 29, 2025 is acknowledged. Claims 7-13 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 2 is objected to because of the following informalities:
Claim 2 recites “applied to the subject foods”. Although this is understood to mean “the foods” to which the spice is applied in claim 1, it is suggested the claim be amended to recite “applied to the foods” as “applied to foods” and not “subject foods” was recited in claim 1, from which claim 2 depends.
Appropriate correction is required.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: Various features of claims 2-6 do not find support in the specification as originally filed. For example, at least consistent aesthetically durational hue, balanced flavor profile, taste buds, consistent flavor profiles, and subtle flavor were not found.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a spice system homogenous and providing the same taste when initially made, does not reasonably provide enablement for “A novel spice system… whereby a user gets the same taste for the duration of the spice as applied to foods” which encompasses an infinite amount of time. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make the invention commensurate in scope with these claims.
A number of factors must be considered in assessing the enablement of an invention, including the following: the breadth of the claims, the nature of the invention, the amount of experimentation necessary, the guidance provided in the specification, working examples provided, predictability, and the state of the art. See In re Wands, 858 F.2d 731, 8 USPQ2nd 1400 (Fed. Circ. 1988).
In the instant case claim 1 recites “A novel spice system… whereby a user gets the same taste for the duration of the spice as applied to foods”. In regards to the breadth of the claims as there is no limit to the duration of time the spice may be applied to the food, the claims would encompass the same taste both on day 1, as well as a day potentially hundreds of years in the future. As it was recognized in the food art that foods spoil and lose potency over time, and as no guidance or working examples have been given to show how such a feat may be achieved, the full scope of the claims is not considered enabled. For the purpose of compact prosecution, the claims will be considered as requiring the same taste for some degree of time, such as upon initial use and application to food, and not for an unlimited time frame.
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 1-6 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.
The terms “enhanced” and “increased” in claim 1, “smooth” in claim 5, and “subtle tangy flavor” in claim 6 are relative terms which render the claims indefinite. The terms are not defined by the claims, 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. As the terms are relative to a bench mark, and no bench mark has been set, the metes and bounds of the terms are unclear.
The phrase “a consistent aesthetically durational color, hue, and pigment as perceived by the user” is unclear. The phrase does not provide clear metes and bounds to the claims because what one user perceives may be different from what another user may perceive. Thus, it is unclear as to what products would and would not fall within the scope of the invention.
Claim 1 recites the limitation "the spice". There is insufficient antecedent basis for this limitation in the claim. It is unclear as to if this is meant to refer to “a spice” which was never recited, “the spicing elements” or “the spice system”.
Claim 3 recites “having a balanced flavor profile relative to fats, acids, salt and sweetness”. It is unclear as to if the claimed limitation requires fats, acid, salt, and sweeteners within the spice system, or is conditional, wherein if said component is present it is balanced relative to the other components present. Furthermore, as flavor is relative to one consumer or another, it is unclear as to what would and would not be considered a “balanced flavor profile”.
Claim 4 recites “wherein said balance activates all spice system driven taste buds by region in the tongue”. First, the claim is unclear because “the tongue” does not have antecedent basis. Furthermore, the claim is unclear as it appears to be claiming a process within a product claim. It is unclear as to if the claim intends a process as recited in the body, or is directed to a product, as recited in the preamble, wherein the product would be capable of use as claimed. Additionally, it is unclear as to if “all spice system driven taste buds” is limited to the taste buds activated by the specific spicing elements used, or if the claim intends that every taste bud possible of responding to any spice is activated.
Claim 5 recites “The novel enhanced spice system of claim 4, whereby a smooth sauce and consistent flavor profile further comprises adding coconut milk”. It is unclear what is being claimed. It is unclear as to if the claim intends a process as recited in the body, or is directed to a product, as recited in the preamble, wherein the product would be capable of use as claimed. It is noted that due to the lack of clarity, no prior art rejection has been made for claim 5, and claim 6 which depends therefrom.
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 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Hirano et al (JPH10136930A machine translation).
Regarding claims 1-3, as discussed above, the claimed limitations are unclear. Regardless, the teachings of Hirano et al (Hirano) appear to encompass or alternatively make obvious the claimed invention. Hirano teaches of a seasoning sauce, i.e. a novel spice system, which has good tangling of ingredients, well balanced flavor, and which is formed by mixing and heating (abstract and paragraphs 1-3, 8, 10, 15, 17-19, and 31, and Examples), and thus is considered to be a system with evenly distributed flavor driven by homogeneity of spice elements whereby a user gets the same taste for the duration of the spice as applied to foods. The position is further supported as Hirano teaches the food as shelf-stable with excellent preservability (abstract and paragraphs 18-19) and thus the same taste, as well as consistent aesthetically durational color, hue, and pigment would be expected to be maintained. As Hirano does not teach increasing the salt from more than what was initially disclosed (all), the teachings of Hirano are considered to encompass or alternatively make obvious a spice system without increased salt content. Alternatively, it would have been obvious to use less salt, i.e. a not increased amount, in order to reduce the salty taste as taught by Hirano (paragraph 9).
Regarding claim 4, as discussed above, the claimed limitations are unclear. Regardless, the teachings of Hirano et al (Hirano) appear to encompass or alternatively make obvious the claimed invention. As Hirano teaches a spice composition which is intended to be eaten (abstract), it would be expected to activate regions of taste buds capable of being activated by the spice system as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792