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 Rejections - 35 USC § 102
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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-2, 6-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Flaig et al., Characterisation of the key aroma compounds in a Longjing green tea infusion (Camellia sinensis) by the sensomics approach and their quantitative changes during processing of the tea leaves, European Food Research and Technology (2020) 246:2411-2425 (FLAIG) (see IDS of 5/16/2025).
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FLAIG teaches a tea infusion (i.e., beverage) obtained from Camellia sinesis tea leaves (i.e., solid composition of Sencha tea leaves) (see pg. 2413, Preparation of the green tea beverage) comprising 133 ug/L dimethyl sulphide to 1 ug/l of 1-penten-3-one (i.e., a 133:1 ratio). (z)-3-hexenol is also present. (see pg. 2420, Table 4).
Powdered compositions can also be prepared (pg. 2415, Quantitation of aroma compounds in the homogenized tea leaves)
Given the extract comprises the compounds in a ratio as claimed, the compounds are considered to be present in that same ratio in the solid composition.
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.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over FLAIG.
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As to claim 5, FLAIG does not specifically teach a ratio of not less than 150. However, FLAIG does teach that these compounds are potent aroma compounds (see pg. 2420, Table 4). It would have been obvious to vary the amount compounds present based on the desired aroma.
The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have 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 re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable).
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over FLAIG as applied to claims 1 above, and further in view of United States Patent Application Publication No. 2006/0263454 (SUGIYMA).
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Claim 4 depends from claim 3. While claim 4 recites “further comprising” dextrins, claim 4 is considered to limit claim 3 as the linear dextrins and cyclic dextrins are two types of dextrins.
FLAIG teaches a tea composition but silent as to dextrins.
SUGIAYMA teaches that a carbohydrate sweetener such as maltodextrin (i.e., a linear dextrin) [0076] can be added and bitterness suppressor such as a cyclodextrin can be added to tea products [0078].
Thus, it would have been obvious to add a linear dextrin for sweetness and a cyclodextrin as a suppressor, as taught by SUGIYMAMA.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791