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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 7, 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 recites the limitation “and/or wherein the amount of yeast extract comprising 5’-ribonucleotides is between 10 and 80% w/w of the fish flavor product” in lines 3-4. Claim 1, lines 4-5 already recites the limitation “wherein the amount of yeast extract is between 10 and 80% w/w of the fish flavor product.” The embodiment of Claim 4 requiring only the amount of yeast extract comprising 5’-ribonucleotides is between 10 and 80% w/w of the fish flavor product fails to further limit Claim 1 since Claim already requires these limitations.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 16-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kortes et al. US 2008/0317904 as further evidenced by Leung et al. “Profiling of Omega Polyunsaturated Fatty acids and Their Oxidized Products in Salmon after Different Cooking Methods” (published July 24, 2018) (herein referred to as “Leung et al.”) in view of JP 4468144, Jolivet et al. US 2021/0076722, Inoue et al. US 2012/0276271, and Meyer US 2013/0287926.
It is noted that a machine translation of JP 4468144 has been attached herein. All citations to JP 4468144 are with respect to the machine translation of JP 4468144.
Regarding Claim 1, Kortes et al. discloses a fish flavor product (‘904, Paragraphs [0019]-[0021] and [0061]) comprising a process flavor (‘904, Paragraphs [0003] and [0009]) comprising fats (‘904, Paragraphs [0064]-[0065]) and a yeast extract comprising 5’-ribonucleotides (‘904, Paragraph [0013]). The yeast extract comprises a mixture of an autolytic yeast and a hydrolytic yeast wherein the yeast extract comprises 5’-ribonucleotides (‘904, Paragraph [0016]) derived from the hydrolytic yeast extract that is rich in 5’-ribonucleotides (‘904, Paragraph [0015]).
Kortes discloses the process flavor of protein hydrolysates of fish protein being obtained by heating a mixture of ingredients (‘904, Paragraphs [0003] and [0020]). Leung et al. provides evidence that it was known in the food art that fish naturally contains polyunsaturated fatty acids (PUFA) which are oxidized during high temperature cooking (Leung et al., Page 1). Therefore, the process flavor of fish protein that is heated disclosed by Kortes necessarily contains oxidized polyunsaturated fatty acids as evidenced by Leung et al.
Further regarding Claim 1, Kortes et al. as further evidenced by Leung et al. is silent regarding the yeast extract comprising from 25 to 55 wt% 5’-ribonucleotides based on the dry weight of the yeast extract wherein the amount of yeast extract is between 10 and 80% w/w of the fish flavor product.
JP 4468144 discloses a fish flavor product comprising a yeast extract rich in 5’-ribonucleotides (‘144 Machine Translation, Paragraph [0012]). Jolivet et al. discloses a yeast extract comprising from 25 to 55 wt% 5’-ribonucleotides based on the dry weight of the yeast extract (‘722, Paragraph [0018]), which overlaps the claimed concentration of 5’-ribonucleotide concentration of 25 to 55 wt% 5’-ribonucleotides based on the dry weight of the yeast extract. Jolivet et al. further discloses the concentration to be useful to mask bitter and sour tastes and undesirable sweetener, protein, and metallic aromatic notes in a product (‘722, Paragraph [0018]). The yeast extract is used as an ingredient in food products (‘722, Paragraphs [0022] and [0055]).
Kortes, JP 4468144, and Jolivet et al. are directed towards the same field of endeavor of yeast extracts. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food product of Kortes and incorporate 5’-ribonucleotides in high amounts as taught by JP 4468144 in the claimed concentration of the yeast extract based on the dry weight of the yeast extract as taught by Jolivet et al. since where the claimed yeast extract comprising 5’-ribonucleotide ranges overlaps ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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.). Furthermore, differences in the concentration of yeast extract containing 5’-ribonucleotides within the fish flavor product of Kortes will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of yeast extract containing 5’-ribonucleotides within the fish flavor product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.II.A.). One of ordinary skill in the art would adjust the yeast extract containing 5’-ribonucleotide concentration within the fish product of Kortes based upon the desired degree of masking bitter and sour tastes and undesirable sweetener, protein, and metallic aromatic notes in a product as taught by Jolivet et al. (‘324, Paragraph [0018]).
Further regarding Claim 1, Kortes modified with JP 4468144 and Jolivet et al. is silent regarding the amount of yeast extract being between 10 and 80% w/w of the fish flavor product.
Inoue et al. discloses a fish flavor product (food concentrate containing hydrolyzed fish proteins) comprising a process flavor (heated food concentrate) (‘271, Paragraph [0029]) and a yeast extract comprising 5’-ribonucleotides wherein the amount of yeast extract is in an amount of from 5 wt% to 15 wt% of the fish flavor product food concentrate (‘271, Paragraph [0092]), which overlaps the claimed amount of yeast extract being between 10 and 80% w/w of the fish flavor product.
Both modified Kortes and Inoue et al. are directed towards the same field of endeavor of fish flavor products. Kortes discloses the fish flavor product comprising fish protein hydrolysates (‘904, Paragraph [0020]). Both fish flavor products of modified Kortes and Inoue et al. contain yeast extract, 5’-ribonucleotides, and fish protein hydrolysates. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fish flavor product of modified Kortes to have the claimed concentration of yeast extract of the fish flavor product as taught by Inoue et al. since where the claimed yeast extract concentration of the fish flavor product overlaps yeast extract concentration of the fish flavor product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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 is noted that the claim does not specify the particular type of fish flavor product. A food concentrate having a fish flavor reads on the claimed fish flavor product. Furthermore, Meyer discloses umami is often referred to as the fifth taste and is used to describe flavors that are often thought of as pungent, savory, tangy or meaty wherein umami taste is imparted by ribonucleotides which naturally occur in many foods including fish and umami ingredients imparting umami taste includes yeast extract and hydrolyzed vegetable proteins (‘926, Paragraph [0030]). Differences in the concentration of yeast extract of the fish flavor product will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of yeast extract of the fish flavor product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of yeast extract in the generic fish flavor product of modified Kortes based upon the desired intensity of umami flavor imparted by the presence of yeast extract as suggested by Meyer.
Regarding Claim 4, Inoue et al. discloses a fish flavor product (food concentrate containing hydrolyzed fish proteins) comprising a process flavor (heated food concentrate) (‘271, Paragraph [0029]) and a yeast extract comprising 5’-ribonucleotides wherein the amount of yeast extract is in an amount of from 5 wt% to 15 wt% of the fish flavor product food concentrate (‘271, Paragraph [0092]), which overlaps the claimed amount of yeast extract being between 10 and 80% w/w of the fish flavor product.
Both modified Kortes and Inoue et al. are directed towards the same field of endeavor of fish flavor products. Kortes discloses the fish flavor product comprising fish protein hydrolysates (‘904, Paragraph [0020]). Both fish flavor products of modified Kortes and Inoue et al. contain yeast extract, 5’-ribonucleotides, and fish protein hydrolysates. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fish flavor product of modified Kortes to have the claimed concentration of yeast extract of the fish flavor product as taught by Inoue et al. since where the claimed yeast extract concentration of the fish flavor product overlaps yeast extract concentration of the fish flavor product ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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 is noted that the claim does not specify the particular type of fish flavor product. A food concentrate having a fish flavor reads on the claimed fish flavor product. Furthermore, Meyer discloses umami is often referred to as the fifth taste and is used to describe flavors that are often thought of as pungent, savory, tangy or meaty wherein umami taste is imparted by ribonucleotides which naturally occur in many foods including fish and umami ingredients imparting umami taste includes yeast extract and hydrolyzed vegetable proteins (‘926, Paragraph [0030]). Differences in the concentration of yeast extract of the fish flavor product will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of yeast extract of the fish flavor product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of yeast extract in the generic fish flavor product of modified Kortes based upon the desired intensity of umami flavor imparted by the presence of yeast extract as suggested by Meyer.
Further regarding Claim 4, the limitations “the amount of process flavour is between 30 and 70% w/w of the fish flavor product” are optional limitations by virtue of the phrase “and/or” and since the prior art renders obvious the limitations preceding the phrase “and/or.”
Regarding Claim 16, the limitations “wherein the process flavor and the yeast extract comprising 5’-ribonucleotides are separated powder particles are product by process claims. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, Kortes discloses the fish flavor product (“904, Paragraph [0020]) comprising the process flavor (‘904, Paragraph [0001]) and the yeast extract comprising 5’-ribonucleotides (‘904, Paragraphs [0013] and [0015]-[0016]) wherein the process flavor is a separate powder particle (dried process flavor) (‘904, Paragraph [0072]) from the yeast extract powder particles (‘904, Paragraph [0021]).
Regarding Claim 17, Kortes discloses the yeast extract comprising 5’-ribonucelotides (‘904, Paragraphs [0013] and [0015]-[0016]) being a dried yeast extract (‘904, Paragraph [0021]). Kortes also discloses the yeast extract being free of asparagine by using a physical method (‘904, Paragraphs [0017] and [0027]). The disclosure of the dried extract having asparagine removing asparagine using only a physical method reads on the claimed dried yeast extract not being reacted. Applicant discloses the yeast extract comprising 5’-ribonucleotides comprising an amount of free asparagine based on dry matter which is not higher than 1 mg/g of the yeast extract which low amount of asparagine results in no acrylamide being formed during the Maillard reaction (Specification, Page 2, lines 33-37). Since Kortes also teaches the yeast extract to be free of free asparagine by using a physical method of separation of the asparagine, one of ordinary skill in the art would expect the yeast extract of Kortes to not be reacted.
Regarding Claim 19, Kortes discloses the yeast extract comprising 5’-ribonucleotides (‘904, Paragraphs [0015]-[0016]) comprising an amount of free asparagine not higher than 1 mg/g based on dry matter of the yeast extract (‘904, Paragraph [0012]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Kortes et al. US 2008/0317904 as further evidenced by Leung et al. “Profiling of Omega Polyunsaturated Fatty acids and Their Oxidized Products in Salmon after Different Cooking Methods” (published July 24, 2018) (herein referred to as “Leung et al.”) in view of JP 4468144, Jolivet et al. US 2021/0076722, Inoue et al. US 2012/0276271, and Meyer US 2013/0287926 as applied to claim 1 above in further view of Kortes US 2011/0200707 (cited on Information Disclosure Statement filed November 14, 2023) (herein referred to as “Kortes ‘707”) as further evidenced by Noordam et al. US 2010/0183767.
Regarding Claim 2, Kortes as further evidenced by Leung et al. in view of JP 4468144, Jolivet et al., Inoue et al., and Meyer is silent regarding the fish flavor product comprising a yeast autolysate comprising yeast cell walls.
Kortes ‘707 discloses a fish flavor product (‘707, Paragraph [0001]) comprising a flavor comprising a polyunsaturated fatty acid (‘707, Paragraphs [0007]-[0008]) wherein the flavor comprising the polyunsaturated fatty acid is a process flavor (incubated at elevated temperatures of less than 260°C) (‘707, Paragraph [0009]). Applicant defines the term “process flavor” as meaning a thermally reacted product (Specification, Page 1, lines 30-32). Therefore, the composition comprising the polyunsaturated fatty acid at an incubating temperature above 100°C and a reaction time sufficient for the fish flavor to develop (‘707, Paragraphs [0009] and [0021]) reads on the claimed “process flavor” in view of applicant’s definition of the term “process flavor” to mean a thermally reacted product. The fish flavor product also comprises a yeast extract (‘707, Paragraph [0023]). The polyunsaturated fatty acid is oxidized (‘707, Paragraph [0025]). Kortes ‘707 further discloses the fish flavor product comprising a yeast autolysate (‘707, Paragraph [0023]). Noordam et al. provides evidence that it was known in the food art that yeast autolysates used in food applications (‘767, Paragraph [0001]) necessarily contains yeast cell walls (‘767, Paragraphs [0004] and [0035]).
Both Kortes and Kortes ‘707 are directed towards the same field of endeavor of fish flavor products. Both fish flavor products of Kortes and Kortes ‘707 contain a yeast extract. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fish flavor product of Kortes that contains a yeast extract and incorporate a yeast autolysate in addition to the yeast extract as taught by Kortes ‘707 since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Kortes ‘707 teaches that there was known utility in the food art to incorporate yeast autolysates into fish flavor products.
Claims 3, 5, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kortes et al. US 2008/0317904 as further evidenced by Leung et al. “Profiling of Omega Polyunsaturated Fatty acids and Their Oxidized Products in Salmon after Different Cooking Methods” (published July 24, 2018) (herein referred to as “Leung et al.”) in view of JP 4468144, Jolivet et al. US 2021/0076722, Inoue et al. US 2012/0276271, and Meyer US 2013/0287926 as applied to claim 1 above in further view of McMindes et al. US 2008/0254167.
Regarding Claim 3, Kortes discloses the yeast extract comprising vitamins (‘904, Paragraph [0013]). However, modified Kortes is silent regarding the vitamin to be vitamin C.
McMindes et al. discloses a fish flavor product (‘167, Paragraph [0043]) comprising a process flavor (heated, precooked seafood meat) (‘167, Paragraph [0144]) comprising a polyunsaturated fatty acid (docosahexanenoic acid) (‘167, Paragraph [0134]) and a yeast extract comprising 5’-ribonucleotides of flavoring enhancers (‘167, Paragraph [0119]). McMindes et al. further discloses the fish flavor product comprising vitamin C (‘167, Paragraph [0131]).
Both modified Kortes and McMindes et al. are directed towards the same field of endeavor of fish flavor products comprising a heated process flavor comprising a polyunsaturated fatty acid and a yeast extract. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fish flavor product of modified Kortes and incorporate vitamin C into the fish flavor product as taught by McMindes et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). McMindes et al. teaches that there was known utility in the food art to incorporate vitamin C into fish flavor food products.
Regarding Claim 5, Kortes discloses the fish flavored product being a powder (dried) (‘904, Paragraph [0050]). However, Kortes as further evidenced by Leung et al. in view of JP 4468144, Jolivet et al., Inoue et al., and Meyer is silent regarding the fish flavor product being a homogeneous powder having a dry matter of more than 90% and/or having an amount of sodium chloride of less than 10%.
McMindes et al. discloses the moisture content of the protein containing materials varying depending upon the extrusion process and the moisture content ranging from about 1% to about 80% by weight and that in low moisture extrusion applications the moisture content of the protein containing materials ranging from about 1% to about 35% by weight (‘167, Paragraph [0065]) and the final moisture content of the product varying depending on the intended application (‘167, Paragraphs [0098]-[0099]). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the dry matter content of the powder to be homogenous at a level of more than 90%, i.e. have a 10% moisture content, since differences in the dry matter content/moisture content of the food product will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such dry matter content/moisture content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.II.A.). One of ordinary skill in the art would adjust the dry matter content/moisture content of Kortes based upon the intended application of the food product as taught by McMindes et al.
Further regarding Claim 5, the limitations “having an amount of sodium chloride of less than 10%” are optional limitations by virtue of the phrase “and/or” and since the prior art renders obvious the limitations preceding the term “and/or.” Nevertheless, differences in the sodium chloride content of the food product will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such sodium chloride content is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.II.A.). One of ordinary skill in the art would adjust the dry matter content/moisture content of Kortes based upon the desired saltiness levels of the fish flavor product.
Regarding Claim 20, Kortes discloses the fish flavor product comprising fish protein hydrolysate (‘904, Paragraph [0020]). Kortes also discloses protein hydrolysates can also contain gluten (‘904, Paragraph [0020]). Modified Kortes is silent regarding the final fish flavor product being gluten free.
McMindes et al. discloses an embodiment of the fish flavor product being made with starting materials that are gluten free (‘167, Paragraph [0033]), which discloses the fish flavor product comprising 0 ppm gluten based on dry matter of the fish flavor product, which falls within the claimed amount of gluten of less than 100 ppm based on dry matter of the fish flavor product.
Both modified Kortes and McMindes et al. are directed towards the same field of endeavor of fish flavor food products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fish food product of modified Kortes and use only gluten free materials as taught by McMindes et al. in order to accommodate diets for individuals who may have gluten allergies.
Response to Arguments
Applicant’s arguments with respect to the obviousness rejections of Claim 1 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed July 7, 2026 with respect to Kortes US 2008/0317904 on Pages 7-8 have been fully considered but they are not persuasive.
Applicant argues on Pages 7-8 of the Remarks that Kortes ‘904 discloses that autolytic yeast extracts generally do not comprise 5’-ribonucleotides because during the autolytic process the native RNA is decomposed or modified in a form which is not degradable into 5’-ribonucleotides and that hydrolytic yeast extracts that are rich in 5’-ribonucleotides require addition of exogeneous enzymes such as proteases and/or peptidases. Applicant contends that Kortes ’904 teaches that these two types of yeast extracts serve different functional purposes in that autolytic yeast extracts are used in the food industry as basic taste providers and the amino acids present in the yeast extract add a bouillon type brothy taste to the food whereas hydrolytic yeast extract are rich in 5’-ribonucelotides which are known for their flavor enhancing properties. Applicant contends that autolytic and hydrolytic yeast extracts are not interchangeable ingredients and have different chemical compositions resulting from different production processes and serve different functional purposes in food formulations. Applicant makes further comments on Kortes ‘707, which Examiner notes is not being relied upon in the current rejection.
Examiner argues Kortes ‘904 is currently being relied upon as the primary reference in the current rejection. Applicant admits that Kortes ‘904 teaches that hydrolytic yeast extracts are rich in 5’-ribonucleotides (‘904, Paragraph [0015]). Kortes also discloses the yeast extract being a hydrolytic yeast or a mixture of an autolytic and hydrolytic yeast extract (‘904, Paragraph [0016]). Kortes envisages embodiments of yeast extracts comprising hydrolytic yeast extracts that are rich in 5’-ribonucleotides. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 17-20 of the Remarks with respect to the Claim 18 limitations that have been incorporated into Claim 1 of the amendment that Jolivet does not teach the combination of a yeast extract with a process flavor comprising an oxidized polyunsaturated fatty acid for a fish flavor product.
Examiner argues Kortes is being relied upon as the primary reference in the current rejection, which already teaches the limitations regarding a process flavor comprising an oxidized polyunsaturated fatty acid and a yeast extract. Jolivet is being relied upon to render obvious the limitations regarding the claimed concentration of 5’-ribonucleotides in the yeast extract. Jolivet et al. discloses a yeast extract comprising from 25 to 55 wt% 5’-ribonucleotides based on the dry weight of the yeast extract (‘722, Paragraph [0018]), which overlaps the claimed concentration of 5’-ribonucleotide concentration of 25 to 55 wt% 5’-ribonucleotides based on the dry weight of the yeast extract. Jolivet et al. further discloses the concentration to be useful to mask bitter and sour tastes and undesirable sweetener, protein, and metallic aromatic notes in a product (‘722, Paragraph [0018]). The yeast extract is used as an ingredient in food products (‘722, Paragraphs [0022] and [0055]). Kortes, JP 4468144, and Jolivet et al. are directed towards the same field of endeavor of yeast extracts. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food product of Kortes and incorporate 5’-ribonucleotides in high amounts as taught by JP 4468144 in the claimed concentration of the yeast extract based on the dry weight of the yeast extract as taught by Jolivet et al. since where the claimed yeast extract comprising 5’-ribonucleotide ranges overlaps ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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.). Furthermore, differences in the concentration of yeast extract containing 5’-ribonucleotides within the fish flavor product of Kortes will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of yeast extract containing 5’-ribonucleotides within the fish flavor product is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.04.II.A.). One of ordinary skill in the art would adjust the yeast extract containing 5’-ribonucleotide concentration within the fish product of Kortes based upon the desired degree of masking bitter and sour tastes and undesirable sweetener, protein, and metallic aromatic notes in a product as taught by Jolivet et al. (‘324, Paragraph [0018]). It is noted that the disclosure of the amounts of yeast extract present in the food product being from 10 ppm to 1000 ppm are not cited to or relied upon. Jolivet is also not being relied upon to render obvious the limitations regarding the yeast extract being between 10 and 80% w/w of the fish flavor product. Inoue et al. and Meyer are currently being relied upon to render obvious the limitations regarding the yeast extract being between 10 and 80% w/w of the fish flavor product. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, these arguments are not found persuasive.
Regarding applicant’s comments on Pages 13-15 of the Remarks with respect to the allegations of unexpected results of Examples 2-4 of the Specification, it is noted that Tables 2-4, which correspond to the results of Examples 2-4, all show a fish product comprising rice or soy. The claims do not require the presence of any plant protein. Applicant’s data in Examples 2-4 are not commensurate in scope with the claimed invention. Furthermore, an affidavit or declaration under 37 CRF 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness in view of In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979) (MPEP § 716.02(e)). Applicant has provided no such comparison.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gaddipati et al. US 2021/0030041 discloses a fish flavor product (bouillon tablet containing fish extract) comprising yeast extract is an amount in the range of 0 to 15% by weight of the composition (‘041, Paragraph [0049]).
Kondo et al. US 2019/0045820 discloses a yeast extract containing succinic acid and glutamic acid at high concentrations to improve flavors of seafood in foods (‘820, Paragraph [0026]).
Ueckert US 2017/0367380 discloses a food concentrate comprising taste imparting ingredients comprising one or more of a yeast extract and hydrolyzed proteins of vegetables, soy, fish, or meat origins wherein the amount of taste imparting ingredients is from 1 wt% to 40 wt% (‘380, Paragraph [0047]0.
Majumdar et al. US 2017/0354593 discloses a chewable composition comprising at least one flavorant used to alter or enhance the flavor of natural food products containing yeast extracts (‘593, Paragraph [0052]).
Sadd et al. US 2014/0234516 discloses a gelled food concentrate comprising taste imparting components comprising fish flavors, yeast extract, and hydrolyzed protein of vegetable, soy, fish or meat origin wherein the amount of taste imparting components is 20-64% by weight on the total packed concentrate (‘593, Paragraph [0018]).
Perrine et al. US 2013/0309385 discloses a food concentrate comprising taste imparting components like flavors, yeast extract, and fish wherein the taste imparting ingredients are present in an amount of from 0.1 to 30 wt% (‘385, Paragraph [0079]).
Billat-Rossi et al. US 2016/0205979 discloses an umami imparting ingredient comprising yeast extracts and hydrolyzed proteins (‘979, Paragraph [0066]).
Schopp et al. US 2015/0017308 discloses a fish product wherein the rounded umami taste is provided by yeast extracts (‘308, Paragraph [0002]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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