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 after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 02/17/2026 has been entered.
Claim status
The examiner acknowledges the amendment to the claims on 02/17/2026.
Claims 1-4, 9-11 and 15-17 are pending in the application. Claims 1 and 9-11 are currently amended. Claim 5 is previously cancelled. Claims 6-8 and 12-14 are newly cancelled. Claims 2-4 and 15 are previously presented. Claims 16-17 are newly presented. Claims 1-4, 9-11 and 15-17 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.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 § 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.
Claims 1-4, 9-11 and 15-17 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 recites that the seasoning comprises a plant ground product and a plant ingredient, wherein “the plant ingredient is not the ground product” and “a plant material in the plant ground product is the same kind as the plant material in the plant ingredient”. It is unclear how different the plant material in the ground product is from the plant material in the plant ingredient, given that they are the same kind. Since applicant is suggesting in the Remarks filed 02/17/2026 (page 7, 4th para.) that the plant material in the plant ingredient is non-ground, “the plant ingredient is not the ground product” coupled with “a plant material in the plant ground product is the same kind as the plant material in the plant ingredient” is interpreted to mean that a plant material in the plant ingredient is the same kind as a plant material in the plant ground product but is otherwise not ground. Clarification is required.
It is further noted that “the plant material” as in “the same kind as the plant material in the plant ingredient” lacks antecedent basis. Appropriate correction is required.
Claims 2-4, 9-11 and 15-17 depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
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 2 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 2 depends from claim 1 and recites that the mode size of the oi droplets in the emulsified phase of the acidic liquid seasoning is 42.18-100 microns. However, such a range violates the maximum value of 74.0 micron as recited in claim 1. As such, claim 2 fails to include all the limitation of claim 1. 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
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 1-4, 9, 11 and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Ishikawa JP 2020058293 A (cited in the IDS filed 09/02/2025, English translation relied upon for reference, hereinafter referred to as Ishikawa) in view of Hideaki JPH11130A (English translation relied upon for reference, hereinafter referred to as Hideaki), Saito US Patent Application Publication No. 2006/0003077 A1 (hereinafter referred to as ‘077) and Li, “Stability of oil-in-water emulsions performed by ultrasound power or high-pressure homogenization”, PLOS One, 2019, 14(3), pages 1-14 (hereinafter referred to as Li).
Regarding claims 1-4, 9, 11, and 15-17, Ishikawa teaches an acidic liquid seasoning comprising an oil phase layered on an emulsified phase (0009), the acidic liquid seasoning comprising, inter alia: 40% or more an edible oil or fat including rapeseed oil, corn oil, safflower oil, olive oil, soybean oil, etc., (0014); vinegar (0022; Example 1-5, Table 1 which teaches 20% vinegar having 4% acidity is present thus the amount of acetic acid is 20% x 4% = 0.8%), 5-40% a plant ground product (e.g., grated onion having a size of 1 mm or less, 0017); 0.01-1.0% a gum such as xanthan gum (0018), and water (0009).
Olive oil as disclosed by Ishikawa reads on the flavor oil as recited in claim 1 (see para. 0038 of the instant specification, which evidences that olive oil is a flavor oil).
Further, Ishikawa teaches that the acidic liquid seasoning is packaged (e.g., bottled, 0025).
Additionally, Ishikawa teaches that the acidic liquid seasoning can contain an emulsifier such as 0.1% or less egg yolk (0022) and even encompasses the embodiment that no yolk is present (0022; 0025; Example 1-5; Table 1).
Additionally, the disclosure of Ishikawa does not mention a starch, a modified starch, or an octenyl succinic acid starch, thus reading on the limitation that the acidic liquid seasoning contains no modified starch.
The amounts of acetic acid and xanthan gum as disclosed by Ishikawa overlap with, encompass or fall within the ranges as recited in claims 1 and 9. 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).
Ishikawa as recited above teaches that the acidic liquid seasoning contains 5-40% onion, thus overlapping with the ranges based on dry weight as recited in claims 1 and 4 (calculation: since onion contains ~90% water, then the range of 5-40% grated union is about ~0.5-4% by dry weight).
Additionally, Ishikawa teaches that the viscosity of the emulsified phase is 700-10,000 mPa.s at 25 °C(e.g., 0.7-10 Pa.s, 0021 ), thus given that Ishikawa encompasses an embodiment that the emulsified phase is dominant (e.g., 90%, 0016), it logically follows that the viscosity of the acidic liquid seasoning is at a similar range which overlaps with the range as recited in claims 1 and 3. 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).
Ishikawa is silent regarding that the acidic liquid seasoning comprises a plant ingredient that is not ground but comprises a plant material that is the same kind as a plant material in the plant ground product (e.g., onion in the instant case). Ishikawa is further silent regarding the amount of the plant ingredient by weight of the acidic liquid seasoning.
Hideaki in the same field of endeavor teaches a liquid emulsified seasoning that comprises, inter alia, vinegar, water, xanthan gum, oil /fat, and a combination of a grated vegetable (e.g., grated onion) and a dried onion (e.g., dried onion flake) (Abstract; 0007-0009; 0010-0011). Hideaki further teaches that such a combination serves to suppress the change with time during the preservation or control the moisture content of the liquid seasoning (Abstract; 0004). Further, Hideaki teaches that liquid seasoning contains 20-50% grated vegetable and 5-8% dried vegetable (0013).
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 Ishikawa by including 5-8% dried onion flake in the acidic liquid seasoning of Ishikawa for the benefit of suppressing the change with time during the preservation or controlling the moisture content of the liquid seasoning.
Ishikawa as recited above teaches that the acidic liquid seasoning comprises 40% or more an edible oil or fat. Ishikawa further teaches that the amount of oil affects the emulsification and richness (0014). It is noted that the lower bound 40% as disclosed by Ishikawa is very close to the upper bound of oil as recited in claim 1 (e.g., 39.7%) or the upper bound of oil as recited in claim 16 (e.g., 35%) that one skilled in the art would have expected them to have the same properties, given that both Ishikawa and the claimed invention are directed to an acidic emulsified liquid seasoning. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Further, ‘077 in the same field of endeavor teaches an acidic emulsified liquid seasoning comprising edible oil and fat such as olive oil, vinegar, xanthan gum, onion, and water (0014; 0024; 0027-0030; 0033; Table 1). Further, ‘077 teaches that the content of the edible fat and oil in the acidic emulsified liquid seasoning can be at a range of 10-80% (0029).
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 Ishikawa by lowering the amount of oil content in the acidic liquid seasoning than 40% within the range of 10-80% with reasonable expectation of success, for the reason that an acidic emulsified seasoning can broadly have 10-80% oil.
The amount of oil as disclosed by ‘077 overlaps with ranges as recited in claims 1 and 16. 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).
Ishikawa teaches that the mean (e.g., average) particle size of the oil droplets in the emulsified phase is 20-60 microns (0019), but is silent regarding the mode size of the oil droplet being 35-74 microns (or 42.18-100 microns as recited in claim 2, or 42.18-74 microns as recited in claim 15). However, given that mode size or modal size represents the particle size most commonly found in the distribution, and that the mean oil droplet size as disclosed by Ishikawa is 20-60 microns, it logically follows that the modal size for the oil droplets of Ishikawa overlaps with or falls within the range of 35-74 microns (or 42.18-100 microns as recited in claim 2, or 42.18-74 microns as recited in claim 15). Note that for a symmetric distribution, mean size is actually equal to modal size or median size.
Ishikawa teaches that the mean (e.g., average) particle size of the oil droplets is 20-60 microns but is silent regarding the half-value width of a model size of the oil droplets being 30-56.72 microns or 30.86-56.72 microns as recited in claims 1 and 15, as measured by a laser diffraction device. Half-value width of a model size, or Full Width at Half Maximum (FWHM) is known to measure how uniform particles distributes.
Li teaches that for an oil-in-water emulsion comprising a gum thickener, a wide emulsion particle size distribution signifies a poor stability for the emulsion (page 8, 2nd para.), and approaches including high pressure homogenization and ultrasound power could result in a narrowed particle size distribution (abstract), however, both treatments could also reduce the droplet size and viscosity (Abstract).
Both Ishikawa and Li are directed to oil-in-water emulsions that comprise a gum thickener. 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 Ishikawa by subjecting the emulsion of Ishikawa to high pressure homogenization or ultrasound power treatment and manipulating the conditions of treatment so as to improve the stability of the emulsion through narrowing the oil droplet particle size distribution but still maintain the oil droplet size and viscosity within the ranges as required by Ishikawa. As such, the FWHM values as recited in claims 1 and 15 are merely obvious variants of the prior art.
Claims 1-4, 9, 10, 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Ishikawa JP 2020058293 A (cited in the IDS filed 09/02/2025, English translation relied upon for reference, hereinafter referred to as Ishikawa) in view of Saito US Patent Application Publication No. 2014/0287128 A1 (hereinafter referred to as Saito), Hiroko JP2013111014 A (English translation relied upon for reference, hereinafter referred to as Hiroko) and Li, “Stability of oil-in-water emulsions performed by ultrasound power or high-pressure homogenization”, PLOS One, 2019, 14(3), pages 1-14 (hereinafter referred to as Li).
Regarding claims 1-4, 9, 10, 15 and 17, Ishikawa teaches an acidic liquid seasoning comprising an oil phase layered on an emulsified phase (0009), the acidic liquid seasoning comprising, inter alia: 40% or more an edible oil or fat including rapeseed oil, corn oil, safflower oil, olive oil, soybean oil, etc., (0014); vinegar (0022; Example 1-5, Table 1 which teaches 20% vinegar having 4% acidity is present thus the amount of acetic acid is 20% x 4% = 0.8%), 0.01-1.0% a gum such as xanthan gum (0018), and water (0009).
Olive oil as disclosed by Ishikawa reads on the flavor oil as recited in claim 1 (see para. 0038 of the instant specification, which evidences that olive oil is a flavor oil).
Further, Ishikawa teaches that the acidic liquid seasoning is packaged (e.g., bottled, 0025).
Additionally, Ishikawa teaches that the acidic liquid seasoning can contain an emulsifier such as 0.1% or less egg yolk (0022) and even encompasses the embodiment that no yolk is present (0022; 0025; Example 1-5; Table 1).
Additionally, the disclosure of Ishikawa does not mention a starch, a modified starch, or an octenyl succinic acid starch, thus reading on the limitation that the acidic liquid seasoning contains no modified starch.
The amounts of acetic acid and xanthan gum as disclosed by Ishikawa overlap with, encompass or fall within the ranges as recited in claims 1 and 9. 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).
Additionally, Ishikawa teaches that the viscosity of the emulsified phase is 700-10,000 mPa.s at 25 °C(e.g., 0.7-10 Pa.s, 0021 ), thus given that Ishikawa encompasses an embodiment that the emulsified phase is dominant (e.g., 90%, 0016), it logically follows that the viscosity of the acidic liquid seasoning is at a similar range which overlaps with the range as recited in claims 1 and 3. 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).
Ishikawa is silent regarding that the acidic liquid seasoning comprises a plant ground product that comprises sesame seed, and a plant ingredient that is not ground but comprises a plant material that is the same kind as a plant material in the plant ground product (e.g., sesame seeds in the instant case). Ishikawa is further silent regarding the amount of plant ground product (e.g., ground sesame seeds) or the amount of the plant ingredient that comprises sesame seed that are not ground by weight of the acidic liquid seasoning.
Saito In the same field of endeavor teaches an acidic emulsified liquid seasoning comprising, inter alia, oil such as olive oil, water, gum, and vinegar (0016; 0018; 0022; 0040; 0044; 0048). Additionally, Saito teaches that 6% g sesame seed (e.g., sesame) in ground form can be included in the seasoning for imparting desired taste and texture to the seasoning (0044; Table 5; Table 9).
Hiroko in the same field of endeavor teaches an acidic liquid seasoning comprising, inter alia, oil such as olive oil, vinegar, xanthan gum, water, etc. (Abstract; 0028; 0009; 0033). Hiroko further teaches that 1-20% whole sesame seed can be included in the acidic liquid seasoning such that sesame-specific aroma can be fully felt after storage (Abstract; 0001).
Ishikawa, Saito and Hiroko are all directed to acidic liquid seasonings. 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 Ishikawa by including 6% ground sesame seeds or 1-20% whole sesame seeds in the acidic liquid seasoning for desired sesame-specific aroma or taste. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined ground sesame seeds and whole sesame seeds in the acidic liquid seasoning with reasonable expectation of success, for the reason that "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. In the instant case, prior art has established that either ground or whole sesame seeds can be included in an acidic liquid seasoning for sesame taste/aroma thus one skilled person would have been motivated to combine them for the same purpose.
The amounts of ground sesame seeds or whole sesame seeds as disclosed by Saito and Hiroko fall within, encompass or overlap with the ranges as recited in claims 1, 4, and 17. 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).
Ishikawa as recited above teaches that the acidic liquid seasoning comprises 40% or more an edible oil or fat. Ishikawa further teaches that the amount of oil affects the emulsification and richness (0014). It is noted that the lower bound 40% as disclosed by Ishikawa is very close to the upper bound of oil as recited in claim 1 (e.g., 39.7%) that one skilled in the art would have expected them to have the same properties, given that both Ishikawa and the claimed invention are directed to an acidic emulsified liquid seasoning. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Ishikawa teaches that the mean (e.g., average) particle size of the oil droplets in the emulsified phase is 20-60 microns (0019), but is silent regarding the mode size of the oil droplet being 35-74 microns (or 42.18-100 microns as recited in claim 2, or 42.18-74 microns as recited in claim 15). However, given that mode size or modal size represents the particle size most commonly found in the distribution, and that the mean oil droplet size as disclosed by Ishikawa is 20-60 microns, it logically follows that the modal size for the oil droplets of Ishikawa overlaps with or falls within the range of 35-74 microns (or 42.18-100 microns as recited in claim 2, or 42.18-74 microns as recited in claim 15). Note that for a symmetric distribution, mean size is actually equal to modal size or median size.
Ishikawa teaches that the mean (e.g., average) particle size of the oil droplets is 20-60 microns but is silent regarding the half-value width of a model size of the oil droplets being 30-56.72 microns or 30.86-56.72 microns as recited in claims 1 and 15, as measured by a laser diffraction device. Half-value width of a model size, or Full Width at Half Maximum (FWHM) is known to measure how uniform particles distributes.
Li teaches that for an oil-in-water emulsion comprising a gum thickener, a wide emulsion particle size distribution signifies a poor stability for the emulsion (page 8, 2nd para.), and approaches including high pressure homogenization and ultrasound power could result in a narrowed particle size distribution (abstract), however, both treatments could also reduce the droplet size and viscosity (Abstract).
Both Ishikawa and Li are directed to oil-in-water emulsions that comprise a gum thickener. 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 Ishikawa by subjecting the emulsion of Ishikawa to high pressure homogenization or ultrasound power treatment and manipulating the conditions of treatment so as to improve the stability of the emulsion through narrowing the oil droplet particle size distribution but still maintain the oil droplet size and viscosity within the ranges as required by Ishikawa. As such, the FWHM values as recited in claims 1 and 15 are merely obvious variants of the prior art.
Response to Arguments
Applicant's arguments filed 02/17/2026 have been fully considered and the examiner’s response is shown below:
The 35 USC 103 rejection over Tsukano in view of Saito, Oguchi and Li is withdrawn in view of the amendment made to claim 1.
Regarding the 35 USC 103 rejection over Ishikawa in view of Li, applicant argues on page 8 of the Remarks that Ishikawa does not teach an overlapping range of oil.
The argument is considered. However, as recited in the instant office action, the lower bound 40% as disclosed by Ishikawa is very close to the upper bound of oil as recited in claim 1 (e.g., 39.7%) that one skilled in the art would have expected them to have the same properties, given that both Ishikawa and the claimed invention are directed to an acidic emulsified liquid seasoning. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05). Further, ‘077 is cited in the instant office action to teach an oil range that encompasses the range as recited in the claim.
Applicant argues on page 8 of the Remarks that none of Ishikawa or Li teaches the combination of a plant ground product and a plant ingredient that is not ground.
The argument is considered but found moot over the new ground of rejection set forth in the instant office action.es Saito and Hiroko is cited to teach the limitation.
For the reasons set forth above, applicant’s argument on page 9 of the Remarks regarding claim 10 is not persuasive, either.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791