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 .
This office action is in response to amendment filed on 8/12/26. Claims 1-2,7-11,25-26 are amended and claim 27-28 are added. Claims 1-11,13, 25-28 are pending.
The 112 second paragraph rejection is withdrawn due to the amendment.
Claim Rejections - 35 USC § 112
Claim 26 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 26 is not totally supported. Applicant points to paragraph 0038. However, the paragraph only discloses pH of 6-8. There is no disclosure of “ about 6 to about 8”. The term about cannot be added unless it’s specifically disclosed.
Claim Rejections - 35 USC § 103
Claim(s) 1-11, 13 and 25-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sevenier ( 2020/0231995)
For claim 1, Sevenier discloses a method for producing organic acid salts from fermentation broth. The method comprises the steps of culturing a microorganism in an appropriate culture medium comprising a carbon source and nitrogen source during a sufficient time to obtain a fermentation broth comprising organic acids, pre-treating the fermentation broth by clarification of the broth, separating the organic acids to obtain condensed volatile acids fraction, adding inorganic bases to the acid fraction and eliminating the water from the volatile acids fraction to recover the organic acid salts. The organic acids include acetic acid and propionic acid. The produced organic acid salts are recovered under the form of a mixture of two different organic acid salts. The carbon source can be derived from renewable feed-stock such as vegetal biomass. The renewable feedstock is the same as the claimed biodegradable feedstock and the fermentation broth is the same as the claimed fermentation effluent. The clarification step is the same as the claimed recovering the carboxylic acid mixture because the step involves filtering to remove the insoluble organic impurities to recover the organic acids. ( see paragraphs 0033-0042,0107,0119,0122,0134-0137,0143)
For claim 2, the feed stock includes vegetal biomass which is considered an agricultural industry by product and the vegetable-based sources. ( see paragraph 0119).
For claim 3, Sevenier discloses the separation of the organic acids is carried out by distillation. ( see paragraph 0147)
For claim 4, Sevenier discloses the base is selected from sodium hydroxide, calcium hydroxide, potassium hydroxide, calcium carbonate etc.. ( see paragraph 0165)
For claim 5, Sevenier discloses the organic acid salts are in a solution. Thus, it’s obvious water is added. ( see paragraph 0174)
For claims 6-9, Sevenier discloses elimination of the remaining water can be carried out by any techniques such as drying, evaporation, vacuum dehydration and substep (s) can be chosen from evaporation, atomization, granulation, agglomeration, crystallization, liquid/solid separation, filtration and centrifugation. The drying includes spray dryer. ( see paragraphs 0173-0183)
For claims 10-11, Sevenier discloses the mixture of organic salts comprises a major component, meaning that the weight of the major component represents more than 50%of the mixture weigh. Evaluation of the weight of each component of the mixture can be carried out after isolation of each organic acid salt present in the mixture. The proportion of each recovered organic acid depends at least on the cultivated microorganism and on the time of fermentation of said microorganism. ( see paragraphs 0259-0263). In paragraphs 0244-0255, Sevenier discloses different microorganisms to produce different organic acid salt. Propionibacterium is used to produce propionic acid. Acetic acid is produced by Eubacterium limosum and Acetobacter aceti, A. peroxidants and A pasteurianus. ( see paragraphs 0088, 0090)
For claim 13, Sevenier discloses the salt comprising calcium propionate. ( see paragraph 0258).
For claims 25,26, Sevenier discloses different microorganisms to produce different organic acid salt. Propionibacterium is used to produce propionic acid. Acetic acid is produced by Eubacterium limosum and Acetobacter aceti, A. peroxidants and A pasteurianus. The microorganisms are fermented at temperature between 20-55 degrees C. Sevenier discloses the accumulated acid lowers the pH of the medium. Thus, it’s needed to add reagent to the fermentation reaction to neutralize at least in part the acid. ( see paragraphs 0088, 0090,0123, 0127)
For claim 27, Sevenier discloses separation of organic acids including step of pH adjustment consisting of adding mineral acids into the broth to lower the pH below the PKa of the organic acid that are intended to be recovered and then separating the acids from the broth. ( see paragraphs 0138-0148). This is readable on the claimed step of contacting with an extraction solvent because paragraph 0040 discloses the carboxylic acids are recovered by acidification of the product stream. The claim does not define the extraction solvent.
Sevenier does not specifically disclose combination and proportion of acetic acid salt and propionic acid salt , consortium of microorganisms, use as preservative as in claim 1, the sequence as in claims, the proportion as in claims 10-11, the pH as in claim 26 and the property as in claim 28.
Sevenier discloses carboxylic acids including acetic acid and propionic acetic and teaches the microorganisms used to produce the specific acid. Sevenier also discloses the solution is a mixture of two acids. Thus, it would have been an obvious matter of choice to one of ordinary skill in the art to produce mixture of acetic acid and propionic acid by using mixture of microorganisms disclosed to produce specific types of acid. Sevenier discloses in paragraph 0006 that organic acids are used in food preservation. Thus, it would have been readily obvious to one of ordinary skill in the art to use the organic acid salts as preservative. It would have been obvious to one of ordinary skill in the art to determine the particular sequence of steps to obtain the acids salts through routine experimentation. All the steps claimed are disclosed in Sevenier. It would have been obvious to one of ordinary skill in the art to grind and sift the salt depending on the particle size desired. Sevenier discloses the microorganisms required to produce particular acids and the amount produced depends on the organisms and the time of fermentation. The amount of the acids can readily be determined after isolation. Thus, it would have been well within the skill of one in the art to determine the fermentation time and organisms to obtain desirable amounts and to determine the quantity after isolation to ensure the proper amounts are obtained. Such parameter is result-effective variable that can readily be determined by one skilled in the art through routine experimentation. Sevenier discloses neutralizing the acid during fermentation; this disclosure would have readily suggested to one of ordinary skill in the art to keep the pH around neutral which would be 7 or only slightly acid to basic. Sevenier discloses a process substantially as claimed and using natural feedstock; thus, it’s obviously inherent the property in claim 28 is present.
Response to Arguments
Applicant's arguments filed 8/12/26 have been fully considered but they are not persuasive.
In the response, applicant argues Sevenier does not disclose or exemplify an acetate/propionate salt mixture as claimed. This argument is not persuasive. Sevenier does not specifically disclose the combination of acetate/propionate but the disclosure of such combination is clearly suggested. In paragraph 0256, Sevenier discloses “ the produced organic salts are recovered under the form of a mixture of at least two different organic salt” and in paragraph 0032, Sevenier discloses the organic salts are chosen from a group that includes acetic acid and propionic acid. Sevenier also discloses in paragraphs 0076-0090 the types of microorganisms needed to produce the specific acids. In view of this disclosure, it would have been well within the skill of one in the art to obtain the acetate/propionate combination. Applicant asserts that the examples in Sevenier ferment Clostridium acetobutylicum strains and yield sodium bytyrate, sodium acetate and sodium formate. Examples are only exemplified embodiments; they are not the totality of the disclosure. Sevenier discloses Propionibacterium is used to produce propionic acid as the end product and Gluconobacter, Eubacterium, Acetobacter are among numerous strains able to produce acetic acid. In view of this knowledge, it would have been readily apparent to one skilled in the art to select the microorganisms and using a mixture of different microorganisms depending on the end products desired. Applicant argues the proportion of the organic acid salts are not result-effective variable recognized by Sevenier because Sevenier does not recognize that the ratio of acetate to propionate affecting any property of the resulting salt. This argument is not persuasive. The claims do not recite any property relating to the proportion of the organic acid salts. Sevenier discloses the salts, the microorganisms that can be used to obtain the salt and the quantity of salt that can be produced. These are all variables that lead to specific results. Thus, they are considered result-effective variables. If it’s desired to produce a mixture containing propionate and acetate, it would have been obvious to one skilled in the art to use mixture of microorganisms that produces desirable end products. The amount of the components depends on the quantity of microorganisms used and the duration of the fermentation. When more propionate is desired, it would have been obvious to alter the factors that favors its production. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Applicant argues that the claimed proportions produces unexpected results. However, the comparative study disclosed in the specification is not against the prior art. Furthermore, the showing in the specification does not commensurate is scope with the claims. Claim 1 recites that the preservative salt comprises about 60-80% acetate/propionate and that the propionate is about 50-99.9%. The samples show 1:1 ratio which is 50/50 or 1:6 which is 12/86. Both of these ratios do not fall within the range of 60-80 acetate/propionate. Also, the showing of two amounts out of the broad range is not sufficient date to conclude criticality or unexpected result. There is no evidence to conclude that the same result is obtained with 99.9% propionate/.1% acetate, 90% propionate/10% acetate etc.. Additionally, the claims are directed to a method for producing the preservative salt without any limitation on the functional property of the salt relating to its use in product. Thus, the showing does not commensurate with the claims.
Applicant argues Sevenier does not disclose or suggest the claimed mixed-consortium fermentation and affirmatively directs its preferred process to a sole single-strain culture. This argument is not persuasive. A preferred embodiment is not the totality of the disclosure. Sevenier discloses Propionibacterium is used to produce propionic acid as the end product and Gluconobacter, Eubacterium, Acetobacter are among numerous strains able to produce acetic acid. In view of this knowledge, it would have been readily apparent to one skilled in the art to select the microorganisms and using a mixture of different microorganisms depending on the end products desired. The disclosure is a clear suggestion to use a mixture when different combination of acids are desired.
Applicant further argues the characterization of Sevenier’s clarification step is incorrect because the organic acid or salt remains in the clarified broth after that step (a) and separated only later by optionally lowering the pH below the pKa. This argument is not persuasive.. The clarification and separating steps are part of the pre-treating step which separate the organic acids which are readable on the claimed recovering step because there is no parameter defining the step other than that carboxylic acid mixture is recovered from the fermentation effluent. The clarification step removes the impurities which is part of the recovering.
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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October 14, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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