DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 08/20/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 16, 21
Withdrawn claims: None
Previously cancelled claims: 1-15, 17-20
Newly cancelled claims: None
Amended claims: 16
New claims: None
Claims currently under consideration: 16, 21
Currently rejected claims: 16, 21
Allowed claims: None
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.
Claims 16 and 21 are rejected under 35 U.S.C. 112(b) 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 16 recites that the “the clogP(Fij) of the at least one flavor ingredient Fij is within ±0.75 clogP units of the clogP(Oi) of the off-odor component Oi. Claim 16 also recites that Oi may be more than one off-odor component and that Fij may be more than one component. It is unclear as to how to calculate the clogP of multiple components (e.g., is the clogP(Fii) an average of the clogP(Fii) of all the Fij components? Is the clogP(Fii) the total sum of the clogP(Fii) of all the Fij components?). Therefore, it is unclear as to how to determine whether the clogP(Fii) of all the Fij components are within ±0.75 clogP units of the clogP(Oi) of all the Oi components.
For the purpose of this examination, wherein the claim recites more than one Fij and/or more than one Oi, the claim will be interpreted as meaning that the clogP of one of the Fij components is within ±0.75 clogP units of the clogP of at least one of the Oi components.
Claim 21 is rejected by reason of dependency from claim 16.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Schulze (US 2020/0056118) as evidenced by admitted prior art.
Regarding claims 16 and 21, Schulze teaches a product [0001] which may comprise (E)-2-heptenal (corresponding to heptenal); and a flavor composition (corresponding to substance mixture) comprising delta-nonalactone [0017], [0024], [0032], [0039]-[0040]. Schulze teaches that the composition comprising delta-nonalactone masks the unpleasant odor of the aldehyde (E)-2-heptenal [0170]. Schulze exemplifies candy as a product [0260], [0262]. Therefore, Schulze at least suggests that the product may be a food product. (E)-2-heptenal may be derived from docosahexaenoic acid (DHA), alpha-linolenic acid (ALA), or eicosapentaenoic acid (EPA) as evidenced by page 23, lines 9-12 of the present specification. Therefore, in disclosing (E)-2-heptenal, Schulze discloses a product comprising an off-odor component Oi derived from DHA, ALA, or EPA as recited in present claim 16.
In disclosing delta-nonalactone, Schulze discloses a flavor ingredient Fij as recited in present claims 16 and 21. Schulze teaches that delta-nonalactone may be present in the flavor composition in an amount of 0.00001-80 wt.% based on the total weight of odor active flavor ingredients in the composition (corresponding to components (a)-(d) in the substance mixture) [0024], [0039]. This range encompasses the claimed concentration range. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Delta-nonalactone has a vapor pressure of 0.018 mmHg at 25°C. (E)-2-heptenal has a vapor pressure of 1.823 mmHg at 25°C. Therefore, Fij has a vapor pressure that is less than a vapor pressure of Oi as recited in present claim 16. Delta-nonalactone has a clogP of 1.86 as evidenced by page 9, lines 16-17 of the present specification. (E)-2-heptenal has clogP of 2.11 as evidenced by page 9, line 34- page 10, line 1 of the present specification. Therefore, the clogP(Fij) is within ±0.75 clogP units of the clogP(Oi) as recited in present claim 16.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 16 and 21 over Matsumoto: Applicant’s arguments with respect to claim(s) 16 and 21 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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