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 .
The status of the claims stands as follows:
Pending claims: 16, 21
Withdrawn claims: None
Cancelled claims: 1-15, 17-20 (*it is noted that the claim set states “10-15. (Cancelled)” instead of “1-15. (Cancelled)”; however, claims 1-9 are considered to also be cancelled. Appropriate correction is required.*)
Claims currently under consideration: 16, 21
Currently rejected claims: 16, 21
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group II in the reply filed on 04/20/2026 is acknowledged. Claim 15 was cancelled in the reply filed on 04/20/2026; therefore, Group II consists of claims 16 and 21.
Claims 1-14 and 17-20 belonging to non-elected Groups I and III-IV are cancelled.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 Matsumoto (JP 2016005451A; English translation relied on for citations).
Regarding claims 16 and 21, Matsumoto teaches a food or beverage product comprising a milk flavor composition (page 1, lines 13-15). Matsumoto teaches that the flavor composition comprises: (A) vegetable oil and fat, (B) fatty acids having 8-20 carbon atoms, (C) lactones having 6-14 carbon atoms, and (D) ketones having 4-13 carbon atoms (page 2, lines 7-10). Component (A) vegetable oil and fat in the flavor composition of Matsumoto is considered to be the solvent for components (B)-(D) and is thus not considered to be an odor active flavor ingredient as defined in lines 12-14 on page 6 of the present specification. Therefore, components (B)-(D) in the flavor composition of Matsumoto are considered to be odor active flavor ingredients as recited in present claim 16.
Matsumoto teaches that component (B) may be alpha-linolenic acid (ALA) (corresponding to “(9,12,15) linolenic acid (9,12,15-octadecenoic acid)”) and/or eicopentaenoic acid (EPA) (page 3, lines 21-28). Therefore, the flavor composition of Matsumoto may contain at least one off-odor component derived from ALA and EPA as recited in present claim 16. Matsumoto teaches that component (C) may be delta-nonalactone (corresponding to δ-nonalactone) (page 3, lines 46-50). Therefore, the flavor composition of Matsumoto may contain at least one flavor ingredient having a vapor pressure equal to or less than a vapor pressure of the off-odor component wherein the flavor ingredient comprises delta-nonalactone as recited in present claims 16 and 21.
Matsumoto teaches that the amount of component (B) in the composition is 0.005-1 parts by mass; the amount of component (C) in the composition is 0.000025-0.01 parts by mass; and the amount of component (D) in the composition is 0.0000005-0.00075 parts by mass (page 4, lines 16-20). Therefore, the flavor composition of Matsumoto contains the flavor ingredient (corresponding to component (C)) in an amount of 0.002-67 wt.% based on the total weight f odor active flavor ingredients comprised in the flavor composition. This range of 0.002-67 wt.% overlaps the claimed range of flavor ingredient recited in present claim 16. 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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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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/KELLY P KERSHAW/Examiner, Art Unit 1791
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