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 4/17/26. Claims 1-6,10-15 are amended. Claims 1-15 are pending.
The previous 112 second paragraph rejection is withdrawn due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 1, 3-8,10-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over BE 1024624 in view of Martin “ Herb Vinegar: How to Make Herbal Infused Vinegar”.
For claim 1, Be624 discloses a method for the preparation of a aqueous solution of salt vinegar. The method comprises the steps of providing vinegar of acetic acid, neutralizing to pH of 7 with basic neutralizing agent such as hydroxide or carbonate or bicarbonate of alkali metals to obtain neutralized vinegar which is the same as the claimed vinegar salt, concentrating the neutralized vinegar and adding plant extracts such as rosemary extracts, basil or similar. For claims 3-4, the claims are indefinite as explained above. It’s assumed the percent refers to solid content. Be 624 discloses the solution containing K acetate of 60%. For claims 5, 15, Be 624 disclose the step of resetting the acid level of the vinegar salt to a pH of 6 and the amount of vinegar added is between 15-38%. For claims 8-10, Be624 discloses adding herb in amount of .1-10%. For claim 14, Be624 discloses an extract obtained from the steps. ( see example 1, pages 3, 5).
While Be624 discloses adding herb to the vinegar salt, Be624 does not disclose infusing and filtering as in claim 1 and the infusing parameter as in claims 6-7,12,13.
Martin discloses a recipe for herbal infused vinegar. Martin teaches to pour vinegar over herbs in a jar and storing the jar at room temperature for at least 2 weeks. The recipe teaches to strain the herb vinegar once the taste is sufficient.
Be624 teaches to add herbs as preservative. As shown in the recipe, herbs can be added to vinegar and storing at room temperature to infuse the herbs into the vinegar. It would have been obvious to one of ordinary skill in the art before the effective date of the claimed invention to add the infusing step when desiring to add flavoring to the vinegar salt solution. The recipe teaches to infuse a room temperature which would encompass the claimed temperature range because room temperature is typically around 20-25 degrees C. It would have been obvious to one of ordinary skill in the art to vary the time depending on the extent of the herb infused into the vinegar desired. The selection of the time would have been an obvious matter of preference. It would have been obvious to filter the herb to stop the infusion and when desiring a filtered extract. Such step would have been readily apparent to one skilled in the art.
Claim(s) 2,9 is/are rejected under 35 U.S.C. 103 as being unpatentable over BE 1024624 in view of Martin “ Herb Vinegar: How to Make Herbal Infused Vinegar” and Hilhorst ( WO 2020/245407).
For claim 2, Be624 discloses a method for the preparation of a aqueous solution of salt vinegar. The method comprises the steps of providing vinegar of acetic acid, neutralizing to pH of 7 with basic neutralizing agent such as hydroxide or carbonate or bicarbonate of alkali metals to obtain neutralized vinegar which is the same as the claimed vinegar salt, concentrating the neutralized vinegar and adding plant extracts such as rosemary extracts, basil or similar. ( see example 1, pages 3, 5).
While Be624 discloses adding herb to the vinegar salt, Be624 does not disclose infusing and filtering and drying as in claim 2 and spray-drying as in claim 9.
Martin discloses a recipe for herbal infused vinegar. Martin teaches to pour vinegar over herbs in a jar and storing the jar at room temperature for at least 2 weeks. The recipe teaches to strain the herb vinegar once the taste is sufficient. ( see entire reference)
Hilhorst teaches to make neutralized vinegar by adding alkalizing agent to vinegar. The neutralized vinegar can be concentrated by evaporation and spray-dried to form free flowing powder. ( see page 9, lines 1-15)
Be624 teaches to add herbs as preservative. As shown in the recipe, herbs can be added to vinegar and storing at room temperature to infuse the herbs into the vinegar. It would have been obvious to one of ordinary skill in the art before the effective date of the claimed invention to add the infusing step when desiring to add flavoring to the vinegar salt solution. The recipe teaches to infuse a room temperature which would encompass the claimed temperature range because room temperature is typically around 20-25 degrees C. It would have been obvious to one of ordinary skill in the art to vary the time depending on the extent of the herb infused into the vinegar desired. The selection of the time would have been an obvious matter of preference. It would have been obvious to filter the herb to stop the infusion and when desiring a filtered extract. Such step would have been readily apparent to one skilled in the art. It would have been obvious to one of ordinary skill in the art to spray-dry the solution as taught in Hilhorst when desiring to obtain free flowing powder instead of aqueous composition. The selection would have been an obvious matter of choice.
Response to Arguments
Applicant's arguments filed 4/17/26 have been fully considered but they are not persuasive.
In the response, applicant argues that the plant extract disclosed in 624 are externally prepared material that may be included in small amount as preservative. This is not the same and cannot reasonably be construed to be the preparation of extracts by infusing herbs or spices in the vinegar salt solution and filtering. This argument is not persuasive. The patent 624 discloses to add plant extracts to the neutralized vinegar; thus, the flavor of the extract will be infused into the vinegar. While applicant contends that the amount in 624 is small, the claimed amount is event smaller as claim 10 recites a concentration of .05% which is significantly less than the range of .1-10% disclosed in 624. Claims 1 and 2 recites and infusing time of 1 minute. This is equivalent to just placing the herb and spices into the vinegar. There is no evidence to ascertain of any extensive degree of extraction or infusing of the herb into to the vinegar in a time of 1 minute. Furthermore, the rejection also relies on Martin to show infusing of herb/spices with vinegar and filtering. Applicant argues neither reference teaches performing an infusion in neutralized vinegar salt solution. The examiner respectfully disagrees as 624 teaches to add plant extract to neutralized vinegar salt solution. Thus, if the extract is added to the vinegar, the flavor of the extract will infused into the vinegar because it’s present in the vinegar. Applicant’s claimed infusing step is adding the herb/spice to the vinegar. Applicant argues there is no reasonable expectation of success. Applicant states prior art attempts show unpleasant flavors ,concentrating acidic vinegar is costly and complex and evaporation after infusion causes massive flavor loss. This argument is not persuasive. Applicant has not submitted any factual evidence showing cost, complexity and massive loss. As to the unpleasant flavors, it’s considered unexpected. Vinegar is acidic; thus, to anyone not liking acidic flavor and taste, the unpleasantness is expected. The difference in flavor would have been a motivational factor in selecting neutralized vinegar taught in 624 for infusion. The selection of the type of vinegar would have been an obvious matter of choice. All the known vinegars are not the same. For example, it’s known malt vinegar has a milder taste than white vinegar. The selection of the type of vinegar for infusion would have been an obvious matter of choice. Applicant further argues the teaching of 624 and Martine rely on fundamentally different principles and the proposed modification or combination of the prior art would change the principle of operation. This argument is not persuasive. Both 624 and Martin are directed to preparation of aqueous solution of vinegar having plant material added to it. Applicant states 624 synthesize a salt but that salt is a solution just like in Martin. One skilled in the art would have readily subject the 624 aqueous vinegar solution in 624 to the infusing step of Martin when desiring to make a flavor-infused vinegar solution. Applicant argues the plant extract in 624 is already made. Even if the extract is already made, it’s still a flavoring component that alter the taste of the vinegar. Martin teaches the herb/spices can vary depending on the flavor and one can experiment with any type. The options listed are just suggestion; they are not limited to just fresh plant material. Not all the ingredients disclosed in Martin is listed as fresh. Applicant argues that Martin’s method is strictly designed for standard, highly acidic commercial vinegars such as white wine or red wine. This argument is not persuasive because it’s applicant own conclusion. Martin does not restrict the method of highly acidic vinegars. In fact, Martin gives example of several types of vinegar including champagne vinegar which is known in the art to be slightly sweet vinegar. There is no restriction placed in the type of vinegar in Martin. The selection of vinegar would have been an obvious matter of choice depending on the taste and flavor desired. Applicant further argues 624 objective is to prevent solution from becoming cloudy; there is no evidence documenting the steeping of raw, fresh directly. This argument is not persuasive. The 624 patent teaches to add plant extract such as rosemary extract, basil or similar. There is disclosure and suggestion of adding ingredient. The 624 patent is not concerned with discoloration from adding the preservatives. Thus, there is no contraindication to adding flavoring herb as taught in Martin. Furthermore, Martin teaches to filter out the herb. Thus, the herb would not affect the coloring or cloudiness of the solution.
With respect to the Hilhorst reference, applicant argues Hilhorst is not from the same field of endeavor as the claimed invention because it’s directed to formulating a functional additive composition designed to improve the quality of process meat. This argument is not persuasive. While Hilhorst is directed to composition for processed meat, Hilhorst discloses a specific ingredient that is the end product of the claimed method. On page 9, Hilhorst discloses the use of neutralized vinegar which is produced by adding alkalizing agent such as hydroxide to vinegar. The neutralized vinegar is concentrated by evaporation and dried. The drying is directed to the neutralized vinegar solution, not the overall processed meat composition as argued by applicant. Applicant’s argument ignores the teaching of the portion that is relied upon in the rejection.In response to applicant's argument that Hilhorst is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Hilhorst is pertinent in that it contains the teaching of neutralized vinegar solution and drying of that solution.
Conclusion
THIS ACTION IS MADE FINAL. 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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June 30, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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