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 .
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- 12 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.
Regarding claims 1 and 10, the recitation “mixing sucrose, liquid sugars, sugar alcohols, natural high-intensity sweeteners, and dairy ingredients in water” renders the claim indefinite. It is not clear if more than one liquid sugar, sugar alcohol, natural high-intensity sweetener or dairy ingredient is required. For example, does the term “sugar alcohols” mean more than one sugar alcohol?
Regarding claim 5, the recitation “further comprising cooling the pasteurized sauce to room temperature” renders the claim indefinite because it is not clear if the pasteurized sauce is the sauce after primary pasteurization or secondary pasteurization. With respect to the prior art, a cooling step after either primary or secondary pasteurization would meet the claim limitation.
Regarding claim 8, the recitation “wherein , after cooling the sauce to room temperature, the color change (∆E) of the sauce is 0.1 to 1 compared to the sauce before cooling” renders the claim indefinite. First, since claim 6, from which claim 8 depends, is directed to a sauce, it is not clear how the sauce could exhibit a color that occurs during the process of making.
Claims 2-4, 6, 7, 9, 11 and 12 are rejected because they are dependent from a rejected base claim.
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 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Jeong et al. (TW 1690271 B) in view of Blaszczyk et al. (“Selection of heat treatment conditions and prevention of secondary microbial contamination of liquid sugar: practical remarks”, J. Food Sci. Technol., 58 (7), (January 2021), pp. 2842-2846).
Regarding claims 1, 6, 10 and 11, Jeong et al. disclose a method of making a sauce comprising the steps of: (a) combining allulose and a sugar mixture having at least one sugar selected from the group consisting of monosaccharides, disaccharides (e.g., sucrose) or oligosaccharides, sugar alcohols, high-intensity sweeteners and liquid sugars (i.e., sugar with water) (Tech-Solution/paragraphs 3 and 7); and (b) mixing and heating the combination (Tech-Solution/paragraphs 24-26). Jeong et al. disclose the heating can be performed for 5 to 30 minutes until a core temperature reaches 60⁰ to 100⁰C (Tech-Solution/paragraph 25) to obtain a sauce.
While Jeong et al. disclose heating the combination in a step identical to the claimed primary pasteurization step, the reference is silent with respect to a separate heating and primary pasteurization step. However, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP §2144.04 IVC). It would have been obvious to have combined to the initial heating and primary pasteurization into one step with a reasonable expectation of success in combining and solubilizing the ingredients. In this case, the step of heating for 5 to 30 minutes until a core temperature reaches 60⁰ to 100⁰C (Tech-Solution/paragraph 25) is considered a low temperature pasteurization step.
Jeong et al. is silent with respect to a secondary pasteurization step.
Blaszczyk et al. teach heat treatment of liquid sugar to prevent secondary microbial contamination (Abstract). Blaszczyk et al. teach in order to effectively eliminate the vegetative forms of mesophiles present in liquid sugar and preserve its properties, it is recommended to pasteurize at high temperature and short time (e.g., 110⁰C for 5 s, Abstract, p. 2846/Conclusion). Blaszczyk et al. teach that at a temperature of 80⁰C mesophilic and thermophilic bacterial spores are not inactivated (p. 2845/Selection of conditions for the pasteurization of liquid sugar). The person of ordinary skill in the art would have adjusted, in routine processing, the temperature above 80⁰C and time to achieve the inactivation of mesophilic and thermophilic spores.
Jeong et al. and Blaszczyk et al. are combinable because they are concerned with the same field of endeavor, liquid sweetener compositions. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have, after heating, pasteurized the sauce of Jeong et al. using a high temperature over 80⁰C for a short period of time as taught by Blaszczyk et al. in order to inactivate any mesophilic or thermophilic bacterial spores in the sauce.
While Jeong et al. disclose the sauce also includes flavoring agents (Tech-Solution/paragraph 14), the reference is silent with respect to dairy ingredients.
Jeong et al. disclose the term “sauce” is a general term for liquid or semi-flavor flavor enhancers that are added to or poured onto food to produce the taste and color of the food. Jeong et al. disclose the sauces can be classified according to their use or materials used to produce them (Tech-Solution/paragraph 5). Jeong et al. disclose the sauce may include cream sauce (Tech-Solution/paragraph 5). Given Jeong et al. disclose the sauce is intended to impart a flavor and color to a food and the sauce can be a cream sauce, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added a “cream sauce” flavoring agent, e.g., cream, to the sauce of Jeong et al. to make the sauce have a cream taste.
While the combination of Jeong et al. disclose a sauce comprising sucrose, liquid sugar, sugar alcohol, high-intensity sweeteners and a dairy ingredient, i.e., cream, and Jeong et al. disclose the sauce comprises 5 to 50 parts by weight allulose based on the total weight of 100 parts by weight of the sauce composition, the reference is silent with respect to the amount of sucrose and liquid sugars, sugar alcohols and natural high-intensity sweeteners.
However, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted, in routine processing, the content of sucrose, liquid sugar, sugar alcohol and high-intensity sweetener content in the sauce of Jeong et al. comprising 5 to 50 parts allulose, to obtain a sauce with a desired flavor profile while maintaining optimal microbial stability, viscosity and freeze-thaw stability.
Regarding claims 2 and 3, modified Jeong et al. disclose all of the claim limitations as set forth above. While Jeong et al. disclose sugar alcohols and high-intensity sweetener’s generally and is silent with respect to the specifically claimed compounds, it would have been obvious to one of ordinary skill in the art to have used any type of sugar alcohol and high-intensity sweetener in the disclosed sauce with a reasonable expectation of success. One of ordinary skill in the art may choose a specific sugar alcohol or high-intensity sweetener to obtain a specific sensory profile.
Regarding claim 4, modified Jeong et al. disclose all of the claim limitations as set forth above. Jeong et al. disclose homogenizing the sauce during the heating step. Jeong et al. is silent with respect to homogenizing the pasteurized sauce. However, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP §2144.04 IVC).
Regarding claim 5, modified Jeong et al. disclose all of the claim limitations as set forth above. Jeong et al. disclose a step of cooling the sauce after heating the combination to room temperature (Tech-Solution/paragraphs 28-29).
Regarding claims 7 and 8, modified Jeong et al. disclose all of the claim limitations as set forth above. Given the combination of Jeong et al. and Blaszczyk et al. teach a sauce produced by a method substantially similar to that of the present invention, intrinsically the sauce would exhibit the claimed browning and color change properties.
Regarding claim 9, modified Jeong et al. disclose all of the claim limitations as set forth above. Jeong et al. disclose the sauce is intended to be added to or poured onto food to produce flavor and color (Background -Art/paragraph 1, Tech-Solution/paragraph 5).
Regarding claim 12, modified Jeong et al. disclose all of the claim limitations as set forth above. Given the combination of Jeong et al. and Blaszczyk et al. teach a sauce produced by a method substantially similar to that of the present invention, intrinsically the sauce would exhibit the claimed color properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
Prosecution Insights