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 .
Application Status
Claim 1-25 are under examination.
Claim 1-25 are rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/11/2024 and 08/08/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 15-19 and 21-25 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.
Claim 15-19 and 21-25 recites percentages however it is unclear as to what Applicant intend the percentages is based upon, such as weight, purity. Additionally, it is not clear as to what the relation of the percentage based upon the composition or ratio percentage to two different components in the composition. Hence the claims are indefinite.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schuer Joerg Peter (WO 0003612 A, Machine Translation English).
Regarding claim 1, 2, and 3, Schuer Joerg Peter (Peter) discloses an antimicrobial composition for food products (pg. 6, paragraphs 7-11; claim 1) comprising a mixture (pg. 3) including aldehydes, vanillin (phenolic aldehyde) (pg. 4, ln. 7-9; claim 2) and catechins (polyphenol compound) (pg. 5, paragraphs 10-11; claim 7). With respect to claim 3, the recitation of hesperidin is considered an alternative selection of base claim 1; Peter discloses the aldehydes, vanillin (phenolic aldehyde) (pg. 4, ln. 7-9; claim 2) to meet the alternative selection.
Regarding claim 4-13, it is noted the cited the composition limits growth or prevents growth of microorganisms when exposed to the composition are considered a functional limitations of the claimed product when it’s at exposure to microorganisms; hence it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or substantially identical process, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitation that stem from the claimed structure (product). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spade, 15 USPQ2d 655,1658 (Fed. Cir. 1990). Peter discloses the antimicrobial composition for the food products (pg. 6, paragraphs 7-11; claim 1) prevents multiplying microorganisms (pg. 6, paragraph 7-10).
Regarding claim 20, Schuer Joerg Peter (Peter) discloses a method of adding an antimicrobial composition to food products (pg. 6, paragraphs 7-11; claim 1). The antimicrobial composition comprising a mixture (pg. 3) including aldehydes, vanillin (phenolic aldehyde) (pg. 4, ln. 7-9; claim 2) and catechins (polyphenol compound) (pg. 5, paragraphs 10-11; claim 7).
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.
Claim(s) 14-19 and 21-25 are rejected under 35 U.S.C. 103 as being unpatentable over Schuer Joerg Peter (WO 0003612 A, Machine Translation English).
Regarding claim 14-19 and 21-25, Schuer Joerg Peter (Peter) discloses the antimicrobial composition for food products (pg. 6, paragraphs 7-11; claim 1) comprising the mixture (pg. 3) including the aldehydes, vanillin (phenolic aldehyde) (pg. 4, ln. 7-9; claim 2) in an amount of up to 99% by weight (pg. 5, ln. 20) and the catechins (polyphenol compound) (pg. 5, paragraphs 10-11; claim 7) in an amount of 0.01 to 99% by weight (pg. 5, last paragraph), which overlaps the cited ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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