DETAILED ACTION
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either 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.
Claim 8 is 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 8 recites the limitation "wherein the reducing sugar content of the raw liquid for a seasoning is up to 7%". There is no antecedent basis for this limitation in the claim.
Regarding claim 8, it is not clear if in reciting “the reducing sugar content of the raw liquid for a seasoning is up to 7%” the claim is limiting the reducing sugar content to be as much as but not more than 7%. For the purposes of examination since claim 1, from which claim 8 depends, requires the reducing sugar to be 4.5% or more claim 8 has been interpreted as if it recites the reducing sugar would be between 4.5% and 7%.
Claim Rejections - 35 USC § 103
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.
Claims 1 – 6, 11, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Luh in view of Muranaka et al. JPS 61-37085 as further evidenced by Iwasaki et al. and Applicant’s Admission of the Prior Art (AAPA).
Regarding claims 1 and 3, Luh discloses that the normal and conventional method of producing a raw liquid for a seasoning comprises the steps of combining a soy sauce koji (page 467, Koji production) with a 20% saline solution (page 468, Brine fermentation), which solution comprises sodium chloride, to produce a koji saline mixture. To the soy sauce koji and saline solution is added a soy sauce lactic acid bacterium and the mixture is allowed to ferment at 15º C for at least 30 days (first month) (page 468, Brine fermentation). Luh also discloses that in general a reducing sugar content of soy sauce would commonly be 5% (page 469, Chemical composition of soy sauce, fig. 1) which is to say it is obvious that the reducing sugar content of the raw liquid for a seasoning would have had to have been at least 4.5% or more since some of the sugar would have been consumed during the fermenting process. Further, since the raw liquid seasoning is in the form of a mash and has not been subjected to yeast fermentation the ethanol content of the raw liquid for a seasoning would be 1.5% or less (page 468, Brine fermentation).
Claim 1 differs from Luh in removing insoluble solid content of the soy sauce moromi after lactic acid fermentation.
Muranaka discloses that by filtering the raw liquid for a seasoning, i.e., moromi, (solid-liquid separation) (page 3, ln 17 – 23), that is, removing the insoluble solid content, it is possible to get a more efficient contact between said raw liquid and yeast to complete a further yeast fermentation in a shorter period of time as well as improve the quality of the aromatic components of a finished soy sauce (page 5, ln 3 – 8). To therefore modify Luh and remove the insoluble solid content from the raw liquid for a seasoning as taught by Muranaka to have a more efficient contact between the raw liquid for a seasoning and the yeast as well as improve the quality of the aromatic components would have been an obvious matter of choice and/or design to the ordinarily skilled artisan. Iwasaki provides further evidence that it was old and conventional in the art to remove the insoluble solid content from soy sauce moromi prior to further processing into a finished soy sauce (page 2202, Feed solution - pressing the pre-fermented soy sauce mash and filtering it through a 0.45 micron membrane to remove microbial cells). AAPA (specification, paragraph [0073]) discloses that “a method for obtaining the soy sauce moromi soup by removing the insoluble solid content is not particularly limited, but is, for example, a generally known solid-liquid separation method” thereby providing further evidence that removal of the insoluble solid content to create a moromi soup was known in general and the applicant was not the first to do so.
Regarding claim 2, Luh in view of Muranaka as further evidenced by Iwasaki and AAPA does not disclose the addition of linoleic acid or that any linoleic acid would be present in the raw liquid for a seasoning before further processing of said liquid, therefore it would be obvious and expected that the raw liquid for a seasoning would be expected to have a linoleic acid content of 0.03 wt% or less.
Regarding claim 4, Luh in view of Muranaka as further evidenced by Iwasaki and AAPA disclose the sodium chloride concentrations would be about 23.5% (20%) and the koji saline mixture would be fermented for about 120 days (four months) (Luh, page 468, Brine fermentation).
Regarding claims 5 and 6, Luh discloses that good quality soy sauce will be comprised of a range of variable components based on the particular variety soy sauce (table 1) and that the particular properties such as aroma, flavour, and colour will depend on the composition, that is the percentages of reducing sugars, acids, and salt in the finished product (page 469, chemical composition of soy sauce), all of which would be determined based on the composition and treatment of the initial raw liquid for a seasoning from which the final seasoning would be refined (page 468, Refining), which is to say that variations in the sodium chloride concentration and fermentation period are would be considered result effective variables that the ordinarily skilled artisan would routinely and regularly optimize to obtain the desired results. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. Therefore once it was known to use a sodium chloride concentration of about 23.5% in a koji saline mixture that would be fermented for about 120 days it is not seen that patentability would be predicated on slight variations of the sodium chloride concentrations to about 26% or 24% to be fermented for about 50 days or 20 days respectively. 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 of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2144.05 II.A,).
Regarding claims 11 and 12 Luh discloses the raw liquid for a seasoning would be combined with a Zygosaccharomyces.rouxii, a soy sauce yeast and fermented at 28º C. Luh further discloses that once a soy sauce yeast has been combined with the raw liquid for a seasoning fermentation would be allowed to proceed until a desired pH of said raw liquid would be reached (page 468, Brine fermentation) which is to say that the particular number of days the combination would be fermented would be a result effective variable which the ordinarily skilled artisan would commonly and routinely optimize and therefore claim 11 is rejected as such for the same reasons given above in the rejection of claims 5 and 6.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Luh in view of Muranaka et al. JPS 61-37085 as further evidenced by Iwasaki et al. and Applicant’s Admission of the Prior Art (AAPA) as further evidenced by LPSN.
Regarding claim 7, Luh discloses the lactic acid bacterium would be Tetragenococcus halophilus (Pediococcus halophilus) (page 468, Brine fermentation) which as further evidenced by LPSN was formally known as Pediococcus halophilus).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Luh in view of Muranaka et al. JPS 61-37085 as further evidenced by Iwasaki et al. and Applicant’s Admission of the Prior Art (AAPA) in view of Orimo et al. US 7,790,208.
Regarding claim 8, as set forth above in the rejection of claim 1 Luh in view of Muranaka as further evidenced by Iwasaki and AAPA disclose that it would have been obvious to provide a reducing sugar of 4.5% or more.
Claim 8 differs from Luh in view of Muranaka as further evidenced by Iwasaki and AAPA in the reducing content of the raw liquid for a seasoning being limited to 7%.
Orimo discloses that high levels of reducing sugar in a raw liquid for a seasoning will inevitably yield dark-coloured soy sauce products as well as insufficient fermentation and that these are considered disadvantages in the production of soy sauce products because light-colour soy sauce is preferred (col. 2, ln 57 – 59). This is to say that Orimo is disclosing the amount of reducing sugar in the raw liquid for a seasoning would be a result effective variable which the ordinarily skilled artisan would regularly and routinely optimize in order to obtain the desired colour of the final product. Therefore, once it was known that high levels of reducing sugar in the raw liquid for a seasoning would disadvantageously produce undesirable dark coloured soy sauce and insufficient fermentation it would have been an obvious matter of choice and/or design to the ordinarily skilled artisan to limit the amount of reducing sugar in the raw liquid for a seasoning based on the desired final colour and level of fermentation of the soy sauce to be refined from the raw liquid for a seasoning absent strong and compelling evidence to the contrary.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Luh in view of Muranaka et al. JPS 61-37085 as further evidenced by Iwasaki et al. and Applicant’s Admission of the Prior Art (AAPA) in view of Endo et al. US 20120282243.
Claims 9 and 10 differ from Luh in view of Muranaka as further evidenced by Iwasaki and AAPA in the ratio of soy sauce koji to saline solution in parts by mass.
Endo discloses that it was known to vary the salt percentage in a koji saline mixture by adding an amount of 100 parts to 300 parts of a saline solution (common salt concentration) to 100 parts of the soy sauce koji (100% to 300% relative to the weight of soy sauce koji) (paragraph [0049]). This is to say that Endo is allowing for a koji saline mixture that would comprise 100 parts to 100 parts, i.e., a 1:1 ratio which is close enough to the ratios recited in claims 9 (1:.98) and 10 (1:1.2) that prima facie one skilled in the art would have expected them to have the same properties absent a showing that the claimed proportions are critical. Endo further discloses that this would be done to regulate the salt concentration of the raw liquid (moromi mash) and that such procedure, that is regulating the salt concentration, would yield an improved flavour (paragraph [0056]). Therefore it would have been an obvious matter of choice and or design to the ordinarily skilled artisan to have regulated the salt content of the koji saline mixture of Luh in view of Muranaka as further evidenced by Iwasaki and AAPA as disclosed by Endo to provide an improved flavour.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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 please telephone the Examiner.
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.
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.
/C.S./
Chaim SmithExaminer, Art Unit 1791 30 May 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights