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: 6-7, 9-11, 14, 17-24, 30, 35-39
Withdrawn claims: None
Cancelled claims: 1-5, 8, 12-13, 15-16, 25-29, 31-34
Claims currently under consideration: 6-7, 9-11, 14, 17-24, 30, 35-39
Currently rejected claims: 6-7, 9-11, 14, 17-24, 30, 35-39
Allowed claims: None
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 13/497,432, filed on 05/03/2012.
Claim Objections
Claims 6-7, 9-11, 14, 17, 19-20, 22-24, and 35-39 are objected to because of the following informalities:
In claims 6-7, 9-11, 14, 17, 19-20, and 35-37, “A foodstuff according to claim” should be read as “The foodstuff according to claim”.
In claims 22-24 and 38, “A process according to claim” should be read as “The process according to claim”.
In claim 39, “A kit according to claim” should be read as “The kit according to claim”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived 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.
Claims 6-7, 14, 18-24, 30, and 35-39 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Coyne (US 2007/0104809; IDS citation) in view of Srivastava (Srivastava, J.K., Gupta, S., “Antiproliferative and Apoptotic Effects of Chamomile Extract in Various Human Cancer Cells”, 2007, Journal of Agricultural and Food Chemistry, vol. 55, pages 9470-9478; IDS citation), as evidenced by Simonová (Simonová, M., Strompfová, V., Marciňáková, M., “Chamomile Essential Oil and Its Experimental Application in Rabbits”, 2007, 1st IS on Chamomile Research, Development and Production, pages 192-202; IDS citation).
Regarding claim 18, Coyne teaches a foodstuff ([0019]) comprising an composition comprising rosemary extract ([0013]; [0083]), which is an antioxidant ([0005]), comprising phenolic diterpenes in an amount greater than 3.5% (by weight, based on the weight of the extract) obtained from rosemary and less than 1% (by weight, based on the weight of the extract) flavor-inducing compounds ([0056]). Since rosemary extract is an anti-oxidant, the composition taught by Coyne comprises an anti-oxidant composition. Coyne discloses that synergy between anti-oxidants ([0007]) and between anti-oxidants and antimicrobials ([0018]) and their usage for preventing oxidation of food ([0005]) are known in the art. The anti-oxidant composition of Coyne ([0013]) comprises the rosemary extract in an amount greater than 50 wt.% and an antimicrobial material ([0018]) with a bacteriostatic or bactericidal effect against Gram-positive bacteria ([0099]). Although Coyne exemplifies bacteriocins ([0021]) such as nisin ([0013]; [0031]) as the antimicrobial material with a particular interest in controlling the growth of Listeria monocytogenes in food ([0009]), the phrase “preferred aspect” ([0021]) implies that other antimicrobial materials may be used to provide a natural and effective food preservative system ([0010]). Furthermore, Coyne exemplifies mayonnaise as a foodstuff comprising the composition ([0106]). Coyne does not teach the anti-oxidant composition to comprise an extract obtained from the plant of the genus Matricaria or the genus Chamaemelum.
However, Srivastava teaches that Matricaria chamomilla has anti-oxidant properties (page 9470, column 1, paragraph 1) and its extract contains essential oils which contain bisabolol and chamazulene (page 9470, column 2, paragraph 2) which have antibacterial effects (page 9470, column 2, paragraph 1) against Gram-positive bacteria involved in food spoilage such as Listeria monocytogenes as evidenced by Simonová (Simonová, page 199, paragraph 4).
It would have been obvious for a person of ordinary skill in the art to have modified the composition of Coyne to include Matricaria chamomilla extract as the antimicrobial material as taught by Srivastava. Since Coyne discloses a preference for the antimicrobial material to have bacteriostatic or bactericidal effect against Gram-positive bacteria such as Listeria monocytogenes, a skilled practitioner would have been motivated to consult Srivastava in order to determine a suitable antimicrobial material to include in the natural and effective food preservation system. In light of this combined teachings of Coyne and Srivastava, the antioxidant rosemary extract in (a) and the antioxidant and antimicrobial material Matricaria chamomilla extract of (b) in the composition of Coyne would work synergistically to prevent oxidation in the mayonnaise ([0018]), rendering the claim obvious. Furthermore, since the composition of Coyne requires only rosemary extract in an amount greater than 50 wt.% and an antimicrobial material, where the antimicrobial material is present in an amount less than 50 wt.%, the weight ratio of (a) and (b) overlaps the claimed weight ratio, rendering it obvious.
Regarding claim 6, Coyne teaches the invention as disclosed above in claim 18. Srivastava teaches that extract (b) is from a plant of the genus Matricaria (corresponding to Matricaria chamomilla) (page 9470, column 1, paragraph 1).
Regarding claim 7, modified Coyne teaches the invention as disclosed above in claim 18, including the extract of (b) is Matricaria chamomilla has anti-oxidant properties (Srivastava, page 9470, column 1, paragraph 1). Matricaria chamomilla is also known as Matricaria recurtita. Therefore, modified Coyne discloses that extract (b) is from a plant of the species Matricaria recurtita.
Regarding claim 14, Coyne teaches the invention as disclosed above in claim 18. Srivastava teaches that apignen-7-O-glucoside is a major constituent of Matricaria recurtita (corresponding to Matricaria chamomile) (Abstract) at a concentration of 63.3% of aqueous extracts of chamomile (page 9472, column 2, paragraph 3) or 56.8% of the methanolic extracts of chamomile (page 9473, column 1, paragraph 1), which fall within the claimed range.
Regarding claim 19, Coyne teaches the invention as disclosed above in claim 18, including the foodstuff is mayonnaise, salad dressings, oil-in-water emulsions, margarines, low fat spreads, water-in-oil emulsions, dairy products, cheese spreads, processed cheese, dairy desserts, flavored milks, cream , fermented milk products, cheese butter, condensed milk products, ice cream mixes, soya products, pasteurized liquid egg, bakery products, confectionary products, fruit products, foods with fat-based or water-containing fillings, raw meat, cooked meat, raw poultry products, cooked poultry products, raw seafood products, cooked seafood products, ready to eat meals, pasta sauces, and pasteurized soups ([0106]).
Regarding claim 20, Coyne teaches the invention as disclosed above in claim 18, including the foodstuff is mayonnaise ([0106]).
Regarding claim 21, Coyne teaches a process comprising contacting foodstuff with ([0104]): an amount of rosemary extract ([0013]; [0083]), which is an antioxidant ([0005]), comprising phenolic diterpenes in an amount greater than 3.5% (by weight, based on the weight of the extract) obtained from rosemary and less than 1% (by weight, based on the weight of the extract) flavor-inducing compounds ([0056]). Since rosemary extract is an anti-oxidant and the composition contacting the foodstuff as taught by Coyne comprises an anti-oxidant composition, the process is for preventing and/or inhibiting oxidation of foodstuff. Coyne discloses that synergy between anti-oxidants ([0007]) and between anti-oxidants and antimicrobials ([0018]) and their usage for preventing oxidation of food ([0005]) are known in the art. The anti-oxidant composition of Coyne ([0013]) comprises the rosemary extract in an amount greater than 50 wt.% and an antimicrobial material ([0018]) with a bacteriostatic or bactericidal effect against Gram-positive bacteria ([0099]). Although Coyne exemplifies bacteriocins ([0021]) such as nisin ([0013]; [0031]) as the antimicrobial material with a particular interest in controlling the growth of Listeria monocytogenes in food ([0009]), the phrase “preferred aspect” ([0021]) implies that other antimicrobial materials may be used to provide a natural and effective food preservative system ([0010]). Furthermore, Coyne exemplifies mayonnaise as a foodstuff comprising the composition ([0106]). Coyne does not teach the anti-oxidant composition to comprise an extract obtained from the plant of the genus Matricaria or the genus Chamaemelum.
However, Srivastava teaches that Matricaria chamomilla has anti-oxidant properties (page 9470, column 1, paragraph 1) and its extract contains essential oils which contain bisabolol and chamazulene (page 9470, column 2, paragraph 2) which have antibacterial effects (page 9470, column 2, paragraph 1) against Gram-positive bacteria involved in food spoilage such as Listeria monocytogenes as evidenced by Simonová (Simonová, page 199, paragraph 4).
It would have been obvious for a person of ordinary skill in the art to have modified the composition of Coyne to include Matricaria chamomilla extract as the antimicrobial material as taught by Srivastava. Since Coyne discloses a preference for the antimicrobial material to have bacteriostatic or bactericidal effect against Gram-positive bacteria such as Listeria monocytogenes, a skilled practitioner would have been motivated to consult Srivastava in order to determine a suitable antimicrobial material to include in the natural and effective food preservation system. In light of this combined teachings of Coyne and Srivastava, the antioxidant rosemary extract in (a) and the antioxidant and antimicrobial material Matricaria chamomilla extract of (b) in the composition of Coyne would work synergistically to prevent oxidation in the foodstuff ([0018]), rendering the claim obvious. Furthermore, since the composition of Coyne requires only rosemary extract in an amount greater than 50 wt.% and an antimicrobial material, where the antimicrobial material is present in an amount less than 50 wt.%, the weight ratio of (a) and (b) overlaps the claimed weight ratio, rendering it obvious.
Regarding claim 22, Coyne teaches the invention as disclosed above in claim 21, including the extracts of (a) and (b) are mixed with the foodstuff together (corresponding to the components being added in the form of a composition [0104]).
Regarding claim 23, Coyne teaches the invention as disclosed above in claim 21, including the extracts of (a) and (b) are mixed with the foodstuff sequentially ([0104]).
Regarding claim 24, Coyne teaches the invention as disclosed above in claim 21, including the foodstuff is mayonnaise, salad dressings, oil-in-water emulsions, margarines, low fat spreads, water-in-oil emulsions, dairy products, cheese spreads, processed cheese, dairy desserts, flavored milks, cream , fermented milk products, cheese butter, condensed milk products, ice cream mixes, soya products, pasteurized liquid egg, bakery products, confectionary products, fruit products, foods with fat-based or water-containing fillings, raw meat, cooked meat, raw poultry products, cooked poultry products, raw seafood products, cooked seafood products, ready to eat meals, pasta sauces, and pasteurized soups ([0106]).
Regarding claim 30, Coyne teaches a kit ([0173]) for inhibiting oxidation ([0019]) of mayonnaise ([0106]), wherein the kit comprises a container ([0173]) comprising rosemary extract ([0013]; [0083]), which is an antioxidant ([0005]), comprising phenolic diterpenes in an amount greater than 3.5% (by weight, based on the weight of the extract) obtained from rosemary and less than 1% (by weight, based on the weight of the extract) flavor-inducing compounds ([0056]); and (c) instructions for admixture and/or contacting and/or use ([0173]). Coyne discloses that synergy between anti-oxidants ([0007]) and between anti-oxidants and antimicrobials ([0018]) and their usage for preventing oxidation of food ([0005]) are known in the art. The anti-oxidant composition of Coyne ([0013]) comprises the rosemary extract in an amount greater than 50 wt.% and an antimicrobial material ([0018]) with a bacteriostatic or bactericidal effect against Gram-positive bacteria ([0099]). Although Coyne exemplifies bacteriocins ([0021]) such as nisin ([0013]; [0031]) as the antimicrobial material with a particular interest in controlling the growth of Listeria monocytogenes in food ([0009]), the phrase “preferred aspect” ([0021]) implies that other antimicrobial materials may be used to provide a natural and effective food preservative system ([0010]). Furthermore, Coyne exemplifies mayonnaise as a foodstuff comprising the composition ([0106]). Coyne does not teach the anti-oxidant composition to comprise an extract obtained from the plant of the genus Matricaria or the genus Chamaemelum.
However, Srivastava teaches that Matricaria recurtita (corresponding to Matricaria chamomilla) has anti-oxidant properties (page 9470, column 1, paragraph 1) and its extract contains essential oils which contain bisabolol and chamazulene (page 9470, column 2, paragraph 2) which have antibacterial effects (page 9470, column 2, paragraph 1) against Gram-positive bacteria involved in food spoilage such as Listeria monocytogenes as evidenced by Simonová (Simonová, page 199, paragraph 4).
It would have been obvious for a person of ordinary skill in the art to have modified the composition of Coyne to include Matricaria chamomilla extract as the antimicrobial material as taught by Srivastava. Since Coyne discloses a preference for the antimicrobial material to have bacteriostatic or bactericidal effect against Gram-positive bacteria such as Listeria monocytogenes, a skilled practitioner would have been motivated to consult Srivastava in order to determine a suitable antimicrobial material to include in the natural and effective food preservation system. In light of this combined teachings of Coyne and Srivastava, the antioxidant rosemary extract in (a) and the antioxidant and antimicrobial material Matricaria chamomilla extract of (b) in the composition of Coyne would work synergistically to prevent oxidation in the mayonnaise ([0018]), rendering the claim obvious. Furthermore, since the composition of Coyne requires only rosemary extract in an amount greater than 50 wt.% and an antimicrobial material, the antimicrobial material is present in an amount less than 50 wt.%, the weight ratio of (a) and (b) overlaps the claimed weight ratio, rendering it obvious.
Regarding claim 35, Coyne teaches the invention as disclosed above in claim 18, including the foodstuff comprises an emulsion ([0106]).
Regarding claim 36, Coyne teaches the invention as disclosed above in claim 18, including the foodstuff comprises a salad dressing ([0106]).
Regarding claim 37, Coyne teaches the invention as disclosed above in claim 18, including extract of (a) is a deodorized extract ([0056]).
Regarding claim 38, modified Coyne teaches the invention as disclosed above in claim 21, including the extract of (b) is Matricaria chamomilla has anti-oxidant properties (Srivastava, page 9470, column 1, paragraph 1). Matricaria chamomilla is also known as Matricaria recurtita. Therefore, modified Coyne discloses that extract (b) is from a plant of the species Matricaria recurtita.
Regarding claim 39, modified Coyne teaches the invention as disclosed above in claim 30, including the extract of (b) is Matricaria chamomilla has anti-oxidant properties (Srivastava, page 9470, column 1, paragraph 1). Matricaria chamomilla is also known as Matricaria recurtita. Therefore, modified Coyne discloses that extract (b) is from a plant of the species Matricaria recurtita.
Claims 9-11 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Coyne (US 2007/0104809; IDS citation) and Srivastava (Srivastava, J.K., Gupta, S., “Antiproliferative and Apoptotic Effects of Chamomile Extract in Various Human Cancer Cells”, 2007, Journal of Agricultural and Food Chemistry, vol. 55, pages 9470-9478; IDS citation), as evidenced by Simonová (Simonová, M., Strompfová, V., Marciňáková, M., “Chamomile Essential Oil and Its Experimental Application in Rabbits”, 2007, Ist IS on Chamomile Research, Development and Production, pages 192-202; IDS citation) as applied to claim 18 above and further in view of Jiménez-Escrig (Jiménez-Escrig, A., Dragsted, L.O., Daneshvar, B., Pulido, R., Saura-Calixto, F., “In Vitro Antioxidant Activities of Edible Artichoke (Cynara scolymus L.) and Effect on Biomarkers of Antioxidants in Rats”, 2003, Journal of Agricultural and Food Chemistry, vol. 51, pages 5540-5545; IDS citation).
Regarding claims 9, Coyne teaches the invention as disclosed above in claim 18, including the composition comprises a chelator ([0113]). Coyne exemplifies a number of potential chelators ([0115]) and references naming potential chelators ([0114]; [0116]), which suggests to a skilled practitioner than any chelator may be used as long as it is a compound capable of forming co-ordination complexes with metals with a preference for chelators that are organic ([0117]) and non-toxic to mammals ([0118]). Coyne does not teach the composition comprises (c) an extract obtained from a plant of the Cynara family.
However, Jiménez-Escrig teaches that Cynara scolymus is a good source of natural antioxidants (page 5540, column 1, paragraph 2) wherein its extract (page 5541, column 2, paragraph 4) has metal chelation properties (page 5540, column 2, paragraph 2; page 5543, column 2, paragraph 1).
It would have been obvious for a person of ordinary skill in the art to have modified the composition of Coyne to include Cynara scolymus extract as a chelator as taught by Jiménez-Escrig. Since Coyne suggests the inclusion of a non-toxic, organic metal chelator in the anti-oxidant composition, a skilled practitioner would be motivated to consult Jiménez-Escrig in order to determine a suitable chelator to include in the natural and effective food preservation system. In consulting Jiménez-Escrig, the practitioner would find that Cynara scolymus extract is not only a metal chelator, but is also a good antioxidant.
Regarding claim 10, Coyne teaches the invention as disclosed above in claim 9. Jiménez-Escrig teaches the plant of the Cynara family is Cynara scolymus (page 5540, column 1, paragraph 2).
Regarding claim 11, Coyne teaches the invention as disclosed above in claim 9. Jiménez-Escrig teaches the plant of the Cynara family is Cynara scolymus (page 5540, column 1, paragraph 2).
Claims 17 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Coyne (US 2007/0104809; IDS citation) and Srivastava (Srivastava, J.K., Gupta, S., “Antiproliferative and Apoptotic Effects of Chamomile Extract in Various Human Cancer Cells”, 2007, Journal of Agricultural and Food Chemistry, vol. 55, pages 9470-9478; IDS citation), as evidenced by Simonová (Simonová, M., Strompfová, V., Marciňáková, M., “Chamomile Essential Oil and Its Experimental Application in Rabbits”, 2007, 1st IS on Chamomile Research, Development and Production, pages 192-202; IDS citation) as applied to claim 18 above, and further evidenced by Bhale (Bhale, S.D., “Investigation on the Antioxidant Capabilities of Spice Extracts in Inhibition of Long Chain Polyunsaturated Fatty Acids Oxidation and Cholesterol”, 2007, LSU Doctoral Dissertations; IDS citation).
Regarding claim 17, Coyne teaches the invention as disclosed above in claim 18, including the usage of a rosemary extract ([0013]; [0083]) and that rosemary extract is an antioxidant that prevents oxidative degeneration ([0005]), which includes lipid oxidation. Although Coyne does not expressly teach the antioxidant composition to inhibit the formation of 2, 4 heptadienal and/or 2, 4-decadienal, these compounds are produced during lipid oxidation (Bhale, page 23, paragraph 3 and page 25, paragraph 2) and rosemary extract prevents the formation of these compounds (Bhale, page 89, paragraph 1 and Appendix B2) as evidenced by Bhale. Therefore, since Coyne teaches the inclusion of rosemary extract as the anti-oxidant composition, Coyne effectively teaches the anti-oxidant composition inhibits the formation of 2, 4 heptadienal and/or 2, 4-decadienal, rendering the claim obvious.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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