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 status
Claims 1-8 filed 10/11/2024 are pending in the application and are hereby examined on the merits.
Claim Objections
Claim 2 is objected to because of the following informalities: “packing” should read “packing the prepared kimchi”. Appropriate correction is required.
Claim 7 is objected to because of the number in the end is not legible. Is it 1 x 108? Appropriate correction is required.
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 5-8 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 5 recites the number of “general bacteria” in the equation. The term renders the claim indefinite because it is unclear what bacteria belongs to the general bacteria and what does not. Clarification is required.
Claim 5 recites the number of general bacteria and the number of lactobacilli in the equation. Are they viable or not? Clarification is required.
Claims 6-8 ultimately depend from claim 5 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claims 6 recites “a stomacher” in line 6. What is it? Clarification is required.
Claims 7-8 depend from claim 6 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
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.
Claims 1-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jang KR100159678 B1 (cited in the IDS submitted 12/23/2024, English translation relied upon for reference, hereinafter referred to as Jang).
Regarding claims 1-4, Jang teaches a method of preparing a packaged kimchi, the method comprising preparing aged kimchi, adding 0.2-2% ascorbic acid to the kimchi followed by packaging the kimchi, and treating the packaged kimchi with ultra-high (e.g., extra-high) pressure of 4000-6000 bar (e.g., 400-600 MPa) for a duration of 10 min (Abstract; page 3, 2nd para.; and Embodiment 1), which necessarily sterilizes the kimchi. Further, given that ascorbic acid is known to have antibacterial property, the limitation about presterilizing the kimchi is met by Jang.
Regarding claims 5-8, Jang as recited above teaches a method of making a packaged kimchi in connection with claims 1-4, the entirety of which is incorporated herein by reference. Jang teaches that the packaged kimchi is treated with ultra-high pressure. Regarding the value of # of general bacterial/# of lactobacilli in 25 gram of the kimchi as recited in claim 5, and the amounts of yeast, mold and general bacteria in the packaged kimchi that are measured by the measurement method 1 (note that the measurement method 1 does not limit the packaged kimchi, rather, it recites how the amounts of yeast, general bacteria and mold are measured in the kimchi) as recited in claims 6-8, the instant specification suggests that the value and amounts are a result of treating packaged kimchi with an ultra-high pressure of 2500-6500 bar at least once for 1-10 min (see instant specification para. 0067-0072; 0073-0078; Examples 1-4). Thus given that Jang teaches the same method of treating a packaged kimchi as the claimed invention, it logically follows that prior art kimchi has the same microbiological properties of claims 5-8. See MPEP 2112.01 I, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Claims 1 and 3-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pan CN105661425 A (English translation relied upon for reference, hereinafter referred to as Pan).
Regarding claims 1 and 3-4, Pan teaches a method of regulating the ripening of kimchi, the method comprising 1) preparing kimchi; 2) packaging kimchi; 3) subjecting the packaged kimchi to ultra-high pressure treatment according to the varying fermentation stages of kimchi (e.g., early-ripe, semi-ripe, and full-ripe); and 4) refrigerating the kimchi. Pan teaches that the ultra-high pressure treatment is to ensure that the final kimchi is free of mold, yeast, and gas-producing microorganisms, and that the live lactic acid bacteria content is controlled at 102 to 104 CFU/g to avoid the kimchi becoming bloated or overripe (0016). In particular, Pan teaches that in the early ripe stage (pH 5.0-5.5), the microorganisms in kimchi are mainly miscellaneous bacteria, with a relatively low content LAB. In order to preserve the content of live LAB as much as possible and establish the relative dominance of LAB, the processing pressure is controlled at 280-320 MPa for a duration of 10 min (0018; 0045); in the semi-ripe stage (pH 4.3–5.0), the relative dominance of LAB has been largely established. To reduce the total amount of LAB and kill as many residual bacteria as possible, the processing pressure should be controlled at 300–400 MPa for a duration of 15 min. If a lower pressure is chosen, it is advisable to pressurize 1–2 more times to ensure that the LAB content is controlled (0019; 0050); and in the full-ripe stage (pH 4.0–4.3), kimchi contains a large amount of metabolites—nisin. At this stage, it is not necessary to retain too many live LAB; the focus is on retaining the active ingredients produced by LAB metabolism. The main purpose of ultra-high pressure treatment is to kill or injure pressure-resistant LAB as much as possible, slow down their reproduction rate, and thus delay or terminate fermentation. Studies have found that in order to kill or injure pressure-resistant LAB, the processing pressure should be 350-500 MPa for 20 min, so as to ensure that the texture of the kimchi is not affected (0020; 0059).
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.
Claims 5-8 are rejected under 35 U.S.C. 103 as being unpatentable over Pan CN105661425 A (English translation relied upon for reference, hereinafter referred to as Pan).
Regarding claims 5-8, Pan as recited above teaches a method of making a packaged kimchi in connection with claims 1 and 3-4, the entirety of which is incorporated herein by reference. In particular, Pan teaches that the packaged kimchi at different ripening stages is free of mold and yeast as a result of ultra-high pressure treatment (0048; 0051; 0062) thus reading on claims 6 and 8. Pan is silent regarding the ratio of # of general bacterial to # of lactobacilli in 25 gram of the packaged kimchi as recited in claim 5, or the amount of general bacteria according to the measurement method 1 as recited in claim 7 (note that the measurement method 1 does not limit the packaged kimchi, rather, it recites how the amounts of yeast, general bacteria and mold are measured in the kimchi). The ratio above or the amount of general bacteria necessarily depends on the ripening stage of the packaged kimchi, and on the ultra-high treatment conditions. To this end, Pan teaches that the ultra-high treatment conditions (e.g., pressure, duration and number of treatment) are applied to the packaged kimchi depending on the ripening stages for different purposes (for example, in the early-ripe stage, the purpose of ultra-high treatment is to kill miscellaneous bacteria but preserve the content of live LAB as much as possible; in the semi-ripe stage, the purpose is to reduce the total amount of LAB and kill as many residual bacteria as possible; and in the full-ripe stage, the purpose is to kill or injure pressure-resistant LAB as much as possible, slow down their reproduction rate, and thus delay or terminate fermentation). Further, Pan teaches that no matter what fermentation stage the kimchi is at, the ultra-high pressure is applied such that LAB is maintained at a level of 102 to 104 CFU/g (0018-0020). Therefore, one of ordinary skill in the art would have been motivated to manipulate the ultra-high pressure conditions (e.g., pressure, duration and number of treatment) based on the ripening stage of the packaged kimchi so as to 1) to ensure that the viable LAB is a level of 102 to 104 CFU/g, and 2) to kill miscellaneous bacteria but preserve the content of live LAB as much as possible (for the kimchi that is early ripe), or to reduce the total amount of LAB and kill as many residual bacteria as possible (for the kimchi that is semi-ripe), or to kill or injure pressure-resistant LAB as much as possible, slow down their reproduction rate, and thus delay or terminate fermentation (for kimchi that is fully ripe). As such, the ratio as recited in claim 5 and the amount of general bacteria as recited in claim 7 are merely obvious variants of the prior art.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
Unknown inventor, KR960003585A; Shon, KR100735712B1; Lee, “Effect of high hydrostatic pressure (HHP) and supercooling storage in leaf mustard (Brassica juncea L.) kimchi: Modelling of microbial activity and preservation of physicochemical properties”, LWT - Food Science and Technology 145 (2021) 111325; and Sohn, “Effects of high pressure treatment on the quality and storage of kimchi”, International Journal of Food Science and Technology 1998, 33, 359–365, each of which teaches treating packaged kimchi with ultra-high pressure.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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