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 Objections
Claim 3 is objected to because of the following informalities:
Regarding claim 3, “the gas chromatography/olfactometry analysis includes of adjusting an odor intensity” should read “the gas chromatography/olfactometry analysis includes a step of adjusting an odor intensity”.
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.
Claim(s) 1-6 is/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 1 step (2) recites “preparing a first flavor composition containing aroma compounds, by calculating a detection rate t of these plural aroma compounds in the retronasal aroma of the step (1) based on a result of the gas chromatography analysis of the step (1)”. This limitation is indefinite because it is unclear what “these plural aroma compounds” refers to, since step (1) does not refer to any particular plural aroma compounds in the retronasal aroma analysis step. Furthermore, it is unclear how a first flavor composition can be prepared by calculating a detection rate, since a calculation does not involve any physical processing of ingredients that would result in a first flavor composition. Consequently, claim 1 is rejected as indefinite.
Claim 1 step (6) recites “the first flavor composition” which lacks proper antecedent basis because it is not clear whether this recitation of “the first flavor composition” refers to the first flavor composition of step (2) or step (3) or a further amount of a first flavor composition that has been adjusted.
The term “close to” in claim 1, step (6) is a relative term which renders the claim indefinite. The term “close to” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Regarding claim 1, it is unclear if the “detection rate 1” is the detection rate of plural aroma compounds in the model food or beverage, the first flavor composition, or the second flavor composition, since “the detection rate 1” is linked to the model food or beverage in steps (4) and (5) but step 6 links “the detection rate 1” to a second flavor composition by adjusting an aroma balance of the first flavor composition. Consequently, claim 1 is rejected as indefinite.
Claim 1, step (7) recites, “matching the detection rate t.” Paragraph 0037 of the Applicant’s Specification refers to “matches” as not only a complete match but matching to the extent that the flavor scenting is “acceptable to a normal consumer.” This definition makes the scope of what can be construed as “matching” unclear, and therefore, claim 1 is rejected as indefinite.
Claims 2-6 are rejected as indefinite as a result of depending upon indefinite claim 1.
Claim 2 recites, “the step (1) includes analyzing . . . then adding the detected aroma to first flavor composition.” Is this a different aroma from that recited in steps (1) and (2) of claim 1? How can step (1) include adding aroma to first flavor composition, when the first flavor composition is prepared in step (2)? Therefore, claim 2 is rejected as indefinite.
Regarding claims 2 and 3 it is unclear if “gas chromatography/olfactometry analysis” is meant to indicate a process limitation requiring both gas chromatography analysis and olfactometry analysis, requiring either gas chromatography analysis or olfactometry analysis, or if olfactometry analysis is simply an equivalent term to gas chromatography analysis. For the purposes of further examination, the examiner has understood olfactometry analysis to simply be an equivalent term to gas chromatography analysis. Furthermore, it is unclear if “a step of analyzing the retronasal aroma by gas chromatography/olfactometry” as recited in claim 1, is the same as or different than “gas chromatography” as recited in step (1) of claim 1. For the purposes of further examination, the Examiner has understood ”a step of analyzing the retronasal aroma by gas chromatography/olfactometry” to be the same as “gas chromatography” as recited in step (1) of claim 1.
Claims 3 and 5-6 are rejected as indefinite as a result of depending upon indefinite claim 2.
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.
Claim(s) 1-2 and 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itobe (JP 2016045156 A) in view of Reinders (US 20020076473 A1).
Regarding claim 1, Itobe teaches (Paragraph 0022, 0024) a method of producing a flavoring composition for food and beverages comprising wherein exhaled breath is collected from the oral cavity into the nasal cavity and expelled from the nostrils when a food is chewed (during eating or drinking) and the exhaled breath is collected. Itobe further teaches (Paragraph 0025) aroma components from the expelled breath are subjected to gas chromatography analysis (analyzing retronasal aroma). In addition, Itobe teaches (Paragraph 0027) peak area values (detection rate t) are obtained by the gas chromatography measurement. Also, Itobe teaches (Paragraph 0028) a flavoring composition is prepared containing essential aroma components identified by the evaluation method. Furthermore, Itobe teaches (Paragraph 0030) the flavoring composition for food and beverages of the present invention can be added to foods and beverages (preparing a model food or beverage).
Itobe is silent on a step (4) of analyzing retronasal aroma during eating or drinking the model food or beverage 1 by gas chromatography. Itobe is further silent on a step (5) of calculating a detection rate 1 of plural aroma compounds in the retronasal aroma of the step (4) based on a result of the gas chromatography analysis of the step (4). Additionally, Itobe is silent on a step (6) of preparing a second flavor composition by adjusting an aroma balance of the first flavor composition to bring the detection rate 1 close to the detection rate t. Also, Itobe is silent on a step (7) of preparing a final flavor composition having an aroma balance matching the detection rate t by repeating the same operations as the steps (3) to (6).
Reinders teaches (Paragraph 0008, 0014, 0015) a process for the adaptation of flavor mixtures wherein a base matrix, which may be a customary food (analyte), is prepared, and the composition of the volatile constituents (aroma compounds) in the headspace above the base matrix is then analyzed by gas chromatography. Reinders further teaches (Paragraph 0016, 0018) the analysis is performed on the basis of the peak areas of identified flavor constituents (calculating a detection rate of plural aroma compounds in the aroma of the step (1) based on a result of the gas chromatography analysis) and a flavor mixture is prepared in which the composition of the volatile flavor constituents (aroma compounds )corresponds to that of the base matrix (preparing a first flavor composition containing aroma compounds). Additionally, Reinders teaches (Paragraph 0016) the same flavor is then incorporated into another matrix, which is also preferably a food (preparing a model food or beverage 1 by adding the first flavor composition). Furthermore, Reinders teaches (Paragraph 0020, 0021) analyzing the headspace of the other matrix by gas chromatography to determine the peak area percentage of aroma compounds (analyzing aroma of the model food or beverage 1 by gas chromatography; and a step (5) of calculating a detection rate 1 of plural aroma compounds in the aroma of the step (4) based on a result of the gas chromatography analysis of the step (4)). In addition, Reinders teaches (Paragraph 0021, 0022) correction factors are determined based on the quotient of the peak area percentage (detection rate) of each flavor compound in the base with the peak area percentage (detection rate) of the aroma compound in the new matrix, and, based on the correction factors, an adapted flavor is mixed in a mass ratio such that the total mass again corresponds to the original base flavor (preparing a second flavor composition by adjusting an aroma balance of the first flavor composition to bring the detection rate 1 close to the detection rate t). Furthermore, Reinders teaches (Paragraph 0023) the flavor, thus adapted, is incorporated into a new matrix, and this can then be analyzed in turn by static headspace gas chromatography and determination of peak area values (detection rates) in order to check the result of the flavor adaptation (repeating steps 3 to 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Itobe to perform a step 4 of analyzing an aroma of the model food or beverage by gas chromatography; a step (5) of calculating a detection rate of plural aroma compounds in the aroma of the step (4) based on a result of the gas chromatography analysis of the step (4); a step (6) of preparing a second flavor composition by adjusting an aroma balance of the first flavor composition to bring the detection rate 1 close to the detection rate t; and a step (7) of repeating the same operations as the steps (3) to (5) as taught by Reinders since both are directed to methods of preparing flavor compositions for food products by performing gas chromatography on aromas and calculating detection rates of the aroma compounds, since performing a step 4 of analyzing an aroma of the model food or beverage by gas chromatography; a step (5) of calculating a detection rate of plural aroma compounds in the aroma of the step (4) based on a result of the gas chromatography analysis of the step (4); a step (6) of preparing a second flavor composition by adjusting an aroma balance of the first flavor composition to bring the detection rate 1 close to the detection rate t; and a step (7) of repeating the same operations as the steps (3) to (5) is known in the art as shown by Reinders, since flavor adaptation by the process of Reinders can be carried out considerably faster and more goal-oriented, than by a purely flavoristic/sensory approach (Reinders, Paragraph 0026), since the composition of the flavor in the vapor phase above the food changes with the composition and structure of the food, and, as a result the sensory properties alter with an altered structure and composition of the food; thus, for each food, a flavor must be developed separately, and it is not sufficient simply to introduce a flavor suitable for a defined food into another food (Reinders, Paragraph 0019), and since analyzing the model food or beverage, determining a new flavor composition based on the rates of aroma components, and adding the new composition to a food and analyzing for detection rates would ensure that the flavor composition imparts the desired flavor to a food product, better satisfying consumers.
It is noted that the process of Reinders analyzes the aroma in the headspace above the food rather than the retronasal aroma during eating or drinking. However it would be obvious to one of ordinary skill in the art to analyze the retronasal aroma during eating or drinking in steps (4) through (7) of the modified process of Itobe in view of Reinders above since, analyzing the retronasal aroma during eating or drinking is already known from Itobe, since the method of Itobe (i.e., analyzing the retronasal aroma during eating or drinking) for evaluating diffusible aroma components is useful for reproducing the expression of aroma in the oral cavity (Itobe, Paragraph 0001) so performing the gas chromatography analysis on a retronasal aroma during eating or drinking would better ensure that the resulting flavor composition has an aroma that matches the original analyte when consumed by the consumer, since aroma that escapes from the oral cavity into the nasal cavity while consuming food and beverages is the closest to the aroma perceived by humans, and that the intensity of the perceived aroma is proportional to the concentration of aroma components that escape from the oral cavity into the nasal cavity (Itobe, Paragraph 0011), and since by collecting and measuring oral aroma components that escape from the oral cavity into the nasal cavity, it is possible to perform an analysis that most closely resembles actual sensation, thereby constructing a new evaluation method for aroma components (Itobe, Paragraph 0012).
Furthermore, while Itobe, as modified above in view of Reinders, does not explicitly state that step (6) is repeated (i.e., a final flavor composition is prepared by adjusting an aroma balance of the second flavor composition to bring the detection rate close to the detection rate t), doing so would be obvious to one of ordinary skill in the art. Reinders teaches (Paragraph 0023) when analysis is performed on the new matrix (model food or beverage comprising second flavor composition) the adaptation can be considered to be successful if the headspace profile of peak area percentages (detection rates) agrees with the headspace profile of the base matrix (analyte). One of ordinary skill in the art would clearly recognize that it would be obvious to adjust the aroma balance of the second flavor composition and prepare a final flavor composition when the adaptation is not successful, since doing so would ensure that the flavor composition has the intended aroma that resembles the original food or beverage product, and since preparing a final flavor composition by adjusting the aroma of the second flavor composition is simply an additional iteration of a known process for modifying a flavor composition. Additionally, step (7) does not specifically recite an iterative process, but rather just repeats steps (3)-(6), which reads on doing the same thing again and therefore is a duplication of the same step. Also, step (7) does not specify how the final flavor composition is prepared other than “matching” a detection rate t. Therefore, one of ordinary skill in the art would recognize that step (7) could also read on mixing two amounts of the first flavor composition together, since the claim does not require a manipulation or alteration of the second flavor composition in any way to make the final flavor composition.
The claimed preparation of a final flavor composition by adjusting an aroma balance of the second flavor composition to bring the detection rate close to the detection rate t would have been used during the course of normal experimentation and optimization procedures in the method of Itobe, as modified above, based upon factors such as the results of the analysis of the aroma components of the food product comprising the second composition (where aroma components that don’t match the detection rate of the aroma components of the original food product would need adjustment), the type of food to which the flavor composition is added, the ingredients of the flavor composition, etc. Furthermore, the Applicant has neither demonstrated the criticality nor identified any unique or unexpected benefit of the claimed preparation of a final flavor composition by adjusting an aroma balance of the second flavor composition to bring the detection rate close to the detection rate t that would render it non-obvious.
Regarding claim 2, Itobe teaches (Paragraph 0022, 0024) a method of producing a flavoring composition for food and beverages comprising wherein exhaled breath is collected from the oral cavity into the nasal cavity and expelled from the nostrils when a food is chewed (during eating or drinking) and the exhaled breath is collected. Itobe further teaches (Paragraph 0025) aroma components from the expelled breath are subjected to gas chromatography analysis (analyzing retronasal aroma). Also, Itobe teaches (Paragraph 0028) a flavoring composition is prepared containing essential aroma components identified by the evaluation method (adding the detected aroma compound to first flavor composition).
Regarding claims 4 and 5, Itobe teaches (Paragraph 0012) collecting exhaled air from the oral cavity through the nasal cavity and expelled from the nostrils, adsorbing the aroma components contained therein onto a porous resin adsorbent, and then extracting the adsorbed components by thermal desorption and measuring them by gas chromatography.
Furthermore, while Itobe is silent on the claimed step (4), such step is obvious in view of Reinders as shown above, and It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Itobe to includes a step of adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma in the gas chromatography analysis process of step (4) also, since adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma is known in the art from Itobe, since, by adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma, it becomes possible to accurately measure even low concentrations of aroma components (Itobe, Paragraph 0012), and since it is preferable from the viewpoint of improving the detection sensitivity of aroma components to adsorb the collected exhaled breath with a porous resin adsorbent and extract the adsorbed components by thermal desorption (Itobe, Paragraph 0025).
Claim(s) 3 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Itobe (JP 2016045156 A) in view of Reinders (US 20020076473 A1) and further in view of Kaneko (JP 2004325116A).
Regarding claim 3, Itobe, as modified above, is silent on the gas chromatography/olfactometry analysis including adjusting an odor intensity by using an aroma extract dilution analysis method.
Kaneko teaches (Paragraph 0004, 0011) an aroma component analysis method characterized by analyzing an odor substance, which is the object of analysis, by olfactory gas chromatography to perform a qualitative analysis of the volatile components in the odor substance, calculating the FD factor of each volatile component by aroma extract dilution analysis (AEDA), multiplying these FD factors (Fn) by the intrinsic threshold (Tn) of each volatile component to obtain the FD value (Fn × Tn) of each volatile component, and calculating the amount of each volatile component, wherein a high flavor dilution factor (FD factor) indicates that a substance, even in small amounts, contributes significantly to the odor, (the gas chromatography/olfactometry analysis includes of adjusting an odor intensity by using an aroma extract dilution analysis method). Also, Kaneko teaches (Paragraph 0014) the substances to be analyzed by the aroma component analysis method of the present invention include foods and beverages.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the process of Itobe as modified above for the gas chromatography/olfactometry analysis to include adjusting an odor intensity by using an aroma extract dilution analysis method as taught by Kaneko since both are directed to methods of performing gas chromatography on aroma compounds derived from foods and beverages, since the gas chromatography/olfactometry analysis including adjusting an odor intensity by using an aroma extract dilution analysis method is known in the art as shown by Kaneko, since Aroma Extract Dilution Analysis makes it possible to measure the contribution of each component in the odor substance, which is the analyte, to the odor (Kaneko, Paragraph 0004), since, by manufacturing a fragrance based on the product of this FD factor and the intrinsic threshold (adjusting an odor intensity), it is possible to reproduce the high-quality odor of the target substance easily and in a relatively short time (Kaneko, Paragraph 0010), and since the fragrance components identified in this invention using the Aroma Extract Dilution Analyst (AEDA) method have a significant contribution to fragrance and therefore exert their effects even in trace amounts (Kaneko, Paragraph 0018).
Regarding claim 6, Itobe teaches (Paragraph 0012) collecting exhaled air from the oral cavity through the nasal cavity and expelled from the nostrils, adsorbing the aroma components contained therein onto a porous resin adsorbent, and then extracting the adsorbed components by thermal desorption and measuring them by gas chromatography.
Furthermore, while Itobe is silent on the claimed step (4), such step is obvious in view of Reinders as shown above, and It would have been obvious to one of ordinary skill in the art before the effective filing date to modify Itobe to includes a step of adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma in the gas chromatography analysis process of step (4) also, since adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma is known in the art from Itobe, since, by adsorbing the retronasal aroma to an adsorbent and desorbing the adsorbed retronasal aroma, it becomes possible to accurately measure even low concentrations of aroma components (Itobe, Paragraph 0012), and since it is preferable from the viewpoint of improving the detection sensitivity of aroma components to adsorb the collected exhaled breath with a porous resin adsorbent and extract the adsorbed components by thermal desorption (Itobe, Paragraph 0025).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Yasui (US 20180027844 A1) teaches clear beverages containing fruit flavorings, wherein The amount of each aroma component in the beverage can be measured by a known method such as gas chromatography/mass spectrometry (GC/MS).
Fu (US 20170339985 A1) teaches a method for producing a coffee aroma composition useful for addition to a food or beverage products, wherein volatile aroma compounds are desorbed into the inlet port of a gas chromatograph for separation.
Fraser (US 20170290363 A1) teaches a method of producing food products used to modulate the taste and/or aroma profile of other food products that can be applied to the other food product before or during cooking. Using the food products described herein can provide a particular meaty taste and smell, for example, the taste and smell of beef or bacon, to a non-meat product or to a poultry product.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUSTIN P TAYLOR whose telephone number is (571)272-2652. The examiner can normally be reached M-F 8:30am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUSTIN PARKER TAYLOR/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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