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 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 1-8, 10-19 and 21-24 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.
The phrase “method … thereof” in claim 1, lines 1-5 is vague and indefinite as it is unclear how anything can be prevented or inhibited as no specific product is set forth as having anything added to.
Claim 3 recites the limitation "the Lamiaceae" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the Lamiaceae extract".
The phrase “method … thereof” in claim 5, lines 1-6 is vague and indefinite as it is unclear how anything can be prevented or inhibited as no specific product is set forth as having anything added to.
Claim 17 recites the limitation "the final product" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final product".
Claim 18 recites the limitation "the final product" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final product".
Claim 19 recites the limitation "the final product" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final product".
Claim 19 recites the limitation "the final weight" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final weight".
Claim 19 recites the limitation "the final weight" in line 7. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final weight".
Claim 19 recites the limitation "the final weight" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final weight".
Claim 23 recites the limitation "the final product" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "final product".
Clarification and/or correction 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-8, 10, 21-24 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Birtic et al. (US 2018/0249725).
Regarding claims 1 and 24, Birtic (‘725) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding to the product at least a Lamiaceae extract and/or ascorbic acid and/or acetic acid and any mixtures thereof (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 2, Birtic (‘725) teaches wherein the at least one Lamiaceae extract and added separately to the product (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 3, Birtic (‘725) teaches wherein the Lamiaceae is selected from Rosmarinus (See para. 29.).
Regarding claim 4, Birtic (‘725) teaches wherein the Lamiaceae extract comprises at least one phenolic diterpene (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 5, Birtic (‘725) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding to the product phenolic diterpene (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 6, Birtic (‘725) teaches wherein the at least one phenolic diterpene is added separately to the product (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 7, Birtic (‘725) teaches wherein the phenolic diterpene is obtained or is obtainable from a Lamiaceae plant (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 8, Birtic (‘725) teaches wherein the Lamiaceae plant is Rosmarinus (See para. 29.).
Regarding claim 10, Birtic (‘725) inherently teaches wherein the at least one phenolic diterpene is selected from carnosic acid and/or carnosol (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51, where carnosic acid and/or carnosol are in the Lamiaceae extract containing phenolic diterpene.).
Regarding claim 21, Birtic (‘725) teaches wherein the product is a food or a beverage (See Abs., paras. 9, 30-37, 43, 266, 273.).
Regarding claim 22, Birtic (‘725) teaches further comprising a step of packaging said product (See Abs., paras. 9, 30-37, 43, 266, 273.).
Regarding claim 23, Birtic (‘725) teaches wherein the final product is essentially free of nitrite and nitrate (See Abs., paras. 29-43, 52-55, claims 39, 43, 49, 51 and 51.).
Claim(s) 1-8, 10, 13, 21-24 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Sandra et al. (US 2016/0000134).
Regarding claims 1 and 24, Sandra (‘134) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding to the product at least a Lamiaceae extract and/or acetic acid (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7, 12, 13.).
Regarding claim 2, Sandra (‘134) teaches wherein the at least one Lamiaceae extract and/or acetic acid is added separately to the product (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7, 12, 13.).
Regarding claim 3, Sandra (‘134) teaches wherein the Lamiaceae is selected from Rosmarinus (See paras. 29-32.).
Regarding claim 4, Sandra (‘134) teaches wherein the Lamiaceae extract comprises at least one phenolic diterpene (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7, 12, 13, from rosemary extract.).
Regarding claim 5, Sandra (‘134) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding to the product at least one phenolic diterpene and/or acetic acid (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7, 12, 13.).
Regarding claim 6, Sandra (‘134) teaches wherein the at least one phenolic diterpene and/or acetic acid is added to the product separately to the product (See Abs., paras. 16, 17, 24, 29, 30, 109, 110, claims 1, 4, 7 and 12, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 7, Sandra (‘134) teaches wherein the phenolic diterpene is obtained or is obtainable from a Lamiaceae plant (See Abs., paras. 16, 17, 24, 29, 30, 109, 110, claims 1-7 and 12, Lamiaceae extract in the form of phenolic diterpene.).
Regarding claim 8, Sandra (‘134) teaches wherein the Lamiaceae plant is Rosmarinus (See para. 29.).
Regarding claim 10, Sandra (‘134) inherently teaches wherein the at least one phenolic diterpene is selected from carnosic acid and/or carnosol (See Abs., paras. 16, 17, 24, 29, 30, 109, 110, claims 1-7 and 12, where carnosic acid and/or carnosol are in the Lamiaceae extract containing phenolic diterpene.).
Regarding claim 13, Sandra (‘134) teaches wherein the acetic acid is buffered or un-buffered vinegar (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7, 12, 13.).
Regarding claim 21, Sandra (‘134) teaches wherein the product is a food or a beverage (See Abs., paras. 2, 29-37.).
Regarding claim 22, Sandra (‘134) teaches further comprising a step of packaging said product (See paras. 2, 6, 112, 133.).
Regarding claim 23, Birtic (‘725) teaches wherein the final product is essentially free of nitrite and nitrate (See Abs., paras. 16, 17, 23-30, 109, 110, claims 1-7 and 12.).
Claim(s) 1, 5, 12, 21, 23, 24 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Choi et al. (KR 20200082041).
Regarding claims 1 and 24, Choi (‘041) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding ascorbic acid (See claims 1-12.).
Regarding claim 5, Choi (‘041) teaches a method of preventing and/or inhibiting the outgrowth of Clostridium, of preventing and/or inhibiting the sporulation of Clostridium, of preventing and/or inhibiting the germination of spores of Clostridium and/or of preventing and/or inhibiting the production of Clostridium toxins in a product, comprising adding to the product ascorbic acid (See claims 1-12.).
Regarding claim 12, Choi (‘041) teaches wherein the ascorbic acid is from a natural source, synthetic origin (See claims 1-12.).
Regarding claim 21, Choi (‘041) teaches wherein the product is a food or a beverage (See Abs., paras. 2, 29-37.).
Regarding claim 23, Choi (‘041) teaches wherein the final product is essentially free of nitrite and nitrate (See claims 1-12.).
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) 11 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Birtic et al. (US 2018/0249725).
Regarding claims 11 and 19, Birtic (‘725) teaches the method discussed above, however, fails to expressly disclose the claimed amounts phenolic diterpene.
Applicant does not set forth any non-obvious unexpected results for providing one amount over another. The claimed ranges are broad and included virtually every conceivable amount. It would have been foreseeable and obvious prior to the earliest effective filing date to include more or less phenolic diterpene based on the food that is being treated and the end use requirements. It would have been within the skill set of a person having ordinary skill in the art prior to the earliest effective filing date to select an amount based on application and end use requirements to provide a food that is safe and suitable for consumption.
Claim(s) 11 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sandra et al. (US 2016/0000134).
Regarding claims 11 and 19, Birtic (‘725) teaches the method discussed above, however, fails to expressly disclose the claimed amounts phenolic diterpene.
Applicant does not set forth any non-obvious unexpected results for providing one amount over another. The claimed ranges are broad and included virtually every conceivable amount. It would have been foreseeable and obvious prior to the earliest effective filing date to include more or less phenolic diterpene based on the food that is being treated and the end use requirements. It would have been within the skill set of a person having ordinary skill in the art prior to the earliest effective filing date to select an amount based on application and end use requirements to provide a food that is safe and suitable for consumption.
Conclusion
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 July 8, 2026
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