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 .
DETAILED ACTION
Status of Claims
Claims 1-19 are pending and currently under examination and the subject matter of the present Office Action.
Specification
The disclosure is objected to because of the following informalities: Paragraphs [0040] and [0142] of the specification refer to “Fig. 1” but should state “The Figure” as there is only one figure. Appropriate correction is required. Furthermore, [0049] and [0148] refer to “figures”, but there is only one figure.
Drawings
The drawings are objected to because there is only one figure and the drawing refers to it as Figure 1. However, 37 CFR 1.84(u)(1) indicates when there is only one drawing, it must not be numbered and the abbreviation FIG must not appear. Therefore, the figure must be referred to as The Figure. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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, 14, and 19 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.
Claims 5 and 14 are rejected for indefiniteness. Kangkong is not a commonly known vegetable, and it appears that it is the same as water spinach. One skilled in the art would not know what the difference is between water spinach and kangkong. As such, the metes and bounds of the claims are unclear. Clarification is required.
Claim 19 is indefinite because it recites “physical characterization data of the ingredients comprise functional properties that comprise emulsification properties, stabilization properties, gelling properties, fat-replacement properties, Ayurvedic and/or other holistic properties, physicochemical properties that comprise pH, viscosity, moisture content, density, mechanical properties that comprise adhesive strength, tensile strength, shear resistance, chemical and/or molecular descriptor properties that comprise bioactive/bioavailability properties, molecular structure, phytonutrient properties, sensorial properties that comprise taste, smell, color, texture, mouth feel, and nutritional information that comprises macronutrient/micronutrient properties.” Firstly, some of the listed properties do not fall under “physical characterization” and one skilled in the art would not be motivated, for example, to search for molecular descriptor or bioavailability in a database noted to contain physical characterization data of ingredients. The claim also recites “Ayurvedic and/or other holistic properties”, which is indefinite. The Specification describes Ayurvedic properties which appears to include sweetness [0080]-[0081]. Sweetness is a biological sensory perception rather than an intrinsic physical property of a substance. As such, there is a question on whether Ayurvedic would fall under physical characterization. Furthermore, it is unknown what other holistic properties are being claimed. Therefore, the metes and bounds of the claim is unclear.
Claim Rejections - 35 USC § 103
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 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 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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-17 are rejected under 35 U.S.C. 103(a) as being unpatentable over Lian et al. (CN 114027487 A, cited in the Written Opinion, machine translation from IP.com and Abstract translation from WIPO), hereinafter Lian, and in view of Ohike et al. (US 2019/0208804 A1, cited in the Written Opinion), hereinafter Ohike.
Regarding Claim 1, Lian discloses a natural fruit and vegetable light salt seasoning prepared by combining all-natural materials comprising: a) 2-4 parts of fruit powder, 3-5 parts spice powder, 4-8 parts of mushroom powder, another 1-2 parts of mushroom powder, 0.5-1 part of Pleurotus eryngii, and salt (Abstract; p. 5, s1). Lian expressly teaches the preparation of raw materials comprising 10 parts of composite vegetable powder, 5 parts of yeast extract, 2 parts of fruit powder, 3 parts of spice powder, 3 parts of Chinese herbal medicine extract, 4 parts of mushroom powder, 1 part of mushroom powder, 0.5 part of pleurotus eryngii and 35 parts of salt (p. 7, Example 1). By Examiner’s calculation, the total of all parts is 63.5. As such, the vegetable source amounts to 15.7%, the fruit source is 3.1%, spice at 4.7%, herb at 4.7%, fungal is at 8.7% in Example 1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05.
Regarding the bulb, Lian teaches onion in a weight ratio with raw materials salicornia bigelovii, cabbage, tomato, onion, carrot, white radish, corn and pumpkin at 0.1: 6: 7: 2: 2: 4: 3: 1. However, Lian does not teach the claimed range for the bulb. Lian also does not teach the aquatic plant source and the claimed amount.
Ohike is in the same field of seasoning compositions comprising fruit juice, spice extract, dried then swollen vegetables, inter alia onion and lotus root, in an amount from 5-60% of the condiment (Abstract; Claim 1; [0013], [0028], [0030]). Lotus root renders obvious the aquatic plant feature in Claims 1, 5, and 14. Ohike teaches its liquid composition comprises dried vegetables that are immersed and swollen in seasoning liquid, and prevents the aroma components volatilize, allowing dishes to be sufficiently savored [0005].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Ohike with Lian and add the lotus root, and the onion in the amount taught by Ohike to the seasoning composition to obtain a less volatile seasoning.
In addition, as a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06. In the instant case, both Ohike and Lian teaches seasoning compositions comprising fruit, vegetable, and spices, and are compatible to be used together.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding Claim 2, Lian teaches pineapple (p. 2, 3rd paragraph from bottom; Claim 5).
Regarding Claim 3, Lian teaches shiitake mushroom (Abstract from WIPO). The Examiner noted that the translation from IP.com appears to have omitted the type of mushroom, shiitake, which is present in the translation of Abstract from WIPO (p. 11, Abstract).
Regarding Claims 4 and 6, Lian expressly teaches onion, cabbage and carrots (Examples 1-3).
Regarding Claim 7, Lian teaches ginger powder, mint powder, black pepper powder, coriander seed powder, reading on the spices and herbs claimed (Claim 4).
Regarding Claim 8, Lian does not expressly teach the claimed food products. However, Ohike teaches its seasoning condiments for hot pot, noodles, rice, kamameshi (rice, meat and vegetable dish served in a small pot), grilled meat, steaks etc. [0063]. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to add the teachings of Misaki to Lian and use the seasoning of the prior art as a whole for as seasoning condiments for hot pot soup, meat sauces etc. as intended by Ohike, and as an obvious application of the product of Lian.
Regarding Claim 9, Lian teaches heating the vegetable mixture at 65 ˚C while stirring, but does not teach for how long (Claim 2). Ohike teaches heating the vegetable and liquid seasoning mixture with stirring for a certain time, heat-sterilizing it at 85° C. for 30 seconds, cooling it to 65° C., then filling it into a container, and cooling it to about room temperature [0062].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Ohike with that of Lian and stir the mixture while heating, starting at 30 seconds, and modifying the time as needed. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
The patentable features in Claims 10-17 have been rendered obvious supra.
Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding Claims 18-19, these claims do not recite active method steps. Claim 18, from which Claim 19 depends, recites “wherein physical characterization data associated with ingredients of the plant-only umami flavoring replacement system… is stored in a database, wherein a machine learning model determines a unique combination of ingredients based on the physical characterization data to prepare the plant-only umami flavoring replacement system”. Claim 9, from which both Claims 18 and 19 depend, is drawn to a method of preparing a plant-only umami flavoring replacement system. As such, where one stores and how one uses the data regarding the ingredients of the plant-only umami flavoring replacement system appears to not be germane to the preparation of the umami flavoring replacement system.
Claims 18-19 are rejected under 35 U.S.C. 103(a) as being unpatentable over Lian in view of Ohike, as applied to Claims 1-17 above, and further in view of Malavolta et al. (European Food Research and Technology (2022) 248:2215–2235), hereinafter Malavolta.
For compact prosecution in the event that the features of Claims 18 and 19 are given patentable weight, they are still rendered obvious herein.
Lian is silent on storing physical characterization data associated with ingredients of the plant-only umami flavoring replacement system.
Malavolta relays how taste prediction plays a key role in several fields, and relates the complexity of the taste perception process and the many features which make taste prediction a very complex task (Abstract). Malavolta teaches that machine learning consider and integrate a very large number of variables by analyzing available food-related databases and taste prediction tools (Abstract).
Regarding Claim 18, Malavolta teaches the main taste databases related to food and prediction tools (Tables 1 and 2). Malavolta describes TastesDB as an experimental database comprising chemicals with their respective experimental taste class, retrieved from several scientific publications, and relates how ML-based algorithms have been developed to predict the taste of specific molecules starting from their chemical structure (p. 2220, 2nd and 3rd paragraphs). For instance, Malavolta teaches bitterness prediction accessible tool classifying bitter-sweet molecule using verified dataset based on chemicals that are bitter, non-bitter, sweet, and non-sweet compounds obtained from literature and other databases (p. 2228, 2nd to 4th paragraphs). All these molecules are all considered for model construction and BitterPredict is use to analyze the impact of diverse descriptors (p. 2223). Ultimately, using the different databases trained by machine learning allows prediction of the molecular interactions of tastants and relative taste receptors (p. 2220, 3rd paragraph; p. 2232, last paragraph).
Regarding Claim 19, Malavolta teaches SuperSweet contains more than 8000 artificial and natural sweet compounds, wherein the dataset includes the number of calories, the physicochemical properties, the glycemic index, the origin etc. (p. 2218, 1st paragraph). For bitterness, the dataset includes informative physicochemical properties (PCPs) of individual amino acids, i.e., their direct involvement in fundamental biological reactions and pathways (p. 2225, L. Col., 5th paragraph).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Malavolta with that of Lian and store the physicochemical characteristics of ingredients in databases to better enable successful taste prediction.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
