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 .
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Giri et al (“Olfactometric characterization of aroma active compounds in fermented fish paste in comparison with fish sauce, fermented soy paste, and sauce products” Food Research International 43 (2010), pages 1027-1040).
Giri et al (Giri) teaches fish miso with koji, i.e. a fermented seasoning, comprising 2-(methylthio)ethanol in an amount of 0.03g/kg (about 30mg/L) (Introduction paragraph 1 and Tables 1 and 3).
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.
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.
Claim 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Giri et al (“Olfactometric characterization of aroma active compounds in fermented fish paste in comparison with fish sauce, fermented soy paste, and sauce products”) in view of Wicket et al (US 2017/0143022)
Giri teaches fish miso with koji, i.e. a fermented seasoning, comprising 2-(methylthio)ethanol in an amount of 0.03g/kg (about 30mg/L) (Introduction paragraph 1 and Tables 1 and 3).
Giri is silent to the seasoning as comprising 600-4,000mg/L of malic acid as recited in claim 2, or 0.04-1mg/L phenethyl acetate as recited in claims 3 and 5, or to the method of producing the seasoning as comprising adding 2-(methylthio)ethanol to a base fermented seasoning as recited in claim 4.
Wicker et al (Wicker) teaches compositions containing flavor or taste modifiers can be added to foods, including fermented seasonings such as soy and other fermented sauces, for enhanced taste (abstract and paragraphs 61 and 79). Wicket reaches that the flavorings include phenethyl acetate and 2-(methylthio)ethanol (paragraph 43, page 25 column 1 and page 29 column 2). Wicket teaches that the flavorings including sour flavors including malic acid (paragraph 49).
Regarding the seasoning as comprising 600-4,000mg/L of malic acid as recited in claim 2, it would have been obvious for the fermented seasoning of Giri to further comprise malic acid to impart a sour flavor in view of Wicker. The claimed range is considered obvious as one of ordinary skill in the art would have been motivated to adjust the amount of the malic acid based on the desired flavor intensity.
Regarding the seasoning as comprising 0.04-1mg/L phenethyl acetate as recited in claims 3 and 5, it would have been obvious for the fermented seasoning of Giri to further comprise phenethyl acetate to impart flavoring in view of Wicker. The claimed range is considered obvious as one of ordinary skill in the art would have been motivated to adjust the amount of the phenethyl acetate based on the desired flavor intensity.
Regarding the method of producing the seasoning as comprising adding 2-(methylthio)ethanol to a base fermented seasoning as recited in claim 4, as discussed above, Giri teaches of seasoning comprising 2-(methylthio)ethanol. Giri is silent as to how the component is incorporated in the product. As Wicket teaches that 2-(methylthio)ethanol was a known flavoring able to be added to fermented seasonings, it would have been obvious for the product of Giri to include the addition of 2-(methylthio)ethanol to the base fermented seasoning in order to control and/or increase the flavor from the 2-(methylthio)ethanol in view of Wicker.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Giri et al (“Olfactometric characterization of aroma active compounds in fermented fish paste in comparison with fish sauce, fermented soy paste, and sauce products”) in view of Takeshi et al (JPH02200161 machine translation). It is noted that this is an alternative rejection to the one presented above.
Giri teaches fish miso with koji, i.e. a fermented seasoning, comprising 2-(methylthio)ethanol in an amount of 0.03g/kg (about 30mg/L) (Introduction paragraph 1 and Tables 1 and 3).
Giri is silent to the seasoning as comprising 0.04-1mg/L phenethyl acetate as recited in claim 3.
Takeshi et al (Takeshi) improving the aroma of soy sauce, i.e. fermented seasoning, by adding 0.1-10ppm (about 0.1-10mg/L) of one or more esters selected from the group including beta-phenethyl acetate (abstract).
Regarding the seasoning as comprising 0.04-1mg/L phenethyl acetate as recited in claim 3, it would have been obvious for the fermented seasoning of Giri to comprise about 0.1-10mg/L phenethyl acetate for improved aroma in view of Takeshi.
The prior art discloses an overlapping range. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Giri et al (“Olfactometric characterization of aroma active compounds in fermented fish paste in comparison with fish sauce, fermented soy paste, and sauce products”) in view of Wicket et al (US 2017/0143022), further in view of Takeshi et al (JPH02200161 machine translation). It is noted that this is an alternative rejection to the one presented above.
As discussed above, it would have been obvious for the fermented seasoning of Giri to comprise malic acid.
Giri is silent to the seasoning as comprising 0.04-1mg/L phenethyl acetate as recited in claim 5.
Takeshi et al (Takeshi) improving the aroma of soy sauce, i.e. fermented seasoning, by adding 0.1-10ppm (about 0.1-10mg/L) of one or more esters selected from the group including beta-phenethyl acetate (abstract).
Regarding the seasoning as comprising 0.04-1mg/L phenethyl acetate as recited in claim 5, it would have been obvious for the fermented seasoning of Giri to comprise about 0.1-10mg/L phenethyl acetate for improved aroma in view of Takeshi.
The prior art discloses an overlapping range. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 4,888,190 teaches of sampling fermented seasonings and then adjusting the components to target values (abstract and Figure 1).
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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