DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-4, and 30 of the instant application are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, and 9 of U.S. Patent No. 10/752,871. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims 1-4, and 30 and claims 1, 3, and 9 of U.S. Patent No. 10/752,871 disclose very similar claim limitations.
The instant claims teach powdered vinegar having 3.5% to 20% free vinegar derived acid; 40-92% neutralized vinegar derived acid and 4 to 20% water; wherein the free vinegar acid and neutralized vinegar acid are present at a weight ratio of 1:30 to 1:5. comprising 3.5 to 15 wt.% free vinegar-derived acid (claim 2); comprising 3.8 to 20 wt.% free vinegar-derived acid (claim 3); comprising 3.8 to 15 wt.% free vinegar-derived acid (claim 4); as U.S. Patent No. 10/752,871 recites at least 3.5% free vinegar derived acid; 40-92% neutralized vinegar derived acid and 9 to 35% water; wherein the free vinegar acid and neutralized vinegar acid are present at a weight ratio of 1:30 to 1:5 (claim 3) at least 3.5% free acid and a water content of 6 to 35% (claim 9).
Claims 1-20, and 30 of the instant application are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, and 10 of U.S. Patent No. 11/466,238. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims 1-20, and 30 and claims 1-5, and 10 of U.S. Patent No. 11/466,238 disclose very similar claim limitations.
The instant claims 1, 13 and 16-19 teach powdered vinegar having 3.5% to 20% free vinegar derived acid; 40-92% neutralized vinegar derived acid and 4 to 20% water; wherein the free vinegar acid and neutralized vinegar acid are present at a weight ratio of 1:30 to 1:5. comprising 3.5 to 15 wt.% free vinegar-derived acid (claim 2); comprising 3.8 to 20 wt.% free vinegar-derived acid (claim 3); comprising 3.8 to 15 wt.% free vinegar-derived acid (claim 4); wherein Na+ represents at least 90 mol.% of cations of salts in the powdered vinegar (claim 13); wherein at least some of the water is present in hydrated salts (claim 16); as claims 1 and 4 of U.S. Patent No. U.S. Patent No. 11/466,238 recites wherein a free flowing powdered vinegar, comprising free vinegar derived acid and neutralized vinegar derived acid in an amount of 80-100% of the dry matter that is comprised in the powdered vinegar, wherein more than 90% of the free vinegar derived acid and neutralized vinegar derived acid is acetic acid in free and neutralized form, wherein Na.sup.+ represents at least 90 mol. % of the cations of salts that are contained in the powdered vinegar, wherein the powdered vinegar has a water content of 9-15 wt. %, at least a fraction of the water being present as a component of hydrated salt, wherein free vinegar derived acid and neutralized vinegar derived acid are contained in the powdered vinegar in a weight ratio of not more than 1:8, respectively, and wherein the content of free vinegar derived acid is 3.5-20 wt. %.
Claim 2 of the instant application 18/949,599 recites, wherein the content of free vinegar derived acid is within the range of 3.5-15 wt% as claim 2 of U.S. Patent No. 11/466,238 recites free vinegar derived acid is within the range of 3.8-20 wt%.
Claim 3 of the instant application 18/949,599 recites, wherein the content of free vinegar derived acid is within the range of 3.8-20 wt% as claims 2 and 3 of U.S. Patent No. 11/466,238 recites free vinegar derived acid is within the range of 3.8-20 wt%, 4.0-15%.
Claim 4 of the instant application 18/949,599 recites, wherein the content of free vinegar derived acid is within the range of 3.8-15 wt% as claims 2 and 3 of U.S. Patent No. 11/466,238 recites free vinegar derived acid is within the range of 3.8-20 wt%, 4.0-15%.
Claims 5-6 of the instant application 18/949,599 recites, wherein the powdered vinegar contains a total amount of neutralized vinegar derived acid in the range of 50-90 wt.% by weight of dry matter; wherein the powdered vinegar contains a total amount of neutralized vinegar derived acid in the range of 50-85 wt.% by weight of dry matter; as claim 4 of U.S. Patent No. 11/466,238 wherein the powdered vinegar contains a total amount of neutralized vinegar derived acid in the range of 40-92 wt.% by weight of dry matter
Claims 7-8 of the instant application 18/949,599 recites, comprising 4 to 15% and 9 to 15% ; as claim 1 of U.S. Patent No. 11/466,238 wherein the powdered vinegar contains a total amount of water content 9 to 15%.
Claims 9-10 of the instant application 18/949,599 recites, wherein the free vinegar-derived acid and neutralized vinegar-derived acid are present at a weight ratio of 1:27 to 1:6., wherein the free vinegar-derived acid and neutralized vinegar-derived acid are present at a weight ratio of 1:25 to 1:8; as claim 1 of U.S. Patent No. 11/466,238 wherein the free vinegar-derived acid and neutralized vinegar-derived acid are present at a weight ratio of not more than 1:8.
Claims 11-12 of the instant application 18/949,599 recites, wherein a total of the free vinegar-derived acid and the neutralized vinegar-derived acid represents 50% to 100% of dry matter in the powdered vinegar; wherein a total of the free vinegar-derived acid and the neutralized vinegar-derived acid represents 50% to 80% of dry matter in the powdered vinegar; as claim 1 of U.S. Patent No. 11/466,238 recites wherein the powdered vinegar contains a total amount of water content 9 to 15%.
Claims 14 and 15 of the instant application 18/949,599 recites, wherein the powdered vinegar has a volume weighted average diameter of 50-400 um, average diameter of 150-350 um; as claims 5-7 of U.S. Patent No. 11/466,238 recites wherein the powdered vinegar has a volume weighted average diameter of 50-600 um, wherein the powdered vinegar has a volume weighted average diameter of 100-500 um ; average diameter of 150-350 um.
Claims 20, 21, 22, 24, 25, 26, 27, 28, and 29 of the instant application 18/949,599 recites, the method comprising: combining a liquid vinegar with vinegar-derived particles comprising neutralized vinegar-derived acid and water; as claim 10 of U.S. Patent No. 11/466,238 recites A process of producing a powdered vinegar according to claim 1, comprising: (a) adjusting the pH of a first liquid vinegar to a value within the range of 5.5-7.0 to obtain a neutralized vinegar; (b) drying the neutralized vinegar to produce vinegar derived particles having a water content of less than 5 wt. %; (c) combining a second liquid vinegar with the vinegar derived particles in a weight ratio of 1:15 to 1:1, wherein, the vinegar derived particles are agitated and the temperature of the vinegar derived particles and second liquid vinegar is controlled to stay below 54° C.
Claim 23 of the instant application 18/949,599 recites, wherein the liquid vinegar comprises 20-55% (w/v) free acid; as claims 11 and 13 of U.S. Patent No. 11/466,238 recites wherein the liquid vinegar comprises 20-55% (w/v) free acid.
Claim 25 of the instant application 18/949,599 recites, wherein free vinegar-derived acid and the neutralized vinegar-derived acid are present in the powdered vinegar in a weight ratio of 1:30 to 1:5.; as claims 16 of U.S. Patent No. 11/466,238 recites wherein free vinegar-derived acid and the neutralized vinegar-derived acid are present in the powdered vinegar in a weight ratio of not more than 1:8.
Claims 20-30 of the instant application are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 2 of U.S. Patent No. 12/252,674. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims 20-30 and claims 1 and 2 of U.S. Patent No. 12/252,674 disclose very similar claim limitations.
Claims 20-30 of the instant application 18/949,599 recites, the method comprising: combining a liquid vinegar with vinegar-derived particles comprising neutralized vinegar-derived acid and water; as claims 1 and 2 of U.S. Patent No. 12/252,674 recites A process of producing a free flowing powdered vinegar comprising free vinegar derived acid and neutralized vinegar derived acid, wherein more than 90% of the free vinegar derived acid and neutralized vinegar derived acid is acetic acid in free and neutralized form, wherein Na+ represents at least 50 mol. % of the cations of salts that are contained in the powdered vinegar, wherein the powdered vinegar has a water content of 9-15 wt. %, at least a fraction of the water being present as a component of hydrated salt, wherein free vinegar derived acid and neutralized vinegar derived acid are contained in the powdered vinegar in a weight ratio of not more than 1:8, the process comprising: (a) adjusting the pH of a first liquid vinegar to a value within the range of 5.5-7.0 to obtain a neutralized vinegar; (b) drying the neutralized vinegar to produce vinegar derived particles having a water content of less than 5 wt. %; and (c) combining a second liquid vinegar with the vinegar derived particles in a weight ratio of 1:15 to 1:1, wherein the vinegar derived particles are agitated and the temperature of the vinegar derived particles and second liquid vinegar is controlled to stay below 54° C; wherein the first liquid vinegar contains 10-40% (w/v) free acid (claim 2).
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 (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.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-13, 16-22, 24, and 26-30 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ludwig (USPGPub 2010/0310738 A1) in view of Harino et al. (JPS60164475- English Translation provided) and Knikker et al. (USPGPub 2008/03055228 A1).
Regarding Claims 1-10, 17-20, and 29: Ludwig teaches a vinegar derived food additive in powder form and a method of making said powdered vinegar ([0053]-[[0054]). The powdered vinegar, which can be used as an antimicrobial food additive, is produced by treating vinegar (first liquid vinegar) with a basic neutralizing agent to produce a partially-neutralized vinegar with a pH of below about 7.0 [0056]. The neutralized vinegar is dried, such as by evaporation and heat, to produce an acetate [0056]. Next, vinegar (second liquid vinegar) can be added back to the acetate (vinegar derived particles) of the previous step to produce a vinegar-acetate dry powder having a pH of about 4.5 to about 7.0 ([0056] and [0062]). Ludwig also teaches a method of adding the resulting powdered vinegar to meat products [0065].
While Ludwig teaches the basic steps of forming a powdered vinegar, wherein a neutralized vinegar is dried and then additional liquid vinegar is combined with it, Ludwig fails to expressly disclose drying the neutralized vinegar to produce vinegar derived particles having a water content of less than 5 wt%. Ludwig also fails to disclose the weight ratio of the liquid vinegar to the vinegar derived particles as they are combined to form the powdered vinegar.
Harino discloses a method of manufacturing brewed vinegar powder comprising the following steps: adding sodium hydroxide to brewed vinegar for neutralization to pH 7.0-8.4 in order to form a brewed vinegar sodium salt solution; concentrating the brewed vinegar sodium salt solution; spray drying the solution using hot wind to obtain a vinegar sodium salt powder with a water content of 6%; adding a liquid brewed vinegar to the brewed vinegar sodium salt powder while stirring the powder; and wherein after the completion of the reaction the resulting reaction product is pulverized to yield the brewed vinegar powder (page 3, paragraph 3; page 4, paragraph 2; page 6, paragraphs 2-3; page 9, paragraph 1). In addition, Harino discloses a specific embodiment of producing the powdered vinegar product wherein after the pH of the first liquid vinegar was adjusted, it was sprayed and dried to form rice vinegar sodium salt powder with 4% water (page 9, Application Example, paragraphs 3 and 4).
Both Ludwig and Harino disclose methods of making powdered vinegar products which involve the steps of: neutralizing or at least partially neutralizing a first liquid vinegar, drying said vinegar by evaporation and heat to form a powder, and combining a second liquid vinegar with the vinegar derived particles to form a powder. Regarding the amount of the second liquid vinegar which is combined with the vinegar derived particles, Harino discloses an amount of 6-18% as recited above which corresponds to the claimed weight ratio of 1:15 to 1:1. Given that both Ludwig and Harino et al. teach methods of making powdered vinegar utilizing the steps recited above, it would have been obvious to one of ordinary skill in the art to add 6-18% of the second or additional liquid vinegar to the dried vinegar particles of Ludwig, because Harino et al. demonstrate that these were known suitable concentrations for producing powdered vinegar derived from combining neutralized vinegar particles and liquid vinegar at the time of invention. Regarding the water content of the dried vinegar particles of Ludwig, it would have been obvious to one of ordinary skill in the art to dry the neutralized first vinegar liquid of Ludwig to the water content as disclosed by Harino et al., because vinegar derived particles having a water content of less than 5 wt% were found to be suitable for combining with a second liquid vinegar in order to form a desirable powdered vinegar product.
Regarding Claim 11, 12, 16: Ludwig as modified by Harino and Knikker disclose a method of producing a powdered vinegar as recited above. However, Ludwig fails to disclose a powdered vinegar wherein the free and neutralized vinegar derived acids together represent at least 50 wt% of the dry matter of the powdered vinegar.
Harino et al. teach the method as recited above, wherein the neutralized vinegar is concentrated under pressure to 30-50% or so of the initial liquid amount to prepare the concentrated brewed vinegar sodium salt solution (page 4, paragraph 2). Furthermore, Harino et al. disclose that the rice vinegar that is added typically has an acidity of 4-6% (page 10, Second Process, paragraph). When combining the free and neutralized vinegar derived acids as disclosed by Harino et al., one of ordinary skill can arrive at powdered vinegars compositions wherein the dry matter content of the vinegar derived acids as recited above represent at least 50 wt%. Therefore, it would have been obvious to one of ordinary skill in the art at the time of invention to apply the concentration techniques and general principles as taught by Harino et al. to the process of Ludwig in order to obtain a powder vinegar with a desirable dry matter content. Furthermore, keeping in mind the general state of the art with respect to forming powders, one of ordinary skill would have been motivated to use a concentrated vinegar composition (i.e. at least 50% wt of dry matter) so that there is less water or moisture that needs to be removed.
Regarding Claim 13: Ludwig teaches the vinegar powder as recited above with respect to claim 1. As previously disclosed, the vinegar powder can be produced from vinegar that has been neutralized with a basic neutralizing agent such as sodium carbonate or sodium bicarbonate in order to obtain sodium acetate ([0056]-[0060]). Given that Ludwig teaches producing a sodium acetate, which is subsequently combined with vinegar, the resultant vinegar-acetate powder would have been expected to have at least 90 mol% of the cations be Na+.
Regarding Claim 11, 12, 16: Ludwig as modified by Harino and Knikker disclose a method of producing a powdered vinegar as recited above. However, Ludwig fails to disclose a powdered vinegar wherein the free and neutralized vinegar derived acids together represent at least 50 wt% of the dry matter of the powdered vinegar.
Harino et al. teach the method as recited above, wherein the neutralized vinegar is concentrated under pressure to 30-50% or so of the initial liquid amount to prepare the concentrated brewed vinegar sodium salt solution (page 4, paragraph 2). Furthermore, Harino et al. disclose that the rice vinegar that is added typically has an acidity of 4-6% (page 10, Second Process, paragraph). When combining the free and neutralized vinegar derived acids as disclosed by Harino et al., one of ordinary skill can arrive at powdered vinegars compositions wherein the dry matter content of the vinegar derived acids as recited above represent at least 50 wt%. Therefore, it would have been obvious to one of ordinary skill in the art at the time of invention to apply the concentration techniques and general principles as taught by Harino et al. to the process of Ludwig in order to obtain a powder vinegar with a desirable dry matter content. Furthermore, keeping in mind the general state of the art with respect to forming powders, one of ordinary skill would have been motivated to use a concentrated vinegar composition (i.e. at least 50% wt of dry matter) so that there is less water or moisture that needs to be removed.
Regarding Claim 21-25: Ludwig as modified by Harino and Knikker disclose all that has been recited above including combining the vinegar derived particles with the liquid vinegar in an amount of between 6-18%. Regarding the weight ratio of the free derived acid and neutralized vinegar derived acid in the powdered vinegar, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II). Given that Ludwig as modified by Harino et al. and Knikker et al. teach all that has been recited above regarding mixing free and neutralized vinegar derived acids to form a powdered vinegar, it would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize the concentrations of the free and neutralized vinegar derived acids through routine experimentation, in order to obtain a powdered vinegar with a desirable pH and desirable taste properties.
Regarding Claim 26: Ludwig as modified by Harino and Knikker disclose a method of producing a powdered vinegar as recited above, wherein the water content of the vinegar derived particles was 4%. However, Ludwig as modified by Harino et al. teach that when powdered vinegar is processed using the concentrations and conditions as recited above the resulting reaction product (powdered vinegar) has a water content of 2.5%. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II). Given that Ludwig teaches a powdered vinegar as recited above that has to be dried in order to obtain the final product, it would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize the concentration of water within the powder composition through routine experimentation such as by altering drying conditions, in order to obtain a powdered vinegar with desirable texture, taste, and consistency properties which is suitable for use as a food additive.
Regarding Claim 27: Ludwig as modified by Harino and Knikker teach the process of producing a powdered vinegar as recited above. As previously recited, Ludwig teach an initial step of adjusting the first liquid vinegar to a pH of below about 7. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). (MPEP 2144.05 I)
Regarding Claim 28: Ludwig is also silent to wherein the temperature of the vinegar derived particles and second liquid vinegar remains below 54º C.
However, Knikker discloses a method of treating vinegar to form neutralized vinegar with a pH of about 6 to 8 which can be used as an antibacterial agent in the meat industry ([0008] and [0014]). Knikker disclose what is already and generally known in the art which is that vinegar comprises acetic acid [0001]. The process involves increasing the pH of vinegar with a base, such as sodium hydroxide, to at least 6 ([0010] and [0013]). Next, Knikker discloses an evaporation process, wherein vinegar is preferably heated to 40-90 º C, which is low enough to prevent deterioration of vinegar [0014]. The evaporation process can be supported by stirring the vinegar [0014]. Next, in order to bring the vinegar to an acidic pH, if desired, acetic acid (component of vinegar) may be added to the vinegar. The step of adding the acetic acid (component of vinegar) is performed after cooling the vinegar to about room temperature, if elevated temperatures were used during the standing and/or evaporation [0014].
Both Ludwig and Knikker teach methods of processing vinegar that can be used as antimicrobial food additives within the meat industry, wherein the methods involve mixing liquid vinegar with a base and using evaporation techniques under heated conditions. Furthermore, both references teach a step of adding an additional composition comprising acetic acid to the vinegar which has undergone evaporation and heating. Moreover, given that Ludwig in view of Knikker et al. teach mixing cooled vinegar particles with a vinegar (that is not specified as being heated) at room temperature, one of ordinary skill in the art would have expected the temperature of the mixture to remain around room temperature (below 54 º C) or in a cooled state.
Regarding Claim 30: Ludwig discloses as discussed above in claim 20, which is used as a vinegar-derived food additive [0058]. For instance, Ludwig teaches a method of processing meat by contacting the meat with a mixture of brine solution and the vinegar- derived food additive (powder) (abstract; [0065]; claim 1). Ludwig is not necessarily limited by the product of claim 1, as claim 24 is an independent claim claiming a method of producing a foodstuff or beverage, Ludwig’s disclosure of a powdered vinegar renders the claim obvious.
Claims 14 and 15 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ludwig (US 2010/0310738 A1), Harino et al. (JPS60164475- English Translation provided) and Knikker et al. (USPGPub 2008/03055228 A1) as applied to claim 1 above, in view of Endo et al. (JP2012044907 A- English Translation Provided) as evidenced by “Mesh to Micron Conversion Chart”.
Regarding Claims 14 and 15: Ludwig as modified by Harino et al. and Knikker et al. teach a method of producing a powdered vinegar as recited above. However, the references fail to teach a powdered vinegar, wherein the vinegar derived particles have a volume weighted average diameter of 50-500 micron.
Endo et al. teach a method of producing a vinegar powder wherein after the powder is dried, pulverization in the form of milling is carried out to form a powder shape in the size of 80 mesh (abstract, [0012].
Furthermore, the “Mesh to Micron Conversion Chart” shows that 80 mesh corresponds to 177 microns.
Both Ludwig and Endo et al. teach a method of producing vinegar powder. It would have been obvious to one of ordinary skill in the art at the time the invention was made pulverize the vinegar particles to a size as disclosed by Endo et al. which fall within the claimed range. This is because Endo et al. teach that this was already known as a desirable size range for powdered vinegar particles at the time of invention.
Claims 23 and 25 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ludwig (US 2010/0310738 A1), Harino et al. (JPS60164475- English Translation provided) and Knikker et al. (USPGPub 2008/03055228 A1) as applied to claim 20 above, in view of Noznick et al. (USPN 3,445,244).
Regarding Claims 23 and 25: Ludwig teaches all that has been recited above regarding a method of making a powdered vinegar. However, Ludwig fails to expressly disclose the concentrations of free acid in the first liquid vinegar as well as the second liquid vinegar.
Noznick discloses a method of forming spray dried vinegar in the form of a powder (column 1, lines 17-21). The vinegar used within the composition is preferably 200-400 grain vinegar (i.e. 20-40%) (column 1, lines 49-51). Noznick et al. further disclose that it is not economically feasible to use vinegar below 60 grain because of the large amount of water which must be removed (column 1, lines 51-53).
Both Ludwig and Noznick et al. teach methods of making powdered vinegar compositions. It would have been obvious to one of ordinary skill in the art at the time the invention was made to use the concentrations of vinegar as disclosed by Noznick et al., as the first and second liquid vinegars in the process of Ludwig, because Noznick et al. teach that vinegars with the amount of acetic acid as recited above were known to be suitable for making powdered vinegar compositions. Furthermore, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). (MPEP 2144.05 I)
Conclusion
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/Felicia C Turner/ Primary Examiner, Art Unit 1793
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