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 1-4, 8-10 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 1 and 10 recite a step wherein a suspension of Lactobacillus is inoculated into a mixture in a “sealed, closed container”. It is unclear how the suspension maybe added to a container that is “sealed [and] closed”.
Claims 2-4, 8-9 depend from independent Claim 1 and are therefore also rejected.
For the purposes of examination, the limitation is interpreted as the container is sealed and closed after the addition of Lactobacillus.
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.
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, 2, 4, 8, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Etchells (US 3932674) in view of Liao (CN 108048342 A, reference is made to the provided machine translation).
Regarding Claims 1, 2, 4, and 8, Etchells teaches a method for a lactic acid fermented food (Column 2, Line 53). The method comprises mixing cucumbers (Column 2, Line 62) with brine (which is a salt solution, Column 3, Line 68), subsequently mixing the vegetables with an acid (such as acetic acid, Column 4, Line 43) to a pH of 2.7-3.2 (Column 4, Line 34), and fermenting with a Lactobacillus culture such as Lactobacillus plantarum (Column 3, Line 16).
Etchells teaches the addition of 6 pounds of salt per 100 pounds of cucumbers, which is 6% by mass of the “food raw materials” (Column 8, Line 25).
Etchells teaches the addition of salt in two steps (Column 8, Lines 28-30), with an intermediate acidification step (Column 8, Line 5) and therefore does not specifically teach that the food raw materials are mixed with salt at 6% and then subsequently mixed with acid.
However, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Etchells teaches that acetic acid is added at a rate of 6 mL per gallon of cucumbers and brine (Column 8, Line 23-24). Etchells teaches that the cucumbers alone have an approximate density of 50 lbs/bushel, which is 5.3 lbs/gallon (Column 7, Line 57). Etchells therefore teaches that a gallon of cucumbers and brine contains approximately 5.3 lbs (or 2404 grams) of cucumbers. Note that acetic acid has an approximate density of 1.05 g/mL. Additionally, note that adding water (or brine) to cucumbers does not change the density of cucumbers. Therefore, Etchells teaches the addition of 6.3 grams acetic acid to 2404 grams of cucumbers, which is 0.2% of acid, which touches the claimed range.
Etchells teaches that a viable culture is added after salt and acid (Column 5, Lines 16-17), which meets the limitation of inoculation into the “second mixture” (Column 5, Lines 33-34).
Etchells teaches that the initial inoculation strength is 1-10 billion cells per gallon (Column 5, Line 38), which 5.42-6.42 log CFU/mL, which lies within the claimed range. Etchells does not discuss the concentration of Lactobacillus after fermentation. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the property of Lactobacillus concentration as claimed.
Etchells teaches sanitizing of the vegetables prior to fermentation to prevent growth of undesired microorganisms (Column 4, Lines 26-29), but does not teach a high pressure treatment of an inoculated mixture prior to fermentation or the specific strain used to inoculate the food.
Liao teaches a probiotic comprising a Lactobacillus plantarum strain (GMC No. 14398) or a Lactobacillus curvatus strain (GMC No. 14397) intended for fermenting food (Abstract). Liao teaches that the strain is added to food to obtain a fermented food (Abstract). The food is inoculated with the probiotic and subsequently subjected to high pressure sterilization (Page 3, Paragraph 5) at 250-600 MPA (Page 2, Step 3).
Liao does not specifically teach a length of pressurization for the inoculated food. However, Liao teaches that teaches that the step of screening for a high-pressure strain is performed for 1-60 minutes (Page 2, Step 3) at 50-600 MPa, and such process conditions are sufficient to reduce survival of non-pressure acclimated organisms to .001-.01%. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the process conditions taught by Liao for the screening for the step of pressure-sterilizing the inoculated food. One would have been motivated to make such a modification since Liao teaches that these conditions are effective at reducing organism populations.
Additionally, note that it would have been obvious to perform high pressure treatment on a container that was sealed and closed, since a sealed volume is required to raise pressures above ambient pressures.
Liao teaches that the method produces a high-quality fermented food that is safe and nutritious (Page 3, Paragraph 8).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the method of Etchells to include the probiotic strains of Liao and the method steps of inoculation and subsequent pressure sterilization as claimed. One would have been motivated to make such a modification to create a high quality fermented food that is safe and nutritious.
Regarding Claim 9, Etchells teaches fermentation for 7-12 days (Column 2, Line 66), which overlaps and renders obvious the claimed range. Etchells teaches that the fermentation is in a covered tank (Column 7, Example 1), which is interpreted to meet the limitation of a fermentation performed in a closed container and protected from light.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Etchells in view of Liao as applied to Claim 1, above, and further in view of Virginia Cooperative Extension (https://www.pubs.ext.vt.edu/content/dam/pubs_ext_vt_edu/FST/fst-328/FST-328.pdf, hereinafter Virginia)
Regarding Claim 3, Etchells teaches fermented vegetables as claimed but does not discuss crushing vegetables prior to fermentation.
Virginia teaches that crushing vegetables prior to vegetable fermentation releases the juices more quickly (Page 7, “Pounding Tools”) than allowing the juices to be released from the vegetables naturally after brining.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to crush vegetables prior to fermentation. One would have been motivated to make such a modification to release juices quickly and proceed with the fermentation process.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Etchells in view of Liao and Liu (“A systematic review on fermented chili pepper products: Sensorial quality, health benefits, fermentation microbiomes, and metabolic pathways”, DOI: 10.1016/j.tifs.2023.104189, November 2023).
Regarding Claim 10, Etchells teaches a method for a lactic acid fermented food (Column 2, Line 53). The method comprises mixing cucumbers (Column 2, Line 62) with brine (which is a salt solution, Column 3, Line 68), subsequently mixing the vegetables with an acid (such as acetic acid, Column 4, Line 43) to a pH of 2.7-3.2 (Column 4, Line 34), and fermenting with a Lactobacillus culture such as Lactobacillus plantarum (Column 3, Line 16).
Etchells teaches the addition of 6 pounds of salt per 100 pounds of cucumbers, which is 6% by mass of the “food raw materials” (Column 8, Line 25).
Etchells teaches the addition of salt in two steps (Column 8, Lines 28-30), with an intermediate acidification step (Column 8, Line 5) and therefore does not specifically teach that the food raw materials are mixed with salt at 6% and then subsequently mixed with acid.
However, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Etchells teaches that acetic acid is added at a rate of 6 mL per gallon of cucumbers and brine (Column 8, Line 23-24). Etchells teaches that the cucumbers alone have an approximate density of 50 lbs/bushel, which is 5.3 lbs/gallon (Column 7, Line 57). Etchells therefore teaches that a gallon of cucumbers and brine contains approximately 5.3 lbs (or 2404 grams) of cucumbers. Note that acetic acid has an approximate density of 1.05 g/mL. Additionally, note that adding water (or brine) to cucumbers does not change the density of cucumbers. Therefore, Etchells teaches the addition of 6.3 grams acetic acid to 2404 grams of cucumbers, which is 0.2% of acid.
Note that the disclosed composition is so close in value to the claimed composition that there is an expectation is will provide an identical product. No material difference is expected between a composition comprising 0.2% of acid, as taught by Etchells, and 0.25% as claimed. The Applicant’s claimed range is thus obvious over the prior art range. Note that 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 I.
Etchells teaches that a viable culture is added after salt and acid (Column 5, Lines 16-17), which meets the limitation of inoculation into the “second mixture” (Column 5, Lines 33-34).
Etchells teaches that the initial inoculation strength is 1-10 billion cells per gallon (Column 5, Line 38), which 5.42-6.42 log CFU/mL, which lies within the claimed range. Etchells does not discuss the concentration of Lactobacillus after fermentation. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the property of Lactobacillus concentration as claimed.
Etchells additionally teaches the use of a weak organic acid to the vegetables (Column 4, Line 33) but does not specify the use of citric acid or the amount.
Etchells teaches sanitizing of the vegetables prior to fermentation to prevent growth of undesired microorganisms (Column 4, Lines 26-29), but does not teach a high pressure treatment of an inoculated mixture prior to fermentation or the specific strain used to inoculated the food.
Liao teaches a probiotic comprising a Lactobacillus plantarum strain (GMC No. 14398) or a Lactobacillus curvatus strain (GMC No. 14397) intended for fermenting food (Abstract). Liao teaches that the strain is added to food to obtain a fermented food (Abstract). The food is inoculated with the probiotic and subsequently subjected to high pressure sterilization (Page 3, Paragraph 5) at 250-600 MPA (Page 2, Step 3)
Liao does not specifically teach a length of pressurization for the inoculated food. However, Liao teaches that teaches that the step of screening for a high-pressure strain is performed for 1-60 minutes (Page 2, Step 3) at 50-600 MPa, and such process conditions are sufficient to reduce survival of non-pressure acclimated organisms to .001-.01%. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the process conditions taught by Liao for the screening for the step of pressure-sterilizing the inoculated food. One would have been motivated to make such a modification since Liao teaches that these conditions are effective at reducing organism populations.
Additionally, note that it would have been obvious to perform high pressure treatment on a container that was sealed and closed, since a sealed volume is required to raise pressures above ambient pressures.
Liao teaches that the method produces a high-quality fermented food that is safe and nutritious (Page 3, Paragraph 8).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the method of Etchells to include the probiotic strains of Liao and the method steps of inoculation and subsequent pressure sterilization as claimed. One would have been motivated to make such a modification to create a high quality fermented food that is safe and nutritious.
Modified Etchells teaches the fermentation of any appropriate vegetable (Etchells at Column 6, Lines 52-53), including a high pressure treatment, but does not discuss the fermentation of crushed chilis for a chili sauce.
Liu teaches that chilis fermented with, e.g. lactic acid bacteria (Abstract: Key findings and conclusions) have a distinct taste and desirable nutritional properties (Abstract: Background). Liu teaches that fermented chili products include chopped chilis made into pastes (Page 2, “Production of fermented chili pepper products”). Note that since crushing and chopping are similar processes which have the effect of a comminuted chili with released juices, the chili paste of Liu is interpreted to meet the limitation of a “chili sauce” (Line 1) made with “crushed chili” (Line 2). Liu additionally teaches that organic acids such as citric acid provides a desired “sour taste” to the chili composition (Section 4.1.2, “Sour taste”).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the chilis and citric acid of Liu in the method of modified Etchells to produce of a chili sauce. One would have been motivated to make such a modification since Etchells teaches the fermentation of any appropriate vegetable, and Liu teaches that chilis are an appropriate substrate for lactic acid fermentation, and additionally since Liu teaches that citric acid imparts a desired flavor to fermented foods. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Response to Arguments
Applicant’s arguments filed 4/17/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that Etchells does not teach inoculating in a sealed and closed container, followed by fermentation in the same sealed container. Applicant argues that lactic acid fermentation is known to lead to a pressure increase due to microbial gas production. Applicant additionally argues that Liao does not teach or suggest that the disclosed strains can undergo high-pressure treatment and fermentation without gas accumulation.
This argument is not convincing. First, Applicant’s amendment does not address fermentation in a sealed container, only inoculation. Second, Applicant’s claims are not directed towards avoiding gas accumulation or swelling, and do not disclose a feature of fermentation without gas accumulation, increased pressure, or container swelling. Third, Examiner notes that the instant Specification discloses that 10% salt results in “gas swelling” [0086] for Examples 1 and Comparative Examples 1, 2, and 3 but does not discuss results for salt levels below the claimed range. Additionally, no data is provided for examples that e.g. meet the compositional criteria for salt and food acid but not the pH criteria, or salt and pH but not acid. Applicant has therefore not demonstrated the criticality of the claimed range(s).
Conclusion
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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