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
Claims 1-12 are canceled. Claims 13-14 are new. Claims 13-14 are pending and under consideration in this action.
The instant claims are entitled to an effective filing date of 03/25/2015.
Claim Objections
Claim 13 is objected to because of the following informalities:
Claim 13 line 4 recites “botanical’s”, which should be replaced with “botanical” because the botanical is not possessing anything.
Claim 13 line 5 recites “ashwaghandha”, which is misspelled and should be replaced with “ashwagandha”.
Claim 13 line 6 recites “Cannabis”, which should be lowercased because it is in the middle of a sentence.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 13 and 14 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The amendment filed on 02/03/2026 has introduced new matter into the claims.
Claim 13, as filed on 02/03/2026, recites a method for enhancing the probiotic constituency of edible or fermented foods by creating a bacterial biomass, consisting essentially of the following steps in sequence: a) amassing a living culture growth medium containing one or more of at least one grain, one seed and one botanical, each of said grain, said seed and said botanical's being further selected from the group consisting of pumpkin seed, chia seed, green split pea, flax seed, green lentil, hemp seed, sesame seed, black rice, ashwaghandha, cacao nibs, purple millet, black quinoa, red quinoa, red canihua, and Cannabis flowers or leaves, and sprouting said grain and said seed in situ; b) sequentially inoculating a quantity of a bacterium selected from the group consisting of Bacillus subtilis, Bacillus subtilis ssp Natto, Bacillus coagulans and Lactobacillus plantarum and inoculating said quantity onto said living culture growth medium created in step a); c) growing said bacterium on said living culture growth medium in the presence of an added liquid comprising a juice to create a solid substrate delivery system for said bacterium thus grown; and d) drying said solid substrate delivery system at a temperature between 105-118 degrees F to preserve said bacteria in viable probiotic culture form.
Applicant’s amendment, filed 02/03/2026, directs attention to the specification, for example, paragraph 9 for support. See the remarks p. 1 first paragraph. However, the specification as filed and original claims do not provide sufficient written description of the above underlined limitations.
Claims 13 and 14 contain new matter because of the limitation requiring sprouting said grain and said seed in situ (lines 6-7), and because of the limitation requiring growing said bacterium [in reference to a bacterium selected from the group consisting of B. subtilis, B. subtilis ssp Natto, Bacillus coagulans and Lactobacillus plantarum] in the presence of an added liquid comprising a juice to create a solid substrate delivery system for said bacterium thus grown; and d) drying said solid substrate delivery system.
The specification as filed and the original claims do not provide support for sprouting a grain and seed in situ, as instantly required. The specification teaches that certified organic biologically active nutraceutical raw material compounds are produced by inoculating herbs, spices, fruits, teas, vegetables, algae, grains, seeds and dairy products with a range of cultures of functional bacterial species (MicroBiome Transformation System, or "MTS"). The living cultures pre-digest the foods and herbs transforming and potentiating these ingredients. Grains and seeds are sprouted/germinated prior to inoculation. The MTS uses organic whole food ingredients, with zero filler ingredients, zero inactive ingredients, no isolated chemicals, no extracts resulting in a full spectrum potentiation of organic food factors (NewTrients). See [009]. Paragraph [0009] contains the only teaching relevant to sprouting. As such, the orginal disclosure does not provide support for an in situ sprouting step.
The specification as filed and the original claims do not provide support for the claimed solid substrate delivery system for said bacterium. The specification teaches a Bacillus subtilis solid substrate delivery system: 25-97% of total biomass on a dry weight basis: that contains a single or combination of, legumes, seeds, herbs and spices. See [0014]. The specification teaches a Bacillus subtilis solid substrate delivery system containing 3-75% of total biomass material on a dry weight basis: containing one or a combination of herbs, spices, seeds, berries including ashwagandha root, turmeric rhizome, milk thistle seed, holy basil leaf, ginger rhizome, oregano leaf, cinnamon bark, schizandra berry, amly berry, lemon peel, and green tea. See [0015]. The specification teaches a Lactobacillus plantarum solid substrate delivery system containing 25-97% of total biomass material on a dry weight basis: that may contain for example one or more of legumes, seeds, herbs and spices. See [0017]. The disclosure does not provide any support for c) growing bacterium [selected from B. subtilis, B subtilis ssp Natto, B.coagulans and Lactobacillus plantarum] in the presence of an added liquid comprising a juice to create a solid substrate delivery system for said bacterium thus grown; nor is there support for d) drying said solid substrate delivery system.
Such limitations recited in the instant claims 13 (and required by dependent claim 14), which did not appear in the specification or original claims, as filed, introduce new concepts and violate the description requirement of the first paragraph of 35 U.S.C 112. Applicant is required to provide sufficient written support for the limitations recited in the instant claims. Applicant can remove the new matter limitations from the claims to obviate this rejection.
Claim Rejections - 35 USC § 112(b)
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 13 and 14 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.
Claim 13 recites “growth medium containing one or more of at least one grain, one seed and one botanical” in line 3, which renders the claim indefinite because in one interpretation the claim requires one or more selected from at least one grain, at least one seed and at least one botanical, and under and alternative interpretation the claim requires one or more selected from at least one grain, or one seed [that isn’t a grain], and one botanical [that isn’t a grain]. Grains are considered seeds and botanicals. Therefore, it is unclear whether the claim encompasses growth medium embodiments with more than one seed and more than one botanical that aren’t grains. To obviate this rejection “at least one grain, one seed and one botanical, each of said grain, said seed and said botanical’s being further” can be deleted, so that the claim clearly requires a living culture growth medium containing one or more selected from the group consisting of pumpkin seed, chia seed, green split pea, flax seed, green lentil, hemp seed, sesame seed, black rice, ashwagandha, cacao nibs, purple millet, black quinoa, red quinoa, red canihua, and cannabis flowers or leaves.
Claim 13 recites “a living culture growth medium containing one or more of at least one grain, one seed and one botanical [line 2-3]…and sprouting said grain and said seed [line 6-7]”, which renders the claim indefinite, because it is unclear which “said grain and said seed”(lines 6-7) are being referenced since the claim does not clearly require the living culture growth medium to include both a grain and seed. Furthermore, it is unclear whether claim 13 encompasses living culture growth mediums comprising botanical(s) not classified as a grain or seed, because the claim recites “ sprouting said grain and said seed” without referencing a botanical, which is understood to be capable of sprouting via vegetative propagation.
Claim 13 recites “b) sequentially inoculating a quantity of a bacterium selected from the group consisting of Bacillus subtilis, Bacillus subtilis ss. Natto, Bacillus coagulans and Lactobacillus plantarum and inoculating said quantity onto said living culture growth medium created instep a)” in lines 7-9, which is indefinite for two reasons. The first reason is that it is unclear whether step b) requires two separate inoculation steps. The recitation “sequentially inoculating a quantity of a bacterium” (line 7) alone is incomplete because it does not provide a place for the quantity of a bacterium to be inoculated onto. The claim then recites “and inoculating said quantity onto said living culture growth medium” (line 9). Therefore, in one interpretation step b) requires one sequential inoculation of the bacterium quantity onto the living culture growth medium, where this one inoculation step is sequential relative to step a). Under an alternative interpretation step b) requires two separate inoculation steps, i.e. a sequential inoculation and an inoculation onto the living culture growth medium. The second reason is that step a) requires amassing a living culture growth medium, not creating the living culture growth medium. Therefore, it is unclear whether step b) intends to reference the living culture growth medium of step a), a separate created living culture growth medium, or the sprouted said grain and said seed. To obviate this rejection, claim 13 can be amended to recite “b) inoculating a quantity of a bacterium selected from the group consisting of Bacillus subtilis, Bacillus subtilis ss. Natto, Bacillus coagulans and Lactobacillus plantarum onto the living culture growth medium amassed in step a)”.
Claim 14 depends from claim 13 and is rejected for the reasons set forth above.
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 13 is rejected under 35 U.S.C. 103 as being unpatentable over Legrand (EP0281458A2) in view of Pathak (World Appl. Sci. J, 26(2), 224-231, 2013) and Gisel (2007/140277) with evidence from Annies (Annies Heirloom Seeds, 2025).
Regarding claim 13, Legrand teaches a food additive derived from sprouted and fermented food seeds. See [0028]. Legrand suggests that any seed suitable for germination can be used including lentils. See [0043]. Legrand teaches germinating seeds in a germinator. See [0017]. Legrand teaches spraying seeds with water from inoculum B, which includes lactic acid bacteria. See paragraph [0016], specifically sections 13-14 of the paragraph. In example 5, Legrand, in example 5, teaches stopping germination when 70% of seeds show sprouts (i.e. sprouting in situ within the germinator). See [0097]. At this stage, an inoculum of facultative anaerobic and aerobic ferments are added. See example 5, [0098]. Legrand indicates that this inoculum contains Lactobacillus plantarum. See example 5, [0103]. Anaerobic lactic acid bacteria continue their action in 12 h of fermentation (i.e. growing said bacterium). See example 5, [0100]. Legrand suggests introducing an easily assimilable substrate such as molasses at the same time as an inoculum. See [0057]. The sprouted seeds obtained in example 5 ground in a grinder and inoculated with powder containing Lactobacillus plantarum. See [0105]. Legrand teaches partly coating fermented ground material with clay giving a thick paste which is dried in a rotary drum at low temperatures, 50˚C (i.e. 122˚F). The resulting product is a granule (i.e. solid substrate). See [0107]. Legrand suggests that the granules include lactic acid bacteria. See [0113].
Legrand does not teach a) a living culture growth medium containing pumpkin seed, chia seed, green split pea, flax seed, green lentil, hemp seed, sesame seed, black rice, ashwagandha, cacao nibs, purple millet, black quinoa, red quinoa, red canihua, and/or cannabis flowers or leaves.
Pathak teaches germinating lentils (Lens culinaris) seeds. See p. 225 first paragraph of the materials and method section. Pathak teaches spreading 1.25 grams of sample seeds on MRS agar medium to be used as a growth medium. See p. 225 the paragraph spanning the left and right columns. Pathak discloses that the seeds show the presence of strains morphologically resembling Lactobacillus. See p. 226 the first sentence of the ‘phenotypic identification through slide preparation’ section. Pathak teaches that the seeds can be used as the source of Lactobacillus and germination can be used as the technology to enhance them. See the abstract.
Evidentiary reference Annies states “Green Lentil (Lens culinaris)”. See p. 2 heading. Therefore, the Lens culinaris of Pathak is the same as green lentil.
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instantly claimed invention to substitute Pathak’s Lens culinaris (i.e. green lentil) for the seeds of Legrand. One of ordinary skill in the art would have been motivated to do so because Pathak suggests that Lens culinaris (i.e. green lentil) seeds can be used to enhance Lactobacillus. There would have been a reasonable expectation of success because Legrand demonstrates sprouting seeds and inoculating Lactobacillus plantarum; and Legrand further suggests that any seed suitable for germination can be used including lentil.
Legrand and Pathak do not teach c) growing said bacterium in the presence of an added liquid comprising a juice to create a solid substrate delivery system for said bacterium thus grown. However, Legrand suggests introducing an easily assimilable substrate such as molasses at the same time as an inoculum (see [0057]).
Gisel teaches methods for making supplements to enrich or fortify food. See p. 1 lines 9-10. Gisel teaches fermentation accelerants such as black strap molasses and fruit juices. Gisel teaches an efficient microbe suspension comprising sugar cane molasses, lactic acid cultures and bacteria including Lactobacillus plantarum. See p. p lines 16-19 and 22. Gisel discloses that fermentation accelerants are used to speed the fermentation procedure and/or to add flavor and nutritional value. See p. 9 lines 7-8. Furthermore, Gisel teaches a paste which is dried in a vacuum oven at low temperatures less than 40˚C (i.e. 104˚F). The dried cake is then processed into desired forms of solids, flakes or granules. See p. 12 lines 21-23.
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instantly claimed invention to substitute any of Gisel’s fermentation accelerants including the fruit juice for Legrand’s molasses, which is added with the bacterium inoculum. One of ordinary skill in the art would have been motivated to do so because Gisel suggests that the fruit juice fermentation accelerant can speed up the fermentation of bacteria, such as Lactobacillus plantarum. There would have been a reasonable expectation of success because Legrand suggests adding molasses with an inoculum (see [0057]), such as an inoculum including L. plantarum ( [0103]); and Gisel suggests that fruit juice and molasses may be interchangeable.
Legrand, Pathak and Gisel do not teach d) drying said solid substrate delivery system at a temperature between 105-118 degrees F to preserve said bacteria in viable probiotic culture form. However, Legrand teaches drying a paste at 50˚C (i.e. 122˚F) and the resulting product is a granule (i.e. solid substrate) (see [0107]). Gisel teaches drying a paste at 40˚C (i.e. 104˚F) and processing it into granules (p. 12 lines 21-23).
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instantly claimed invention to reduce the 50˚C (i.e. 122˚F) drying temperature taught by Legrand based on Gisel’s suggestion. One of ordinary skill in the art would have been motivated to do so because Gisel suggests drying paste at low temperatures to form granules. There would have been a reasonable expectation of success because Legrand demonstrates drying at a temperature of 50˚C (i.e. 122˚F). MPEP 2144.05(II)(A) indicates that differences in concentration or temperature generally amount to “routine optimization” and will not support patentability unless there is evidence indicating the claimed feature is critical. “Where 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).
Claim 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Legrand (EP0281458A2), Pathak (World Appl. Sci. J, 26(2), 224-231, 2013) and Gisel (2007/140277) as applied to claim 13 above, and further in view of Nagpal (Acta Biomed, 83(1), 183-8, 2012; as previously relied upon).
Regarding claim 14, Legrand suggests introducing an easily assimilable substrate such as molasses at the same time as an inoculum (see [0057]).
Gisel teaches fermentation accelerants such as black strap molasses and fruit juices. Gisel teaches an efficient microbe suspension comprising sugar cane molasses, lactic acid cultures and bacteria including Lactobacillus plantarum. See p. p lines 16-19 and 22. Gisel discloses that fermentation accelerants are used to speed the fermentation procedure and/or to add flavor and nutritional value. See p. 9 lines 7-8.
Legrand, Pathak and Gisel do not teach said juice is aloe vera juice.
Nagpal teaches inoculating Lactobacillus plantarum into broth containing different concentrations of aloe vera juice and incubating. See p. 2 left column last passage. Nagpal suggests that aloe vera has attracted interest because of its nutritional characteristics. See p. 1 right column lines 1-3. Nagpal suggests that aloe vera juice at a concentration of 5% v/v was effective in promoting the growth of L. plantarum. See the abstract.
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instantly claimed invention to substitute any of Gisel’s fermentation accelerants including the fruit juice for Legrand’s molasses (as discussed above), and to further substitute Nagpal’s aloe vera juice for the fruit juice. One of ordinary skill in the art would have been motivated to do so because Gisel suggests using fermentation accelerants including fruit juice to speed fermentation, and add nutritional value; and Nagpal suggests that aloe vera juice promotes L. plantarum growth and has nutritional characteristics. There would have been a reasonable expectation of success because Legrand demonstrates fermenting sprouts with L. plantarum.
Response to Arguments
Applicant's arguments filed 02/03/2026 have been fully considered to the extent that they might apply to the new grounds of rejection set forth above, but they are unpersuasive.
Rejected under 35 U.S.C. 103
Applicant argues that the word stem “sprout” does not appear in the previously cited references including Nagpal. See the remarks p. 1 first paragraph.
This argument is not persuasive because Nagpal is not relied upon for teaching the newly added limitation that requires “sprouting said grain and said seed in situ”(lines 6-7).
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.
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/LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657
/K.C.B./Examiner, Art Unit 1657
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