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 .
Applicant’s response filed 4/15/2026 has been received and entered into the case. Claims 1, 8, 11, 13 are pending and have been considered on the merits. All arguments and amendments have been considered.
The previous rejections of record are withdrawn in light of applicants claim amendments; however, the 103 rejection over Castillo, Ware and WO’100 is maintained but has been amended to address applicants claim amendments.
Claim Objections
Claims 1, 8, 11, 13 are objected to because of the following informalities: each of the claims have been amended to include “…Salmonella Typhimurium, Salmonella Enteritis and Salmonella Newport”. Each of the species Typhimurium, Enteritis and Newport must be italicized and need not be capitalized. The claims should read “…Salmonella typhimurium, Salmonella enteritis and Salmonella newport.” Appropriate correction is required.
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.
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.
Claim(s) 1, 8, 11, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Castillo et al., (Poster Abstract, March 29, 2016) in view of WO2015/120100 A1 and each of Ware et al. (US2014/0341872 A1 and US8980611).
Castillo teach a method of eliminating a foodborne pathogenic microorganism, i.e., a Salmonella cocktail including S. Typhimurium, S. Newport, and S. Enteritidis (a food-borne pathogenic microorganism) in a rendered meat product, i.e., chicken fat, used as a dog food ingredient, and contacting the chicken fat containing the pathogenic microorganism with lactic acid strains L28. The treatment effectively eliminated, reduced and inhibited Salmonella by day 3. Therefore, the method effectively eliminates the growth of a food-borne pathogenic and spoilage microorganism, thereby increasing the storage time of a rendered meat product. The rendered meat product is one which is taught to be used as a dog food ingredient (added to pet kibble).
While the reference teaches that raw chicken fat is a dog food ingredient, they do not teach the step of adding to an animal feed or teach L. monocytogenes of claim 8.
WO’100 teaches methods for reducing and inhibiting the growth of food-borne pathogenic microorganisms, and increasing storage time of a food by reducing spoilage microorganisms comprising obtaining a meat and/or food product and contacting said product with a food-safety/preserving bacteria including Lactobacillus salivarius (0003, 0005, 0008, 0010-0013, 0020, 0049, 0051, 0052, 0053, 0054, 0079, 0080). WO’100 teaches the food product to be a pet food, typically contaminated with pathogens including Salmonella (0003). The pet foods include kibble, soft foods, wet foods, treats, meat pieces or chunks, livestock feed (0015, 0078) and wherein a meat product containing the microbe is applied to kibble (0030-0035) to kill Salmonella. WO’100 teaches that meat used in pet foods are often byproducts of the rendering process, typically producing food contaminated with Salmonella (0003). The reference teaches incubating the food product with the food-safety/preserving bacteria for about 72 hours to promote elimination of pathogens and/or spoilage microorganisms including Salmonella (0072, 0086, Ex. 2, 4). WO’100 teaches the pathogenic/spoilage microorganisms include Salmonella, and Listeria monocytogenes, (0087)
Ware (US2014/0341872 A1) teaches a method of improving food safety by inhibiting pathogenic contamination on food materials (abstract, 0003). Ware teaches that food sources prone to contamination include meat and meat products (0005, 0038). Pathogenic bacteria include Salmonella and L. monocytogenes (a known meat product contaminant and food processing equipment contaminant) (0006, 0007, 0056). Ware teach inhibiting the growth of food-borne pathogens, increasing the storage time by reducing spoilage microorganisms and reducing pathogenic load in food products comprising inoculating a food product with lactic acid producing microorganisms including a Lactobacillus strain and L. salivarius (0049) to control the growth of pathogen microorganisms in the food product (0008, 0011, 0038, 0040, 0043). The pathogenic microorganism is selected from Listeria monocytogenes, and Salmonella (0011, 0015-18). Regarding the limitation of inhibiting/eliminating/reducing the food-borne/spoilage microorganisms within 3 days, Ware teaches that the lactic acid composition is applied in an amount to reduce the total number of pathogens to 0 CFU after the composition was in contact with the surface or food material for 24 hours (0021, 0024). Therefore, one would have a reasonable expectation of successfully eliminating the food-borne/spoilage microorganisms within 3 days given the teachings of Ware.
Ware at al. (US8980611) teaches method of inhibiting the growth of food-borne pathogens (col. 3, lines 40-45) including Salmonella typhimurium (col. 6, lines 35-40) in food, meat and/or meat products and animal feed (abstract, col. 2, lines 25-62, col, 3, lines 25-39, 45-54, 61-col. 4, lines 1-55, col. 6, lines 51-56, for example) comprising contacting the pathogenic microorganisms and food products comprising the pathogenic microorganisms with an amount of Lactobacillus salivarius (col. 5, line 60) sufficient to reduce pathogen of lactic acid bacteria (abstract, col. 1-2, col. 3, lines 1-10, col. 3, lines 40-55, col. 6, lines 41-56). Lactic acid bacteria are used for inhibiting pathogens in meat and meat products and can be administered to the animals from which the products are produced and/or added to the meat or meat products (col. 2, lines 52-67-col. 3, lines 40-55, col. 4, lines 21-36, 56-67, col. 6, lines 25-34, Ex. 2-11).
Ware teach reducing pathogen content or concentration by about 100% (col. 2, lines 56-68).
Thus, before the effective filing date of the claimed invention, it would have been obvious to a person skilled in the art to have used L. salivarius for reducing and inhibiting the growth of pathogenic food-borne pathogenic microorganisms when contacted with foods having or suspected of containing the pathogenic microorganisms given the teachings of the prior art.
Further, a POSITA would have had a reasonable expectation of successfully inhibiting the growth of food-borne pathogenic organisms, specifically Salmonella and Listeria monocytogenes, in any food or meat product and especially a pet food, which typically contains rendered meat products contaminated with Salmonella and Listeria monocytogenes, as taught by WO’100 and Ware, given the combined teachings of Castillo taken with WO’100 and Ware, who teach that the contacting with the lactic acid bacteria can be applied to feed additives and animal feed which effectively inhibits and reduces the claimed pathogenic organisms.
Thus, before the effective filing date of the claimed invention, contacting animal feed, foods and/or meat products with L. salivarius was known and used to effectively reduce pathogen contaminations including Salmonella and it would have been obvious to a person skilled in the art to have used L. salivarius with a reasonable expectation of successfully reducing and inhibiting the growth of pathogenic food-borne pathogenic microorganisms when contacted with foods having or suspected of containing the pathogenic microorganisms given the teachings of the prior art.
Response to Arguments
Applicant's arguments filed 4/15/2026 have been fully considered but they are not persuasive.
Th examiner will address applicants arguments over the Castillo, Ware and WO’100 rejection.
Applicants argue that post-filing art Ayala demonstrates L28 characteristics compared to other L. salivarius strains; however, the Ayala reference does not compare the L28 to other L. salivarius strains, just other LAB strains. They only test one L. salivarius strain, which is L28 (see Table 5) and the Salmonella tested is not disclosed to be a cocktail of 3 species. The strain taught by Castillo is the L28 strain which they teach effectively eliminates the Salmonella cocktail when applied to the product containing the Salmonella cocktail. Therefore, applicants’ arguments are not persuasive.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIFFANY MAUREEN GOUGH whose telephone number is (571)272-0697. The examiner can normally be reached M-Thu 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie Gordon can be reached on 571-272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIFFANY M GOUGH/ Examiner, Art Unit 1651
/MELENIE L GORDON/Supervisory Patent Examiner, Art Unit 1651
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