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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/14/2026 has been entered.
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 2, 4 and 8 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.
Regarding claim 2, claim 2 recites “the lactic acid bacterium” it is unclear which “lactic acid bacterium” this is referring to in claim 1, in light of the amendment to claim 1 which recites that the starter includes “a lactic acid bacterium”.
Regarding claim 4, claim 4 recites “the lactic acid bacterium is a Lactobacillus gasseri OLL2716 strain”. It is unclear which “lactic acid bacterium” this is referring to in claim 1, in light of the amendment to claim 1 which recites that the starter includes “a lactic acid bacterium”.
Regarding claim 8, claim 8 recites “the lactic acid bacterium is a Lactobacillus gasseri OLL2716 strain”. It is unclear which “lactic acid bacterium” this is referring to in claim 7, in light of the amendment to claim 7 which recites that the starter includes “a lactic acid bacterium”.
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.
Claims 1 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. US 2013/0164408 in view of Tsurumizu et al. US 5,135,739 in view of Francois et al. US 2013/0177671 in view of Nilsson US 2012/0128822 in view of Garault et al. US 2020/0187517 in view of Rizo et al. US 2005/0220964.
Regarding claim 1, Folkenberg discloses a method for producing fermented milk ([0025]) comprising: a starter inoculation step of inoculating a starter to raw material milk ([0026]). The method comprises a fermentation step of fermenting the raw material milk to which the starter is inoculated to obtain fermented milk ([0027]). The method comprises a lactic acid bacterium addition step of adding a lactic acid bacterium to the fermented milk ([0028], [0082]); wherein the starter does not include Bifidobacterium ([0025], [0024]). Folkenberg discloses that the fermentation step is a step of fermenting the raw milk material to which the starter is inoculated until a desired acidity of the raw material milk to which the starter is inoculated is reached ([0077]).
Claim 1 differs from Folkenberg in the recitation that the fermentation step is a step of fermenting the raw milk material to which the starter is inoculated until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more.
Tsurumizu discloses that the preparation of yogurt is well known in the art and typically includes a fermentation step of fermenting raw milk material to which the starter is inoculated until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more (col. 10, lines 44-66). It would have been obvious to one of ordinary skill in the art to modify Folkenberg such that the fermentation step is a step of fermenting the raw milk material to which the starter is inoculated until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more as suggested by Tsurumizu, since Tsurumizu shows that a fermentation step of fermenting a raw material milk to which the starter is inoculated is commonly carried out until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more and one of ordinary skill in the art would have been motivated to carry out the fermentation step to a common predetermined acidity level suitable for the raw material milk to which the starter is inoculated for producing fermented milk. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
Claim 1 differs from Folkenberg in the recitation that the method further comprises a stirring step of stirring the fermented milk after the fermentation step but before the lactic acid bacterium addition step.
Francois discloses preparing a fermented dairy product comprising fermenting milk containing lactic acid bacteria ([0017], [0024]) and after fermentation stirring the obtained product prior to adding additives ([0024]). Francois discloses stirring so as reach the targeted viscosity ([0024], [0056]).
It would have been obvious to one of ordinary skill in the art to modify the method of Folkenberg to include a stirring step of stirring the fermented milk after the fermentation step but before the lactic acid bacterium addition step as suggested by Francois in order to obtain a product with a desired viscosity.
Additionally, Nilsson discloses a method of producing a fermented milk which comprises a stirring step of stirring the fermented milk after the fermentation step and before a second bacteria addition step ([0015]-[0027]). Thus, Nilsson recognizes it was a known technique in the art to stir fermented milk (the fermented milk is mixed the distribute flavorings) ([0024]) prior to a step of adding a second amount of bacteria to the fermented milk ([0025]). Therefore, it additionally would have been obvious to one of ordinary skill in the art to modify the method of Modified Folkenberg to such that the stirring step of stirring the fermented milk after the fermentation step is carried out before the lactic acid bacterium addition step as suggested by Nilsson, it has been held that “Applying a known technique to a known method, or product ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.D)
Claim 1 differs from Modified Folkenberg in the recitation that the lactic acid bacterium is at least one selected from the group consisting of Lactobacillus gasseri, Lactobacillus delbrueckii subsp. bulgaricus OLL1073R-1 strain, Lactobacillus plantarum, Lactobacillus casei and Bifidobacterium.
It is noted that Folkenberg discloses that “one may add extra bacteria (e.g. lactobacillus bulgaricus) ([0082]) and thus does not limit the particular lactic acid bacteria which can be added as extra bacteria.
Garault teaches that additional bacteria added to fermented milk (yogurt) include strains of Bifidobacterium and/or Lactobacillus acidophilus and/or Lactobacillus casei ([0009]). Garault discloses that these additional lactic acid bacteria strains are intended to impart various properties to the finished product, such as that of providing organoleptic qualities ([0009]). It would have been obvious to one of ordinary skill in the art to modify the extra bacteria of Modified Folkenberg to be at least one of Lactobacillus casei and Bifidobacterium as suggested by Garault based on the desired organoleptic qualities of the finished product.
Additionally, Rizo discloses that microorganisms that can be added after fermentation of a fermented milk product include Lactobacillus gasseri, Lactobacillus plantarum, Lactobacillus casei and Bifidobacterium ([0016]) in order to augment the probiotic properties of the fermented milk product ([0016]). It is noted that Folkenberg already discloses “adding further microorganisms” ([0028]) and “one may add extra bacteria (e.g. lactobacillus bulgaricus) ([0082]) and thus does not limit the particular lactic acid bacteria which can be added as extra bacteria. Rizo recognizes that suitable/desirable microorganisms that can be added after fermentation of a fermented milk product include Lactobacillus gasseri, Lactobacillus casei, Lactobacillus plantarum and Bifidobacterium. It would have been obvious to one of ordinary skill in the art to modify Modified Folkenberg such that the lactic acid bacterium is at least one selected from the group consisting of Lactobacillus gasseri, Lactobacillus casei, Lactobacillus plantarum and Bifidobacterium as taught by Rizo in order to augment the probiotic properties of the fermented milk with suitable/desirable microorganisms. It has been held that the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07). Additionally, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
It is noted that based on the art above as a whole, Modified Folkenberg teaches that the lactic acid bacterium is different from a lactic acid bacterium included in the starter ([0039]). It is noted that Modified Folkenberg discloses that the starter includes Lactobacillus bulgaricus (‘408, [0026], [0024]).
Regarding claim 2, claim 2 is rejected for the same reasons given above as for claim 1.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. US 2013/0164408 in view of Tsurumizu et al. US 5,135,739 in view of Francois et al. US 2013/0177671 in view of Nilsson US 2012/0128822 in view of Garault et al. US 2020/0187517 in view of Rizo et al. US 2005/0220964 in view of Kimura et al. US 2003/0161820.
Regarding claim 4, Modified Folkenberg discloses that the starter includes Lactobacillus bulgaricus (‘408, [0026], [0024]).
Claim 4 differs from Modified Folkenberg in the recitation that the lactic acid bacterium is a Lactobacillus gasseri OLL2716.
Kimura discloses that Lactobacillus gasseri OLL2716 is included in a food product such as fermented milk including yogurt (Abstract, [0057], [0065]) to provide the product with a disinfection property of Helicobacter pylori and/or a protection property against infection with H. pylori (Abstract). It would have been obvious to one of ordinary skill in the art to modify Modified Folkenberg such that the lactic acid bacterium is a Lactobacillus gasseri OLL2716 as taught by Kimura in order to provide the product with a disinfection property of Helicobacter pylori and/or a protection property against infection with H. pylori. It has been held that the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07). Additionally, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. US 2013/0164408 in view of Francois et al. US 2013/0177671 in view of Nilsson US 2012/0128822 in view of Garault et al. US 2020/0187517 in view of Rizo et al. US 2005/0220964 as evidenced by the New York Times (“How to Make Yogurt at Home”) in view of Tsurumizu et al. US 5,135,739.
Regarding claim 7, Folkenberg discloses a method for producing a lactic acid bacterium starter (fermented milk/yogurt) ([0025], [0073]-[0075]) comprising: a starter inoculation step of inoculating a starter to a medium including a milk component and water (milk obviously comprises water and a milk component) ([0026], [0041]). Folkenberg discloses that the starter does not include Bifidobacterium ([0025], [0024]). The method comprises a fermentation step of fermenting the medium after the starter inoculation step ([0027]). The method comprises a lactic acid bacterium addition step of adding a lactic acid bacterium to the medium after the fermentation step ([0028], [0082]).
Claim 7 differs from Folkenberg in the recitation that the method further comprises a stirring step of stirring the fermented medium after the fermentation step but before the lactic acid bacterium addition step.
Francois discloses preparing a fermented dairy product comprising fermenting milk containing lactic acid bacteria ([0017], [0024]) and after fermentation stirring the obtained product prior to adding additives ([0024]). Francois discloses stirring so as reach the targeted viscosity ([0024], [0056]). It would have been obvious to one of ordinary skill in the art to modify the method of Folkenberg to include a stirring step of stirring the fermented milk after the fermentation step but before the lactic acid bacterium addition step as suggested by Francois in order to obtain a product with a desired viscosity.
Additionally, Nilsson discloses a method of producing a fermented milk which comprises a stirring step of stirring the fermented milk after the fermentation step and before a second bacteria addition step ([0015]-[0027]). Thus, Nilsson recognizes it was a known technique in the art to stir fermented milk (the fermented milk is mixed the distribute flavorings) ([0024]) prior to a step of adding a second amount of bacteria to the fermented milk ([0025]). Therefore, it additionally would have been obvious to one of ordinary skill in the art to modify the method of Modified Folkenberg to such that the stirring step of stirring the fermented milk after the fermentation step is carried out before the lactic acid bacterium addition step as suggested by Nilsson, it has been held that “Applying a known technique to a known method, or product ready for improvement to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.D)
Claim 7 differs from Modified Folkenberg in the recitation that the lactic acid bacterium is at least one selected from the group consisting of Lactobacillus gasseri, Lactobacillus delbrueckii subsp. bulgaricus OLL1073R-1 strain, Lactobacillus plantarum, Lactobacillus casei and Bifidobacterium.
It is noted that Folkenberg discloses that “one may add extra bacteria (e.g. lactobacillus bulgaricus) ([0082]) and thus does not limit the particular lactic acid bacteria which can be added as extra bacteria.
Garault teaches that additional bacteria added to fermented milk (yogurt) include strains of Bifidobacterium and/or Lactobacillus acidophilus and/or Lactobacillus casei ([0009]). Garault discloses that these additional lactic acid bacteria strains are intended to impart various properties to the finished product, such as that of providing organoleptic qualities ([0009]). It would have been obvious to one of ordinary skill in the art to modify the extra bacteria of Modified Folkenberg to be at least one of Lactobacillus casei and Bifidobacterium as suggested by Garault based on the desired organoleptic qualities of the finished product.
Additionally, Rizo discloses that microorganisms that can be added after fermentation of a fermented milk product include Lactobacillus gasseri, Lactobacillus plantarum, Lactobacillus casei and Bifidobacterium ([0016]) in order to augment the probiotic properties of the fermented milk product ([0016]). It is noted that Folkenberg already discloses “adding further microorganisms” ([0028]) and “one may add extra bacteria (e.g. lactobacillus bulgaricus) ([0082]) and thus does not limit the particular lactic acid bacteria which can be added as extra bacteria. Rizo recognizes that suitable/desirable microorganisms that can be added after fermentation of a fermented milk product include Lactobacillus gasseri, Lactobacillus casei, Lactobacillus plantarum and Bifidobacterium. It would have been obvious to one of ordinary skill in the art to modify Modified Folkenberg such that the lactic acid bacterium is at least one selected from the group consisting of Lactobacillus gasseri, Lactobacillus casei, Lactobacillus plantarum and Bifidobacterium as taught by Rizo in order to augment the probiotic properties of the fermented milk with suitable/desirable microorganisms. It has been held that the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07). Additionally, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Further regarding claim 7, Folkenberg teaches that the method is for obtaining fermented milk (fermented milk product can be yogurt) ([0073], [0075]) and the fermented milk of Folkenberg in view of Francois in view of Garault in view of Rizo is capable of being used as a lactic acid bacterium starter for obtaining fermented milk by fermenting raw material milk as evidenced by the New York Times, which teaches that fermented milk (yogurt) can be used as a starter for fermenting raw material milk (Pg. 1, 6th paragraph). Thus, Folkenberg in view of Francois in view of Garault in view of Rizo as evidenced by the New York Times teaches that the lactic acid bacterium starter comprises a substance (yogurt) obtained by fermenting the medium in the fermentation step, and the lactic acid bacterium added to the medium in the lactic acid bacterium addition step.
Further regarding claim 7, claim 7 differs from Modified Folkenberg in the recitation that the fermentation step of fermenting the raw material milk to which the starter is inoculated is carried out until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% to 1.2%.
Tsurumizu discloses that the preparation of yogurt is well known in the art and typically includes a fermentation step of fermenting raw milk material to which the starter is inoculated until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more (col. 10, lines 44-66). It would have been obvious to one of ordinary skill in the art to modify Folkenberg such that the fermentation step is a step of fermenting the raw milk material to which the starter is inoculated until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more as suggested by Tsurumizu, since Tsurumizu shows that a fermentation step of fermenting a raw material milk to which the starter is inoculated is commonly carried out until an acidity of the raw material milk to which the starter is inoculated reaches 0.8% or more and one of ordinary skill in the art would have been motivated to carry out the fermentation step to a common predetermined acidity level suitable for the raw material milk to which the starter is inoculated for producing fermented milk. It has been held that combining prior art elements according to known methods to yield predictable results supports a conclusion of obviousness (MPEP 2143.I.A).
It is noted that based on the art above as a whole, Modified Folkenberg teaches that the lactic acid bacterium is different from a lactic acid bacterium included in the starter ([0039]). It is noted that Modified Folkenberg discloses that the starter includes Lactobacillus bulgaricus (‘408, [0026], [0024]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. US 2013/0164408 in view of Francois et al. US 2013/0177671 in view of Nilsson US 2012/0128822 in view of Garault et al. US 2020/0187517 in view of Rizo et al. US 2005/0220964 as evidenced by the New York Times (“How to Make Yogurt at Home”) in view of Tsurumizu et al. US 5,135,739 in view of Kimura et al. US 2003/0161820.
Regarding claim 8, Modified Folkenberg discloses that the starter comprises Lactobacillus bulgaricus (‘408, [0026], [0024]).
Claim 8 differs from Modified Folkenberg in the recitation that the lactic acid bacterium is a Lactobacillus gasseri OLL2716.
Kimura discloses that Lactobacillus gasseri OLL2716 is included in a food product such as fermented milk including yogurt (Abstract, [0057], [0065]) to provide the product with a disinfection property of Helicobacter pylori and/or a protection property against infection with H. pylori (Abstract). It would have been obvious to one of ordinary skill in the art to modify Modified Folkenberg such that the lactic acid bacterium is a Lactobacillus gasseri OLL2716 as taught by Kimura in order to provide the product with a disinfection property of Helicobacter pylori and/or a protection property against infection with H. pylori. It has been held that the selection of a known material based on its suitability for its intended use supports a conclusion of obviousness (MPEP 2144.07). Additionally, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Response to Arguments
Applicant's arguments filed 08/14/2026 have been fully considered and new references Tsurumizu et al. US 5,135,739 and Kimura et al. US 2003/0161820 have been relied upon to teach the new limitations.
On pg. 7-8 Applicant argues that Folkenberg’s optional post addition described in [0082] is Folkenberg’s own strain (extra PIM 1966) and therefore Folkenberg is directed to using its own identified strains, not to introducing a different unrelated species after fermentation.
This argument has not been found persuasive because Folkenberg discloses that "further microorganisms" [0028] may be added and it is noted that [0082] recites "one may add extra bacteria (e.g. extra lactobacillus bulgaricus PIM 1966)" therefore PIM 1966 is only an example and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments" (MPEP 2123.II). Thus, it is clear that extra bacteria in general can be used and the extra bacteria is not specifically limited.
On pg. 8-9 of the remarks Applicant argues that regarding the lactic acid bacterium addition step, Folkenberg values specific shear resistant strains and therefore it would not be obvious to add a different species which does not contribute to shear resistance.
This argument has not been found persuasive Folkenberg discloses that "further microorganisms" [0028] may be added in general and does not limit the particular further microorganisms and it is noted that [0082] recites "one may add extra bacteria (e.g. extra lactobacillus bulgaricus PIM 1966)" therefore PIM 1966 is only an example and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments" (MPEP 2123.Ii). Thus, it is clear that extra bacteria in general can be used and the extra bacteria is not specifically limited, and also not limited to species which contribute to shear resistance. Therefore, the teachings of Garault and Rizo also still apply.
On pg. 9 Applicant argues that Nilsson is incompatible with the claimed method.
This argument has not been found persuasive Nilsson was only relied upon to further show that the steps already made obvious by Folkenberg and Francois, would additionally be obvious because Nilsson shows that it was a known technique in the art to stir fermented milk (the fermented milk is mixed the distribute flavorings) ([0024]) prior to a step of adding a second amount of bacteria to the fermented milk ([0025]). And that therefore, it additionally would have been obvious to one of ordinary skill in the art to modify the method of Modified Folkenberg to such that the stirring step of stirring the fermented milk after the fermentation step is carried out before the lactic acid bacterium addition step as suggested by Nilsson, since it has been held that "Applying a known technique to a known method, or product ready for improvement to yield predictable results" supports a conclusion of obviousness (MPEP 2143.I.D).
Conclusion
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
