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 .
The amendment filed September 26, 2025 is acknowledged. Claims 1, 8-11, 15, 23, 25, and 27-38 are pending in the application. Claims 2-7, 12-14, 16-22, 24, and 26 have been cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 26, 2025 has been entered.
Claim Objections
Claim 27 is objected to because of the following informalities:
In claim 27 at line 2, it is suggested to amend “goat’s” before “milk” to “goat”.
In claim 27 at line 2, it is suggested to amend “ewe’s” after “content,” and before “milk” to “ewe”.
Appropriate correction is required.
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 11 and 28 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 11 recites “the ethanol producing yeast strain” at lines 1-2, and this claim depends upon claim 10. The recitation of “the ethanol producing yeast strain” in claim 11 lacks antecedent basis as there is no mention of an ethanol producing yeast strain in claim 10. Therefore, the scope of claim 11 is indefinite. For the purpose of the examination, the recitation of “the ethanol producing yeast strain” at lines 1-2 of claim 11 (emphasis added) is interpreted as “the K. lactis strain” (emphasis added).
Claim 28 recites “the lipolytic yeast strain” at line 1, and this claim depends upon claim 1. The recitation of “the lipolytic yeast strain” in claim 28 lacks antecedent basis as there is no mention of a lipolytic yeast strain in claim 1. Therefore, the scope of claim 28 is indefinite. For the purpose of the examination, the recitation of “the lipolytic yeast strain” at line 1 of claim 28 (emphasis added) is interpreted as “the Y. lipolytica strain” (emphasis added).
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, 8-11, 15, 23, 25, and 27-38 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2008030089 (hereinafter “Meijer”) in view of Bachmann et al. WO 2008153387 (hereinafter “Bachmann”).
With respect to claim 1, Meijer teaches a method of making cheese such as feta as well as cheeses with improved flavor (P1, L5-7; P3, L9-10; P4, L25-27; and P12, L26-28).
Regarding the recitation of “for producing a white brined cheese or a cheese having one or more flavor characteristics of a sheep cheese and/or a goat cheese” in the preamble claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the limitation of the method comprising mixing milk with a coagulant, a starter culture, a strain of Yarrowia lipolytica, and a strain of Kluyveromyces lactis as recited in claim 1, Meijer teaches producing cheese from a mixture of coagulant, starter culture, a yeast strain of the genus Kluyveromyces (e.g. K. lactis), Yarrowia lipolytica, and milk (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; P9, L19-21; P11, L31-P12, L2; P12, L26-28; P13, L32-P14, L2).
Regarding the limitation of no viable propionibacteria are added to the milk in an amount that exceeds 1 x 102 cfu/mL as recited in claim 1, Meijer teaches at least two micro-organisms such as K. lactis and Y. lipolytica are used which meets the claim limitation (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; and P9, L19-21). Alternatively, Meijer teaches preferably yeast and bacteria are used. Propionibacterium is added in an amount of about 1 x 104 cfu/mL in one embodiment or an Acetobacter bacterial strain is added in another embodiment (Abstract; P8, L20-23; P10, L1-5; and P11, L24-26), and the embodiment comprising an Acetobacter bacterial strain successfully meets the claim limitation.
Regarding the limitation of the milk comprises bovine milk having a fat content of 0.5-5 wt.% relative to the weight of the milk and the milk has a lactose content as recited in claim 1, Meijer teaches the milk is dairy milk (P3, L7-8).
However, Meijer does not expressly disclose the milk comprises bovine milk having a fat content of 0.5-5 wt.% relative to the weight of the milk and the milk has a lactose content.
Bachmann teaches a method for producing cheese. The cheese making ingredients are milk, one or more coagulants, and one or more bacterial cultures along with at least one functional ingredient, and the ingredients may be mixed to prepare the cheese. The milk may be obtained from any mammal, and the milk may be whole milk or partially defatted milk. In one example, bovine milk with a fat content of 3.54% and a lactose content was used (P1, L4 and 22-23; P3, L12-14; P9, L8-13; P11, L1-2; P13, L4-9; and P35, L31-32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Bachmann, to select bovine milk having the claimed fat and lactose contents in the method of Meijer with the expectation of successfully preparing a functional cheese product. One of ordinary skill in the art would have been motivated to do so because Meijer and Bachmann similarly teach preparing cheeses with similar ingredients, Meijer teaches the milk is dairy milk (P3, L7-8) and it is well understood that dairy milk includes milk derived from cattle, buffalos, goats, and sheep, bovine milk containing the claimed fat and lactose contents were well known in the art in cheese production as demonstrated in Bachmann, and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Regarding the limitation of the ratio of the inoculation rate of the Y. lipolytica strain over the inoculation rate of the K. lactis strain is greater than 1:4 and is lower than 10:1 as recited in claim 1, modified Meijer teaches this limitation since Meijer teaches utilizing about 1 x 104 cfu/mL to about 1 x 1010 cfu per mL milk or more of each microorganism (P9, L18-21; and P11, L24-27) which is equal to a ratio of the inoculation rate of Y. lipolytica strain over the inoculation rate of K. lactis strain of about 0.000001:1 to about 1000000:1 and encompasses the presently claimed range (calculated from about 1 x 104 cfu/mL Y. lipolytica/ about 1 x 1010 cfu/mL K. lactis to about 1 x 1010 cfu/mL Y. lipolytica/ about 1 x 104 cfu/mL K. lactis). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding the limitation of the Y. lipolytica strain is capable of producing C4-C12 fatty acids when the Y. lipolytica strain is allowed to act on the milk as recited in claim 1, it has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. Additionally, Meijer teaches micro-organism such as Y. lipolytica produce lipase activity, whereby short chain fatty acids such as butyric acid are produced in the dairy product (P2, L4-5; and P6, L21-22).
Regarding the limitation of cheese resulting from the mixture of the coagulant, the starter culture, the Y. lipolytica strain, and the K. lactis strain is placed in a sterilized brine solution having a NaCl concentration of 6 wt % as recited in claim 1, Meijer does not expressly disclose the formed cheese is placed in a sterilized brine solution having a NaCl concentration of 6 wt %.
Bachmann teaches a method for producing cheese. The cheese making ingredients are milk, one or more coagulants, and one or more bacterial cultures along with at least one functional ingredient, and the ingredients may be mixed to prepare the cheese. The method further comprises a brining step which includes placing the cheese in a sterile brine solution having a concentration of sodium chloride in the solution ranging between 50-300 g/L (5%-30%) (P1, L4 and 22-23; P3, L12-14; P9, L8-13; P11, L1-2; P13, L4-9; P19, L8-12; P20, L30-31; P42, L1-2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Bachmann, to select a brining step in the method of Meijer with the expectation of successfully preparing a functional cheese product. One of ordinary skill in the art would have been motivated to do so because Meijer and Bachmann similarly teach preparing cheeses with similar ingredients, Bachmann teaches the sodium chloride from the brine influences the development of one or more of the organoleptic properties of the cheese (P19, L18-19), Meijer teaches producing the cheese product using known methods (P12, L17 and 26-28), and said combination would amount to the use of a known step for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
With respect to claim 8, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein the method further comprises ripening the cheese as recited in claim 8, modified Meijer teaches this limitation since Meijer teaches ripening the cheese (P3, L14-16; and P13, L13-15).
With respect to claim 9, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein the cheese is a white brined cheese as recited in claim 9, modified Meijer teaches this limitation since Meijer teaches the cheese includes feta (P3, L9-10; and P4, L25-27).
With respect to claim 10, Meijer teaches a method of making cheese with improved flavor (P1, L1-7; and P12, L26-28).
Regarding the recitation of “for accelerating ripening of cheese and/or enhancing flavor characteristics of cheese” in the preamble claim 10, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the limitation of the method comprises mixing milk with a coagulant, a starter culture, a strain of Yarrowia lipolytica, and a strain of Kluyveromyces lactis as recited in claim 10, Meijer teaches producing cheese from a mixture of coagulant, starter culture, a yeast strain of the genus Kluyveromyces (e.g. K. lactis), Yarrowia lipolytica, and milk (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; P9, L19-21; P11, L31-P12, L2; P12, L26-28; P13, L32-P14, L2).
Regarding the limitation of no viable propionibacteria are added to the milk in an amount that exceeds 1 x 102 cfu/mL as recited in claim 10, Meijer teaches at least two micro-organisms such as K. lactis and Y. lipolytica are used which meets the claim limitation (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; and P9, L19-21). Alternatively, Meijer teaches preferably yeast and bacteria are used. Propionibacterium is added in an amount of about 1 x 104 cfu/mL in one embodiment or an Acetobacter bacterial strain is added in another embodiment (Abstract; P8, L20-23; P10, L1-5; and P11, L24-26), and the embodiment comprising an Acetobacter bacterial strain successfully meets the claim limitation.
Regarding the limitation of the milk comprises bovine milk having a fat content of 0.5-5 wt.% relative to the weight of the milk and the milk has a lactose content as recited in claim 10, Meijer teaches the milk is dairy milk (P3, L7-8).
However, Meijer does not expressly disclose the milk comprises bovine milk having a fat content of 0.5-5 wt.% relative to the weight of the milk and the milk has a lactose content.
Bachmann teaches a method for producing cheese. The cheese making ingredients are milk, one or more coagulants, and one or more bacterial cultures along with at least one functional ingredient, and the ingredients may be mixed to prepare the cheese. The milk may be obtained from any mammal, and the milk may be whole milk or partially defatted milk. In one example, bovine milk with a fat content of 3.54% and a lactose content was used (P1, L4 and 22-23; P3, L12-14; P9, L8-13; P11, L1-2; P13, L4-9; and P35, L31-32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Bachmann, to select bovine milk having the claimed fat and lactose contents in the method of Meijer with the expectation of successfully preparing a functional cheese product. One of ordinary skill in the art would have been motivated to do so because Meijer and Bachmann similarly teach preparing cheeses with similar ingredients, Meijer teaches the milk is dairy milk (P3, L7-8) and it is well understood that dairy milk includes milk derived from cattle, buffalos, goats, and sheep, bovine milk containing the claimed fat and lactose contents were well known in the art in cheese production as demonstrated in Bachmann, and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Regarding the limitation of the ratio of the inoculation rate of the Y. lipolytica strain over the inoculation rate of the K. lactis strain is greater than 1:4 and is lower than 10:1 as recited in claim 10, modified Meijer teaches this limitation since Meijer teaches utilizing about 1 x 104 cfu/mL to about 1 x 1010 cfu per mL milk or more of each microorganism (P9, L18-21; and P11, L24-27) which is equal to a ratio of the inoculation rate of Y. lipolytica strain over the inoculation rate of K. lactis strain of about 0.000001:1 to about 1000000:1 and encompasses the presently claimed range (calculated from about 1 x 104 cfu/mL Y. lipolytica/ about 1 x 1010 cfu/mL K. lactis to about 1 x 1010 cfu/mL Y. lipolytica/ about 1 x 104 cfu/mL K. lactis). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding the limitation of the Y. lipolytica strain is capable of producing C4-C12 fatty acids when the Y. lipolytica strain is allowed to act on the milk as recited in claim 10, it has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. Additionally, Meijer teaches micro-organism such as Y. lipolytica produce lipase activity, whereby short chain fatty acids such as butyric acid are produced in the dairy product (P2, L4-5; and P6, L21-22).
With respect to claim 11, modified Meijer is relied upon for the teaching of the method of claim 10 as addressed above.
Regarding the limitation of wherein the K. lactis strain is capable of metabolizing lactose in claim 11, it has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. Additionally, Meijer teaches utilizing K. lactis which is identical to microorganism used in the present invention (P9, L18-21).
With respect to claim 15, modified Meijer is relied upon for the teaching of the method of claim 10 as addressed above.
Regarding the limitation of wherein the cheese is a white brined cheese as recited in claim 15, modified Meijer teaches this limitation since Meijer teaches the cheese includes feta (P3, L9-10; P4, L25-27).
With respect to claim 23 and regarding limitation of a white brined cheese obtainable by the method according to claim 1 as recited in claim 23, it is noted that this limitation includes a method. The method does not appear to impart distinctive structural characteristics to the final product. Even though a product-by-process is defined by the process steps by which the product is made, determination of patentability is based on the product itself and does not depend on its method of production. In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). As the court stated in Thorpe, 777 F.2d at 697, 227 USPQ at 966 (The patentability of a product does not depend on its method of production. In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If the product in a product-by-process claim is the same or obvious as the product of the prior art, the claim is unpatentable even though the prior art product was made by a different process.). See MPEP 2113 and 2114. Therefore, since the cheese as recited in claim 23 is the same as the cheese taught in modified Meijer, as set forth above in claim 1, the claim is unpatentable even if the cheese of modified Meijer was made by a different process. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
With respect to claim 25, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein the Yarrowia lipolytica is a Yarrowia lipolytica strain CSK 1795 deposited under Accession Number IHEM 26011 as recited in claim 25, the microorganism in claim 25 is a specific yeast strain. It is reasonable to assert that Meijer teaches the claimed Yarrowia lipolytica strain since Meijer teaches the yeast strain of Yarrowia lipolytica can be obtained from deposit institutions or isolated from food products (P9, L18-21 and 25-27). Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any strain of Yarrowia lipolytica, including the presently claimed strain, with the expectation of successfully preparing a cheese product. One of ordinary skill in the art would have been motivated to do so because Meijer teaches adjunct cultures (comprising the microorganism Yarrowia lipolytica) can be produced using known microbiological methods, whereby the microorganisms is/are grown to a suitable concentration, is optionally harvested and suspended in appropriate medium and the adjunct cultures comprising a suitable amount of live or viable microorganisms may be sold for the production of dairy products having new flavors and/or improved quality characteristics (P12, L11-24; P13, L31-P14, L4), and the flavor and organoleptic qualities are a matter of choice and do not provide a patentable feature over the prior art. There would have been a reasonable expectation of success. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
With respect to claim 27, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein the milk further comprises goat’s milk having a fat content, ewe’s milk having a fat content, or a combination thereof as recited in claim 27, Meijer teaches the milk is dairy milk (P3, L7-8).
However, Meijer does not expressly disclose the milk further comprises goat’s milk having a fat content and/or ewe’s milk having a fat content.
Bachmann teaches a method for producing cheese. The cheese making ingredients are milk, one or more coagulants, and one or more bacterial cultures along with at least one functional ingredient, and the ingredients may be mixed to prepare the cheese. The milk may be obtained from any mammal, preferably from a cow, a goat, and/or a sheep, and the milk may be whole milk or partially defatted milk (P1, L4 and 22-23; P3, L12-14; P9, L8-13; P11, L1-2; and P13, L4-9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Bachmann, to select goat and/or sheep milk with a fat content in the method of Meijer with the expectation of successfully preparing a functional cheese product. One of ordinary skill in the art would have been motivated to do so because Meijer and Bachmann similarly teach preparing cheeses with similar ingredients, Meijer teaches the milk is dairy milk (P3, L7-8) and it is well understood that dairy milk includes milk derived from cattle, buffalos, goats, and sheep, goat milk and sheep milk containing fat were well known in the art in cheese production as demonstrated in Bachmann, and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 28, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein the Y. lipolytica strain is capable of producing C4-C18 fatty acids in claim 28, it has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. Additionally, Meijer teaches micro-organism such as Y. lipolytica produce lipase activity, whereby short chain fatty acids such as butyric acid are produced in the dairy product (P2, L4-5; and P6, L21-22).
With respect to claims 29-32, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitations of wherein the ratio of the inoculation rate of the Y. lipolytica strain over the inoculation rate of the K. lactis strain is greater than 1.69:1 (claim 29), 1.7:1 (claim 30), 1.8:1 (claim 31), or 2:1 (claim 32) and is lower than 10:1 in claims 29, 30, 31, and 32, modified Meijer teaches this limitation since Meijer teaches utilizing about 1 x 104 cfu/mL to about 1 x 1010 cfu per mL milk or more of each microorganism (P9, L18-21; and P11, L24-27) which is equal to a ratio of the inoculation rate of Y. lipolytica strain over the inoculation rate of K. lactis strain of about 0.000001:1 to about 1000000:1 and encompasses the presently claimed range (calculated from about 1 x 104 cfu/mL Y. lipolytica/ about 1 x 1010 cfu/mL K. lactis to about 1 x 1010 cfu/mL Y. lipolytica/ about 1 x 104 cfu/mL K. lactis). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 33, modified Meijer is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the limitation of wherein no viable propionibacteria are added to the milk as recited in claim 33, Meijer teaches at least two micro-organisms such as K. lactis and Y. lipolytica are used which meets the claim limitation (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; and P9, L19-21). Alternatively, Meijer teaches preferably yeast and bacteria are used. Propionibacterium is added in an amount of about 1 x 104 cfu/mL in one embodiment or an Acetobacter bacterial strain is added in another embodiment (Abstract; P8, L20-23; P10, L1-5; and P11, L24-26), and the embodiment comprising an Acetobacter bacterial strain successfully meets the claim limitation.
With respect to claims 34-37, modified Meijer is relied upon for the teaching of the method of claim 10 as addressed above.
Regarding the limitations of wherein the ratio of the inoculation rate of the Y. lipolytica strain over the inoculation rate of the K. lactis strain is greater than 1.69:1 (claim 34), 1.7:1 (claim 35), 1.8:1 (claim 36), or 2:1 (claim 37) and is lower than 10:1 in claims 34, 35, 36, and 37, modified Meijer teaches this limitation since Meijer teaches utilizing about 1 x 104 cfu/mL to about 1 x 1010 cfu per mL milk or more of each microorganism (P9, L18-21; and P11, L24-27) which is equal to a ratio of the inoculation rate of Y. lipolytica strain over the inoculation rate of K. lactis strain of about 0.000001:1 to about 1000000:1 and encompasses the presently claimed range (calculated from about 1 x 104 cfu/mL Y. lipolytica/ about 1 x 1010 cfu/mL K. lactis to about 1 x 1010 cfu/mL Y. lipolytica/ about 1 x 104 cfu/mL K. lactis). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 38, modified Meijer is relied upon for the teaching of the method of claim 10 as addressed above.
Regarding the limitation of wherein no viable propionibacteria are added to the milk as recited in claim 38, Meijer teaches at least two micro-organisms such as K. lactis and Y. lipolytica are used which meets the claim limitation (Abstract; P1, L5-7, 11-13, and 16-18; P3, L17-20; and P9, L19-21). Alternatively, Meijer teaches preferably yeast and bacteria are used. Propionibacterium is added in an amount of about 1 x 104 cfu/mL in one embodiment or an Acetobacter bacterial strain is added in another embodiment (Abstract; P8, L20-23; P10, L1-5; and P11, L24-26), and the embodiment comprising an Acetobacter bacterial strain successfully meets the claim limitation.
Response to Arguments
Applicant’s remarks filed September 26, 2025 are acknowledged.
Applicant’s arguments have been fully considered, but they are unpersuasive (P8-P13).
Applicant argues the prior art fails to suggest the features of claims 1 and 10. None of the microorganisms in (b) of Meijer are fungi or yeast, while Meijer says specifically that microorganism (a) “is preferably a yeast species/strain”. Meijer is focused on using the (b) microorganisms to control the (a) microorganisms. Meijer characterizes Y. lipolytica as producing “excessive lipase…result[ing] in rancidity” and needing to be controlled, is one of only two mentions of Y. lipolytica in Meijer; the other is to include Y. lipolytica as a “microorganism under (a)”. A PHOSITA would understand from Meijer that Y. lipolytica is a microorganism that must be controlled. A PHOSITA in possession of Meijer would not reasonably consider using Y. lipolytica to exert control (that is, to use Y. lipolytica as a (b) microorganism while using K. lactis as the (a) microorganism). Meijer’s examples also show that the contemplated controlling agent is bacterial. There is no disclosure, suggestion, or motivation in Meijer to use a yeast or fungi, let alone Y. lipolytica, for this inhibitory role. A person of ordinary skill in the art would read Meijer and understand that Y. lipolytica is presented solely as a flavor-producing yeast (microorganism (a)) that can cause off-flavors if its growth is not managed. Meijer’s core teaching is to use a specific type of bacterium (microorganism (b)) to control microorganism (a). Meijer teaches controlling Y. lipolytica, not using it as a control agent. Even if Meijer teaches or suggests that Y. lipolytica and K. lactis could be used together (e.g., together as microorganisms (a)), Meijer is unequivocally clear that the inhibitory (b) microorganism is still essential. The requirement for the controlling microorganism (b) is not optional; it is the entire basis of the disclosure of Meijer, and omitting microorganism (b) would render Meijer unsatisfactory for its intended purpose. Nothing in Bachmann remedies the deficiencies of Meijer.
Examiner disagrees. The combination of Meijer and Bachmann teaches the claimed invention as addressed above. Although Meijer teaches preferably a yeast and a bacterial strain are used in the method (preferably a yeast strain as microorganism (a) and preferably microorganism (b) is a bacterial strain) (Abstract; and P8, L11-12 and 20), Meijer is not limited to this embodiment since the reference teaches mixtures of a least two microorganisms are used (Abstract; P1, L5-7). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). Meijer teaches using a combination of Y. lipolytica and K. lactis since Meijer teaches at least two microorganisms such as K. lactis and Y. lipolytica are used (Abstract; P1, L5-7; P3, L17-20; and P9, L19-21). Alternatively, Meijer teaches preferably yeast, such as Y. lipolytica and/or K. lactis, and bacteria, such as Propionibacterium or an Acetobacter bacterial strain, are used (Abstract; P8, L11-12 and 20-23; P9, L19-21; and P10, L1-5). Additionally, it is noted that Bachmann does not disclose all the features of the presently claimed invention. However, Bachmann is a secondary reference and is relied upon for the teaching of the fat content and lactose content in the milk as well as brining, and it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981).
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793