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 .
Status of Application
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/22/2025 has been entered.
This Official Action is issued in the interest of advancing prosecution. However, the listing of the claims do not appear to correctly reflect the changes to claim 33 (see MPEP 714 (II) C. The next response should properly account for the changes.
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.
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 25, 29, 33-34, 38, 41-45 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 25 is confusing. Claim 25 recites “the excluded ingredients include, therefore, also probiotics of animal origin”. Claim 25 also recites a probiotic ingredient of vegetable origin”. However, probiotics are neither plant nor animal origin. Scientists group organisms, or living things, with similar traits together. Kingdoms are the largest group, and there are five of them: plant, animal, fungus, protist, and bacteria. Thus, it is not clear how the probiotic can be animal or plant origin. However, the claims also recite a fermentation promoter ingredient. The claims are interpreted as the fermentation promoter ingredient is of vegetable origin and comprises a probiotic.
Additionally, it is unclear whether recitations that the “vegetable material is hydrated prior to fermentation” is an active process step. No active step of hydrating is recited. Thus, the claims is interpreted in a manner similar to a product by process recitation and a hydrated vegetable material is used but the manner in which is produced is not a limitation of the claim.
It is also unclear whether recitations as to how the fermentation promoter ingredient is cultivated are a part of the claims. Thus, the claims is interpreted in a manner similar to a product by process recitation and it is considered fermentation promoter ingredient is obtained but the manner in which is produced is not a limitation of the claim.
Claim 25 recites the limitation "the excluded ingredients" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 25 recites “mainly comprises”. It is unclear what amount of material is needed to satisfy the recitation “mainly comprises”. The phrase is interpreted as meaning comprises.
Regarding claim 25, the phrase "preferably previously hydrated vegetable material" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 25, the phrase "preferably for a sufficient time to increase the consistency ther3of” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 42-44 are rejected for reciting that the presence of “pulsed seeds”. It is unclear what are “pulsed seeds” and what amount the pulsed seeds would be present. Claim 25 recites that the starting vegetable material “mainly comprises” legumes, dried fruit, oilseeds or mix.
Claim 45 recites the limitation "the milk" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 45 is also rejected as it is unclear what “them” references (i.e., see last two lines of claim 45).
Free of Prior Art
Claims 25, 29, 33-34, 38, 41-45 are free of prior art. The prior art does teach vegan cheeses (e.g., see US2017/0135360 – GARRIGUES). However, the prior art does not teach a process for making vegetable cheeses without ingredients of animal origin, comprising providing a starting vegetable material and thickening the starting vegetable material by fermentation, and wherein the fermentation promoter ingredient is a probiotic ingredient completely of vegetable origin cultivated prior to induced fermentation of the starting vegetable material. The process also comprises the step of inoculating the probiotic ingredient in the starting vegetable material prior to the induced fermentation thereof in less quantity with respect to the starting material, where the probiotic ingredient is cultivated with at least one of the following processes: the probiotic ingredient is cultivated by fermentation of preferably previously- hydrated vegetable material, by the step of providing a predetermined quantity of starting vegetable material and by the step of inducing a spontaneous fermentation of the prebiotics naturally present in the vegetable material up to obtaining the probiotic ingredient; the probiotic ingredient is isolated from the fermented starting material in a preceding iteration of the process, wherein the probiotic ingredient is serum generated during a preceding iteration of the process. Additionally, induced fermentation occurs in a closed and airtight environment, wherein an induced fermentation step has a duration of between 8 hours and 4 days and occurs in an environment kept at a temperature comprised between 20 and 24°C with humidity between 40 and 60%, wherein the fermentation step is interrupted after such period, wherein induced fermentation is interrupted if the pH goes outside the range of 4 to 5, and further comprising stopping the induced fermentation by changing the temperature.
Response to Arguments
Applicant’s arguments with respect to claim(s) 25, 29, 33-34, 38, 41-45 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791