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 .
Response to Amendment
Those rejections that are not repeated in this Office Action have been withdrawn.
Claims 1, 3, 8, 9, 12-13, 17, 20 and 29 are currently pending and rejected.
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.
Claim 17 is 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 17 is indefinite because it depends from a canceled claim thus making it unclear as to what subject matter the claim is intending to cover. In view of this, the limitation of, “the at least one edible component of the cereal” also lacks proper antecedent basis. For examination purposes, the claim has been construed to depend from claim 1.
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, 3, 8, 9, 12-13, 17, 20 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Salovaara (WO 9117672) in view of Oste (US 20040219261) and Fourcassie (WO 2017017514).
Regarding claims 1, 3, 13, 17 and 20 Salovaara teaches a method of making a ready-to-eat product and a ready to eat yoghurt, which method does not subject any edible component of a cereal to enzymatic hydrolysis (see page 15 and diagram 1). On page 7, lines 9-11, Salovaara discloses that in connection with the sterilization heat treatment, one may use added enzymes to modify the method or product, thus teaching and suggesting that the use of enzymes is not required. Salovaara discloses fermenting an aqueous slurry of the edible component of a cereal (see page 1, lines 18-21) using lactic acid bacteria such as Streptococcus thermophilus and lactobacillus bulgaricus (see page 9, lines 30-31; see Table 2 on page 16 which discloses using L.bulgaricus and S.thermophilus, for example; and page 18, lines 19 to page 19, line 13) and where the cereal can be oat (see page 15, line 3, “oats”). Salovaara also discloses that the product can be a ready to eat product such as a yoghurt (see page 2, lines 24-26; page 6, lines 4-5).
Further regarding the product “is yoghurt” it is noted that Salovaara suggests this because the purpose of the process is to make a product that is rich in dietary fiber, while not using animal fat or milk solids, so that the product is suitable to persons avoiding fat and milk products (see page 5, line 34 to page 6, line 8).
Nonetheless, Oste further teaches a process that does not comprise subjecting any edible component of a cereal to enzymatic hydrolysis, and which ferments at least one edible component of a cereal using lactic acid bacteria such as lactobacillus acidophilus and Streptococcus thermophilus (see Example 1 and paragraphs 26-37) for also producing a non-dairy yoghurt. Therefore, Oste evidences that Salovarra’s process can also equally be used to make yoghurt.
Further in this regard, Fourcassie also teaches a process that does not subject any edible component of a cereal to enzymatic hydrolysis and uses lactic acid bacteria to ferment at least one edible component of a cereal (see page 12, line 29 to page 13, line 2, which discloses using multiple lactobacillus strains as well as bifidobacterium; page 3, lines 31-32 and page 20, line 8, “oat-based suspension”), which component is an aqueous slurry (see page 2, line 29 to page 3, line 3).
Fourcassie teaches that Salovarra’s process would have been equally used to make yoghurt and therefore, it would have been obvious to one having ordinary skill in the art that Salovarra is teaching and suggesting a method for making a ready to eat yoghurt.
Further regarding the limitation of, “the at least one edible component of the cereal comprises oat fibre, maize fibre, rice fibre, wild rice fibre, wheat fibre, barley fibre, sogum fibre, millet fibre, rye fibre, triticale fibre, fonio fibre or combinations thereof,” and claim 13 and claim 17, Salovarra teaches that the at least one edible component of a cereal can comprise oat flour and oat fiber (see page 12, line 29-34).
Regarding claim 8, Salovarra teaches that the fermentation can occur at 20-50°C (see page 7, lines 13-14), which overlaps with and encompasses the claimed range of 20-45°C. Salovarra further suggests on page 9, lines 28-34 that the fermentation temperature can be 37-45°C.
Regarding claim 9, Salovarra teaches that the fermentation can occur for 3 hours to 3 days, and therefore encompasses the claimed fermentation period (see page 7, lines 11-15). If it could have been construed that this did not provide sufficient specificity, then it is noted that Fourcassie also teaches similar fermentation of cereal components, using similar lactic acid bacteria, for periods of time such as up to 30 hours (see page 10, line 15) for the purpose of achieving the pH and degree of fermentation. Therefore, it would have been obvious to one having ordinary skill in the art to have modified Salovarra and to use a fermentation period of 30 hours, for example, for achieving the desired degree of fermentation and pH.
Regarding claim 12, Salovarra teaches heating to pasteurize prior to fermentation (see page 7, lines 2-5) for providing sterility to the slurry prior to fermentation. It would have been obvious to one having ordinary skill in the art that pasteurization would have used heat treatment that is greater than about 50°C. Nonetheless, Salovarra teaches sterilization temperatures such as 100°C on page 7, line 35 to page 8, line 2. Fourcassie also teaches and suggests heat treatment above 50°C prior to fermentation, as a conventional expedient for producing a yoghurt product (see page 11, line 9 and page 17, line 9). Oste also teaches heat treatment at 90°C for pasteurization (see paragraph 34).
Regarding claim 29, Salovarra discloses that the at least one edible component can be present at 5-25% of the aqueous slurry (see page 7, line 32-35 which discloses 1 part oat bran to 11 parts of oat bran and water (i.e. 9%); or 1 part oat bran to 5 parts water (i.e. 17%); see page 8, lines 19-21; page 17, lines 2-9).
Claims 1, 3, 8, 12, 13, 17, 20 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Oste (US 20040219261) in view of Salovaara (WO 9117672).
Regarding claim 1, 3, 8, 17 and 20, Oste teaches ready to eat yoghurt and a method for making a ready to eat product that is yoghurt (see the abstract, and paragraphs 26-35; yoghurt), comprising fermenting an edible cereal without enzymatic hydrolysis (the reference uses an oat base, which would inherently have been derived from oat cereal grain) that is in an aqueous suspension (i.e. aqueous slurry) (see paragraph 12, 21 and 27; the reference does not discuss subjecting cereal components to enzymatic hydrolysis as part of the process, see page 4, claim 21 and 24), which edible component of a cereal is subject to fermentation using lactobacillus acidophilus and Streptococcus thermophilus (see paragraph 28) at temperatures such as 43°C (see paragraph 35).
Claims 1, 17 and 20 differ from Oste in specifically reciting “the at least one edible component of the cereal comprises oat fibre, maize fibre, rice fibre, wild rice fibre, wheat fibre, barley fibre, sogum fibre, millet fibre, rye fibre, triticale fibre, fonio fibre or combinations thereof,” and claim 13 and claim 17 differ in specifically reciting that the cereal comprises oat and the at least one component of the cereal comprises oat fibre.
It is initially noted that Oste’s disclosure of an oat base (see paragraph 12) would suggest that the at least one component of the cereal is an oat component.
Salovarra teaches that the at least one edible component of a cereal can comprise oat flour and oat fiber (see page 12, line 29-34) for the purpose of modifying the taste, odor, color, texture and other sensory qualities and the nutritive value of the product (see page 12, line 35 onto page 13 line 9). As discussed in the previous rejections above, Salovaara teaches fermenting the above taught cereal based products.
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Oste and to also have used and included oat flour and oat fiber, for the purpose of providing the desired nutritional benefits and sensory qualities to the yoghurt.
Regarding claim 12, the at least one edible component of a cereal is heated to 90°C prior to the fermentation (see paragraph 34).
Regarding claim 13, since Oste uses an oat base, it would have been inherent that “the cereal” comprises oat.
Claim 29 differs from Oste in specifically reciting that the at least one edible component of a cereal is present in an amount of about 50-20wt% based on the total weight of the aqueous slurry.
However, Salovaara discloses that the at least one edible component can be present at 5-25% of the aqueous slurry (see page 7, line 32-35 which discloses 1 part oat bran to 11 parts of oat bran and water (i.e. 9%); or 1 part oat bran to 5 parts water (i.e. 17%); see page 8, lines 19-21; page 17, lines 2-9) for providing the desired characteristic taste and odor for producing a yoghurt product (see page 8, lines 9-14). Therefore, it would have been obvious to one having ordinary skill in the art to have modified the amount of the cereal present in the aqueous slurry of Oste, as taught by Salovaara to be 9 or 17% for example, for the purpose of achieving the desired characteristic taste and organoleptic properties to Oste’s yoghurt.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Oste (US 20040219261) in view of Salovaara (WO 9117672) and Fourcassie (WO 2017017514).
Claim 9 differs from Oste in specifically reciting a fermentation period of about 1 day to about 2 days.
However, Salovaara teaches that it has been conventional to use fermentation times of 3 hours to 3 days depending on the starter organism (see page 7, lines 14-15) and Fourcassie teaches a fermentation time of 30 hours for the purpose of achieving the desired pH and therefore degree of fermentation (see page 10, lines 11-19).
To therefore modify Oste and use a fermentation time of for example, 30 hours would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design, for achieving the desired pH and degree of fermentation.
Claims 1, 3, 8, 9, 12, 13, 17, 20 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Fourcassie (WO 2017017514) in view of Salovaara (WO 9117672).
Regarding claims 1, 3, 13, 17 and 20, Fourcassie teaches a method of making a ready-to-eat product that does not comprise subjecting any edible component of a cereal to enzymatic hydrolysis and comprises subjecting at least one edible component of a cereal that is in an aqueous slurry (see page 2, lines 31-32) to fermentation using at least two lactic acid bacteria including lactobacillus delbrueckii subsp bulgaricus, in combination with bifidobacterium and other lactobacillus species (see page 8, lines 7-31; see page 10, lines 21-23; there is no discussion of using enzymatic hydrolysis).
Fourcassie teaches that the at least one edible component of a cereal can be a cereal flour (see page 25, claim 1, lines 2-3) and which cereal can be oat cereal (see page 20, line 10) and is therefore suggesting oat flour.
Further regarding the particular edible component of the cereal comprising fiber and specifically, oat fiber, Salovaara also teaches fermenting oat cereal including oat fiber, using lactic acid bacteria (see page 5, line 34 to page 6, line 5: “fiber-containing material” “oat bran”; page 12, line 24 to page 13, line 3) for the purpose of providing the desired nutritional and organoleptic properties to the yoghurt.
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Fourcassie, who is not limiting regarding the particular cereal component, and to use an oat cereal component that comprises oat fiber for the art recognized purpose of providing additional nutrition and organoleptic properties to the yoghurt.
Claims 1 and 20 differ in the specific two or more lactic acid bacteria that are being used.
Fourcassie also teaches that it has been conventional to use lactobacillus bacterial strains for making yoghurt including bifidobacterium (see page 8, line 15) as well as other lactobacillus strains (see page 8, lines 9-15) and further that the cereal-based lactic acid fermented product can encompass any food or feed product that is for human consumption (see page 11, lines 1-3).
Salovaara teaches using streptococcus thermophilus as well as lactobacillus bulgaricus (see Table 2 on page 16) for the specific purpose of making ready to eat yoghurt.
Since Fourcassie is not limiting as to the particular lactic acid based fermented cereal product that has been produced, to therefore modify Fourcassie and to use the same lactic acid bacteria to produce a ready to eat, cereal based lactic acid fermented ready to eat product, such as yoghurt, as taught by Salovaara, would have been obvious to one having ordinary skill in the art, as an obvious matter of engineering and/or design choice.
Regarding claims 8-9, Fourcassie teaches fermentation at 42°C (see page 5, lines 32-33) which can be for 30 hours (see page 10, line 15).
Regarding claim 12, Fourcassie teaches heat treatment at 90°C prior to fermentation (see page 11, line 9; page 17, line 8-10).
Regarding claim 29, Fourcassie teaches that the at least one edible component is present at 5-30% of the aqueous slurry (see page 2, lines 23-24).
Response to Arguments
In view of the amendment to the claims, the rejections relying on Brown (US 20180327792) as the primary reference have been withdrawn.
On page 4 of the response, regarding Oste, Applicant urges that the reference discloses that its oat suspension is made using the process incorporated by reference of U.S. Patent No. 5686123 which requires an enzyme treatment step. Applicant urges that Adavena is prepared using an enzymatic process as disclosed int eh ‘123 patent and therefore cannot teach a process that excludes subjecting any edible component of any cereal to enzymatic hydrolysis.
This urging is not persuasive because the Oste process itself is not teaching using an enzymatic process. That is, Oste is taking an already provided product and subjecting said product to fermentation. For example, on paragraphs 29-37, Oste is not disclosing an enzymatic process but rather is teaching a process where an already prepared product ADAVENA is then fermented; and therefore, Oste is not teaching a process to make ready-to-eat yoghurt that includes subjecting any edible component of any cereal to enzymatic hydrolysis. Stated somewhat differently, the method and product claims do not exclude an edible component from comprising hydrolyzed fiber particles and starch molecules (see page 2, line 8 and 17-18 of Applicant’s specification as filed), but rather, only excludes the claimed process from performing a step of subjecting cereal to enzymatic hydrolysis.
On page 5 of the response, regarding Fourcassie, Applicant urges that the reference does not disclose using two or more of the newly claimed lactic acid bacteria in light of the claims excluding Lactobacillus delbrueckii subsp bulgaricus and lactobacillus plantarum.
This argument is not persuasive in view of the new grounds of rejection necessitated by the amendment to the claims.
Further on page 5 of the response, Applicant urges that Fourcassie’s method uses flour and there is no teaching or suggestion to replace Fourcassie’s essential flour with any of the claimed fibers.
This argument is not persuasive because the rejection does not rely on replacing Fourcassie’s oat flour. Rather, the rejection further relied on Salovaara teaching that oat flour can also comprise fiber and fiber can also be included (see Salovaara page 12, line 24 to page 13, line 3) and which fiber can provide desired nutritional and organoleptic properties to the yoghurt such that Salovaara teaches and suggests including fiber with a reasonable expectation of success.
On page 5 of the response, Applicant urges that Salovaara teaches adding enzymes to modify its method or product and therefore cannot teach the claimed exclusion of edible components that have been subject to enzymatic hydrolysis.
This argument is not persuasive because Salovaara’s disclosure on page 7 recites that one may use added enzymes to modify the method or product, which does not teach that enzymes must be used. This is further supported by page 12, line 5-6 because here Salovaara discloses that the product may be adjusted by means of the ingredients and their ratios and with possible enzymatic treatments. This further supports that enzymatic treatment is not required but rather can be a preference. This is further supported by the flow chart on page 15 and page 17, lines 33 to page 18, line 7 which also do not disclose a requirement of enzymatic treatment.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Martensson et al. (“The effect of yoghurt culture on the survival of probiotic bacteria in oat-based, non-dairy products”) teaches that ADAVENA oat base comprises fiber (see page 776, right column table 1) and therefore is teaching and suggesting at least one edible component of a cereal, that comprises oat fibre.
Thrive Market (“Oat Flour vs. Wheat Flour”) teaches that it has been conventional for oat flour to comprise oat fiber (see page 6 of 8, “Oat flour contains…3 grams of fiber”).
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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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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