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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 10, 2026 has been entered.
Claims 1-3, 6, 8-11, 13, 22, 23, 25-27, 33, 35 and 47 are pending.
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 1-3, 6, 8-11, 13, 22, 23, 25-27, 33, 35 and 47 are rejected under 35 U.S.C. 103 as being unpatentable over Gil-Martinez et al. (US 2019/0200640) in view of Klose et al. (“Brewing with 100% Oat Malt”, The Institute of Brewing & Distilling, Vol. 117, No., 3 (2011), p. 411-421) and as evidenced by Zambrano et al. (“Characterization of high Arabinoxylan oat lines identified from a mutagenized oat population”, Food Chemistry, 404, (2023), pp. 1-10).
Regarding claims 1, 3, 6, 13 and 27, Gil-Martinez et al. disclose a method of preparing a beverage component (i.e., flavor modifying ingredient) or food component (i.e., flavor modifying ingredient ) comprising the steps of: (a) enzymatically treating brewer’s spent grain by the addition of one or a combination of enzymes with alpha-amylase, gluco-amylase, cellulase, xylanase, protease and/or beta-glucanase activity; (b) fermentation of the brewer’s spent grain by a strain of lactic acid bacteria to obtain a fermentation broth; and (c) filtering the fermentation broth to obtain a beverage component or food component (i.e., flavor modifying ingredient -[0009]-[-0011], [0087]).
OR;
Gil-Martinez et al. also disclose a process of method of preparing a beverage (i.e., probiotic drink) comprising the steps of: (a) enzymatically treating brewer’s spent grain by the addition of one or a combination of enzymes with alpha-amylase, gluco-amylase, cellulase, xylanase, protease and/or beta-glucanase activity; (b) fermentation of the brewer’s spent grain by a strain of lactic acid bacteria to obtain a fermentation broth; and (c) filtering the fermentation broth to obtain a beverage ([0009]-[-0011], [0087]). Gil-Martinez et al. disclose the beverage comprises probiotics, including Lactobacillus ([0008], [0024]). Gil-Martinez et al. also disclose the beverage comprises high fiber and a sufficient proportion of which is comprised by health -promoting water -extractable arabinoxylans (WEAX – [0008]). Gil-Martinez et al. disclose that the enzyme treatment of the brewer’s spent grain results in an increase of the level of WEAX ([0020]).
Gil Martinez et al. disclose the brewer’s spent grain is obtained from a regular beer production process and comprise malted barley and an adjunct where the adjunct is oat ([0053]). Given Gil-Martinez et al. disclose oat, inherently the oat would comprise oat fiber. Gil Martinez et al. disclose the brewer’s spent grains including oat are used in the form of a slurry (i.e., mixture of brewer’s spent grains and water – [0059]).
Gil-Martinez et al. disclose the lactic acid bacteria include L. planetarium ([0021]). Gil-Martinez et al. also disclose that other lactic acid bacteria can be used including L. casei, L. brevis, and L. delbruckeii ([0064]/Examples of lactic acid bacteria). Absent evidence to the contrary, given Gil-Martinez et al. disclose L. delbruckeii, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used any sub-species including bulgaricus, with a reasonable expectation of success. Moreover, while Gil-Martinez et al. does not specifically disclose Streptococcus thermophiles, Lactobacillus acidophilus or Bifidobacterium, the reference clearly disclose the use of lactic acid bacteria generally (fermenting the saccharified brewer’s spent grain with lactic acid bacteria and/or acetic acid bacteria – [0050], [0063], [0064]/Examples of lactic acid bacteria), the person of ordinary skill in the art would have been motivated to use any lactic acid bacteria or combination thereof, including combinations of the claimed bacteria, and arrive at the present invention with a reasonable expectation of success.
While Gil-Martinez et al. disclose treating brewer’s spent grain comprising malted barley, the reference is silent with respect to a source of fiber free of barley.
Klose et al. teach brewing beer with 100% oat malt (Abstract). Klose et al. teach oats are a cereal with beneficial nutritional properties and can be tolerated by the majority of people who suffer from celiac disease (p. 1/Abstract). As evidenced by Zambrano et al. oats are rich in dietary fibers of hemicellulose origin denoted arabinoxylans (AX)(p. 1/I. Introduction).
Given Klose et al. teach oat malt can be used as an alternative to barley malt when making beer, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used brewers spent grain from brewing beer with 100% oat malt in the process of Gil-Martinez et al. because oat is tolerated by consumers who suffer from celiac disease. Moreover, one of ordinary skill in the art would expect the oat spent grain, known to comprise arabinoxylans (AX) to result in a similar healthful product as barley spent grain as processed by Gil-Martinez et al.
Regarding claim 2, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. While Gil-Martinez et al. only disclose oat wherein oat inherently comprises fiber, the reference does not disclose wherein the dietary oat fiber is isolated dietary oat fiber.
In this case, given claim 1 is directed to a method of producing a probiotic drink, how the oat fiber in the drink is obtained does not lend patentable weight to the claim. In the probiotic drink, isolated oat fiber versus fiber found in the oat grain cannot be distinguished.
Regarding claims 8 and 9, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Gil-Martinez et al. disclose the enzymatic hydrolysis is performed for at least 2 hours at a temperature of about 55°C ([0067]).
Regarding claims 10 and 11, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Gil-Martinez et al. disclose the fermentation is performed at a temperature ranging between 25 and 37°C for 8 to 24 hours (i.e., one day – [0067]).
Regarding claim 22, modified Gil-Martinez et al disclose all of the claim limitations as set forth above. While Gil-Martinize et al. disclose fermentation happens over a period of 8 to 24 hours (i.e., one day – [0067], the references is silent with regards to a times greater than 1 day. However, Gil-Martinez et al. disclose the fermentation is followed by critical parameters such as pH, extract, total acidity and concentration of reducing sugars ([0068]). The process is considered when these parameters are at a desired level ([0068]). One of ordinary skill in the art would have been motivated to adjust, in routine processing, the temperature and time of fermentation to obtained the desired critical parameters.
Regarding claim 23, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Given Gil-Martinez et al. disclose hydrolysis is conducted at a temperature of about 55°C ([0067]), it would have been obvious to the person of ordinary skill in the art prior to the effective filing date of the present application to have heated the composition comprising oat fiber to the hydrolysis temperature prior to the addition of enzyme.
Regarding claims 25 and 26, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Given claim1 is directed to a method of producing a flavor modifying ingredient OR a probiotic drink, since Gil-Martinez et al. disclose a method of producing a probiotic drink, the limitations of claims 25 and 26 are satisfied.
Regarding claims 33 and 35, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Gil-Martinez et al. disclose adding the beverage/food component (i.e., flavor modifying ingredient( can be added to fruit juice to make a beverage or to foodstuffs, including pastas, breads, cereal products, and pastas, to make a food product ([0090]).
Regarding claim 47, modified Gil-Martinez et al. disclose all of the claim limitations as set forth above. Gil-Martinez et al. disclose adding the beverage/food (i.e., flavor modifying ingredient) component to a foodstuff or beverage. Gil-Martinez et al. also disclose the component may comprises prebiotics ([0008]).
Response to Arguments
Applicant’s arguments with respect to claims 1-3, 6, 8-11, 13, 22, 23, 25-27, 33, 35 and 47 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
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759