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 .
This office action is written in response to the Applicants Remarks filed 12/15/25. Claims 1, 6-18 are pending. Claims 1, 6-9, 14, 15, and 16 have been examined on the merits. Claims 10-13 were previously withdrawn. Claims 17 and 18 are withdrawn for their dependency on claims 10 and 12 as will be discussed below.
Election/Restrictions
Newly submitted claims 17 and 18 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 17 and 18 are withdrawn for their dependency on claims 10 and 12 which were previously withdrawn.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 17 and 18 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1, 6-9 have been withdrawn due to the amendment to claims 1, 8, and 9.
The 103(a) rejections of claims 1, and 6-9 over Kudo et al. (EP 1389426) in view of Shimizu JP 2014077067 A Machine Translation 2014-05-01 and JP 4213906 B2 Machine Translation 2009-01-28 have been withdrawn due to the amendments to claims 1, 8, and 9.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 6-9, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Mizusawa et al. (US 2005/0208195) in view of Ogasawara et al. (US 9,708,579) and Sande et al. “Production of omega 3, 6, and 9 fatty acids of hydrolysis of vegetable oils…” Food Sci. Biotechnol 2018 vol. 27 (2) pg. 537-545.
Regarding Claims 1, 6, and 7: Mizusawa discloses a method of making food or drink and specifically discloses fermenting a medium containing a fatty acid and a live number of bacteria from Lactobacillus casei, L. gasseri. L. johnsonii, L. bulgaricus, L. acidophilus [abstract; 0062; 0065]. Mizusawa discloses that degradation products which are the product of lipase treatment of sunflower oil can be used as the raw material that is fermented with the lactic acid bacteria [0028]. Mizusawa discloses that the unsaturated fatty acids are added before fermentation [0028; 0062]. Mizusawa discloses a fermented dairy food/fermenting milk [0062; 0065]. Mizusawa discloses animal milk as a medium [0029; 0031- 0033].
However, claim 1 is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Mizusawa does not disclose wherein the amount of the lipase degradation product added is 3 to 100 ppm in terms of free fatty acids.
Ogasawara discloses a method of making a fermented food product with lactic acid bacteria, L. casei, and including oleic acid (free fatty acid) or its derivatives [col. 6, lines 14-67; claims 8 and 10]. Ogasawara discloses that oleic acid and its derivatives have growth promoting and viability promoting abilities for lactic acid bacteria [abstract; col. 6, lines 14-67; claims 1, 8, and 13]. Ogasawara discloses adding oleic acid at 5 to 50 ppm [col. 6, lines 41-50].
Sande discloses free fatty acids derived from the lipase treatment of oils including olive oil, and sunflower oil [abstract]. Sande discloses the generation of free fatty acids including oleic acid [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Mizusawa to include the free fatty acid at 5 to 50 ppm as in Ogasawara in order to aid in the growth and the viability of lactic acid bacteria. It would have been obvious that the sunflower oil of Mizusawa would have produced a lipase degradation product which was a free fatty acid including oleic acid, since Sande discloses oleic acid as a lipase hydrolysis product of sunflower and olive oils.
Regarding Claim 8: Mizusawa discloses a method of making food or drink and specifically discloses fermenting a medium containing a fatty acid and a live number of bacteria from Lactobacillus casei, L. gasseri. L. johnsonii, L. bulgaricus, L. acidophilus [abstract; 0062; 0065]. Mizusawa discloses that degradation products which are the product of lipase treatment of sunflower oil can be used as the raw material that is fermented with the lactic acid bacteria [0028]. Mizusawa discloses that the unsaturated fatty acids are added before fermentation [0028; 0062]. Mizusawa discloses a fermented dairy food/fermenting milk [0062; 0065]. Mizusawa discloses animal milk as a medium [0029; 0031- 0033].
However, claim 8 is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Mizusawa does not disclose wherein the amount of the lipase degradation product added is 3 to 100 ppm in terms of free fatty acids.
Ogasawara discloses a method of making a fermented food product with lactic acid bacteria, L. casei, and including oleic acid (free fatty acid) or its derivatives [col. 6, lines 14-67; claims 8 and 10]. Ogasawara discloses that oleic acid and its derivatives have growth promoting and viability promoting abilities for lactic acid bacteria [abstract; col. 6, lines 14-67; claims 1, 8, and 13]. Ogasawara discloses adding oleic acid at 5 to 50 ppm [col. 6, lines 41-50].
Sande discloses free fatty acids derived from the lipase treatment of oils including olive oil, and sunflower oil [abstract]. Sande discloses the generation of free fatty acids including oleic acid [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Mizusawa to include the free fatty acid at 5 to 50 ppm as in Ogasawara in order to aid in the growth and the viability of lactic acid bacteria. It would have been obvious that the sunflower oil of Mizusawa would have produced a lipase degradation product which was a free fatty acid including oleic acid, since Sande discloses oleic acid as a lipase hydrolysis product of sunflower and olive oils.
Regarding Claim 9: Mizusawa discloses a method of making food or drink and specifically discloses fermenting a medium containing a fatty acid and a live number of bacteria from Lactobacillus casei, L. gasseri. L. johnsonii, L. bulgaricus, L. acidophilus [abstract; 0062; 0065]. Mizusawa discloses that degradation products which are the product of lipase treatment of sunflower oil can be used as the raw material that is fermented with the lactic acid bacteria [0028]. Mizusawa discloses that the unsaturated fatty acids are added before fermentation [0028; 0062]. Mizusawa discloses a fermented dairy food/fermenting milk [0062; 0065]. Mizusawa discloses animal milk as a medium [0029; 0031- 0033].
However, claim 9 is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Mizusawa does not disclose wherein the amount of the lipase degradation product added is 3 to 100 ppm in terms of free fatty acids.
Ogasawara discloses a method of making a fermented food product with lactic acid bacteria, L. casei, and including oleic acid (free fatty acid) or its derivatives [col. 6, lines 14-67; claims 8 and 10]. Ogasawara discloses that oleic acid and its derivatives have growth promoting and viability promoting abilities for lactic acid bacteria [abstract; col. 6, lines 14-67; claims 1, 8, and 13]. Ogasawara discloses adding oleic acid at 5 to 50 ppm [col. 6, lines 41-50].
Sande discloses free fatty acids derived from the lipase treatment of oils including olive oil, and sunflower oil [abstract]. Sande discloses the generation of free fatty acids including oleic acid [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Mizusawa to include the free fatty acid at 5 to 50 ppm as in Ogasawara in order to aid in the growth and the viability of lactic acid bacteria. It would have been obvious that the sunflower oil of Mizusawa would have produced a lipase degradation product which was a free fatty acid including oleic acid, since Sande discloses oleic acid as a lipase hydrolysis product of sunflower and olive oils.
Regarding Claims 14-16: Mizusawa discloses as discussed above in claims 1, 8, and 9. Mizusawa discloses a lipase degradation product of sunflower oil as discussed above.
Mizusawa does not disclose that the lipase degradation product is a product of olive oil.
Sande discloses free fatty acids derived from the lipase treatment of oils including olive oil, and sunflower oil [abstract]. Sande discloses the generation of free fatty acids including oleic acid [abstract].
At the effective filing date of the invention it would have been obvious to modify the oils of Misuzawa to include olive oil as a source of free fatty acid degradation products as in Sande since Misuzawa discloses generally the inclusion of vegetable oils, sunflower oil, corn, peanut, soy, and since Sande also discloses sunflower oil, corn, peanut, soy, as sources of oils for the degradation product.
Response to Arguments
The 102(a)(1) rejections of claims 1, 6-9 have been withdrawn due to the amendment to claims 1, 8, and 9.
The 103(a) rejections of claims 1, and 6-9 over Kudo et al. (EP 1389426) in view of Shimizu JP 2014077067 A Machine Translation 2014-05-01 and JP 4213906 B2 Machine Translation 2009-01-28 have been withdrawn due to the amendments to claims 1, 8, and 9.
Applicants declaration filed 12/15/25.
Applicants 12/15/25 declaration has been acknowledged:
The Applicants assert that the lipase degradation products of olive oil and sunflower oil will not contain CLA.
The rejections under Kudo have been withdrawn as discussed above.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lali (WO 2013/114178) Lali discloses free fatty acids derived from the lipase treatment of oils including olive oil, and sunflower oil [pg. 11, lines 22-28; pg. 12, lines 1-4].
Selmer-Olsen (US 2011/0117240) discloses adding oleic acid (fatty acid) to milk products which art to be fermented [abstract]. Selmer-Olsen discloses adding 0.25% to 2.5% oleic acid during or before fermentation [claim 23].
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Felicia C Turner/Primary Examiner, Art Unit 1793