DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 5/28/26.
Claims 1, 6-18 are pending. Claims 1, 6-9, 14, 15, and 16 have been examined on the merits. Claims 10-13, 17, and 18 were previously withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/28/26 has been entered.
Withdrawn Rejections
The 103(a) rejections of claims 1, 6-9, and 14-16 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 Biotechnol 2018 vol. 27 (2) pg. 537-545 have been withdrawn due to the amendments to the claims.
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 and Suganuma et al. US 20110318453.
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.
Mizusawa does not disclose that the lipase is derived from wherein the lipase degradation product is a degradation product of a lipase at least one of the genus Candida, the genus, Rhizopus, the genus Penicillium, and the genus Aspergillus.
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].
Suganuma discloses treating vegetable oils with lipase [abstract; 0037]. Suganuma discloses sunflower oil [0037]. Suganuma discloses that the lipase can be derived from Rhizopus or Aspergillus [0037].
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.
Further it would have been obvious to utilize lipase derived from Rhizopus or Aspergillus as in Suganuma since they are able to degrade plant oils to produce fatty acids.
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.
Mizusawa does not disclose that the lipase is derived from wherein the lipase degradation product is a degradation product of a lipase at least one of the genus Candida, the genus, Rhizopus, the genus Penicillium, and the genus Aspergillus.
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].
Suganuma discloses treating vegetable oils with lipase [abstract; 0037]. Suganuma discloses sunflower oil [0037]. Suganuma discloses that the lipase can be derived from Rhizopus or Aspergillus [0037].
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.
Further it would have been obvious to utilize lipase derived from Rhizopus or Aspergillus as in Suganuma since they are able to degrade plant oils to produce fatty acids.
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.
Mizusawa does not disclose that the lipase is derived from wherein the lipase degradation product is a degradation product of a lipase at least one of the genus Candida, the genus, Rhizopus, the genus Penicillium, and the genus Aspergillus.
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].
Suganuma discloses treating vegetable oils with lipase [abstract; 0037]. Suganuma discloses sunflower oil [0037]. Suganuma discloses that the lipase can be derived from Rhizopus or Aspergillus [0037].
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.
Further it would have been obvious to utilize lipase derived from Rhizopus or Aspergillus as in Suganuma since they are able to degrade plant oils to produce fatty acids.
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 Mizusawa to include olive oil as a source of free fatty acid degradation products as in Sande since Mizusawa 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 103(a) rejections of claims 1, 6-9, and 14-16 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 have been withdrawn due to the amendments to the claims.
Conclusion
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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