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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3 March 2026, has been entered.
Response to Amendments
Status of Claims
The amendment, filed on 3 March 2026, is acknowledged.
Claims 1 and 10-11 have been amended.
Claims 1-12 are pending and under consideration in the instant Office Action, to the extent of the following elected species:
the microorganism L. fermentum;
the biomaterial biocellulose from Komagataeibacter xylinus;
the loading method of injecting microorganisms;
the osmotically and/or hygroscopically effective solution NaCl and glucose; and
the further ingredients lysine and docosahexaenoic acid (DHA).
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 103
The rejections of claims 1-12 under 35 U.S.C. § 103 are withdrawn in view of Applicant’s amendments to the claims and in favor of the new grounds of rejection below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12 February 2026, was filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
New Grounds of Rejection
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 was amended to recite “loading the one or more microorganisms…into and/or onto the BNC non-woven biomaterial after the incubating”. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a join inventor, at the time the application was filed, has possession of the claimed invention. This is a new matter rejection.
MPEP § 2163.II.A.3.(b) states, "when filing an amendment an applicant should show support in the original disclosure for new or amended claims". See also MPEP 714.02. MPEP § 2163.II.A.3.(b) further states, "[i]f the originally filed disclosure does not provide support for each claim limitation, or if an element which applicant describes as essential or critical is not claimed, a new or amended claim must be rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112, para. 1, as lacking adequate written description". According to MPEP § 2163.I.B, "While there is no in haec verba requirement, newly added claim limitations must be supported in the specification through express, implicit, or inherent disclosure" and "The fundamental factual inquiry is whether the specification conveys with reasonable clarity to those skilled in the art that, as of the filing date sought, applicant was in possession of the invention as now claimed. See, e.g., Vas- Cath, Inc., 935 F.2d at 1563-64, 19 USPQ2d at 1117".
In the remarks filed on 3 March 2026, Applicant did not specifically point to support for the new limitation in the original disclosure and the Examiner was not able to find apparent descriptive support for the limitation. As a result, Applicant’s amendment introduces new matter into the claim and amended instant claim 1 is rejected under 35 U.S.C. § 112(a). Claims 2-12 depend from claim 1, incorporate all of its limitations, and are therefore also rejected.
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 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Żywicka et al. (World J. Microbiol. Biotechnol. 2019, 35 (11), 1., published on 2 January 2019, hereafter referred to as Żywicka) as evidenced by de Man et al. (J. Appl. Bact. 1960, 23 (1), 130.) in view of Pan et al. (J. Sci. Food Agric. 2011, 91 (3), 395., hereafter referred to as Pan), Wang et al. (Int. J. Food Microbio. 2004, 93, 209., hereafter referred to as Wang), Prasad et al. (J. Appl. Environ. Microbio. 2003, 69 (2), 917., hereafter referred to as Prasad), and Yao et al. (Process Biochem. 2011, 46 (10), 2054., hereafter referred to as Yao).
Żywicka teaches methods of immobilizing microorganisms on bacterial cellulose and studies of the various properties (Abstract). Żywicka teaches that bacterial cellulose (BC), which is taught by Żywicka to be a “multifunctional nano-biomaterial produced mainly by acetic acid bacterial” and is therefore considered equivalent to the bacterially synthesized nanocellulose (BNC) recited in the instant claims, is a carrier of natural origin that displays “low or no toxicity, biocompatibility, and biodegradability” and as a result is “particularly recommended for cell immobilization” (pg. 2, Introduction, para. 1-2). One bacteria taught to produce large quantities of cellulose and therefore be considered as a “model microorganism for studies” of bacterial nanocellulose is Komagataeibacter xylinus (pg. 2, Introduction, para. 2). BC is further taught to have served as a carrier for numerous microorganisms, including bacterial species such as Lactobacillus which Żywicka teaches are “commonly used as probiotics” (pg. 2, Introduction, para. 2-3). Advantages of BC as carriers arise from its “unique chemical and physical properties” such as high purity and mechanical strength, unique nanostructure, excellent biodegradability, and low cytotoxicity and Żywicka notes that “BC nanostructure can be relatively easily modified without using expensive or time-consuming chemical processes” (pg. 2, Introduction, para. 2-3).
Due to the wide variety of microorganisms and/or cells that can be immobilized onto/into BC, Żywicka takes care to note that there is "no single carrier and immobilization procedure suitable for all types of cells or applications" (pg. 3, left col., para. 2). In the current work, Żywicka utilizes a technique that adsorbs microorganisms onto the exterior of BC, followed by incubation that results in immobilization both on the surface and inside of the BC carrier (pg. 3, left col., para. 1). After growth and prior to loading the BC carriers, the BC is taught to be sterilized (pg. 3, Preparation of supports). The Lactobacillus species that was loaded onto the BC was taught to be cultured in MRS media (pg. 3, Microorganisms and culture conditions), which contains glucose as evidenced by de Man et al. (pg. 132, Final growth medium), and suspended in fresh MRS media prior to incubation with the BC carrier (pg. 4, Adsorption step), which is interpreted as being equivalent to microorganisms that have been resuspended in culture medium as recited in instant claim 1 and are loaded as vegetative cells that have been pre-cultured as recited in instant claims 4-5. The loaded BC carriers are taught to have been incubated at 37 °C for 72 h, falling within the ranges recited in step b) of instant claim 2 (pg. 4, Incubation step). Żywicka further teaches that the thickness of the BC carriers was measured prior to loading (pg. 4, left col., para. 1) and ranged from 20-40 mm (pg. 7, Discussion, para. 1).
Żywicka teaches that incubation of BC carriers with microorganisms in media not only significantly increased the number of immobilized microorganisms on the surface of the carrier, but also impregnated the BC with components of the medium (pg. 9, right col., para. 2). "The substrates from medium diffused partially into the internal structure of BC pieces, providing a source of carbon for cells during incubation", which Żywicka teaches to be important for growth of loaded microorganisms as nutrients from the medium may reach immobilized cells via pore tunnels providing "good conditions for cell growth" (pg. 9, right col., para. 2). In addition, it is taught that the "porous structure of BC also provides a moist and favorable environment for cells", that uncontrolled release of loaded microorganisms from BC carriers can be a problem, and that Lactobacillus bacteria are in higher concentration in BC that have “denser structure and lower porosity” (pg. 10, left col., para. 1-4).
Żywicka does not teach the loaded Lactobacillus bacteria to be L. fermentum, freeze drying, the BNC to be incubated with NaCl, nor loading microorganisms into/onto BNC biomaterial via injection. These deficiencies are offset by the teachings of Pan, Wang, Prasad, and Yao.
Pan teaches a characterization of Lactobacillus fermentum SM-7, a lactic acid bacteria isolated from the fermented milk drink koumiss, and its potential applications (Abstract). Due to the health risks of high blood cholesterol levels and observations that lactic acid bacteria have potential as cholesterol-lowering food additives, Pan teaches the isolation and characterization of a strain of Lactobacillus from koumiss, including its mechanism of cholesterol removal and applications in lowering human cholesterol levels (pg. 512-513, Introduction, para. 1-4). The isolated strain, identified as L. fermentum SM-7, was found to have good acid and bile salt tolerance, antimicrobial effects against E. coli and S. aureas., and the ability reduce cholesterol levels in vivo (Table 2, Fig. 3, and pg. 516-517, Discussion, para. 1-5). Pan concludes that as a result of L. fermentum SM-7 being effective at reducing cholesterol levels in vivo the bacteria has “clinical value in the management of hypercholesterolaemia” (pg. 517, Conclusion).
Wang teaches the impact of freeze-drying and spray-drying, storage, and subsequent rehydration on the viability of lactic acid bacteria and bifidobacteria (Abstract). The lactic acid bacteria are members of the Streptococcus and Lactobacillus families and all bacteria were subjected to spray-drying and freeze-drying, the latter occurring at -20 °C for the initial freeze, then subsequent vacuum-assisted sublimation of water at -50 °C for ~50 h (pg. 210, Materials and methods, 2.2. Dehydration processes). The water content of dried microorganisms is taught to be important, as they survive better at ‘low-water activity”; however, overdrying can diminish the viability and stability and the optimal residual moisture content varies based upon the storage conditions and species of microorganism (pg. 211, Results and discussion, 3.1. Moisture content of the fermented soymilk after drying). Freeze-drying bacteria resulted in a moisture content of 2.9-3.5%, which falls within the parameters recited in instant claim 1 (Table 1).
The freeze-drying process was taught by Wang to enable a higher survivability of microorganisms than spray-drying in Lactobacillus acidophilus (Table 2). Following drying, all bacteria tested in the reference were placed in a laminated pouch made of nylon/aluminum/retort-coated polypropylene, which was then vacuum sealed prior to storage (pg. 210, Materials and methods, 2.3. Storage of the dried fermented soymilk). This packaging is determined to be equivalent to the “positioning between two foils” and sealing of instant claim 3. Finally, Wang taught that dried bacteria stored in the laminated pouch for 4 months exhibited improved survivability as compared to bacteria stored in glass or polyester bottles for the same period of time (Fig. 2 and pg. 216, Results and discussion, 3.4. Survival of S. thermophilus and B. longum during storage).
Prasad teaches a review of the impact of heat and osmotic stress responses of the probiotic L. rhamnosus HN001 on viability after drying (Title and Abstract). Industrial preservation of lactobacilli is taught to utilize the processes of freezing, freeze-drying, and air-drying, which can cause damage to the probiotics and result in reduced viability (pg. 917, left col., para. 1-2). Previous research has found that certain stress responses in bacteria can lead to enhanced abilities to withstand environmental conditions, which Prasad investigated in L. rhamnosus by inducing heat and osmotic shock with increased temperatures and NaCl concentrations in media, respectively (pg. 917, right col., final para. and Materials and Methods). Prasad found that the “robustness of L. rhamnosus HN001 can be improved by stress adaptation to withstand industrial processes (such as drying and rehydration) and storage conditions” (pg. 924, right col., para. 2).
Yao teaches the use of bacterial cellulose membrane (BCM) for yeast cell immobilization and production of ethanol (Title and abstract). Yeast cells were immobilized in BCM produced from Acetobacter xylium, which is another name for the elected Komagataeibacter xylinus, via injection by a syringe following suspension (pg. 2055, 2.3. Immobilization of yeast cells on BCM). Yao found that yeast cells immobilized inside BCM carriers produced better fermentation results than free yeast cells, indicating the BCM carriers had “little adverse effect on cell viability and proliferation, and would facilitate product leakage and nutrients transportation by the porous and ultrafine network of BC membrane” (pg. 2058, Conclusions).
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the freeze-drying time and water content, incubation temperature and time, and thickness of the bacterial cellulose. In each instance, the ranges taught by the prior art significantly overlap with or encompass the recited ranges, rendering them obvious.
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to arrive at the claimed method in view of the teachings of Żywicka Pan, Wang, Prasad, and Yao because modifying a known method with techniques known in the art to impart known benefits produces predictable results. Żywicka teaches methods of immobilizing microorganisms including Lactobacillus bacteria on bacterial cellulose derived from Komagataeibacter xylinus which include sterilizing the BC carrier prior to loading, culturing the Lactobacillus bacteria in media, resuspending the bacteria in fresh media prior to loading, and incubating the loaded BC carrier. Żywicka further teaches that the thickness of the BC carriers was 20-40 mm.
In view of the teachings of Pan, a person of ordinary skill in the art would be motivated to load the BC carrier taught by Żywicka with L. fermentum because Pan teaches the species to be a probiotic that can reduce cholesterol levels in subjects following ingestion. The ordinary artisan would recognize this application as desirable for their carrier system and would be motivated to use the carrier of Żywicka to deliver L. fermentum.
Wang teaches experimental details of the freeze-drying process, including temperature and time, as well as improved survivability of dried Lactobacillus bacteria as compared to spray-dried bacteria. An artisan would be motivated to use the teachings of Wang to enable proper freeze-drying of the bacteria-loaded BNC structure because Żywicka does not teach a method of long-term storage of their loaded bacterial nanocellulose carrier and Wang teaches a viable storage method. Wang further teaches that packaging the freeze-dried bacteria in a laminated pouch and vacuum sealing the package improves survivability during long-term storage, which an artisan would reasonably expect to work for other members of the Lactobacillus genus such as L. fermentum.
Żywicka teaches that incubation of BC carriers with microorganisms in media can impregnate the BC with components of the medium, providing nutrients for cells during incubation, that nutrients from the medium may reach immobilized cells via pore tunnels providing "good conditions for cell growth", and that the "porous structure of BC also provides a moist and favorable environment for cells". In view of the teachings of Prasad, one of ordinary skill in the art would be motivated to incubate the BC carrier of Żywicka with media that contains NaCl such that the salt impregnates the BC and will contact immobilized cells because Prasad teaches that osmotic shock induced by NaCl can improve the viability of cells following the common industrial process of freeze-drying. An ordinary artisan would desire the cells loaded onto their BC carriers be resilient against storage conditions and maintain viability following freeze-drying and would therefore be motivated to utilize NaCl in their method.
Finally, in view of the teachings of Yao a person of ordinary skill would be motivated to inject cells to be loaded into BC carriers because Żywicka teaches that uncontrolled release of loaded microorganisms from BC carriers can be a problem and Yao’s method of injection was reported to result in loaded microorganisms that functioned better than free in media, indicating the injected bacterial cellulose carriers had “little adverse effect on cell viability and proliferation, and would facilitate product leakage and nutrients transportation by the porous and ultrafine network of BC membrane”. The ordinary artisan would desire their loaded microorganisms to maintain their viability and would therefore be motivated to load L. fermentum on the BC carriers via injection of a suspension. As a result, there is a reasonable expectation of success in arriving at the method of instant claims 1-11 in view of the teachings of Żywicka Pan, Wang, Prasad, and Yao.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Żywicka (World J. Microbiol. Biotechnol. 2019, 35 (11), 1., published on 2 January 2019) as evidenced by de Man et al. (J. Appl. Bact. 1960, 23 (1), 130.) in view of Pan (J. Sci. Food Agric. 2011, 91 (3), 395.), Wang (Int. J. Food Microbio. 2004, 93, 209.), Prasad (J. Appl. Environ. Microbio. 2003, 69 (2), 917.), and Yao (Process Biochem. 2011, 46 (10), 2054.) as applied to claims 1-11 above, and further in view of Gysler et al. (U.S. Patent Application Publication No. US 2011/0287143 A1, published on 24 November 2011, hereafter referred to as Gysler).
Żywicka Pan, Wang, Prasad, and Yao teach the above.
Żywicka Pan, Wang, Prasad, and Yao do not teach the BNC biomaterial to be loaded with the amino acid lysine nor the omega-3 fatty acid docosahexaenoic acid (DHA). These deficiencies are offset by the teachings of Gysler.
Gysler teaches a composition for the delivery of nutrients, via temperature sensitive microorganism, to the gastrointestinal tract (Abstract). Because of certain properties, such as process sensitivity, poor storage stability, and poor stability in gastric liquids, many food additives and nutrients are taught to have difficulty reaching their intended target (para. [0002-0003]). To overcome these limitations, Gysler teaches a composition that utilizes a “temperature sensitive micro-organism that will fully or at least partially lyse when exposed to temperature range of about 32 to 45 °C” (para. [0012]). In a preferred embodiment, the microorganism is a yeast because they “generally have a positive impact on the taste of a product, are easy to produce and efficiently accumulate compounds provided by their growth medium or synthesized by them” (para. [0020-0025]). Alternatively, the microorganism is taught to be a bacterium, in particular from the family Lactobacillus (para. [0027]). Bacteria are taught to be advantageous in the invention because “they are easy to produce in large quantities and…they are often already present naturally in the guy, so that a body is not confronted with foreign species” (para. [0028]).
The compounds taught to preferably be delivered alongside the microorganism are nutrients, as they are important to the metabolism of the microorganism and human subject (para. [0052-0053]). Examples of nutrients which can be delivered include lipids, preferably polyunsaturated fatty acids, fatty amides, and/or glycerophospholipids, and essential amino acids, such as lysine (para. [0054-0055]). If the composition includes a fat source, DHA is taught to also be added (para. [0076]). The “loaded microorganisms” are subsequently taught to be incorporated into a food matrix by “methods that are known in the art, for example for probiotics” (para. [0071]).
It would have been prima facie obvious to one of ordinary skill in the art to modify the method rendered obvious by the teachings of Żywicka Pan, Wang, Prasad, and Yao with the teachings of Gysler because combining prior art elements according to known methods yields predictable results. The method rendered obvious by the teachings of Żywicka Pan, Wang, Prasad, and Yao loads L. fermentum microorganisms onto bacterial nanocellulose carriers via injection alongside glucose for propagating the growth of the microorganisms and NaCl for improving resilience to stress from freeze-drying. An artisan would be motivated to also incubate the BC carriers with lysine and DHA in view of the teachings of Gysler because the above references teach that nutrients from incubation media can permeate BC carriers to reach microorganisms and aid growth and/or function. Gysler teaches that the specific species lysing and DHA are useful in the metabolism of both the delivered microorganism(s) and human subjects and an ordinary artisan would recognize their inclusion in the BNC structure as beneficial. As a result, there is a reasonable expectation of success in arriving at the method of instant claim 12 in view of the teachings of Żywicka Pan, Wang, Prasad, and Yao and further in view of the teachings of Gysler.
Response to Arguments
The Applicant’s arguments, filed on 3 March 2026, have been fully considered but are not persuasive.
Applicant argues from para. 3 of pg. 9 para. 3 of pg. 10 of the remarks that the Khorasani reference “does not provide an expectation of success for loading microorganisms resuspended in a buffer or culture medium into and/or onto the BNC non-woven biomaterial after incubating the BNC non-woven biomaterial” because incubating the BNC taught by Khorasani would further limit the pore size of their BNC biomaterial, limiting loading capability. Applicant also argues that a person of ordinary skill would not be motivated to load microorganisms onto the BNC of Khorasani after incubation because of reduced pore size. This argument has been rendered moot in view of the new grounds of rejection above, in particular in view of the teachings of Żywicka regarding the loading of microorganisms onto already synthesized BC carriers, which are equivalent to the recited BNC structure, and the utility of substrates from media diffused into the internal structure of BC carriers.
From the final para. of pg. 10 to para. 1 of pg. 11 that the BNC structure of Khorasani is “entirely different” from the BNC structure as recited in instant claim 1 because the BNC in the instant application is synthesized prior to loading with microorganisms. This argument has been rendered moot in view of the new grounds of rejection above, in particular in view of the teachings of Żywicka regarding the loading of microorganisms onto already synthesized BC carriers, which are equivalent to the recite BNC structure.
In para. 2 of pg. 11, Applicant argues that the Lynch reference “does not teach the injection method of present Claim 1”. In view of the new grounds of rejection above which rely upon the teachings of the Yao reference to motivate injecting microorganisms, this argument is considered moot.
From the final para. of pg. 11 to para. 1 of pg. 12, Applicant argues that “none of the cited prior art documents teach or disclose the step of incubating the synthesized BNC non-woven biomaterial with an osmotically and/or hygroscopically effective solution before loading”. This argument is found unpersuasive in view of the teachings of the Żywicka reference, which teaches that substrates from medium can diffuse into the internal structure of BC carriers, which a person of ordinary skill would recognize as having utility in maintaining loaded microorganisms.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure includes Mikelsaar et al. (Microb. Ecol. Health Dis. 2009, 21, 1.), which teaches the antimicrobial and antioxidative properties of L. fermentum ME-3 which make it a probiotic (Abstract).
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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