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 10/17/25. Claims 1-5, 7-9, 11, 13, 15, 17, 19-25 are pending. Claims 21-24 were withdrawn. Claims 6, 10, 12, 14, 16, 18 and 26 were cancelled. Claims 1-5, 7-9, 11, 13, 15, 17, 19, 20, and 25 have been examined on the merits.
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, 2, 4, 5, 7, 11, 15, 17, 20, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Laughlin “Fermented Garlic Dill Pickles” Feb 16, 2016 3 pages.
Regarding Claims 1, 2, 20: Laughlin discloses a spice bag containing a nutrient composition of nutrients and being free of externally added microorganisms [pgs. 1 and 2].
Regarding Claims 4 and 11: Laughlin discloses as discussed above in claim 1. Laughlin discloses including inorganic minerals, salt, and vitamins in the form of sea salt, mustard seeds, coriander seeds, bay leaves, garlic clove [pg. 1].
Regarding Claims 5 and 7: Laughlin discloses as discussed above in claim 1. Laughlin discloses garlic cloves, mustard seeds, coriander, and dill as nitrogen containing ingredients [pg. 1].
Regarding Claim 15: Laughlin discloses as discussed above in claim 1. Laughlin discloses including vitamins in the form of sea salt, mustard seeds, coriander seeds, bay leaves, garlic clove [pg. 1].
Regarding Claim 17: Laughlin discloses as discussed above in claim 1. Laughlin discloses including an unchlorinated water (a buffering solution) [pg. 1].
Regarding Claim 25: Laughlin discloses a spice bag containing a nutrient composition of nutrients and being free of externally added microorganisms and placing the bag in the vicinity of cucumbers for the production of pickles [pgs. 1 and 2].
Claims 1-5, 7, 8, 11, 13, 20, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Santos (US 9,878,839).
Regarding Claims 1, 2, 3, and 20: Santos discloses a barrier coating applied to food packaging made of paper products [abstract]. Santos discloses the coating comprising seaweed extract (agar, carrageenan) and starch and does not disclose externally added microorganisms [abstract; col. 2, lines 10-36; col.3, lines 1-26].
Regarding Claims 4, 11, and 13: Santos discloses as discussed above in claim 1. Santos discloses including inorganic minerals, salt, and fatty acids [col. 2, lines 55-59; col. 5, lines 48-57].
Regarding Claims 5 and 7: Santos discloses as discussed above in claim 1. Santos discloses proteins as nitrogen containing ingredients and as derived from animal or plants [col. 5, lines 23-40].
Regarding Claim 8: Santos discloses as discussed above in claim 1. Santos discloses carbohydrates (starch); [abstract].
Regarding Claim 25: Santos discloses a barrier coating applied to food packaging made of paper products [abstract]. Santos discloses the coating comprising seaweed extract (agar, carrageenan) and starch and does not disclose externally added microorganisms [abstract; col. 2, lines 10-36; col.3, lines 1-26].
Claims 1-5, 7, 8, 9, 11, 15, 17, 20, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Miyasaka (JP S60-217856 Machine Translation submitted by Applicants).
Regarding Claims 1-5, 7, 8, 9, 11, 17, and 20: Miyasaka discloses a pickling mat containing agar, and seasoning liquid containing miso, sugar, starch syrup salt, water (buffering) and placed in a cotton bag [pg. 1 and 2]. The pickling mat is used to pickle fish, vegetable, and meat [pg. 2]. Miyasaka does not disclose externally added microorganisms.
Regarding Claim 15: Miyasaka discloses as discussed above in claim 1. Miyasaka discloses including vitamins in the form of seasoning liquid [pg. 1].
Regarding Claim 25: Miyasaka discloses a pickling mat containing agar, and seasoning liquid containing miso, sugar, starch syrup salt, water (buffering) and placed in a cotton bag [pg. 1 and 2]. Miyasaka discloses a barrier coating applied to food packaging made of paper products [abstract]. Miyasaka discloses the coating comprising seaweed extract (agar, carrageenan) and starch and does not disclose externally added microorganisms.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Miyasaka (JP S60-217856 Machine Translation submitted by Applicant) in view of Wilhoit (US 5,573,797).
Regarding Claims 17 and 19: Miyasaka as modified discloses as discussed above in claim 1. Miyasaka discloses including an unchlorinated water (a buffering solution) [pg. 1].
Wilhoit discloses a film for the treatment of food surfaces [abstract]. Wilhoit discloses using buffered solutions of about 6 or less [col. 7, lines 4-10; col. 8, lines 8-20; col. 9 lines 44-49]. Wilhoit discloses the preservation of food via the film treatment [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 composition of Miyasaka to achieve a pH level in the structure that is sufficient for preventing bacterial growth and that is compatible with food as in Wilhoit in order to support the preservation of the food product and the organoleptic properties of the food to which it is applied.
Response to Arguments
The Applicants assert that the prior art used in the above rejection so not disclose each and every limitation, namely “ for supporting selective growth of one of more bacteriocin-producing bacterium on said substrate and being essentially free of externally added microorganisms”.
The Examiner disagrees because the references do disclose being essentially free of added microorganisms. Further, the Examiner notes that the phrase “for supporting the growth of one or more bacteriocin producing bacterium” is a recitation of intended use 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. Further, the fact that actual bacteriocin producing microorganisms are not recited in the claims as being acted upon supports its status as intended use.
For the reasons above the rejections have been maintained.
Conclusion
9. THIS ACTION IS MADE FINAL. 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.
10. 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.
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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.
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/Felicia C Turner/Primary Examiner, Art Unit 1793