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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the objections to claims 1-2 and 23 have been withdrawn; (2) the 35 U.S.C. §103 rejection of claim 25 over Johnson, Marchal, and Oudot has been withdrawn; and (3) the 35 U.S.C. §103 rejections of claims 24 and 26 over Johnson, Boufassa, and Marchal have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-4, 8-9, 11-14, 18-19, 21-23
Withdrawn claims: None
Previously cancelled claims: 5-7, 10, 15-17, 20
Newly cancelled claims: 24-26
Amended claims: 1-2, 23
New claims: None
Claims currently under consideration: 1-4, 8-9, 11-14, 18-19, 21-23
Currently rejected claims: 1-4, 8-9, 11-14, 18-19, 21-23
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/13/2025 has been entered.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 23 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 23 recites an inoculation rate of 105-107 cfu/g of vegetal base. However, the claim does not specify whether this inoculation rate refers to the (A) total amount of the heterofermentative bacteria and homofermentative bacteria; (B) the total amount of heterofermentative bacteria; (C) the total amount of homofermentative bacteria; (D) the amount of heterofermentative Bifidobacteria; (E) the amount of heterofermentative lactic acid bacteria; (F) the amount of homofermentative Streptococcus thermophilus; or (F) the amount of homofermentative Lactococcus lactis. Therefore, the claim is indefinite.
For the purpose of this examination, the inoculation rate will be interpreted as meaning the total amount of homofermentative bacteria per the disclosure in lines 5-13 on page 7 of the present specification.
Claim Rejections - 35 USC § 103
Claims 1-4, 9, 11-14, 19, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (US 2020/0352202; previously cited) in view of Marchal (WO 2017/021754; previously cited) and Kizer (WO 2017/185093).
Regarding claims 1 and 2, Johnson teaches a process for the preparation of a fermented plant-based composition and a fermented plant-based composition [0001], wherein the process comprises: (a) providing a mixture containing: (i) a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal [0065]-[0067]; (ii) heterofermentative bacteria selected from Bifidobacteria; and (iii) homofermentative lactic acid bacteria [0089], [0134]; wherein the homofermentative bacteria comprises fructose positive Streptococcus thermophilus (corresponding to the homofermentative bacteria being a member of the genus Streptococcus [0134] such as Streptococcus thermophilus [0089] and the homofermentative pathway converting fructose into lactic acid [0134]). Since Johnson discloses that the mixture comprises (i)-(iii), Johnson discloses a mixture for fermentation and a fermented composition that does not comprise almond milk or fully or partially hydrolyzed cereal as recited in present claims 1 and 2. Johnson teaches that the process further comprises: (b) fermenting the mixture to provide a fermented plant-based composition [0130] in which lactic acid is a primary product and acetic acid may also be produced [0134]. Johnson also teaches that the starter culture was inoculated onto/into a medium at any concentration that supports the establishment and growth of live bacteria and exemplifies such densities [0128]; and that the composition provides health benefits to the consumer while preserving organoleptic qualities [0051], [0116].
Johnson teaches that the bacteria mixture may further comprise bacteria from the genus Lactococcus [0134]; and a probiotic strain [0089]. Johnson does not teach that the fermented composition has a lactic acid to acetic acid ratio of at least 1.5; a concentration of heterofermentative bacteria of at least 105 cfu/g; a concentration of homofermentative bacteria of at least 105 cfu/g; or that the homofermentative bacteria further comprises Lactococcus lactis.
However, Marchal teaches a plant-based composition (corresponding to a fermented milk product comprising vegetal milk) (page 4, lines 20, 30-32) comprising: (i) a fermented vegetal base, wherein the vegetal base does not comprise almond milk or fully or partially hydrolyzed cereal (corresponding to milk made from soya, oat, or rice) (page 4, lines 30-32); (ii) 106-108 cfu/g heterofermentative bacteria Bifidobacteria (page 2, lines 14-16; page 5, line 17); and (ii) 106-108 cfu/g homofermentative lactic acid bacteria Streptococcus thermophilus (page 6, lines 12-17). These disclosed concentrations of heterofermentative and homofermentative bacteria fall within the claimed concentrations. Marchal also teaches that the mixture further contains at least one strain of the heterofermentative probiotic Lactococcus lactis (page 5, lines 25-31; page 6, lines 1-3). Marchal discloses that the plant-based composition confers a health benefit to the consumer (page 1, lines 7-10, 21-23).
It would have been obvious for a person of ordinary skill in the art to have modified the plant-based composition of Johnson to have a concentration of heterofermentative bacteria of 106-108 cfu/g; and a concentration of homofermentative bacteria of 106-108 cfu/g as taught by Marchal. Since Johnson teaches that the starter culture was inoculated onto/into a medium at any concentration that supports the establishment and growth of live bacteria and exemplifies such densities [0128]; and that the composition provides health benefits to the consumer [0051], but does not specify concentrations of heterofermentative and homofermentative bacteria in the plant-based composition, a skilled practitioner would have been motivated to consult an additional reference such as Marchal in order to determine suitable concentrations of heterofermentative and homofermentative bacteria in a fermented composition retaining its health benefits. Therefore, the claimed concentrations of heterofermentative and homofermentative bacteria as recited in present claims 1 and 2 are rendered obvious.
It also would have been obvious for a person of ordinary skill in the art to have modified the heterofermentative bacteria of Johnson to further include at least one species of Lactococcus lactis as taught by Marchal. Since Johnson teaches that the bacteria for its composition comprises the heterofermentative bacteria Bifidobacteria; the homofermentative lactic acid bacteria Streptococcus thermophilus [0089], [0134]; bacteria from the genus Lactococcus [0134]; and a probiotic strain [0089]; but does not specify a species from the genus Lactococcus or a probiotic strain, a skilled practitioner would have been motivated to consult an additional reference such as Marchal in order to determine a suitable species of Lactococcus and a suitable probiotic to use with Bifidobacteria and Streptococcus thermophilus. Therefore, the claimed inclusion of heterofermentative Lactococcus lactis in the mixture to be fermented and in the subsequent fermented composition as recited in present claims 1 and 2 is also rendered obvious.
The combination of Johnson and Marchal does not teach that the fermented composition has a lactic acid to acetic acid ratio of at least 1.5.
However, Kizer teaches a fermented plant-based composition (corresponding to a non-dairy yogurt formulation) comprising a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal (Fig. 1, [0012], [0053]) fermented by bacterial cultures of Lactobacillus and Streptococcus strains [0045]. Kizer teaches that the fermented plant-based composition tastes more similar to a fermented dairy composition due to the levels of organic acids such as lactic acid and acetic acid in the fermented dairy-based composition being more similar to the organic acid levels found in the fermented dairy-based composition [0009], [0045]. Kizer discloses that the fermented plant-based composition may comprise a weight ratio of lactic acid to acetic acid of about 34 (corresponding to the amount of lactic acid being about 8.5 g/kg and the amount of acetic acid being about 0.25 g/kg in the plant-based composition) ([0084]; Fig. 3). This weight ratio of lactic acid to acetic acid falls within the claimed range.
It would have been obvious for a person of ordinary skill in the art to have modified the method of making a fermented plant-based composition of Johnson to produce a fermented plant-based composition having a weight ratio of lactic acid to acetic acid similar to the weight ratio found in fermented dairy compositions as taught by Kizer. Since Johnson teaches a process for the preparation of a fermented plant-based composition [0001] comprising (a) providing a mixture containing a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal [0065]-[0067]; and (b) fermenting the mixture to provide a fermented plant-based composition [0130] in which lactic acid is a primary product and acetic acid may also be produced [0134] and in which the taste of the composition is appealing to consumers [0005], but does not disclose an amount of lactic acid and organic acid in the composition in order to provide an appealing taste, a skilled practitioner would have been motivated to consult an additional reference such as Kizer in order to determine a suitable weight ratio of lactic acid to acetic acid in a fermented plant-based composition to appeal to the taste of a consumer. In consulting Kizer, the skilled practitioner would find that a weight ratio of lactic acid to acetic acid similar to the weight ratio found in fermented dairy products such as a weight ratio of 34 in the plant-based composition would be beneficial. Therefore, the claimed weight ratio of lactic acid to acetic acid in the fermented composition as recited in present claims 1 and 2 is rendered obvious.
Regarding claims 3 and 13, Johnson teaches the invention as described above in claims 1 and 2, including the base prior to fermentation contains about 1.5 wt.% or less of sucrose [0078]-[0079]; and the sucrose is metabolized by the fermentation bacteria [0134]. As such, the fermented composition contains an amount of sucrose less than about 1.5 wt.%, which encompasses the concentrations recited in present claims 3 and 13. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Regarding claims 4 and 14, Johnson teaches the invention as described above in claims 1 and 2, including the base prior to fermentation contains about 1.5 wt.% or less of glucose [0078]-[0079]; and the glucose is metabolized by the fermentation bacteria [0134]. As such, the fermented composition contains an amount of glucose less than about 1.5 wt.%, which encompasses the concentrations recited in present claims 4 and 14. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claims 9 and 19, Johnson teaches the invention as described above in claims 1 and 2, including the vegetal base comprises nuts [0010].
Regarding claims 11 and 21, Johnson teaches the invention as described above in claims 1 and 2, including the vegetal base does not comprise added sugar (corresponding to the substrate of the base composition comprising nuts) [0010].
Regarding claims 12 and 22, Johnson teaches the invention as described above in claims 1 and 2, including the composition is a dairy-alternative [0004], [0012].
Regarding claim 23, Johnson teaches a process for the preparation of a fermented plant-based composition [0001], wherein the process comprises: (a) providing a mixture containing: (i) a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal [0065]-[0067]; (ii) heterofermentative bacteria selected from Bifidobacteria; and (iii) homofermentative lactic acid bacteria [0089], [0134]; wherein the homofermentative bacteria comprises fructose positive Streptococcus thermophilus (corresponding to the homofermentative bacteria being a member of the genus Streptococcus [0134] such as Streptococcus thermophilus [0089] and the homofermentative pathway converting fructose into lactic acid [0134]). Since Johnson discloses that the mixture comprises (i)-(iii), Johnson discloses a mixture for fermentation that does not comprise almond milk or fully or partially hydrolyzed cereal as presently claimed. Johnson teaches that the process further comprises: (b) fermenting the mixture to provide a fermented plant-based composition [0130] in which lactic acid is a primary product and acetic acid may also be produced [0134]. Johnson further discloses that the vegetal base is fermented to a pH of about 3.8 to about 4.6 [0140] by culturing at a temperature of about 38°C [0135] for less than or equal to 8 hours [0137], which fall within the claimed pH range, claimed temperature, and claimed time frame.
Johnson also teaches that the starter culture was inoculated onto/into a medium at any concentration that supports the establishment and growth of live bacteria and exemplifies an inoculation rate of about 0.01% to about 0.05% of starter culture having a strength of about 105 to 108 CFU/g [0087]. As the establishment and growth of live bacteria in the vegetal base are variables that can be modified, among others, by adjusting the inoculation rate of the live bacteria in the vegetal base, the inoculation rate of the live bacteria in the vegetal base would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed inoculation rate of the live bacteria in the vegetal base cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation, the inoculation rate of the live bacteria in the vegetal base in the method of Johnson using an inoculation rate of about 0.01% to about 0.05% of starter culture having a strength of about 105 to 108 CFU/g as a guide to obtain the desired amount of bacteria in the fermented composition (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
Johnson teaches that the composition provides health benefits to the consumer while preserving organoleptic qualities [0051], [0116]. Johnson teaches that the bacteria mixture may further comprise bacteria from the genus Lactococcus [0134]; and a probiotic strain [0089]. Johnson does not teach that: the fermented composition has a lactic acid to acetic acid ratio of at least 1.5; a concentration of heterofermentative bacteria of at least 105 cfu/g; or the homofermentative bacteria further comprises Lactococcus lactis.
However, Marchal teaches a plant-based composition (corresponding to a fermented milk product comprising vegetal milk) (page 4, lines 20, 30-32) comprising: (i) a fermented vegetal base, wherein the vegetal base does not comprise almond milk or fully or partially hydrolyzed cereal (corresponding to milk made from soya, oat, or rice) (page 4, lines 30-32); (ii) 106-108 cfu/g heterofermentative bacteria Bifidobacteria (page 2, lines 14-16; page 5, line 17); and (ii) homofermentative lactic acid bacteria Streptococcus thermophilus (page 6, lines 12-17). This disclosed concentration of heterofermentative falls within the claimed concentration. Marchal also teaches that the mixture further contains at least one strain of the heterofermentative probiotic Lactococcus lactis (page 5, lines 25-31; page 6, lines 1-3). Marchal discloses that the plant-based composition confers a health benefit to the consumer (page 1, lines 7-10, 21-23).
It would have been obvious for a person of ordinary skill in the art to have modified the plant-based composition of Johnson to have a concentration of heterofermentative bacteria of 106-108 cfu/g as taught by Marchal. Since Johnson teaches that the starter culture was inoculated onto/into a medium at any concentration that supports the establishment and growth of live bacteria [0128]; and that the composition provides health benefits to the consumer [0051], but does not specify a concentration of heterofermentative bacteria in the plant-based composition, a skilled practitioner would have been motivated to consult an additional reference such as Marchal in order to determine a suitable concentration of heterofermentative bacteria in a fermented composition retaining its health benefits. Therefore, the claimed concentration of heterofermentative bacteria is rendered obvious.
It also would have been obvious for a person of ordinary skill in the art to have modified the heterofermentative bacteria of Johnson to further include at least one species of Lactococcus lactis as taught by Marchal. Since Johnson teaches that the bacteria for its composition comprises the heterofermentative bacteria Bifidobacteria; the homofermentative lactic acid bacteria Streptococcus thermophilus [0089], [0134]; bacteria from the genus Lactococcus [0134]; and a probiotic strain [0089]; but does not specify a species from the genus Lactococcus or a probiotic strain, a skilled practitioner would have been motivated to consult an additional reference such as Marchal in order to determine a suitable species of Lactococcus and a suitable probiotic to use with Bifidobacteria and Streptococcus thermophilus. Therefore, the claimed inclusion of heterofermentative Lactococcus lactis in the mixture to be fermented and in the subsequent fermented composition is also rendered obvious.
The combination of Johnson and Marchal does not teach that the fermented composition has a lactic acid to acetic acid ratio of at least 1.5.
However, Kizer teaches a fermented plant-based composition (corresponding to a non-dairy yogurt formulation) comprising a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal (Fig. 1, [0012], [0053]) fermented by bacterial cultures of Lactobacillus and Streptococcus strains [0045]. Kizer teaches that the fermented plant-based composition tastes more similar to a fermented dairy composition due to the levels of organic acids such as lactic acid and acetic acid in the fermented dairy-based composition being more similar to the organic acid levels found in the fermented dairy-based composition [0009], [0045]. Kizer discloses that the fermented plant-based composition may comprise a weight ratio of lactic acid to acetic acid of about 34 (corresponding to the amount of lactic acid being about 8.5 g/kg and the amount of acetic acid being about 0.25 g/kg in the plant-based composition) ([0084]; Fig. 3). This weight ratio of lactic acid to acetic acid falls within the claimed range.
It would have been obvious for a person of ordinary skill in the art to have modified the method of making a fermented plant-based composition of Johnson to produce a fermented plant-based composition having a weight ratio of lactic acid to acetic acid similar to the weight ratio found in fermented dairy compositions as taught by Kizer. Since Johnson teaches a process for the preparation of a fermented plant-based composition [0001] comprising (a) providing a mixture containing a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal [0065]-[0067]; and (b) fermenting the mixture to provide a fermented plant-based composition [0130] in which lactic acid is a primary product and acetic acid may also be produced [0134] and in which the taste of the composition is appealing to consumers [0005], but does not disclose an amount of lactic acid and organic acid in the composition in order to provide an appealing taste, a skilled practitioner would have been motivated to consult an additional reference such as Kizer in order to determine a suitable weight ratio of lactic acid to acetic acid in a fermented plant-based composition to appeal to the taste of a consumer. In consulting Kizer, the skilled practitioner would find that a weight ratio of lactic acid to acetic acid similar to the weight ratio found in fermented dairy products such as a weight ratio of 34 in the plant-based composition would be beneficial. Therefore, the claimed weight ratio of lactic acid to acetic acid in the fermented composition is rendered obvious.
Claims 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (US 2020/0352202; previously cited) in view of Marchal (WO 2017/021754; previously cited) and Kizer (WO 2017/185093) as applied to claims 1 and 2 above, and further in view of Boufassa (US 6,699,517; previously cited).
Regarding claims 8 and 18, Johnson teaches the invention as described above in claims 1 and 2, including the homofermentative bacteria comprises Streptococcus thermophilus [0089], [0134]; and that the composition provides health benefits to the consumer while preserving organoleptic qualities [0051], [0116]. The prior art does not teach that the homofermentative bacteria comprises CNCM I-1520.
However, Boufassa teaches a process for the preparation of a fermented plant-based composition (column 1, lines 11-12) comprising: (a) providing a mixture containing (i) a vegetal base, wherein the vegetal base does not comprise almond milk or fully or partially hydrolyzed cereal (corresponding to soy milk); (ii) heterofermentative Bifidobacteria; and (iii) homofermentative lactic acid bacteria comprising fructose positive Streptococcus thermophilus under the number CNCM I-1520 and Lactococcus sp. (column 2, lines 12-18; column 3, lines 34-47). Boufassa teaches that the process further comprises (b) fermenting the mixture to provide a fermented plant-based composition (column 1, lines 11-12). Boufassa discloses that Streptococcus thermophilus fermentation of plant material results in reduced post-acidification of the fermented material while retaining sufficient growth and viability of the bacteria in the fermented plant material, thereby resulting in retention of organoleptic qualities in the fermented plant material (column 1, lines 49-53, 58-67; column 4, lines 16-20).
It would have been obvious for a person of ordinary skill in the art to have modified the Streptococcus thermophilus of Johnson to be the strain identified as CNCM I-1520 as taught by Boufassa. Since Johnson teaches that its plant material is fermented by Streptococcus thermophilus [0089], [0134]; and that the fermented composition provides health benefits to the consumer while preserving organoleptic qualities [0051], [0116], but does not specify a strain of Streptococcus thermophilus to provide such qualities in the fermented composition produced from plant material, a skilled practitioner would have been motivated to consult an additional reference such as Boufassa in order to determine a suitable Streptococcus thermophilus strain for fermenting a plant material to produce a composition having health benefits and retained organoleptic qualities. Therefore, the claimed CNCM I-1520 recited in present claims 8 and 18 is rendered obvious.
Response to Arguments
Claim Objections: Applicant amended claims 1 and 23 to fully address the objections; therefore, the objections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1, 3-4, 8-9, 11-12, and 23 over Johnson and Boufassa; claims 24 and 26 over Johnson, Boufassa, and Marchal: Applicant’s arguments and amendments have been fully considered and are considered moot or unpersuasive.
Applicant amended claims 1, 2, and 23 to recite that the homofermentative comprises Lactococcus lactis in addition to Streptococcus thermophilus. Applicant canceled claims 24 and 26. Applicant argued that Boufassa’s vegetable base does comprise almond milk or fully or partialized hydrolyzed cereal and that almond milk and fully or partially hydrolyzed cereal are excluded from the composition by the instant claims. For this reason, Applicant argued that a skilled practitioner would not consider Boufassa relevant to the instant claims such that the practitioner would not combine the teachings of Boufassa with Johnson and/or Marchal (Applicant’s Remarks, page 6, 4th paragraph – page 7, 1st paragraph).
However, in the new grounds of rejection, the features of claims 1, 3-4, 9, 11-12, and 23 are rendered obvious by the combination of Johnson, Marchal, and Kizer. Since Boufassa is not cited in the rejections of claims 1, 3-4, 9, 11-12, and 23, Applicant’s arguments regarding Boufassa are moot. Claim 8 is rendered obvious by the combination of Johnson, Marchal, Kizer, and Boufassa wherein Boufassa is cited for its teachings regarding the Streptococcus thermophilus strain labeled as CNCM I-1520. As described in the rejection of claim 8 above, Johnson teaches that its plant material is fermented by Streptococcus thermophilus [0089], [0134]; and that the fermented composition provides health benefits to the consumer while preserving organoleptic qualities [0051], [0116], but does not specify a strain of Streptococcus thermophilus to provide such qualities in the fermented composition produced from plant material. As such, a skilled practitioner would have been motivated to consult an additional reference such as Boufassa in order to determine a suitable Streptococcus thermophilus strain for fermenting a plant material to produce a composition having health benefits and retained organoleptic qualities. Boufassa discloses combining (A) soy milk, which is a vegetal base not comprising almond milk or fully or partially hydrolyzed cereal, with (B) a cereal hydrolysate and/or almond milk in order to create a mixture of plant material for fermentation by the Streptococcus thermophilus strain labeled as CNCM I-1520 (column 2, lines 8-18; column 3, lines 34-40) so as to produce a fermented plant-based composition with reduced post-acidification and sufficient bacterial growth and viability retention (column 1, lines 63-67), thereby rendering claim 8 obvious.
In further response to Applicant’s assertion that a skilled practitioner would not be motivated to combine the teachings of Boufassa with Johnson and/or Marchal to arrive at the claimed invention(s), the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Since Boufassa discloses the Streptococcus thermophilus strain labeled as CNCM I-1520 to be suitable for fermentation of plant material, a skilled practitioner would readily recognize that this strain of bacteria may be used to ferment the plant material of Johnson, despite Boufassa not expressly suggesting the all of the features of the presently claimed invention. As such, Applicant’s arguments regarding Boufassa are unpersuasive.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be moot or unpersuasive, the rejections of the claims stand as written herein. The rejections of claims 24 and 26 are moot due to cancellation of these claims.
Claims 2, 13-14, 18-19, 21-22, and 25 over Johnson, Marchal, and Oudot: Applicant’s arguments have been fully considered and are considered moot.
Applicant cancelled claim 25. Applicant argued that Oudot recognizes that it is not routine to optimize the ratio of lactic acid to acetic acid in the composition to obtain the desired large amount of lactic acid as asserted by the Office (Applicant’s Remarks, page 7, 2nd- 3rd paragraphs).
However, Oudot is no longer cited as a reference in the new ground(s) of rejection. Therefore, Applicant’s arguments regarding Oudot are moot and the rejections of the claims stand as written herein. The rejection of claim 25 is moot due to its cancellation.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791