DETAILED CORRESPONDENCE
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/06/2026 has been entered.
Claims 13-15 and 21-24 are pending in this application.
Applicant’s amendment to the claims filed 01/06/2026 is acknowledged. This listing of the claims replaces all prior versions and listings of the claims.
Applicant’s remarks filed on 01/06/2026 in response to the final rejection mailed on 10/14/2025 are acknowledged and have been fully considered.
Rejections previously applied to claim 20 are withdrawn in view of applicant’s amendment to cancel claim 20.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election
The requirement for an election of invention between the inventions of Group II, corresponding to claims 13-14, 21 and 23-24, drawn to a method of producing a food product, and Group III, corresponding to claims 15 and 22, drawn to a food product as set forth in the Office action mailed on 05/09/2024 is withdrawn, as claim 13 is considered free of the art in view of the instant claim amendments.
In view of the withdrawal of the restriction requirement as to the rejoined inventions, applicant(s) are advised that if any claim presented in a continuation or divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application. Once the restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01.
Claims 13-15 and 21-24 are being examined on the merits.
Claim Objections
The objection to claim 13 is withdrawn in view of the amendment to recite “a nucleotide sequence encoding a polypeptide” in parts (c1), (c2) and (c3).
Claim Rejections - 35 USC § 112(b)
Claims 14 and 21-22 are 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 regards as the invention.
The instant rejection is maintained from the previous Office Action and any newly recited portions are necessitated by claim amendment.
Claim 14 (claims 21-22 dependent therefrom) is indefinite for the recitation of the phrase “about”. The term “about” is a term of approximation that renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of approximation, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. As such, the limitations of final pH of the fermentation recited in claim 14 are rendered indefinite by the use of the terms.
Response to Remarks: beginning at page 5 of Applicant’s response to rejections under 35 USC 112(b); Applicant in summary contends the term “about” is defined in the specification on page 32, lines 1-7.
Applicant’s remarks are considered and found not convincing. The specification at p 32 lines 1-7 recites:
As used herein, the term "about" (or "around") means the indicated value ±1 % of its value, or the term "about" means the indicated value ± 2 % of its value, or the term "about" means the indicated value ± 5 % of its value, the term "about" means the indicated value ± 10 % of its value, or the term "about" means the indicate value ±20 % of its value, or the term "about" means the indicated value ± 30 % of its value; preferably the term "about" means exactly the indicated value (± 0 %).
As noted above, there are 7 exemplary meanings of the term “about” and one preferred meaning of “about,” and as such the term is not specifically defined and is considered to render the limitation on the final pH of fermentation to be indefinite. In the interest of compact prosecution, applicant may consider amending the claim to explicitly recite the intended approximation of “about.”
Claim Rejections - 35 USC § 101
Claims 13, 15, and 22-24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Applicant’s attention is directed to the "Guidance for Determining Subject Matter Eligibility Of Claims Reciting Or Involving Laws of Nature, Natural Phenomena, & Natural Products”, released on December 16, 2014.
The instant rejection is maintained from the previous Office Action and any newly recited portions are necessitated by claim amendment.
Claim Interpretation: Claims 13 and 23-24 are drawn to a method of producing a food product comprising fermenting a milk substrate with at least one lactic acid bacterium (LAB) strain, wherein the strain is a Lactococcus lactis strain comprising an active eps gene cluster comprising the following nucleotide sequences:
(a) a nucleotide sequence encoding a polypeptide having polymerase activity and having at least 95% identity with the amino acid sequence encoded by the nucleotide sequence of SEQ ID NO: 11 (herein termed wzy);
(b) a nucleotide sequence encoding a polypeptide having polysaccharide transporter activity and having at least 95% identity with the amino acid sequence encoded by the nucleotide sequence of SEQ ID NO: 17 (herein termed wzx); and
(c) a nucleotide sequence encoding a polypeptide having glycosyltransferase (GT) activity comprising:
(c1) a nucleotide sequence encoding a polypeptide having at least 95% identity with the amino acid sequence encoded by the nucleotide sequence of SEQ ID NO: 9 (herein termed GT1);
(c2) a nucleotide sequence encoding a polypeptide having at least 95% identity with the amino acid sequence encoded by the nucleotide sequence of SEQ ID NO: 13 (herein termed GT2); and
(c3) a nucleotide sequence encoding a polypeptide having at least 95% identity with the amino acid sequence encoded by the nucleotide sequence of SEQ ID NO: 15 (herein termed GT3)m
wherein the LAB strain is selected from the strain deposited under the accession number DSM 33134 and strains derived from DSM 33134,
wherein the lactic acid bacterium is provided in a composition comprising a cryoprotectant, and
wherein the derived strain is characterized as having at least the same texturing capability as DSM 33134, and
wherein the resulting food product has increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis LAB strain.
Claims 15 and 22 are drawn to the food product produced by the method of claim 13, and the fermented food product produced by the method of claim 21, respectively.
Poulsen et al. (FEMS Microbiol Lett, 2019, 366:1; cited on the IDS filed 08/22/2022) discloses that LAB including Lactococcus strains are used in dairy fermentation to produce fermented milk [abstract], and comprise eps clusters that are highly diverse in LAB genomes and therefore produce variations in polysaccharide structure [p 2, col 1, para 1], and discloses a Lactococcus lactis strain Lll5 identified in NCBI Accession No. MH678627 (cited on the IDS filed 08/22/2022; herein referred to as NCBI1) with a sequence in its eps cluster that shares 99.9% sequence identity with SEQ ID NO: 17 [see Appendix A]. According to Poulsen et al. (WO 2017/108679 A1; cited on the IDS filed 08/22/2022), L. lactis strains are often isolated from milk products and plants [p 1, lines 35-39] and are therefore considered to be naturally occurring, and therefore the process of fermenting a milk substrate is considered to be a naturally occurring process.
While the claims recite the LAB is provided in a composition comprising a cryoprotectant, the term “cryoprotectant” is not specifically defined by the instant specification. Alternatively, the specification provides examples of suitable cryoprotectants to include “mono-, di-, tri-and polysaccharides (such as glucose, mannose, xylose, lactose, sucrose, trehalose, raffinose, maltodextrin, starch and gum arabic (acacia) and the like), polyols (such as erythritol, glycerol, inositol, mannitol, sorbitol, threitol, xylitol and the like), amino acids (such as proline, glutamic acid), complex substances (such as skim milk, peptones, gelatin, yeast extract) and inorganic compounds (such as sodium tripolyphosphate)” [p 95, lns 11-18]. As milk substrates are understood to comprise lactose, the association of L. lactis strains with milk products and milk substrates as disclosed by Poulsen above is considered to correspond to the natural occurrence of L. lactis strains with the cryoprotectant lactose.
The instant specification discloses the texturing bacterial strain of the invention may be an isolated strain from a naturally occurring source [p 28, para 2], and therefore the strain DSM 33134 recited in claim 13 is considered to encompass a naturally-occurring LAB strain, and there is no indication in the specification or the prior art of record that the claimed process carried out by the claimed LAB has any characteristics (structural, functional, or otherwise) that are different from the process at it occurs in nature. Given a broadest reasonable interpretation, claims 13 and 23-24 are directed to a naturally-occurring process of fermenting milk substrate with a naturally occurring L. lactis microorganism.
As claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” [claim 15] and “the fermented food product produced by the method of claim 21” [claim 22], such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps (see MPEP 2113.I). As Poulsen discloses that LAB including Lactococcus strains are naturally occurring strains that are used in natural process of dairy fermentation to produce fermented milk, given the broadest reasonable interpretation, claims 15 and 22 are directed to the naturally-occurring products of milk and fermented milk, respectively.
Claims 13 and 23-24
Patent Eligibility Analysis Step 1: The claims are drawn to a process, which is one of the statutory categories of invention.
Patent Eligibility Analysis Step 2A Prong 1: Regarding the interpretation of the claimed process as encompassing a naturally occurring organism carrying out a naturally occurring process, e.g., a naturally occurring Lactococcus lactis strain DSM 33134 fermenting a milk substrate, the claims recite a naturally occurring process, which is considered to be a law of nature or natural phenomena (a natural product). There is no indication in the specification or the prior art of record that the claimed process has any characteristics (structural, functional, or otherwise) that are different from the process at it occurs in nature. In this case, the claimed process does not have any markedly different characteristics from what occurs in nature and is considered to be a “natural process” exception. Accordingly, claims 13 and 23-24 are directed to a judicial exception.
Patent Eligibility Analysis Step 2A Prong 2: Claim 23 recites additional elements limiting the LAB strain to be a texturing strain which generates milk having specific shear stress characteristics, however the generation of a specific milk is a functional limitation of the LAB strain (see MPEP 2173.05(g)) and can be considered an intended use of the LAB strain (see MPEP 2111.02.II). As such, the additional elements of claim 23 do not impart any structural limitations on the LAB strain that would distinguish it from its naturally occurring counterpart.
Claim 24 recites the additional element that the LAB strain is provided as a Direct Vat Set (DVS) culture, wherein a DVS cultures are described in the specification as “intended for direct inoculation into a fermentation vessel or vat for the production of a dairy product” [p 94, final paragraph]. Therefore the term “DVS” is considered to correspond an intended use of the LAB strain, and as such does not impart any structural limitations on the LAB strain (see MPEP 2111.02.II) that would distinguish it from its naturally occurring counterpart.
Therefore, the LAB strains recited in claims 23-24 are considered to encompass naturally-occurring LAB strains as discussed above, and there is no indication in the specification or the prior art of record that the claimed process carried out by the claimed LAB strains has any characteristics (structural, functional, or otherwise) that are different from the process at it occurs in nature. In this case, the claimed process does not have any markedly different characteristics from what occurs in nature.
Patent Eligibility Analysis Step 2B: The claims only recite the product of nature, without more and do not include any additional elements that could add significantly more to the judicial exception.
As such, the claims do not qualify as eligible subject matter. For these reasons the claim is rejected under section 101 as being directed to non-statutory subject matter.
Claim 15
Patent Eligibility Analysis Step 1: The claims are drawn to a product, which is one of the statutory categories of invention.
Patent Eligibility Analysis Step 2A Prong 1: Regarding the interpretation of the claimed product as encompassing a naturally occurring product, e.g., milk, the claims recite a natural product, which is considered to be a law of nature or natural phenomena (natural product). There is no indication in the specification or the prior art of record that the claimed product has any characteristics (structural, functional, or otherwise) that are different from the product as it occurs in nature. In this case, the claimed product does not have any markedly different characteristics from what occurs in nature and is considered to be a “natural product” exception. Accordingly, claim 15 is directed to a judicial exception.
Patent Eligibility Analysis Step 2A Prong 2: There are no additional elements recited in the claim aside from the judicial exception.
Patent Eligibility Analysis Step 2B: The claims only recite the product of nature, without more and do not include any additional elements that could add significantly more to the judicial exception.
As such, the claims do not qualify as eligible subject matter. For these reasons the claim is rejected under section 101 as being directed to non-statutory subject matter.
Claim 22
Patent Eligibility Analysis Step 1: The claims are drawn to a product, which is one of the statutory categories of invention.
Patent Eligibility Analysis Step 2A Prong 1: Regarding the interpretation of the claimed product as encompassing a naturally occurring product, e.g., fermented milk, the claims recite a natural product, which is considered to be a law of nature or natural phenomena (natural product). There is no indication in the specification or the prior art of record that the claimed product has any characteristics (structural, functional, or otherwise) that are different from the product as it occurs in nature. In this case, the claimed product does not have any markedly different characteristics from what occurs in nature and is considered to be a “natural product” exception. Accordingly, claim 22 is directed to a judicial exception.
Patent Eligibility Analysis Step 2A Prong 2: There are no additional elements recited in the claim aside from the judicial exception.
Patent Eligibility Analysis Step 2B: The claims only recite the product of nature, without more and do not include any additional elements that could add significantly more to the judicial exception.
As such, the claims do not qualify as eligible subject matter. For these reasons the claim is rejected under section 101 as being directed to non-statutory subject matter.
Response to Remarks: beginning on page 5 of Applicant’s response to rejections under 35 USC 101; Applicant in summary contends the amendment to claim 13 to recite the lactic acid bacterium in a composition with a cryoprotectant overcomes the 101 rejection of record.
Applicant’s remarks are considered and found not convincing. As stated in the rejection above, the term “cryoprotectant” is not specifically defined in the instant specification, and among the list of suitable cryoprotectants disclosed by the specification is lactose, which is understood to be encompassed by the milk products and milk substrates from which L. lactis strains are disclosed to be isolated from naturally. Therefore the lactic acid bacterium strain in the presence of lactose is not considered markedly different from its naturally occurring counterpart, and therefore the method of producing a food product comprising fermenting a milk substrate with at least one lactic acid bacterium strain is considered to be drawn to a natural process.
Claim Rejections - 35 USC § 102
The rejection of claims 13, 21 and 23 under 35 U.S.C. 102(a)(1) as being anticipated by Moeller et el. (WO 2013/093049 A2; cited on the IDS filed 08/22/2022; herein referred to as Moeller) is withdrawn in view of Applicant’s persuasive remarks regarding the amendment to claim 21 to depend from claim 14 rather than claim 13, and therefore to distinguish the LAB strain recited in claim 21 as a further LAB strain distinct from the strain of claim 13. In view of Applicant’s amendments and remarks, Moeller does not disclose the method of producing a food comprising fermenting a milk substrate with the at least one LAB strain recited by claim 13.
Claims 15 and 22 are newly rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moeller.
The instant rejection is newly stated and necessitated by claim amendment.
Claim 15 is drawn to the food product produced by the method of claim 13.
Claim 22 is drawn to the fermented food product produced by the method of claim 21.
Regarding claim 15, claim 15 is considered a product-by-process claim, and according to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, Moeller discloses a method that produces cheese [abstract], wherein cheese is understood to be a food product.
Regarding claim 22, claim 22 is considered a product-by-process claim, and according to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, Moeller discloses a method that produces cheese [abstract], wherein cheese is understood to be a fermented food product.
Response to Remarks: Beginning on page 6 of Applicant’s response to rejections under 35 USC 102; Applicant in summary contends the amendment to claim 21 establishes that strain DSM 25485 is not a strain derived from DSM 33134 based on the disclosure, and the rejection should be withdrawn.
Applicant’s remarks are considered and the rejection of claims 13, 21 and 23 above are withdrawn.
In view of the amendment to the claims, the requirement for restriction has been withdrawn, therefore necessitating a new rejection on claims 15 and 22 set forth above.
Claim Rejections - 35 USC § 103
The rejection of claim 14 under 35 U.S.C. 103 as being unpatentable over Moeller and further in view of Poulsen et al. (WO 2017/108679 A1; cited on the IDS filed 08/22/2022) is withdrawn in view of Applicant’s persuasive remarks regarding the amendment to claim 21 to depend from claim 14 rather than claim 13, and therefore to distinguish the LAB strain recited in claim 21 as a further LAB strain distinct from the strain of claim 13. In view of Applicant’s amendments and remarks, Moeller and Poulsen do not teach or suggest the method of producing a food comprising fermenting a milk substrate with the at least one LAB strain recited by claim 13.
Double Patenting
The rejections and provisional rejections on the ground of nonstatutory double patenting over U.S. Patent Nos. 8,628,763, 8,765,118, 8,673,616, 10,098,367, 8,449,932, 9,028,896, and co-pending Application Nos. 17/269581 and 18/697902 as set forth in rejections A.-H. on pp. 21-60 of the Office action mailed 10/14/2025 are withdrawn in view of Applicant’s persuasive remarks regarding the amendment to claim 21 to depend from claim 14 rather than claim 13, and therefore to distinguish the LAB strain recited in claim 21 as a further LAB strain distinct from the strain of claim 13.
A. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 8,628,763 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a method for the preparation of a fermented milk product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
B. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 8,765,118 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 2 of the patent recites a method for preparing fermented food, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
C. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 8,673,616 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 2 of the patent recites a method for preparing a fermented food, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
D. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10,098,367 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a method for producing a fermented milk yogurt product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
E. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 8,449,932 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a method for preparation of a fermented milk product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
F. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 9,028,896 (cited on the Form PTO-892 mailed 03/24/2025; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a method for producing cottage cheese, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
G. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,992,023 (cited on the attached Form PTO-892; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a process for producing a fermented milk soft cheese product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
H. Claims 15 and 22 are newly rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 of U.S. Patent No. 10,653,161 (cited on the attached Form PTO-892; herein “patent”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the patent recites a method for preparing a dairy product, and claim 2 of the patent recites the dairy product is a fermented milk product. Therefore claims 1-2 of the reference application disclose a food product and a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
I. Claims 15 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/269581 (herein “reference application”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the reference application recites a method for producing a fermented dairy product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
J. Claims 15 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/697902 (herein “reference application”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 1 of the reference application recites a method for producing a fermented milk product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
K. Claims 15 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of copending Application No. 17/925540 (herein “reference application”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 21 of the reference application recites a method for producing fermented milk product, and therefore discloses a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
L. Claims 15 and 22 are newly provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 10-11 of copending Application No. 18/706846 (herein “reference application”). Although the conflicting claims are not identical, they are not patentably distinct from each other because:
Instant claims 15 and 22 are considered product-by-process claims in view of the limitations “the food product produced by the method of claim 13” recited in instant claim 15 and “the fermented food product produced by the method of claim 21” recited in instant claim 22. According to MPEP 2113.I such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. In view of this interpretation, claim 10 of the reference application recites a method for producing a food product, and claim 11 of the reference application recites the food product is cheese. Therefore the claims 10-11 of the reference application disclose a food product and a fermented food product.
The instant rejection is newly stated and necessitated by claim amendment.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Remarks: beginning on page 6 of Applicant’s response to double patenting rejections; Applicant requests the double patenting rejections be held in abeyance until allowable subject matter has been determined.
Applicant’s request is acknowledged and the double patenting rejections are updated to reflect claim amendments.
Conclusion
Status of the Application:
Claims 13-15 and 21-24 are pending.
Claims 13-15 and 21-24 are rejected.
No claim is in condition for allowance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH SPANGLER whose telephone number is (571)270-0314. The examiner can normally be reached M-F 7:30 am - 4:30 pm.
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/JOSEPH R SPANGLER/
Examiner
Art Unit 1656
/David Steadman/Primary Examiner, Art Unit 1656
APPENDIX A
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Sequence alignment of SEQ ID NO: 17 with NCBI Accession No. MH678627 (reference NCBI1).