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 .
Claims 13-15 and 21-27 are pending in this application.
Applicant’s amendment to the claims filed 06/24/2026 is acknowledged. This listing of the claims replaces all prior versions and listings of the claims.
Applicant’s remarks filed on 06/24/2026 in response to the non-final rejection mailed on 03/26/2026 are acknowledged and have been fully considered.
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corresponding to claims 15 and 22, drawn to a food product as set forth in the Office action mailed on 05/09/2024 was withdrawn in the Office action mailed 03/23/2026, as claim 13 is considered free of the art.
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 Once the restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable.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 21-27 are being examined on the merits.
Claim Objections
Claims 14, 21 and 27 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim Rejections - 35 USC § 112(b)
The rejection of claims 14 and 21-22 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point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention is withdrawn in view of the amendment to claim 14 to no longer recite the term of approximation “about” regarding pH.
Claims 15 and 22 are newly 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 newly stated and necessitated by claim amendment.
Claims 15 and 22 are indefinite for the phrase “wherein the fermented food product has increased viscosity compared to an otherwise identical method”, as it is confusing how the comparison between the viscosity of a fermented food product and “an otherwise identical method” establishes the metes and bounds of the claims.
Response to Remarks: beginning on page 6 of Applicant’s response to rejections under 35 USC 112(b); Applicant in summary contends the claims have been amended to overcome 112(b) rejections.
Applicant’s remarks are considered and found not convincing, as new grounds of rejection have been raised that are necessitated by amendments to claims 15 and 22.
Claim Rejections - 35 USC § 101
Claims 13, 15, and 22-26 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 23-25 are drawn to a method of producing a fermented 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 fermented 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.
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], and such claims are not limited to the manipulations of the recited steps, only the structure implied by the steps (see MPEP 2113.I). Claims 15 and 22 have been amended to require the product to have increased viscosity compared to an identical method lacking the DSM 33134 strain (or derivative strain thereof), however the increased viscosity of the claimed products are attributed in the claims to the activity of the naturally occurring DSM 33134 strain (or derivative strain thereof) strain, and therefore is considered to be the result of a naturally occurring process as stated above. 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.
New claim 26 is drawn (in relevant part) to a method of producing a fermented food product with increased viscosity comprising fermenting a substrate with a L. lactis strain selected from a DSM 33134 strain and strains derived from DSM 33134, wherein the strains generate fermented milks having specific shear stress, and wherein the resulting product viscosity is increased compared to a product fermented without the DSM 33134 strain or strains derived from DSM 33134. As stated above, 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 26 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, claim 26 is directed to a naturally-occurring process of fermenting milk substrate with a naturally occurring L. lactis microorganism.
Claims 13 and 23-25
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 23-25 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.
Claims 24 and 25 recite the additional elements that the LAB strain is provided as a Direct Vat Set (DVS) culture (claim 24) and the DVS culture is provided in a frozen, dried or liquid form (claim 25), 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 to 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 23-25 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: Claim 15 recites the additional element of the food product having increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis lactic acid bacterium strain DSM 33134 or a strain derived from DSM 33134 which has at least the same texturing capability as DSM 33134. As stated above, the DSM 33134 strain is drawn to a naturally occurring strain, and the additional element indicates the viscosity of the food product to be attributed to the activity of the naturally occurring strain. Therefore the additional element does not distinguish the claimed fermented food product as markedly different from the naturally occurring fermented food product from a naturally occurring DSM 33134 strain.
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: Claim 22 recites the additional element of the food product having increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis lactic acid bacterium strain DSM 33134 or a strain derived from DSM 33134 which has at least the same texturing capability as DSM 33134. As stated above, the DSM 33134 strain is drawn to a naturally occurring strain, and the additional element indicates the viscosity of the food product to be attributed to the activity of the naturally occurring strain. Therefore, the additional element does not distinguish the claimed fermented food product as markedly different from the naturally occurring fermented food product from a naturally occurring DSM 33134 strain.
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 26
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, claim 26 is directed to a judicial exception.
Patent Eligibility Analysis Step 2A Prong 2:
Claim 26 recites additional elements limiting the LAB strain to be a texturing strain which generates milk having specific shear stress characteristics measured in specific conditions, 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).
Claim 26 also recites additional elements limiting the food product having increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis lactic acid bacterium strain DSM 33134 or a strain derived from DSM 33134 which has at least the same texturing capability as DSM 33134. As stated above, the DSM 33134 strain is drawn to a naturally occurring strain, and the additional element indicates the viscosity of the food product to be attributed to the activity of the naturally occurring strain.
As such, the additional elements of claim 26 do not impart any structural limitations on the LAB strain or the resulting fermented food product that would distinguish it from its naturally occurring counterpart.
Therefore, the LAB strains recited in claim 26 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.
Response to Remarks: beginning on page 7 of Applicant’s response to rejections under 35 USC 101; Applicant in summary contends the presently amended claims require the DSM 33134 strain (or derivatives thereof) which has a texturing capability outside of what naturally occurs, and therefore the methods of the claims are not drawn to natural processes.
Applicant’s remarks are considered and found not convincing.
As stated in the rejection above, the instant specification indicates the strains to be isolated from natural sources, and there is no evidence the strains have any modification or characteristics (structural, functional or otherwise) that would establish the strains of the claims as markedly different from their naturally occurring counterparts. While Applicant contends the texturing capabilities of the strains of the claims are outside of what is found in nature, this argument is unpersuasive without evidence that the strains themselves are not naturally occurring, as any characteristic of a naturally occurring organism can be considered a naturally occurring characteristic as discussed in the rejection above.
Claim Rejections - 35 USC § 102
Claims 15 and 22 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).
The instant rejection is maintained from the previous Office action, and any newly recited portion is necessitated by claim amendment.
Claim 15 is drawn to the food product produced by the method of claim 13, wherein the fermented food product has increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis lactic acid bacterium strain DSM 33134 or a strain derived from DSM 33134 which has at least the same texturing capability as DSM 33134.
Claim 22 is drawn to the fermented food product produced by the method of claim 21, wherein the fermented food product has increased viscosity compared to an otherwise identical method where the milk substrate does not comprise the Lactococcus lactis lactic acid bacterium strain DSM 33134 or a strain derived from DSM 33134 which has at least the same texturing capability as DSM 33134.
As stated in the rejections under 112(b) above, the claims recite a comparison between the viscosity of the claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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 7 of Applicant’s response to rejections under 35 USC 102; Applicant in summary contends the claims have been amended to overcome the rejection of record.
Applicant’s remarks are considered and found not convincing, as the rejection is maintained for the reasons stated above.
Double Patenting
A. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
B. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
C. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
D. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
E. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
F. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
G. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
H. Claims 15 and 22 are 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
I. Claims 15 and 22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/269581 (herein “reference application”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
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 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/697902 (herein “reference application”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
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 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 21 of copending Application No. 17/925540 (herein “reference application”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
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 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”).
The instant rejection is maintained from a previous office action, any newly recited portion is necessitated by amendment.
Although the conflicting claims are not identical, they are not patentably distinct from each other because:
As stated in the rejections under 112(b) above, the instant claims recite a comparison between the viscosity of the instantly claimed fermented food product and an otherwise identical method. In view of the indefiniteness of the recited comparison, the limitation regarding viscosity is considered to encompass any viscosity.
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.
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 8 of Applicant’s response to double patenting rejections; Applicant in summary requests all double patenting rejections be held in abeyance until allowable subject matter has been determined.
Applicant’s request is acknowledged and the rejections have been updated to reflect any amendments to the claims.
Conclusion
Status of the Application:
Claims 13-15 and 21-27 are pending.
Claims 14, 21 and 27 are objected to for minor informalities.
Claims 13, 15 and 22-26 are rejected.
No claim is in condition for allowance.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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Manjunath Rao can be reached at (571) 272-0939. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH R SPANGLER/
Examiner
Art Unit 1656
/David Steadman/Primary Examiner, Art Unit 1656
APPENDIX A
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420
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Greyscale
Sequence alignment of SEQ ID NO: 17 with NCBI Accession No. MH678627 (reference NCBI1).
Prosecution Insights