DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 16, 2026 was filed after the mailing date of the Non Final Rejection mailed on March 25, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 3-7 and 16-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 3 recites the limitation “wherein the plant based composition does not comprise lactose” in line 8. There was not adequate written description support at the time of filing for the negative limitation of the plant based composition not comprising lactose. There was only antecedent basis for the vegetable base not containing galactose and/or fructose (Specification, Page 10, lines 5-8). The disclosure at the time of filing never provides written description support for the vegetable base not containing lactose. Therefore, this limitation constitutes new matter.
Claims 4-7 and 16-22 are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 3-7, 16, and 18-22 are rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Mitchell et al. US 4,744,992.
Regarding Claim 3, Vykhodtsev discloses a plant based composition (oat based probiotic food product) comprising a vegetal base (oats) (‘805, Paragraph [0001]), at least 105 cfu/g of heterofermentative bifidobacteria (10E7 CFU/g Bifidobacterium breve) and homofermentative lactic acid bacteria (Lactobacillus bulgaricus) (‘805, Paragraphs [0022] and [0031]-[0032]). It is noted that applicant discloses that Bifidobacterium breve is a type of heterofermentative bacteria (Specification, Page 11, lines 23-27) and that lactobacillus bulgaricus is a type of homofermentative lactic acid bacteria (Specification, Page 7, lines 6-15). The amount of heterofermentative bifidobacterial is at least 10E7 CFU/g) (‘805, Paragraphs [0022] and [0032]), which falls within the claimed amount of at least 105 cfu/g of heterofermentative bifidobacteria. Where the claimed heterofermentative bifidobacteria ranges overlaps heterofermentative bifidobacterial ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Vykhodtsev also discloses the oat based product to be a drinkable food product (‘805, Paragraph [0136]) that is fermented (‘805, Paragraph [0127]) and does not disclose or suggest using any milk in the drinkable food product. Therefore, the plant based composition of Vykhodtsev reads on the claimed plant based composition being a plant based fermented milk alternative.
Vykhodtsev is silent regarding the total sugar content of the vegetal base by weight dry matter comprising at least about 55% maltose.
Mitchell et al. discloses a plant based composition (rice milk) comprising a vegetal base (rice) (‘992, Column 2, lines 53-68) and a bacteria (‘992, Column 6, lines 4-27) wherein the total sugar content of the vegetal base by weight dry matter comprises about 0 to 70% maltose solids (‘992, Column 4, lines 8-18), which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least 55% maltose. Mitchell et al. also discloses a specific embodiment wherein the vegetal base (rice milk) has a high maltose content of about 55% maltose (‘992, Column 11, lines 48-57), which falls within the claimed total sugar content of the vegetal base by weight dry matter comprising at least 55% maltose. Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Mitchell et al. also discloses the plant based composition is a plant based milk alternative (substitute) (‘992, Column 4, lines 27-33).
Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter as taught by Mitchell et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by dry matter of the vegetal base overlaps maltose concentration of the total sugar content of the vegetal base by weight dry matter of the vegetal base ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Further regarding Claim 3, neither Vykhodtsev nor Mitchell et al. disclose or suggest the plant based composition containing lactose. Therefore, Vykhodtsev modified with Mitchell et al. necessarily discloses the plant based composition not comprising lactose.
Regarding Claims 4-5, Vykhodtsev never discloses the presence of the composition or vegetal base comprising raffinose, stachyose, or verbacose or soy. Mitchell et al. discloses an embodiment wherein the slurry is derived from barley, wheat, rye, or sweet potatoes (‘992, Column 6, lines 15-27). Therefore, Vykhodtsev modified with Mitchell et al. reads on the plant based composition or vegetal base not comprising raffinose, stachyose, or verbascose or soy.
Further regarding Claim 5, Mitchell et al. discloses soy based milk substitutes are disadvantageous for people having an allergic response to soy products (‘992, Column 2, lines 21-29). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of Vykhodtsev and make the plant based composition to not comprise soy in order to cater to some individuals who may have allergies to soy as taught by Mitchell et al.
Regarding Claim 6, Vykhodtsev discloses the plant based composition comprising nuts (‘805, Paragraph [0303]) or the vegetal base of oats comprising cereal (‘805, Paragraph [0042]).
Regarding Claim 7, Vykhodtsev discloses the plant based composition or vegetal base comprising fully or partially hydrolysed cereal (‘805, Paragraphs [0050], [0216], and [0271]).
Regarding Claims 16 and 21, Mitchell et al. discloses the total sugar content of the vegetal base by weight dry matter comprises about 0 to 70% maltose solids (‘992, Column 4, lines 8-18), which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least 60% maltose or at least 70% maltose. Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter as taught by Mitchell et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by dry matter of the vegetal base overlaps maltose concentration of the total sugar content of the vegetal base by weight dry matter of the vegetal base ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Regarding Claim 18, Vykhodtsev discloses the homofermentative lactic acid bacteria being S. thermophilus and/or L. bulgaricus and/or L. lactis (‘805, Paragraph [0248]).
Regarding Claims 19-20, Vykhodtsev discloses the product having a yogurt like consistency (‘805, Paragraph [0087]). Therefore, Vykhodtsev modified with Mitchell et al. reads on the claimed plant based composition being an alternative of yogurt.
Regarding Claim 22, Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. Although Mitchell et al. does not explicitly disclose an embodiment wherein the total sugar content of the vegetal base by weight dry matter comprises at least 80% maltose, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter since differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Mitchell et al. US 4,744,992 as applied to claim 3 above in further view of Gil-Martinez et al. US 2021/0251264 and Bansal-Mutalik et al. US 2017/0265505.
Regarding Claim 17, Vykhodtsev discloses the composition product comprising Lactobacteria/Lactic acid bacteria (‘805, Paragraphs [0030]-[0031]) wherein the product has an acid sweet taste (‘805, Paragraph [0128]). However, Vykhodtsev modified with Mitchell et al. is silent regarding the plant based composition comprising acetic acid and the plant based composition comprising a lactic acid to acetic acid ratio of 1.5 or higher.
Gil-Martinez et al. discloses food can be acidified either by direct addition of acid and/or by microbial fermentation of food by lactic or acetic acid (‘264, Paragraph [0012]) wherein a plant based fermented composition (brewers spent grain) is produced wherein acetic acid has a lower detection threshold than lactic acid wherein at high concentrations acetic acid has a pungent vinegar like aroma wherein levels of acetic acid higher than 0.4% in starting BSG results in consumer rejection of the beverage and a beverage made with MS BGSG stabilized with lactic acid and no more than 0.4% acetic acid was accepted by a consumer panel (‘264, Paragraphs [0040]-[0041]). Bansal-Mutalik et al. discloses a plant based composition (plant based analogs for cream cheese, milk, or milk like beverage) (‘505, Paragraph [0017]) used in fermented beverages (‘505, Table 2) (‘505, Paragraph [0151]) having modulated organoleptic properties of a reduction in vinegary flavor or aromas (‘505, Paragraph [0016]).
Modified Vykhodtsev, Gil-Martinez et al., and Bansal-Mutalik et al. are all directed towards the same field of endeavor of plant based compositions made by a fermentation process. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fermented product of modified Vykhodtsev and conduct the microbial fermentation by acetic acid since Gil-Martinez et al. teaches that it was known and conventional in the food and beverage fermentation art to acidify food by acetic acid (‘264, Paragraph [0012]). Although Gil-Martinez et al. and Bansal-Mutalik et al. does not explicitly disclose the lactic acid to acetic acid ratio to be 1.5 or higher, this ration indicates the composition to have a significantly higher lactic acid amount than acetic acid amount. Gil-Martinez et al. teaches beverages stabilized with significantly lower concentrations of acetic acid relative to concentrations of lactic acid were accepted by consumer panels and Bansal-Mutalik et al. teaches modulating the fermented beverages to have a reduction in vinegary flavor or aromas. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and adjust the lactic acid to acetic acid ratio such that acetic acid is present in significantly lower concentrations than lactic acid since Gil-Martinez et al. teaches that lower concentrations of acetic acid are accepted by consumer panels and since Bansal-Mutalik et al. teaches reducing the vinegar taste of fermented plant based beverages. Furthermore, differences in the ratio of lactic acid to acetic acid will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio of lactic acid to acetic acid is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Mitchell et al. US 4,744,992 as applied to claim 3 above in further view of Derez et al. US 2015/0166684.
Regarding Claim 22, Vykhodtsev modified with Mitchell et al. renders obvious the limitations of Claim 22 as enumerated above. However, in the event that it can be shown with objective evidence that the concentration of maltose of the total sugar content of the vegetal base by weight dry matter is critical, Derez et al. discloses a starch slurry broken down into dextrose oligomers through the action of enzymes and saccharification of the liquefied starch slurry to yield maltose containing liquors (‘684, Paragraphs [0013]-[0014]) comprising a saccharification step to make a maltose containing liquor having a dry substance of from 40 w/t% to 80 w/w% (‘684, Paragraph [0055]), which overlaps the claimed maltose concentration of at least 80% maltose of the total sugar content of the vegetal base by weight dry matter.
Both modified Vykhodtsev and Derez et al. are directed towards the same field of endeavor of methods of enzymatically breaking down starches in a plant based composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Vykhodtsev and break down the starch to have the claimed maltose concentration of the total sugar content of the vegetal base by weight dry matter as taught by Derez et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by weight dry matter ranges overlap maltose concentration of the total sugar content of the vegetal base by weight dry matter ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Claims 9-10, 23-24, and 26-28 are rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Whalen US 2013/0183404, Alho-Lehto et al. US 2011/0159145, and Mitchell et al. US 4,744,992.
Regarding Claim 9, Vykhodtsev discloses a fermented plant based composition (oat based probiotic food product) (‘805, Paragraphs [0001] and [0039]) comprising a fermented vegetal base (oats), heterofermentative bifidobacteria (Bifidobacterium breve) and homofermentative lactic acid bacteria (Lactobacillus bulgaricus) (‘805, Paragraphs [0022] and [0031]-[0032]). It is noted that applicant discloses that Bifidobacterium breve is a type of heterofermentative bacteria (Specification, Page 11, lines 23-27) and that lactobacillus bulgaricus is a type of homofermentative lactic acid bacteria (Specification, Page 7, lines 6-15). Vykhodtsev also discloses the plant based composition being treated enzymatically (‘805, Paragraph [0123]).
Vykhodtsev is silent regarding the fermented vegetal base of oats comprising a hydrolyzed oat syrup in an amount of 5%-25%.
Whalen discloses a plant based composition comprising a vegetal base (base formulation having a major amount of an oat material) (‘404, Paragraph [0020]) comprising a hydrolyzed oat syrup (‘404, Paragraph [0048]) wherein the oat based functional syrup exhibits desirable sweetness, texture, and mouthfeel characteristics when formed into food products such as non-dairy frozen confections (‘404, Paragraphs [0030] and [0039]) wherein the plant based composition is treated enzymatically (‘404, Paragraph [0024]).
Both Vykhodtsev and Whalen are directed towards the same field of endeavor of food products made using vegetal base suspensions/syrups comprising an aqueous solution of oats that is treated enzymatically. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oat based food composition of Vykhodtsev and incorporate hydrolyzed oat syrup into the oat based food composition as taught by Whalen since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Whalen teaches that there was known utility in the food art to utilize hydrolyzed oat syrup into an aqueous oat based food product composition. Whalen teaches that it was known and conventional in the food and beverage art to utilize oats in syrup form to make food.
Further regarding Claim 9, although Whalen does not explicitly teach the hydrolyzed oat syrup being present in an amount of 5%-25%, Whalen teaches oat syrup exhibiting desirable sweetness, texture, and mouthfeel characteristics when formed into non-dairy food products (‘404, Paragraph [0030]). Additionally, Alho-Lehto et al. discloses a fermented oat suspension which is a non-dairy edible composition containing a sweetening agent such as a starch syrup (‘145, Paragraph [0041]) wherein the suspension is treated enzymatically (‘145, Paragraph [0047]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of Vykhodtsev and adjust the amount of hydrolyzed oat syrup of the vegetal base since differences in the concentration of hydrolyzed oat syrup will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of hydrolyzed oat syrup is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of hydrolyzed oat syrup of the enzymatically treated vegetal base of Vykhodtsev based upon the desired sweetness level as taught by Whalen (‘404, Paragraph [0030]) and Alho-Lehto et al. (‘145, Paragraph [0041]) and the desired texture and mouthfeel characteristics as taught by Whalen (‘404, Paragraph [0030]).
Further regarding Claim 9, Vykhodtsev modified with Whalen and Alho-Lehto et al. is silent regarding the total sugar content of the fermented vegetal base by weight dry matter comprising at least 55% maltose.
Mitchell et al. discloses a plant based composition (rice milk) comprising a vegetal base (rice) (‘992, Column 2, lines 53-68) and a bacteria (‘992, Column 6, lines 4-27) wherein the total sugar content of the vegetal base by weight dry matter comprises about 0 to 70% maltose solids (‘992, Column 4, lines 8-18), which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least 55% maltose. Mitchell et al. also discloses a specific embodiment wherein the vegetal base (rice milk) has a high maltose content of about 55% maltose (‘992, Column 11, lines 48-57), which falls within the claimed total sugar content of the vegetal base by weight dry matter comprising at least 55% maltose. Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Mitchell et al. also discloses the plant based composition is a plant based milk alternative (substitute) (‘992, Column 4, lines 27-33).
Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter as taught by Mitchell et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by dry matter of the vegetal base overlaps maltose concentration of the total sugar content of the vegetal base by weight dry matter of the vegetal base ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Regarding Claim 10, Alho-Lehto et al. discloses an optionally fermented oat suspension (‘145, Paragraph [0041]) wherein the oat suspension is mixed with other ingredients and then fermented with lactic acid bacteria (‘145, Paragraphs [0101]-[0102]), which suggests an embodiment wherein a non-fermented cereal preparation of an oat suspension is used to make the fermented plant based composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fermented plant based composition of Vykhodtsev and incorporate a non-fermented cereal preparation in the form of a non-fermented oat suspension as taught by Alho-Lehto et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Lehto et al. teaches that there was known utility in the food art to utilize a non-fermented cereal preparation of an oat suspension.
Regarding Claim 23, Vykhodtsev never discloses the presence of the composition or vegetal base comprising raffinose, stachyose, or verbacose or soy. Mitchell et al. discloses an embodiment wherein the slurry is derived from barley, wheat, rye, or sweet potatoes (‘992, Column 6, lines 15-27). Therefore, Vykhodtsev modified with Whalen, Alho-Lehto et al., and Mitchell et al. reads on the plant based composition or vegetal base not comprising raffinose, stachyose, or verbascose.
Regarding Claim 24, Vykhodtsev discloses the product having a yogurt like consistency (‘805, Paragraph [0087]). Therefore, Vykhodtsev modified with Whalen, Alho-Lehto et al., and Mitchell et al. reads on the claimed plant based composition being an alternative of yogurt.
Regarding Claim 26, Vykhodtsev discloses the homofermentative lactic acid bacteria being S. thermophilus and/or L. bulgaricus and/or L. lactis (‘805, Paragraph [0248]).
Regarding Claim 27, Mitchell et al. discloses the total sugar content of the vegetal base by weight dry matter comprises about 0 to 70% maltose solids (‘992, Column 4, lines 8-18), which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least 70% maltose. Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter as taught by Mitchell et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by dry matter of the vegetal base overlaps maltose concentration of the total sugar content of the vegetal base by weight dry matter of the vegetal base ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Regarding Claim 28, Mitchell et al. also discloses a high maltose rice milk product is metabolized more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58). Both Vykhodtsev and Mitchell et al. are directed towards the same field of endeavor of plant based compositions comprising a cereal base Both cereal plant based compositions of Vykhodtsev and Mitchell et al. contain a bacteria. Although Mitchell et al. does not explicitly disclose an embodiment wherein the total sugar content of the vegetal base by weight dry matter comprises at least 80% maltose, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and incorporate maltose in the claimed total sugar concentration of the vegetal base by weight dry matter since differences in the concentration of maltose of the total sugar content of the vegetal base by weight dry matter of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maltose concentration of the total sugar content of the vegetal base by weight dry matter is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of maltose the constitutes the total sugar content of the vegetal base of Vykhodtsev based upon the metabolize rate since Mitchell et al. teaches that maltose metabolizes more slowly than glucose and does not result in rapid blood sugar increase (‘992, Column 8, lines 54-58).
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Whalen US 2013/0183404, Alho-Lehto et al. US 2011/0159145, and Mitchell et al. US 4,744,992 as applied to claim 9 above in further view of Gil-Martinez et al. US 2021/0251264 and Bansal-Mutalik et al. US 2017/0265505.
Regarding Claim 25, Vykhodtsev discloses the composition product comprising Lactobacteria/Lactic acid bacteria (‘805, Paragraphs [0030]-[0031]) wherein the product has an acid sweet taste (‘805, Paragraph [0128]). However, Vykhodtsev modified with Whalen, Alho-Lehto et al., and Mitchell et al. is silent regarding the fermented plant based composition comprising acetic acid and the plant based composition comprising a lactic acid to acetic acid ratio of 1.5 or higher.
Gil-Martinez et al. discloses food can be acidified either by direct addition of acid and/or by microbial fermentation of food by lactic or acetic acid (‘264, Paragraph [0012]) wherein a plant based fermented composition (brewers spent grain) is produced wherein acetic acid has a lower detection threshold than lactic acid wherein at high concentrations acetic acid has a pungent vinegar like aroma wherein levels of acetic acid higher than 0.4% in starting BSG results in consumer rejection of the beverage and a beverage made with MS BGSG stabilized with lactic acid and no more than 0.4% acetic acid was accepted by a consumer panel (‘264, Paragraphs [0040]-[0041]). Bansal-Mutalik et al. discloses a plant based composition (plant based analogs for cream cheese, milk, or milk like beverage) (‘505, Paragraph [0017]) used in fermented beverages (‘505, Table 2) (‘505, Paragraph [0151]) having modulated organoleptic properties of a reduction in vinegary flavor or aromas (‘505, Paragraph [0016]).
Modified Vykhodtsev, Gil-Martinez et al., and Bansal-Mutalik et al. are all directed towards the same field of endeavor of plant based compositions made by a fermentation process. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fermented product of modified Vykhodtsev and conduct the microbial fermentation by acetic acid since Gil-Martinez et al. teaches that it was known and conventional in the food and beverage fermentation art to acidify food by acetic acid (‘264, Paragraph [0012]). Although Gil-Martinez et al. and Bansal-Mutalik et al. does not explicitly disclose the lactic acid to acetic acid ratio to be 1.5 or higher, this ration indicates the composition to have a significantly higher lactic acid amount than acetic acid amount. Gil-Martinez et al. teaches beverages stabilized with significantly lower concentrations of acetic acid relative to concentrations of lactic acid were accepted by consumer panels and Bansal-Mutalik et al. teaches modulating the fermented beverages to have a reduction in vinegary flavor or aromas. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based composition of modified Vykhodtsev and adjust the lactic acid to acetic acid ratio such that acetic acid is present in significantly lower concentrations than lactic acid since Gil-Martinez et al. teaches that lower concentrations of acetic acid are accepted by consumer panels and since Bansal-Mutalik et al. teaches reducing the vinegar taste of fermented plant based beverages. Furthermore, differences in the ratio of lactic acid to acetic acid will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio of lactic acid to acetic acid is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Whalen US 2013/0183404, Alho-Lehto et al. US 2011/0159145, and Mitchell et al. US 4,744,992 as applied to claim 9 above in further view of Derez et al. US 2015/0166684.
Regarding Claim 28, Vykhodtsev modified with Whalen, Alho-Lehto et al., and Mitchell et al. renders obvious the limitations of Claim 28 as enumerated above. However, in the event that it can be shown with objective evidence that the concentration of maltose of the total sugar content of the vegetal base by weight dry matter is critical, Derez et al. discloses a starch slurry broken down into dextrose oligomers through the action of enzymes and saccharification of the liquefied starch slurry to yield maltose containing liquors (‘684, Paragraphs [0013]-[0014]) comprising a saccharification step to make a maltose containing liquor having a dry substance of from 40 w/t% to 80 w/w% (‘684, Paragraph [0055]), which overlaps the claimed maltose concentration of at least 80% maltose of the total sugar content of the vegetal base by weight dry matter.
Both modified Vykhodtsev and Derez et al. are directed towards the same field of endeavor of methods of enzymatically breaking down starches in a plant based composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Vykhodtsev and break down the starch to have the claimed maltose concentration of the total sugar content of the vegetal base by weight dry matter as taught by Derez et al. since where the claimed maltose concentration of the total sugar content of the vegetal base by weight dry matter ranges overlap maltose concentration of the total sugar content of the vegetal base by weight dry matter ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Response to Arguments
Examiner notes that a new new matter rejection under 35 USC 112(a) has been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections of independent Claims 3 and 9 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The new obviousness rejections was necessitated by amendment.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nilsson et al. WO 03/075683 discloses a method of modifying starch in oat cereal using a specification combination of enzymes having increased glucose content compared to conventional oat wherein the starch modified oat contains at least 40 wt% maltose on a dry weight basis to increase the sweetness of the oat itself and enable the possibility to produce sweet food products (‘683, Page 4, lines 7-26).
Triantafyllou US 6,451,369 discloses a non dairy ready to use milk substitute and product made therewith made by a method comprising the steps of wet milling oats to provide a pregelatinized suspension having a dry solids content of 10 to 15 wt% and adding an amylase for hydrolysis of 1-2 hours to provide an oat suspension containing a significant amount of maltose and beta glucans.
Triantafyllou US 2002/0081367 discloses a non dairy oat dispersion prepared by synergistic enzymatic hydrolysis (‘367, Paragraph [0002]) that is lactose free (‘367, Paragraph [0011]) wherein a cereal starch is converted entirely to low molecular weight compounds such as glucose by combining, e.g. beta amylase, alpha amylase, and amyloglucosidase (“367, Paragraph [0064]) wherein when alpha amylase and beta amylase are simultaneously added to the cereal suspension the alpha amylase acts as a catalyst to promote both the rate of reaction of the beta amylase and the yield which synergy produces an oat milk rich in maltose and enables maltose and maltodextrin units to be produced while using a smaller amount of enzymes and in less time than if the enzymes are used separately wherein increasing the concentration of alpha amylase to beta amylase yields increasing amounts of maltose (“367, Paragraph [0065]) wherein the sweetness of the cereal milk results from modifying an oat suspension with enzymes that can be regulated and/or manipulated using appropriate enzyme preparations wherein an enzyme preparation comprising alpha and beta amylase produces a high level of maltose and a second treatment of an enzyme preparation comprising amyloglucosidase and/or glucose isomerase converts maltose to glucose and fructose resulting in a sweeter suspension than one containing mainly maltose wherein a suspension comprising fructose presents no adverse affects to diabetics (‘367, Paragraph [0075]) wherein the majority of starch of about 60% of the oats is converted to maltose (‘367,. Paragraph [0087]).
Savino US 2019/0344233 discloses a method for forming a grain based cereal paste from oat and barley grains from a cereal paste and cereal suspension having a viscosity and taste similar to milk or grain based or nut based milk products (‘233, Paragraph [0122]) by adding an alpha and/or beta amylase to a mixture of oats and water which amylase hydrolyzes alpha bonds of large alpha linked polysaccharides to yield glucose and maltose (‘233, Paragraph [0116]) wherein glucoamylase, aka amyloglucosidase or AMG, is added with alpha or beta amylase which glucoamylase breaks apart disaccharides like maltose produced after treating the mix of oats and water with alpha or beta amylase (‘233, Paragraph [0118]).
Mitchell et al. US 2007/0014892 discloses a method for producing milk like liquid concentrates and dried powder ingredients from whole grain corn and rice (‘892, Paragraph [0001]) comprising enzymatic hydrolysis in combination with saccharification (‘892, Paragraph [0034]) wherein a liquefied slurry is cooled and saccharification alpha and beta amylase enzymes are added which saccharifying enzymes include a glucosidase to produce a microorganisms of bacillus strains or a beta amylase which is maltose liberating extracted from barley, wheat, rye, or soybeans (‘892, Paragraph [0046]) wherein the dosage level of added saccharification enzyme is dependent on the quantity and type of sugar to be liberated wherein the residual translucent liquor having removed the fiber, protein, and fat amylose complex and having varying glucose and maltose content depending upon the quantity and type of saccharifying enzyme used (‘892, Paragraph [0047]) wherein the whole grain milk has varying starch, complex carbohydrates, and glucose to maltose ratios wherein it is known in the art to use different ratios of glucosidase (glucose producing enzymes) and beta amylases (maltose producing enzymes) as well as the total amount of enzymes to saccharify enzymatically liquefied products to the desired concentrations of glucose, maltose, and complex carbohydrates within a given period of time wherein any of these ratios and quantities are employed (‘892, Paragraph [0076]).
Walon US 4,235,965 discloses an aqueous slurry of liquefied and at least partially solubilized starch of high solids concentration (‘965, Column 1, lines 9-12) comprising a saccharification step comprising adding saccharifying enzymes such as preparing a levulose containing syrup by adding subsequent to or simultaneously with glucoamylase beta amylase for a high maltose product (‘965, Column 4, lines 60-68) (‘965, Column 5, lines 1-7) wherein the starch is derived from any variety of starch including corn, wheat, or rice starch and starch containing materials (‘965, Column 5, lines 8-15) wherein the maltose content is 56% (‘965, Column 6, lines 4-9).
The prior art made of record, cited on a previous 892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Triantafyllou Oste et al. US 2004/0219261 discloses an oat milk suspension fermented with lactic acid bacteria to obtain a thickened product of lower pH using a conventional yogurt starter culture such as Lacrobacillus delbruckii subsp. Bulgaricus and Streptococcus thermophilus complemented with Lactobacillus acidophilus to make a more acidic product since Lactoacillus acidophulius ferments maltose better than conventional yogurt starter cultures wherein a starter culture devoid of hydrolytic activity is used to reduce the fiber content of the oat product such as a starter culture having beta glucanase activity (‘261, Paragraph [0017]) wherein the fermented product comprises an aqueous oat base suspension having a dry matter content of about 10% wherein the oat base dry matter contains from about 10 to 50% by weight maltose (‘261, Paragraph [0012]) and the remainder of carbohydrates substantially consists of maltodextrin of varying molecular weight (‘261, Paragraph [0015]) wherein oats can replace dairy milk which oats has a dry substance and sugar content similar to dairy milk but contains maltose and/or glucose instead of lactose and which oats increases dietary fiber while eliminating milk fat (‘261, Paragraph [0003]).
Margolis et al. US 2019/0274324 discloses a plant based yogurt prepared by fermentation using lactic acid bacteria and yogurt strains of S. thermophilus and L. bulgaricus or a combination of yogurt and probiotic strains in plant based fermentable substrates without the addition of sucrose, glucose, or lactose into a plant milk substrate that is naturally completely lacking in lactose (‘324, Paragraph [0027]) made using a fermentation mixture comprising bacteria of the genus Bifidobacterium (‘324, Paragraph [0021]) wherein soluble oat fiber is added without involvement of lactose (‘324, Paragraph [0035]) wherein LAB secreted enzymes are able to hydrolyze various glucose linkages of carbohydrate molecules present in the soluble oat fiber (‘324, Paragraph [0071]) and that yogurt is an important milk derived food product made by bacterial fermentation of milk using yogurt cultures containing at least the bacterial strains of S. thermophilus and L. bulgaricus (‘324, Paragraph [0005]).
Kizer et al. US 2019/0000112 discloses dairy product analogs comprising carbohydrates of sucrose, glucose, and fructose in an amount of between about 1% to about 10% (‘112, Paragraph [0099]) wherein the dairy product analog does not comprise lactose (‘112, Paragraph [0099]) and comprises sugars, other sugars, or sweetening agents in place of lactose (‘112, Paragraph [0102]) wherein the sweeteners comprises maltose (‘112, Paragraph [0236]).
Lindahl et al. US 5,686,123 discloses a homogeneous and stable cereal suspension having the taste and aroma of natural oats and comprising intact beta glucans wherein the suspension is prepared by treating oatmeal suspension first with beta amylase to generate maltose units and having no glucanase and proteinase effect and thereafter with alpha amylase to generate maltose units and having no glucanase and proteinase effect.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
