2144DETAILED 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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 14, 2025 has been entered.
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 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Thevenier et al. US 2019/0246680.
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% sugars having a degree of polymerization of DP1 to DP2.
Thevenier et al. discloses a plant based composition comprising a vegetal base (oats) (‘680, Paragraphs [0099]-[0100]), a lactic acid producing bacteria (‘680, Paragraph [0148]), and a homofermentative lactic acid bacteria (L. bulgaricus) (‘680, Paragraphs [0025] and [0034]). Thenevier et al. further discloses the total sugar content of the vegetal base by weight dry matter comprising 100% of the total carbohydrate in the nutritional composition being lactose (‘680, Paragraph [0122]). Applicant discloses lactose to be a type of DP2 sugar (Specification, Page 3, lines 17-23). Therefore, the disclosure of Thenevier et al. that the total sugar content of the vegetal base by weigh dry matter comprising 100% of the total carbohydrate in the nutritional composition being lactose falls within the claimed total sugar content of the vegetal base by weight dry matter comprising at least about 55% sugars having a degree of polymerization of DP1 to DP2.
Both Vykhodtsev and Thenevier et al. are directed towards the same field of endeavor of plant based compositions comprising an oat base and L. bulgaricus homofermentative lactic acid 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 lactose, which has a degree of polymerization of DP2, within the claimed concentration of total sugar content of the vegetal base by weight dry matter as taught by Thenevier et al. since where the claimed DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base overlaps DP1 monosaccharide to DP2 disaccharide sugar content 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 DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such DP1 monosaccharide to DP2 disaccharide sugar content concentration 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.).
Regarding Claims 4-5, Vykhodtsev never discloses the presence of the composition or vegetal base comprising raffinose, stachyose, or verbacose or soy. Therefore, Vykhodtsev reads on the plant based composition or vegetal base not comprising raffinose, stachyose, or verbascose or soy.
Further regarding Claim 5, Thevenier et al. discloses plant proteins used being potato protein including pea, rice quinoa, oat, sunflower and/or coconut proteins (‘680, Paragraph [0100]). Thevenier et al. also discloses that some people have soy food allergies (‘680, Paragraphs [0006], [0009], [0175], and [0177]). 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 Thevenier 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 Claim 16, Thevenier et al. discloses a plant based composition comprising a vegetal base (oats) (‘680, Paragraphs [0099]-[0100]), a lactic acid producing bacteria (‘680, Paragraph [0148]), and a homofermentative lactic acid bacteria (L. bulgaricus) (‘680, Paragraphs [0025] and [0034]). Thenevier et al. further discloses the total sugar content of the vegetal base by weight dry matter comprising 100% of the total carbohydrate in the nutritional composition being lactose (‘680, Paragraph [0122]). Applicant discloses lactose to be a type of DP2 sugar (Specification, Page 3, lines 17-23). Therefore, the disclosure of Thenevier et al. that the total sugar content of the vegetal base by weigh dry matter comprising 100% of the total carbohydrate in the nutritional composition being lactose falls within the claimed total sugar content of the vegetal base by weight dry matter comprising at least about 60% sugars having a degree of polymerization of DP1 to DP2.
Both Vykhodtsev and Thenevier et al. are directed towards the same field of endeavor of plant based compositions comprising an oat base and L. bulgaricus homofermentative lactic acid 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 lactose, which has a degree of polymerization of DP2, within the claimed concentration of total sugar content of the vegetal base by weight dry matter as taught by Thenevier et al. since where the claimed DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base overlaps DP1 monosaccharide to DP2 disaccharide sugar content 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 DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such DP1 monosaccharide to DP2 disaccharide sugar content concentration 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.).
Regarding Claim 18, Vykhodtsev discloses the homofermentative lactic acid bacteria being S. thermophilus and/or L. bulgaricus and/or L. lactis (‘805, Paragraph [0248]). Thenevier et al. also discloses the homofermentative lactic acid bacteria being S. thermophilus and/or L. bulgaricus and/or L. lactis (‘680, Paragraph [0025]).
Regarding Claims 19-20, Vykhodtsev discloses the product having a yogurt like consistency (‘805, Paragraph [0087]). Thenevier et al. also discloses the product having a sweet yogurt like taste (‘680, Paragraph [0208]). Therefore, Vykhodtsev modified with Thenevier et al. reads on the claimed plant based composition being an alternative of yogurt.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Thevenier et al. US 2019/0246680 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 Thevenier 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.).
Claims 3-7, 16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Alho-Lehto et al. US 2011/0159145.
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% sugars having a degree of polymerization of DP1 to DP2.
Alho-Lehto et al. discloses an oat suspension (‘145, Paragraph [0001]) fermented with lactic acid bacteria or bifidobacteria (‘145, Paragraph [0036]) wherein the suspension comprises a glucose content of 8-75% on a dry weight basis which glucose content provides suitable sweetness but is not too high to taste sugary (‘145, Paragraph [0024]) wherein the suspension also comprises maltose in an amount of 0-15% on a dry weight basis (‘145, Paragraph [0025]). Applicant discloses glucose to be a type of DP1 sugar and maltose to be a type of DP2 sugar (Specification, Page 3, lines 17-23). Therefore, the disclosure of Alho-Lehto et al. that the suspension comprises 8-75% by dry weight basis glucose DP1 sugar and 0-15% by dry weight basis maltose converts to 8-90% DP1 to DP2 sugars, which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least about 55% sugars having a degree of polymerization of DP1 to DP2.
Both Vykhodtsev and Alho-Lehto et al. are directed towards the same field of endeavor of plant based compositions comprising an oat base and bifido-bacteria lactic acid 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 glucose, which has a degree of polymerization of DP1, in combination with maltose, which has a degree of polymerization of DP2, within the claimed concentration of total sugar content of the vegetal base by weight dry matter of sugars having a degree of polymerization of DP1 to DP2 as taught by Alho-Lehto et al. since where the claimed DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base overlaps DP1 monosaccharide to DP2 disaccharide sugar content 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 DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such DP1 monosaccharide to DP2 disaccharide sugar content concentration 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 total sugar content of DP1 to DP2 sugars within the vegetal base of Vykhodtsev to provide suitable sweetness but is not too high to taste sugary as taught by Alho-Lehto et al. (‘145, Paragraph [0024]).
Regarding Claims 4-5, Vykhodtsev never discloses the presence of the composition or vegetal base comprising raffinose, stachyose, or verbacose or soy. Therefore, Vykhodtsev reads on the plant based composition or vegetal base not comprising raffinose, stachyose, or verbascose or soy.
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 Claim 16, Alho-Lehto et al. discloses an oat suspension (‘145, Paragraph [0001]) fermented with lactic acid bacteria or bifidobacteria (‘145, Paragraph [0036]) wherein the suspension comprises a glucose content of 8-75% on a dry weight basis which glucose content provides suitable sweetness but is not too high to taste sugary (‘145, Paragraph [0024]) wherein the suspension also comprises maltose in an amount of 0-15% on a dry weight basis (‘145, Paragraph [0025]). Applicant discloses glucose to be a type of DP1 sugar and maltose to be a type of DP2 sugar (Specification, Page 3, lines 17-23). Therefore, the disclosure of Alho-Lehto et al. that the suspension comprises 8-75% by dry weight basis glucose DP1 sugar and 0-15% by dry weight basis maltose converts to 8-90% DP1 to DP2 sugars, which overlaps the claimed total sugar content of the vegetal base by weight dry matter comprising at least about 60% sugars having a degree of polymerization of DP1 to DP2.
Both Vykhodtsev and Alho-Lehto et al. are directed towards the same field of endeavor of plant based compositions comprising an oat base and bifido-bacteria lactic acid 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 glucose, which has a degree of polymerization of DP1, in combination with maltose, which has a degree of polymerization of DP2, within the claimed concentration of total sugar content of the vegetal base by weight dry matter of sugars having a degree of polymerization of DP1 to DP2 as taught by Alho-Lehto et al. since where the claimed DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base overlaps DP1 monosaccharide to DP2 disaccharide sugar content 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 DP1 monosaccharide to DP2 disaccharide sugar content of the vegetal base will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such DP1 monosaccharide to DP2 disaccharide sugar content concentration 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 total sugar content of DP1 to DP2 sugars within the vegetal base of Vykhodtsev to provide suitable sweetness but is not too high to taste sugary as taught by Alho-Lehto et al. (‘145, Paragraph [0024]).
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]). Alho-Lehto et al. also discloses the product being an oat based non-dairy yogurt (‘145, Paragraph [0101]). Therefore, Vykhodtsev modified with Alho-Lehto et al. reads on the claimed plant based composition being an alternative of yogurt.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Alho-Lehto et al. US 2011/0159145 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 Alho-Lehto 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.).
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Vykhodtsev US 2010/0098805 in view of Whalen US 2013/0183404 and Alho-Lehto et al. US 2011/0159145.
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]).
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.
Response to Arguments
Applicant’s arguments on Pages 5-7 of the Remarks with respect to the previous obviousness rejections of Claim 3 under 35 USC 103(a) to Vykhodtsev in view of Triantafyllou Oste et al. as well as applicant’s arguments on Page
9 of the Remarks with respect to the previous obviousness rejections of Claim 17 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.
Applicant's arguments filed July 14, 2025 have been fully considered but they are not persuasive.
Applicant argues on Page 8 of the Remarks with respect to Claim 9 that there is no reason to combine Vykhodtsev with Whalen and Alho-Lehto. Applicant contends that Vykhodtsev teaches a first and second fermentation whereas Whalen is directed to a method of preparing an oat protein and fiber product. Applicant lists several elements disclosed by Whalen. Applicant continues that Alho-Lehto is allegedly directed to a different method and seeks to release 1,3-1,4 beta D-glucan from oats into a suspension whereas Alho-Lehto seeks to do the opposite.
Examiner argues both Vykhodtsev and Whalen teach plant based oat compositions comprising edible oat fibers (‘805, Paragraph [0131]) (‘404, Paragraph [0020]). Claim 9 does not recite the particular number of fermentation steps. The transitional phrase “comprising” does not preclude the presence of secondary fermentation steps. Claim 9 recites a general fermented plant based composition comprising a fermented vegetal base. The secondary reference of Whalen is being relied upon to render obvious the claimed limitations of a hydrolyzed oat syrup. Whalen is not being relied upon to teach the claimed fermentation step. The primary reference of Vykhodtsev already teaches fermentation of the oat suspension. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Additionally, Claim 9 does not preclude the presence and/or absence of β-glucan by virtue of the transitional phrase “comprising.” The secondary reference of Alho-Lehto is not being relied upon for its disclosure of β-glucan. Additionally, Alho-Lehto discloses embodiments wherein β-glucan is present in the oat suspension (‘145, Paragraph [0023]). The primary reference of Vykhodtsev also discloses embodiments wherein β-glucan is present in the oat suspension (‘805, Paragraph [0035]). Claim 9 does not specify the presence or absence of β-glucan and also does not specify any particular concentration of β-glucan present in the composition, if any. Applicant argues limitations that are not commensurate in scope with the claimed invention. Furthermore, the secondary reference of Alho-Lehto et al. is being relied upon for its disclosure of a non-dairy edible composition containing a sweetening agent such as a starch syrup (‘145, Paragraph [0041]) for purposes of sweetening the oat suspension Vykhodtsev. None of the references are being relied upon to teach the presence and/or absence of the unclaimed element of β-glucan. Therefore, these arguments are not found persuasive.
Examiner notes that applicant’s comments on Page 9 of the Remarks with respect to the rejection of Claim 16 does not specifically and distinctly point out the supposed errors of the Office Action.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kakeda US 2022/0104516 discloses a seasoning liquid comprising raw materials wherein the presence or absence and concentration of the ingredient is appropriately selected and adjusted according to the desired flavor and intensity to be given wherein the seasoning liquid contains acetic acid to be blended as vinegar (‘516, Paragraph [0017]).
Metzger US 3,711,392 discloses lactic acid produced by bacterial action is valued at more than twice the price of the acetic acid product and it is desirable to have a high lactic acid to acetic acid ratio. Wherein the halogen derivatives of acetic acid has an inhibitory effect on acetic acid production by bacteria.
Schwartz et al. US 4,371,619 discloses acetic acid is regularly made by fermentation of sugars (‘619, Column 1, lines 6-10).
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/ERICSON M LACHICA/Examiner, Art Unit 1792