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 .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 01/21/26. Claims 11, 13, 17, 20 and 21 are pending and have been examined on the merits. Claims 12, 14-16, and 19 have been cancelled. Claim 18 was previously cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/21/26 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 11, 13, 17, 20 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Log 10 “Pre-Liminate™” https://web.archive.org/web/20180816154815/https://log10.com/probiotics/pre-liminate/ in view of De Brueker et al. (WO 2013/178947) machine Translation and Schmidt (CA 2736885).
Regarding Claim 11: Log 10 discloses a method for preventing contamination of food and food surfaces during food production processes [pg. 1]. Log 10 discloses using probiotics to eliminate or prevent pathogens from formation in food or on food surfaces [pg. 1]. Log 10 discloses putting the probiotics in the food to mitigate pathogens in the process, the product and the consumer [pg. 1].
Log 10 does not disclose using at least one strain of the genus Bacillus; wherein the bacteria of the genus Bacillus is of the species Bacillus subtilis (claim 19).
De Brueker discloses adding B. subtilis to the drinking water of farm animals for the reduction of E.coli and discloses the effectiveness in water in drinking troughs [abstract; pg.2; pg. 3]. De Brueker discloses using at least one of B. subtilis NOL01; NOL02, NOL03. De Brueker discloses that the B. subtilis strains can be coupled with lactic acid bacteria designated NOL11 for a synergistic effect [abstract; pg. 3]. De Brueker discloses cleaning and disinfecting chicken coops with the Bacillus sp. [pg. 3].
Schmidt discloses administering B. subtilis in drinking water or feed [abstract; 0007; claims 18-21]. Schmidt discloses B. subtilis as capable of decreasing the growth of pathogenic bacteria [0008; 0009; 0039]. Schmidt discloses B. subtilis in dry or semi-moist feeds (which are solid form foods) [0049; 0050].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Log 10 to include the B. subtilis of De Brueker since it is able to prevent the growth of pathogenic bacteria namely E.coli and since De Brueker discloses that the bacteria can be ingested and used to clean surfaces (e.g. the chicken coop).
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to include the B. subtilis in solid and semi solids foods as well as in water as disclosed in Schmidt since B. subtilis is capable of preventing and decreasing the growth of pathogenic microorganisms. At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Log 10 to further include a lactic acid bacteria as in De Brueker since it discloses a synergistic effect in coupling the B. subtilis with lactic acid bacteria.
Regarding Claim 13: Log 10 as modified discloses as discussed above in claim 11. Log10 does not disclose where said strain of bacteria of the genus Bacillus is present at a rate of at least 104 cfu per gram of the food composition.
De Brueker discloses that the composition contains at least 105 cfu/ml Bacillus sp. [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Log10 to include at least 105 cfu/ml Bacillus sp. as in De Brueker since it discloses this as an effective amount in the prevention of pathogenic bacterial contamination.
Further regarding the cfu/ml versus cfu/g, there is no particular patentable difference between a composition which is in dry form and one which is the same composition with the addition of water. The mere matter of liquid form, if respective compositions are substantially the same, cannot lend patentability to applicant’s claims. In re Nelson 1938 CD 708.
Regarding Claims 17, 20, and 21: Log 10 discloses contaminating bacteria as Salmonella sp. or Escherichia coli [pg. 4]. De Brueker discloses adding B. subtilis to the drinking water of farm animals for the reduction of E.coli and discloses the effectiveness in water in drinking troughs [abstract; pg.2; pg. 3].
Response to Arguments
It is noted that arguments were not presented along with the claim amendments.
The Examiner maintains the arguments presented in the Advisory Action.
The Applicants asserted that Log 10 is silent as to the claimed bacterial strains. The Applicants asserted that Log 10 implies that only probiotics/bacteria are applied to the surface where the instant invention recites a combination of food and bacteria. The Applicants asserted that one of ordinary skill in the art would not have been motivated to use a mixture of food and bacteria.
The Examiner disagreed. Log 10 discloses custom probiotics for the elimination of pathogens on food and food contact surfaces. Log 10 discloses the probiotics for application to food and to the plant environment (food production/equipment). By disclosing the probiotics in food and on food surfaces it is clear that the combination of food and surfaces/equipment is envisioned by Log 10. De Brueker discloses B. subtilis for ingestion in drinking water and in applying to cleaning and disinfecting chicken coops. It is clear from De Brueker that the B. subtilis is suitable for and has been used for both ingestion and for disinfecting equipment. Further, Schmidt discloses B. subtilis in both food and water and in dry or semi moist feeds. The Examiner maintains that it would have been obvious to one of ordinary skill in the art that processing foods containing the B. subtilis would have provided some sort of protective or decontaminating effect and that using the B. subtilis in the food and on the equipment used to process the food, that it would have provided a decontaminating effect.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/ Primary Examiner, Art Unit 1793
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