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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 13 February 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16-25 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 16 has been amended to recite limitations regarding the pH changed caused by the recited bacteria at specific temperatures for a given bacterial loading. The claim does not specify the pH of the milk when the bacteria are added, the time over which the pH change occurs or the identity/composition (i.e. lactose content) of the milk used for evaluation. Each of these parameters affect the acidification that can be provided by a given microbial species. Since it is not clear how to evaluate these newly added functional limitations, the scope of claim 16 is unclear. Claims 17-25 depend from claim 16 and necessarily inherent the indefiniteness therein. Appropriate correction is required.
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 (i.e., changing from AIA to pre-AIA ) 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, 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 16-25 are rejected under 35 U.S.C. 103 as being unpatentable over Didelot WO2017005631 and Bloc WO2019043115.
Regarding claim 16, Didelot teaches a method for producing continental cheese comprising adding a mesophilic lactic acid bacteria composition to a milk composition. (Pg. 3) The method of Didelot is a non-washed curd process as described in applicant’s background section.
Didelot is silent regarding a lactic acid bacteria composition comprising elements (i)-(iii) of claim 16.
Bloc teaches a mesophilic starter culture for fermenting milk comprising (Pg. 1,10):
At least one lactose-deficient Streptococcus thermophilus strain
At least one lactose-deficient Lactococcus lactis strain
The Streptococcus thermophilus strain of Bloc is mesophilic and therefore interpreted to be temperature sensitive as recited in claim 16.
According to Bloc, “lactose deficient” means a LAB that has completely lost the ability to use lactose as a source for cell growth and therefore the Lactococcus lactis strain disclosed by Bloc is lactose negative as required by claim 16. (Pg. 3)
Bloc discloses combinations of Lactococcus lactis strains wherein each strain is lactose negative and by virtue of being lactose negative, each strain has low post acidification as recited in claim 16.(Pg. 1) The Streptococcus thermophilus disclosed by Bloc likewise has low post acidification.
Since the strains disclosed by Bloc do not metabolize lactose, no post-acidification takes place after the termination of fermentation due to the depletion of the carbohydrate growth source.(Pg. 2) Depletion of the carbohydrate source is also how Bloc controls termination of fermentation.(Pg. 7) Since the change in pH in the fermentation process of Bloc can be controlled by controlling the amount of carbohydrate growth source, the bacteria of Bloc are capable of providing the amount of acidification recited in i) and iii) of claim 17.
Both Didelot and Bloc are directed towards cheese making processes using mesophilic LAB starter cultures. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the culture of Bloc in Didelot in order to ensure no post-acidification takes place after the termination of fermentation due to the depletion of the carbohydrate growth source. Therefore, the modification of Didelot with Bloc renders obvious the method of claim 16.
Regarding claims 17 and 25, the method of Didelot comprises (Pg. 3) :
Adding at least one mesophilic culture and optionally at least one thermophilic culture
Optionally pre-ripening
Renneting
Cutting and Stirring
Washing
Optionally pre-pressing
Molding and pressing
Salting : e.g. by brining,
wherein water is added in an amount of less than 10% of the initial milk volume between step d) and step f).
Regarding claims 18 and 19, Bloc discloses an embodiment wherein the LAB composition comprises 13.9% Lactococcus lactis and 72.2% Stretococcus thermophilus. (Pg. 25) It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used this embodiment in Didelot for the reasons enumerated above with regard to claim 16. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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)
Regarding claim 20, Bloc discloses an embodiment where the LAB composition comprises 27.8% lactose negative Lactococcus lactis. (Pg. 19) It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used this embodiment in Didelot for the reasons enumerated above with regard to claim 16. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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)
Regarding claim 21, Didelot discloses bovine and camel chymosin and variants thereof. (Pg. 5)
Regarding claim 22, Didelot discloses a drying step between step d and step f wherein the curd is dried before molding to reduce wet matter and control the moisture content of the cheese. (Pg. 5)
Regarding claim 23, Didelot discloses the cheese is Edam, Gouda, continental processed cheese or Maasdamer. (Pg. 5)
Regarding claim 24, Didelot teaches that in a conventional washing step in continental cheese production 10-50% of the total volume of whey is removed. (Pg. 2) Didelot discloses a washing step (Pg. 3) and that water is added in an amount of less than 10% of the initial milk volume during the washing step. (Pg. 3)
According to Bloc, “lactose deficient” means a LAB that has completely lost the ability to use lactose as a source for cell growth and therefore the Lactococcus lactis strain disclosed by Bloc is lactose negative as required by claim 16. (Pg. 3)
Bloc discloses combinations of Lactococcus lactis strains wherein each strain is lactose negative and by virtue of being lactose negative, each strain has low post acidification as recited in claim 16.(Pg. 1) The Streptococcus thermophilus disclosed by Bloc likewise has low post acidification.
Since the strains disclosed by Bloc do not metabolize lactose, no post-acidification takes place after the termination of fermentation due to the depletion of the carbohydrate growth source.(Pg. 2) Depletion of the carbohydrate source is also how Bloc controls termination of fermentation.(Pg. 7) Since the change in pH in the fermentation process of Bloc can be controlled by controlling the amount of carbohydrate growth source, the bacteria of Bloc are capable of providing the amount of acidification recited in i) and iii) of claim 1.
Both Didelot and Bloc are directed towards cheese making processes using mesophilic LAB starter cultures. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the culture of Bloc in Didelot in order to ensure no post-acidification takes place after the termination of fermentation due to the depletion of the carbohydrate growth source. Therefore, the modification of Didelot with Bloc renders obvious the method of claim 16.
Response to Arguments
Applicant's arguments filed 13 February 2026 have been fully considered but they are not persuasive.
Applicant asserts on page 5 of the remarks that regarding the rejection under 35 U.S.C. 112(b), “The parameters the Examiner finds are missing would be well-known to a person of skill in the art, who would also recognize that explicitly stating them would be unnecessary in view of the description provided in the specification”. This attorney argument is not found persuasive as applicant has failed to identify what these “well-known” parameters actually are. Surely if such parameters are so well known, this missing knowledge from the claims should be capable of immediate demonstration by providing an evidentiary reference. It is noted that “the arguments of counsel cannot take the place of evidence in the record”, In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). It is the examiner’s position that the arguments provided by the applicant regarding parameters for evaluating the acidification properties of the recited microbes must be supported by a declaration or affidavit. As set forth in MPEP 716.02(g), “the reason for requiring evidence in a declaration or affidavit form is to obtain the assurances that any statements or representations made are correct, as provided by 35 U.S.C. 24 and 18 U.S.C. 1001”. As such, the rejection under 35 U.S.C. 112(b) is maintained.
Applicant’s remarks regarding non-washed curd processes on page 5 of the remarks are found persuasive. It is noted that the definition provided by applicant of non-washed curd processes aligns with the examiners interpretation that Bloc teaches a non-washed curd process.
Applicant asserts on page 6 of the remarks that one of ordinary skill in the art would not be able to make the statement in the rejection that the bacteria of Bloc are capable of providing the amount of acidification recited in i) and iii) of claim 16. Given that the limitations of i) and iii) are indefinite as discussed above, the examiner has reasonably taken the position that the LAB of Bloc read on these claim limitations insofar as they can be understood by one of ordinary skill in the art. Absent evidence to the contrary, applicant’s assertions have no evidentiary or logical basis and are therefore not found persuasive.
Applicant asserts on page 6 of the remarks that no single reference teaches the recited LAB composition. 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).
Applicant asserts on page 6 of the remarks that neither Bloc nor Didelot teach the specific acidification profile described in the pending claims, however, as stated above this limitation is indefinite and applicant has failed to rebut the position taken by the examiner with evidence.
Applicant’s remarks at the bottom of page 6 regarding desired pH and increased yield are not germane as the instant claims do not recite limitations regarding this combination of properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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