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 .
Suspension of Action
The suspension of action requested 11/25/2025 was for a maximum period for suspension of 6 months.
Claim Rejections - 35 USC § 102/103
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
The factual inquiries 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.
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 8-10 and 15 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over WO2008/003782 (DE SCHINKEL).
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As to claims 8-10 and 15, the claimed invention is directed to a composition comprising L. lactis deposited at the CNCM under reference number CNCM I-5450. At page 1, lines 30-35, it is stated that the present invention is based on the unexpected finding that the Lactococcus lactis strains degrade phytates and can be used for increasing the bioavailability of phytate complexed minerals. The present specification also teaches at pg. 4, lines 1-10 that mutants and variants derived from a parent species or strain will be considered as being encompassed by reference to the parent species or strain, e.g. the phrases “Lactococcus lactis” and “CNCM I-5450” shall be taken to include strains, mutants and variants derived therefrom.
De SCHINKEL discloses vegetal yogurts (i.e., a vegetal material) that are fermented with e.g., Lactococcus lactis S, which degrades phytic acid (i.e., indicating the food contains phytate) and quickly reduces the pH of the vegetal base (see Table 2 beginning on page 20). At page 17, lines 14-22, it is taught that that degradation of phytic acid improves bioavailability of minerals in the yogurt. Given De Schinkel teaches a strain of the same genus, same species and exhibits the same properties (i.e., degrades phytic acid), it is considered that the Lactococcus lactis S is a strain or variant of the claimed L. lactis deposited under reference number CNCM I-5450.
In the alternative, any slight differences in the strain would have been obvious to one of ordinary skill in the art and well within the ordinary level of skill to select a L. lactis strain with the same properties.
Response to Arguments
At the outset, it is noted that the enablement requirement is withdrawn.
Applicant's arguments filed 11/17/2015 have been fully considered but they are not persuasive.
The applicant argues that the strain of the claims shows a tolerance to gastric and intestinal conditions with a minimal decrease in cfu during intestinal stress while maintaining some dephosphorylation capacity (See Specification at Example 4; Figs. 5 and 6). This indicates that the strain can survive and exert the effects of degrading phytic acid in the gastric and intestinal conditions and avoid direct fermentation of phytate rich food products. Applicant further argues that De Schinkel discloses three L. lactis strains: LMG P-23669 (L. lactis S), LMG 8522, and LMG 9452, but does not discuss them in the context of the digestive tract.
However, De SCHINKEL does teach in Table 2 that the Lactococcus lactis s (LMG P-23504) can be maintained on S medium and induce the breakdown of phytic acid. Table 2 evidences this (see Table 2). And is based on results of a fermentation that was stopped at pH 4.5. Thus, the strains are capable of being adapted and are viable at a lower pH than suggested by applicant. Indeed, it is noted that fermentation was halted at pH 4.5 for purposes of the experiment. There is no evidence that the strain would not be viable at a lower pH or perform in the same manner.
As noted above, De Schinkel teaches a strain of the same genus, same species and exhibits the same properties. It is still considered that Lactococcus lactis S is a strain or at least variant of the claimed L. lactis deposited under reference number CNCM I-5450 (i.e., especially considering that the present specification also teaches at pg. 4, lines 1-10 that mutants and variants derived from a parent species or strain will be considered as being encompassed by reference to the parent species or strain). In the alternative, any slight differences in the strain would have been obvious to one of ordinary skill in the art and well within the ordinary level of skill to select a L. lactis strain with the same properties.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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