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 .
Claim status
The Office acknowledges the amendment made to claims on 01/09/2026.
Claims 1-18 are pending in the application. Claims 1, 7 and 9 are currently amended. Claims 10-15 are withdrawn without traverse in view of the restriction requirement. Claims 16-18 are newly presented. Rest of claims are previously presented. Claims 1-9 and 16-18 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claim 9 is objected to because the status of the claim is not correct. It should be “currently amended”. Appropriate correction is required.
Claim 17 is objected to because of the following informalities: “the group;” in line 2 should read “the group consisting of”, and “Plantaricin ST 31, Plantaricin SA6” in the last line should read “Plantaricin ST 31 and Plantaricin SA6”. Appropriate correction is required.
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 1-9 and 16-18 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 1 in line 5-6 recites “wherein the plantaricin is”. There is insufficient antecedent basis for the phrase about plantaricin in the claim. Claims 2-9 and 16-18 ultimately depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 8 and 17-18 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 8 depends from claim 1 and recites that the bacteriocin is a plantaricin. However, claim 1 recites that the bacteriocin is one of the plantaricins recited in the Markush group. As such, claim 8 fails to further limit claim 1.
Claims 17-18 depend from claim 1 and recite that the plantaricin can be plantaricin A. However, plantaricin A is not in the Markush group of claim 1. As such, claims 17-18 fail to include the all the limitations of claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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.
Claims 1-9 and 16-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rizzello, “Quorum-Sensing Regulation of Constitutive Plantaricin by Lactobacillus plantarum Strains under a Model System for Vegetables and Fruits”, Applied and Environmental Microbiology, 2014, 80(2), pages 777-787 (hereinafter referred to as Rizzello).
Regarding claims 1-9 and 16-18, Rizzello teaches a supernatant produced from fermentation of MRS broth or from fermentation of vegetable and fruit juice by a bacteriocin-producing lactic acid bacteria (e.g., Lactococcus plantarum strains C2, C5, POM20, POM42, 1LS9 and 1LS16) (Abstract; Table 1, page 779, left hand column, 2nd para.). Further, Rizzello teaches that each of the Lactococcus plantarum strains contains plnEF gene, which necessarily expresses Plantaricin E and Plantaricin F (Abstract; Table 2 and Table 8). Further, L. plantarum as a facultative heterofermentative bacterium is known to produce, in a fermentation or cultivation process, metabolites including lactic acid, acetic acid and short-chain fatty acid (SCFA) from carbohydrates under the action of the enzymes present in the L. plantarum.
The preamble language “for control of microbial development of an edible substance” is not considered to further limit the composition. It is the examiner’s position that the intended use recited in the present claims do not result in a structural difference between the presently claimed composition and the prior art composition and further that the composition of the prior art is capable of performing the intended uses. Given that Rizzello teaches that the plantaricin-containing supernatant has antimicrobial activity towards various indicator bacteria strains (Abstract; Table 4), and that the L. plantarum themselves are used as probiotics (page 778, left hand column, under “Materials and Methods”), it is clear that the supernatant as disclosed by Rizzello would be capable of performing the intended uses, e.g., for control of microbial development of an edible substance without significantly altering the organoleptic characteristics. Further, it is noted that the claim is silent regarding the proportion of the supernatant that is added to the edible substance, and an organoleptic characteristic of an edible substance is a subjective determination based on personal preference.
Further regarding claim 2, Rizzello teaches freeze-dried concentrated (10x) cell-free supernatant (page 779, left hand column, 2nd para.).
Further regarding claim 4, Rizzello as recited above teaches MRS broth, which is known to contain a mineral/salt. Further the cell free supernatant of vegetable and fruit juices necessarily contain minerals.
Response to Arguments
Applicant’s arguments filed 01/09/2026 with respect to pending claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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.
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/CHANGQING LI/Primary Examiner, Art Unit 1791