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 6/16/26.
Claims 1-2,4-7, 9-11, 13, and 24-28 are pending. Claims 1, 2, 4-7, 9-11, 13, and 24-28 have been examined on the merits. Claims 3, 8, and 12 were previously cancelled. Claims 14-23 have been cancelled. Claims 24-28 are new.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/16/26 has been entered.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1, 4, 10, and 13 as being anticipated by Eyer et al. US 5962046 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 2 and 11 over Eyer et al. (US 5962046) and Curic-Bawden et al. (US 2019/0082707) have been withdrawn due to the amendments to claims 1 and 10.
The 103(a) rejection of claim 7 over Koh et al. (US 2019/0281848) and Curic-Bawden et al. (US 2019/0082707) has been withdrawn due to the amendment to claim 6 above.
Claim Rejections - 35 USC § 102
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 1, 4, 5, 6, 9, 10, 13, 24, 25 and 27 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Folkenberg et al. (US 2012/0107450).
Regarding Claims 1, 4, 24: Folkenberg discloses a method of fermenting milk [abstract; 0015]. Folkenberg discloses milk as including raw milk and pasteurized milk [0029]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023]. Folkenberg does not require the presence of L. delbruekii. Folkenberg discloses the Lactobacillus as L. johnsonii [0017; 0018].
Regarding Claim 5: Folkenberg discloses a method of fermenting milk [abstract; 0015]. Folkenberg discloses milk as including raw milk and pasteurized milk [0029]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023].
The recitation of a method for shortening fermentation, however, is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above-mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding Claims 6, 9, and 25: Folkenberg discloses a method of fermenting milk [abstract; 0015]. Folkenberg discloses milk as including raw milk and pasteurized milk [0029]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023]. Folkenberg does not disclose adding saccharides [0057].
Regarding Claims 10, 11, 13, and 27: Folkenberg discloses a method of fermenting milk [abstract; 0015]. Folkenberg discloses milk as including raw milk and pasteurized milk [0029]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023]. Folkenberg does not require the presence of L. delbruekii. Folkenberg discloses the Lactobacillus as L. johnsonii [0017; 0018].
“Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
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.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. (US 2012/0107450).
Regarding Claim 26: Folkenberg discloses as discussed above in claim 6. Folkenberg discloses that the starter can be in liquid form [0024]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023]. Folkenberg does not disclose bacteria present at between 1x107 CFU/ml and 5 x109 CFU/ml.
However, 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.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Folkenberg et al. (US 2012/0107450) in view of Sotoyama et al. (US 2004/0202749).
Regarding Claim 28: Folkenberg discloses a method of fermenting milk [abstract; 0015]. Folkenberg discloses milk as including raw milk and pasteurized milk [0029]. Folkenberg discloses inoculating the milk with at least 107 CFU/g belonging to a species of Lactobacillus and 108CFU/g belonging to S. thermophilus [0023]. Folkenberg does not require the presence of L. delbruekii. Folkenberg discloses the Lactobacillus as L. johnsonii [0017; 0018].
Sotoyama discloses a method of fermenting milk and discloses the fermentation method as occurring for a short period of time or 5 hours [abstract; 0020; 0064; 0065].
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 Folkenberg to include fermenting for five hours as in Sotoyama since Sotoyama discloses bacteria as able to sufficiently ferment milk in the given time frame.
Response to Arguments
The 102(a)(1) rejections of claims 1, 4, 10, and 13 as being anticipated by Eyer et al. US 5962046 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 2 and 11 over Eyer et al. (US 5962046) and Curic-Bawden et al. (US 2019/0082707) have been withdrawn due to the amendments to claims 1 and 10.
The 103(a) rejection of claim 7 over Koh et al. (US 2019/0281848) and Curic-Bawden et al. (US 2019/0082707) has been withdrawn due to the amendment to claim 6 above.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Chen et al. (US 20190388484) Chen discloses adding microorganisms to raw milk [0012]. Chen discloses Lactobacillus spp.; Streptococcus spp., and Bifidobacterium spp. [0012].
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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