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 .
This office action is written in response to the Applicants Remarks filed 12/1/25. Claims 1-2,4-7,9-11 and 13-23 are pending. Claims 1, 2, 4-7, 9-11 and 13 have been examined on the merits. Claims 14-22 have been withdrawn.
Election/Restrictions
Newly submitted claims 14-22 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: The new claims are an independent grouping of claims that recite NITE BP -02875 as the Streptococcus thermophilus strain of the invention. There is no indication that the Streptococcus thermophilus of the new claims follows the same search as the instantly claimed S. thermophilus.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 14-22 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1-13 anticipated by Curic-Bawden et al. (US 2019/0082707) have been withdrawn due to the amendments made to the claims.
Claim Rejections - 35 USC § 102
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.
Claims 1, 4, 10, and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eyer et al. US 5962046.
Regarding Claims 1 and 4: Eyer discloses a starter culture containing Streptococcus thermophilus and L. johnsonii [Ex. 1; Ex. 2; col. 2, lines 55-67]. Eyer does not require the presence of L. delbrueckii.
Regarding Claims 10 and 13: Eyer discloses a fermented milk containing Streptococcus thermophilus and L. johnsonii [abstract; Ex. 1; Ex. 2; col. 2, lines 55-67]. Eyer does not require the presence of L. delbrueckii.
Claims 5, 6, and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koh et al. (US 2019/0281848).
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.
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 2 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Eyer et al. US 5962046 as applied to claims 1 and 10 above and in further view of Curic-Bawden et al. (US 2019/0082707).
Regarding Claim 2: Eyer discloses as discussed above in claim 1. Eyer does not disclose that the S. thermophilus is a strain carrying a prtSgene.
Curic-Bawden discloses S. thermophilus as having prtS genes encoding a cell wall proteinase [0023-0025].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the S. thermophilus of Eyer to include the S. thermophilus having prtS genes of Curic-Bawden in order to supply proteolytic activity to the milk, hydrolyzing the milk and improving the quality of the fermented milk.
Regarding Claim 11: Eyer discloses as discussed above in claim 10. Curic-Bawden discloses S. thermophilus as having prtS genes encoding a cell wall proteinase [0023-0025].
Eyer does not disclose that the S. thermophilus is a strain carrying a prtSgene.
Curic-Bawden discloses S. thermophilus as having prtS genes encoding a cell wall proteinase [0023-0025].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the S. thermophilus of Eyer to include the S. thermophilus having prtS genes of Curic-Bawden in order to supply proteolytic activity to the milk, hydrolyzing the milk and improving the quality of the fermented milk.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Koh et al. (US 2019/0281848) as applied to claim 6 above and in further view of Curic-Bawden et al. (US 2019/0082707).
Regarding Claim 7: Koh discloses as discussed above in claim 6. Curic-Bawden discloses S. thermophilus as having prtS genes encoding a cell wall proteinase [0023-0025].
Koh does not disclose that the S. thermophilus is a strain carrying a prtSgene.
Curic-Bawden discloses S. thermophilus as having prtS genes encoding a cell wall proteinase [0023-0025].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the S. thermophilus of Koh to include the S. thermophilus having prtS genes of Curic-Bawden in order to supply proteolytic activity to the milk, hydrolyzing the milk and improving the quality of the fermented milk.
Response to Arguments
The 102(a)(1) rejections of claims 1-13 anticipated by Curic-Bawden et al. (US 2019/0082707) have been withdrawn due to the amendments made to the claims.
The claims have been rejected under new art as discussed.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Chang et al. International Dairy Journal vol. 23 2012 pages 91-98 discloses cell-envelope protease PrtS of Streptococcus thermophilus 4F44 [abstract]. Chang discloses the rapid acidification of milk using S. thermophilus containing the prtS gene [Introduction].
Kringelum et al. (US 2002/0081712) discloses a lactic acid starter culture added to raw milk [0044]. Kringelum discloses the starter culture containing S. thermophilus and L. helveticus [0105].
Li et al. (CN 106509529) Machine Translation discloses lactic acid beverage containing milk as a raw material [abstract]. Li discloses leaven A comprising Lactobacillus plantarum, bacillus acidophilus, lactobacillus helveticus, one or several in lactobacillus caseiLeaven B includes streptococcus thermophilus, Lactobacillus bulgaricus, lactobacillus casei, pair Lactobacillus casei, bacillus acidophilus, Lactococcus lactis subsp.lactis, lactococcus lactis subsp.cremoris, Lactococcus lactis [pg. 22].
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.
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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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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/Felicia C Turner/Primary Examiner, Art Unit 1793