DETAILED ACTION
Background
The amendment dated April 20, 2026 amending claims 1, 6-7, 11-12, 19-20 and 30-31, adding new claim 33 and canceling claims 14-15, 18, 21-22 and 26 have been entered. Claims 1, 3, 5-13, 16-17, 19-20, 23-25 and 27-33 as filed with the amendment dated April 20, 2026 have been examined. Claims 2, 4, 14-15, 18, 21-22 and 26 have been canceled. In view of the amendment, all outstanding objections to the claims have been withdrawn; and, all outstanding rejections of canceled claims 14-15, 18, 21-22 and 26 have been withdrawn as moot.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 20, 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 6, 8, 11-13, 16-17, 19-20, 23-25 and 27-33 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.
In claim 6, the recited fatty acid content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of fatty acid content does not provide any units for the %. Is the fatty acid content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of fatty acid, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the fatty acids, based on the total weight of the fermented milk as used in the manner of claim 6.
In claim 8, the recited fat content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of fat content does not provide any units for the %. Is the fat content based on the entire fermented milk, the raw material milk, a total solids or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of fat, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the fat, based on the total weight of the fermented milk as used in the manner of claim 8.
In claim 11, at the 2nd to last line the recited “amount of fats or oils” is indefinite for lack a basis or denominator. Is the amount of fats or oils based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight?
The Office interprets the claims as reciting the wt% of the fats or oils, based on the total weight of the fermented milk as used in the manner of claim 11.
In claim 11, at the last line, the recited protein content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of protein content does not provide any units for the %. Is the protein content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of protein, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the protein, based on the total weight of the fermented milk as used in the manner of claim 11.
Claim 16 recites the limitation "the number of viable Lactobacillus bulgaricus and Streptococcus thermophilus bacteria" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Nothing antecedent to claim 16 recites natural fermented milk culture or the bacteria specified, much less inoculation with those bacteria.
Claim 19 recites the limitation "the raw material composition” at line 8. There is insufficient antecedent basis for this limitation in the claim. Nothing antecedent in claim 19 recites a raw material composition
Claim 24 recites the limitation "the number of viable Lactobacillus bulgaricus and Streptococcus thermophilus bacteria" in line 2. There is insufficient antecedent basis for this limitation in the claim. Nothing antecedent to claim 24 recites natural fermented milk culture or the bacteria specified, much less inoculation with those bacteria.
In claim 19, at the 2nd to last line the recited “amount of fats or oils” is indefinite for lack a basis or denominator. Is the amount of fats or oils based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight?
The Office interprets the claims as reciting the wt% of the fats or oils, based on the total weight of the fermented milk as used in the manner of claim 19.
In claim 19, at the last line, the recited protein content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of protein content does not provide any units for the %. Is the protein content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of protein, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the protein, based on the total weight of the fermented milk as used in the manner of claim 19.
In claim 28, at lines 2-3, the recited nonfat milk solid content is indefinite for lacking units. Does the Applicant intend to claim a weight % (wt%) of nonfat milk solid, based on a weight of some basis or a volume % or some other unit of %?
In claim 29, the recited iron content lacks a basis or denominator. Is the iron content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight?
The Office interprets the claims as reciting a wt% of the recited iron, based on the total weight of the fermented milk as used in the manner of claim 29.
In claim 30, at the 2nd to last line the recited “amount of fats or oils” is indefinite for lack a basis or denominator. Is the amount of fats or oils based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight?
The Office interprets the claims as reciting the wt% of the fats or oils, based on the total weight of the fermented milk as used in the manner of claim 30.
In claim 30, at the last line, the recited protein content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of protein content does not provide any units for the %. Is the protein content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of protein, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the protein, based on the total weight of the fermented milk as used in the manner of claim 30.
In claim 31, at the 2nd to last line the recited “amount of fats or oils” is indefinite for lack a basis or denominator. Is the amount of fats or oils based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight?
The Office interprets the claims as reciting the wt% of the fats or oils, based on the total weight of the fermented milk as used in the manner of claim 31.
In claim 31, at the last line, the recited protein content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of protein content does not provide any units for the %. Is the protein content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of protein, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the protein, based on the total weight of the fermented milk as used in the manner of claim 31.
In claim 32, at the last line, the recited protein content is indefinite because the claim does not recite a denominator or basis for the recited content and because the percent (%) of protein content does not provide any units for the %. Is the protein content based on the entire fermented milk, or its solids, the raw material milk or some other thing having weight? Further, does the Applicant intend to claim a weight % (wt%) of protein, based on a weight of some basis or a volume % or some other unit of %?
The Office interprets the claims as reciting a wt% of the protein, based on the total weight of the fermented milk as used in the manner of claim 32.
Regarding instant claim 33, at line 2 the term “set type yogurt” is indefinite, further the term “soft type yogurt” is indefinite; and, further at line 3 the term “drink type yogurt” is indefinite. The addition of the word "type" to an otherwise definite expression extends the scope of the expression so as to render it indefinite.
The Office interprets a set “type” yogurt broadly as including any yogurt that is set in any manner or regard; further, the Office interprets a soft “type” yogurt broadly as including any soft yogurt; and the Office interprets a drink “type” yogurt broadly as including any yogurt drink.
Further, regarding claim 33, term “such as a soft type yogurt” indefinite; and, further the term “such as a drink type yogurt” is indefinite. Use of the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
The Office interprets the claims as reciting a wt% of the fat, based on the total weight of the fermented milk as used in the manner of claim 8
The Office considers claims as reciting a wt% of the fat, based on the total weight of the fermented milk as used in the manner of claim 8
Claims 12-13, 17, 20, 23-25 and 27 are rejected as depending from a rejected base claim.
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.
Claim 8 is 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 recites a fat content of from 0.15 to 15 wt%, based on the total weight of a fermented milk composition which is beyond the scope 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 § 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 1, 3, 5, 7-10, 19-20, 23-25, 27-29 and 32-33 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0135934 A1 to Saito et al. (Saito) in view of US 5175015 to Kahn et al. (Kahn), of record, as evidenced by Pugliese et al., “Physical characterization of whole and skim dried milk powders,” J Food Sci Technol (October 2017) 54(11): 3433-3442, (Pugliese).
Unless otherwise stated, the Office considers any disclosure of whole milk or plainly “milk” in the art, to be whole cow’s milk which has a fat content of about 3-4 wt%. Further, unless otherwise shown, the Office interprets milkfat or butter fat as comprising C16 and C18 fats.
The Office interprets each of the claimed amount of fats or oils, the claimed protein content, and the claimed iron content as meaning a wt%, based on the total weight of a fermented milk composition.
Regarding instant claims 1, 3, 19-20 and 32, Saito discloses at [0007] a method comprising culturing a lactic acid bacterium in a medium containing a milk peptide (“method for producing a fermented milk comprising preparing a raw material composition” and “adding a lactic acid bacterium starter to a raw material composition”) to produce more viable lactic acid bacteria. At [0015] discloses a fermented food or drink containing the culture (“fermented milk comprising a viable lactic acid bacteria” claim 19). Further, Saito at [0025] discloses preparing a raw material composition comprising food emulsifiers including (at [0026]) sucrose oleate (“a sucrose fatty acid ester”) comprising a fatty acid having 18 carbon atoms (claims 3 and 20). Still further, at [0029] Saito discloses its raw material composition as comprising 10 to 20 wt% of defatted milk powder. According to Pugliese at Table 2 on page 3435, the defatted milk powder of Saito comprises about 34 wt% of protein, based on the total weight of the milk powder and whole milk powder comprises about 26 wt% protein, based on the total weight of a fermented milk composition, which converts to protein content of from about 3.4 to about 6.8 wt% protein for defatted milk, based on the total weight of the raw material composition (claims 19 and 32).
Further, and regarding instant claim 7, Saito does not disclose preparing a raw material composition a content of the food emulsifier of at least 0.06 wt%, based on the total weight of a raw material composition as claimed in claim 1; does not disclose a content of the food emulsifier that is from 0.06 wt% to 0.3 wt%, based on the total weight of a raw material composition as claimed in claim 7; or disclose a content of the food emulsifier that is from 0.06 wt% to 0.45 wt%, based on the total weight of a raw material composition as claimed in claim 19. However, Saito at [0027] discloses that the amount of the oleic emulsifier in the culture medium is not particularly limited.
Kahn at col. 2, lines 4-20 discloses a method for producing fermented milk which comprises viable lactic acid bacteria, the method comprising preparing a flavoring premix having an emulsifier and comprising 1-5 wt% of its fermented milk, wherein the emulsifier comprises from 6 to 10 wt% of the premix, or about 0.06 to 0.5 wt%, based on the total weight of a fermented milk composition, which the claimed range of 0.06 to 0.3 wt% of the raw material composition in claim 7 lies within and which the claimed range of 0.06 to 0.45 wt% of the raw material composition in claim 19 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Kahn to use the claimed amount of an emulsifier in its culture medium because Kahn discloses that the claimed amount of emulsifier provides a desirable fermented milk product.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kahn for Saito to include in its culture medium at least 0.6 wt%, or from 0.6 to 0.3 wt% or from 0.06 to 0.45 wt% of its emulsifier in its culture medium, based on the total weight of a fermented milk composition or a raw material composition. Both references disclose culturing a raw material milk composition with a lactic acid bacterium in the presence of an emulsifier. The ordinary skilled artisan in Saito would have desired to use the amount of emulsifier as disclosed in Kahn to make a more storage stable fermented milk as disclosed at col. 1, lines 56-68 of Kahn.
Regarding instant claim 5, while the Office considers optional limitations as the polyglycerol fatty acid ester having an average degree of polymerization of less than 3, the claims themselves do not require them.
Regarding instant claim 8, at [0020] Saito discloses its raw material composition as including whole fat milk products and at [0047] discloses adding milk fat to its fermented milk but does not disclose a fat content of from 0.15 to 15.0 wt%, based on the total weight of a fermented milk composition.
Kahn at col. 2, lines 13-16 discloses its culture premix as containing 50 to 70 wt% of vegetable oil as a carrier, wherein 1 to 5 wt% of the premix contains 0.5 to 3.5 wt% of fat, based on the total weight of a fermented milk composition.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kahn for Saito to include the claimed amount of fat in its fermented milk. Both references disclose methods of making fermented milk. The ordinary skilled artisan in Saito would have desired to include the amount of fat disclosed in Kahn in its fermented milk to give it a richer flavor in a stable fermented milk formulation.
Regarding instant claims 9, 24-25 and 27-29, the Office considers the fermented milk of Saito as modified by Kahn that has (at [0042] of Saito) a viable cell count of 1.2 X 109 cfu/ml to be substantially the same thing as the claimed fermented milk. Saito also discloses at [0031] cultures of Lactobacillus bulgaricus and Streptococcus thermophilus bacteria as desirable; while Kahn at Example 2 discloses that milk fermentation typically comprises Lactobacillus bulgaricus and Streptococcus thermophilus cultures. Further, Saito discloses no material in its fermented milk that contains phytosterols or iron and discloses adding no calcium containing material. Accordingly, absent a clear showing as to how the phytosterol content of the fermented milk or food emulsifier, the bacteria count and the calcium and iron content of the fermented milk of Saito as modified by Kahn differs from that of the fermented milk as claimed, the Office considers the fermented milk of Saito at [0007], [0025]-[0026] and [0029] as modified by Kahn at col. 2, lines 4-20 and Example 2 to comprise a fermented milk that has not been pre-treated with any phytosterol as in claim 9; to comprise Lactobacillus bulgaricus and Streptococcus thermophilus in viable bacteria counts of at least 1X 106 cfu/ml as in claim 24; to exhibit an increase (y%) in acidity after storage at x°C (4 < x < 35) for 14 days that satisfies a relational expression: y < 0.0115x + 0.025 as in claim 25; to be substantially free of phytosterols as in claim 27; to have a calcium content of 1.5 wt% or less based on the total weight of nonfat milk solids as in claim 28; and to have an iron content of 0.001 wt% less of the weight of the fermented milk as in claim 29. See MPEP 2112.01.I.
Regarding instant claims 10 and 23, at [0031] Saito discloses preparing a raw material composition of a bacterium of the Lactobacillus genus.
Regarding instant claim 33, the Office interprets a set “type” yogurt broadly as including any yogurt that is set in any manner or regard; further, the Office interprets a soft “type” yogurt broadly as including any soft yogurt; and the Office interprets a drink “type” yogurt broadly as including any yogurt drink at [0046] Saito discloses fermented milks including kefir (”yogurt drink”), hard or set yogurt and soft yogurts.
Claims 11-13, 16-17, 19-20, 23-25 and 27-31 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0135934 A1 to Saito et al. (Saito) in view of WO 98/18337 A1 to Pingel et al., of record, as evidenced by Pugliese et al., “Physical characterization of whole and skim dried milk powders,” J Food Sci Technol (October 2017) 54(11): 3433-3442, (Pugliese).
All references to Pingel refer to the Clarivate machine translation, a copy of which was included in a prior Office action.
Unless otherwise stated, the Office considers any disclosure of whole milk or plainly “milk” in the art, to be whole cow’s milk which has a fat content of about 3-4 wt%. Further, unless otherwise shown, the Office interprets milkfat or butter fat as comprising C16 and C18 fats.
The Office interprets each of the claimed amount of fats or oils, the claimed protein content, and the claimed iron content as meaning a wt%, based on the total weight of a fermented milk composition.
Regarding instant claims 11-12, 19-20 and 30-31, Saito discloses at [0007] a method comprising culturing a lactic acid bacterium in a medium containing a milk peptide (“method for producing a fermented milk comprising preparing a raw material composition” and “adding a lactic acid bacterium starter to a raw material milk composition”) to produce more viable lactic acid bacteria. At [0015] discloses a fermented food or drink containing the culture (“producing fermented milk comprising a viable lactic acid bacteria” in claims 11, 30 and 31 and a “fermented milk comprising a viable lactic acid bacteria” in claim 19). Further, Saito at [0047] discloses adding food emulsifiers including a sucrose fatty acid ester including and (at [0026]) sucrose oleate comprising a fatty acid having 18 carbon atoms (claims 12 and 20) to its fermented milk (“adding a food emulsifier to a resulting fermented milk” in claim 11). Still further, at [0029] Saito discloses its raw material milk composition as comprising 10 to 20 wt% of defatted milk powder. According to Pugliese at Table 2 on page 3435, the defatted milk powder of Saito comprises about 34 wt% of protein, based on the total weight of the milk powder and whole milk powder comprises about 26 wt% protein, based on the total weight of a fermented milk composition, which converts to protein content of from about 3.4 to about 6.8 wt% protein for defatted milk, based on the total weight of the raw material composition (claims 11, 19 and 30-31).
Further regarding instant claims 30-31, the Office considers claimed “method of modifying a flavor and/or texture of fermented milk, comprising blending a food emulsifier into a raw material composition during production of fermented milk” in claim 30 and the claimed “method of suppressing an increase in acidity of fermented milk comprising viable lactic acid bacteria during storage, the method comprising: adding a food emulsifier to fermented milk during production of fermented milk” to include the blending of food emulsifiers including sucrose fatty acid esters in the culture of Saito at [0047].
Further regarding instant claims 30 and 31, the Office considers the claimed “method of modifying a flavor and/or texture of fermented milk, comprising blending a food emulsifier into a raw material composition during production of fermented milk” as in claim 30 and the “method for suppressing an increase in acidity of fermented milk during storage comprising adding a food emulsifier to fermented milk during production of fermented milk” as in claim 31 as including the mixing of a food emulsifier and a yogurt or fermented milk product disclosed in the method of Example 1 of Pingel at page 7 to make a food composition.
Still further, Saito does not disclose preparing a raw material composition a content of the food emulsifier of from 0.06 wt% to 0.45 wt%, based on the total weight of a raw material composition as claimed in claims 11, 19 and 31; and does not disclose an amount of at least 0.06 wt%, based on the total weight of a raw material composition as claimed in claim 30. However, Saito at [0027] discloses that the amount of the oleic emulsifier in the culture medium is not particularly limited.
In the paragraph bridging pages 3 and 4, Pingel discloses sowing a milk based raw material with lactic acid bacteria and fermenting. At page 4, 1st full paragraph, Pingel discloses inoculating in raw material milk several bacteria of the genus Lactobacillus as well as S. thermophilus as lactic acid bacteria. Further, at Example 1 on page 7 Pingel discloses adding in an emulsifying agent (“food emulsifier”) to yogurt (“fermented milk”) during production of a fermented milk. At [0030], Pingel discloses adding 0.1 wt% or more and 3 wt% or less of a food emulsifier of sucrose fatty acid esters or polyglycerol esters having 16 to 18 carbon atoms in the constituent fatty acids, which the claimed at least 0.06 wt% and the claimed from 0.06 to 0.45 wt%, based on the total weight of a fermented milk composition lies within In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Pingel would have desired to add or include the claimed amount of food emulsifier in making its fermented milk or in its resulting fermented milk because Pingel discloses that the claimed amount of food emulsifier makes a desirably stable fermented milk.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Pingel for Saito to include in its culture medium at least 0.6 wt%, or from 0.06 to 0.45 wt% of its emulsifier in its culture medium, based on the total weight of a fermented milk composition or a raw material composition. Both references disclose culturing a raw material milk composition with a lactic acid bacterium and making a fermented milk comprising a food emulsifier. The ordinary skilled artisan in Saito would have desired to use the amount of emulsifier as disclosed in Pingel to make a more storage stable fermented milk.
Regarding instant claim 13, Saito discloses no material in its fermented milk of Example 1 that contains iron or phytosterols and discloses adding no materials comprising calcium to the fermented milk.
Regarding instant claims 16, 24-25 and 27-29, the Office considers the fermented milk of Saito as modified by Pingel that has (at [0042] of Saito) a viable cell count of 1.2 X 109 cfu/ml to be substantially the same thing as the claimed fermented milk. Saito also discloses at [0031] cultures of Lactobacillus bulgaricus and Streptococcus thermophilus bacteria as desirable. Further, Saito discloses no material in its fermented milk that contains phytosterols or iron and discloses adding no calcium containing material. Accordingly, absent a clear showing as to how the phytosterol content of the fermented milk or food emulsifier, the bacteria count and the calcium and iron content of the fermented milk of Saito as modified by Pingel differs from that of the fermented milk as claimed, the Office considers the fermented milk of Saito at [0007], [0029] and [0047] as modified by Pingel at paragraph bridging pages 3 and 4, page 4, 1st full paragraph and [0030] to comprise a fermented milk that has not been pre-treated with any phytosterol as in claim 9; to comprise Lactobacillus bulgaricus and Streptococcus thermophilus in viable bacteria counts of at least 1X 106 cfu/ml as in claims 16 and 24; to exhibit an increase (y%) in acidity after storage at x°C (4 < x < 35) for 14 days that satisfies a relational expression: y < 0.0115x + 0.025 as in claim 25; to be substantially free of phytosterols as in claim 27; to have a calcium content of 1.5 wt% or less based on the total weight of nonfat milk solids as in claim 28; and to have an iron content of 0.001 wt% less of the weight of the fermented milk as in claim 29. See MPEP 2112.01.I.
Regarding instant claims 17 and 23, at [0031] Saito discloses preparing a raw material composition of a bacterium of the Lactobacillus genus.
Allowable Subject Matter
Claim 6 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
In view of the amendment dated April 20, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 1, 3 and 5-32 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the recited amount of the food emulsifier;
The rejections of claims 1, 3, 5-10 and 19-30 are rejected under 35 U.S.C. 103 as being unpatentable over US 5175015 to Kahn et al.;
The rejections of claim 5 under 35 U.S.C. 103 as being unpatentable over US 5175015 to Kahn et al. in view of WO2014148633 A1 to Matsuura et al.
The rejections of claims 1, 11-17 and 19-25 and 27-31 under 35 U.S.C. 102(a)(1) as being anticipated by CN107927170 A to Lv et al.;
The rejections of claims 11-13, 15, 17, 19-20, 22-23, 25 and 27-32 under 35 U.S.C. 102(a)(1) as being anticipated by WO 98/18337 A1 to Pingel et al.; and,
The rejections of claims 14, 16, 18, 21, 24, 26 and 32 under 35 U.S.C. 103 as being unpatentable over WO 98/18337 A1 to Pingel et al.
Applicant’s arguments with respect to claims 1, 3 and 5-32 and the art of Pingel and Kahn as primary references 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.
Regarding the position taken in the remarks accompanying the amendment dated April 20, 2026 (Reply), the positions have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply that Pingel discloses only about 1 wt% of food emulsifier, respectfully Pingel includes as little as 0.1 wt% of food emulsifier at [0030] and must be read as a whole.
Regarding the position taken in the Reply and Pingel that Claim 30 must be grouped with claim 1, respectfully the making of a fermented milk product includes all of the steps claimed and all of the steps disclosed in the art for making a fermented milk, not just inoculation.
Regarding the position taken in the Reply that Kahn does not disclose at least 0.06 wt% or from 0.06 to 0.45 wt% of food emulsifiers, respectfully Kahn at col. 2, lines 4-20 discloses amounts of food emulsifiers wherein the emulsifier comprises from 6 to 10 wt% of the premix, or about 0.06 to 0.5 wt%, based on the total weight of a fermented milk composition or raw material milk composition, which is nearly identical with the endpoints of the claimed ranges.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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 H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANDREW E MERRIAM/Examiner, Art Unit 1791
Prosecution Insights