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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 26, 2026 has been entered.
Claims 15 – 20 are canceled; claims 23 - 28 are added; claims 1 – 5, 8 – 14 and 21 – 28 are pending and have been considered on the merits. All arguments have been fully considered.
Claim Objections
Claims 1 and 21 are objected to because of the following informalities:
Each of the claimed bacteria are misspelled.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 – 5, 8 – 14 and 21 – 28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1 and 21 are drawn to a food product comprising a fermented fruit or vegetable “extract” comprising a fermentable carbohydrate and also a fermentate having a “cellular mass component comprising a protein, lipid, carbohydrate or metabolite.”
The claims and those depending therefrom are considered genus claims that encompass a wide array of “extracts” or “cellular mass components.” The specification fails to set forth a representative number of examples in order to reasonably verify possession of such a potentially enormous number of extracts or components.
Regarding the extracts, the specification fails to indicate how the extracts are made and what the extract may or must include or exclude. Although the claims require the extract is prepared by any squeezing, juicing, pulping, grinding, peeling, drying and powdering processes, no specific steps are disclosed that must be carried out to obtain the argued active component (e.g., claims 1, 8, 21, 22), nor are any steps excluded from obtaining the active component. Moreover, the limitation fails to adequately identify what the extract may or may not include or exclude and no example are disclosed to show how one might carry out preparing the claimed extract. The examples only refer generically to “sweet potato powder,” “onion powder,” “chickpea flour,” “carrot powder,” “vegetable powder,” “celery powder,” “apple fiber,” for use in culturing bacteria. The specification fails to disclose any process for preparing the extracts or their inclusion in any food product as claimed. Thus, without reciting the particular structure, materials or steps that accomplish the function or achieve the result, all means or methods of resolving the problem may be encompassed by the claim. Unlimited functional claim limitations that extend to all means or methods of resolving a problem is not adequately supported by the instant specification. It is noted that a single claim reciting a functional outcome covering every conceivable means for achieving the stated result fails to satisfy the written description requirement because the specification discloses only those means known to the inventor, and is not commensurate in scope with the claim. (MPEP 2173.05(g)).
Regarding the cellular mass components, the specification discloses the protein, lipid, carbohydrate and/or metabolite can include any subset of any of these substances from the fermenting microorganism (0014 of the published application) however no single protein, lipid or carbohydrate is disclosed nor is any particular ferment from any of the disclosed non-viable fermenting microorganisms. Rather, only five metabolites are disclosed in paragraph 0015 of the published application to include lactic acid, lactate, propionic acid, acetic acid, ethanol. No examples are drawn to any of these identified elements in a food product. Instead, the examples are drawn to fermenting various bacteria with yeast extract and the aforementioned vegetable/fruit powders that may or may not be enzyme treated, and assessing the resulting ferments for antimicrobial activity. Moreover, no examples or the disclosure are drawn to food products comprising the claimed “extract” or “cellular mass component.”
The MPEP states that written description for a genus can be achieved by a representative number of species within a broad generic. It is unquestionable that the claims are broad generics, with respect to all compounds, components, peptides and molecules that might result from a single type of extraction (e.g. ethanolic, water) let alone any extraction method. The instant disclosure fails to identify a single compound, element or molecule of a single fermented fruit or vegetable; or a single “cellular mass component.” The possible variations of “extracts” or “cellular mass components” are limitless with potentially millions of types of compounds or molecules.
The purpose of the written description requirement is to ensure that the inventor had possession, as of the filing date of the application, of the specific subject matter later claimed by them. A patent specification must describe an invention and do so in sufficient detail that one skilled in the art can clearly conclude that the inventor invented the claimed invention. Thus, an applicant complies with the written description requirement "by describing the invention, with all its claimed limitations" and by using "such descriptive means as words, structures, figures, diagrams, formulas, etc., that set forth the claimed invention." The specification lacks sufficient variety of species of compounds, molecules, peptides or components to reflect this variance in the genus since the specification does not provide any examples of such a genus of “extract” or “cellular mass component.” Accordingly, the specification fails to provide adequate written description for the genus of “fermented fruit or vegetable extract” or “cellular mass component” and does not reasonably convey to one skilled in the relevant art that the inventors, at the time the application was filed had possession of the entire scope of the claimed invention. Moreover, the specification neither describes the complete structure of a representative number of species, nor describes a representative number of species in terms of partial structure and relevant identifying characteristics.
Absent of such teachings and guidance as to the structure and function of these “extracts” or “cellular mass components,” the specification does not describe the claimed genera in such full, clear, concise and exact terms so as to indicate that Applicant had possession of these extracts and components at the time of filing of the present application. Thus, the written description requirement has not been satisfied.
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 – 5, 8 – 14 and 21 – 28 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.
Claims 1, 21 and their dependents are drawn to a food product however are rendered vague and remain indefinite for reciting “extract” because the phrase is not adequately defined by the claim language or specification. Regarding “extract” the specification attempts to define the phrase, however any single, combination or all of the “substances in a fruit or vegetable extract after fermentation” fails to specifically point out or claim the subject matter for which applicant intends to encompass.
In claims 4 and 23 – 24, 27 and 28, the following phrases are not adequately defined by the claim language or specification such that one in the art would know what is included or excluded from the scope of the claim: “culinary items,” “dressings,” “condiments,” “sauces,” “gravies,” “soups,”, “ready to eat dips,” “salsa,” “spreads,” “coleslaw,” “potato salad,” “chicken salad,” “lasagna,” “casserole,” “pasta dishes,” “fruit fillings,” “desserts, “puddings,” “syrups,” “bakery items,” “cakes,” “brownies,” “cookies,” “pies,” “dairy based bakery filling,” “fruit based bakery filling,” “dairy items,” “high-protein dairy drinks,” “flavored milks,” “whipped toppings,” “pudding,” “sour cream-based dips,” “Greek yogurt-based,” “spreads,” “chocolate based confection,” “cakes,” “cookies,” “bloody mary drink base,” “cocktail drink base,” “kibble,” “low moisture treat,” “high moisture treats,” “refrigerated rolls,” “meat rolls,” “veggie rolls,” “jerky,” and “dish.”
Regarding claims 4 and 23 – 27, 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).
Claim 13 appears to change the fermentate requirement from a bacterium to a yeast, rendering the claim indefinite as it appears to not require all of the limitations of the claim on which it depends.
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 13 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.
The claim changes the scope of claim 1 which requires a ferment from a specifically identified group of bacteria. Claim 1 requires a ferment from one of Lactococcus lactis, Lactobacillus acidophilus, Lactobacillus plantarum, Lactobacillus reuteri, Lactobacillus brevis, Lactobacillus sakei, Pediococcus acidilactici, Propionibacterium freudenreichii or Propionibacterium acidipropionici; while claim 13 changes the ferment to a yeast extract.
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.
Response to Arguments
Applicant argues that the claims are amended to overcome the 112 rejections of record. However, for the reasons stated above, this argument fails to persuade.
Thus, the claims remain rejected for these reasons and those set forth in the preceding rejection.
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, 8 – 12, 14 and 23 – 28 are rejected under 35 U.S.C. 102a1 as being anticipated by Kikkoman Corp (JP 2007144290A) as evidenced by Arena et al. (2016) and Wikipedia (2025).
Regarding claims 1, 10 and 14, Kikkoman Corp teaches a food product comprising a Lactobacillus plantarum ferment (cellular mass component comprising a protein, lipid and metabolite from a fermenting microorganism); a fermented fruit and vegetable that is crushed and/or juiced; and an enzyme treated product (or hydrolytic enzyme treated as exemplified by applicant) (p.1, 2 of English translation, ET). Although the reference does not teach the ferment has the claimed ability to inhibit growth of a contaminating microorganism as claimed, the reference uses the same bacteria claimed by applicant. Therefore, it must also have the same ability to inhibit growth of contaminating microorganisms. This is further supported by Arena et al., who teaches Lactobacillus plantarum is antagonistic to contaminating microorganisms and is used in the food industry as a bio-control agent (abstract); and produces lactic acid, lactate and acetic acid (p.2, 6).
Regarding claim 2, the food has a pH of 4 – 8 (p.3, ET).
Regarding claim 3, the food product can be a drink or beverage, which would inherently have a water activity greater than 0.6 (see Wikipedia, “Water Activity”, Selected aw values, e.g., dried fruit, juice).
Regarding claims 4 and 23 – 28, the food product is a food or drink (culinary item), desserts (e.g., confections), seasoning (palatant, flavor enhancer) sauce, carbonated drinks, soft drinks, nutrition drinks, fruit drinks, and lactic acid drinks (e.g., yogurt drinks), concentrates (palatant, flavor enhancer), powders, soups (broth), noodles, semi-solid foods, gummi, paste-like foods (e.g., fillings), solid foods such as gums and supplements (p.1, 4, examples).
Regarding claims 8 - 9, the food product may include juice of onion, potato, carrot, or apple (p.2 – 4), and the enzyme can be cellulase or hemicellulose (p.3).
Regarding claims 11 – 12 and 17, the food can be a liquid or powder (p.1 – 2, 4).
Therefore, the reference anticipates the claimed subject matter.
Claims 1 – 5, 8 – 14 and 21 – 28 are rejected under 35 U.S.C. 102a1 as being anticipated by KR 100778886 B1.
Regarding claims 1, 9, 14, the reference teaches a food product (abstract) comprising components (protein, lipid, metabolite) from Lactobacillus reuteri, L. acidophilus, and L. brevis fermenting microorganisms; a fermented fruit or vegetable extract prepared by pulverizing (grinding); and protease/amylase (hydrolytic enzyme) (claim 20, experimental example 2), wherein the composition is antibacterial (abstract). Although the reference does not teach the fermentate has the ability to inhibit 100% growth of a contaminating microorganism as claimed, the reference uses the claimed Lactobacillus species, which are disclosed to product lactic acid, or inhibits contaminating microorganisms (page 2 of the English translation). Thus, the ferment of the prior art must also exhibit the claimed activity.
Regarding claim 2, the compositions have low pH of 3.2 – 4.3 (experimental example 1, page 5 of English translation, ET).
Regarding claims 3 – 4 and 23 – 28, foods include beverage, jam, marmalade, bread (bakery), cookies, dairy products, butter, cheese, meat, noodles (pasta), juice, drinks, fish and vegetables, which have water activity greater than 0.6 (p.4, ET).
Regarding claim 5, the ferment may be in a food product at 1% (example 1).
Regarding claims 8 and 22 the fermented fruit or vegetable includes tomato, onion, carrot and apple extract (p.3, ET).
Regarding claim 10, the Lactobacillus produces lactic acid into the composition (claim 20, p.2 ET).
Regarding claims 11 – 12 and 22, the fermentate may be liquid or powdered (claim 20, p.2 ET).
Regarding claims 13 and 21, the composition includes a yeast extract (claim 20, p.2 – 3 ET).
The reference anticipates the claimed subject matter.
Claim Rejections - 35 USC § 103
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.
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 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Kikkoman Corp (JP 2007144290A) as evidenced by Arena et al. (2016) and Wikipedia (2025).
Regarding claim 1, Kikkoman Corp teaches a food product comprising a Lactobacillus plantarum ferment (cellular mass component comprising a protein, lipid and metabolite from a fermenting microorganism); a fermented fruit and vegetable that is crushed and/or juiced; and an enzyme treated product (or hydrolytic enzyme treated as exemplified by applicant) (p.1, 2 of English translation, ET). Although the reference does not teach the ferment has the claimed ability to inhibit growth of a contaminating microorganism as claimed, the reference uses the same bacteria claimed by applicant. Therefore, it must also have the same ability to inhibit growth of contaminating microorganisms. This is further supported by Arena et al., who teaches Lactobacillus plantarum is antagonistic to contaminating microorganisms and is used in the food industry as a bio-control agent (abstract); and produces lactic acid, lactate and acetic acid (p.2, 6).
Regarding claim 5, the reference does not teach the food products having the claimed percent of fermentate. However, since the lactic acid bacteria and its metabolites function as active components, it is considered a result effective variable. As such, at the time the claims were filed it would have been obvious to one of ordinary skill in the art to optimize the amount of lactic acid bacteria and its metabolites in the food product of Kikkoman Corp as a matter of routine practice and experimentation and with a reasonable expectation for successfully obtaining an effective food product.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant argues the prior art does not teach the claimed fermenting microorganisms.
However, this argument fails to persuade because each of the cited references teach the compositions wherein the fermenting microorganisms are those claimed.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUTH A DAVIS whose telephone number is (571)272-0915. The examiner can normally be reached Monday - Friday (8am - 4pm).
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/RUTH A DAVIS/ Primary Examiner, Art Unit 1699