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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed October 20, 2025 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-16, 18, 19
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
17
Amended claims:
10, 11, 13, 14
New claims:
18, 19
Claims currently under consideration:
1-16, 18, 19
Currently rejected claims:
1-16, 18, 19
Allowed claims:
None
Specification
This application does not contain an abstract of the disclosure as required by 37 CFR 1.72(b). An abstract on a separate sheet is required.
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.
Claims 1-9, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Soma (US PGPub 2021/0386101 A1).
Regarding claim 1, Soma teaches a fermentation process for converting nitrate to nitrite for use as food additives ([0026]) comprising providing a source material that comprises natural nitrates from plants such as lettuce or other vegetables (i.e., known food products; [0030]) and that the source material can be a liquid ([0031]). Soma also teaches that the nitrite concentration is between 5,000 to 100,000 ppm (equivalent to 0.5% to 10% by weigh; [0046]), which overlaps with the claimed range of “greater than approximately 3% by weight”.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The preamble recitation “a high efficiency fermentation method” is directed to the intended use of the claimed method. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). Because the method is fully set forth in the body of the claim, the recitation “a high efficiency fermentation method” does not carry patentable weight.
Regarding claim 2, Soma teaches all elements of claim 1 as described above. Soma also teaches that the nitrate containing plants as a source material as spinach, swiss chard, lettuce, beets, radish, celery, carrots, and onion ([0030]).
Regarding claim 3, Soma teaches all elements of claim 1 as described above. Soma also teaches that the nitrate containing plants as a source material such as celery ([0030]).
Regarding claim 4, Soma teaches all elements of claim 1 as described above. Soma also teaches that the nitrate containing plants as a source material such as beets ([0030]).
Regarding claims 5-8, Soma teaches all elements of claim 1 as described above. Soma also teaches that the nitrite concentration is between 5,000 to 100,000 ppm (equivalent to 0.5% to 10% by weigh; [0046]), which overlaps with the claimed range of “greater than approximately 5% by weight” (claim 5), “greater than approximately 7% by weight” (claim 6), “greater than approximately 9% by weight” (claim 7), and “greater than approximately 10% weight” (claim 8).
Regarding claim 9, Soma teaches all elements of claim 1 as described above. Soma also teaches that micro-organisms can be removed using filtration (i.e., passing the food product through a first filter; [0043]).
Regarding claim 15, Soma teaches all elements of claim 1 as described above. Soma also teaches that the food product is processed through ultra-high-temperature pasteurization before fermentation ([0086]).
Regarding claim 16, Soma teaches all elements of claim 1 as described above. Soma also teaches that the final processing module includes a drying step performed by spray drying ([0047]).
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Soma (US PGPub 2021/0386101 A1) in view of Garikipati (US PGPub 2014/0275465 A1).
Regarding claim 10, Soma teaches all elements of claim 9 as described above.
Soma does not teach wherein the step of passing the food product through a first filter includes the step of passing the food product through a ceramic membrane.
However, in the same field of endeavor, Garikipati teaches of subjecting a fermentation broth to separation using a first filtration via microfiltration or ultrafiltration ([0015]) and the both microfiltration and ultrafiltration use ceramic membranes ([0069], [0070]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Soma with the use of a ceramic membrane for a first filtration as taught by Garikipati. One would be motivated to make this modification because Garikipati teaches that ceramic membranes are useful because they have long operating lifetimes of over 10 years ([0070]).
Regarding claim 11, Soma teaches all elements of claim 9 as described above.
Soma does not teach wherein the step of passing the food product through a first filter includes the step of passing the food product through a ceramic membrane to separate bacteria and solids, and produce a dark brown clear solution.
However, in the same field of endeavor, Garikipati teaches of subjecting a fermentation broth to separation using a first filtration via microfiltration or ultrafiltration ([0015]) and the both microfiltration and ultrafiltration use ceramic membranes ([0069], [0070]). Garikipati also teaches that the microfiltration can be used in separating cell (i.e., bacteria) and solids from the fermentation broth ([0069]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Soma with the use of a ceramic membrane for a first filtration as taught by Garikipati. One would be motivated to make this modification because Garikipati teaches that ceramic membranes are useful because they have long operating lifetimes of over 10 years ([0070]).
Although the cited prior art does not teach that the first filtration results in a dark brown clear solution, this limitation is interpreted as an inherent result of performing the method as claimed. Therefore, because Soma in view of Garikipati teach the claimed method, the combination would necessarily result in the production of a dark brown clear solution. Evidence to support that producing a dark brown clear solution is an inherent result is provided by the instant specification. [0040] of the instant specification states that the ceramic membrane separates the bacteria and solids and produces a dark brown clear solution.
Regarding claim 12, Soma teaches all elements of claim 9 as described above.
Soma does not teach further comprising the step of passing the food product through a second filter.
However, in the same field of endeavor, Garikipati teaches subjecting a fermentation broth to a second filtration comprising nanofiltration ([0015]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Soma with the addition of a second filtration step as taught by Garikipati. One of ordinary skill would be motivated to make this modification because Garikipati teaches that nanofiltration can separate out impurities that remain after other filtration steps ([0071]).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Soma (US PGPub 2021/0386101 A1) in view of Garikipati (US PGPub 2014/0275465 A1) as applied to claim 12 above, and further in view of Yamada (US PGPub 2015/0376669 A1).
Regarding claim 13, Soma in view of Garikipati teaches all elements of claim 12 as described above.
Soma does not teach wherein the step of passing the food product though a second filter includes the step of direct filtration after the end of fermentation with live bacteria, with the process control temperature not exceeding 50[Symbol font/0xB0]C, and when the proportion of filtrate volume reaches about 90%, initiating cleaning and washing with clear water, wherein the flow acceleration and filtration speed are approximately the same, and wherein the filtration is complete when the filtrate volume and stock liquid volume are equal.
Regarding the step of direct filtration after the end of fermentation with live bacteria, Garikipati teaches that the separation procedure, including the second filtration step, occurs after fermentation with an organism ([0015]) and that the organism can be bacteria ([0048]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Soma with the use of a secondary filtration step immediately following fermentation with bacteria as taught by Garikipati. One of ordinary skill would have been motivated to make this modification because Garikipati teaches that the use of multiple filtrations after fermentation aid in recovering the individual components of the fermentation broth for recycle ([0066]).
Regarding the process control temperature not exceeding 50[Symbol font/0xB0]C, El Menyawi teaches a method of extracting proteins from precipitates (Abstract) where the protein comprising precipitate includes a fermentation broth ([0179]), the method comprising feeding the suspension into a filtration unit ([0013]) and further feeding that suspension into a second filtration unit ([0021]), where the temperature in the filtration units is controlled between 2[Symbol font/0xB0]C and 25[Symbol font/0xB0]C ([0087]), which falls within the claimed range of “not exceeding 50[Symbol font/0xB0]C”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the use of filtration at a controlled temperature as taught by El Menyawi. One of ordinary skill would be motivated to make this modification because El Menyawi teaches that such temperatures ensure optimum extraction ([0087]).
Regarding initiating cleaning and washing with clear water, Yamada teaches a process of washing out a separation membrane by filtering the amount of washing water through the membrane ([0045]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma to include a step of washing the filtration unit after filtration as taught by Yamada. One would be motivated to make this modification because Yamada teaches that washing enables a long-lasting separation membrane ([0044]).
Although the cited prior art does not teach initiating cleaning and washing when the proportion of filtrate volume reaches about 90%, one of ordinary skill in the art would have adjusted the point at which cleaning and washing begins during routine optimization to determine when in the process to start washing. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Furthermore, although the cited prior art does not teach that the cleaning and washing is carried out at the same flow acceleration and filtration speed, one of ordinary skill in the art would have adjusted the flow acceleration and flow speed during routine optimization to determine the best acceleration and speed for washing the filter. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Although the cited prior art does not teach wherein the filtration is complete when the filtrate volume and stock liquid volume are equal, one of ordinary skill would fine carrying out the filtration until all of the original liquid has exited the system to be obvious.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Soma (US PGPub 2021/0386101 A1) in view of Garikipati (US PGPub 2014/0275465 A1) as applied to claim 12 above, and further in view of Yamada (US PGPub 2015/0376669 A1) and Tapia (Tapia-Quiros, Paulina, et al. “Recovery of Polyphenols from Agri-Food By-Products: the Olive Oil and Winery Industrial Cases”, Foods, Vol. 11, article 362, published January 26, 2022 [accessed online July 14, 2025]).
Regarding claim 14, Soma in view of Garikipati teaches all elements of claim 12 as described above.
Soma does not teach wherein the step of passing the food product though a second filter includes the step of direct filtration after the end of fermentation with live bacteria, with the process control temperature not exceeding 35[Symbol font/0xB0]C, and the membrane pressure being approximately 10MPa, and when the filtrate volume reaches 90% of the stock solution, the filtrate is washed with clear water until the volume of the transmitted liquid is equal to the volume of the stock solution
Regarding the step of direct filtration after the end of fermentation with live bacteria, Garikipati teaches that the separation procedure, including the second filtration step, occurs after fermentation with an organism ([0015]) and that the organism can be bacteria ([0048]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Soma with the use of a secondary filtration step immediately following fermentation with bacteria as taught by Garikipati. One of ordinary skill would have been motivated to make this modification because Garikipati teaches that the use of multiple filtrations after fermentation aid in recovering the individual components of the fermentation broth for recycle ([0066]).
Regarding the process control temperature not exceeding 35[Symbol font/0xB0]C, El Menyawi teaches a method of extracting proteins from precipitates (Abstract) where the protein comprising precipitate includes a fermentation broth ([0179]), the method comprising feeding the suspension into a filtration unit ([0013]) and further feeding that suspension into a second filtration unit ([0021]), where the temperature in the filtration units is controlled between 2[Symbol font/0xB0]C and 25[Symbol font/0xB0]C ([0087]), which falls within the claimed range of “not exceeding 35[Symbol font/0xB0]C”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the use of filtration at a controlled temperature as taught by El Menyawi. One of ordinary skill would be motivated to make this modification because El Menyawi teaches that such temperatures ensure optimum extraction ([0087]).
Regarding the membrane pressure being approximately 10MPa, Tapia teaches extraction and purification of polyphenols from winery residues (i.e., a food product; abstract) comprising membrane separation following extraction (i.e., membrane filtration as a second filtration), which includes reverse osmosis at 35-100 bar (equivalent to 3.5-10 MPa, which includes the claimed value of “approximately 10 MPa”; p. 16, ¶ 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the use of reverse osmosis as a second filtration step as taught by Tapia. One of ordinary skill would have been motivated to make this modification because Tapia teaches that reverse osmosis is used for purification purposes (p. 17, ¶ 2).
Regarding initiating cleaning and washing with clear water, Yamada teaches a process of washing out a separation membrane by filtering the amount of washing water through the membrane ([0045]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma to include a step of washing the filtration unit after filtration as taught by Yamada. One would be motivated to make this modification because Yamada teaches that washing enables a long-lasting separation membrane ([0044]).
Although the cited prior art does not teach initiating cleaning and washing when the proportion of filtrate volume reaches about 90%, one of ordinary skill in the art would have adjusted the point at which cleaning and washing begins during routine optimization to determine when in the process to start washing. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Furthermore, although the cited prior art does not teach that the cleaning and washing is carried out at the same flow acceleration and filtration speed, one of ordinary skill in the art would have adjusted the flow acceleration and flow speed during routine optimization to determine the best acceleration and speed for washing the filter. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Soma (US PGPub 2021/0386101 A1) in view of AsesChem (“Yeast Extract Powder”, ASESCHEM, posted May 25, 2022 [accessed online January 21, 2026]), Sugitani (US 5,229,276), Kurt (US 2021/0355431 A1), Buddhi (US 2009/0117647 A1), and Dehay (US 2010/0297715 A1).
Regarding claims 18 and 19, Soma teaches feeding diluted celery juice into a fermenter ([0083]). Soma also teaches that the starting material can comprise salts, yeast extract, and peptones ([0035]). Soma also teaches that fermentation is controlled at 37°C ([0086]) and at a pH between 4.8-7.5 (which encompasses the claimed range of “about 7.0”) using sodium hydroxide (i.e., an alkali; [0083]). Soma also teaches that a pH of 7.5-12 inactivates microorganisms ([0043]). Thus, one of ordinary skill could conclude that a pH less than 7.5 would be used to facilitate the growth of bacteria. Soma also teaches that the desired concentration is achieved when at least 85% of nitrates have been converted to nitrates ([0012]), which matches the claimed range of “at least 85%” (claim 18) and encompasses the claimed range of “98% conversion rate” (claim 19). Soma also teaches that the celery fermentation starting material is diluted using water ([0086]) as claimed in claim 19.
Soma does not teach a fermentation medium comprising celery juice at 30% concentration, yeast powder, sodium chloride, and disodium hydrogen phosphate dodecahydtrate; inoculating the fermentation medium at 10% inoculum volume; fermenting the inoculated medium in two stages, wherein the first stage the seed solution is transferred into fermentation medium for culture and pH is controlled, beginning the second stage when the fermentation culture is in the fifth hour, wherein the pH of the second stage is controlled by automatic flow of a liquid alkali; and monitoring sugar content in the medium during fermentation and when the sugar content decreases to between 30-50 g/L, entering product transformation conditions by adjusting ventilation volume and stirring.
Regarding the fermentation medium comprising yeast powder, AsesChem teaches that yeast extract powder is used in bacterial culture media as a source of nutrients (p. 2, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the yeast extract of Soma with the use of a yeast extract powder as taught by AsesChem. One of ordinary skill would have been motivated to make this modification because AsesChem teaches that yeast extract powder has high amino acid content, which aids in fermentation and microbial growth (p. 2, ¶ 2).
Regarding the fermentation medium comprising sodium chloride and disodium hydrogen phosphate dodecahydrate, Sugitani teaches microbial production using a medium comprising disodium hydrogen phosphate dodecahydrate and sodium chloride (col. 7, lines 13-16).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add disodium hydrogen phosphate dodecahydrate and sodium chloride as taught by Sugitani to the fermentation medium of Soma. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding inoculating the fermentation medium at 10% inoculum volume; fermenting the inoculated medium in two stages, wherein the first stage the seed solution is transferred into fermentation medium for culture and pH is controlled, Kurt teaches that the inoculum is added at an amount of from 1% to 20% of inoculum to dispersing medium (i.e., inoculum volume; [0056]), which encompasses the claimed value of “10%”. Soma also teaches a two-step fermentation process where first stage where the inoculum is added to the dispersing medium (i.e., seed solution is added into fermentation medium) followed by fermentation for a day ([0055]-[0056]) and that in the dispersing step (i.e., first stage) the pH is adjusted to within the range of 5-7 (i.e., controlled; [1125]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the addition of the process parameters as taught by Kurt. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the pH being controlled by automatic flow of liquid alkali and monitoring sugar content in the medium during fermentation, Buddhi teaches a fermentation process where a pH controller automatically controls the flow of alkali solution to maintain the fermenter at the desired value ([0051]). Buddhi also teaches that throughout fermentation, values of sugar are measured in the fermentation broth (i.e., medium; Claim 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the addition of the process steps taught by Buddhi. One of ordinary skill would have been motivated to make this modification because Buddhi teaches that automatic pH controls allow the fermenter to remain at the desired pH for the entire fermentation ([0051]).
Regarding entering product transformation conditions by adjusting ventilation volume and stirring, Dehay teaches that fermentation is typically carried out by devices suitable for culturing microorganisms under desired conditions, the devices including vents and stirring ([0021]). Dehay further teaches carrying out fermentation with vents open (i.e., adjusted ventilation volume) and stirring ([0105]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Soma with the addition of venting and stirring as taught by Dehay. One of ordinary skill would have been motivated to make this modification because Dehay teaches that vents and stirring control gas equilibria of the culture medium ([0021]).
Although the cited prior art does not teach the celery juice at 30% concentration, although the cited prior art does not teach the concentration, Soma does teach that the celery juice is diluted ([0083]). Therefore, one of ordinary skill in the art would have adjusted the concentration of the diluted celery juice during routine optimization to find the concentration that resulted in the desired amount of starting compounds in the celery juice. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed range would thus be obvious.
Although the cited prior art does not teach the amounts of yeast powder, peptone, sodium chloride, and disodium hydrogen phosphate dodecahydrate as claimed in claim 19, one of ordinary skill would have adjusted the amount of ingredients in the fermentation medium during routine optimization to arrive at a fermentation medium that has the required nutrients to result in the optimum fermentation. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed range would thus be obvious.
Although the cited prior art does not tech beginning the second stage of fermentation in the fifth hour, one of ordinary skill in the art would have adjusted the time of the first stage of fermentation during routine optimization to find the amount time that resulted in the desired microbiological profile in the shortest amount of time. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed range would thus be obvious.
Although the cited prior art does not teach entering product transformation conditions when the sugar content decreases to between 30-50 g/L, Buddhi teaches that sugar consumption (i.e., sugar content) correlates with cell growth ([0065]). Therefore, one of ordinary skill in the art would have adjusted the sugar content at which product transformation conditions begin during routine optimization because the amount of sugar consumed is correlated with the amount of cell growth in the medium. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed range would thus be obvious.
Response to Arguments
Specification: Applicant has not provided an Abstract as requested in the Non-Final rejection. Therefore, the objection to the specification remains.
Claim Rejections – 35 U.S.C. §103 of claims 1-9 and 15-16 over Soma: Applicant’s arguments filed October 20, 2025 have been fully considered but they are not persuasive.
Applicant argued that the rejection fails to established a prima facie case of obviousness because Soma is directed to a different technical problem than the claimed invention and that Soma is entirely focused on continuous production rates rather than conversion efficiency (Remarks, p. 6, ¶ 4- p.7, ¶ 2).
This argument has been considered. However, as described above, the preamble recitation of “a high efficiency fermentation method” is directed towards the intended use of the claimed method, and does not carry patentable weight. The Examiner maintains that Soma discloses the claimed method, and thus renders claim 1 obvious for the reasons stated above in the 35 USC 103 rejection of the claims.
Applicant further argued that the claimed controlled fermentation is fundamentally different from Soma’s process (Remarks, p. 7, ¶ 3- p. 8, ¶ 2).
This argument has been considered. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the fermentation process described in the instant specification) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Soma is sufficient to teach the claims as currently written.
Applicant also argued that there is no motivation to modify Soma to achieve the claimed invention (Remarks, p. 8, ¶ 3- p. 9, ¶ 1).
This argument has been considered. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the fermentation process described in the instant specification) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Because the claims do not specify that the fermentation process is a batch fermentation process, Soma renders the claimed invention obvious.
Applicant further argued that unexpected results support the nonobviousness of the claimed invention (Remarks, p. 9, ¶ 2-4).
This argument has been considered. However, MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” The data provided in the specification is not commensurate in scope with the claimed invention.
Claim Rejections – 35 U.S.C. §103 of claims 10-14 over Soma and the secondary references (Garikipati, Yamada, El Menyawi, and Tapia): Applicant’s arguments filed October 20, 2025 have been fully considered but they are not persuasive.
Applicant argued that one of ordinary skill would understand that filtration is optimized for small industrial chemicals would not be suitable for preserving nutritional profiles essential to food products (Remarks, p. 9, ¶ 7).
This argument has been considered. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., preserving flavors and nutritional profile of food product) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The Examiner maintains that one of ordinary skill would have found it obvious to apply a filtration technique used for a fermentation broth taught by Garikipati to the process taught by Soma to arrive at the claimed invention.
Applicant further argued that none of the secondary references addresses the core invention and that there would have been no motivation to combine the cited secondary references with Soma (Remarks, p. 9, ¶ 7- p. 10, ¶ 2).
This argument has been considered. However, the Examiner maintains that modifications made above are valid for the reasons described. One of ordinary skill would have been capable of making said modification and have reasonable expectation of success to arrive at the claimed invention.
The rejections of claims 1-16 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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 Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793