DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 7/28/26.
Claims 1-8, 11-12, 16-18 are pending and have been examined on the merits. Claims 10 and 14 have been cancelled. Claims 9, 13, and 15 were previously cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/28/26 has been entered.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1-9, and 12-14 as being anticipated by Mattson (CA 2636181) have been withdrawn due to the amendments to the claims.
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 1-8, 11, 12, and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Mattson (CA 2636181) in view of Wang (WO 2016/161506) and Riis et al. (US 2019/0142022).
Regarding Claims 1, 2, 6, 11: Mattson discloses food comprising fat encapsulated microbial culture as discussed in [0033; 0034; 0042]. Mattson discloses encapsulated probiotics, coated in a fat based composition [abstract]. Mattson discloses a microbial culture preparation [0011; 0013-0016]. Mattson discloses a fat based coating that is substantially solid at room temperature and having a melting point of 90 to about 98°F (32-36°C) [0017; 0019; 0021]. Mattson discloses that the fat coated culture is stable, meaning less than 10% loss for at least 3 months at refrigerated temperatures more preferably about 33 to about 50°F [0038]. Mattson discloses a chocolate coating containing yogurt powder and butter oil and is therefore considered a dairy product since it contains yogurt powder and butter oil and yogurt powder contains milk and butter oil is derived from milk [0042]. Mattson discloses a white coating containing yogurt powder and whole milk powder and is therefore considered a dairy product since yogurt powder contains milk and due to the whole milk powder [0043].
Mattson does not disclose that the composition is a post-pasteurized.
Mattson does not disclose wherein the microbial culture is viable during post-pasteurization and subsequent storage at a temperature of 25°C for a period of at least 2 weeks.
Wang discloses heat treating encapsulated probiotics [abstract; 0001; 0004]. Wang discloses that the encapsulation protects the probiotics from subsequent heat damage [0038; 0039]. Wang discloses the encapsulation material as containing fat with a melting point between 25°C and 60°C [0041; 0043]. Wang discloses carrying out a spray drying treatment at 60 to 85°C [0047; 0048]. The temperatures in Wang are compatible with pasteurization temperatures.
Riis discloses a dairy product which is a post pasteurized yogurt [0178; 0210].
At the effective filing date of the invention, it would have been obvious to one of ordinary skill in the art to include the encapsulated probiotics of Mattson with a subsequent heat treatment step as in Wang since Wang discloses that the protective effect of fat based coating protects otherwise heat sensitive bacteria from the stress of heat. Since the probiotics of Wang are able to withstand heat treatment steps it would have been obvious that they would have been able to survive other heat processing steps [0048].
At the effective filing date of the invention, it would have been obvious to one of ordinary skill in the art to include the encapsulated probiotics of Mattson with post-pasteurized yogurt as Riis in order to provide ambient temperature yogurt with live bacteria.
Although Mattson does not disclose wherein the microbial culture is viable during post-pasteurization and subsequent storage at a temperature of 25°C for a period of at least 2 weeks, “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since Mattson discloses the same combination of probiotic and fat as recited, it would have been expected to have the same effect or results in post pasteurized yogurt and therefore the same stability at 25°C for at least two weeks.
Regarding Claim 3: Mattson discloses as discussed above in claim 1. Mattson further discloses that the one or more fats is cocoa butter, palm oil, palm kernel oil, coconut oil, or shea nut butter [0019; 0021].
Regarding Claim 4: Mattson discloses as discussed above in claim 1. Mattson discloses that the fat can further contain an emulsifier [0023].
Regarding Claim 5: Mattson discloses as discussed above in claim 1. Mattson discloses that the probiotics are in dry viable form and that the fat encapsulating the probiotic is solid at room temperature which is therefore considered a dry form of the product [0013; 0014; 0019].
Regarding Claim 7: Mattson discloses as discussed above in claim 6. Mattson discloses that the probiotics can be Lactobacilli species or Bifidobacteria species [0013].
Regarding Claim 8: Mattson discloses as discussed above in claim 1. Mattson discloses that the microbial culture is lactic acid bacteria [0013].
Regarding Claim 12: Mattson discloses a method of making encapsulated probiotics, by mixing the probiotics with a fat based coating [abstract; 0033]. Mattson discloses a microbial culture preparation [0011; 0013-0016]. Mattson discloses a fat based coating that is substantially solid at room temperature and has a melting point of 90 to about 98°F (32-36°C) [0017; 0019; 0021]. Mattson discloses food comprising fat encapsulated microbial culture as discussed in [0033; 0034; 0042].
Mattson does not disclose post-pasteurization.
Mattson does not disclose wherein the microbial culture is viable during post-pasteurization and subsequent storage at a temperature of 25°C for a period of at least 2 weeks.
Wang discloses a method of making encapsulated probiotics [abstract; 0001; 0004]. Wang discloses that the encapsulation protects the probiotics from subsequent heat damage [0038; 0039]. Wang discloses the encapsulation material as containing fat with a melting point between 25°C and 60°C [0041; 0043]. Wang discloses forming the encapsulated probiotics and subsequently carrying out a spray drying treatment at 60 to 85°C [0047; 0048]. The temperatures in Wang are compatible with pasteurization temperatures.
At the effective filing date of the invention, it would have been obvious to one of ordinary skill in the art to include the encapsulated probiotics of Mattson with a subsequent heat treatment step as in Wang since Wang discloses that the protective effect of fat based coating protects otherwise heat sensitive bacteria from the stress of heat. Since the probiotics of Wang are able to withstand heat treatment steps it would have been obvious that they would have been able to survive other heat processing steps [0048] including pasteurization, especially where the temperatures to which the encapsulated probiotic are exposed are within the range known for pasteurization.
Although Mattson as modified by Wang does not disclose wherein the microbial culture is viable during post-pasteurization and subsequent storage at a temperature of 25°C for a period of at least 2 weeks, “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since Mattson discloses the same combination of probiotic and fat as recited, it would have been expected to have the same effect or results in post pasteurized yogurt and therefore the same stability at 25°C for at least two weeks.
Regarding Claims 16-18: Mattison as modified discloses as discussed above in claim 1.
Although Mattson as modified by Wang does not disclose wherein the microbial culture is viable during post-pasteurization and subsequent storage at a temperature of 25°C for a period of at least 4 weeks, at least 6 weeks, at least 8 weeks, “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since Mattson discloses the same combination of probiotic and fat as recited, it would have been expected to have the same effect or results in post pasteurized yogurt and therefore the same stability at 25°C for at least 4 weeks, for at least 6 weeks, for at least 8 weeks.
Response to Arguments
The 103(a) rejections of claims 1-8, 12, 14, and 16-18 over Mattson (CA 2636181) in view of Wang (WO 2016/161506) have been withdrawn due the amendments to the claims.
The 103(a) rejections of claims 10 and 11 over Mattson (CA 2636181) in view of Wang (WO 2016/161506) and Riis et al. (US 2019/0142022) have been withdrawn due to the amendments to the claims.
The Applicants assert that there was no motivation to combine the references.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, there was motivation to combine in that Wang and Riis disclose post pasteurization of coated probiotic products where Mattison and Wang teach encapsulating probiotics in fats have similar melting points. It would have been obvious to subject the product of Mattison to post pasteurization since the probiotics would have been properly protected in the matrix.
The Applicant also asserts that in re Spada does not apply.
The Examiner disagrees because the structure of the product of Mattison and the instant invention is the same. Mattison was modified for the characterization of the product and the product in a post-pasteurized state.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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