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 .
The office action is written in response to the Applicants Remarks filed 1/16/26. Claims 1-8, 10-12, 14, 16-18 are pending and have been examined on the merits. Claims 9, 13, and 15 have been cancelled. Claims 16-18 are new.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1-9, and 12-14 as being anticipated by Mattson (CA 2636181) have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 11 over Mattson (CA 2636181) in further view of Koss et al. (US 2003/0147995) has been withdrawn due to the amendment to claim 1.
The 103(a) rejection of claim 15 over Mattson (CA 2636181) in further view of Koss et al. (US 2003/0147995) and Kondou (EP 0301502) due to the amendment to claim 1.
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, 12, 14, 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).
Regarding Claims 1, 2, 6: 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 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.
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].
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 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 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 Claim 14: Mattson as modified discloses as discussed above in claim 1. Mattson discloses food comprising fat encapsulated microbial culture as discussed in claim 1 [0033; 0034; 0042].
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.
Claims 10 and 11 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 10 and 11: Mattison as modified by Wang discloses as discussed in claim 1. 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 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.
Response to Arguments
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.
The 103(a) rejection of claim 11 over Mattson (CA 2636181) in further view of Koss et al. (US 2003/0147995) has been withdrawn due to the amendment to claim 1.
The 103(a) rejection of claim 15 over Mattson (CA 2636181) in further view of Koss et al. (US 2003/0147995) and Kondou (EP 0301502) due to the amendment to claim 1.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Adel (CA 2820178) Adel discloses a composition comprising probiotic bacteria, the composition comprising: (a) a core composition containing the probiotic bacteria and a stabilizer, wherein the total amount of probiotics in the mixture is from about 10% to about 90% by weight of the core composition; (b) an innermost coating layer, layered on said core composition, comprising at least one hydrophobic solid fat or fatty acid having a melting point lower than 60 °C; (c) an intermediate coating layer layered on said innermost coating layer, which when present in an aqueous solution in the amount of 0.1% weight/weight over the weight of the solution, has a surface tension lower than 60 mN/m, when measured at 25°C; and (d) an outer coating layer, layered on said intermediate coating layer; wherein the composition is in the form of particles; food products containing the composition and methods of preparation thereof.
Swan (US 2009/0074932) Swan discloses post pasteurization [0037; 0039; 0052]. Swan discloses adding live probiotics pre-or post-pasteurization [0060; 0075].
Vurma et al. TW 201336418 discloses that probiotics can be treated by encapsulation of heat resistant probiotics to protect against heat treatment conditions [pg. 17 “Manufacturing”].
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793