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 amendment filed 12/19/25 has been entered. Claims 25-30, 33 and 40 has been amended. Claims 43-47 are new. Claims 1-24, 34 and 38-39 have been cancelled. Claims 25-33, 35-37 and 40-47 are pending and are under examination.
Information Disclosure Statement
The information disclosure statements filed 10/28/25 and 12/19/25 have been considered and an initialed copies are enclosed.
Claim Rejections - Withdrawn
The rejection of claim 40 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, is withdrawn in view of the amendment to the claims.
The rejection of claims 38-40 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 25-28, 30-37 and 41-42 under 35 U.S.C. 102(a)(1) as being anticipated by Choi et al. EP 3747988 9/12/2020 cited in IDS as evidenced by Ganesan et al. Brain, Behavior and Immunity 124 (2025) 9-27 is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 29 under 35 U.S.C. 102(a)(1) as being anticipated by Hosseinifard et al. Eur J Nutr 58, 3361–3375 (2019) cited in IDS is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 25, 26, 28, 30-31 and 34-36 under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al. WO 2017047962 3/23/17 is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 25-28, 30, 32 and 34-37 under 35 U.S.C. 102(a)(1) as being anticipated by Dong-Yun Lee et al. Food Funct., 2021,12, 10750-10763 10/5/21 is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 25 and 31 under 35 U.S.C. 103 as being unpatentable over Dong-Yun Lee et al. Food Funct., 2021,12, 10750-10763 10/5/21 is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 25, 38 and 39 under 35 U.S.C. 103 as being unpatentable over Choi et al. EP 3747988 9/12/2020 cited in IDS as evidenced by Ganesan et al. Brain, Behavior and Immunity 124 (2025) 9-27 is withdrawn in view of the amendment to the claims.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 27, 29, 44 and 46 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Toshimitsu et al. J. Dairy Science. 99-933-946, 2016 cited in IDS.
Toshimitsu et al disclose a method comprising allowing a subject to ingest an effective amount of a lactic acid bacterium belonging to Lactobacillus plantarum comprising 16S rRNA gene having similarity of 99% to SEQ ID NO: 1, wherein the Lactobacillus plantarum is the OLL2712 strain deposited under accession number FERM BP-11262.
Since the method step is the same, same method will also result in reduction of IL-1, Il-6, Il-9, Il-12, IL-17, granulocyte colony stimulating factor, a granulocyte monocyte-colony stimulating factor, interferon-y, monocyte chemoattractant protein-1, macrophage inflammatory protein-1, and a tumor necrosis factor in a brain tissue of said subject as claimed and also reduction in an amount of Il-17 in the subject.
Claim(s) 27, 29, 44 and 46 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Toshimitsu et al. Nutrients, 2020, Jan 31: 12(2):374, 14 pages.
Toshimitsu et al disclose a method comprising allowing a subject to ingest an effective amount of a lactic acid bacterium belonging to Lactobacillus plantarum comprising 16S rRNA gene having similarity of 99% to SEQ ID NO: 1, wherein the Lactobacillus plantarum is the OLL2712 strain deposited under accession number FERM BP-11262. See abstract and sections 2.1-2.3.
Since the method step is the same, same method will also result in reduction of IL-1, Il-6, Il-9, Il-12, IL-17, granulocyte colony stimulating factor, a granulocyte monocyte-colony stimulating factor, interferon-y, monocyte chemoattractant protein-1, macrophage inflammatory protein-1, and a tumor necrosis factor in a brain tissue of said subject as claimed and also reduction in an amount of Il-17 in the subject.
Claim(s) 27, 29 , 44 and 46 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Toshimitsu et al. US 2023/0293605 filed 6/21/21.
The applied reference has a common inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Toshimitsu et al disclose a method comprising allowing the subject to ingest an effective amount of a lactic acid bacterium belonging to the genus Lactobacillus plantarum comprising 16S rRNA gene having similarity of 99% to SEQ ID NO: 1, wherein the Lactobacillus plantarum is the OLL2712 strain deposited under accession number FERM BP-11262.
Since the method step is the same, same method will also result in reduction of IL-1, Il-6, Il-9, Il-12, IL-17, granulocyte colony stimulating factor, a granulocyte monocyte-colony stimulating factor, interferon-y, monocyte chemoattractant protein-1, macrophage inflammatory protein-1, and a tumor necrosis factor in a brain tissue of said subject as claimed and also reduction in an amount of Il-17 in the subject.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 27, 29 , 44 and 46 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 19-21, 23, 24, 29 and 34 of copending Application No. 18/012112 (‘112). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘112 claims.
disclose a method comprising allowing a subject to ingest an effective amount of a lactic acid bacterium belonging to the genus Lactobacillus plantarum comprising 16S rRNA gene having similarity of 99% to SEQ ID NO: 1, wherein the Lactobacillus plantarum is the OLL2712 strain deposited under accession number FERM BP-11262.
Since the method step is the same, same method will also result in reduction of IL-1, Il-6, Il-9, Il-12, IL-17, granulocyte colony stimulating factor, a granulocyte monocyte-colony stimulating factor, interferon-y, monocyte chemoattractant protein-1, macrophage inflammatory protein-1, and a tumor necrosis factor in a brain tissue of said subject as claimed and also reduction in an amount of Il-17 in the subject.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 27, 29 , 44 and 46 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20 and 22 of copending Application No. 17784312 (‘312). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘312 claims.
disclose a method comprising allowing a subject to ingest an effective amount of a lactic acid bacterium belonging to the genus Lactobacillus plantarum comprising 16S rRNA gene having similarity of 99% to SEQ ID NO: 1, wherein the Lactobacillus plantarum is the OLL2712 strain deposited under accession number FERM BP-11262.
Since the method step is the same, same method will also result in reduction of IL-1, Il-6, Il-9, Il-12, IL-17, granulocyte colony stimulating factor, a granulocyte monocyte-colony stimulating factor, interferon-y, monocyte chemoattractant protein-1, macrophage inflammatory protein-1, and a tumor necrosis factor in a brain tissue of said subject as claimed and also reduction in an amount of Il-17 in the subject.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Status of Claims
Claims 27, 29 , 44 and 46 are rejected. Claims 25-26, 28, 30-33, 35-37, 40-43, 45 and 47 are allowed.
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.
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/OLUWATOSIN A OGUNBIYI/ Primary Examiner, Art Unit 1645