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 Claims
Claims 1-11 are pending and are under examination in this Office Action.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/15/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
Claim Objections
Claims 1, 6, and 10-11 are objected to because of the following informalities:
The article “a” should be added before the word “yogurt” in Claim 1.
In Claim 6, the word “accommodated” should be omitted.
The article “A” should be added at the beginning of Claims 10 and 11.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claim 7 is rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Applicants regard as the invention.
Claim 7 is indefinite for the recitation of “ “…additionally heat-treating the killed bacteria-containing fermentation broth in a state in which only the killed bacteria-containing fermentation broth is packaged in an individual container,”. It is unclear what Applicant is excluding with the recitation of “only the killed bacteria-containing fermentation broth is packaged in an individual container”, i.e. other bacteria or everything else. The Examiner notes that the claim recites “comprising” transition language, which indicate that additional step, e.g. addition of other components, are not excluded.
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.
Claims 1, 5, 7, and 10-11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Nilsson, L. (US 2012/0128822 A1).
Nilsson discloses a method of producing a yoghurt-based product by adding a first bacteria culture to the milk raw material, incubating, heat treating at a temperature of 75-110° C., and afterwhich, a second bacteria culture is added to the heat treated, yoghurt-based product, and then aseptically packaging the product (Abstract; Claim 1).
Regarding Claim 1, Nilsson expressly teaches that the milk raw material with the added bacteria culture ferments while staying in the incubation tanks at a maintained temperature of 37-45° C [0335]. The Examiner interprets this to read on step a), the production of live bacteria containing fermentation broth. Nilsson teaches the first bacteria culture is a lactic acid bacteria [0020]. Nilsson also teaches the step of heat-treatment at a temperature of 75-110° C. after the incubation period, and relays that yogurt which has been heat treated after the fermentation is normally designated a yoghurt-based product ([0001], [0004], [0022]).
Regarding Claim 5, Nilsson expressly teaches milk raw material.
Regarding Claim 7, Nilsson teaches adding fruit jam or other flavorings to the yoghurt-based product before the final heat treatment [0024].
Regarding Claims 10-11, Nilsson has taught the yogurt product supra (Abstract; Claim 1).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Nilsson, as applied to Claim 1 above, and in view of Sfakianakis et al. (Foods 2014, 3, 176-193), hereinafter Sfakianakis.
Regarding Claims 2 and 3, the instant Specification indicates that heat treatment at a temperature of 80°C to 100°C for 10 minutes to 40 minutes do not change the nutritional components of the live lactic acid bacteria-fermentation broth [55]. Nilsson expressly teaches heat sterilization at 75 °C to 110 °C. However, Nilsson neither expressly teach that there is no change in nutritional components nor the claimed time of heat treatment.
Sfakianakis is in the same field and relates the impact of different thermal treatment techniques on milk and yogurt properties (Table 1; p. 179, Section 2.4). Sfakianakis teaches that heat treatment is carried out to ensure the safety of dairy product, reducing the number of pathogenic microorganisms to limits that are safe for the consumer’s health (p. 179, Section 2.4). Sfakianakis teaches various temperature and duration, including high temperature pasteurization that requires a temperature of 85 °C for 20–30 min or 90–95 °C for 5 min (p. 179, Section 2.4). During high temperature pasteurization most vegetative microorganisms are killed, except from spores; most enzymes are deactivated; most whey proteins are denatured, and a distinct “cooked” flavor is developed; no further irreversible changes occur (Table 1; p. 179, Section 2.4). The effect of high pasteurization on yoghurt is increased viscosity and firmness (Table 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Sfakianakis with Nilsson and use the high temperature pasteurization conditions, for instance 85 °C for 20–30 min, in order to kill the vegetative microorganisms, deactivate enzymes, denature protein etc., and/or increase the viscosity and firmness of the yogurt-based product of Nilsson.
It would also have been prima facie obvious to one of ordinary skill in the art before the effective filing date to repeat the heat treatment step as many times as needed to obtain a resulting product that do not contain live bacteria. As such Claim 4 is also obvious.
Claims 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Nilsson, as applied to Claim 1 above, and in view of Kikuchi, M. (JP 2008-67680 A, machine translation from IP.com).
Regarding Claim 6, Nilsson does not teach that wherein step (b) is performed in a chamber to protect from external air, or that the method further comprises stirring the killed bacteria-containing fermentation broth in the chamber
Kikuchi discloses a soybean fermented brewing liquid with alcohol content of less than 1%, wherein lactic acid bacteria is used to make a lactic acid fermentation broth (Abstract; p. 2, 1st and 2nd paragraphs).
Regarding Claim 6, Nilsson teaches that the commonest main types of yoghurt are yoghurt which has fermented inside the package, so-called "set type", and yoghurt which has fermented in tanks and then been packed, so-called "stirred type" [0002]. Nilsson teaches that its method is for producing a both "stirred type" yoghurts and drinking yoghurts (p. 4, 2nd paragraph). Kikuchi teaches using a temperature-controlled room, which reads on the claimed chamber (Claim 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Kikuchi to Nilsson, and stir the yogurt in fermentation tank in a temperature-controlled room/chamber to ensure uniformity and reproducibility in the yogurt manufacturing process.
Regarding Claim 9, Kikuchi teaches the lactic acid bacteria initially obtained was 106 -108 cells/ml, and was further cultured to 109 to 1012 cells/ml; the lactic acid fermentation liquor is returned to the source solution during the soybean fermentation brewing process by 5% to 15% and mixed and fermented for 4-24h before heat sterilization (p. 3, paragraphs 6-8). One skilled in the art would know how to calculate the amount based on bacterial growth in a given fermentation time, and would also know the bacterial population of killed bacteria after complete sterilization.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Nilsson, as applied to Claims 1 and 7 above, and in view of Lee, SC (KR 10-2259148 B1, machine translation from IP.com).
Regarding Claim 8, Nilsson does not expressly teach an additional heating step performed at a temperature of 80°C to 95°C for 10 minutes to 40 minutes..
Lee is in the same field of endeavor and discloses a method of preparing Greek yogurt, comprising a concentration step; a lactic acid bacteria inoculation step; an individual subdivision step of individually subdividing the concentrate, filling a plurality of containers with the subdivided concentrate, and sealing the containers; a fermentation step of fermenting the concentrate subdivided into the containers; an aging step of aging the concentrate subdivided into the containers; and a final packaging step of finally packaging the containers for commercialization (Abstract; p. 9, S1-S6; pp. 3-4 entirety).
Lee relates that the concentration step (S1) is performed by a cyclic method, which also includes a low temperature decompression process of low-temperature decompression in a low-temperature state and a vacuum state having a temperature condition of 40 to 60°C, and a high-temperature sterilization at a temperature of around 95 ° C. for about 5 minutes to produce the viscous yogurt, and to completely kill pathogenic bacteria that can cause food poisoning (p. 3, paragraphs 3-5).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Lee with Nilsson, and use the cyclic method to ensure complete killing of bacteria that can cause food poisoning and produce the viscous yogurt. Hence, one with ordinary skill in the art would have applied the known technique of cyclic concentration step and packaging step for commercialization. It can be expected that using the cyclic method would lead to complete killing of harmful bacteria to avoid food poisoning. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007). One of ordinary skill in the art would find it obvious to adjust the time of sterilization as a matter of experimentation and optimization. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results, i.e. complete killing of harmful bacteria.
Conclusion
No claims are allowed.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792