DETAILED ACTION
Background
The preliminary amendment dated September 15, 2023 (preliminary amendment) adding new claims 22-39 and canceling claims 1-21 has been entered. Claims 22-37 as filed with the preliminary amendment have been examined. Claims 38 and 39 have been withdrawn from consideration.
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 .
Election/Restrictions
Applicant's election with traverse of Invention of Group I, claims 22-37 drawn to a method of producing a dough in the reply filed on September 15, 2023 is acknowledged. The traversal is on the ground(s) that there is no undue search burden on the Office. This is not found persuasive because the restriction is based on a lack of unity and is not determined under US practice. As the restriction requirement dated August 15, 2025 (restriction requirement) indicates, under 37 CFR 1.475(a) applicant must provide reasons in support whether or not there is unity. However, no position taken addresses whether the restricted claims have unity of invention over EP 2243375 A1 to Brandt et al. (Brandt) or its equivalent.
The requirement is still deemed proper and is therefore made FINAL.
Claims 38 and 39 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on September 15, 2023.
Claim Objections
Claim 28 is objected to because of the following informalities:
In claim 28, at line 7 after “olfactory inspection,” insert -- and--. 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.
Claims 35 and 37 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The instant claim 35 recites the broad recitation “at least 0.02% (w/w)”, and the claim also recites “preferably, at least 0.5% (w/w)” which is the narrower statement of the range/limitation. The instant claim 37 recites the broad recitation “a baked good”, and the claim also recites “preferably, a wheat bread” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of 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.
Claims 22-31 and 33-37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by RU2015118790 A1, to Bogatyreva et al. (Bogatyreva), as evidenced by WO2023/031178 A1 to Mladenovska et al. (Mladenovska).
All references to Bogatyreva refer to the Clarivate machine translation, a copy of which is included with this Office action.
Regarding instant claims 22-27, 31 and 34, Bogatyreva at Abstract and (1.) on page 2 discloses a method for preparing sourdough or ferment comprising mixing crushed buckwheat (“flour”) and water and (i) admixing thereto an inoculum comprising pure cultures of homoenzymatic (“homofermentative” - claim 27) lactic acid and propionic acid bacteria. At the Abstract and (2.) on page 2, Bogatyreva discloses as the inoculum a homofermentative lactic acid bacteria chosen from Lactobacillus plantarum (“lactic acid producing microorganism” as in claims 22, 23 and 25) and propionic bacteria Propionibacterium freudenreichii spp.shermani BKM-103.3 (“propionic acid producing microorganism” as in claims 22, 23, 24, 26 and 31) and discloses at “3.” on page 2 fermenting (“(ii) incubating”) for a period 18-20 hours at 35 °C (“first incubation period” as in claim 34) to form the ferment. Further, as disclosed at page 10, Table 1 of Mladenovska Lactobacillus plantarum includes Lactiplantibacillus plantarum (claims 26 and 31).
Bogatyreva at claim 1 on page 2 discloses that its lactic acid producing microorganism and propionic acid producing microorganism ferment is used to prepare a rye-wheat dough comprising 50 wt% of the ferment for making bread. The Office considers the lactic acid producing microorganism and the propionic acid producing microorganism of the Abstract of Bogatyreva as capable of growing and consisting of about 50% (w/w) flour in water as in claim 22.
Regarding instant claims 28-30, the Office considers the recited lactic acid producing microorganism that produces at least one compound inhibiting the natural flora of the flour, of the water, and/or of other compounds optionally added as in claim 28 to include compounds produced by the lactic acid producing microorganism of Bogatyreva. Further, the Office considers the recited lactic acid producing microorganism and propionic acid producing microorganisms that are aerotolerant as in claims 29-30 to include the lactic acid producing microorganism and propionic acid producing microorganisms that grow in a suspension of buckwheat in water mixed at a ratio of 1:2.
Further regarding claim 28 and the recited method optionally, wherein the production of inhibitory compounds is tested (i) by determining inhibition zones surrounding colonies of the lactic acid producing microorganism on test plates and/or (ii) by producing a dough followed by optical and/or olfactory inspection, and wherein inhibition of the natural flora is identified if a homogenous dough with an agreeable, fresh smell is obtained after the first incubation period, while the Office considers optional limitations the claim itself does not require them.
Regarding instant claims 33 and 35, the aerotolerant, homofermentative propionic acid producing microorganism disclosed in Bogatyreva as Propionibacterium freudenreichii appears to be the same thing as the recited Propionibacterium freudenreichii. Accordingly, absent a clear showing as to how the propionic acid producing microorganism in Bogatyreva and its propionic acid production differs from that as claimed, the Office considers the Propionibacterium freudenreichii disclosed at the Abstract and claim 1 of Bogatyreva to be the Propionibacterium freudenreichii strain LCT P1, deposited at the DSMZ under deposit number DSM 33692 as claimed in claim 33 and considers the product of the first incubation period in the Abstract of Bogatyreva to have a propionic acid content of at least 0.02% (w/w) of the dough or ferment as in claim 35. See MPEP 2112.01.I.
Regarding instant claims 36 and 37, Bogatyreva at the last sentence of the Abstract (1.) on page 2 discloses combining (“(iii) admixing) the ferment (the “admixture of step (ii)”) to grain and water and then (in the last sentence of Abstract (2.) on page 2) (iv) incubating the admixture of step (iii) for 60 minutes (a “second incubation period” as in claim 36). The Office considers the disclosed natural grain to include yeast in claim 36 as a natural sourdough culture. Further, Bogatyreva discloses in the Abstract a method for making bread (“baked good” - claim 37). The Office considers the claimed method of increasing the shelf life of a baked good to include the making of a baked good in Bogatyreva.
Claim Rejections - 35 USC § 103
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 22-33, 35 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0150298 A1 to Benfeldt et al. (Benfeldt), as evidenced by WO2023/031178 A1 to Mladenovska et al. (Mladenovska) and US2012/0045543 A1 to Brandt et al. (Brandt).
US2015/0150298 A1 to Benfeldt et al. is equivalent to WO2013/174793 A1, of record. US2012/0045543 A1 to Brandt et al. is equivalent to EP 2243375 A1, of record.
Regarding instant claims 22-26 and 31, Benfeldt at [0083] discloses a method for preparing (at [0074]) sourdough comprising (i) admixing to food a protective culture comprising (at [0001]) Propionibacterium (“propionic acid producing microorganism” as in claims 22 and 23, 24, 26 and 31) in combination with bacteria of the genus Lactobacillus (“lactic acid producing microorganism” as in claims 22, 23 and 25) for the controlling of growth of a contaminant, such as a bacteria, yeast or mould. The Office considers the recited (i) admixing to flour and water and the recited (ii) incubating the admixture of step (i) for a first incubation period, wherein the lactic acid producing microorganism produces lactic acid and the propionic acid producing microorganism produces propionic acid to include the making of a sourdough as disclosed at [0074] and [0083] with the protective culture of Benfeldt. Further, at [0032] and [0034]-[0035] Benfeldt discloses adding a Propionibacterium freudenreichii strain (claims 24, 26 and 31) with its Lactobacillus strain.
Benfeldt does not disclose a method wherein its sourdough comprises a specific flour and water or a flour and water growth medium. However, the Office considers the claimed admixture of flour, microorganisms and water to include the sourdough of Benfeldt and considers the microorganisms capable of growing in a medium consisting of at least about 50% (w/w) flour in water to include the sourdough and microorganisms disclosed at [0074] and [0083] of Benfeldt.
Regarding instant claim 26 and further regarding instant claim 31, Benfeldt does not disclose an example of a dough comprising (a) a lactic acid producing microorganism that is a Lactobacillus johnsonii strain, a Lactilactobacillus sakei strain, a Lactiplantibacillus plantarum strain, or a Companilactobacillus farciminis strain, or a combination of any one of those with a propionic acid producing microorganism that is a strain of Propionibacterium freudenreichii as in claim 31. However, at [0088] Benfeldt discloses suitable lactic acid producing microorganisms as including strains of Lactobacillus johnsonii, and (as disclosed in Mladenovska at page 10, Table 1) strains of Lactilactobacillus sakei and Lactiplantibacillus plantarum. The ordinary skilled artisan would have found it obvious in Benfeldt to select any of the claimed Lactobacillus strains because Benfeldt discloses that the claimed strains of Lactobacillus provide a desirable protective culture for making a mold and yeast resistant dough.
Regarding instant claims 27 and 28, the Office considers the claimed lactic acid producing microorganism and that disclosed in Benfeldt to be substantially the same thing. Accordingly, absent a clear showing as to how the lactic acid producing microorganism in Benfeldt differs from that as claimed, the Office considers the lactic acid producing Lactobacillus microorganism of Benfeldt at [0001] and [0088] to be a homofermentative lactic acid producing microorganism as in claim 27, and, further, considers the lactic acid producing microorganism to produce produces at least one compound inhibiting the natural flora of the flour, of the water, and/or of other compounds optionally added as in claim 28. See MPEP 2112.01.I.
Further regarding claim 28 and the recited method, optionally, wherein the production of inhibitory compounds is tested (i) by determining inhibition zones surrounding colonies of the lactic acid producing microorganism on test plates and/or (ii) by producing a dough followed by optical and/or olfactory inspection, and wherein inhibition of the natural flora is identified if a homogenous dough with an agreeable, fresh smell is obtained after the first incubation period, while the Office considers optional limitations the claim itself does not require them.
Regarding instant claims 29-30, the Office considers the recited lactic acid producing microorganism and propionic acid producing microorganisms that are aerotolerant as in claims 29-30 to include the lactic acid producing microorganisms and propionic acid producing microorganisms disclosed in Benfeldt that (at [0092]) grow in a suspension in water or broth. In addition, Brandt at [0015] discloses aerotolerant microorganisms.
Regarding instant claim 32, Benfeldt does not disclose an example of a lactic acid producing microorganism that is (a) Lactobacillus johnsonii strain LCT 986, deposited at the DSMZ under deposit number DSM 33691; (b) Lactilactobacillus sakei strain LCT 142, deposited at the DSMZ under deposit number DSM 33690; or (c) Companilactobacillus farciminis strain LCT 1916, deposited at the DSMZ under deposit number DSM 33692. However, the Office considers the lactic acid producing microorganisms of Benfeldt that control the growth of yeast or mould to be substantially the same as the claimed lactic acid producing microorganism. Accordingly, absent a clear showing as to how the lactic acid producing microorganism in Benfeldt differs from that as claimed, the Office considers the lactic acid producing Lactobacillus johnsonii and Lactobacillus sakei of Benfeldt at [0088] to be substantially the same thing, respectively, as the claimed (a) Lactobacillus johnsonii strain LCT 986, deposited at the DSMZ under deposit number DSM 33691; and the (b) Lactilactobacillus sakei strain LCT 142, deposited at the DSMZ under deposit number DSM 33690. See MPEP 2112.01.I.
Regarding instant claims 33 and 35, the propionic acid producing microorganism disclosed in Benfeldt as Propionibacterium freudenreichii appears to be the same thing as the recited Propionibacterium freudenreichii. Accordingly, absent a clear showing as to how the propionic acid producing microorganism in Benfeldt and its propionic acid production differs from that as claimed, the Office considers the Propionibacterium freudenreichii disclosed at [0034]-[0035] of Benfeldt to be the Propionibacterium freudenreichii strain LCT P1, deposited at the DSMZ under deposit number DSM 33692 as claimed in claim 33 and considers the product of a first incubation period disclosed at [0074] and [0083] of Benfeldt to have a propionic acid content of at least 0.02% (w/w) of the dough or ferment as in claim 35. See MPEP 2112.01.I.
Regarding instant claim 37, Benfeldt does not discloses a method of increasing the shelf life of a baked good. However, Benfeldt at [0074] discloses making a sourdough comprising (at [0083]) bacteria that prevent yeast or mold growth. The ordinary skilled artisan in Benfeldt would have found it obvious to make a baked good from its sourdough and thereby to increase its shelf life because Benfeldt discloses that its contamination resistant sourdough gives a desirably stable dough product.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over RU2015118790 A1, to Bogatyreva et al. (Bogatyreva), as evidenced by WO2023/031178 A1 to Mladenovska et al. (Mladenovska) as applied to claim 22 above, and further in view of US2015/0150298 A1 to Benfeldt et al.
All references to Bogatyreva refer to the Clarivate machine translation, a copy of which is included with this Office action.
As applied to claim 22, Bogatyreva at Abstract and (1.) on page 2 discloses a method for preparing dough comprising (i) admixing to flour and water a lactic acid producing microorganism and a propionic acid producing microorganism, (ii) incubating the admixture of step (i) for a first incubation period, wherein the lactic acid producing microorganism produces lactic acid and the propionic acid producing microorganism produces propionic acid, wherein the lactic acid producing microorganism and the propionic acid producing microorganism are capable of growing in a medium consisting of about 50% (w/w) flour in water.
Bogatyreva does not disclose an example of a lactic acid producing microorganism that is (a) Lactobacillus johnsonii strain LCT 986, deposited at the DSMZ under deposit number DSM 33691; (b) Lactilactobacillus sakei strain LCT 142, deposited at the DSMZ under deposit number DSM 33690; or (c) Companilactobacillus farciminis strain LCT 1916, deposited at the DSMZ under deposit number DSM 33692.
Benfeldt at [0013] discloses lactic acid producing microorganisms that control the growth of yeast or mould and that (at [0074]) are used to make sourdough. At [0088], Benfeldt discloses the lactic acid producing Lactobacillus johnsonii and Lactobacillus sakei which the Office considers to be substantially the same thing, respectively, as (a) Lactobacillus johnsonii strain LCT 986, deposited at the DSMZ under deposit number DSM 33691; and (b) Lactilactobacillus sakei strain LCT 142, deposited at the DSMZ under deposit number DSM 33690.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Benfeldt for Bogatyreva to include a lactic acid producing microorganism chosen from (a) Lactobacillus johnsonii strain LCT 986, deposited at the DSMZ under deposit number DSM 33691; (b) Lactilactobacillus sakei strain LCT 142, deposited at the DSMZ under deposit number DSM 33690; or (c) Companilactobacillus farciminis strain LCT 1916, deposited at the DSMZ under deposit number DSM 33692 to make its sourdough. Both references disclose sourdoughs from lactic acid producing microorganism and the propionic acid producing microorganisms. The ordinary skilled artisan in Bogatyreva would have desired to use the claimed Lactobacillus strains as in Benfeldt to preserve its culture from yeast or mold contamination.
Claim 34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0150298 A1 to Benfeldt et al. (Benfeldt), as evidenced by WO2023/031178 A1 to Mladenovska et al. (Mladenovska) and as applied to claim 22 above, and further in view of RU2015118790 A1, to Bogatyreva et al. (Bogatyreva).
As applied to claim 22, Benfeldt at [0001], [0074] and [0083] discloses a method for preparing dough comprising (i) admixing to flour and water a lactic acid producing microorganism and a propionic acid producing microorganism, (ii) incubating the admixture of step (i) for a first incubation period, wherein the lactic acid producing microorganism produces lactic acid and the propionic acid producing microorganism produces propionic acid, wherein the lactic acid producing microorganism and the propionic acid producing microorganism are capable of growing in a medium consisting of about 50% (w/w) flour in water.
Regarding instant claims 34 and 36, Benfeldt does not disclose a first incubation period in step (ii) having a duration of from about 0.5 to about 72 hours and/or wherein the first incubation period is performed at a temperature of from about 3 °C to about 50 °C. Further, Benfeldt does not disclose (iii) admixing the admixture of step (ii) to flour, water, and yeast; and (iv) incubating the admixture of step (iii) for a second incubation period as in claim 36.
Bogatyreva at first sentence of the Abstract discloses inoculating flour and water with lactic acid producing microorganism and the propionic acid producing microorganism and incubating for a first incubation period of 18-20 hours at 35 °C. At the last sentence of the Abstract (1.) on page 2 discloses combining (“(iii) admixing”) the ferment (“admixture of step (ii)”) to grain and water and then (in the last sentence of Abstract (2.) on page 2) (iv) incubating the admixture of step (iii) for 60 minutes (a “second incubation period” as in claim 36). The Office considers the disclosed natural grain to include yeast in claim 36 as a natural sourdough culture.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bogatyreva for Benfeldt to incubate its sourdough in a first incubation period for the claimed 0.5 to 72 hours at from about 3 to about 50 °C to preserve the dough and to admix the sourdough into a second mixture of flour, water and yeast and then incubate for a second incubation period to proof the dough for baking. Both references disclose making sourdough and foods therefrom comprising lactic acid producing microorganisms and the propionic acid producing microorganisms. The ordinary skilled artisan in Benfeldt would have desired to incubate its sourdough for the claimed first incubation period at the claimed temperature and then to admix the product into flour, water and yeast and incubate for a second incubation period as in Bogatyreva to produce a stable, live culture sourdough protected from yeast and molds and then to proof it to provide a protected dough for baking.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791