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 3/18/26.
Claims 8-16 and 18-20 are pending. Claim 17 has been cancelled. Claims 19 and 20 are new.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/18/26 has been entered.
Withdrawn Rejections
The 112(d) rejection of claim 18 has been withdrawn due to the amendment of the claim.
The 103(a) rejections of claims 8-11, 13, 14, 16, and 18 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Zhao “Changes in flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020 have been withdrawn due to the amendment to the claims.
The 103(a) rejections of claims 11, 12 and 15 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Zhao “Changes in flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020 as applied to claims 8 and 10 above and in further view of Mitchell et al. (US 4,744,992) have been withdrawn due to the amendment to the claims.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 8-11, 13, 14, 16, 18, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Beckman et al. (WO 2010/136321).
Regarding Claims 8, 13, 14, 19: Tropel discloses a method of fermenting a plant based milk with Lactobacillus fermentum, L. reuteri, L. mucosae or other lactic acid bacteria [0005; 0024]. Tropel discloses rice milk as a plant based milk [0021; 0022].
Tropel does not disclose wherein a residual ratio of benzaldehyde in the plant-based milk contacted with the lactic acid bacterium/bacteria is not less than 1% and not more than 50%.
Beckman discloses L. reuteri as a flavor removing bacteria [pg. 4, lines 14-24; pg. 5, lines 10-17].
Park discloses volatile compounds in fermented rice [abstract]. Park discloses rice fermented with L. fermentum [Table 2]. Park discloses nonfermented rice and rice fermented with L. fermentum [Table 2]. Park discloses a reduction in the amount of benzaldehyde in nonfermented rice versus rice fermented by L. fermentum [Table 2]. Park discloses an undetectable amount of benzaldehyde in rice fermented by L. fermentum [Table 2].
At the effective filing date of the invention it would have been obvious that the L. reuteri of Tropel would have been able to remove an amount of benzaldehyde present in the rice since Beckman supports L. reuteri as a flavor removing bacteria and further it would have been advantageous to reduce the presence of benzaldehyde due to its bitter taste formation in rice.
Although Tropel and Park do not disclose wherein a residual ratio of benzaldehyde in the plant-based milk contacted with the lactic acid bacterium/bacteria is not less than 1% and not more than 50%, it would have been obvious to one of ordinary skill in the art that contacting the rice milk of Tropel with a fermenting amount of L. reuteri would have resulted in a residual ratio of benzaldehyde of 1% to 50%.
The instant claims and prior art Tropel disclose the same steps regarding contacting plant based milk with L. reuteri and can be said to have the same result. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties 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). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
The Office is not equipped to manufacture prior art products and compare them for patentability. Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Regarding Claim 9: Tropel as modified discloses as discussed above in claim 8. Tropel discloses wherein the plant based milk is cereal based [0022].
Regarding Claim 10: Tropel as modified discloses as discussed above in claim 8. Tropel discloses wherein the plant based milk is derived from rice [0021; 0022].
Regarding Claim 11: Tropel as modified discloses as discussed above in claim 10. Tropel discloses wherein the plant based milk is derived from rice [0022].
Park discloses rice [pg. 12, lines 1-10].
However, it would have been obvious to select white or brown rice depending on the level of bran flavor desired in the end product. Brown rice would have contributed more fiber and a deeper, nuttier bran flavor to the milk than white rice.
Regarding Claim 16: Tropel as modified discloses as discussed above in claim 14. Tropel discloses wherein the fermentation time is 12 to 24 hours [0067].
Regarding Claim 18: Tropel as modified discloses as discussed above in claim 8. Tropel does not disclose wherein a residual ratio of benzaldehyde in the plant-based milk contacted with the
lactic acid bacterium/bacteria is less than 39.6%.
Park discloses an undetectable amount of benzaldehyde in rice fermented by L. fermentum [Table 2].
Although Tropel and Park do not disclose wherein a residual ratio of benzaldehyde in the plant-based milk contacted with the lactic acid bacterium/bacteria is not less than 1% and not more than 50%, it would have been obvious to one of ordinary skill in the art that contacting the rice milk of Tropel with a fermenting amount of L. reuteri would have resulted in a residual ratio of benzaldehyde of 1% to 50%.
The instant claims and prior art Tropel disclose the same steps regarding contacting plant based milk with L. reuteri and can be said to have the same result. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties 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). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
The Office is not equipped to manufacture prior art products and compare them for patentability. Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Regarding Claim 20: Tropel discloses as discussed above in claim 8. Tropel discloses the fermentation taking place for a time based on the desired consistency of the product and also discloses 6 to 12 hours and 12 to 24 hours [0067].
Claims 11, 12 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Beckman et al. (WO 2010/136321) as applied to claims 8 and 10 above and in further view of Mitchell et al. (US 4,744,992).
Regarding Claim 11: Tropel as modified discloses as discussed above in claim 10. Tropel does not explicitly disclose that the rice is white or brown.
Mitchell discloses a method of making rice milk, and that the rice can be white or brown rice [abstract].
At the effective filing date of the invention it would have been obvious to formulate the rice milk of Tropel with either white or brown rice as in Mitchell depending on the desired flavor or nutritional profile.
Regarding Claims 12 and 15: Tropel as modified discloses as discussed above in claim 8. Tropel does not explicitly disclose wherein the plant-based milk is a saccharified plant-based milk (claim 12); wherein the plant-based milk is a product prepared by size reduction and liquefication of a plant material by physical crushing and/or saccharification (claim 15).
Mitchell discloses a method of making rice milk, that the rice can be white or brown rice [abstract]. Mitchell discloses grinding the rice grains and performing a liquefaction and saccharification process in the method of making the rice milk [abstract; col. 3, lines 36-48].
At the effective filing date of the invention it would have been obvious to formulation the rice milk of Tropel using saccharification as in Mitchell in order to provide rice milk without undesirable off flavors and with milk-like texture and functionality [abstract].
Response to Arguments
The 112(d) rejection of claim 18 has been withdrawn due to the amendment of the claim.
The 103(a) rejections of claims 8-11, 13, 14, 16, and 18 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Zhao “Changes in flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020 have been withdrawn due to the amendment to the claims.
The 103(a) rejections of claims 11, 12 and 15 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Park et al. “Article Distinctive Formation of Volatile Compounds in Fermented Rice Inoculated by Different Molds, Yeasts, and Lactic Acid Bacteria” Molecules 2019, and Zhao “Changes in flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020 as applied to claims 8 and 10 above and in further view of Mitchell et al. (US 4,744,992) have been withdrawn due to the amendment to the claims.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yu et al. “Flavor profiles of soymilk processed with four different processing technologies and 26 soybean cultivars grown in China” 2017 International Journal of Food Properties vol. 20, No. 53 Yu discloses the flavor profile of soymilk and that it contains benzaldehyde [abstract; S2891 Fig. 2].
Conclusion
13. 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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