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 .
This Office Action was written in response to the Applicants Remarks filed 12/16/25. Claims 8-16 and 18 are pending. Claim 17 has been cancelled.
Withdrawn Rejections
The 112(d) rejection of claim 17 has been withdrawn due to the cancellation of the claim.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 Da Lorn “Screening of lactic acid bacteria for their use as aromatic starters during fermentation of vegetables” Agricultural sciences. Université Bourgogne Franche-Comté, 2020. English. NNT : 2020UBFCK053 Dec 15 2020 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flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020 have been withdrawn.
The 103(a) rejections of claims 11, 12 and 15 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Da Lorn “Screening of lactic acid bacteria for their use as aromatic starters during fermentation of vegetables” Agricultural sciences. Université Bourgogne Franche-Comté, 2020. English. NNT : 2020UBFCK053 Dec 15 2020 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 (US 4,744,992) have been withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 18 recites that the amount of benzaldehyde is less than 39.6%. However, claim 1, upon which claim 18 depends, recites wherein the residual ratio of benzaldehyde is not less than 1% and not more than 50%. Since less than 39% encompasses amounts that are lower than 1%, claim 18 fails to further limit claim 1. Applicant may cancel the claims, amend the claims to place the claims in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims complies with the statutory requirements.
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, and 18 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 Zhao “Changes in flavor of fragrant rice during storage under different conditions” J Sci Food Agric vol. 100: 3435–3444 2020.
Regarding Claims 8, 13, 14: 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 does not disclose the presence of benzaldehyde at not less than 1% to not more than 50%.
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].
Zhao discloses rice as containing benzaldehyde [abstract]. Zhao discloses benzaldehyde as having a bitter taste [pg. 3439; 1st paragraph].
At the effective filing date of the invention it would have been obvious that the L. fermentum of Tropel would have been able to remove an amount of benzaldehyde present in the rice since Park discloses L. fermentum as having the ability to reduce benzaldehyde and further it would have been advantageous to remove benzaldehyde due to its bitter taste formation in rice.
Although Park does not disclose that the benzaldehyde content is not less than 1% to not more than 50%, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the level of fermentation for the attaining the preferred reduction of benzaldehyde, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Further, the amount of benzaldehyde in the fermented rice in Park is substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985),
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].
Zhao discloses white rice [pg. 3436].
However, it would have been obvious to select white of 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].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that the rice milk of Tropel would have had a residual ratio (amount remaining after the contact process) of less than 39.6% of benzaldehyde since Park discloses the fermentation as able to produce undetectable levels of benzaldehyde in rice fermented by Lactobacillus fermentum.
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 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).
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 17 has been withdrawn due to the cancellation 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 Da Lorn “Screening of lactic acid bacteria for their use as aromatic starters during fermentation of vegetables” Agricultural sciences. Université Bourgogne Franche-Comté, 2020. English. NNT : 2020UBFCK053 Dec 15 2020 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.
The 103(a) rejections of claims 11, 12 and 15 over Tropel US 20210386084 (Corresponding to Tropel WO 2020070045) in view of Da Lorn “Screening of lactic acid bacteria for their use as aromatic starters during fermentation of vegetables” Agricultural sciences. Université Bourgogne Franche-Comté, 2020. English. NNT : 2020UBFCK053 Dec 15 2020 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.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Holz-Schientinger et al. CA2897606 discloses methods for making cultured non-dairy product replicas [abstract; pg. 32, lines 27-31]. Holz discloses a decrease in the content/presence of benzaldehyde and that this results in improved flavor in the food product [pg.7, lines 21-26; pg. 32, lines 20-26]. Holz discloses the control of flavor by the addition of microbes to non-dairy milk and discloses that the microbes include Lactobacillus sp. [pg. 33, lines 1-28]. Holz discloses that the non-dairy milk starting material can be from rice, barley, amongst other cereals and plant sources [pg. 19, lines 16-30; pg. 22, lines 6-12]. Holz discloses
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