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 .
Election/Restrictions
Claim 15 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/15/2026.
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 8 is 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.
Claim 8 is indefinite because it provides for two different transitional phrases, whereby the intended scope in unclear. The claim provides for “wherein the sugar is or comprises…” The claimed “is” is interpreted as being synonymous with the closed “consisting of,” whereas “comprises” is clearly defined as being an open transitional phrase. See MPEP 2111.03. By providing both an open and closed transitional phrase, it is unclear what scope the Applicant considered to be consistent with the claimed invention. In order to examine the claim on its merit, it will be assumed that the broader “comprising” defines the claimed method.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) a method of detecting exopolysaccharides (EPS) in a sample. This judicial exception is not integrated into a practical application because the claims provide for an abstract idea without providing any additional step that inform the artisan how to use to acquired data. For the analysis of the claims under 35 USC 101, the Applicant is directed to MPEP 2106, especially the flow chart provided in section III.
The claims are drawn to a method, and as such, comprise one of the statutory categories, therefore, the answer to step 1 is “yes.” The next step of the analysis asks if the claims are directed to an abstract idea; when considering how an abstract idea is interpreted, the Applicant is directed to MPEP 2106.04(a). Based upon the claim language, the only “transformation” is when the EPS is combined with the labeled and unlabel lectin, the following step, “detecting” can be viewed as a mental step under the above-mentioned section of the MPEP. Therefore, in order to identify if the claim, as whole, can be interpreted as an abstract idea, the claimed transformation must be considered well-understood, routine, and conventional activity. See MPEP 2106.05(d). When viewing the method in light of the prior art, the claimed labeled lectin can include commercially available labeled lectin. See Zhang, et al (International Dairy Journal, 46, 88-95, 2015), page 89, “Fluorescent probes” section. Furthermore, the combined lectin-binding assay, using labeled lectin, followed by lectin-mediated adsorption, using immobilized lectin (claim 10), has been previously described in the prior art. See Robitaille, et al (Journal of Dairy Science, 89, 4156-4162, 2006), page 4157, “Lectin-Binding Assay” and “Lectin-Mediated Adsorption on Agarose Beads” section (continues to page 4158). Based upon the fact that the claimed probed and immobilized lectin are already used in the prior art for methods of detecting EPS would suggest that the claimed method can be considered routine, conventional, and well-understood. Therefore, in step 2A of the 35 USC 101 analysis flow chart, the steps can be considered an abstract idea, as defined by the cited sections of the MPEP. The final step of the flow chart asks if the claims recite significantly more than the judicial exception. However, since there are no steps following the abstract idea that provide for an application of the abstract idea, the claims do not provide for significantly more.
When considering the dependent claims, there does not appear to be any methods steps that would suggest that the claimed method includes a step that amounts to significantly more than the judicial exception. As such, all of the pending claims are ineligible under 35 USC 101.
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.
(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 1-4 and 6-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Robitaille, et al (Journal of Dairy Science, 89, 4156-4162, 2006). Robitaille teaches a method of contacting an EPS with a labeled lectin, followed by a step of contacting the EPS with an immobilized lectin. Robitaille uses this method to detect EPS. See page 4156, “Abstract” section; page 4157, “Lectin-Binding Assay” and “Lectin-Mediated Adsorption on Agarose Beads” section (continues to page 4158).
With respect to claim 1, as discussed above, Robitaille appears to teach the claimed method.
With respect to claims 2-4, Robitaille teaches the lactic acid bacterium Streptococcus thermophilus. See page 4156, “Introduction” section.
With respect to claims 6-8, Robitaille teaches a number of lectins which can be attached to the probe and immobilized, wherein the lectins can be the same. Robitaille notes that these lectins can specially bind to galactose. See page 4157, “Lectin-Binding Assay” and “Lectin-Mediated Adsorption on Agarose Beads” section (continues to page 4158).
With respect to claims 9 and 10, Robitaille teaches concanavalin A. Robitaille also indicates that Ricinus communis agglutinin I (RCA) can be bound to the agarose beads, thereby achieving immobilized RCA120. See page 4157, “Lectin-Binding Assay” and “Lectin-Mediated Adsorption on Agarose Beads” section (continues to page 4158).
With respect to claim 11, Robitaille teaches that the solid carrier is washed. See page 4158, left column, 1st [incomplete] paragraph.
With respect to claims 12 and 13, Robitaille teaches fermented milk-products. See page 4156, “Introduction” section.
With respect to claim 14, Robitaille teaches the claimed detection. See page 4158, Table 1; page 4161, Figure 6.
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.
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.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Robitaille, et al (Journal of Dairy Science, 89, 4156-4162, 2006). See the discussion of Robitaille above. Robitaille only teaches the method being performed on the lactic acid bacterium S. thermophilus. However, Robitaille explicitly suggests that the method can be performed on any other lactic acid bacterium. See page 4161, right column, last paragraph. Robitaille also notes that lactobacilli are routinely applied with S. thermophilus in dairy fermentation methods. See page 4156, “Introduction” section, 1st paragraph. Based upon the fact that the claimed Lactobacillus delbrueckii subsp. bulgaricus OLL1073R-1 is a well-known dairy fermentation strain, and the fact that Robitaille places no limitations on the method, would suggest that the ordinary artisan would find it obvious to use the claimed bacterial strain. This would be obvious to the ordinary artisan, because it is clear from the art and from the general knowledge of the ordinary artisan that Robitaille could obviously be applied to any lactic acid bacterium, especially those used in the dairy fermentation arts.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Dabour, et al (International Dairy Journal, 15, 1044-1055, 2005); Zhang, et al (Microbial Biotechnology, 8, 448-461, 2014).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID W BERKE-SCHLESSEL whose telephone number is (571)270-3643. The examiner can normally be reached M-F 8AM-5:30PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie Gordon can be reached at 571-272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DAVID W BERKE-SCHLESSEL/ Primary Examiner, Art Unit 1651