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 .
Claim Status
The amended claim set filed 25 Feb 2026 is acknowledged. Claims 8-12, 14-23 are currently pending. Of those, claims 11-12, 17, and 19 are currently amended, and claims 20-23 are new. Claims 8-10 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention, there being no allowable generic or linking claim. Election was made without traverse on 13 Nov 2025. Claims 1-7, 13 are cancelled. Claims 11-12, 14-23 will be examined on the merits herein.
Response to Arguments
The Applicants’ arguments filed 25 Feb 2026 are acknowledged. For clarity, in this action, said arguments will be referred to as “Remarks” and the Non-Final Office Action mailed 25 Nov 2025 will be referred to as “NFOA.”
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 19 Nov 2025 (2x) were filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner. Signed copies of these statements are attached with this action.
Objection(s) and Rejection(s) Withdrawn
The objection to claim 11 (NFOA par. 22) is withdrawn in view of the claim amendments.
The rejections of claims 12-19 under 35 U.S.C. 112(b) (NFOA par. 23-25) are withdrawn in view of claim amendments and arguments.
The rejection of claims 11-19 under 35 U.S.C. 102(a)(1) as being anticipated by Kimoto et al. (NFOA par. 26-31) is withdrawn in view of claim amendments and arguments.
New Rejection(s)
Claim Rejections - 35 USC § 112(b)
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 20-23 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.
Claims 20 and 22 each recite “wherein the dicarboxylic acid is α-ketoglutaric acid.” These claims limit claim 11-12, respectively, which each recite “dicarboxylic acid and/or a salt thereof,” and have dependent claims 21 and 23, respectively, which each recite “the a-ketoglutaric acid and/or salt thereof”. Because claims 20 and 22 are silent about the salt, there is insufficient basis for the terms “the dicarboxylic acid” in claim 20 and 22, and the term “and/or salt thereof” in claim 21 and 23. One of ordinary skill in the art would not be able to clearly interpret the scope of the claims. For example, it is unclear whether claims 20-23 are limited to being a-ketoglutaric acid and not the salt form by the statements in claims 20 and 22, and if the salt form is included in the scope of claims 20-23, it is unclear whether the statement in claims 20 and 22 is met by any salt claimed in claims 11-12 and whether the salt is only limited to being α-ketoglutarate by the recitation of “salt thereof” in claims 21 and 23. Therefore, one of ordinary skill in the art would consider the claims indefinite. In the interest of compact prosecution, the claims will be examined with the interpretation that the dicarboxylic acid, if present, must be α-ketoglutaric acid for claims 20-23, but the salt, if present, could be any previously claimed salt (e.g. β-ketoglutarate, adipate, maleate, etc.) for claims 20 and 22 and must be α-ketoglutarate in claims 21 and 23.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 12, 14-19 and 22-23 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 12, the claim has been amended to recite “incubating the lactic acid coccus in the medium under condition suitable for growth.” The Remarks point to paragraphs [0018, 0021, and 0035] of the specification as filed. However, these sections of the specification do not provide support for the incubation step claimed. [0018] describes dicarboxylic acids and does not appear to be relevant to this claim amendment. [0021] media that can be used to cultivate lactic acid cocci, but do not describe any other aspects of the “condition suitable for growth” such as the temperature for incubation. [0035] describes one specific incubation step that is performed in the examples, but the claim includes any possible incubation protocol and is not limited to the specific incubation step used in the examples. Therefore, the new limitation is not supported by the specification as filed and is new matter. The examiner would be willing to consider other generic growth steps where the language has support in the specification, for example, perhaps there is support for language similar to claim 11.
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 11-12, 14-16, and 18-23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yvon et al. (1998; hereafter Yvon; PTO-892) as evidenced by Ruggirello et al. (2016; hereafter Ruggirello; PTO-892) and PubChem “Alpha-Ketoglutarate” (last modified 2026; PTO-892).
Regarding claims 11 and 20-21, Yvon teaches cheeses made with Lactococcus lactis starter culture are created (pg. 890 col. 2 “Cheese manufacturing”) and brine with α-ketoglutarate was added at a concentration of 3.6 mg per g of cheese (i.e. 0.36% by mass), then the cheese was incubated for 2, 4, and 6 weeks (pg. 890 col. 2 “Salting and incorporation of a-ketoglutarate and radiolabelled amino acids”). The brined cheese is a “medium containing …a salt thereof [from] … α-ketoglutaric acid”, and the incubation is a step of cultivating the lactic acid coccus. Yvon teaches that the lactococci are being cultivated and are present to convert amino acids to aroma compounds (par. bridging pg. 897-898).
Regarding claims 12, 15-16, 18-19, and 22-23, as discussed above for claim 11, Yvon teaches a step of adding both α-ketoglutarate (0.36% by mass) and Lactococcus lactis to the cheese medium. Ruggirello provides evidence that L. lactis is capable of growing in the early stage of cheese ripening after salting (see Table 1, compare “ChS” and “Ch7” values for cheeses StY, StK, and StC), so this meets the limitation of “incubating the lactic acid coccus in the medium under condition suitable for growth”. The second Ruggirello reference is cited here to show the inherent property of the Yvon incubation condition, which is proper according to MPEP 2131.01; specifically, to show that the Yvon incubation condition inherently has the claimed property.
Regarding claim 14, α-ketoglutarate is an aliphatic dicarboxylic acid with 5 carbon atoms, as evidenced by PubChem (see “Structure” and “Molecular Formula” sections on pg. 1).
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 11-12 and 14-23 are rejected under 35 U.S.C. 103 as being unpatentable over Yvon et al. (1998; hereafter Yvon; PTO-892) as evidenced by Ruggirello et al. (2016; hereafter Ruggirello; PTO-892) and PubChem “Alpha-Ketoglutarate” (last modified 2026; PTO-892) in view of Watanabe et al. (JP-2009296972-A; hereafter Watanabe; PTO-892). For Watanabe, citations are to the English machine translation attached with this action.
The teachings of Yvon were discussed above and teach all limitations of claims 11-12, 14-16, and 18-23. In particular, Yvon teaches the use of Lactococcus lactis to make cheese (pg. 890 col. 1 par. 2).
Yvon does not teach the use of Lactococcus lactis subsp. lactis JCM5805, as in claim 17.
Watanabe teaches a method of producing cheese (Title, Abstract) involving using L. lactis JCM5805 as one of the lactic bacteria (par. bridging pg. 4-5).
One of ordinary skill in the art at the time of filing would consider it prima facie obvious to modify the L. lactis cheese starting culture of Yvon by using L. lactis JCM5805 as one of the lactic bacteria as in Watanabe, thereby arriving at the claimed invention, because KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007), discloses that the simple substitution of one known element for another to obtain predictable results is obvious unless its application is beyond that person's skill. KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) also discloses that "the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results". In the instant case, the prior art (Yvon) teaches a method that only differs from the claimed invention by the substitution of a single component (i.e. substitution of the L. lactis used to start cheese culture); the substituted element (i.e. the L. lactis JCM5805) was already known and already shown to function as a bacteria that can be used to start cheese culture, therefore no change in the function of the substituted element occurred; and one of ordinary skill in the art would be capable of substituting one strain of the same bacterial species for another with a reasonable expectation of success (i.e. the substitution of the element would lead to predictable results). Therefore, the claimed invention is prima facie obvious in view of the teachings of the prior art, absent any convincing evidence to the contrary.
Conclusion
No claims are allowed.
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 AMELIA NICOLE DICKENS whose telephone number is (571)272-0381. The examiner can normally be reached M-R 8:30-4:30, and every other F 8:30-4:30 (EDT/EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dan Kolker can be reached at (571) 272-3181. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMELIA NICOLE DICKENS/Examiner, Art Unit 1645
/BAO-THUY L NGUYEN/Supervisory Patent Examiner, Art Unit 1677 April 28, 2026
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