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 .
Status of the Application
Claims 1-12 and 14-16 filed in a preliminary amendment on 1/24/2024 are pending in the application.
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(s) 1,2,5-10 and 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Budolfsen (US20030113405A1) in view of Zachariou et al (J. Bacteriology 167 3(1): 863-869 1986).
Regarding claim 1, 2,6,7 and 14, Budolfsen discloses a process for production of a fermented milk product comprising providing a milk base comprising lactose fermenting with lactic acid bacteria, adding an oxidase of fungal origin prior or during fermentation for the conversion of lactose to lactobionic acid. The product has improved taste (less sour) and reduced firmness with better mouthfeel (abstract, [0011] [0036]).
Budolfsen does not specifically disclose glucose-fructose oxidoreductase (GFOR) enzyme. Zachariou (abstract) discloses a glucose fructose oxidase reductase enzyme that catalyzes glucose conversion to gluconic acid and converts fructose to sorbitol and does not require molecular oxygen for the conversion unlike oxidases. One of ordinary skill in the art looking to obtain the functional benefits of oxidase addition without oxygen/peroxide issues associated with oxidases would have considered substituting the oxidase in Budolfsen and providing glucose and fructose substrate under suitable conditions to achieve controlled acidification in lactic fermentation and a desired taste and nutritional profile (dietetic sugars in place of caloric sugars) profile in a milk base product with a reasonable expectation of success.
Regarding claim 5, the claimed physical forms of enzyme addition are conventionally used in the industry, and their use does not provide a patentable distinction.
Regarding claim 8, modified Budolfsen as above is directed to providing a milk base comprising lactose, glucose and fructose; and - fermenting the milk base in the presence of a lactic acid bacterial strain and a glucose-fructose oxidoreductase enzyme, wherein the lactose in the milk base is converted by the lactic acid bacterial strain whilst simultaneously the glucose and the fructose are converted by the glucose- fructose oxidoreductase enzyme.
Regarding claim 9, Budolfsen discloses at examples of starter cultures to be used according to the invention are lactic starter cultures, such as yoghurt cultures (Lactobacillus delbrueckii subsp. bulgaricus and Streptococcus thermophilus. Others include Lactobacillus acidophilus, Lactobacillus lactis, and bifidobacteria), cheese cultures (Lactococcus spp. Lactobacillus spp. Streptococcus spp.)[0033]
Regarding claim 10 modified Budolfsen uses a starter culture comprising a lactic acid bacterial strain; and a glucose-fructose oxidoreductase enzyme, as discussed above.
Regarding claim 15 and 16, a fermented milk product in modified Budolfsen is expected to comprise lactic acid, gluconic acid and sorbitol, wherein the gluconic acid and the sorbitol are present in a molar ratio of gluconic acid to sorbitol in the broad range from equal to or more than 10:1 to equal to or less than 1:10. and wherein - the gluconic acid and the lactic acid are present in a weight ratio of gluconic acid to lactic acid in the broad range from equal to or more than 10:1 to equal to or less than 1:10; and/or - the gluconic acid and sorbitol are present in a weight ratio of gluconic acid to sorbitol in the range from equal to or more than 10:1 to equal to or less than 1:10, as claimed, as the process is optimizable to obtain desired characteristics in a fermented product.
Claim 3, 4, 11 and 12 are rejected under 35 USC 103 as being unpatentable over Budolfsen in view of Zachariou as applied to claim 1 above and further in view of Aziz et al. (2011) cited in an IDS.
Regarding claims 3 and 4, modified Budolfsen would include glucose and fructose and GFOR. Aziz discloses transforming pineapple juice sugars into dietetic derivatives by using a cell free oxidoreductase from Zymomonas mobilis together with commercial invertase (abstract) . It would have been obvious to one of ordinary skill in the art to have considered adding sucrose and invertase to produce the substrate (glucose and sorbitol) needed for GFOR conversion of sugars to gluconic acid and sorbitol, before and during fermentation, with a reasonable expectation of success.
Regarding claim 11, the starter culture in modified Budolfsen in view of Aziz further comprises invertase enzyme, as discussed above.
Regarding claim 12 a kit of parts comprising enzymes and lactic acid bacterial strain is an obvious system to deliver a starter comprising enzyme and culture for use in making fermented milk base products prepared by the method in modified Budolfsen. One of ordinary skill in the art would logically consider frozen pellets as a delivery system to maintain viability and activity of the culture and enzymes in storage.
Claims 1-12 and 14-16 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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, Emily Le can be reached at (571) 272-0903. 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.
/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
Prosecution Insights