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
Receipt is acknowledged of the amendment and response filed 5/20/2026. Claims 1-12 and 14-21 are pending in the application. Claim 9 was amended and new claims 17-21 were added.
Claim Rejections - 35 USC § 103
Claim(s) 1,2,5-10 and 14-21 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 and 18, 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, 16 and 21, 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.
Regarding claim 17 the EC number created in 1999, includes the enzyme characterized by Zachariou in 1986, absent evidence to the contrary.
Regarding claim 19, a product in modified Budolfsen is expected to have a pH as claimed within 10 hours.
Regarding claim 20, Budolfsen specifically discloses that additives such as sweeteners can be added to the milk base, and Zachariou discloses effective fermentation of high sugar substrate (glucose/fructose). It would have been obvious to one of ordinary skill in the art to have added a syrup or honey to a base milk substrate in Budolfsen with a reasonable expectation of success.
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 14-21 are therefore prima facie obvious in view of the art.
Response to Arguments
Applicant’s arguments regarding the cited art have been considered, but are not persuasive. The independent claim only requires a lactic acid bacterial strain and an unspecified glucose fructose oxidoreductase.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the oxidoreductase action specified in the arguments) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
It has been previously held that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
Furthermore, the Supreme Court has made clear that an obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). That is because “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 421. It is also well established that a reference is good for all it fairly teaches a person having ordinary skill in the art, even when the teaching is a cursory mention. E.g., In re Mills, 470 F.2d 649, 651 (CCPA 1972).
In the instant case one would have applied a combination of cultures and enzymes taught in the references with a reasonable expectation of producing fermented milk/yogurt with desired properties with a reasonable expectation of success.
Claims 1-12 and 14-21 are therefore prima facie obvious in view of the art.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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