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 .
DETAILED ACTION
Claims 1-20 are pending in the current application.
Claims 8 and 9 are withdrawn from consideration (see discussion, below).
Claims 1-7 and 10-20 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 1-7 and 10-20 in the reply filed on February 25th, 2026 is acknowledged.
Claims 8 and 9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on February 25th, 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.
Claims 7 and 16-20 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Regarding claims 7 and 16-20: The phrase "sucrose-based" renders the claims indefinite, because it is not clear what sucrose-based sweetness level means. Neither the claims nor the specification precisely define what sweetener composition is considered to rendered sweetness level that is “sucrose-based”, one of ordinary skills in the art would read the phrase with more than one reasonable interpretation, and thus such skilled artisan would not be reasonably apprised of its meaning. Applicant is urged to correct and/or to clarify the metes and bounds of the phrase and the claim as recited. Note: for purposes of examination, "sucrose-based sweetness level” is interpreted to mean sucrose added.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-5 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over NPL “KIRIN iMUSE Yogurt & Lemon Flavored Drink” (‘iMuse’) (from: https://www.kirinholdings.com/en/newsroom/release/2019/0913_01.html) in view of NPL Fatta Del Bosco et al., “Essential Oils in Citrus” (from The Citrus Genome, Chapter 12, March 19th 2020). Evidenced by NPL “Mass of a Bacterium - The Physics Factbook” (‘Hypertextbook’) (from: https://hypertextbook.com/facts/2003/LouisSiu.shtml#:~:text=A%20typical%20mass%20of%20a,hot%20and%20extremely%20cold%20climates) and NPL “FAO/INFOODS Density Database version 1.0” (‘FAO’) (from https://www.fao.org/fileadmin/templates/food_composition/documents/upload/Density_databse_v1_final.pdf).
Note: the claims are drawn to a lemon flavored yogurt drink, which appears to be disclosed in Applicant’s press release NPL “KIRIN iMuse Yogurt & Lemon Flavored Drink” from September 17th 2019.
Regarding claims 1-5 and 10-12: iMuse discloses a packaged lemon flavored yogurt drink (see iMuse page 1) that comprises 100 billion Lactococcus lactis bacteria and lemon flavor in 280ml bottles (see iMuse page 2). Given the fact a bacterium weights about 1 picogram (i.e., 1E-12 grams) (see Hypertextbook page 1), 100 billion bacteria (1E11) weights about 0.1grams. Given the fact the density of the yogurt beverage is slightly higher than 1g/ml (see FAO page 3), 280ml of the yogurt beverage comprises about 0.036% by weight of lactic acid bacterium (0.1/280 =0.036%), which reads on the claimed relative content of lactic acid bacteria.
As to the claimed flavorants, limonene, octanal and citral: iMuse discloses a packaged lemon flavored yogurt drink (see iMuse page 1), but fails to disclose the specific flavorant combination to render the lemon flavor; However, Fatta Del Bosco discloses that citrus flavorants can be used to provide citrus flavor and scent to food, cosmetics and pharmaceuticals (see Fatta Del Bosco §12.1). Fatta Del Bosco also discloses that Limonene, octanal, and citral are key volatile compounds defining citrus aroma and flavor, with limonene providing the base note (orange/lemon), octanal adding sweet/citrus notes, and citral offering sharp lemon notes (see Fatta Del Bosco §12.4). Therefore, it would have been obvious to a skilled artisan to have modified iMuse and to have used limonene, octanal and citral to attain a yogurt drink with the desired lemon flavor, and thus arrive at the claimed limitations.
As to the relative contents of the limonene, octanal and citral recited in claims 2-4: Given the fact Limonene, octanal, and citral are key volatile compounds defining citrus aroma and flavor, with limonene providing the base note (orange/lemon), octanal adding sweet/citrus notes, and citral offering sharp lemon notes (see Fatta Del Bosco §12.4), and since adjusting the relative contents of flavoring agents to attain desire flavor is well known, it would have been obvious to a skilled artisan to adjust the relative contents of the flavorants, limonene, octanal and citral, in order to attain the desired lemon/citrus flavor, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Claims 6 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over iMuse and Fatta Del Bosco as applied to claims 1-5 and 10-12 above, and further in view of NPL Shibata et al., “Lactococcus lactis JCM5805 activates anti-viral immunity and reduces symptoms of common cold and influenza in healthy adults a randomized controlled trial” (from Journal of Functional Foods 24 (2016) 492-500).
Regarding claims 6 and 13-15: iMuse discloses a packaged lemon flavored yogurt drink (see iMuse page 1) that comprises 100 billion Lactococcus lactis bacteria and lemon flavor in 280ml bottles (see iMuse page 2), but fails to disclose JCM5805 strain; However, Shibata discloses using JCM5805 Lactococcus lactis strain in foods, such as yogurt, to provide the consumer with improve anti-viral immunity (see Shibata Introduction). Therefore it would have been obvious to a skilled artisan at the time the application was filed to have modified iMuse and to have used the JCM5805 Lactococcus lactis strain in the yogurt drink, in order to provide the consumers with improved anti-viral immunity, and thus arrive at the claimed limitations.
Claims 7 and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over iMuse and Fatta Del Bosco as applied to claims 1-5 and 10-12 above, and further in view of NPL “YoGusto Yogurt, Natural” (‘YoGusto’) (from www.publix.com).Regarding claims 7 and 16-19: iMuse discloses a packaged lemon flavored yogurt drink (see iMuse page 1) that comprises 100 billion Lactococcus lactis bacteria and lemon flavor in 280ml bottles (see iMuse page 2), but fails to disclose the absence or presence of any sweeteners; However, YoGusto discloses a packaged yogurt drink without any added sweeteners was well known and conventional at the time the application was filed (see YoGusto pages 1 and 2). Therefore, it would have been obvious to a skilled artisan who desires a yogurt drink without any added sweeteners at the time the application was filed to have modified iMuse and to have not added any sweeteners to the packaged yogurt drink and thus arrive at the claimed limitations.
Conclusion
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
NPL Gonzales-Mas et al., “Volatile Compounds in Citrus Essential Oils: A Comprehensive Review” (from Frontiers in Plant Science February 2019, Volume 10, Article 12) - discussed the citrus flavorants and their use in foods and other compositions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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