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 1/12/2026. Claims 16-25 are pending in the application. Claims 1-15 were canceled.
In view of canceled claims, the previous restriction requirement is withdrawn.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 8/22/2023 was filed before the first office action on elected claims. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 16,21,22,25 and dependent claims 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.
Claim 16 recites “A composition comprising a Streptococcus thermophilus strain having a mutation that leads to a change in a phosphoglucomutase polypeptide at a position corresponding to position 164 in the amino acid sequence of SEQ ID NO 8.” Claim 25 recites a fermented product comprising the strain.
The open-ended transitional phrase “comprising” does not define the composition as the term encompasses other components as well. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Appropriate correction is required. The claim recites “having a mutation that leads to a change in a phosphoglucomutase polypeptide at a position corresponding to position 164 in the amino acid sequence of SEQ ID NO 8, but fails to define the nature of the mutation, the specific amino acid change, or objective criteria for determining positional correspondence. The functional language “leads to a change” lacks clear boundaries, and the phrase “position corresponding to position 164” is not supported by a defined identity threshold. Although dependent claim 17 recites a Pro-to-Ser substitution, and dependent claim 18 and 19 recites strain DSM 33720, 33719, 33762 and mutants or variants thereof, such limitations do not cure the indefiniteness of the independent claim which remains broad and ambiguous.
Claim 20 recites strains of Lactobacillus without further description. The scope of the composition is therefore undefined.
Claim 21 recites (a) a Streptococcus thermophilus strain selected from the group consisting of DSM 33720 and mutants or variants thereof, DSM 33719 and mutants or variants thereof, DSM 33762 and mutants or variants thereof, and any combination thereof. One of ordinary skill in the art would not be reasonably apprised of the scope of the mutants and variants.
Claim 22 recites a method of making a fermented product with the Streptococcus thermophilus strain of claim 16 fermenting an undefined substrate. However, claim 16 is directed to a composition of undefined components. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 24 is a product by process claim directed to a fermented milk produced by the method, which is undefined. A product by process claim is not limited by manipulations of process steps but by the structure implied by the steps. The structure claimed cannot be discerned, as the method claimed is indefinite.
Claim 25 recites a fermented product comprising one or more Streptococcus thermophilus strains having a mutation that leads to a change in a phosphoglucomutase polypeptide at a position corresponding to position 164 in the amino acid sequence of SEQ ID NO 8. The composition of the product is undefined and it is not known whether the product is a product made by fermentation with the claimed strains or whether they are added to a previously fermented product. The scope of the product is unclear.
Appropriate correction is required.
A meaningful comparison with prior art is possible only after the indefiniteness issues as above are resolved.
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