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 of the Response and Amendment after Non-Final Office Action filed 06/29/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. 102(a)(1) rejections of claims 1 and 5-14 over Ba et al. have been withdrawn; (2) the 35 U.S.C. 103 rejections of claims 2 and 4 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-15
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 2, 4, and 14
Amended claims: 1, 3, 9, 12, 13, and 15
New claims: None
Claims currently under consideration: 1, 3, 5-13, and 15
Currently rejected claims: 1, 3, 5-13, and 15
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3, 5-13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Ba et al. (U.S. 2019/0343138 A1) in view of Janzen et al. (WO 2011/092300 A1).
Regarding claims 1 and 3, Ba et al. discloses a method for producing a fermented milk product ([0005], [0186]) comprising (i) adding a starter culture comprising a lactic acid bacteria strain that is DSM 28910 ([0189]) to a milk base ([0007], [0204]), (ii) fermenting the starter culture and the milk base until a target pH is reached ([0008], [0204]), and (iii) adding a lactase to the milk base ([0010], [0190]), wherein the texture of the fermented milk product measured at 13°C as gel firmness by complex modulus in Pa after being stored at a temperature of 6°C for 7 days after termination of fermentation is increased by at least 5% as compared to a fermented milk product produced without addition of the lactase ([0204], [0193], [0215]).
Ba et al. does not disclose the starter culture as also comprising lactic acid bacteria strain DSM 22935.
However, Janzen et al. discloses lactic acid bacteria strain DSM 22935 (p. 6, ll. 22-24) that generates higher shear stress and/or gel stiffness than a mother strain (p. 2, ll. 1-2).
It would have been obvious to one having ordinary skill in the art to combine DSM 22935 with the fermentation mixture of Ba et al. Since Ba et al. indicates a preference for increased shear stress and gel stiffness ([0214], [0217]) and Janzen et al. discloses DSM 22935 contributes to such characteristics (p. 6, ll. 22-24; p. 2, ll. 1-2), a skilled practitioner would find the incorporation of DSM 22935 into the starter culture of Ba et al. to be obvious.
Regarding claim 5, Ba et al. discloses the milk base as having a protein level of 1-10% by weight (specifically, 4.71%) ([0188]).
Regarding claim 6, Ba et al. discloses the target pH as being the range of 3.0-6.0 ([0072], [0204]).
Regarding claim 7, Ba et al. discloses adding lactase at the start, during, or at the end of the fermentation step ([0010])
Regarding claim 8, Ba et al. discloses the lactase as being a low pH stable lactase ([0010]).
Regarding claim 9, Ba et al. discloses the texture of the fermented milk product measured at 13°C as gel firmness by complex modulus in Pa after being stored at a temperature of 6°C for 7 days after termination of fermentation is increased by at least 10% as compared to a fermented milk product produced without addition of the lactase ([0204], [0193], [0215]).
Regarding claim 10, Ba et al. discloses the pH of the fermented milk product as being maintained within a range of 0.30 pH units when stored for 7 days after termination of fermentation at a temperature of 6°C ([0204], [0205]).
Regarding claim 11, Ba et al. discloses a fermented milk product (i.e., yogurt) obtained by the method of claim 1 ([0204]).
Regarding claim 12, Ba et al. discloses a fermented milk product ([0204]) with improved texture ([0215], [0217]), wherein the product comprises a lactase ([0010], [0190], [0204]) and starter culture comprising a lactic acid bacteria strain that is DSM 28910 ([0189], [0204]).
Ba et al. does not disclose the starter culture as also comprising lactic acid bacteria strain DSM 22935.
However, Janzen et al. discloses lactic acid bacteria strain DSM 22935 (p. 6, ll. 22-24) that generates higher shear stress and/or gel stiffness than a mother strain (p. 2, ll. 1-2).
It would have been obvious to one having ordinary skill in the art to combine DSM 22935 with the fermentation mixture of Ba et al. Since Ba et al. indicates a preference for increased shear stress and gel stiffness ([0214], [0217]) and Janzen et al. discloses DSM 22935 contributes to such characteristics (p. 6, ll. 22-24; p. 2, ll. 1-2), a skilled practitioner would find the incorporation of DSM 22935 into the starter culture of Ba et al. to be obvious.
Regarding claim 13, Ba et al. discloses a method for improving texture of a fermented milk product ([0205], [0207], [0215], [0217]), comprising preparing a fermented milk product ([0204]) with a starter culture comprising a lactic acid bacteria strain that is DSM 28910 ([0189], [0204]) and a low pH stable lactase ([0190], [0010]).
Ba et al. does not disclose the starter culture as also comprising lactic acid bacteria strain DSM 22935.
However, Janzen et al. discloses lactic acid bacteria strain DSM 22935 (p. 6, ll. 22-24) that generates higher shear stress and/or gel stiffness than a mother strain (p. 2, ll. 1-2).
It would have been obvious to one having ordinary skill in the art to combine DSM 22935 with the fermentation mixture of Ba et al. Since Ba et al. indicates a preference for increased shear stress and gel stiffness ([0214], [0217]) and Janzen et al. discloses DSM 22935 contributes to such characteristics (p. 6, ll. 22-24; p. 2, ll. 1-2), a skilled practitioner would find the incorporation of DSM 22935 into the starter culture of Ba et al. to be obvious.
Regarding claim 15, Ba et al. discloses a starter culture composition comprising a lactase and one lactic acid bacteria strain that is DSM 28910 ([0186], [0189], [0190], [0204]).
Ba et al. does not disclose the composition as also comprising lactic acid bacteria strain DSM 22935.
However, Janzen et al. discloses lactic acid bacteria strain DSM 22935 (p. 6, ll. 22-24) that generates higher shear stress and/or gel stiffness than a mother strain (p. 2, ll. 1-2).
It would have been obvious to one having ordinary skill in the art to combine DSM 22935 with the composition of Ba et al. Since Ba et al. indicates a preference for increased shear stress and gel stiffness ([0214], [0217]) and Janzen et al. discloses DSM 22935 contributes to such characteristics (p. 6, ll. 22-24; p. 2, ll. 1-2), a skilled practitioner would find the incorporation of DSM 22935 into the composition of Ba et al. to be obvious.
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1 and 5-14 over Ba et al.: Applicant has overcome the 35 U.S.C. § 102(a)(1) rejections of claims 1 and 5-14 based on amendments to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 102(b) rejections have been withdrawn.
However, the claims the remain pending are newly rejected under 35 U.S.C. § 103 as detailed previously herein.
Claim Rejections - 35 U.S.C. § 103 of claims 2, 3, and 15 over Ba et al. and Janzen et al.; and claim 4 over Ba et al., Janzen et al., and Folkenberg et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that none of the cited prior art references teaches the new claim limitations (Applicant’s Remarks, p. 6, ¶1).
However, Examiner maintains that the combination of Ba et al. and Janzen et al. is adequate to deem the present claims obvious for the reasons detailed in the claim rejections.
Conclusion
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.
Claims 1, 3, 5-13, and 15 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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