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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 5-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ba et al. (U.S. 2019/0343138 A1).
Regarding claim 1, 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 fermented milk product, as compared to a fermented milk product produced without addition of the lactase or the starter culture, has improved texture ([0215], [0217]) and reduced post-acidification ([0205], [0207]).
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 5% as compared to a fermented milk product produced without addition of the lactase or the starter culture ([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]) and reduced post-acidification ([0205], [0207]), wherein the product comprises a lactase ([0010], [0190], [0204]) and starter culture comprising a lactic acid bacteria strain that is DSM 28910 ([0189], [0204]).
Regarding claim 13, Ba et al. discloses a method for improving texture and reducing post-acidification of a fermented milk product ([0205], [0207], [0215], [0217]), comprising preparing a fermented milk product ([0204]) with a starter culture ([0189]) and a low pH stable lactase ([0190], [0010]).
Regarding claim 14, Ba et al. discloses the starter culture as comprising a strain that is DSM 28910 ([0189]).
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.
Claims 2, 3, 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 2 and 3, Ba et al. discloses the starter culture as comprising a lactic acid bacteria strain DSM 28910 ([0189]).
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.
As for claim 15, Ba et al. discloses a 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.
Claim 4 is 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) and Folkenberg et al. (WO 2011/000879 A2).
Regarding claim 4, Ba et al. discloses the starter culture as comprising a lactic acid bacteria strain DSM 28910 ([0189]).
Ba et al. does not disclose the starter culture as also comprising lactic acid bacteria strains DSM 22935 or DSM 22585.
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). Folkenberg et al. discloses DSM 22585 (p. 2, l. 37 – p. 3, l. 1) that also generates higher gel stiffness (p. 2, ll. 13-15).
It would have been obvious to one having ordinary skill in the art to combine DSM 22935 and DSM 22585 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) and Folkenberg et al. discloses DSM 22585 also contributes to higher gel stiffness (p. 2, ll. 13-15, l. 37 – p. 3, l. 1), a skilled practitioner would find the incorporation of DSM 22935 and DSM 22585 into the starter culture of Ba et al. to be obvious.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793