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 .
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, 2, 6, 7, 9, 11, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Molin (US 5,190,755).
Regarding Claim 1: Molin discloses a nutrient composition made by treating cereal with enzymes and by fermentation [abstract]. Molin discloses treating the cereal with amylase (carbohydrase) and protease [abstract]. Molin discloses further fermenting the enzyme treated cereal with L. brevis, L. plantarum, and L. acidophilus [col. 2, lines 54-60]. Molin discloses oat and corn as the cereal [col. 3, lines 1-2]. It is known in the art that at least oats and corn (maize) are gluten free grains and therefore the method would have produced a gluten free product.
Regarding Claim 2: Molin discloses as discussed above in claim 1. Molin discloses oat flour [col. 2, lines 61-64].
Regarding Claims 6 and 7: Molin discloses as discussed above in claim 1. Molin discloses treating with an enzyme before fermentation [abstract].
Regarding Claim 9: Molin discloses as discussed above in claim 1. Molin discloses oat [col. 3, lines 1-2].
Regarding Claim 11: Molin discloses as discussed above in claim 1. Molin discloses further fermenting the cereal with L. brevis, L. plantarum, and L. acidophilus [col. 2, lines 54-60].
Regarding Claim 19: Molin discloses as discussed above in claim 1. Molin discloses mixing oat flour and water with the enzymes [abstract; col. 2, lines 61-64]. This is essentially oat milk as it is known in the art to make oat milk from ground oats, and water and amylase.
Claims 1, 2, 4, 6-9, 11, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Agayn (WO2017126959).
Regarding Claim 1: Agayn discloses a method of treating grains including rice, oats, maize, barley, millet, fonio [pg. 5, lines 10-15; pg. 6, lines 1-10]. Agayn discloses that the grain is used to make a ready to eat food or drink (yogurt) [pg. 8, lines 22-30; pg. 9, lines 1-3; pg. 45, lines 16-29; claim 8]. Agayn discloses fermenting the grains with lactic acid bacteria such as Lactobacillus paracasei, Lactobacillus casei, Lactobacillus rhamnosus, Lactobacillus bulgaricus, Lactobacillus delbrueckii subsp. bulgaricus, Lactobacillus acidophilus, Lactobacillus plantarum, Lactiplantibacillus plantarum, Lactobacillus brevis, Lactobacillus helveticus, and Bifidobacterium [pg. 5, lines 10-25; pg. 12, lines 13-30; Claims 1-3]. Agayn discloses that the method preferably includes treating the grain with an amylase (carbohydrase) before fermenting the grain [pg. 16, lines 24-30; pg. 17, lines 1-16]. Agayn discloses that a protease can be used in the method [pg. 51, lines 11-15]. Agayn discloses that proteases help make available starches for degradation while degrading proteins [pg. 51, lines 11-15]. It is known in the art that at least oats, rice, fonio, millet and corn (maize) are gluten free grains and therefore the method would have produced a gluten free product.
Regarding Claim 2: Agayn discloses as discussed above in claim 1. Agayn discloses that the cereal is in the form of flour [pg. 9, lines 29 and 30; pg. 48, lines 8-10].
Regarding Claim 4: Agayn discloses as discussed above in claim 1. Agayn discloses that the enzymatic treatment step occurs at temperature optimal for amylase at lower than 60°C; lower than 50°C; at 40-80°C [pg. 17, lines 5-11].
Regarding Claims 6 and 7: Agayn discloses as discussed above in claim 1. Agayn discloses that the treating step can occur before fermenting the grain [pg. 16, lines 24-30; pg. 17, lines 1-16].
Regarding Claim 8: Agayn discloses as discussed above in claim 1. Agayn discloses that the starch containing grain is heated to between 80 to 120°C [pg. 9, lines 17-19; claim 11].
Regarding Claim 9: Agayn discloses as discussed above in claim 1. Agayn discloses that the grain can be oat [pg. 5, lines 10-15; pg. 6, lines 1-2].
Regarding Claim 11: Agayn discloses as discussed above in claim 1. Agayn discloses fermenting the grains with lactic acid bacteria such as Lactobacillus paracasei, Lactobacillus casei, Lactobacillus rhamnosus, Lactobacillus bulgaricus, Lactobacillus delbrueckii subsp. bulgaricus, Lactobacillus acidophilus, Lactobacillus plantarum, Lactiplantibacillus plantarum, Lactobacillus brevis, Lactobacillus helveticus, and Bifidobacterium [pg. 5, lines 10-25; pg. 12, lines 13-30; Claims 1-3].
Regarding Claim 19: Agayn discloses as discussed above in claim 1. Agayn discloses mixing oat flour and water with the enzymes. This is essentially oat milk as it is known in the art to make oat milk from ground oats, and water and amylase.
Claim Rejections - 35 USC § 103
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 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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Agayn (WO 2017/126959).
Regarding Claim 4: Agayn discloses as discussed above in claim 1. Agayn discloses that the enzymatic treatment step occurs at temperature optimal for amylase at lower than 60°C; lower than 50°C; at 40-80°C [pg. 17, lines 5-11].
Although Agayn does not explicitly disclose from about 25 to about 60°C one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Agayn overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Agayn (WO 2017/126959) as applied to claim 1 above and in further view of Bhowmik et al. (WO 2020/157209).
Regarding Claim 5: Agayn discloses as discussed above in claim 1. Agayn discloses fermenting until a desired pH is reached, for example between 3.8 and 5.5 [pg. 50, lines 24-29].
However, Agayn does not disclose the length of time for fermentation.
Bhowmik discloses a method of making food products and beverages [pg. 21, lines 26-35]. Bhowmik discloses making an oat drink by mixing oat flour and treating with enzymes [Ex. 5, pg. 36, lines 10-20]. Bhowmik discloses fermenting for 24-48 hours with Lactobacilli and Bifidobacterium [pg. 36, lines 24-27]. Bhowmik also discloses fermenting to reach a pH of from about 5 to about 8 or a pH level lower than 5.5 [pg. 17, lines 14-19].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Agayn to include fermenting for 24-48 hours as in Bhowmik since it discloses reaching a pH level of lower than 5.5 and since Agayn discloses reaching a pH between 3.8 and 5.5. It would have been obvious to ferment the cereal grain of Agayn for 24-48 hours since it grains would be able to reach a pH level lower than 5 in that time frame.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793