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 .
This office action was written in response to the Applicant’s Remarks filed 9/10/26. Claims 1, 2, 6-9, 11, 19 and 21 are pending and have been examined on the merits. Claims 4 and 20 have been cancelled. Claims 3, 5, 10, 12-18 were previously cancelled. Claim 21 is new.
The Examiner notes that prosecution was reopened due to the Bhowmik reference used in the previous rejection of claim 4. Bhowmik was not prior art due to being inventor owned reference published less than one year before the filing date of the invention.
Claim Objections
Claim 21 is objected to under 37 CFR 1.75 as being a substantial duplicate of claim 1. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Withdrawn Rejections
The 103(a) rejections of claims 1, 2, 4, 6-9, 11, and 19 over Agayn (WO 2017/126959) and in further view of Bhowmik et al. (WO 2020/157209).
The 103(a) rejection of claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Agayn (WO 2017/126959), Bhowmik et al. (WO 2020/157209) and DeSimone et al. (US 2008/0131556) has been withdrawn due to the cancellation of the claim.
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, 2, 6-9, 11, 19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Molin (US 5,190,755).
Regarding Claims 1 and 21: 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. Molin discloses fermenting for about 20 hours [col. 4, lines 5-9]. Molin discloses enzymatic treatment at 50°C [claim 1].
However, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the fermenting time for reducing gluten content, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
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, 6-9, 11, 19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Agayn (WO 2017/126959) and in further view of Mok et al. KR 930005199 June 1993.
Regarding Claims 1 and 21: 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. 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]. 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.
Mok discloses a method of making rice yogurt [abstract]. Mok discloses fermenting with L. bulgaricus for 15 to 30 hours [abstract]. Mok also discloses fermenting with L. acidophilus, L. plantarum [pg. 3]. Mok discloses the formation of desirable flavors and taste [abstract]. Mok discloses achieving a described level of acidity [pg. 3].
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 15-30 hours as in Mok since it discloses fermenting with lactic acid bacteria reaching a desired level or sourness and acidity. It would have been obvious to ferment the cereal grain of Agayn for 15-30 hours since it’s grains would be able to reach a high level of acidity in that time frame.
Alternatively, 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.
Alternatively, although Mok does not explicitly disclose from about 1 to about 2 days 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 Mok overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
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 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.
Response to Arguments
The 103(a) rejections of claims 1, 2, 4, 6-9, 11, and 19 over Agayn (WO 2017/126959) and in further view of Bhowmik et al. (WO 2020/157209).
The 103(a) rejection of claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Agayn (WO 2017/126959), Bhowmik et al. (WO 2020/157209) and DeSimone et al. (US 2008/0131556) has been withdrawn due to the cancellation of the claim.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Oikarinen et al. (FI 20176171) pub June 23, 2019 Oikarinen discloses a method of making a plant based food or drinkable product [abstract]. Oikarinen discloses treatment of enzymes at 5 to 95°C; and 50 to 70°C [pg. 7, lines 20-27; pg. 8, lines 7 and 8]. Oikarinen discloses that the plant based material can be derived from oats and corn [pg. 10, lines 12-16].
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
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