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 .
The amendment filed February 10, 2026 is acknowledged. Claims 1-8, 10, 11, 13, and 14 are pending in the application. Claims 9, 12, and 15 have been cancelled. Claims 8, 10, 11, 13, and 14 have been withdrawn from consideration (see below).
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-7 in the reply filed on February 10, 2026 is acknowledged. Claims 8, 10, 11, 13, and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claims contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claims 4-6 employ specific strains of Lacticaseibacillus rhamnosus (DSM33650 and DSM33850) and Streptococcus thermophilus (DSM33651). It appears that a deposit was made in this application as filed as noted on P67-P68 of the specification and disclosed in claims 4-6. However, it is not clear if the deposit meets all of the criteria set forth in 37 CFR 1.801 -1.809. Applicant or Applicant's representative may provide assurance of compliance with the requirements of 35 U.S.C § 112, first paragraph, in the following manner.
SUGGESTION FOR DEPOSIT OF BIOLOGICAL MATERIAL
A declaration by applicant, assignee, or applicant's agent identifying a deposit of biological material and averring the following may be sufficient to overcome an objection and rejection based on a lack of availability of biological material.
Identifies declarant.
2. States that a deposit of the material has been made in a depository affording permanence of the deposit and ready accessibility thereto by the public if a patent is granted. The depository is to be identified by name and address.
3. States that the deposited material has been accorded a specific (recited) accession number.
4. States that all restriction on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
5. States that the material has been deposited under conditions that access to the material will be available during the pendency of the patent application to one determined by the Commissioner to be entitled thereto under 37 CFR 1.14 and 35 U.S.C§ 122.
6. States that the deposited material will be maintained with all the care necessary to keep it viable and uncontaminated for a period of at least five years after the most recent request for the furnishing of a sample of the deposited microorganism, and in any case, for a period of at least thirty (30) years after the date of deposit for the enforceable life of the patent, whichever period is longer.
7. That he/she declares further that all statements made therein of his/her own knowledge are true and that all statements made on information and belief are believed to be true, and further that these statements were made with knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and that such willful false statements may jeopardize the validity of the instant patent application or any patent issuing thereon.
Alternatively, it may be averred that deposited material has been accepted for deposit under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedure (e.g. see 961 OG 21,1977) and that all restrictions on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
Additionally, the deposit must be referred to in the body of the specification and be identified by deposit (accession) number, date of deposit, name and address of the depository and the complete taxonomic description.
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.
Claims 4-6 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 4 recites “comprise or consist of” at line 3. It is unclear what is encompassed by this recitation. More specifically, it is uncertain whether the claim does or does not exclude any additional, unrecited elements. Therefore, the metes and bounds of the claim cannot be ascertained. Applicant is reminded that the transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004). The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931)
For the purpose of the examination, the recitation of “comprise or consist of” at line 3 of claim 4 (emphasis added) is interpreted as “comprise”.
Claim 4 also recites “the DSMZ” at lines 5, 7, and 9, and this claim depends upon claim 1. However, this recitation lacks antecedent basis as there is no prior recitation of DSMZ. Therefore, the scope of claim 4 is indefinite.
For the purpose of the examination, the recitation of “at the DSMZ or a mutant thereof” at lines 5, 7, and 9 of claim 4 (emphasis added) is interpreted as “or a mutant thereof”.
Claim 5 recites “comprise or consist of” at line 3. It is unclear what is encompassed by this recitation. More specifically, it is uncertain whether the claim does or does not exclude any additional, unrecited elements. Therefore, the metes and bounds of the claim cannot be ascertained. Applicant is reminded that the transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004). The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931)
For the purpose of the examination, the recitation of “comprise or consist of” at line 3 of claim 5 (emphasis added) is interpreted as “comprise”.
Claim 5 also recites “the DSMZ” at line 4, and this claim depends upon claim 1. However, this recitation lacks antecedent basis as there is no prior recitation of DSMZ. Therefore, the scope of claim 5 is indefinite.
For the purpose of the examination, the recitation of “at the DSMZ or a mutant thereof” at lines 4-5 of claim 5 (emphasis added) is interpreted as “or a mutant thereof”.
Claim 6 recites “comprises or consists of” at line 2. It is unclear what is encompassed by this recitation. More specifically, it is uncertain whether the claim does or does not exclude any additional, unrecited elements. Therefore, the metes and bounds of the claim cannot be ascertained. Applicant is reminded that the transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004). The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931)
For the purpose of the examination, the recitation of “comprises or consists of” at line 2 of claim 6 (emphasis added) is interpreted as “comprises”.
Claim 6 additionally recites “the Lacticaseibacillus rhamnosus strain” at lines 3, 7, and 11, and this claim depends upon claim 1. This recitation lacks antecedent basis as a Lacticaseibacillus rhamnosus strain has not been previously recited. Therefore, the scope of claim 6 is indefinite.
For the purpose of the examination, the recitation of “the Lacticaseibacillus rhamnosus strain” at lines 3, 7, and 11 of claim 6 (emphasis added) is interpreted as “a Lacticaseibacillus rhamnosus strain” (emphasis added).
Claim 6 further recites “the DSMZ” at lines 4-6, 8-10, and 12-14, and this claim depends upon claim 1. However, this recitation lacks antecedent basis as there is no prior recitation of DSMZ. Therefore, the scope of claim 6 is indefinite.
For the purpose of the examination, the recitation of “at the DSMZ or a mutant thereof” at lines 4-6, 8-10, and 12-14 of claim 6 (emphasis added) is interpreted as “or a mutant thereof”.
Claim 6 also recites “the Streptococcus thermophilus strain” at lines 4-5, 8-9, and 12-13, and this claim depends upon claim 1. This recitation lacks antecedent basis as a Streptococcus thermophilus strain has not been previously recited. Therefore, the scope of claim 6 is indefinite.
For the purpose of the examination, the recitation of “the Streptococcus thermophilus strain” at lines 4-5, 8-9, and 12-13 of claim 6 (emphasis added) is interpreted as “a Streptococcus thermophilus strain” (emphasis added).
Claim Rejections - 35 USC § 102
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 1-3 and 7 are rejected under 35 U.S.C. 102(a(1) as being anticipated by Masia et al., “Effect of Lactobacillus rhamnosus on Physiochemical Properties of Fermented Plant-Based Raw Materials” (hereinafter “Masia”).
With respect to claim 1, Masia relates to a method of fermenting plant-based raw materials (Abstract).
Regarding the recitation of “for producing a fermented plant-based composition having a cream flavor” in the preamble of claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method comprising: (a) fermenting a vegetal base inoculated with a starter culture to produce a fermented plant-based composition; and (b) decreasing acetaldehyde content in the fermented plant-based composition in claim 1, Masia teaches fermenting plant-based raw material with a starter culture and decreasing acetaldehyde levels in the fermented plant-based material (Abstract; P4, Preparation and Fermentation of Plant Bases; P19, Major Contributions to Fermented Dairy Flavour; and P25, Conclusions).
With respect to claim 2, Masia is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of comprising storing the fermented plant-based composition in claim 2, Masia teaches storing the fermented products (P4-P5, Preparation and Fermentation of Plant Bases).
With respect to claim 3, Masia is relied upon for the teaching of the method of claim 2 as addressed above.
Regarding the recitation of wherein (a) the acetaldehyde content is decreased in the fermented plant-based composition during storage to produce a ratio of acetaldehyde to diacetyl that is less than 0.7, 0.6, 0.5, 0.4, 0.3, 0.2, 0.1 or is 0; or (b) the acetaldehyde content is decreased and a diacetyl content is increased during storage to produce a ratio of acetaldehyde to diacetyl that is less than 0.7, 0.6, 0.5, 0.4, 0.3, 0.2, 0.1 or is 0 in claim 3, Masia teaches ratios of acetaldehyde to diacetyl in the fermented product were about 0.67, 0.36, 0.37, 0.15, 0.59, 0.25, 0.03, 0.30, 0.02, 0.01, 0.17, 0.15, 0.04, and 0.03 in the examples. The acetaldehyde content decreased, and diacetyl levels increased in some instances (Abstract; P19 and Table 12; and P25, Conclusions).
With respect to claim 7, Masia is relied upon for the teaching of the method of claim 2 as addressed above.
Regarding the recitation of wherein the fermented plant-based composition (a) is stored at about 1⁰C…or about 26⁰C; and (b) is stored for at least about 1…or 120 days; or (c) is stored for at most about 1 … or 120 days in claim 7, Masia teaches the products are stored at 6⁰C for 1, 7, 14, and 21 days (P5, 1st and 2nd paragraphs).
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Masia et al., “Effect of Lactobacillus rhamnosus on Physiochemical Properties of Fermented Plant-Based Raw Materials” (hereinafter “Masia”) as applied to claim 1 above, and in further view of Putaala et al. WO 2018050650 (hereinafter “Putaala”).
With respect to claim 4, Masia is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding wherein the starter culture comprises one or more Lacticaseibacillus rhamnosus strains, wherein the one or more Lacticaseibacillus rhamnosus strains comprise: (a) the Lacticaseibacillus rhamnosus strain deposited under accession number DSM33650 or a mutant thereof; (b) the Lacticaseibacillus rhamnosus strain deposited under accession number DSM22876 or a mutant thereof; and/or (c) the Lacticaseibacillus rhamnosus strain deposited under accession number DSM33850 or a mutant thereof in claim 4, Masia teaches the starter culture comprises Lactobacillus rhamnosus (previous name of Lacticaseibacillus rhamnosus) (Abstract; P4, Table 3).
However, Masia does not expressly disclose the L. rhamnosus strain comprises one of the specified strains in claim 4.
Putaala relates to the selection of bacteria and its use in food products. Suitable bacteria include Lactobacillus rhamnosus (previous name of Lacticaseibacillus rhamnosus), such as L. rhamnosus DSM 22876 or L. rhamnosus LGG, and a mutant thereof (P1, L9-10; P8, L6-13 and 28-29; P12, L6-11; P14, L5-6; and P32-P33, Table 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Putaala, to select L. rhamnosus DSM22876 as the L. rhamnosus used in the method of Masia with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Putaala and Masia similarly teach using L. rhamnosus in food products, Masia teaches L. rhamnosus strains, such as L. rhamnosus LGG, are used in the fermentation of foodstuff (P3), Putaala recognizes the equivalency of L. rhamnosus DSM22876 and L. rhamnosus LGG and teaches any product which can benefit from the use of the bacteria may be used such as foods (P14, L5-6; and P32-P33, Table 9), and such modification would have involved a mere selection of functionally equivalent L. rhamnosus strains recognized in the art. There would have been a reasonable expectation of success with said modification. Mere substitution of an equivalent is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Masia et al., “Effect of Lactobacillus rhamnosus on Physiochemical Properties of Fermented Plant-Based Raw Materials” (hereinafter “Masia”) as applied to claim 1 above, and in further view of Boufassa et al. WO 9927795 (hereinafter “Boufassa”) (refer to the corresponding machine translation published in English).
With respect to claim 5, Masia is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding wherein the starter culture comprises one or more Streptococcus thermophilus strains, wherein the one or more Streptococcus thermophilus strains comprise of the Streptococcus thermophilus strain deposited under accession number DSM33651 or a mutant thereof in claim 5, Masia teaches the culture comprises Streptococcus thermophilus (P4, Table 3).
However, Masia does not expressly disclose the specifically claimed strain of S. thermophilus.
Boufassa relates to fermenting products based on vegetable raw materials. Lactic acid bacteria such as Streptococcus thermophilus are used to ferment the raw materials of plant origin. The strains of S. thermophilus are selected based on their viability (P1, L15; P2, L46-49; and P3, L105 and 108).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Boufassa, to select any S. thermophilus strain, including the presently claimed S. thermophilus strain, through routine experimentation in the method of Masia with the expectation of successfully preparing a fermented plant-based product. One of ordinary skill in the art would have been motivated to do so because Boufassa and Masia similarly teach fermenting raw vegetable materials with S. thermophilus, Masia teaches lactic acid bacteria such as S. thermophilus have been used to ferment foods for preservation and organoleptic improvement (P3, middle), and Boufassa teaches certain strains of S. thermophilus retain throughout storage a high degree of viability of the ferments and organoleptic qualities intact when used to ferment vegetable raw material (P2, L46-49). There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Masia et al., “Effect of Lactobacillus rhamnosus on Physiochemical Properties of Fermented Plant-Based Raw Materials” (hereinafter “Masia”) as applied to claim 1 above, and in further view of Putaala et al. WO 2018050650 (hereinafter “Putaala”) and Boufassa et al. WO 9927795 (hereinafter “Boufassa”) (refer to the corresponding machine translation published in English).
With respect to claim 6, Masia is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding wherein the starter culture comprises of: (a) a Lacticaseibacillus rhamnosus strain deposited under accession number DSM33650 or a mutant thereof and a Streptococcus thermophilus strain deposited under accession number DSM33651 or a mutant thereof; (b) a Lacticaseibacillus rhamnosus strain deposited under accession number DSM22876 or a mutant thereof and a Streptococcus thermophilus strain deposited under accession number DSM33651 or a mutant thereof; or (c) a Lacticaseibacillus rhamnosus strain deposited under accession number DSM33850 or a mutant thereof and a Streptococcus thermophilus strain deposited under accession number DSM33651 or a mutant thereof in claim 6, Masia teaches the starter culture comprises Lactobacillus rhamnosus (previous name of Lacticaseibacillus rhamnosus) and Streptococcus thermophilus (Abstract; P4, Table 3).
However, Masia does not expressly disclose the L. rhamnosus strain comprises one of the specified strains in claim 6.
Putaala relates to the selection of bacteria and its use in food products. Suitable bacteria include Lactobacillus rhamnosus (previous name of Lacticaseibacillus rhamnosus), such as L. rhamnosus DSM 22876 or L. rhamnosus LGG, and a mutant thereof (P1, L9-10; P8, L6-13 and 28-29; P12, L6-11; P14, L5-6; and P32-P33, Table 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Putaala, to select L. rhamnosus DSM22876 as the L. rhamnosus used in the method of Masia with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Putaala and Masia similarly teach using L. rhamnosus in food products, Masia teaches L. rhamnosus strains, such as L. rhamnosus LGG, are used in the fermentation of foodstuff (P3), Putaala recognizes the equivalency of L. rhamnosus DSM22876 and L. rhamnosus LGG and teaches any product which can benefit from the use of the bacteria may be used such as foods (P14, L5-6; and P32-P33, Table 9), and such modification would have involved a mere selection of functionally equivalent L. rhamnosus strains recognized in the art. There would have been a reasonable expectation of success with said modification. Mere substitution of an equivalent is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
Masia also does not expressly disclose the specifically claimed strain of S. thermophilus.
Boufassa relates to fermenting products based on vegetable raw materials. Lactic acid bacteria such as Streptococcus thermophilus are used to ferment the raw materials of plant origin. The strains of S. thermophilus are selected based on their viability (P1, L15; P2, L46-49; and P3, L105 and 108).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Boufassa, to select any S. thermophilus strain, including the presently claimed S. thermophilus strain, through routine experimentation in the method of Masia with the expectation of successfully preparing a fermented plant-based product. One of ordinary skill in the art would have been motivated to do so because Boufassa and Masia similarly teach fermenting raw vegetable materials with S. thermophilus, Masia teaches lactic acid bacteria such as S. thermophilus have been used to ferment foods for preservation and organoleptic improvement (P3, middle), and Boufassa teaches certain strains of S. thermophilus retain throughout storage a high degree of viability of the ferments and organoleptic qualities intact when used to ferment vegetable raw material (P2, L46-49). There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Pertinent Prior Art
The prior art made of record is considered pertinent to Applicant’s disclosure:
Sanders et al., “New names for important probiotic Lactobacillus species” (hereinafter “Sanders”)-Sanders teaches Lacticaseibacillus rhamnosus was formerly known as Lactobacillus rhamnosus (P3, 1st and 2nd paragraphs; P4, bottom; and P5, Table, 3rd entry).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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