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 Claims
Claims 1-4, 8, 11 and 13-19 are pending in this application. Claims 1-4, 8 and 16 are under examination. Claims 11, 13-15 and 17-19 are withdrawn. Any objections or rejections not repeated below have been withdrawn.
Examiner’s Note
Claims 11, 13-15 and 17-19 have been withdrawn. However, the Claims Listing document submitting amendments to the claims, dated 07/20/2026, has the claim identifier for these withdrawn claims as “(Previously Presented)” or “(Currently Amended).” The claim identifier for withdrawn claims 11, 13-15 and 17-19 should be updated to “(Withdrawn).” See MPEP 714. Appropriate correction is required.
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 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 1-4, 8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Zourari et al. WO 2013030280 in view of Henriksson US 20130142908.
Regarding claim 1-3 and 8, Zourari teaches a method for producing a thermophilic fermented dairy composition having a cream flavor, as required by claim 1 (process for manufacturing fermented milk products capable of producing diacetyl at thermophilic temperature, pg. 1 L4-6; flavor notes described as creamy, pg. 10 L5-6).
Zourari discloses the method comprises (a) fermenting a milk substrate inoculated with a starter culture to produce a thermophilic fermented dairy composition, as required by claim 1 (making a fermented milk by adding one or more thermophilic bacterial strains and carrying out the fermentation process, pg. 3 L18-24, claim 1). Zourari teaches fermenting at a temperature of 37-45 °C (pg. 3 L23-24, claim 1). This is within the claim 1 range of above about 33 °C.
Zourari teaches (b) decreasing an acetaldehyde content and increasing a diacetyl content in the thermophilic fermented dairy composition. This is shown in Example 2, Table 2, Column CBS 130345 of Zourari, where the composition has been stored at 9°C for 1 day, 1 week and 2 weeks. Zourari discloses the diacetyl at 1 day of storage is 19 mg/kg and after 1 week of storage is 28 mg/kg, and the acetaldehyde at 1 day of storage is 12 mg/kg and after 1 week of storage is 11 mg/kg (pg. 9, Lines 1-10 and Table 2, Column CBS 1030345, Row Diacetyl). Thus, Zourari teaches decreasing an acetaldehyde content and increasing a diacetyl content in the composition, as required by claim 1, as well as storing the thermophilic fermented dairy composition, as required by claim 2, since the composition is stored from 1 day, 1 week and 2 weeks (pg. 9, Lines 1-10 and Table 2, Column CBS 1030345, Row Diacetyl). Example 2 of Zourari also teaches wherein the acetaldehyde content is decreased and the diacetyl content is increased in the thermophilic fermented dairy composition during storage, as required by claim 3, and teaches wherein the thermophilic fermented dairy composition (a) is stored at 9 °C and (b) is stored for at least about 1 day and 1 week, as required by claim 8 (pg. 9, L1-10 and Table 2, Column CBS 1030345, Row Diacetyl). This is within the claim 8 range of storage temperature of about 9 °C and storage time of at least about 1 day.
Zourari teaches wherein the starter culture comprises (a) adding one or more thermophilic lactic acid bacterial strains to milk (pg. 3 L18-20). However, Zourari does not state that the starter culture comprises Lacticaseibacillus rhamnosus strains.
Henriksson teaches a method of improvement of the survival rate of probiotic strains by adding Lactobacillus strains that enhance the survival rate of probiotic strains in food [0001]. Henriksson states that live probiotic cultures are fermented in dairy products such as yogurt, but that during storage of the fermented dairy product, the survival rate of the probiotic decreases in the product [0003]. Henriksson teaches wherein the starter culture comprises Lactobacillus strains such as Lacticaseibacillus rhamnosus (Lactobacillus rhamnosus), wherein the Lacticaseibacillus rhamnosus strain comprises (c) the strain deposited under accession number DSM22193 in a fermented dairy product where the medium is milk [0019], [0021], [0047-0049].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zourari in view of Henriksson to incorporate the teachings of Henriksson by having the starter culture comprise Lacticaseibacillus rhamnosus strain DSM22193 because this strain enhances the survival rate of probiotic strains in food, as recognized by Henriksson [0001], [0003], [0006].
Zourari teaches wherein the starter culture comprises Streptococcus thermophilus strains (thermophilic lactic acid bacterial strain of Streptococcus thermophilus is used; pg. 4 L11-15, claim 3). Zourari doesn’t identify specific strains of Streptococcus thermophilus. However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zourari in view of Henriksson to use any strain of Streptococcus thermophilus in the starter culture, including the claimed (a)-(c) Streptococcus thermophilus strains, with the method as taught by Zourari, in the absence of convincing arguments or evidence of unexpected results. See MPEP 2144.08.
Regarding claim 4, modified Zourari teaches the method of claim 1, as described above. Zourari teaches (a) the acetaldehyde content is decreased after 1 week of storage to 11 mg/kg and the diacetyl content is increased to 28 mg/kg, to produce a ratio of acetaldehyde to diacetyl that is 11:28 or a ratio of about 0.4 (pg. 9, Lines 1-10 and Table 2, Column CBS 1030345). This is within the claimed ratio of less than 1. Zourari teaches the diacetyl content is increased to 28 mg/kg or 28 ppm (pg. 9 Table 2, Column CBS 1030345, Row Diacetyl 1 week). This is within the claimed range of diacetyl content increased to at least 1 ppm.
Regarding claim 16, modified Zourari discloses the method of claim 1, as described above. Zourari teaches wherein the milk substrate is a cow milk (the milk used is 4% skimmed cow milk; pg. 8 L15-17 Example 2).
Response to Declaration of Biological Culture Deposit
The declaration of biological culture deposit pursuant to 37 CFT 1.804, filed 07/20/2026, is sufficient to overcome the 112(a) biological deposit rejection of claims 5-7, which claims have been incorporated into amended claim 1. The 112(a) biological deposit rejection of claims 5-7 has been withdrawn.
Response to Arguments
Claim Rejection under 35 U.S.C 102
Applicant’s arguments, see pg. 7, filed 07/20/2026, with respect to claims 1-4, 6, 8 and 16 have been fully considered and are persuasive. The 35 U.S.C. 102(a)(1) rejection of claims 1-4, 6, 8 and 16 has been withdrawn.
Claim Rejection under 35 U.S.C 103
Applicant's arguments filed 07/20/2026, with regards to the 35 U.S.C 103 rejection, have been fully considered but they are not persuasive.
Applicant argues, on pgs. 7-9 of their remarks, that neither Zourari or Henriksson alone or in combination teach or suggest the specific strain combination of L. rhamnosus and S. thermophilus as claimed. Applicant states there is no motivation to select these claimed deposited strains from the broad universe of S. thermophilus strains. Applicant explains that the claims relate to a link between experienced cream flavor in a dairy product fermented with a combination of L. rhamnosus and S. thermophilus strains and the decrease in acetaldehyde and increase in diacetyl content in the fermented dairy product. Applicant states that Zourari discloses only general thermophilic starter cultures, such as S. thermophilus, without identifying or suggesting any of the claimed deposited strains, and that Henriksson fails to remedy this deficiency. However, the Office disagrees for the following reasons.
As explained by the applicant, the claims relate to an experienced cream flavor in a fermented dairy product. Applicant identified that either an increase in diacetyl content, a decrease in acetaldehyde content, or both are needed to increase the cream flavor in the fermented dairy product. Zourari discloses decreasing the acetaldehyde content and increasing the diacetyl content. Zourari even produces the claimed ratio of these two compounds and the claimed amount of diacetyl, see rejection for claim 4 above.
Figure 4 of the present disclosure shows diacetyl and acetaldehyde content in fermented diluted milk after 1 day (Fig. 4A), 14 days (Fig. 4B) and after 28 days (Fig. 4C). The first sample in these figures do not comprise any L. rhamnosus strains but only comprises one of the claimed S. thermophilus strains, specifically DSM33849. This sample from day 1 to day 14 of fermentation showed an increase in acetaldehyde content, instead of a decrease, while the amount of diacetyl stayed about the same. Upon reviewing these figures, it appears that the claimed L. rhamnosus strains and not the claimed S. thermophilus strains are responsible for the increase in diacetyl content and decrease in acetaldehyde content. While the S. thermophilus strains may influence or work with the L. rhamnosus strains to produce the desired cream flavor, from the data presented it is believed that any S. thermophilus strain in combination with the claimed L. rhamnosus strains would have the same effect. Thus, as discussed in the above rejection, Zourari teaches the starter culture comprises Streptococcus thermophilus strains (thermophilic lactic acid bacterial strain of Streptococcus thermophilus is used; pg. 4 L11-15, claim 3). Zourari doesn’t identify specific strains of Streptococcus thermophilus. However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zourari in view of Henriksson to use any strain of Streptococcus thermophilus in the starter culture, including the claimed (a)-(c) Streptococcus thermophilus strains, with the method as taught by Zourari, in the absence of convincing arguments or evidence of unexpected results. See MPEP 2144.08.
Additionally, a person of ordinary skill in the art would have been motivated to modify Zourari in view of Henriksson to incorporate the teachings of Henriksson by having the starter culture comprise Lacticaseibacillus rhamnosus strain DSM22193 because this strain enhances the survival rate of probiotic strains in food, as recognized by Henriksson [0001], [0003], [0006].
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE GERLA whose telephone number is (571)270-0904. The examiner can normally be reached Mon.-Wed. and Fri. 7-12 pm; Th. 7-2pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
Prosecution Insights