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 .
Election/Restrictions
Applicant’s election without traverse of claims 19, 22-23, 25-31 and 34-40 in the reply filed on 19 March 2026 is acknowledged. Claims 1, 16 and 17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Status of the Claims
Claims 19, 22-23, 25-31 and 34-43 are pending. Claims 1-18, 20-21, 24 and 32-33 have been canceled. Claims 41-43 are new.
Claim Objections
Claim 19, 22, 23, 39, 40, 41 and 42 are objected to because of the following informalities:
Throughout claims 19, 22, 23, 40 and 41: Bacillus subtilis natto should be italicized.
Claim 19,line 6: delete the “and” before “nuts”.
Claim 39, line 2: Pisum, Cicer and Phaseolus should be italicized.
Claim 40, step (I)(a): Pisum, Cicer and Phaseolus should be italicized.
Claim 40, step (I)(d): Aspergillus oryzae and Aspergillus kawachii should be italicized.
Claim 42, step (I)(a): Pisum, Cicer and Phaseolus should be italicized.
Claim 42, step (I)(d): Aspergillus oryzae and Aspergillus kawachii should be italicized.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 19, 22-23, 25-31 and 34-43 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 19, step (III) recites “a step of fermenting the composition of (II) at a product temperature of…” It is unclear what a product temperature is as opposed to the temperature of the composition during fermentation. Are they the same temperatures, or different? For the purpose of examination, claim 19, step (III) will be interpreted as: a step of fermenting the composition of (II) at a temperature of…
Claim 25, line 3 recites “a step of heating a product” without specifying which product is being heated. Since the step of heating a product is recited as taking place after the step (III), for the purpose of examination, a product of claim 25 will be interpreted as the product resulting from the method of claim 19, step (III).
Claim 25, lines 3-4, recites “a step of heating a product to a temperature higher than an average fermentation temperature of the step (III).” It is unclear what range of temperatures are encompassed by “a temperature higher than an average fermentation temperature of the step (III).” Step (III) recites a fermentation temperature of 30-60oC. Is the temperature higher than an average fermentation temperature of the step (III) higher than 60oC? Higher than 30oC? Or between 30-60oC? Or some smaller temperature range? For the purpose of examination, claim 25 will be interpreted as heating the product to the temperature recited in claim 25, 55-62oC.
Claim 25, lines 4-5, recites “performing fermentation at a product temperature of 55°C or more and 62°C or less.” It is unclear what a product temperature is as opposed to the temperature of the composition during fermentation. Are they the same temperatures, or different? For the purpose of examination, claim 25 will be interpreted as: performing fermentation at a temperature of 55°C or more and 62°C or less.
Claim 40, step (I)(f), line 2; recites the phrase “after koji-made.” It is unclear what is meant by the phrase “after koji-made.” The instant specification recites in paragraph [0040]: The koji in the present invention may be a koji mold in a vegetative cell state (so-called inoculum) usually used in the production of bean koji, or may be a koji in a spore state in which the α-amylase activity is increased to a predetermined rate or more by the koji-making, and it is preferable to use a koji in a spore state in which the α-amylase activity and/or the cellulase activity is increased to a predetermined rate or more by the koji-making…That is, it is preferable to use not koji molds in a vegetative cell state (so-called inoculum) which are usually used in the production of bean koji but koji molds in a spore state in which the α-amylase activity and/or the cellulase activity is increased to a predetermined rate or more by koji-making.
For the purpose of examination, “after koji-made” will be interpreted as koji mold in a spore state.
Claim 40, step (I)(h), recites “a step of adjusting a dry basis moisture content of the edible plants of (a) to 40% by mass or more, by the immersing and the steaming or the immersing and the boiling of the step (g).” While step (g) recites a dry basis moisture content of the edible plant of 50 % by mass or more. It is unclear which moisture content is desired after the process step of (I)(h). Should the dry basis moisture content of the edible plant be 50% or more by mass of 40% or more by mass? For the purpose of examination, step (I)(h) will be interpreted as requiring 50% or more by mass moisture on a dry basis.
Claim 40, step (II)(k), recites “a step of mixing the koji powder having an a-amylase activity to satisfy the following requirements, after the step (i), (j).” It is unclear if the step of the mixing the koji powder of step (II)(k) takes place after step (i) or step (j) or if step (II)(k) must take place after both steps (i) and (j) are complete. For the purpose of examination, claim 40, step (II)(k) will be interpreted as taking place after either step (i) or step (j) is completed.
Claim 40, step (IV) recites “a step of heating a product” without specifying which product is being heated. Since the step of heating a product is recited as taking place after the step (III), for the purpose of examination, a product of claim 40 will be interpreted as the product resulting from the method of claim 40, step (III).
Claim 40, step (IV) recites “a step of heating a product to a temperature higher than an average fermentation temperature of the step (III).” It is unclear what range of temperatures are encompassed by “a temperature higher than an average fermentation temperature of the step (III).” Step (III) recites a fermentation temperature of 30-60oC. Is the temperature higher than an average fermentation temperature of the step (III) higher than 60oC? Higher than 30oC? Or between 30-60oC? Or some smaller temperature range? For the purpose of examination, claim 40, step (IV), will be interpreted as heating the product to the temperature recited in claim 40, step (IV), 55-62oC.
Claim 40, step (IV) recites “performing fermentation at a product temperature of 55°C or more and 62°C or less.” It is unclear what a product temperature is as opposed to the temperature of the composition during fermentation. Are they the same temperatures, or different? For the purpose of examination, claim 40 will be interpreted as: performing fermentation at a temperature of 55°C or more and 62°C or less.
Claim 42, step (I)(f), line 2; recites the phrase “after koji-made.” It is unclear what is meant by the phrase “after koji-made.” The instant specification recites in paragraph [0040]: The koji in the present invention may be a koji mold in a vegetative cell state (so-called inoculum) usually used in the production of bean koji, or may be a koji in a spore state in which the α-amylase activity is increased to a predetermined rate or more by the koji-making, and it is preferable to use a koji in a spore state in which the α-amylase activity and/or the cellulase activity is increased to a predetermined rate or more by the koji-making…That is, it is preferable to use not koji molds in a vegetative cell state (so-called inoculum) which are usually used in the production of bean koji but koji molds in a spore state in which the α-amylase activity and/or the cellulase activity is increased to a predetermined rate or more by koji-making.
For the purpose of examination, “after koji-made” will be interpreted as koji mold in a spore state with increased α-amylase or cellulase activity.
Claim 42, step (I)(h), recites “a step of adjusting a dry basis moisture content of the edible plants of (a) to 40% by mass or more, by the immersing and the steaming or the immersing and the boiling of the step (g).” While step (g) recites a dry basis moisture content of the edible plant of 50 % by mass or more. It is unclear which moisture content is desired after the process step of (I)(h). Should the dry basis moisture content of the edible plant be 50% or more by mass of 40% or more by mass? For the purpose of examination, step (I)(h) will be interpreted as requiring 50% or more by mass moisture on a dry basis.
Claim 42, step (IV) recites “a step of heating a product” without specifying which product is being heated. Since the step of heating a product is recited as taking place after the step (III), for the purpose of examination, a product of claim 42 will be interpreted as the product resulting from the method of claim 42, step (III).
Claim 42, step (IV) recites “a step of heating a product to a temperature higher than an average fermentation temperature of the step (III).” It is unclear what range of temperatures are encompassed by “a temperature higher than an average fermentation temperature of the step (III).” Step (III) recites a fermentation temperature of 30-60oC. Is the temperature higher than an average fermentation temperature of the step (III) higher than 60oC? Higher than 30oC? Or between 30-60oC? Or some smaller temperature range? For the purpose of examination, claim 42, step (IV), will be interpreted as heating the product to the temperature recited in claim 42, step (IV), 55-62oC.
Claim 42, step (IV) recites “performing fermentation at a product temperature of 55°C or more and 62°C or less.” It is unclear what a product temperature is as opposed to the temperature of the composition during fermentation. Are they the same temperatures, or different? For the purpose of examination, claim 42 will be interpreted as: performing fermentation at a temperature of 55°C or more and 62°C or less.
Claims 22-23, 26-31 and 34-39 are rejected here because they depend from claim 19.
Claim 41 is rejected here because it depends from claim 40.
Claim 43 is rejected here because it depends from claim 42.
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.
Claims 19, 25, 26, 28, 31 and 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569). All citations to foreign documents refer to the English translation.
Regarding claims 19 and 39, Hashimoto discloses a method for making a brewed product obtained my fermentation by adding koji to boiled and/or steamed beans (solid raw material) [10]. Hashimoto discloses the beans may be soybeans, peas (Pisum), beans (Phaseolus), red beans and so on. The koji may be rice koji or wheat koji and the koji may be a solid [26].
Hashimoto does not require salt as an ingredient, therefore the fermented product of Hashimoto meets the claim limitation of “wherein the fermented food contains 1000mg or less of salt per 100 g of the fermented food.”
Hashimoto discloses the fermentation takes place at about 50oC for 6-12 hours [28], which fall within the claimed ranges of 30-60oC and 5-23 hours.
Hashimoto does not disclose the koji is a powder nor the α-amylase activity of the koji.
Yamashita, in the field of koji mold, discloses raw koji can be dried in order to enable long-term storage and they pores have a light fine powder characteristic (p8, section 3.1.6. Drying). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the dry, powder koji of Yamashita as the koji of Hashimoto since the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the dried, powder koji of Yamashita serves the intended use in Hashimoto of inoculating the beans with the koji.
Additionally Yamashita discloses koji has α-amylase activity (p13, Table 1 and para 1).
Regarding claim 25, Hashimoto discloses fermentation takes place at about 50oC, 70oC or 60oC for 6-12 hours [28]. Hashimoto does not disclose a second fermentation step. However given that the fermentation step of Hashimoto encompasses the temperature of both fermentation steps of the instant claims (steps (III) and (IV)), and the fermentation duration of Hashimoto falls within that of steps (III) and (IV) combined (the instant claims call for a total of 5.5-26 hours of fermentation total) and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP 2144.04 IV C.); it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to have broken the fermentation step of Hashimoto into two sequential fermentation steps at the temperatures and duration disclosed by Hashimoto. One of ordinary skill in the art would have expected the predicable result of a fermented food product, regardless of whether the fermentation took place in one or two steps.
Additionally, regarding the temperature and duration of fermentation, it is known in the art that the temperature and duration of fermentation are result effective variables, change the temperature and duration of fermentation and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the duration of fermentation recited in claim 25 is merely an obvious variant of the prior art.
Regarding claim 26, Hashimoto discloses equal amounts of koji and beans, or instances where one exceeds the other [28]. Hashimoto discloses an example with 200g of soybeans and 60g koji [39], which results in a mass ratio of koji to edible plant of 1:3.3, which falls within the claimed range of 1:3 or more.
Regarding claim 28, Yamashita discloses that in order to enable long-term storage, koji is dried to under 10% of moisture content (p8, sections 3.1.6. Drying).
Regarding claims 31, 36 and 37, Hashimoto discloses the beans are soaked for a whole day and night [28], which overlaps with the claimed range of immersing the edible plans in water for 6-24 hours.
Hashimoto discloses the beans are subsequently cooked by boiling or steaming and the steaming process is about 30 minutes to 1 hour, which overlaps with the claimed range of 5-30 minutes [28].
Hashimoto’s steaming in water necessarily takes place at 100oC or above, which overlaps with the claimed range of 100-135oC.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Hashimoto’s steaming and boiling meets the claim limitation of heat treating the edible plants of (a) in step (I) at 80oC or more.
Hashimoto does not disclose obtaining a dry basis moisture content of 50% by mass or more (claim 31).
Hashimoto does not disclose the method comprises a step of adjusting a dry basis moisture content of the edible plants of (a) to 40% by mass or more (claim 36 and claim 37),
It is known in the art that the moisture content of the beans is a result effective variable, change the moisture content of the beans and you change the texture of the final food composition.
It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the final moisture content of the beans after soaking and steaming or boiling recited in claims 31, 36 and 37 are merely an obvious variant of the prior art.
Regarding claim 38, Hashimoto discloses 200g of soybeans combined with 60g solid koji [39].
Hashimoto does not disclose the ratio of a dry basis moisture content of the koji powder to a dry basis moisture content of the edible plants of (a) (the dry basis moisture content of the koji powder/the dry basis moisture content of the edible plants) is 0.001 or more.
However, it is known in the art that the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants is a result effective variable, change the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants and you change the texture of the final food composition. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants recited in claim 38 is merely an obvious variant of the prior art.
Claims 22 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569) as applied to claim 19 above, and further in view of Sugiyama (JP 2018 082681A).
Regarding claims 22 and 23, Hashimoto discloses mixing koji and steamed or boiled beans [10].
Hashimoto does not disclose adding the Bacillus subtilis natto to the koji and bean combination.
Sugiyama, in the field of making fermented soy products, discloses natto is a food made from soybeans and fermented by Bacillus natto [0002]. Sugiyama discloses a fermenting step of mixing a Bacillus natto containing material with Aspergillus aspergillus [0010] [0014]. Sugiyama discloses the natto bacterium may be Bacillus subtilis natto [0016]. Sugiyama discloses the Aspergillus aspergillus is koji mold [0022].
The Bacillus natto containing material is not limited as long as it contains natto [0015]. Sugiyama discloses natto (comprising the Bacillus natto and soybeans) as the natto containing material of the invention [0038].
Sugiyama discloses mixing the natto containing material with the Aspergillus aspergillus (koji mold) [0010].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the soybean fermentation with koji of Hashimoto with the soybean fermentation with Bacillus subtilis natto of Sugiyama since both are drawn to methods of fermenting soybeans for food products and Sugiyama discloses the Bacillus subtilis natto is appropriate to be combined with the koji.
As to the order of adding the koji and Bacillus subtilis natto of claims 22 and 23, the selection of any order of mixing ingredients is prima facie obvious MPEP 2144.04 IV C.
Claims 27 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569) as applied to claim 19 above, and further in view of Umami Information Center (hereafter UIC) (Umami Rich Ingredients Miso, https://web.archive.org/web/20210613182521/https://www.umamiinfo.com/richfood/foodstuff/miso.html, June 2021).
Regarding claim 27, Hashimoto discloses fermenting the koji and bean combination [10].
Hashimoto does not disclose a step of aging after fermentation.
UIC, in the field of making miso, discloses a method of making a typical miso by combining rice koji and soybeans, fermenting and aging (pp21-22 and p41).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making a fermented bean product of Hashimoto with the method of making miso (fermented bean product) of UIC including aging, since both are drawn to methods of making fermented bean products and UIC discloses it is known to age miso after fermenting.
As to the temperature and duration of aging, UIC does not disclose the temperature or duration of aging. However, it is known in the art that the temperature and duration of aging are result effective variables, change the temperature and duration of aging and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the temperature and duration of aging recited in claim 27 is merely an obvious variant of the prior art.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569) as applied to claim 19 above, as evidenced by Expanded Metal Mesh (Different Mesh Sizes and Mesh to Micron Conversion, https://www.metalmeshcorp.com/news/different-mesh-sizes-and-mesh-to-micron-conversion.html, 2026).
Regarding claim 29, Hashimoto in view of Yamashita discloses the koji powder having α-amylase activity as discussed above.
Yamashita discloses most koji is sieved with 100-300 mesh (p8, 3.1.7. Sieving).
As evidenced by Expanded Metal Mesh, 100-300 mesh correlates to about 50-149 µm (p2), which falls below the claimed d50 diameter of less than 1000 µm. Yamashita does not disclose the d50 of the koji powder, however since the koji powder has a maximum dimension of 149 µm after sieving, the d50 of the koji powder must be less than 149 µm, which falls within the claimed range of less than 1000 µm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected to koji powder of Yamashita as the koji of Hashimoto since Yamashita discloses the koji powder is appropriate for fermenting food products and the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07.
It is noted that Yamashita is silent as to whether the koji powder is sonicated before measuring d50 and the currently claimed method does not require the active step of sonicating the koji powder. Therefore the koji powder of Yamashita is considered to meet the claim limitations of claim 29.
Claims 30 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569) as applied to claim 19 above, and further in view of Mitsuta (JP 2019 115316A).
Regarding claim 30, Hashimoto discloses a method for producing a fermented food by mixing steamed or boiled beans (solid raw material, bean and seed), and koji [10].
Hashimoto does not disclose a step of retaining the koji powder having a-amylase activity in the step (II) at 40°C or less for 1 hour or more, before adding the koji powder to the composition of (I).
Mitsuta, in the field of producing rice malt (koji), discloses a method for producing rice koji which includes a cooling step of cooling the rice koji after production to a temperature of 0-5oC where the cooling period is preferably one day [0006] and [0010]. Mitsuta’s temperature range of 0-5oC falls within the claimed range of less than 40oC. Mitsuta’s cooling period of more than one day falls within the claimed range of 1 hour or more.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the cooled koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the cooled koji of Mitsuta, would be prima facie obvious.
Regarding claim 34, Hashimoto in view of Yamashita discloses the koji has α-amylase activity as discussed above.
Hashimoto does disclose the α-amylase activity of the koji powder having a-amylase activity is 100 U/g or more in the step (II).
Mitsuta, in the field of producing rice malt (koji), discloses the koji has α-amylase activity between about 1495 U/g to about 2070 U/g [0021] [0022] [0027] (Table 1, p10). Note: The columns of Table 1 represent different storage temperatures for koji samples [0027]. The rows of Table 1 represent days of storage for the koji samples A-D [0022]. The values in Table 1 are the results of the α-amylase analysis of the koji samples in the unit U/g [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the koji of Mitsuta with the recited α-amylase activity, would be prima facie obvious.
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569) as applied to claim 19 above as evidenced by Yu et al. (Understanding Starch Metabolism in Pea Seeds towards Tailoring Functionality for Value-Added Utilization. Int J Mol Sci. 2021 Aug 20;22(16):8972. doi: 10.3390/ijms22168972).
Regarding claim 35, Hashimoto discloses a method for producing a fermented food by mixing beans and koji [10]. Hashimoto discloses the beans may be soybeans, peas (Pisum), beans (Phaseolus), red beans and so on [26].
As evidenced by Yu et al., starch accounts for about 50% of a pea seed dry weight (Abstract), which falls within the claimed range of 4% mass or more starch.
Claims 40 and 41 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of:
Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569)
Sugiyama (JP 2018 082681A)
Umami Information Center (hereafter UIC) (Umami Rich Ingredients Miso, https://web.archive.org/web/20210613182521/https://www.umamiinfo.com/richfood/foodstuff/miso.html, June 2021)
Mitsuta (JP 2019 115316A)
Evidenced by Expanded Metal Mesh (Different Mesh Sizes and Mesh to Micron Conversion, https://www.metalmeshcorp.com/news/different-mesh-sizes-and-mesh-to-micron-conversion.html, 2026)
Evidenced by Yu et al. (Yu et al., Understanding Starch Metabolism in Pea Seeds towards Tailoring Functionality for Value-Added Utilization. Int J Mol Sci. 2021 Aug 20;22(16):8972. doi: 10.3390/ijms22168972).
Regarding claim 40, Hashimoto discloses a method for making a brewed product obtained my fermentation by adding koji to boiled and/or steamed beans (solid raw material) [10]. Hashimoto discloses adding water to the bean and koji mixture [39].
Step (I)(a): Hashimoto discloses the beans of the fermented product may be soybeans, peas (Pisum), beans (Phaseolus), red beans and so on [26].
Step (I)(c): As evidenced by Yu et al., starch accounts for about 50% of a pea seed dry weight (Abstract), which falls within the claimed range of 4% mass or more starch.
Step (I)(d): Hashimoto does not disclose the strains of fungi in the koji.
Yamashita, in the field of koji, discloses koji fungi comprises Aspergillus oryzae and Aspergillus kawachii (p2, list at top of page). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the Aspergillus oryzae or Aspergillus kawachii of Yamashita as the koji of Hashimoto since the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the Aspergillus oryzae and Aspergillus kawachii of Yamashita serve the intended use in Hashimoto of inoculating the beans with the koji.
Step (I)(e): Hashimoto does not disclose the α-amylase activity of the koji powder.
Mitsuta, in the field of producing rice malt (koji), discloses the koji has α-amylase activity between about 1495 U/g to about 2070 U/g [0021] [0022] [0027] (Table 1, p10). Note: The columns of Table 1 represent different storage temperatures for koji samples [0027]. The rows of Table 1 represent days of storage for the koji samples A-D [0022]. The values in Table 1 are the results of the α-amylase analysis of the koji samples in the unit U/g [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the koji of Mitsuta with the recited α-amylase activity, would be prima facie obvious.
Hashimoto does not disclose the koji is a powder.
Yamashita, in the field of koji mold, discloses raw koji can be dried in order to enable long-term storage and they pores have a light fine powder characteristic (p8, section 3.1.6. Drying). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the dry, powder koji of Yamashita as the koji of Hashimoto since the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the dried, powder koji of Yamashita serves the intended use in Hashimoto of inoculating the beans with the koji.
Step (I)(f): Hashimoto in view of Yamashita discloses the koji powder having α-amylase activity as discussed above.
Yamashita discloses most koji is sieved with 100-300 mesh (p8, 3.1.7. Sieving).
As evidenced by Expanded Metal Mesh, 100-300 mesh correlates to about 50-149 µm (p2), which falls below the claimed d50 diameter of less than 1000 µm. Yamashita does not disclose the d50 of the koji powder, however since the koji powder has a maximum dimension of 149 µm after sieving, the d50 of the koji powder must be less than 149 µm, which falls within the claimed range of less than 1000 µm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected to koji powder of Yamashita as the koji of Hashimoto since Yamashita discloses the koji powder is appropriate for fermenting food products and the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07.
It is noted that Yamashita is silent as to whether the koji powder is sonicated before measuring d50 and the currently claimed method does not require the active step of sonicating the koji powder. Therefore the koji powder of Yamashita is considered to meet the claim limitations of claim 29.
As to the claim limitation “after koji-made”, as interpreted in the 112(b) rejection above, Yamashita discloses most koji is preserved as spores (p8, Section 3.1.7. Sieving).
Steps (I)(g) and (I)(h): Hashimoto discloses the beans are soaked for a whole day and night [28], which overlaps with the claimed range of immersing the edible plans in water for 6-24 hours.
Hashimoto discloses the beans are subsequently cooked by boiling or steaming and the steaming process is about 30 minutes to 1 hour, which overlaps with the claimed range of 5-30 minutes [28].
Hashimoto’s steaming in water necessarily takes place at 100oC or above, which overlaps with the claimed range of 100-135oC.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Hashimoto’s steaming and boiling meets the claim limitation of heat treating the edible plants of (a) in step (I) at 80oC or more.
Hashimoto does not disclose obtaining a dry basis moisture content of 50% by mass or more, as interpreted in the 112(b) rejection above for step (I)(h).
It is known in the art that the moisture content of the beans is a result effective variable, change the moisture content of the beans and you change the texture of the final food composition.
It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the final moisture content of the beans after soaking and steaming or boiling recited in claim 40 is merely an obvious variant of the prior art.
Step (II)(i): Hashimoto discloses mixing koji and steamed or boiled beans [10].
Hashimoto does not disclose adding the Bacillus subtilis natto to the koji and bean combination.
Sugiyama, in the field of making fermented soy products, discloses natto is a food made from soybeans and fermented by Bacillus natto [0002]. Sugiyama discloses a fermenting step of mixing a Bacillus natto containing material with Aspergillus aspergillus [0010] [0014]. Sugiyama discloses the natto bacterium may be Bacillus subtilis natto [0016]. Sugiyama discloses the Aspergillus aspergillus is koji mold [0022].
The Bacillus natto containing material is not limited as long as it contains natto [0015]. Sugiyama discloses natto (comprising the Bacillus natto and soybeans) as the natto containing material of the invention [0038].
Sugiyama discloses mixing the natto containing material with the Aspergillus aspergillus (koji mold) [0010].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the soybean fermentation with koji of Hashimoto with the soybean fermentation with Bacillus subtilis natto of Sugiyama since both are drawn to methods of fermenting soybeans for food products and Sugiyama discloses the Bacillus subtilis natto is appropriate to be combined with the koji.
As to the order of adding the koji and Bacillus subtilis natto, the selection of any order of mixing ingredients is prima facie obvious MPEP 2144.04 IV C.
Step (II)(j): Hashimoto discloses a method for producing a fermented food by mixing steamed or boiled beans (solid raw material, bean and seed), and koji [10].
Hashimoto does not disclose a step of retaining the koji powder having a-amylase activity in the step (II) at 40°C or less for 1 hour or more, before adding the koji powder to the composition of (I).
Mitsuta, in the field of producing rice malt (koji), discloses a method for producing rice koji which includes a cooling step of cooling the rice koji after production to a temperature of 0-5oC where the cooling period is preferably one day [0006] and [0010]. Mitsuta’s temperature range of 0-5oC falls within the claimed range of less than 40oC. Mitsuta’s cooling period of more than one day falls within the claimed range of 1 hour or more.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the cooled koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the cooled koji of Mitsuta, would be prima facie obvious.
Step (II)(k): Hashimoto discloses mixing koji and steamed or boiled beans [10].
Step (II)(k)(1): Hashimoto discloses equal amounts of koji and beans, or instances where one exceeds the other [28]. Hashimoto discloses an example with 200g of soybeans and 60g koji [39], which results in a mass ratio of koji to edible plant of 1:3.3, which falls within the claimed range of 1:3 or more.
Step (II)(k)(2): Hashimoto discloses 200g of soybeans combined with 60g solid koji [39].
Hashimoto does not disclose the ratio of a dry basis moisture content of the koji powder to a dry basis moisture content of the edible plants of (a) (the dry basis moisture content of the koji powder/the dry basis moisture content of the edible plants) is 0.001 or more.
However, it is known in the art that the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants is a result effective variable, change the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants and you change the texture of the final food composition. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants recited in claim 40 is merely an obvious variant of the prior art.
Step (II)(k)(3): Yamashita discloses that in order to enable long-term storage, koji is dried to under 10% of moisture content (p8, sections 3.1.6. Drying).
Step (III): Hashimoto discloses the fermentation takes place at about 50oC for 6-12 hours [28], which fall within the claimed ranges of 30-60oC and 5-23 hours.
Step (IV): Hashimoto discloses fermentation takes place at about 50oC, 70oC or 60oC for 6-12 hours [28]. Hashimoto does not disclose a second fermentation step. However given that the fermentation step of Hashimoto encompasses the temperature of both fermentation steps of the instant claims (steps (III) and (IV)), and the fermentation duration of Hashimoto falls within that of steps (III) and (IV) combined (the instant claims call for a total of 5.5-26 hours of fermentation total) and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP 2144.04 IV C.); it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to have broken the fermentation step of Hashimoto into two sequential fermentation steps at the temperatures and duration disclosed by Hashimoto. One of ordinary skill in the art would have expected the predicable result of a fermented food product, regardless of whether the fermentation took place in one or two steps.
Additionally, regarding the temperature and duration of fermentation, it is known in the art that the temperature and duration of fermentation are result effective variables, change the temperature and duration of fermentation and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the duration of fermentation recited in claim 40 is merely an obvious variant of the prior art.
Step (V): Hashimoto discloses fermenting the koji and bean combination [10].
Hashimoto does not disclose a step of aging after fermentation.
UIC, in the field of making miso, discloses a method of making a typical miso by combining rice koji and soybeans, fermenting and aging (pp21-22 and p41).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making a fermented bean product of Hashimoto with the method of making miso (fermented bean product) of UIC including aging, since both are drawn to methods of making fermented bean products and UIC discloses it is known to age miso after fermenting.
As to the temperature and duration of aging, UIC does not disclose the temperature or duration of aging. However, it is known in the art that the temperature and duration of aging are result effective variables, change the temperature and duration of aging and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the temperature and duration of aging recited in claim 40 is merely an obvious variant of the prior art.
Hashimoto does not require salt as an ingredient in the fermented food, therefore the fermented food of Hashimoto meets the claim limitation of wherein the fermented food contains 1000 mg or less of salt per 100 g of the fermented food.
As to the order of adding ingredients and performing steps of the method, the selection of any order of mixing ingredients is prima facie obvious and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results MPEP 2144.04 IV C.
Regarding claim 41, Hashimoto discloses an example with ingredients consisting of water, soybean and koji [39].
As discussed in the claim 40 rejection above, Sugiyama, in the field of making fermented soy products, discloses natto is a food made from soybeans and fermented by Bacillus natto [0002]. Sugiyama discloses a fermenting step of mixing a Bacillus natto containing material with Aspergillus aspergillus [0010] [0014]. Sugiyama discloses the natto bacterium may be Bacillus subtilis natto [0016]. Sugiyama discloses the Aspergillus aspergillus is koji mold [0022].
The Bacillus natto containing material is not limited as long as it contains natto [0015]. Sugiyama discloses natto (comprising the Bacillus natto and soybeans) as the natto containing material of the invention [0038].
Sugiyama discloses mixing the natto containing material with the Aspergillus aspergillus (koji mold) [0010].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the soybean, koji and water mixture of Hashimoto with the soybean fermentation with Bacillus subtilis natto of Sugiyama since both are drawn to methods of fermenting soybeans for food products and Sugiyama discloses the Bacillus subtilis natto is appropriate to be combined with the koji.
Claims 42 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Hashimoto (WO 9856262A1) in view of:
Yamashita (Yamashita, Koji Starter and Koji World in Japan. J Fungi (Basel). 2021 Jul 16;7(7):569. doi: 10.3390/jof7070569)
Umami Information Center (hereafter UIC) (Umami Rich Ingredients Miso, https://web.archive.org/web/20210613182521/https://www.umamiinfo.com/richfood/foodstuff/miso.html, June 2021).
Mitsuta (JP 2019 115316A)
Evidenced by Expanded Metal Mesh (Different Mesh Sizes and Mesh to Micron Conversion, https://www.metalmeshcorp.com/news/different-mesh-sizes-and-mesh-to-micron-conversion.html, 2026).
Evidenced by Yu et al. (Yu et al., Understanding Starch Metabolism in Pea Seeds towards Tailoring Functionality for Value-Added Utilization. Int J Mol Sci. 2021 Aug 20;22(16):8972. doi: 10.3390/ijms22168972)
Regarding claim 42, Hashimoto discloses a method for making a brewed product obtained my fermentation by adding koji to boiled and/or steamed beans (solid raw material) [10]. Hashimoto discloses adding water to the bean and koji mixture [39].
Step (I)(a): Hashimoto discloses the beans of the fermented product may be soybeans, peas (Pisum), beans (Phaseolus), red beans and so on [26].
Step (I)(c): As evidenced by Yu et al., starch accounts for about 50% of a pea seed dry weight (Abstract), which falls within the claimed range of 4% mass or more starch.
Step (I)(d): Hashimoto does not disclose the strains of fungi in the koji.
Yamashita, in the field of koji, discloses koji fungi comprises Aspergillus oryzae and Aspergillus kawachii (p2, list at top of page). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the Aspergillus oryzae or Aspergillus kawachii of Yamashita as the koji of Hashimoto since the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the Aspergillus oryzae and Aspergillus kawachii of Yamashita serve the intended use in Hashimoto of inoculating the beans with the koji.
Step (I)(e): Hashimoto does not disclose the α-amylase activity of the koji powder.
Mitsuta, in the field of producing rice malt (koji), discloses the koji has α-amylase activity between about 1495 U/g to about 2070 U/g [0021] [0022] [0027] (Table 1, p10). Note: The columns of Table 1 represent different storage temperatures for koji samples [0027]. The rows of Table 1 represent days of storage for the koji samples A-D [0022]. The values in Table 1 are the results of the α-amylase analysis of the koji samples in the unit U/g [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the koji of Mitsuta with the recited α-amylase activity, would be prima facie obvious.
Hashimoto does not disclose the koji is a powder.
Yamashita, in the field of koji mold, discloses raw koji can be dried in order to enable long-term storage and they pores have a light fine powder characteristic (p8, section 3.1.6. Drying). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the dry, powder koji of Yamashita as the koji of Hashimoto since the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the dried, powder koji of Yamashita serves the intended use in Hashimoto of inoculating the beans with the koji.
Step (I)(f): Hashimoto in view of Yamashita discloses the koji powder having α-amylase activity as discussed above.
Yamashita discloses most koji is sieved with 100-300 mesh (p8, 3.1.7. Sieving).
As evidenced by Expanded Metal Mesh, 100-300 mesh correlates to about 50-149 µm (p2), which falls below the claimed d50 diameter of less than 1000 µm. Yamashita does not disclose the d50 of the koji powder, however since the koji powder has a maximum dimension of 149 µm after sieving, the d50 of the koji powder must be less than 149 µm, which falls within the claimed range of less than 1000 µm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected to koji powder of Yamashita as the koji of Hashimoto since Yamashita discloses the koji powder is appropriate for fermenting food products and the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07.
It is noted that Yamashita is silent as to whether the koji powder is sonicated before measuring d50 and the currently claimed method does not require the active step of sonicating the koji powder. Therefore the koji powder of Yamashita is considered to meet the claim limitations of claim 29.
As to the claim limitation “after koji-made”, as interpreted in the 112(b) rejection above, Yamashita discloses most koji is preserved as spores (p8, Section 3.1.7. Sieving).
Steps (I)(g) and (I)(h): Hashimoto discloses the beans are soaked for a whole day and night [28], which overlaps with the claimed range of immersing the edible plans in water for 6-24 hours.
Hashimoto discloses the beans are subsequently cooked by boiling or steaming and the steaming process is about 30 minutes to 1 hour, which overlaps with the claimed range of 5-30 minutes [28].
Hashimoto’s steaming in water necessarily takes place at 100oC or above, which overlaps with the claimed range of 100-135oC.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Hashimoto’s steaming and boiling meets the claim limitation of heat treating the edible plants of (a) in step (I) at 80oC or more.
Hashimoto does not disclose obtaining a dry basis moisture content of 50% by mass or more, as interpreted in the 112(b) rejection above for step (I)(h).
It is known in the art that the moisture content of the beans is a result effective variable, change the moisture content of the beans and you change the texture of the final food composition.
It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the final moisture content of the beans after soaking and steaming or boiling recited in claim 42 is merely an obvious variant of the prior art.
Step (II)(j): Hashimoto discloses a method for producing a fermented food by mixing steamed or boiled beans (solid raw material, bean and seed), and koji [10].
Hashimoto does not disclose a step of retaining the koji powder having a-amylase activity in the step (II) at 40°C or less for 1 hour or more, before adding the koji powder to the composition of (I).
Mitsuta, in the field of producing rice malt (koji), discloses a method for producing rice koji which includes a cooling step of cooling the rice koji after production to a temperature of 0-5oC where the cooling period is preferably one day [0006] and [0010]. Mitsuta’s temperature range of 0-5oC falls within the claimed range of less than 40oC. Mitsuta’s cooling period of more than one day falls within the claimed range of 1 hour or more.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the fermented food making process of Hashimoto utilizing koji with the cooled koji of Mitsuta because the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). MPEP 2144.07. In the instant case the selection of any koji for the method of Hashimoto, including the cooled koji of Mitsuta, would be prima facie obvious.
Step (II)(k): Hashimoto discloses mixing koji and steamed or boiled beans [10].
Step (II)(k)(1): Hashimoto discloses equal amounts of koji and beans, or instances where one exceeds the other [28]. Hashimoto discloses an example with 200g of soybeans and 60g koji [39], which results in a mass ratio of koji to edible plant of 1:3.3, which falls within the claimed range of 1:3 or more.
Step (II)(k)(2): Hashimoto discloses 200g of soybeans combined with 60g solid koji [39].
Hashimoto does not disclose the ratio of a dry basis moisture content of the koji powder to a dry basis moisture content of the edible plants of (a) (the dry basis moisture content of the koji powder/the dry basis moisture content of the edible plants) is 0.001 or more.
However, it is known in the art that the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants is a result effective variable, change the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants and you change the texture of the final food composition. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the ratio of the dry basis moisture content of the koji powder to the dry basis moisture content of the edible plants recited in claim 42 is merely an obvious variant of the prior art.
Step (II)(k)(3): Yamashita discloses that in order to enable long-term storage, koji is dried to under 10% of moisture content (p8, sections 3.1.6. Drying).
Step (III): Hashimoto discloses the fermentation takes place at about 50oC for 6-12 hours [28], which fall within the claimed ranges of 30-60oC and 5-23 hours.
Step (IV): Hashimoto discloses fermentation takes place at about 50oC, 70oC or 60oC for 6-12 hours [28]. Hashimoto does not disclose a second fermentation step. However given that the fermentation step of Hashimoto encompasses the temperature of both fermentation steps of the instant claims (steps (III) and (IV)), and the fermentation duration of Hashimoto falls within that of steps (III) and (IV) combined (the instant claims call for a total of 5.5-26 hours of fermentation total) and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (MPEP 2144.04 IV C.); it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to have broken the fermentation step of Hashimoto into two sequential fermentation steps at the temperatures and duration disclosed by Hashimoto. One of ordinary skill in the art would have expected the predicable result of a fermented food product, regardless of whether the fermentation took place in one or two steps.
Additionally, regarding the temperature and duration of fermentation, it is known in the art that the temperature and duration of fermentation are result effective variables, change the temperature and duration of fermentation and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the duration of fermentation recited in claim 42 is merely an obvious variant of the prior art.
Step (V): Hashimoto discloses fermenting the koji and bean combination [10].
Hashimoto does not disclose a step of aging after fermentation.
UIC, in the field of making miso, discloses a method of making a typical miso by combining rice koji and soybeans, fermenting and aging (pp21-22 and p41).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making a fermented bean product of Hashimoto with the method of making miso (fermented bean product) of UIC including aging, since both are drawn to methods of making fermented bean products and UIC discloses it is known to age miso after fermenting.
As to the temperature and duration of aging, UIC does not disclose the temperature or duration of aging. However, it is known in the art that the temperature and duration of aging are result effective variables, change the temperature and duration of aging and you change the flavor of the final food product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the temperature and duration of aging recited in claim 42 is merely an obvious variant of the prior art.
Hashimoto does not require salt as an ingredient in the fermented food, therefore the fermented food of Hashimoto meets the claim limitation of wherein the fermented food contains 1000 mg or less of salt per 100 g of the fermented food.
As to the order of adding ingredients and performing steps of the method, the selection of any order of mixing ingredients is prima facie obvious and the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results MPEP 2144.04 IV C.
Regarding claim 43, Hashimoto discloses an example with ingredients consisting of water, beans and koji [39].
Conclusion
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/C.L.G./Examiner, Art Unit 1793
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