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 .
Applicant’s election without traverse of Group I, claims 21-36, in the reply filed on 15 November 2025 is acknowledged.
Claims 37-40 have been withdrawn.
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 21-36 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 21 is rendered vague and indefinite by the phrase “e. transporting the transportable bioreactor at a selected time after aforesaid step b, from the fruit processing facility to a processing facility for further processing into the product, the product being a refined, nutrient-rich product”. It is unclear where in the process this step is meant to be placed. After step b, but before c? or anytime after step b? How is one to know what is a “selected time”?
Claim 30 is rendered vague and indefinite by the phrase “the further processing comprises refining the fermented puree to generate the refined, nutrient-rich product”. Since the product produced by the method of claim 21 is “refined” it is unclear how this further step is meant to further limit the claimed method.
Claim 31 is rendered vague and indefinite by the phrase “wherein the refined, nutrient- rich product has been processed to be used as one or more of a natural flavour, texture, and color enhancer, in addition to a nutritional ingredient”. Since the claims are directed to a method of producing a nutrient-rich product, not is method of use, it is unclear what is meant by this wherein clause. Is there another step that is being added to the method or is this simply an intended use of the product?
Similarly, Claim 32 is rendered vague and indefinite by the phrase “wherein the refined, nutrient- rich product has been processed to be used in food preparation, to one or more of …”. It is unclear how this is meant to further limit the claimed method of production.
All other claims depend directly or indirectly from rejected claims and are, therefore, also rejected under U.S.C. 112, second paragraph, for the reasons set forth above.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 21-36 are rejected under 35 U.S.C. 103 as being unpatentable over Qin et al. (CN206428258) in view of Jin et al. (2016) and Gomes et al. (2018) in view of Silva et al. (2000) and Munekata et al. (2021).
Qin et al. beneficially teach a moveable fermentation device comprising an intermediate bulk container. The intermediate bulk container is made of food-grade high-density materials and comprises feeding holes, a pH sensor hole comprising a pH sensor configured to collect and wirelessly transmit data to a computer terminal, a fermentation liquid outlet hole, and a fermentation residue discharge hole. During operation, the fermentation device is transported to the field by a vehicle, wherein the fermentation device is filled with water, fruits from the field, sugar, corn steep liquour, and probiotics (i.e., bacteria and yeast) through the feeding holes. After filling, the feeding holes are sealed and the fermentation device is transported to a warehouse. The reference further discloses that the container is safe, sanitary, and can be cleaned after each fermentation and be reused (see entire document including, e.g., paragraphs [0006], [0007], [0012], [0013], [0014]).
Jin et al. beneficially teach a method of fermenting winery biomass waste to nutrient-rich feed comprising the use of aerobic fungi, wherein the fermented winery biomass waste has increased protein content and increased digestibility (i.e., nutrient-rich “pre-product”). The reference further discloses a fermentation process comprising hydrating grape marc from a winery with water and/or yeast to form a marc solution and inoculating the hydrated marc solution with a fungus. Tested fungi include various aerobic fungi of the Aspergillus, Rhizopus and Trichoderma species (see entire document, including., eg., Abstract, pg. 61: 2.2.1; pg 62: 2.4.1; 2.4.2)
Gomes et al. beneficially teach that the use of acetic acid bacteria (i.e., Acetobacter and Gluconobacter) for the fermentation of food is known in the art.
Fermentation of pomace with bacteria is known to produce nutrient-rich products. For example, Munekata et al. provides an overview of the strategies to increase the value of pomaces by fermentation/biotransformation and explore the different aspects reported in scientific studies. Fermentation is an interesting solution to improve the value of pomaces (especially from grape, apple, and olive) and produce high-added value compounds. In terms of animal production, a shift in the fermentation process during silage production seems to happen (favoring ethanol production rather than lactic acid), but it can be controlled with starter cultures. The subsequent use of silage with pomace in animal production slightly reduces growth performance but improves animal health status. One of the potential applications in the industrial context is the production of enzymes (current challenges involve purification and scaling up the process) and organic acids. Other emerging applications are the production of odor-active compounds to improve the aroma of foods as well as the release of bound polyphenols and the synthesis of bioactive compounds for functional food production. The combination of grape pomace with the starter culture composed of Lactobacillus plantarum and Lactobacillus buchneri. These microorganisms led to a better control of fermentation and quality of silage by favoring the accumulation of lactic and acetic acid, water soluble carbohydrates, and crude protein.
Silva et al. beneficially disclose that parameters such as fermentation time and temperature can be optimized for achieving optimal results of fermenting grape pomace. In addition, the bacteria found in grape pomace includes lactic acid bacteria (Lactobacillus, Leuconotoc, Pediococcus) and Acetic acid bacteria (Gluconabacter, Acetobacter).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the instant Application based upon the teaching of the cited references, which indicate that the broadly claimed method is a well-known method of fermenting pomace to yield beneficial products.
In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court emphasized a flexible approach to the obviousness question, stating that the analysis under 35 U.S.C. § 103 "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418; see also id. at 421 ("A person of ordinary skill is... a person of ordinary creativity, not an automaton."). In KSR, the Supreme Court indicated that the obviousness analysis should consider the “background knowledge possessed by a person having ordinary skill in the art.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007). Under KSR, information deemed within PHOSITA’s general knowledge is more powerful than that found buried in a prior art reference because we assume that PHOSITA would consider using their general knowledge in combination with the prior art — even absent any express motivation to do so. Under 35 U.S.C. § 103, the obviousness inquiry turns not only on the prior art, but whether “the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious . . . to a person having ordinary skill in the art to which the claimed invention pertains.” 35 U.S.C. § 103. Regardless of the tribunal, the inquiry into whether any “differences” between the invention and the prior art would have rendered the invention obvious to a skilled artisan necessarily depends on such artisan’s knowledge. See Philips v. Google & Microsoft 2020.
The adjustment of particular conventional working conditions (e.g., optimizing the fermentation conditions such as pH, appropriate yeast, bacteria, etc.) is deemed merely a matter of judicious selection, design choice, and routine optimization which is well within the purview of the skilled artisan, as indicated by Silva et al.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of skill in the art at the time the invention was made, as evidence by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/RUSSELL G FIEBIG/Examiner, Art Unit 1655