DETAILED ACTION
Background
The preliminary amendment dated February 26, 2024 (amendment) amending claims 4-5 and 8 has been entered. Claims 9-10 as filed with the amendment have been examined. Claims 1-8 have been withdrawn from consideration.
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
The Office acknowledges that the restriction requirement is drawn to three groups, as follows:
Group I, claims 1-5, drawn to a hemicellulase modifier for a fermented plant-based food or drink.
Group II, claims 6-8, drawn to a method for producing a fermented plant-based food or drink.
Group III, claims 9-10, drawn to a method of improving a fermented plant-based food or drink.
Applicant's election with traverse of the method of Group III, claims 9-10 in the reply filed on March 02, 2026 is acknowledged. The traversal is on the ground(s) that the subject matter of all claims and species is sufficiently related that a thorough search for the subject matter of any one Group of claims or one species would encompass a search for the subject matter of the remaining claims or species. Thus, it is respectfully submitted that the search and examination of the entire application could be made without serious burden. See MPEP §803 in which it is stated that "if the search and examination can be made without serious burden. See MPEP §803 in which it is stated that "if the search and examination of all the claims in an application can be made without serious burden, the examiner must examine them on the merits, even though they include claims to independent or distinct inventions". This is not found persuasive because for the purposes of national stage examination, lack of unity is the only relevant inquiry. The instant claims lack unity of invention over Makati (JP2009/298446 A) at the Abstract and the last paragraph on page 3.
For the sake of clarity, a restriction requirement based on a lack of unity serves the public’s interest by demanding that Applicants claim at least a novel, if not a patentable invention. Restriction where such a claim is lacking amounts to the same thing as preventing an undue burden on the Office. In the instant case, the recited claims are so broad as to include any food or drink containing a plant material and any method of making it, including, but not limited to milk, cheese, bread and baked goods, confectionaries, feed, pet food, snacks, soft drinks, tea, alcoholic beverages, meat and meat substitutes, meat products, soups and sauces, condiments, preserves, seasoning and sweeteners. Simply, a search of all of these things is not merited in the present case at the present time.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 9-10 are objected to because of the following informalities:
In claim 9, at line 1 after “fermented” replace [[plant-base]] with --plant-based--; and,
at lines 3-4 after “or all of a” on line 3 replace [[plant-base]] with --plant-based--; and,
In claim 10, at line 1 after “fermented” replace [[plant-base]] with --plant-based--; and,
at lines 3-4 after “or all of a” on line 3 replace [[plant-base]] with --plant-based--.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 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 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by RU2070921 C1 to Rimareva et al (Rimareva).
Regarding instant claims 9 and 10, Rimareva at Abstract on page 2 discloses a strain of Aspergillus oryzae-387 (A. oryzae 387) which exhibits an amylolytic activity and a method for using it. Rimareva at the 1st paragraph of the Description on page 2 discloses that its A oryzae 387 produces β-glucanase and xylanase, which are hemicellulases as disclosed in the instant specification at [0015] on page 5. At Example 4 on page 5, Rimareva discloses a method comprising culturing the A. oryzae 387 on corn flour, wheat flour and wheat bran (“an enzymatic action step for allowing hemicellulase to act on a portion or all of a plant-based raw material” or just “enzyme treating a plant-based raw material”) which creates an enzyme called amyloprotorizin comprising the hemicellulases and saccharifies the plant-based raw material. Further, at Example 7 on page 5, Rimareva discloses the brewing of barley malt to saccharify and prepare a wort (“allowing hemicellulase to act on a plant-based raw material”). The Office considers the making of the beer in Example 7 of Rimareva to further comprise fermenting the plant-based raw material. Further, Example 10 on page 5, Rimareva discloses growing yeast in the wort wherein the amyloprotorizin (“hemicellulase”) is cultured on and has acted on corn flour, wheat flour and wheat bran (“enzyme treating a plant-based raw material with the hemicellulase”) and reports an increase in fermentation activity of 25% (a “fermentation step for performing fermentation” or just “fermenting” which is, in effect of a method “for promoting fermentation of a fermented plant-base drink or food”).
Further, the Office considers the exopolysaccharides in wheat bran, corn and barley to have the recited stringiness and considers the method disclosed in Rimareva to comprise substantially the same method as the recited method comprising treating a plant-based raw material with hemicellulase and then fermenting the plant-based raw material. Accordingly, absent a clear showing as to how the method of Rimareva differs from that as claimed, the Office considers the method of Examples 7 and 10 of Rimareva to improve the stringiness of a fermented plant-based drink or food as in claim 10. See MPEP 2112.01.I.
Claims 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN105851753 A to Chen (Chen).
Regarding instant claims 9-10, Chen discloses at Abstract on page 2 making a wheat drink by treating wheat flour (ground wheat) with a hemicellulase (“an enzymatic action step for allowing hemicellulase to act on a portion or all of a plant-based raw material” or just “enzyme treating a plant-based raw material”) followed by fermenting the composition (“a fermentation step for performing fermentation”). Further, in the claims on page 2 and 3, Chen discloses the enzyme treatment or enzymolysis of the ground wheat ears for a period of 6-8 hours and then the fermenting for 8-10 hours.
Further regarding instant claims 9-10, the Office considers the exopolysaccharides in wheat flour to have the recited stringiness and considers the method as claimed and disclosed in Chen to comprise substantially the same method as the recited method comprising treating a plant-based raw material with a hemicellulase and then fermenting the plant-based raw material. Accordingly, absent a clear showing as to how the method of the Chen differs from that as claimed, the Office considers the method disclosed in the Abstract and claims of Chen to be a method promoting fermentation of a fermented plant-based drink or food as in claim 9 and to be a method to improve the stringiness of a fermented plant-based drink or food as in claim 10. See MPEP 2112.01.I.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US20200032180 A1 to Shinkai et al. (Shinkai) discloses a beer-flavored beverage and a method for producing it. At [0042], Shinkai discloses a method of mixing a mugi material (e.g. barley or barley malt in [0025]) with water and enzymes, saccharifying the mugi material to prepare a wort, and then fermenting after adding beer yeast. At [0043], Shinkai discloses as enzymes added in the preparing of the wort the polysaccharide degrading enzymes cellulase (including β-glucanase) and hemicellulase.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791