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 .
This office action is in response to the application filed on August 22, 2024. The earliest effective filing date of the application is September 21, 2021.
Election/Restrictions
Claims 6 – 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on July 1, 2026.
Applicant’s election without traverse of Group I, claims 1 – 5, in the reply filed on July 1, 2026 is acknowledged.
Status of Application
The Response to Restriction Requirement has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 10
Withdrawn claims: 6 – 10
Claims currently under examination: 1 – 5
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 1 – 5 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 1 recites “treating with a protein deamidase and a multicopper oxidase” which renders the claim indefinite. It is unclear what is being treated with a protein deamidase and a multicopper oxidase. For example, the protein material prior to fermentation, the fermented protein material, or something else may be treated. For the purpose of examination, any of the recited components may be treated with a protein deamidase and a multicopper oxidase, including the protein material prior to fermentation.
Claims 2 – 5 are rejected as dependent on a rejected base claim.
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 1 – 3 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sato et al. (US 20180368429 A1).
Regarding claims 1 – 3, Sato teaches a method for manufacturing a fermented milk product, comprising sequentially performing a first step of mixing raw material milk (i.e., a protein material) and lactic acid bacteria to obtain a mixed liquid, and a second step of fermenting the mixed liquid (which comprises a protein material), wherein the method is characterized in that a step of adding a Paenibacillus-derived protease to the raw material milk and/or the mixed liquid (protease addition step) is performed before the second step is completed (Claim 1). Sato teaches adding transglutaminase (i.e., protein glutaminase, which is a protein deamidase), laccase (i.e., a multicopper oxidase), and a second protease other than the above-described protease to the raw material milk and/or the mixed liquid (Claim 7).
Given the interpretation of “treating with a protein deamidase and a multicopper oxidase” includes treating the protein material with a protein deamidase and a multicopper oxidase prior to fermentation, Sato anticipates the inventions of claims 1 – 3.
Regarding claim 5, the method of Sato produces a yogurt (Examples 1 – 8).
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sato et al. (US 20180368429 A1) in view of Butter for All (Clabber Milk – What it is, why you should eat it, and how to make it. Butter for All. (January 25, 2018). Retrieved from Wayback Machine Archive -https://web.archive.org/web/20180125025141/https://www.butterforall.com/traditional-cooking-traditional-living/clabber-milk/).
Sato is silent with respect to whether the generically recited milk is cow’s milk.
Butter for All teaches raw cow’s milk is full of naturally occurring beneficial Lactic Acid Bacteria and when that bacteria is supported with a warm environment it will ferment the milk creating something similar to a cross between yogurt and kefir (p. 2, paragraph 1). Butter for All teaches eventually, if left to ferment long enough the clabber milk will separate into curds and whey (p. 2, paragraph 1).
Sato and Butter for All are combinable because they are concerned with the same field of endeavor, namely, methods of making fermented milk. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected cow’s milk as the milk in the method of Sato as taught by Butter for All because cow’s milk, like the generically recited milk in the method of Sato, is capable of being fermented by lactic acid bacteria, and therefore suitable for the intended purpose of lactic acid fermentation.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LARK JULIA MORENO whose telephone number is (571)272-2337. The examiner can normally be reached 6:30 - 4:30 M - F.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
/L.J.M./Examiner, Art Unit 1793
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