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 Group I (Claims 1-7) in the reply filed on 15 June 2026 is acknowledged.
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.
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.
Claims 1, 4, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (herein referred to as Li, CN 105558957 A) in view of Mogna et al. (herein referred to as Mogna, WO 2013084052 A1).
With regard to Claim 1, Li teaches a method for fermenting vegetables ([0012]). Li teaches providing vegetables ([0013]) mixing the vegetables with a composition comprising lactobacillus ([0077]) and fermenting the mixture obtained for 8 hours at an initial temperature of 25℃ and 3-20 hours at 5-9℃ ([0013], [0076], thus Li reads such that fermentation happens for 11-28 hours). Continuing, Li teaches wherein the mixture is fermented without the addition of water, nutrients, heat, or oxygen (whole document)
However, Li is silent to the lactobacillus being lactobacillus reuteri.
Mogna teaches a food composition or supplement or pharmaceutical composition comprising a bacterial strain belonging to the species Lactobacillus reuteri (abstract). Mogna teaches the composition at least one probiotic bacterial strain belonging to the species Lactobacillus reuteri as a vitamin B12 producer (page 1). Mogna teaches the availability of non-meat-based food products rich in vitamin B12 would enable vegetarians to take in more easily a daily dose of vitamin B12 sufficient to meet their daily requirements (page 2).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Li in view of Mogna to utilize lactobacillus reuteri as a vitamin B12 producer so the non-meat-based food product produce by Li would be rich in vitamin B12 and enable vegetarians to take in more easily a daily dose of vitamin B12 sufficient to meet their daily requirements.
Further, it is important to note that Mogna does not specially cite the vitamin B12 being produced during fermentation but teaches lactobacillus reuteri does produce B12. Thus, lactobacillus reuteri would inherently produce the vitamin B12 during fermentation because Mogna clearly teaches the identical lactobacillus and that the identical lactobacillus also produces vitamin B12. See MPEP 2112.01 (I) Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In this case, as stated above, the claim limitation of Lactobacillus reuteri is identical to the Lactobacillus reuteri as taught by Mogna.
With regard to Claim 4, Li teaches the temperature is controlled at 23-36℃ for the first fermentation, and then the temperature is controlled at 15-25℃ for the second fermentation. The entire fermentation time is 20-40 hours (Abstract). See MPEP 2144.05(I) 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). In addition Li teaches the temperature-controlled post-fermentation is to control the temperature at 15-30℃ for 30-90 hours of fermentation, and at least once in the middle the temperature is lowered to 0-5℃ and kept for 1-10 hours ([0009]). Thus, the temperature taught by Li overlaps with the claimed range and additionally Li provides ample motivation to adjust the temperature to achieve the desired fermentation result. See MPEP 2144.05(II)(A) Generally, 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claim 6, Li teaches the composition contains vitamins, but is silent to the amount of vitamin B12 ([0006]).
Mogna teaches B12 plays an important role in the production of red blood cells and
is essential for proper functioning of the nervous system (page 1). Mogna teaches the availability of non-meat-based food products rich in vitamin B12 would enable vegetarians to take in more easily a daily dose of vitamin B12 sufficient to meet their daily requirements (page 2). In addition, Mogna teaches the amount of B12 produced corresponds to factors such as the amount of cells used and the strain of Lactobacillus reuteri.
Therefore, it would have been obvious to one with ordinary skill in the art to modify Li in view of Mogna to include vitamin B12 in an amount sufficient to assist in the production of red blood cells, proper functioning of the nervous system, and would enable ethe consumer to take in more easily a daily dose of vitamin B12 sufficient to meet their daily requirements. The amount can desired amount can be achieved through routine optimization of the amount of bacteria and the strain used. See MPEP 2144.05(II)(A) Generally, 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claims 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 105558957 A) in view of Mogna (WO 2013084052 A1) and Yoo (US 5976584 A).
With regard to Claim 2, Li teaches the use of vegetables ([0013]) but is silent to the vegetables being fresh vegetables.
Yoo teaches a method for preparing kimchi (abstract). Yoo teaches the vegetables are raw vegetables (i.e., fresh vegetables, col 1 lines 42-43,Col 9 lines 26-29, table 2).
Therefore, Yoo imparts reasoning for obviousness because the teaching shows that the claimed fresh vegetables were known to be used and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select the use of fresh vegetables, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 5, Li teaches the use of vegetables, specifically Chinese cabbage ([0013], [0066]) but is silent to the vegetables being tomato, bell pepper, broccoli or white cabbage, or a mixture thereof.
Yoo teaches a method for preparing kimchi (abstract). Yoo teaches the vegetables are selected from the group consisting of Chinese cabbage, regular cabbage, radishes, cucumbers, mustard greens, dandelions, chicory, endive, perilla leaves, bell flower plant roots, leeks, chives, garland chrysanthemum, burdock, ginseng roots, kale, collard greens, lettuce, squash
and broccoli (claim 2). One with ordinary skill in the art would recognize that “regular cabbage” is another way to refer to white cabbage.
Therefore, Yoo imparts reasoning for obviousness because the teaching shows that the claimed broccoli and/or white cabbage were known to be used and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select the use of broccoli and/or white cabbage, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 105558957 A) in view of Mogna (WO 2013084052 A1) and Hunt (“Don't bin vegetable scraps: turn them into kimchi”)
With regard to Claim 3, Li is silent to the vegetables being rejected vegetables.
Hunt teaches making kimchi from left over vegetables, also referred to as “scrap” (paragraphs 1-2). One with ordinary skill in the art would recognize this “scrap” or left over “veg” would be equivalent to rejected vegetables as limited by the claim.
Therefore, Hunt imparts reasoning for obviousness because the teaching shows that the claimed rejected vegetables (i.e. “scrap” or “left over veg”) were known to be used and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select the use of rejected vegetables (i.e. “scrap” or “left over veg”), because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 105558957 A) in view of Mogna (WO 2013084052 A1) and Jung et al. (herein referred to as Jung, US 20100015283 A1).
With regard to Claim 7, Li is silent to the method further comprising formulating the vegetable paste into a powder or a liquid.
Jung teaches a method for preparing kimchi powder and a kimchi composition containing said kimchi powder (abstract). Jung teaches grinding or crushing kimchi, before or after a fermentation process; and freeze-drying the mixture so as to powder it ([0014]). Jung teaches the powder makes it possible to easily ingest nutrients contained in kimchi, their metabolites, and kimchi lactic bacteria ([0011]).
It would have been obvious to one with ordinary skill in the art to modify Li in view of Jung to formulate the vegetable paste into a powder to make it possible to easily ingest nutrients.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ma et al. (US 20190112675 A1) teaches uses of Lactobacillus reuteri in fermented food ([0019])
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/K.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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