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 III(claims 20-22) in the reply filed on May22, 2026 is acknowledged. Claims 1-5 and 9-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 5/22/2026
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 20-22 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.
Regarding claim 20, the phrase "for example" in steps b. and c. renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
In the present instance, claim 20 recites “lactic acid bacteria, for example Liquorilactobacillus hordei” in step b and similar recitation reading saccharomyces in step c., which render the claim indefinite.
Claim 21 also has the same limitation of “for example”
For the purpose of this office action any species of lactic acid bacteria and saccharomyces will be considered pertinent and any fruit or vegetable extract will meet the limitation of claim 21.
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.
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.
Claims 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over NPL to Laureys et al., "Microbial species Diversity, Community Dynamics, and Metabolite Kinetics of Water Kefir Fermentation" Pages 2564-2572, hereinafter Laureys in view of NPL to Cao et el., "Assessment of microbial diversity of Chinese Tianshan tibicos by single molecule real-time sequencing technology", Pages139-145, hereinafter Cao.
Copies of both prior art references are provided with this office action.
Regarding claims 20 and 21, Laureys teaches water kefir, which is a sour alcoholic and fruity fermented beverage (abstract).
Applicant is referred to rejection under 35 USC 112 (second paragraph) for claims 20-22).
Regarding the method of preparing a beverage composition of claims 20 and 21, said method comprising fermenting an aqueous solution comprising sucrose with a starter culture [Page 2564, column 2 to page 2565 column 1- under heading Materials and methods: water Kefir fermentation process, where unrefined sugar/ sucrose is added with fig extract (fruit or vegetable extract) with kefir grains, i.e., starter culture and also see figure 2 on page 2567],
Regarding the limitation that “said starter culture comprises
b. lactic acid bacteria, for example Liquorilactobacillus hordei; and
C. Saccharomyces, for example Saccharomyces bayanus.”, Laureys teaches Lactic acid bacteria and yeasts species namely Sacchaomyces [Page 2565, column1 and page 2567, Column - under headings culture dependent species diversity analysis, also see pages 2569-2570 under heading discussion). Laureys teaches fermentation where the water kefir product comprises ethanol and lactic tic acid along with other metabolites. Thus combination of lactic acid bacteria with saccharomyces species of yeast to make a fermented beverage was known in the art before the effective filing date of the invention as taught by Laureys.
Laureys, however, is silent regarding the kefir culture/ grain comprising Zymomonas mobilis as instantly claimed. However, before the effective filing date of the invention utility of Zymomonas mobilis in fermenting sugars to create gluconic acid was known in the art and inclusion of Zymomonas mobilis in fermentation culture to produce fermented beverages or foods was also known, as taught by Cao. Cao teaches an analysis of microbial diversity of Chinese Tianshan tibicos, which a water kefir or sugary kefir specific to the region [Introduction, Line 1-2 of Cao]. Cao teaches that characterization of tibicos/ water kefir results show that microbiota mainly comprises of bacterial species Lactobacillus, Lactococcus (both Lactic acid bacteria) [abstract, page 141, Column 2], with Zymomonas mobilis [Abstract, page 141, Column 2 to page 143 and figure 3] and yeasts [Page 43,Column 1, para 2 and Figure 4]. Cao teaches that Zymomonas mobilis is likely related to ethanol production and is noted to show a high performance in response to external stresses , such as high ethanol concentration, high temperature and high acidic conditions. Zymomonas mobilis also has anti leukemic and antitumor effect and prebiotic activity. [Page 142, column 2, para under figure 3]. Thus, the combination of lactic acid bacteria, saccharomyces and Zymomonas mobilis in water kefir culture was known at the art before the time of the effective filing date of the invention as taught by Cao [Page 139, abstract and introduction, page 141-142 and Figure 3, Page 143 and figure 4]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include Zymomonas mobilis as part of the culture for making a fermented water kefir like beverage. The ordinary artisan would have been motivated to modify Laureys at least for the purpose of including a microbial species that is known in the art to be beneficial for having anti leukemic and antitumor effect and prebiotic activity. [Page 142, column 2, para under figure 3] as taught by Cao.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Laureys and Cao, as applied to claims 20-21 above, and further in view of Houle et al (US 20200260760 A1), hereinafter Houle.
Regarding claim 22, Laureys and Cao teaches the process according to claim 20, but is silent regarding microbial inactivation /or drying. Houle teaches fermented plant compositions including water kefir [para 11 and 12 ] where along with the process steps of “(a) providing the aqueous extract from the plant; (b) adding a carbohydrate source to the aqueous extract of the plant to obtain a supplemented aqueous plant extract; and (c) fermenting the supplemented aqueous plant extract to with the consortium of a symbiotic culture of bacteria and yeasts under conditions to allow the production of the organic acid by the bacteria of the consortium in the fermented plant composition.” And also teaches that “performing an aqueous extraction of the plant. In yet another embodiment, the consortium is or is derived from a kefir grain, water kefir and/or a kombucha culture. In another embodiment, the process further comprises, after step (c), removing or inactivating the consortium. In a specific embodiment, the process comprises filtering the fermented product and/or sterilizing (e.g., pasteurizing) the fermented plant composition.” (Para 11 and 12). Further Houle also teaches that the in addition to sterilizing/ pasteurizing (para 40), the fermented plant composition “the process can also include freezing and/or drying, at least in part, the fermented plant composition to provide a concentrated liquid and/or a solid (e.g., powder). The optional drying step can be conducted in the presence or absence of a drying support. When provided in a solid and dried form, the fermented plant composition can be sealed in a water-tight container to prevent or limit water uptake during storage.”(para 41).
Thus inactivation step and drying step were known in making of fermented beverage products before the effective filing date of the invention, as taught by Houle [para 11-12 and 40-41].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include inactivation or drying step as part of the process for making a fermented water kefir like beverage. The ordinary artisan would have been motivated to modify Laureys at least for the purpose of stopping the fermentation process after the desired acidity, alcohol content and/or flavor is achieved and before packing the product for transportation or storage. The ordinary artisan would have been motivated to modify Laureys further and include a drying step to make a solid product and store in a water tight container for at least the purpose of using a known process to remove water and reduce bulk for ease of packing, storage and transportation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Marsh et al., "Sequence Based analysis of the microbial composition of water kefir from multiple sources" Published in FEMS Microbiol Lett 348(2013) 79-85.Cao et el., Assessment of microbial diversity of Chinese Tianshan tibicos by single molecule real-time sequencing technology; Food Science Biotechnology (2019) 28(1):139-145;
The document analysis the bacterial and yeast component of water Kefir with analysis where the combination of Saccharomyces, lactic acid bacteria and Zymomonas is present in water kefir.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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