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 .
The amendment and response filed on June 03, 2026, are received.
Claims 8, 11, 12 and 21 are canceled by Applicant.
The new claims 27-31 are added.
Claims 2, 4-7, 9, 10, 18, 20 and 22-31 are pending and are being examined.
Answer to Arguments:
Withdrawn Objection(s) and Rejection(s):
The objection to claims 2, 8, 11, 12 and 18, is withdrawn due to the amendments to claim 2 and cancellation of claims 8, 11, 12 and 18 filed on 06/03/2026.
The rejection of claims 2, 4-12, 18 and 20-26 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement (requirement for the deposit of biological material), is due to the filing of the deposit statement and deposit receipt filed on 06/03/2026.
The rejection of claims 6 and 7 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn due to the amendments to claims 6 and 7 filed on 06/03/2026.
The rejection of claims 2, 4, 6-8, 10-12, 18, 20, 21 and 23-26 under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative under 35 U.S.C. 103 as obvious over Park et al. (2014), is withdrawn due to the amendments to claims filed on 06/03/2026.
The rejection of claims 2, 4-12, 18 and 20-26 under 35 U.S.C. 103 as being unpatentable over Park et al. as applied to claims 2, 4, 6-8, 10-12, 18, 20, 21 and 23-26 above, and further in view of Jung et al. and Park et al., is withdrawn due to the amendments to claims filed on 06/03/2026.
Applicant arguments with respect to the above-mentioned objection and rejections are moot because they are withdrawn, and further in view of new grounds of rejections necessitated by the amendments to the claims.
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.
Claim 28 is 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 28 is indefinite because it depends on claim 28. As such it is incomplete.
Suggestion to obviate the rejection: cancel the claim.
Claim Rejections - 35 USC § 102
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 2, 4, 9, 18, 20, 23-27 and 29-31 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by KR 101807995 B1 (English translation 7 pages of PDF).
Regarding claim 2, KR 101807995 B1 disclose a fermented composition comprising a fermentation product fermented with a Leuconostoc mesenteroides CJLM119 strain or a culture thereof, wherein the fermentation product is a product in which a composition comprising garlic is fermented, and the Leuconostoc mesenteroides CJLM119 is deposited under accession number KCTC 13043BP (kimchi sauce containinggarlic prepared using Leuconostoc mesenteroides CJLM119 strain culture having accession number KCTC 13043BP) (See for example, p. 1 Abstract, and p. 5 Example 6).
Regarding claim 4, KR 101807995 B1 disclose the fermentation product is a product in which a composition further comprising any one or more selected from the group consisting of garlic, red pepper powder, and a nitrogen source is fermented (kimchi contains ingredients including garlic, red pepper powder, salt-fermented fish, etc.) (See for example, p. 5 Example 6).
Regarding claim 9, KR 101807995 B1 disclose the fermentation product is a product fermented at 32°C to 42°C for 10 to 30 hours ( cultured at 25C for 24 hours) (See for example, p. 5 Example 6).
Regarding claim 18, KR 101807995 B1 disclose a method for preparing the fermented composition of claim 2, the method comprising fermenting a composition with the Leuconostoc mesenteroides CJLM119 strain or the culture thereof, wherein the fermented composition comprises garlic (See for example, p. 1 Abstract, and p. 5 Example 6).
Regarding claim 18, although KR 101807995 B1 do not explicitly disclose the claimed property, i.e., the fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus. However, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., the fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus not explicitly disclose by KR 101807995 B1 is inherently present.
Regarding claim 20, KR 101807995 B1 disclose the fermented composition further comprises any one or more selected from the group consisting of red pepper powder, and a nitrogen source (red pepper powder) (See for example, p. 5 Example 6).
Regarding claim 23, although KR 101807995 B1 do not explicitly disclose the fermented composition increases expression of TNF-a or IL-6, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., increases expression of TNF-a or IL-6, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 24, although KR 101807995 B1 do not explicitly disclose the fermented composition inhibits growth of harmful bacteria, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., inhibits growth of harmful bacteria, not explicitly disclose by KR 101807995 B1 is inherently present.
Regarding claim 25, the claimed property, i.e., increases an immune enhancing effect of the composition however, because the method and the fermented composition are the same as the claimed composition, the claimed property of, i.e., increases an immune enhancing effect of the composition, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 26, the claimed property, i.e., increases a gut health improving effect of the composition, however, because the method and the fermented composition are the same as the claimed composition, the claimed property of, i.e., increases a gut health improving effect of the composition, not explicitly disclosed by KR 101807995 B1 is inherently present.
Regarding claim 27, the claimed property, i.e., fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus. not explicitly disclosed by KR 101807995 B1 is inherently present.
Regarding claim 29, the claimed property, i.e., fermentation composition increases TNF-a production to a level higher than that of a fermented composition fermented with Leuconostoc mesenteroides KCTC 3505 strain, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., fermentation composition increases TNF-a production to a level higher than that of a fermented composition fermented with Leuconostoc mesenteroides KCTC 3505 strain, not explicitly disclosed by KR 101807995 B1 is inherently present.
Regarding claim 30., KR 101807995 B1 disclose the fermented composition is fermented at 32°C to 42°C for 10 to 30 hours (cultured at 25°C for 24 hours) (See for example, p. 5 Example 6).
Regarding claim 31, KR 101807995 B1 disclose the fermentation composition comprises a carbon source at 2.2% to 3.8% by weight with respect to a total weight of the composition, and the carbon source comprises any one or more selected from the group consisting of fructose, sucrose and glucose, and wherein the fermentation composition comprises a salt at 0.1% to 2% by weight with respect to a total weight of the composition (1.g glucose and 0.5 g fructose in culture broth, and 2 g sodium citrate, etc.) (See for example, p. 5 Example 6).
KR 101807995 B1 therefore anticipate the claimed fermented composition.
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 2, 4-7, 9, 10, 18, 20 and 22-31 are rejected under 35 U.S.C. 103 as being unpatentable over KR 101807995 B1 (English translation 7 pages of PDF) and previously cited Park et al. (2014) and previously cited Jung et al. and previously cited Park et al. (2018).
Regarding claim 2, KR 101807995 B1 teach a fermented composition comprising a fermentation product fermented with a Leuconostoc mesenteroides CJLM119 strain or a culture thereof, wherein the fermentation product is a product in which a composition comprising garlic is fermented, and the Leuconostoc mesenteroides CJLM119 is deposited under accession number KCTC 13043BP (kimchi sauce containing garlic to which Leuconostoc mesenteroides CJLM119 strain culture added and cultured) (See for example, p. 1 Abstract, and p. 5 Example 6).
Regarding claim 4, KR 101807995 B1 teach the fermentation product is a product in which a composition further comprising any one or more selected from the group consisting of garlic, red pepper powder, and a nitrogen source is fermented (kimchi contains ingredients including garlic, red pepper powder, salt-fermented fish, etc.) (See for example, p. 5 Example 6).
Regarding claim 9, KR 101807995 B1 disclose the fermentation product is a product fermented at 32°C to 42°C for 10 to 30 hours ( cultured at 25°C for 24 hours) (See for example, p. 5 Example 6).
Regarding claim 5, KR 101807995 B1 teach the product comprising garlic at 2% by weight with respect to a total weight of the composition is fermented (2 wt% garlic) (See for example, p. 5 Example 6). In addition, before the effective filing date of the invention, Jung et al. teach a fermented composition comprising a fermentation product fermented with a Leuconostoc mesenteroides strain or a culture thereof kimchi wherein the fermentation product is a product in which a composition comprising garlic at 5% to 9% by weight with respect to a total weight of the composition is fermented (see for example, p. 217 Materials and Methods table 1. 3rd ingredients per starter culture). Therefore, the amount of garlic would have been optimized by a person of ordinary skill in the art before the effective filing date of the invention based on the teachings of KR 101807995 B1 and Jung et al.
Regarding claim 10, KR 101807995 B1 teach the fermentation product is a product in which a composition further comprising any one or more selected from a carbon source or salt is fermented, wherein the fermentation product is a product in which a composition comprising the carbon source at 2.2% to 3.8% by weight with respect to a total weight of the composition is fermented, the carbon source are any one or more selected from the group of fructose, sucrose and glucose, and the fermentation product is a product in which a composition comprising the salt at 0.1% to 2% by weight with respect to a total weight of the composition is fermented (1.g glucose and 0.5 g fructose in culture broth, and 2 g sodium citrate, etc.) (See for example, p. 5 Example 6).
Regarding claim 18, KR 101807995 B1 teach a method for preparing the fermented composition of claim 2, the method comprising fermenting a composition with the Leuconostoc mesenteroides CJLM119 strain or the culture thereof, wherein the fermented composition comprises garlic (See for example, p. 1 Abstract, and p. 5 Example 6).
Regarding claim 18, although KR 101807995 B1 do not explicitly teach the claimed property, i.e., the fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus. However, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., the fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus not explicitly taught by KR 101807995 B1 is inherently present.
KR 101807995 B1 do not teach a method of increasing expression of TNF-a or IL-6 in a subject, the method comprising administering the fermented composition of claim 2 to the subject (claim 6), a method of reducing growth of harmful bacteria in a subject, the method comprising administering the fermented composition of claim 2 to the subject (claim 7), the fermented composition according to wherein the growth inhibition ratio is calculated according to the following equation: [1-(OD6oo of experimental group inoculated with strain and after culturing) [1-(OD600 of experimental group inoculated with no strain and after culturing)/OD600 of control inoculated with strain and after culturing)-OD600 of control inoculated with no strain and after culturing)]x100 (%)] (claim 28),
However, before the effective filing date of the invention Park et al. (2014) teach a method of increasing expression of TNF-a or IL-6 in a subject, the method comprising administering a fermented composition fermented with Leuconostoc mesenteroides to the subject (treatment with kimchi enhanced immune function both in vitro and in vivo and modulated production of IL-6, etc.) (See for example, 12 left-hand column 5th paragraph). Park et al. (2014) also teach a method of reducing growth of harmful bacteria in a subject, the method comprising administering a fermented composition comprising fermented with Leuconostoc mesenteroides to the subject (kimchi antimicrobial activities against B. subtilis, etc., and kimchi reduced H. pylori infections) (See for example, p. 15 right-hand column “Antimicrobial activities of kimchi LAB”, and p. 16 left-hand column 1st paragraph).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention would have been motivated to apply the teachings of Part et al. and administer the fermented composition taught by KR 101807995 B1 to a subject with a reasonable expectation of success in providing the claimed method of increasing expression of TNF-a or IL-6 in a subject and the claimed method of reducing growth of harmful bacteria in a subject.
Moreover, regarding claim 28, the equation to calculate the growth inhibition ratio would have been optimized by a person of ordinary skill in the art before the effective filing date of the invention.
Regarding claim 20, KR 101807995 B1 teach the fermented composition further comprises any one or more selected from the group consisting of red pepper powder, and a nitrogen source (red pepper powder) (See for example, p. 5 Example 6).
Regarding claim 22, KR 101807995 B1 teach the fermented composition comprises garlic at 2% by weight with respect to a total weight of the composition. (2 wt% garlic) (See for example, p. 5 Example 6). In addition, before the effective filing date of the invention, Jung et al. teach a fermented composition comprising a fermentation product fermented with a Leuconostoc mesenteroides strain or a culture thereof kimchi wherein the fermentation product is a product in which a composition comprising garlic at 5% to 9% by weight with respect to a total weight of the composition is fermented (see for example, p. 217 Materials and Methods table 1. 3rd ingredients per starter culture). Therefore, the amount of garlic would have been optimized by a person of ordinary skill in the art before the effective filing date of the invention based on the teachings of KR 101807995 B1 and Jung et al.
Regarding claim 23, although KR 101807995 B1 do not explicitly teach the fermented composition increases expression of TNF-a or IL-6, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., increases expression of TNF-a or IL-6, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 24, although KR 101807995 B1 do not explicitly teach the fermented composition inhibits growth of harmful bacteria, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., inhibits growth of harmful bacteria, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 25, the claimed property, i.e., increases an immune enhancing effect of the composition however, because the method and the fermented composition are the same as the claimed composition, the claimed property of, i.e., increases an immune enhancing effect of the composition, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 26, the claimed property, i.e., increases a gut health improving effect of the composition, however, because the method and the fermented composition are the same as the claimed composition, the claimed property of, i.e., increases a gut health improving effect of the composition, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 27, the claimed property, i.e., fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., fermented composition exhibits a growth inhibition ratio of 90% or more against Escherichia coli or Staphylococcus aureus. not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 29, the claimed property, i.e., fermentation composition increases TNF-a production to a level higher than that of a fermented composition fermented with Leuconostoc mesenteroides KCTC 3505 strain, however, because the fermented composition is the same as the claimed composition, the claimed property of, i.e., fermentation composition increases TNF-a production to a level higher than that of a fermented composition fermented with Leuconostoc mesenteroides KCTC 3505 strain, not explicitly taught by KR 101807995 B1 is inherently present.
Regarding claim 30, KR 101807995 B1 teach the fermented composition is fermented at 32°C to 42°C for 10 to 30 hours ( cultured at 25°C for 24 hours) (See for example, p. 5 Example 6).
Regarding claim 31, KR 101807995 B1 teach the fermentation composition comprises a carbon source at 2.2% to 3.8% by weight with respect to a total weight of the composition, and the carbon source comprises any one or more selected from the group consisting of fructose, sucrose and glucose, and wherein the fermentation composition comprises a salt at 0.1% to 2% by weight with respect to a total weight of the composition (1.g glucose and 0.5 g fructose in culture broth, and 2 g sodium citrate, etc.) (See for example, p. 5 Example 6).
Conclusion(s):
No claims(s) is allowed at this time.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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