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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/20/2025 has been entered. Claims 1-21 are pending. Claims 6-20 are withdrawn. Claims 1-5, 21 are examined on the merits herein.
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 and 21 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.
Claims 1 and 21 recite the limitation of “increasing fermentation capacity of an Active Dry Yeast”. The term “increasing” is a relative term which renders the claim indefinite, since no basis of comparison is provided for the “increasing”.
Claims 2-5 depend from independent Claim 1 and are therefore also rejected.
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.
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 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Ortiz-Julien (AU 2012200690 A1) in view of Bete (https://www.bete.com/wp-content/uploads/2022/01/BETE-Spray-Dry-Manual.pdf, 2020) and The Hosokawa Group (https://www.azom.com/article.aspx?ArticleID=11758, February 2015).
Regarding Claims 1-3, Ortiz-Julien teaches a composition comprising yeast which is enriched in sterols (Page 7, Example 1). The sterol-containing composition comprises at least 10-20 mg/g (dry weight) of sterols [0016]. Note that “at least” 10-20 mg/g encompasses 25 mg/g and 20-35 mg/g.
Note that the limitations of a “nutrient” and “capable of maintaining or increasing fermenting capacity…during alcoholic fermentation” are directed towards intended use. However, Ortiz-Julien teaches that the sterol-containing composition improves fermentation [0010]. Additionally, since Ortiz-Julien teaches a composition comprising yeast and sterols as claimed, Ortiz-Julien is interpreted to meet the limitation of a nutrient.
Ortiz-Julien teaches the sterol-containing, yeast-based nutrient as claimed but does not specify a granule size for the nutrient or specify that the particle be a microgranule.
Bete teaches that incorporating powder particles, including yeast products (Page 18, Section 9.19) into porous agglomerates (which is the same as a microgranule) improves wettability, dispersability, and solubility of the particles (Page 20, “Instantizing”).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to incorporate the composition of Ortiz-Julien into a porous agglomerate, or microgranule, as claimed. One would have been motivated to make such a modification to create a particle with good wettability, dispersability, and solubility properties.
Bete teaches that spray-dried particles typically range from 20-600 microns (Page 9, Section 6.2) but does not discuss a specific size of porous agglomerates, or microgranules.
The Hosokawa Group teaches that agglomerates typically have a mean particle size of 0.1 millimeters to a few millimeters, which is 100 microns to thousands of microns, which encompasses the claimed range.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to formulate a porous agglomerate, or microgranule, of 200-500 microns, as claimed. One would have been motivated to make such a modification since this size is known to fall within the typical sizes for an agglomerated particle.
Regarding Claim 4, Ortiz-Julien teaches that the yeast may be of the Saccharomyces genus [0014].
Regarding Claim 5, Ortiz-Julien teaches that the sterol-containing composition is derived from yeast, thus teaching that the yeast is derived form a yeast naturally rich in sterols (Page 7, Example 1).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Phillips (https://www.winebusiness.com/wbm/article/49277, July 2007) taken with evidentiary reference of Rattray (Bacteriological Reviews, September 1975, https://journals.asm.org/doi/pdf/10.1128/br.39.3.197-231.1975), in view of Bete (https://www.bete.com/wp-content/uploads/2022/01/BETE-Spray-Dry-Manual.pdf, 2020) and The Hosokawa Group (https://www.azom.com/article.aspx?ArticleID=11758, February 2015).
Regarding Claim 21, Phillips teaches that yeast extract is known as a nutrient additive to fermentation (Page 1, “Use of Yeast Nutrients”, Paragraphs 1-3 and Page 3, “Yeast Extracts”), which is the same as “maintaining or increasing fermentation capacity”.
Note that yeast is known to contain .03 - 4.6% sterols based on dry weight (Rattray, Page 203, Paragraph 2), which is 0.3-46 mg/g, which overlaps the claimed range. Therefore, the yeast extract of Phillips is interpreted to contain the sterol content as claimed.
Phillips teaches the use of a yeast nutrient with the sterol content as claimed but does not discuss its formulation in a microgranule or the size of the microgranule.
Bete teaches that formulating powder substances, including yeast products such as yeast extract (Page 18, Section 9.19), into porous agglomerates (which is the same as a microgranule) produces a particle with good wettability, dispersability, and solubility properties (Page 20, “Instantizing”).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to incorporate the yeast extract of Phillips into a porous agglomerate, or microgranule, as claimed. One would have been motivated to make such a modification to create a particle with good wettability, dispersability, and solubility properties.
Bete teaches that spray-dried particles typically range from 20-600 microns (Page 9, Section 6.2) but does not discuss a specific size of porous agglomerates, or microgranules.
The Hosokawa Group teaches that agglomerates typically have a mean particle size of 0.1 millimeters to a few millimeters, which is 100 microns to thousands of microns, which encompasses the claimed range.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to formulate a porous agglomerate, or microgranule, of 200-500 microns, as claimed. One would have been motivated to make such a modification since this size is known to fall within the typical sizes for an agglomerated particle.
Response to Arguments
Applicant’s arguments filed 12/29/2025 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103 of Pages 6-9, Applicant’s arguments with respect to claim(s) 1-5 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding rejections argued in Pages 9-10 of Remarks in regards to Claims 1 and 3, Ortiz-Julien teaches the claimed limitations as discussed above in regards to Claims 1-3. Regarding arguments in regards to new Claim 21, the grounds of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791