DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments
Applicant's amendments filed 7/29/2026 to claims 18, 23, and 26-36 have been entered. Claims 1-16 are canceled. Claims 17-36 remain pending and are being considered on their merits. References not included with this Office action can be found in a prior action.
The instant amendments to claim 30 have overcome the 35 U.S.C. § 112(b) and 112(d) rejections of record, which are withdrawn. The instant amendments to claim 34 have overcome the 35 U.S.C. § 102 rejections of record, which are withdrawn.
Any objections and/or rejections of record not particularly addressed below are withdrawn in light of the claim amendments and/or applicant’s comments.
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.
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 17-22, 25-31, and 33-36 are rejected under 35 U.S.C. 103 as being unpatentable over Chapman et al. (US 8,772,002) in view of Suksathit et al. (ScienceAsia (2013), 39, 346-355).
Chapman teaches a method of controlling undesirable microorganism concentration in an aqueous fluid solution employed in a yeast fermentation process, the method comprising the steps of 1) introducing a fermentable carbohydrate to the aqueous fluid solution; 2) introducing at least one desirable microorganism that is capable of fermenting carbohydrate to the aqueous fluid solution; introducing a composition comprising an organic acid and hops acid as an antimicrobial/preservative into the aqueous fluid solution, 3) adding at least one surfactant and being substantially free of any lauric arginate (Abstract; Col. 6, line 40 through Col. 7, line 46; Col. 9, line 58 through Col. 10, line 13), reading in-part on claims 17, 25, 26, 33, and 34. Chapman teaches that organic acids are synergists and understood as passively diffusing into bacterial cells and disrupting the intracellular pH and increasing osmotic pressure (Col. 3, line 64 through Col. 4, line 10), reading in-part on claims 17, 26, 34, and the negative limitation of claim 36. Chapman teaches that the concentration of glycerol, indicative of yeast health, in the fermentation system was sufficient to no affect the performance of the yeast (Fig. 5 and Col. 14, lines 24-33), reading in-part on claims 19 and 28. Chapman teaches that the concentrations of lactic acid and acetic acid, indicative of the presence of lactic acid bacteria, in the fermentation system was sufficiently controlled/managed (Figs. 3-4 and Col. 14, lines 24-31), reading in-part on claims 20, 21, 29, and 30. Chapman teaches adding the organic acid in a concentration of 100-12500 ppm (Col. 7, lines 31-40), reading in-part on claims 22 and 31. Chapman teaches measuring yeast budding and viability (Col. 14, lines 18-20), reading in-part on claims 23 and 24. Chapman teaches Lactobacillus sp. as a species of unwanted/contaminating bacteria (Col. 3, lines 53-63), reading on the embodiment of Lactobacillus sp. for the gram-positive bacteria of claim 35.
Regarding claims 17, 26, and 34. Chapman does not teach adding any species of lauric arginate compound. Regarding claims 19 and 28, Chapman does not teach the claimed glycerol concentration range. Regarding claims 20 and 29, Chapman does not teach the claimed lactic acid concentration range. Regarding claims 21 and 30, Chapman does not teach the claimed acetic acid concentration range. Regarding claims 24 and 31, Chapman does not teach adding 5-75 ppm of any species of lauric arginate compound.
Suksathit teaches that combination of organic acid salts with lauric arginate (i.e. LAE) synergistically kill L. monocytogenes and Salmonella Rissen (Abstract; also Table 2 for synergism). Suksathit teaches determining the minimum inhibitory concentration (MIC) by a broth microdilution method, the method comprising serially diluting the test substances into microtiter plates (e.g. diluting in an aqueous solution) (p347, “Susceptibility test methods”), reading on adding LAE to the aqueous solution of claims 1, 11, and 14. Suksathit teaches an MIC for LAE of 0.008% v/v and a minimum bactericidal concentration (MBC) for LAE of 0.032% v/v (Table 1), reading in-part on the LAE concentrations of claims 9, 11, and 14.
Regarding the lauric arginate of claims 17, 26, and 34, it would have been obvious to a person of ordinary skill in the art before the invention was filed to add the LAE of Suksathit to the fermentation methods of Chapman. A person of ordinary skill in the art would have had a reasonable expectation of success to do so because both Suksathit and Chapman are in-part directed towards methods of controlling the levels of undesirable microorganisms in aqueous solutions by adding organic acids, and because Chapman provides a reasonable expectation that combining organic acids with other antimicrobial agents will have synergistic effects because of the known properties of organic acids on bacterial cells. The skilled artisan would have been motivated to do so because Suksathit teaches that the combination of that combination of organic acid salts with lauric arginate is synergistic with respect to bacterial cell death, and so the addition would likely be predictably advantageous to enhance inhibition and/or cell death of unwanted microbial cells in Chapman’s fermentation methods.
Regarding the glycerol concentrations of claims 19 and 28, the lactic acid concentrations of claims 20 and 29,and the acetic acid concentrations of claims 21 and 30, and the lauric arginate concentrations of claims 22 and 31, generally, optimization within prior art conditions or through routine experimentation will generally not support patentability absent a showing of criticality of the claimed range to the contrary. See M.P.E.P. § 2144.05, particularly subsections II and III. In this case for claims 19 and 28, Chapman teaches that the concentration of glycerol, indicative of yeast health, in the fermentation system was sufficient to not affect the performance of the yeast. For claims 20, 21, 29, and 30, Chapman teaches that the concentrations of lactic acid and acetic acid, indicative of the presence of lactic acid bacteria, in the fermentation system was sufficiently controlled/managed. For claims 22 and 31, Suksathit teaches both the MIC and MBC concentrations for lauryl arginate are results-effective in methods of controlling the levels of undesirable microorganisms in aqueous solution. Any further optimization of glycerol, lactic acid, acetic acid, and lauryl arginate concentrations in Chapman’s fermentation methods must be held as prima facie obvious absent any showing of criticality of the claimed concentration ranges to the contrary.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill before the invention was filed.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Chapman and Suksathit as applied to claim 17 above, and further in view of Whitford (US 4,856,421).
The teachings of Chapman and Suksathit are relied upon as set forth above.
Regarding claim 23, Chapman and Suksathit do not teach wherein the budding percentage of the yeast is at least 15%.
Whitford teaches methods of fermenting wine and maintaining constant yeast propagation during fermentation by detecting the specific gravity and turbidity in a continuous fermenting tank and adding yeast from a yeast propagation tank to the continuous fermentation tank as necessary and automatically controlled by a computer (Abstract). Whitford teaches that yeast budding was constant at about 50% as a function of cell count in the continuous fermenting tank (Fig. 3, noting “CC” for cell count, “%B” for percentage budding, and “B” for Baume; Col. 2, lines 50-55; Col. 4, lines 3-17), reading on claim 23.
It would have been obvious to a person of ordinary skill in the art before the invention was filed to further propagate the yeast of Chapman with the LAE of Suksathit to maintain a yeast budding percentage of at least 15% in view of Whitford. A person of ordinary skill in the art would have had a reasonable expectation of success to do so because both Chapman and Whitford are in-part directed towards methods of producing ethanol by fermentation of yeast. The skilled artisan would have been motivated to do so because Whitford teaches that yeast budding was constant and a function of the yeast cell count in the fermentation tank and methods, and so maintaining constant yeast propagation during the fermentation methods of Chapman would predictably improve upon Chapman’s by optimizing the ethanol yield in view of Whitford.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill before the invention was filed.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Chapman and Suksathit as applied to claim 17 above, and further in view of Ziegler et al. (US 2008/0206215)
The teachings of Chapman and Suksathit are relied upon as set forth above.
Regarding claim 24, Chapman and Suksathit do not teach wherein the viability of the yeast is at least 90%
Ziegler teaches a method of reducing the concentration of undesirable microorganisms during yeast fermentation by adding dissolved chlorine dioxide (CLO2) gas (Abstract). Ziegler teaches that adding 10 ppm ClO2 improves yeast viability to about 100% at 24- and 29-hours after the start of yeast propagation (Fig. 4C; [0041] and [0062]), and the addition of ClO2 improves ethanol yields from the yeast fermentation at 20-40 hours after the start of fermentation (Fig. 3; [0040] and [0061]) reading on claim 24.
It would have been obvious to a person of ordinary skill in the art before the invention was filed to further propagate the yeast of Chapman with the LAE of Suksathit to maintain a yeast viability percentage of at least 90% in view of Ziegler. A person of ordinary skill in the art would have had a reasonable expectation of success to do so because both Chapman and Ziegler are in-part directed towards methods of producing ethanol by fermentation of yeast. The skilled artisan would have been motivated to do so because Ziegler teaches that maintaining a yeast viability of at least 90% is advantageous to reduce the concentration of undesirable microorganisms during yeast fermentation,, and so maintaining a high yeast viability during the fermentation methods of Chapman would predictably improve upon Chapman’s by optimizing the ethanol yield in view of Ziegler.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill before the invention was filed.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Chapman and Suksathit as applied to claims 26 and 29 above, and further in view of Yang et al. (Chapter 4 in Bioprocessing for Value-Added Products from Renewable Resources (2007), 73-118).
The teachings of Chapman and Suksathit are relied upon as set forth above. Chapman further teaches a final ethanol yield of about 0.42-0.43 grams of ethanol per gram of dry corn (Example 3, particularly Table 4), reading in-part on the ethanol concentration of claims 13 and 16.
Yang teaches that for fermentation methods, ethanol yields of about 0.46 g/g (i.e. gram of ethanol per gram of substrate) equates to 90% of the theoretical yield (paragraph spanning p91-92), reading on claim 32.
Regarding and the ethanol concentration of claim 32, optimization within prior art conditions or through routine experimentation will generally not support patentability absent a showing of criticality of the claimed range to the contrary. See M.P.E.P. § 2144.05, particularly subsections II and III. In this case, the ethanol yields of Chapman as about 0.42-0.43 g/g would appear to already be at about 90% of the theoretical (maximum) yield ethanol in view of Yang thus reading on claim 32. Alternatively, any further optimization of Chapman’s fermentation methods to improve the final ethanol yield must be held as prima facie obvious as it is apparent from Chapman the desirability of maximizing the yield of fermentation products made by fermentation methods.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill before the invention was filed.
Response to Arguments
Applicant's arguments on pages 5-6 of the reply have been fully considered, but not found persuasive of error. Applicant alleges that Suksathit teaches away from adding a lauric arginate compound to fermentation systems and associated fermentation methods thereof. This is not found persuasive, because nothing in Suksathit criticizes, discredits, or otherwise discourages the claimed solution; see M.P.E.P. § 2145(X)(D). In this case, that Suksathit teaches lauric arginate is bactericidal is precisely the motivation to add lauric arginate to the yeast fermentation methods and system of Chapman. Nothing in Suksathit suggests that the concentrations of lauric arginate utilized by Suksathit would otherwise act as an antiseptic against yeast or otherwise impede the fermentation methods and systems Chapman, and Applicant did not otherwise furnish additional evidence for consideration and in support of the “teaching away” argument. Assuming arguendo that lauric arginate compounds are antifungals, Applicant’s arguments are not persuasive because they are not reasonably commensurate to the scope of the claims as none of the at least independent claims require any particular concentration of any particular laurate arginate compound. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion
No claims are allowed. No claims are free of the art.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN C BARRON whose telephone number is (571)270-5111. The examiner can normally be reached 7:30am-3:30pm EDT/EST (M-F).
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/Sean C. Barron/Primary Examiner, Art Unit 1653
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