DETAILED ACTION
RESPONSE TO AMENDMENT
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 filed 2-4-2026 has been entered into the record. Claims 1, 2 and 8-10 have been cancelled. Claims 3-7 and 11-15 are pending and under examination.
The text of Title 35 of the U.S. Code not reiterated herein can be found in the previous office action.
Rejections Withdrawn
The rejection of claims 1-9 and 11 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement is withdrawn in view of the properly filed deposit declarations.
The rejection of claim 11 under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention is withdrawn in view of the amendment to the claims.
The rejection of claim 11 under 35 U.S.C. 101 because the claimed recitation of a use, without setting forth any steps involved in the process, results in an improper definition of a process, 1.e., results in a claim which is not a proper process claim under 35 U.S.C. 101. See for example Ex parte Dunki, 153 USPQ 678 (Bd.App. 1967), Clinical Products, Ltd. v. Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966) and MPEP 2173.05(q) is withdrawn in view of the amendment to the claim.
The rejection of claim(s) 1-7 and 11 rejected under 35 U.S.C. 102(a)(1) and (a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Kobayashi et al (WO2017/209156 A1) is withdrawn in view of the amendment to the claims.
The rejection of claim(s) 8-9 under 35 U.S.C. 103 as obvious over Kobayashi et al (WO2017/209156 A1) in view of CN112777098B (6-21-2022) is withdrawn in view of the amendment to the claims.
Rejections Maintained
Claims 3-7 stand rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they are drawn to a natural product for reasons made of record in the Office Action mailed 11-4-2025.
Applicant’s arguments have been carefully considered but are not persuasive. Applicant argues that the combination is synergistic as claimed and therefore meets the criteria for 35 USC 101. This is not persuasive, each of the microorganism are still natural products performing the functions known to the art as described in the first office action on the merits. The combination does not amount more than the judicial exception as the function of each remains the same and the fundamental characteristics of the strains are not altered. Synergy does not change the function or change the naturally occurring characteristics of the claimed bacteria. No new property is demonstrated by the combination that is not present in the individual bacteria. The combination does not transform to become something different. As such, the property of synergy does not provide a markedly different characteristic since the function of the individual strains are the same. For the foregoing reasons, the rejection is maintained.
Status of Claims
Claims 3-7 stand rejected. Claims 11-15 are allowable.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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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/Patricia Duffy/Primary Examiner, Art Unit 1645