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 .
The status of the claims stands as follows:
Pending claims: 1-15
Withdrawn claims: 6-15
Claims currently under consideration: 1-5
Currently rejected claims: 1-5
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-5) in the reply filed on 08/24/2026 is acknowledged.
Claims 6-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II-IV, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/24/2026.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claims 1-5 are rejected 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “the fermented food is substantially free from glucose”. However, “substantially free” is a relative term which renders the claim indefinite. The term “substantially free” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
For the purpose of this examination, “substantially free of glucose” will be interpreted as meaning that the fermented food contains no more than 1 wt.% glucose.
Claim 1 also recites “the fermented food contains sugars which can be assimilated by the lactic acid bacterium other than glucose”. Since the claim is directed to a fermented food, the claim implies that fermentation is finished so that no other sugar(s) would be assimilated by the fermentation bacterium. However, the limitation requiring the fermented food contain sugars that can be assimilated by the lactic acid bacterium makes it seem as if the claim is directed to the food prior to fermentation. It is also noted that it is unclear as to whether the term “sugars” means that the claim requires more than one assimilable sugar other than glucose. For at least these reasons, the claim is indefinite.
For the purpose of this examination, “the fermented food contains sugars which can be assimilated by the lactic acid bacterium other than glucose” will be interpreted as meaning that the fermented food comprises at least one of a same type of sugar that was assimilable by the lactic acid bacterium other than glucose.
Claim 1 recites “the sugars which can be assimilated by the lactic acid bacterium” in lines 6-7. However, it is unclear as to whether “the sugars” refers to: option (A) the assimilable sugar(s) other than glucose; or option (B) the assimilable sugar(s) other than glucose and glucose. For at least this reason, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted according to option (A).
Claims 2-5 are rejected by reason of dependency from claim 1.
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 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Alemneh (Alemneh et al., "Teff-Based Probiotic Functional Beverage Fermented with Lactobacillus rhamnosus and Lactobacillus plantarum", 2021, Foods, 10, 2333; IDS citation).
Regarding claims 1, 2, and 3, Alemneh teaches a lactic acid fermented food produced by fermenting a teff substrate with lactic acid bacteria from the genus Lactobacillus (corresponding to Lactobacillus rhamnosus and Lactobacillus plantarum) (abstract) as recited in present claims 1 and 3. Alemneh teaches that the fermented food contains maltose (abstract). Maltose is a sugar that is assimilated by the lactic acid other than glucose; and is derived from a vegetable material containing starch (corresponding to teff substrate) (abstract) as recited in present claims 1 and 2. Alemneh teaches that the fermented food contains 0 mg/L glucose (Experiments 5, 6, and 7 in Table 5 on page 10). Therefore, Alemneh teaches that the fermented food is substantially free from glucose. Alemneh teaches that the fermented food has a pH of 3.91-4.25 (page 8, 1st paragraph), which falls within the pH range recited in present claim 1.
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 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Samoto (US 2014/0113866).
Regarding claims 1, 4, and 5, Samoto teaches a fermented food comprising a lactic acid bacterium, wherein the lactic acid bacterium may be Lacticaseibacillus paracasei strain YI 9029 [0183], [0191], [0251] as recited in present claims 1, 4, and 5. Samoto teaches that the fermented food may be produced from a raw material comprising soybean protein material and two or more kinds of assimilable sugar such as glucose and maltose, wherein the total amount of assimilable sugar relative to a dry matter content of the soybean protein material is 1-50 wt.% [0188]. Since the assimilable sugars are used by the lactic acid bacteria during fermentation, the content of glucose in the fermented food may be within the range of “substantially free” while the content of the other assimilable sugars (e.g., maltose) in the fermented food may be greater than 0 wt.%. Therefore, the feature that the fermented food is substantially free from glucose and the feature that the fermented food contains sugars which can be assimilated by the lactic acid bacterium other than glucose as recited by present claim 1 are rendered obvious. Samoto also teaches that the fermented food may have a pH of 3-5, such as 3.6 [0192], [0251] which falls within the pH range recited in present claim 1.
Samoto teaches that assimilable sugars may not need to be added to the raw material for fermentation [0188], which means that the sugars may be obtained from the soybean material. Soybean is a vegetable material which contains starch. Therefore, the feature that the assimilable sugars derive from a vegetable containing starch as recited in present claim 1 is rendered obvious. Furthermore, there is no patentable difference between sugar (e.g., glucose, maltose) obtained from a vegetable material containing starch and the same sugar obtained by any other method (i.e., both sugars have the same chemical formula). Therefore, Samoto is considered to render the feature obvious even if a practitioner consulting Samoto does not obtain the assimilable sugars from a vegetable material containing starch.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KELLY P KERSHAW/Examiner, Art Unit 1791
Prosecution Insights