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 .
Claim status
Claims 1-15 filed 10/11/2024 are pending in the application and are therefore examined on the merits.
IDS
The office notes that 4 foreign references and 4 non-patent literatures are filed 10/11/2024 but they are not listed in the IDS filed the same day (IDS is blank).
Claim Objections
Claim 1 is objected to because of the following informalities: “ inoculating to the starting material with a composition” in step b) should read “inoculating the starting material with a composition”. Appropriate correction is required.
Claims 4-11 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim cannot depend from any other multiple dependent. See MPEP § 608.01(n). In the instant case, claim 4 depends from claim 3, which is multiple dependent claim; and similarly, each of claims 6-11 also depends from a multiple dependent claim. Accordingly, the claims 4 and 6-11 are not been further treated on the merits. Further, since claim 4 is not treated on the merits and claim 5 depends from claim 4, claim 5 is not treated on the merit, either.
Claim 13 is objected to because of the following informalities: “2-heptenal and 2-octenal and/or 1-penten-3-ol” should read “2-heptenal, 2-octenal and/or 1-penten-3-ol”. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: “104 CFU/g colony forming units (CFU)/g” should read “104 CFU/g”. Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 12-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because a claim directed to a “use” is considered to be an improper definition of a process per MPEP § 2173.05(q).
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 1-3 and 12-15 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 15 recite “preferably the Leuconostoc carnosum DSM or a mutant thereof”. The phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Claim 12 is rejected for the same reason (claim 12 recites “preferably” twice). Appropriate correction is required.
Claims 1 and 15 recite “preferably the Leuconostoc carnosum DSM 34220 or a mutant thereof”. The phase “mutant” renders the claims indefinite because absent a definition or standard, one of ordinary skill in the art would not know what strain meets a mutant of Leuconostoc carnosum and what strain does not. Claims 2-3 depend from claim 1 thus necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claims 12-14 are directed to a use of a composition, without any steps as to how the use is to be practiced. Therefore, it is unclear what steps must be present in order to meet the claim.
Claim 14 recites a concentration of viable cell of at least 104 CFU/g. Is it for the viable cell of Leuconostoc carnosum? Clarification is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 3 depends from claim 1 and recites that the process further comprises mixing the starting material with the composition. However, since claim 1 recites inoculating the starting material with the composition which necessarily encompasses the step of mixing the starting the starting material with the composition (“mixing” is given its broadest reasonable interpretation thus means “combining”), claim 3 fails to further limit claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-3 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Li WO2021/174226 A1 (hereinafter referred to as Li) in view of Budde, “Leuconostoc carnosum 4010 has the potential for use as a protective culture for vacuum-packed meats: culture isolation, bacteriocin identification, and meat application experiments”, International Journal of Food Microbiology 83 (2003) 171– 184 (hereinafter referred to as Budde).
Regarding claims 1-3 and 15, Li teaches a method of making a food product such as a meat analogue (e.g., meat analog, meat substitute or meat replica) comprising providing a starting material comprising a plant material (e.g., a protein composition that comprises soy protein), fat, sugar, amino acid, etc. (page 35, line 6-30; page 38, line 14-16; page 117, line 22-25; page 100, line 18-20; page 96, line 12- page 97, line 7; page 87, line 13 and 19-20; page 88, line 1-2; page 18, line 12). Further, Li teaches that the food product comprises at least one preservative, an antioxidant or a shelf life extender such as Leuconostoc carnosum (e.g., carnosum 4010) (page 36, line 23-24; page 41, line 8-13), thus encompassing the action of mixing the Leuconostoc carnosum with the starting material.
Li is silent regarding inoculating the Leuconostoc carnosum with the starting material, e.g., wherein the Leuconostoc carnosum grows in the starting material.
Budde teaches that Leuconostoc carnosum 4010 is a preservative for a food such as meat, mostly because the strain could produce bacteriocins, antimicrobial peptides that could inhibit a pathogen such as Listeria monocytogenes present in the meat (abstract) further, Budde teaches that Leuconostoc carnosum 4010 needs to grow in the food to produce bacteriocins (page 181, right hand column, 2nd para.).
Both Li and Budde are directed to using Leuconostoc carnosum 4010 as a preservative in a food. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Li by ensuring the growth of Leuconostoc carnosum 4010 in the starting material such that the strain could produce an effective amount of bacteriocins to inhibit pathogens.
Further regarding claim 15, Budde teaches that an addition of 107 CFU/g Leuconostoc carnosum 4010 to a food (e.g., meat sausage) to reduce the number of viable Listeria monocytogenes (Abstract). Further, one of ordinary skill in the art would have been motivated to manipulate the Leuconostoc carnosum 4010 added to the starting material so as to ensure that an effective amount of active substance (e.g., bacteriocins) could be produced by the strain.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
DE 102020124301 A1, which teaches a method of treating a food with Leuconostoc carnosum to extend the shell life of the food.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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