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 1-16 filed 10/24/2024 are pending in the application and are hereby examined on the merits.
Claim Objections
Claim 1 is objected to because of the following informalities: “DSM 34256 and/or DSM 34257” should read “a bacteriophage strain deposited at Deutsche Sammlung von Mikroorganismen und Zellkulturen GmbH (DSMZ) under Accession Number DSM 34256 and/or DSM 34257”. Claims 4-5 and 9-10 are objected to for a similar reason. Appropriate correction is required.
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 8-9 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.
Claim 8 depends from claim 6 and recites “wherein at least one Lactobacillus strain is….”. There is insufficient antecedent basis for the limitation “at least one Lactobacillus strain”. For the purpose of examination, claim 8 is construed to depend from claim 7, and “at least one Lactobacillus strain” is construed to mean “the Lactobacillus species”. Appropriate correction is required.
Claim 9 depends from claim 6 and recites “wherein the Lactobacillus bulgaricus strain is….”. There is insufficient antecedent basis for the limitation “the Lactobacillus bulgaricus strain”. For the purpose of examination, claim 9 is construed to depend from claim 8, and “the Lactobacillus bulgaricus strain” is construed to mean “the Lactobacillus delbrueckii subsp. bulgaricus strain”. Appropriate correction is required.
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 1-8, 10 and 12-16 are rejected under 35 U.S.C. 103 as being unpatentable over Trihaas WO 2018/220104 A1 (cited in the IDS submitted 10/24/2024, hereinafter referred to as Trihaas).
Regarding claims 1, 3, 6-8 and 12-16, Trihaas teaches a method of producing a phage-resistant strain of Streptococcus thermophilus, the method comprising exposing a mother strain of Streptococcus thermophilus (e.g., DSM 32502) that is not resistant towards a bacteriophage (e.g., DSM 23962), e.g., by incubating the phage sensitive mother strain in the presence of the bacteriophage to induce the mutation of the mother strain to produce a strain of Streptococcus thermophilus (e.g., DSM32503- DSM 32507) that is resistant to the bacteriophage (page 1, line 28- page 2, line 7; page 3, line 19-22; page 7, line 7-12). Trihaas teaches that the phage-resistant strain of Streptococcus thermophilus has an increased texturizing capacity or acidification time as compared to the mother strain (page 2, line 15-20; page 7, line 26-30).
Trihaas further teaches using a starter culture comprising the phage-resistant strain of Streptococcus thermophilus to make a fermented milk product (e.g., set yogurt, stirred yogurt, buttermilk, sour milk, cultured milk, Smetana, sour cream, Kefir, fresh cheese and quark; page 14, line 11-13) (page 8, line 21-35). For example, Trihaas teaches a yogurt culture comprising the phage-resistant strain of Streptococcus thermophilus, and at least one Lactobacillus delbrueckii subsp. bulgaricus strain (page 8, line 30-35).
It is noted that Trihaas differs from instant claims in that they use different bacteriophages to incubate with the mother strain (e.g., Trihaas uses DSM 23962 and claim 1 uses DSM 34256 and/or DSM 32457), however, the instant specification recites that the phage-resistant lactic acid bacteria (e.g., Streptococcus thermophilus) strain is generated by the same method of incubating a phage sensitive mother strain with a bacteriophage to induce mutation of the mother strain (page 3, line 35- page 4, line 17). Thus given that prior art has established that challenging a phage sensitive mother strain of Streptococcus thermophilus with a bacteriophage will induce the mutation of the mother strain to produce a mutant strain that is resistant to the bacteriophage, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have incubated the mother strain of Trihaas (e.g., DSM 23962) with any desired challenger bacteriophage including DSM 32456 and DSM 32457 so as to produce a mutant strain of Streptococcus thermophilus that is resistant to that challenger bacteriophage (DSM 32456 and/or DSM 32457). One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation that incubating a phage sensitive Streptococcus thermophilus strain with a bacteriophage will produce a phage-resistant mutant of the mother strain.
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have used the strain Streptococcus thermophilus that is resistant to DSM 3245 and/or DSM 32457 as part of the starter culture to produce a fermented milk product because prior art has established that a phage-resistant strain of Streptococcus thermophilus of a mother strain can be used to make a fermented dairy product.
Regarding claim 2, given that Trihaas as modified above teaches the same method of incubating a lactic acid bacteria (e.g., Streptococcus thermophilus) with DSM 34256 and/or DSM 32457 to produce a phage resistant lactic acid bacteria, it logically follows that the lactic acid bacteria obtained has the increased viscosity as compared to the mother strain. See In re Best. Note that Trihaas teaches that the phage-resistant strain of Streptococcus thermophilus has an increased texturizing capacity relative to the mother strain.
Regarding claims 4-5, given that prior art has established that challenging a phage sensitive mother strain of Streptococcus thermophilus with a bacteriophage will induce the mutation of the mother strain and produce a strain of that is phage resistant, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have incubated any desirable mother strain such as DSM 32436 with the bacteriophage strain DSM 32456 and/or DSM 32457 so as to produce a mutant strain of Streptococcus thermophilus (e.g., DSM 34235) that is resistant to that challenger bacteriophage (DSM 32456 and/or DSM 32457). One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation that incubating a phage sensitive Streptococcus thermophilus strain with a bacteriophage will produce a phage-resistant mutant of the mother strain.
Regarding claim 10, Trihaas teaches DSM 32503 is a phage-resistant strain of Streptococcus thermophilus produced by the method (page 7, line 9). Trihaas as recited above teaches that the phage-resistant strain of Streptococcus thermophilus produced is suitable for use as a starter culture to make fermented dairy product. Therefore, It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined DSM 32503 with the strain of Streptococcus thermophilus that is resistant to DSM 34256 and/or DSM 32457 because "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Trihaas as applied to claims 1 and 6 above, and further in view of Robichon US Patent Application Publication No. 2012/0156327 A1 (hereinafter referred to Robichon).
Regarding claim 9, Trihaas as recited above teaches a yogurt starter culture comprising Streptococcus thermophilus and at least one Lactobacillus delbrueckii subsp. bulgaricus strain, but is silent regarding that the at least one Lactobacillus delbrueckii subsp. bulgaricus strain includes DSM 19251; DSM 19252; DSM 22586; DSM 26419; DSM 28910; DSM 32092; or DSM 33515.
In the same field of endeavor, Robichon teaches that a starter comprising at least one Streptococcus thermophilus strain and at least one Lactobacillus delbrueckii subsp. bulgaricus strain such as DSM 19252 can be used to make a yogurt (0010).
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 Trihaas by using DSM 19252 as the source of Lactobacillus delbrueckii subsp. bulgaricus with reasonable expectation of success, for the reason that prior art has established that DSM 19252 is an art-recognized Lactobacillus delbrueckii subsp. bulgaricus strain suitable for making a yogurt when combined with Streptococcus thermophilus. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Trihaas as applied to claims 1 and 6 above, and further in view of Koga US Patent Application Publication No. 2007/0071737 A1 (hereinafter referred to Koga).
Regarding claim 11, Trihaas as recited above teaches a yogurt starter culture comprising Streptococcus thermophilus and at least one Lactobacillus delbrueckii subsp. bulgaricus strain, but is silent regarding one or more probiotic strains selected from Bifidobacterium, Lactobacillus acidophilus, Lacticaseibacillus casei, Lacticaseibacillus paracasei, Lacticaseibacillus rhamnosus, and Limosilactobacillus fermentum.
In the same field of endeavor, Koga teaches that a yogurt can be prepared by inoculating milk with a dairy farming lactic acid bacterium such as Lactobacillus bulgaricus, Lactobacillus acidophilus, Lactobacillus helveticus, Streptococcus thermophilus and Streptococcus lactis (0080).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined Lactobacillus acidophilus with Streptococcus thermophilus and Lactobacillus delbrueckii subsp. bulgaricus strain to make a yogurt with reasonable expectation of success, for the reason that "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
Kouwen US Patent Application Publication No. 2017/0218468 A1, which describes a method for the construction of a bacteriophage insensitive mutant of a bacteriophage sensitive S. thermophilus parent strain suitable for food and feed fermentation, the method comprising (a) exposing the parent strain to a bacteriophage, and (b) isolating single colonies of one or more bacteriophage insensitive mutant.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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