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 .
Status of the Application
The status of the claims stands as follows:
Claims currently under consideration: 1-11
Currently rejected claims: 1-11
Allowed claims: None
Claim Objections
Claim 1 is objected to because of the following informalities: step (c) recites “to with” but should not have the word “to”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-3 and 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over Rollan et al. (U.S. 2011/0129543 A1) in view of Prakash et al. (U.S. 8,945,652 B2) and Purkayastha et al. (U.S. 2015/0125571 A1).
Regarding claim 1, Rollan et al. discloses a process for obtaining a fermented plant composition, the process comprising: (i) providing an aqueous extract from a plant ([0074]); (ii) adding a carbohydrate source to the extract ([0075]); and (iii) fermenting the extract with a kefir grain ([0075]) under conditions to allow the production of an organic acid by the bacteria ([0085]), wherein the carbohydrate source can be metabolized by the yeasts of the consortium ([0070], [0076]).
Rollan et al. does not explicitly disclose the extract as having an organoleptic defect that is earthy, bitter, or metallic prior to fermentation that is not present in the resultant fermented plant composition.
However, Prakash et al. discloses natural high-potency sweeteners, such as rebaudioside A, that may be in extracted form (C8, L57-L67) and that have an organoleptic defect in the form of undesirable bitter/metallic taste attributes (C2, L29-L50). Prakash et al. further discloses that the sweeteners may be modified by being fermented (C9, L10-L14). Purkayastha et al. discloses that steviol glycosides, such as rebaudioside A, exhibit improved sweet taste when added to a fermentation mixture before fermentation rather than after fermentation ([0015], [0018], [0031]).
As for the extract having an organoleptic defect prior to fermentation, Rollan et al. discloses broadly that the method is performed on a glycosylated plant extract ([0034]), although more specific examples are provided. Nonetheless, the intended breadth of the disclosure of the reference as being for glycosylated plant extracts in general would prompt a skilled practitioner to consult additional references for further instruction. Purkayastha et al. discloses steviol glycosides as being glycosylated ([0005]-[0006], Table 1), and Prakash et al. discloses those steviol glycosides as being in extracted form (C8, L57-L67). Prakash et al. further discloses that those steviol glycosides have an organoleptic defect in the form of undesirable bitter/metallic taste attributes (C2, L29-L50), and Purkayastha et al. confirms that characterization ([0007]). Prakash et al. then discloses that the sweeteners may be modified by being fermented (C9, L10-L14), and Purkayastha et al. discloses that steviol glycosides, such as rebaudioside A, exhibit improved sweet taste when added to a fermentation mixture before fermentation rather than after fermentation ([0015], [0018], [0031]), suggesting that the steviol glycosides undergo some change during the fermentation process. In light of the combined teaching of Prakash et al. and Purkayastha et al., a skilled practitioner would find the utilization of a steviol glycoside, such as rebaudioside A, in the method of Rollan et al. to be obvious, with the expectation that the fermentation of Rollan et al. would improve the sweet taste of the steviol glycoside. As such, the incorporation of an extract having a bitter/metallic organoleptic defect into the method of Rollan et al., where the organoleptic defect is lacking in the resultant fermented plant composition, would be obvious to a skilled practitioner.
As for claims 2 and 3, the incorporation of steviol glycosides, such as rebaudioside A, was shown to be obvious for the reasons detailed previously in relation to claim 1. Purkayastha et al. discloses that the steviol glycosides are obtained from Stevia rebaudiana ([0004]-[0005]), which renders the plant as being from a Stevia species obvious.
As for claim 7, Rollan et al. discloses performing an aqueous extraction of the plant prior to beginning the fermentation process ([0074]).
As for claim 8, Rollan et al. discloses removing the consortium (i.e., filtration or centrifugation) ([0075]).
As for claim 9, Rollan et al. discloses filtering the fermented plant composition ([0075]).
As for claim 10, the claim does not require any time period during which the relative concentrations of components must be maintained. At the least, then, maintaining the component concentrations for a period of time approaching (but greater than) zero would be obvious, which renders the claimed maintenance step obvious.
As for claim 11, Rollan et al. discloses the symbiotic culture of bacteria and yeasts as being a kefir grain ([0075]).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Rollan et al. (U.S. 2011/0129543 A1) in view of Prakash et al. (U.S. 8,945,652 B2) and Purkayastha et al. (U.S. 2015/0125571 A1), as evidenced by Downton et al. (U.S. 5,411,755).
As for claim 4, Prakash et al. discloses the natural high-potency sweetener as being mogroside or Luo Han Guo sweetener (C8, L57 – C9, L3). Downton discloses that Luo Han Guo/mogroside sweeteners are Siraitia sp. (C1, L49-L59), which renders plants from the claimed genus obvious.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Rollan et al. (U.S. 2011/0129543 A1) in view of Prakash et al. (U.S. 8,945,652 B2) and Purkayastha et al. (U.S. 2015/0125571 A1) as applied to claim 1, and further in view of Santana et al. (Santana, A. L., and Macedo, G. A., “Health and technological aspects of methylxanthines and polyphenols from guarana: A review”, Journal of Functional Foods, 47 (2018) 457-468).
Regarding claim 5, Rollan et al., Prakash et al., and Purkayastha et al. disclose the process of claim 1.
The cited prior art does not disclose the plant as being from Paullinia sp.
However, Santana et al. discloses that guarana (Paullinia cupana) (p. 457, column 1, ¶1) byproducts may be subjected to fermentation in order to provide bioactive phenolic products (p. 464, column 1, § 3.2.1. Solid state fermentation (SSF)).
It would have been obvious to one having ordinary skill in the art to perform the method of Rollan et al. on an aqueous extract of a plant from Paullinia sp. First, Rollan et al. discloses that the method is useful for deglycosylation of flavonoids ([0030], [0032]-[0034]), which is critical for functionality ([0018]-[0020]), where such flavonoids may be obtained from plants generally ([0073]). A skilled practitioner would thus be motivated to consult Santana et al. for clarification regarding suitable plant material. Since Santana et al. discloses that guarana comprises bioactive phenolic compounds that may be obtained via fermentation (p. 464, column 1, § 3.2.1. Solid state fermentation (SSF)), including flavonoids (p. 458, column 2, ¶4-¶6), the incorporation of guarana as plant material into that of Rollan et al. would be obvious, which renders the use of a plant from Paullinia sp. obvious. MPEP 2144.06 I states: “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.” Combining Stevia and Paullinia species in producing the extract of Rollan et al. would thus be obvious, such that the features of the claimed method as related to the rebaudioside A component would still apply for a mixed composition. That is, the organoleptic defect and subsequent improvement may be from the rebaudioside A component, while guarana may be additionally contained in the plant extract.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Rollan et al. (U.S. 2011/0129543 A1) in view of Prakash et al. (U.S. 8,945,652 B2) and Purkayastha et al. (U.S. 2015/0125571 A1) as applied to claim 1, and further in view of Wurzer (U.S. 2014/0271940 A1).
Regarding claim 6, Rollan et al., Prakash et al., and Purkayastha et al. disclose the process of claim 1.
The cited prior art does not disclose the plant as being from Cannabis sp.
However, Wurzer discloses Cannabis terpene extracts ([0066]) that may be included in food products ([0097]), where terpenoids impart flavor characteristics ([0007]).
It would have been obvious to one having ordinary skill in the art to perform the method of Rollan et al. on an aqueous extract of a plant from Cannabis sp. First, Rollan et al. discloses that the method is useful for deglycosylation of flavonoids ([0030], [0032]-[0034]), which is critical for functionality ([0018]-[0020]), where such flavonoids may be obtained from plants generally ([0073]). A skilled practitioner would thus be motivated to consult Wurzer for clarification regarding suitable plant material. Since Wurzer discloses that cannabis terpene extracts may be included in food products ([0097]) and that such components are responsible for flavor characteristics ([0007]), the incorporation of a Cannabis extract as plant material into the method of Rollan et al. would be obvious, MPEP 2144.06 I states: “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.” Combining Stevia and Cannabis species in producing the extract of Rollan et al. would thus be obvious, such that the features of the claimed method as related to the rebaudioside A component would still apply for a mixed composition. That is, the organoleptic defect and subsequent improvement may be from the rebaudioside A component, while the Cannabis component may be additionally contained in the plant extract.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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, Emily Le can be reached at 571-272-0903. 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.
/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
Prosecution Insights