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 .
Claims 1-7 and 14-18 are canceled.
Claims 8-13 are pending and examined on the merits.
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 10 and 13 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 10 is rendered indefinite by the recitation “the composition” in line 3 because it is unclear whether it is referring to the composition that is manufactured (“A method of manufacturing a composition” of parent claim 8) or the probiotics composition. The use of the term “the composition” in line 3 of claim 10 is confusing because a composition is manufactured by the method of parent claim 8. Since claim 10 is indefinite, its dependent claim, claim 13, is rendered indefinite. Thus, claims 10 and 13 are rejected under 35 U.S.C. 112(b). For the purpose of applying prior art, “the composition” in line 3 of claim 10 is being interpreted as “the probiotics composition.”
Notice Re: Prior Art Available Under Both Pre-AIA and AIA
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.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 8-10 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhao (CN 102356913. Machine Translation cited below).
Zhao discloses a method for preparing a probiotics fermented blueberry pulp powder. A composite probiotics leaven freeze-dried powder is prepared (abstract; paragraphs [0013]-[0024]). The composite probiotics leaven freeze-dried powder is directed to a ‘probiotics composition’ as instantly claimed. The composite probiotics leaven freeze-dried powder (as in section 2.4 in paragraph [0024]) is mixed and fermented with a concentrated slurry solid, i.e. a sugared concentrated pulp solid (abstract; paragraph [0034]). The concentrated slurry solid is prepared by concentrating a blueberry raw fruit slurry, adding white granulated sugar to prepare a concentrated pulp, sterilizing by the ozone the concentrated fruit pulp, and heating the concentrated slurry (paragraphs [0026]-[0032]). Since the concentrated slurry solid is fruit combined with sugar, then the concentrated slurry solid is directed to a food. Therefore, the step of mixing and fermenting the composite probiotics leaven freeze-dried powder (‘probiotics composition’) with the concentrated slurry solid (‘food’) of Zhao is directed to step 1 of instant claim 8.
Next, Zhao teaches that the material from the mixing and fermenting step (i.e., step 3.4 described in paragraphs [0033]-[0034]) is freeze-dried to obtain a probiotics fermented blueberry pulp powder (abstract, paragraphs [0035]-[0036]). This is directed to step 2 of instant claim 8. Therefore, Zhao anticipates instant claims 8 and 9 (the composite probiotics leaven freeze-dried powder of Zhao is directed to a ‘probiotic-containing powder’).
Regarding instant claim 10, the concentrated slurry solid of Zhao is directed to fruit. The composite probiotics leaven freeze-dried powder of Zhao is directed to a probiotics composition containing freeze-dried probiotic organisms (in particular, freeze-dried Lactobacillus rhamnosus, Lactobacillus paracasei subspecies paracasei, Lactobacillus acidophilus, Saccharomyces cerevisiae, and Candida utilis as disclosed in the abstract) and is directed to a powder which is applied to the food (the concentrated slurry solid). Therefore, instant claim 10 is anticipated.
Regarding instant claim 13, the preparation of the concentrated slurry solid (directed to the claimed food that is mixed with a probiotics composition) includes a final step of heating a concentrated slurry by slowly raising the temperature to 30ºC (paragraphs [0031]-[0032]). Thus, the food of Zhao, before step 1 of instant claim 8, has been subjected to heating prior to said applying the probiotics composition (the composite probiotics leaven freeze-dried powder), anticipating instant claim 13.
Claims 8 and 9 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Chye (WO 2015/186998. Listed on IDS filed 11/11/25).
Chye discloses a method for the production of a probiotic dried food product, comprising step b of coating a food product with a probiotic organism composition (page 6, second-to-last paragraph; claim 1 of Chye). This is directed to step 1 of instant claim 8.
Then, step c of the method is subsequently drying the food product to obtain the probiotic dried food product (page 6, second-to-last paragraph; claim 1 of Chye). Step c comprises a drying process that can be freeze drying (claim 9 of Chye). See also page 8, third paragraph. Therefore, Chye teaches freeze drying the product of step 1, directed to step 2 of instant claim 8.
As such, Chye anticipates instant claim 8.
Regarding instant claim 9, Chye discloses that for step b (the coating step) the probiotic organism composition may be provided as a solution of the bacteria (page 7, last paragraph). Therefore, instant claim 9 (probiotic-containing solution) is anticipated.
Claims 8, 9, and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McDonough (Journal of Food Science. 1982. 47: 1463-1465).
McDonough discloses producing yogurt by inoculating milk with Streptococcus thermophilus and Lactobacillus bulgaricus cultures, incubating the product, and stirring the yogurt vigorously (page 1463, right column, first full paragraph). The milk is directed to food, specifically meeting the ‘dairy product’ limitation of instant claim 11, and the Streptococcus thermophilus and Lactobacillus bulgaricus cultures are directed to a probiotics composition. Therefore, the inoculation of milk, the incubation, and the stirring are directed to step 1 of instant claim 8.
The yogurt was freeze-dried (page 1463, right column, second full paragraph). This is directed to step 2 of instant claim 8.
As such, McDonough anticipates instant claims 8 and 11.
Regarding instant claim 9, the Streptococcus thermophilus and Lactobacillus bulgaricus cultures are directed to a probiotic-containing solution. Therefore, instant claim 9 is anticipated.
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.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Zhao.
As discussed above, Zhao anticipates claims 8-10 and 13. Zhao differs from claim 12 in that Zhao does not expressly disclose that their probiotics fermented blueberry pulp powder (directed to the claimed ‘product of step 2) is then freeze-dried.
However, for the invention of Zhao, before the effective filing date of the claimed invention, it would have been prima facie obvious to the person of ordinary skill in the art to continue freeze drying the probiotics fermented blueberry pulp powder in the absence of new or unexpected results. See MPEP 2144.04(VI)(B). It would have been obvious to the skilled artisan to repeat the freeze drying of Zhao in order to ensure that the probiotics fermented blueberry pulp powder is sufficiently dried.
Alternatively, the freeze drying of the material as taught in Zhao (paragraphs [0035]-[0036]) can be considered as being split into two portions, i.e., a first step of freeze drying and a second step of freeze drying that make up the total freeze-drying. That first step of freeze drying is directed to step 2 of instant claim 8, such that the product from that first step of freeze drying is the claimed ‘product of step 2.’ Therefore, in undergoing the second step of freeze drying (for completion of the freeze drying of Zhao), then the product of step 2 is then freeze-dried.
As such, Zhao renders obvious instant claim 12.
Claims 10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Chye in view of Corveleyn (US 2012/0039853).
As discussed above, Chye anticipates claims 8 and 9. Regarding claim 10, Chye discloses that the food product is a fruit (page 7, first paragraph; claim 2 of Chye). Regarding claim 13, Chye teaches a pre-treating step for preparing the food product to be used in their invention (page 7, third paragraph). For the pretreatment, preferably the food product is sterilized, and it is preferred that it is a pretreatment with steam, such as a flash stem treatment (page 7, third paragraph). The application of steam is directed to heating the food product. Thus, Chye meets the limitation of claim 13 in which the food, before step 1, has been subjected to heating prior to applying the probiotics composition.
However, Chye differs from claims 10 and 13 in that Chye does not expressly disclose that the probiotic organism composition (directed to the claimed probiotics composition) contains freeze-dried probiotic organisms, wherein the probiotic organism composition is a powder or a solution which is applied to the food.
Corveleyn discloses an effective cryoprotectant composition, without containing skim milk or any other animal-derived compounds, to achieve long-term stability of freeze-dried lactic acid bacteria (LAB), at different temperatures (paragraph [0024]). The main advantage of the cryoprotectant composition formulation is to provide protection for the highly sensitive bacteria during freeze-drying, during short-term exposure to normal manufacturing operational conditions, and during long-term storage after packaging (paragraph [0024]). Additionally, Corveleyn states that the freeze-dried lactic acid bacteria of their invention can be used in the food industry in general as a food additive (paragraph [0084]), and their freeze-dried lactic acid bacteria are useful for a variety of edible product components or ingredients such as fruits (paragraph [0085]). The particular advantage of the freeze-dried lactic acid bacteria of the invention is the high level of viability and long-term storage capacity (paragraph [0085]).
Before the effective filing date of the claimed invention, for the probiotic organism composition of Chye that is a solution of bacteria (page 7, last paragraph), wherein the bacteria is lactic acid bacteria (page 7, second paragraph), it would have been obvious to the person of ordinary skill in the art to substitute the bacteria with freeze-dried lactic acid bacteria manufactured according to Corveleyn, when performing the method of Chye. One of ordinary skill in the art would have been motivated to do this because, prior to the inclusion of the freeze-dried lactic acid bacteria in the solution, it would have been advantageous to prepare the lactic acid bacteria as the freeze-dried lactic acid bacteria according to Corveleyn since it would have a high level of viability and long-term storage capacity. There would have been a reasonable expectation of providing the freeze-dried lactic acid bacteria in solution that coats the food product for making the probiotic dried food product of Chye because Corveleyn indicates that their freeze-dried lactic acid bacteria can be used as a food additive and for a variety of edible product components such as fruit. Therefore, Chye in view of Corveleyn renders obvious instant claims 10 (fruit; solution) and 13 (heating).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Chye.
As discussed above, Chye anticipates claims 8 and 9. Chye differs from claim 12 in that Chye does not expressly disclose that their probiotic dried food product (directed to the claimed ‘product of step 2’) is then freeze-dried.
However, for the invention of Chye, before the effective filing date of the claimed invention, it would have been prima facie obvious to the person of ordinary skill in the art to continue freeze drying the probiotic dried food product in the absence of new or unexpected results. See MPEP 2144.04(VI)(B). It would have been obvious to the skilled artisan to repeat the freeze drying of Chye in order to ensure that the probiotic dried food product is sufficiently dried.
Alternatively, the freeze drying of step c of Chye can be considered as being split into two portions, i.e., a first step of freeze drying and a second step of freeze drying that make up the total freeze-drying of step c. That first step of freeze drying is directed to step 2 of instant claim 8, such that the product from that first step of freeze drying is the claimed ‘product of step 2.’ Therefore, in undergoing the second step of freeze drying (for completion of the freeze drying of step c of Chye), then the product of step 2 is then freeze-dried.
Therefore, Chye renders obvious instant claim 12.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over McDonough.
As discussed above, McDonough anticipates claims 8, 9, and 11. McDonough differs from claim 12 in that McDonough does not expressly disclose that their freeze-dried yogurt (directed to the claimed ‘product of step 2’) is then freeze-dried.
However, for the invention of McDonough, before the effective filing date of the claimed invention, it would have been prima facie obvious to the person of ordinary skill in the art to continue freeze drying the freeze-dried yogurt in the absence of new or unexpected results. See MPEP 2144.04(VI)(B). It would have been obvious to the skilled artisan to repeat the freeze drying of McDonough in order to ensure that the freeze-dried yogurt is sufficiently dried.
Alternatively, the freeze drying of the yogurt of McDonough can be considered as being split into two portions, i.e., a first step of freeze drying and a second step of freeze drying that make up the total freeze-drying of the yogurt. That first step of freeze drying is directed to step 2 of instant claim 8, such that the product from that first step of freeze drying is the claimed ‘product of step 2.’ Therefore, in undergoing the second step of freeze drying (for completion of the freeze drying of McDonough), then the product of step 2 is then freeze-dried.
Therefore, McDonough renders obvious instant claim 12.
Conclusion
No claims are allowed.
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/SUSAN E. FERNANDEZ/ Examiner, Art Unit 1651
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