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 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 1-5 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 recites “containing”. Claim 4 recites “characterized by containing”. Claim 5 “characterized by adding”. It is unclear what the applicants intend as the transitional phrase in these claims. The claims are interpreted as utilizing the transitional phrase “comprising” for examination purposes.
Claims 2-3 are rejected for relying on claim 1 as an independent claim.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1-5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by United States Patent Publication No. 2014/0134310 (NAKAMURA).
As to claim 1, NAKAMURA discloses an acidic milk beverage [0016] containing live lactic acid bacterium [0037] comprising an ethanol-precipitated material of a pea, pectic polysaccharide [0027], [0039].
As to claim 2, the pH can range from 3.2 to 3.4 [0016]
As to claim 3, the composition has a solids-not-fat content of 4.0 mass% or less [0016].
As to claim 4, an agent is disclosed comprising an ethanol-precipitated material of a pea polysaccharide as an active ingredient [0027], [0039].
As to claim 5, given the same material is added to acidic milk [0027], [0039], adding the ethanol-precipitated material of a pea, pectic polysaccharide NAKAMURA to an acidic milk beverage containing live lactic acid bacterium would naturally increase the viability of the live lactic acid bacterium.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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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.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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