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
The amendment of 12/04/2025 has been entered. Claims 1-10 are pending (claim set as filed on 12/04/2025).
Claims 1-10 are currently under examination and were examined on their merits.
Declaration under 37 CFR 1.132
The Declaration under 37 CFR 1.132 filed on 09/15/2025 and 12/04/2025 has been received and considered.
Withdrawn Objections/Rejections
The rejections of claims 1-10 under 35 USC § 101 and 112 (b) as set forth in the previous Office action (page 3, paragraph 1 - page 4, paragraph 1), and under 35 USC § 112 (a) as set forth in the previous Office action (page 6, paragraph 3 - page 12, paragraph 2), are withdrawn in light of the amendment filed on 12/04/2025.
The rejection of claim 4 under 35 USC § 112 (b) as set forth in the previous Office action (page 4, paragraph 3 - page 5, paragraph 1) is withdrawn in light of the amendment filed on 12/04/2025.
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.
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 factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 1, 3, and 8-10 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, and in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’.
Tuan’s general disclosure relates to “a method for treatment of hyperglycemia, particularly type 2 diabetes with Staphylococcal enterotoxins (SE)” (see entire document, including abstract).
Regarding claims 1 and 3, claim 1 recites “the composition is used to treat insulin resistance or type 2 diabetes”, and claim 3 recites “the composition as an oral drug for gastrointestinal administration”, wherein the recited limitations are considered intended use since the limitations does not impart any structural limitation on the composition itself. Therefore, no patentable weight is given to the limitations describing the use of the composition in claims 1 and 3. It is noted, however, that within the scope of the claims, the claimed composition has to have the ability to treat insulin resistance or type 2 diabetes as recited in claim 1, and to be able to be used as an oral drug for gastrointestinal administration as recited in claim 3.
Pertaining to a method of preparing a composition, Tuan teaches a method of preparing a composition that is used to treat hyperglycemia or type 2 diabetes (“present invention provides a use of SE for manufacturing a medicament for treating hyperglycemia, particularly insulin independent diabetes, e.g., type 2 diabetes.”, “Pharmaceutical compositions can be prepared by mixing with optional physiologically or pharmaceutically acceptable carriers”, “Staphylococcal enterotoxins (SE)”; paragraphs [0004], [0023], [0029]), wherein the composition is a food or drug (“invention provides a dietary or pharmaceutical composition”; paragraphs [0011]-[0012]). Tuan teaches “hyperglycemia as a consequence of increased insulin resistance.” (paragraph [0002]). Therefore, treating hyperglycemia corresponds to treating insulin resistance.
Regarding claims 8-10, pertaining to the composition, Tuan teaches wherein the composition is formulated as a liquid preparation or a solid preparation (“Pharmaceutical compositions can be prepared by mixing with optional physiologically or pharmaceutically acceptable carriers, ... The carrier can be liquid, semi-solid or solid carriers.”; paragraph [0029]).
Additionally, Tuan teaches wherein “[t]he term "Staphylococcal enterotoxins" or "SE" as used herein refers to one or more proteins of Staphylococcal enterotoxins, a functional variant or fragment thereof; including but not limited to Staphylococcal enterotoxin A (SEA), Staphylococcal enterotoxin B (SEB), Staphylococcal enterotoxin C (SEC), Staphylococcal enterotoxin D (SED) and Staphylococcal enterotoxin E (SEE).”; paragraph [0026]).
Tuan does not teach wherein the method comprises culturing a Staphylococcus lentus strain, wherein the Staphylococcus lentus is a strain deposited in Guangdong Microbial Culture Collection Center (GDMCC), with an accession number of GDMCC 1.247 GDMCC 1.247, to obtain a bacterial solution comprising viable cells at a concentration of 4.5 x 108 CFU/mL; and formulating the bacterial solution into the composition. (instant claim 1).
Valle’s general disclosure relates to “the ability of staphylococci isolated in the skin, nasal mucosa, and milk of 133 healthy goats to produce enterotoxins (SE) and determines the direct presence of SE in milk from these animals, using the enzyme-linked immunosorbent assay method.” (see entire document, including page 1323 left column, paragraph 3).
Regarding claim 1, pertaining to Staphylococcus lentus, Valle teaches Staphylococcus lentus (“Five coagulase-negative species not previously reported as SE producers were identified (Staphylococcus chromogenes, S. warneri, S. sciuri, S. saprophyticus, and S. lentus)”, “staphylococcal enterotoxins (SE)”; see abstract). Valle discloses culturing of the staphylococcal strains (“18-h broth inoculated with the staphylococcal strains”; page 1323, right column, paragraph 5).
Additionally, Valle teaches wherein Staphylococcus lentus produces enterotoxin E (“Several types of staphylococcal enterotoxins have been identified on a serological basis and are named SE A through E (SEA through SEE).”; page 1323, left column, paragraph 1; see production of enterotoxin E (SEE) by S. lentus in Table 2).
Centurion’s general disclosure relates to “cell-mediated catalytic process for forming protective nano-shells on individual probiotic cells” (see entire document, including abstract).
Regarding claim 1, pertaining to a bacterial solution, Centurion teaches a bacterial solution comprising viable cells at a concentration of about 108 CFU/mL (“probiotic strain (e.g., LR, LH, or LP)”, “One aliquot of probiotic cell suspension (2 mL, ≈108 CFU mL−1)”; page 8, left column, paragraphs 2-3; note, LR, LH, and LP are Lactobacillus strains, see page 2, right column, paragraph 2), and formulating a bacterial solution into a composition (“One aliquot of probiotic cell suspension
(2 mL, ≈108 CFU mL−1) and another aliquot (2 mL) of a single phenolic solution (…) in Tris-HCl buffer (…) was mixed”; page 8, left column, paragraphs 3 and 7). It is noted that colony forming units (CFU) indicate viable cells.
Additionally, Centurion teaches that health benefits of probiotics are “typically undermined by the low survival rate of probiotics in the stomach” (page 1, right column, paragraph 2).
While Tuan does not teach wherein the method comprises culturing a Staphylococcus lentus strain, wherein the Staphylococcus lentus is a strain deposited in Guangdong Microbial Culture Collection Center (GDMCC), with an accession number of GDMCC 1.247 GDMCC 1.247, to obtain a bacterial solution comprising viable cells at a concentration of 4.5 x 108 CFU/mL; and formulating the bacterial solution into the composition, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have to have modified Tuan’s method of preparing a composition for treating insulin resistance and type 2 diabetes with Valle’s teachings on Staphylococcus lentus and culturing staphylococcal strains, and with Centurion’s teachings on a bacterial solution, in order to develop a method of preparing a composition used for treating insulin resistance or diabetes 2, wherein the method comprises culturing a Staphylococcus lentus strain, to obtain a bacterial solution comprising viable cells at a concentration of about 108 CFU/mL, and formulating the bacterial solution into the composition. One would have been motivated to do so in order to create a method for preparing a superior composition for treating insulin resistance or type 2 diabetes, since viable Staphylococcus lentus produces staphylococcal enterotoxin E (Valle, see production of enterotoxin E (SEE) by S. lentus in Table 2). Further, one would have been motivated to prepare a composition comprising Staphylococcus lentus at a concentration of about 108 CFU/mL in order to ensure sufficient production of enterotoxin E by S. lentus. A skilled artisan would have reasonably expected success in combining Tuan’s and Valle’s teachings since both references are directed to staphylococcal enterotoxins (Tuan, paragraphs [0011]-[0012]; Valle, Table 2), and would have further reasonably expected success in combining Tuan’s with Centurion’s teachings since both references are directed to compositions for gastro-intestinal administration (Tuan, paragraphs [0011]-[0012], [0015]); Centurion, page 1, right column, paragraph 2).
While modified Tuan does not expressly recite a concentration of 4.5 x 108 CFU/mL, the instantly recited concentration would be within the realm of routine experimentation, since modified Tuan teaches about 108 CFU/mL (page 8, left column, paragraphs 2-3). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to determine the optimal concentration range of Staphylococcus lentus in the bacterial solution, in order to identify how much is needed for formulating the effective composition for treating insulin resistance or diabetes 2. Further, one would expect success, since Centurion’s teachings are directed to about 108 CFU/mL of a bacterial strain and, therefore, manipulation of the viable cell concentration based on the teachings of the reference would be within the purview of an artisan.
Modified Tuan does not teach wherein the Staphylococcus lentus is Staphylococcus lentus deposited in Guangdong Microbial Culture Collection Center (GDMCC), with an accession number of GDMCC 1.247 (instant claim 1). The Examiner notes that the instantly recited deposition and accession number are a label and do not further characterize the instant strain. The instant specification and claims describe the claimed Staphylococcus lentus strain as having the ability to significantly reduce weight gain induced by HFD, improve glucose tolerance, promote insulin secretion, improve insulin resistance, and significantly improve immunity and inflammation (see amended specification page 4, paragraph 4), and that the instant strain can be used in preparing a composition to treat or prevent insulin resistance and type 2 diabetes (see amended specification page 2, paragraph 2; see claim 1). Based on modified Tuan’s teachings, it is highly likely that modified Tuan’s strain and Applicant’s strain are the same strain if not obvious variants since modified Tuan’s strain produces staphylococcal enterotoxin E which can be used to treat insulin resistance and type 2 diabetes, as discussed above.
Still, modified Tuan does not teach wherein modified Tuan’s strain is Staphylococcus lentus deposited in Guangdong Microbial Culture Collection Center (GDMCC), with an accession number of GDMCC 1.247. However, if there should be a slight variation between modified Tuan’s strain and the instantly recited strain, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have used the instant strain to prepare a composition as taught by modified Tuan, since both strains, modified Tuan’s strain and the instant strain, share the ability to be used for treating insulin resistance and type 2 diabetes.
Claims 1 and 2 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’, and in view of Jain et al. (“Basic techniques in biochemistry, microbiology and molecular biology”, published in 2020, Springer Protocols Handbooks, New York, NY, USA:: Springer, preface vii- xiv, pages 1-282), hereinafter ‘Jain’.
Modified Tuan’s teachings have been set forth above.
Modified Tuan does not teach wherein the culturing comprises
passaging a culture of the Staphylococcus lentus strain twice prior to obtaining the bacterial solution (instant claim 2).
Jain’s general disclosure relates to “practicals of biochemistry, microbiology, and molecular biology to build the practical base of subject for readers” (see entire document, including preface vii).
Regarding claim 2, pertaining to passaging, Jain teaches “sub-culturing is a procedure of transferring of microorganism into fresh nutritive medium from its stock culture.”, and that “[s]ub-culturing is done to maintain culture in its active form (prolonging life and/or increase the number of cells) for varied applications” (page 101, paragraph 1). Additionally, Jain teaches passaging cells from a culture to different types of medium (“plate/slant/broth”; see procedure on pages 101-102, including step 13).
While modified Tuan does not teach wherein the culturing comprises passaging a culture of the Staphylococcus lentus strain twice prior to obtaining the bacterial solution (instant claim 2), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined modified Tuan’s method with Jain’s teachings on passaging (sub-culturing), in order to have created a method wherein the culturing comprises passaging a culture of the Staphylococcus lentus strain prior to obtaining the bacterial solution. One would have been motivated to do so in order to increase the number of cells, and to maintain viability of the cells.
While modified Tuan does not teach wherein the passaging is performed twice, the instantly recited number of times that passaging is performed would be within the realm of routine experimentation since Jain teaches that passaging is performed to increase the number of cells (page 101, paragraph 1). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have determined the optimal number of times performing a passaging step, in order to prepare a culture with a sufficient number of viable cells.
A skilled artisan would have reasonably expected success in combining modified Tuan’s and Jain’s teachings since both are directed to microbial culturing.
Claims 1 and 7 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’, and in view of Hain et al. (“Advances in antimicrobial activity analysis of fluoroquinolone, macrolide, sulfonamide, and tetracycline antibiotics for environmental applications through improved bacteria selection”, published on 03/22/2021, Journal of Hazardous Materials 415 (2021) 125686, pages 1-12), hereinafter ‘Hain’.
Modified Tuan’s teachings have been set forth above.
Regarding claim 7, the claim recites “measuring the bacterial solution at 625 nm with a microplate reader to confirm an OD625 of 0.30 to 0.39”. It is noted that the recited OD625 naturally results from performing the instantly claimed method steps in claim 1, and therefore, the recited OD625 is inherent to the method. As such, performing the method steps in claim 1 inherently results in an OD625 of 0.30 to 0.39.
Modified Tuan does not teach wherein the culturing further comprises measuring the bacterial solution at 625 nm with a microplate reader to confirm an OD625 of 0.30 to 0.39 (instant claim 7).
Hain’s general disclosure relates to “optimizing bacteria selection to improve the sensitivity of residual antimicrobial activity measurements by broth microdilution assays.” (see entire document, including abstract).
Regarding claim 7, pertaining to measuring OD625, Hain teaches measuring OD at 625 nm using a microplate reader (“Optical density was measured with a Biotek Eon
Microplate Spectrophotometer”, “The plates were sealed …and incubated for 16–20 h at 37 ± 1 ◦C and 140 rpm for E. coli”, “After the incubation period, the microplates were subjected to orbital mixing for 30 s to resuspend cells before OD625 measurement”; page 3, left column, paragraph 4; page 3, right column, paragraph 1).
While modified Tuan does not teach wherein the culturing further comprises measuring the bacterial solution at 625 nm with a microplate reader to confirm an OD625 of 0.30 to 0.39 (instant claim 7), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Tuan’s method with Hain’s teachings on determining OD625, to have created a method wherein the culturing further comprises measuring the bacterial solution at 625 nm with a microplate reader to confirm an OD625 of 0.30 to 0.39. One would have been motivated to do so in order to verify successful culturing of the bacterial strain. A skilled artisan would have reasonably expected success in combining modified Tuan’s teachings with Hain’s teachings since both are directed to microbial culturing.
Claims 1 and 5 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’, in view of Bernardo et al. (“Identification of Staphylococcus aureus exotoxins by combined sodium dodecyl sulfate gel electrophoresis and matrix-assisted laser desorption/ ionization-time of flight mass spectrometry”, published in June 2002, Proteomics, Vol. 2, pages 740–746), hereinafter ‘Bernardo’, and in view of ATCC (“ATCC Bacteriology Culture Guide”, published in 2021, downloaded from https://web.archive.org/web/20210724074634/https://www.atcc.org/resources/culture-guides/bacteriology-culture-guide, pages 1-31), hereinafter ‘ATCC’.
Modified Tuan’s teachings have been set forth above.
Modified Tuan does not teach wherein the culturing further comprises providing a glycerol-preserved culture of the Staphylococcus lentus stored at -80 °C, quick-thawing the culture in a 37 °C to 45 °C water bath, aseptically transferring the culture to a freshly- prepared nutrient broth medium, culturing, and passaging (instant claim 5).
Bernardo’s general disclosure relates to “use of matrix-assisted laser desorption/ionization-time of flight (MALDI-TOF) mass spectrometry for monitoring the pathogenic factors of S. aureus” (see entire document, including abstract).
Regarding claim 5, please note that the claim recites “a nutrient broth medium” which is interpreted to the broadest reasonable extent (see MPEP 2111.01).
Pertaining to the stock culture, Bernardo teaches wherein “[b]acteria were stored as a 20% glycerol stock at –80°C” (page 741, right column, paragraph 1). Bernardo further teaches a Staphylococcus strain (page 741, left column, paragraph 5), and that “bacteria were precultured from the glycerol stock in the brain-heart infusion (BHI) broth at 37°C” (page 741, right column, paragraph 1), and passaging the bacterial pre-culture (“the preculture was inoculated into 1000 mL BHI”; page 741, right column, paragraph 1).
ATCC’s general disclosure is related to “general technical information for bacterial growth, propagation, preservation, and application” (see entire document, including page 1, paragraph 1).
Regarding claim 5, pertaining to the preserved culture, ATCC teaches initiating frozen cultures by thawing the sample “in a water bath that is set to the normal growth temperature of that strain” (see under Initiating Frozen Cultures on page 4, step 2), to “[f]ollow strict aseptic conditions” (see under Initiating Frozen Cultures on page 4, step 3), transferring the culture to a nutrient broth medium (“transfer the entire contents to a sterile test tube containing the appropriate growth medium”; see under Initiating Frozen Cultures on page 4, step 4), and culturing (“Incubate cultures”; see under Initiating Frozen Cultures on page 4, step 5). It is noted that ATCC’s ‘appropriate growth medium’ reads on the instantly recited ‘freshly-prepared nutrient broth medium’.
While modified Tuan does not teach wherein the culturing further comprises providing a glycerol-preserved culture of the Staphylococcus lentus stored at -80 °C, quick-thawing the culture in a 37 °C to 45 °C water bath, aseptically transferring the culture to a freshly- prepared nutrient broth medium, culturing, and passaging (instant claim 5), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Tuan’s method with Bernardo’s teachings on culturing a glycerol preserved Staphylococcus culture and with ATCC’s teachings on initiating a frozen culture, to have created a method wherein the culturing further comprises providing a glycerol-preserved culture of the Staphylococcus lentus stored at -80 °C, quick-thawing the culture in a 37 °C water bath, aseptically transferring the culture to a freshly-prepared nutrient broth medium, culturing, and passaging.
Claims 1 and 6 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’, in view of Cole et al. (“Calcitermin, a novel antimicrobial peptide isolated from human airway Secretions”, published in 2001, FEBS Letters, Vol. 504, pages 5-10), hereinafter ‘Cole’, and in view of Kurokowa et al. (“Precise, High-throughput Analysis of Bacterial Growth”, published on 09/19/2017, Journal of Visualized Experiments, 127, e56197, pages 1-7), hereinafter ‘Kurokowa’.
Modified Tuan’s teachings have been set forth above.
Modified Tuan does not teach wherein the culturing comprises inoculating 50 μL of a culture of the Staphylococcus lentus strain recited in claim 1 into 15 mL of a nutrient broth medium and culturing in a biochemical incubator at 37 °C and 250 rpm for 5 h (instant claim 6).
Cole’s general disclosure relates to “the discovery and characterization of a novel 15-residue antimicrobial peptide” (see entire document, including page 5, right column, paragraph 3).
Regarding claim 6, please note that the claim recites “a nutrient broth medium” which is interpreted to the broadest reasonable extent (see MPEP 2111.01).
Pertaining to culturing, Cole teaches wherein culturing of Staphylococcal strains comprises subculturing “in 50 ml TSB at either 1:100 (…, S. aureus, S. epidermidis, …) or 1:1000 (E. coli) dilution for 2.5 h at 37°C in an environmental shaking incubator (250 rpm)” (page 6, left column, paragraph 5; note TSB, trypticase soy broth).
Kurokowa’s general disclosure relates to bacterial growth and to a protocol for evaluating “the precise growth dynamics in a high-throughput manner” (see entire document, including abstract and introduction, page 1, paragraph 1).
Regarding claim 6, pertaining to culturing, Kurokowa teaches using a biochemical incubator for culturing (“shaking incubator”; see step 8 under 2. Preparing a glycerol stock 1. Cell culture on page 2).
While modified Tuan does not teach wherein the culturing comprises inoculating 50 μL of a culture of the Staphylococcus lentus strain recited in claim 1 into 15 mL of a nutrient broth medium and culturing in a biochemical incubator at 37 °C and 250 rpm for 5 h (instant claim 6), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Tuans method with Cole’s teachings on culturing and with Kurokowa’s incubator, to have created a method wherein culturing comprises inoculating a volume of a culture of the Staphylococcus lentus strain recited in claim 1 into a volume of a nutrient broth medium and culturing in a biochemical incubator at 37 °C and 250 rpm. One would have been motivated to do so in order to create a superior culturing step for preparing cells with increased activity for treating insulin resistance or diabetes 2. A skilled artisan would have reasonably expected success in combining modified Tuan’s teachings with Cole’s and Kurokowas’s teachings, since modified Tuan’s, Cole’s and Kurokowas’s teachings are directed to microbial culturing.
While modified Tuan does not teach inoculating 50 μL of a culture of the Staphylococcus lentus strain recited in claim 1 into 15 mL of medium, and culturing for 5 hours, the instantly recited inoculation volume, medium volume, and culturing time would be within the realm of routine experimentation since modified Tuan teaches a dilution ratio of 1:100 for inoculating, a medium volume of 50 mL, and a culturing time of 2.5h (Cole, page 6, left column, paragraph 5; note TSB, trypticase soy broth). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have determined the optimal culturing conditions, in order to produce highly active cells for treating insulin resistance and diabetes 2. Further, one would expect success since Cole’s teachings are directed to multiple different strains (Cole, page 6, left column, paragraph 5), and therefore, manipulation of the culturing conditions based on the teachings of the reference would be within the purview of an
artisan. Generally, differences in concentration will not support the patentability of
subject matter encompassed by the prior art unless there is evidence indicating such
concentration is critical. "[W]here the general conditions of a claim are disclosed in the
prior art, it is not inventive to discover the optimum or workable ranges by routine
experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955). See
MPEP § 2144.05 part II A.
Claims 1 and 4 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Tuan (US 2020/0121778 A1, published on 04/23/2020), hereinafter ‘Tuan’, in view of Valle et al. (“Enterotoxin Production by Staphylococci Isolated from Healthy Goats”, published in May 1990, Applied and Environmental Microbiology, Vol. 56, No. 5, pages 1323-1326), hereinafter ‘Valle’, in view of Centurion et al. (“Cell-Mediated Biointerfacial Phenolic Assembly for Probiotic Nano Encapsulation”, published on 03/22/2022, Adv. Funct. Mater. 2022, Vol. 32, pages 1-10), hereinafter ‘Centurion’), in view of Humeau (“Nutrient Broth”, published in 2017, downloaded from https://www.humeau.com/media/blfa_files/TC_Nutrient-bouillon_EN_280618.pdf?srsltid=AfmBOooJqoycqIVmG4wBolJ2fYcopLOVgOXQEbTavp2Gri2DiK94CcEZ, pages 1-2), hereinafter ‘Humeau’, in view of Hirsch et al. (“Probiotic bacteria stabilized in orally dissolving nanofibers prepared by high-speed electrospinning”, published on 05/03/2021, Food and Bioproduct Processing, Vol. 128, pages 84-94), hereinafter ‘Hirsch’, and in view of Duran (“DURAN® Laboratory Glassware catalogue”, published in 2017, downloaded from https://gluvexlab.com/uploads/attached_files/f4/68b56ee0abc3f063813806.pdf, pages 1-236), hereinafter ‘Duran’.
Modified Tuan’s teachings have been set forth above.
Modified Tuan does not teach wherein the culturing comprises preparing a nutrient broth medium by adding 18.0 g of nutrient broth to 1,000 mL of ultrapure water, heating and boiling for dissolution, dispensing, sealing with a filter membrane, and autoclaving for 30 min.
Humeau’s general disclosure relates to the medium “Nutrient Broth”, a liquid medium for the cultivation of nonfastidious microorganisms (see entire document, including title and subtitle).
Regarding claim 4, please note that the claim recites “a nutrient broth medium” and “nutrient broth” which are interpreted to the broadest reasonable extent (see MPEP 2111.01).
Pertaining to the medium, Humeau teaches preparing a nutrient broth medium by adding 13 g of a nutrient broth to 1,000 mL of distilled or deionized water, heating and boiling for dissolution, and autoclaving for 15 min (“Dehydrated medium … Suspend 13 g of the powder in 1 liter of distilled or deionized water. Mix well. Heat to boil shaking frequently until completely dissolved. Sterilize in autoclave at 121°C for 15 minutes.”; see paragraph 4 under Preparation on page 1). Additionally, Humeau teaches that Staphylococcus aureus can grow in the Humeau’s nutrient broth medium (see paragraph 1 and Table under Quality control on page 2).
Hirsch’s general disclosure relates to utilizing the effect of probiotics in the oral cavity and an easily applicable, orally dissolving dosage form of Lactobacillus paracasei (see entire document, including abstract).
Regarding claim 4, pertaining to the water, Hirsch teaches using ultrapure water for preparing compositions comprising probiotic bacteria (“The ultrapure water was used as a solvent”, “The polymer solution of 1 g PVA, … in 9 mL water was prepared for the electrospinning of probiotic bacteria. After the addition of the 1 mL bacteria suspension…”; page 85, right column, paragraphs 3-4).
Duran’s general’s disclosure relates laboratory glassware (see entire document, including page 2).
Regarding claim 4, pertaining to sealing with a filter membrane, Duran teaches a “membrane vented screw cap” (page 23, first product listed on top of page). Duran teaches wherein the cap is “[i]deal for autoclaving processes because the
0.2 micron ePTFE membrane permits pressure equalisation and tight sealing,
greatly reducing the risk of contamination”, and that applications include “autoclaving of
media” (page 23, paragraph 2). It is noted that Duran’s ePFTE membrane reads on filter membrane.
While modified Tuan does not teach wherein the culturing comprises preparing a nutrient broth medium by adding 18.0 g of nutrient broth to 1,000 mL of ultrapure water, heating and boiling for dissolution, dispensing, sealing with a filter membrane, and autoclaving for 30 min, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined modified Tuan’s teachings with Humeau’s teachings on preparing a nutrient broth medium, with Hirsch’s teachings on ultrapure water, and with Duran’s teachings on a membrane vented screw cap, to have created a method wherein the culturing comprises preparing
a nutrient broth medium by adding an amount of nutrient broth to 1,000 mL of ultrapure water, heating and boiling for dissolution, sealing with a filter membrane, and autoclaving. One would have been motivated to do so in order to create an optimal growth medium that is sterile and protected from contamination for improved culturing of modified Tuan’s Staphylococcus lentus.
A skilled artisan would have reasonably expected success in combining modified Tuan’s, Humeau’s, Hirsch’s, and Duran’s teachings, since modified Tuan and Humeau are directed to bacterial culturing, and since Humeau and Duran are directed to medium preparation.
While modified Tuan does not teach dispensing of the nutrient broth medium, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have dispensed the culture medium, in order to obtain a medium with the desired volume for culturing.
While modified Tuan does not teach adding 18.0 g of nutrient broth, and autoclaving for 30 min, the instantly recited amount of nutrient broth and the instantly recited autoclaving time would be within the realm of routine experimentation since Humeau teaches adding 13 g of a nutrient broth and autoclaving for 15 min (see paragraph 4 under Preparation on page 1). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to determine the optimal amount of nutrient broth and autoclaving time for obtaining a superior medium for culturing modified Tuan’s Staphylococcus lentus. One would be motivated to manipulate the autoclaving time in order to ensure sterility of the medium. Further, one would expect success modifying the concentration of nutrient broth since Humeau’s medium is directed to multiple microorganisms (“nonfastidious microorganisms”, see subtitle on page 1), and therefore, manipulation of the nutrient broth concentration would be within the purview of an artisan.
Response to Arguments
Applicant has traversed the previous rejections of claims 1-10 under 35 U.S.C. 103. Tuan and Valle are still relied upon in the above rejections. Applicant's arguments filed on 12/04/2025 have been fully considered but they are not persuasive.
In Applicant’s reply, Applicant states that “Applicant submits that Examiner has not provided sufficient evidence to support a conclusion that "modified Tuan's strain and Applicant's strain are the same strain if not obvious variants."” (remarks, page 13).
The Examiner responds that, as discussed above, based on Valle’s strain’s ability to produce the staphylococcal enterotoxin SEE (see Table 2) which is used to treat insulin resistance or diabetes 2 (Tuan, paragraphs [0006], [0026]), it is highly likely that Valle’s strain is the instantly recited strain, or, if there is a slight variance between the strains, that Valle’s and the instantly recited strain are obvious variants, since Valle’s strain has the ability to treat insulin resistance or diabetes 2 due to producing the enterotoxin SEE.
Applicant describes that that “[n]othing in Valle suggests administering viable S. lentus as a drug ingredient, much less to improve Tuan's purified-toxin therapy; if anything, Valle's warning about SE-associated gastroenteritis counsels away from adding enterotoxin-producing bacteria to a medicament.” (remarks, page 14), and further states that “[b]ecause the art did not recognize the microbiome S. lentus deficit as the problem, a skilled artisan following Tuan/Valle had no reason to incur these added manufacturing and QC costs to switch from purified SE proteins to a specific, viable S. lentus strain” (remarks, page 15).
In response to Applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Tuan’s teachings provide a method for preparing a composition comprising staphylococcal enterotoxins including SEE to be used for insulin resistance or diabetes 2, and Valle teaches a Staphylococcus lentus strain that produces the enterotoxin SEE.
Applicant states that “claim 1 is not obvious under 35 USC 103 over Tuan in view of Valle because the proposed combination requires impermissible hindsight” (remarks, page 17).
In response to Applicant's argument that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the Applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANDRA ZINGARELLI whose telephone number is (703)756-1799. The examiner can normally be reached M-F 9-5.
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/SANDRA ZINGARELLI/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653