DETAILED ACTION
Background
1. The amendment dated December 15, 2025 (amendment) amending claim 10 and canceling claim 7 has been entered. Claims 1, 3, 5, 8-10 and 16 have been examined. Claims 11-15 have been withdrawn from consideration. Claims 2, 4 and 6-7 have been cancelled. In view of the amendment canceling claim 7, all outstanding rejections of claim 7 have been withdrawn. In view of the amendment, all outstanding objections to the instant claims have been withdrawn.
Notice of Pre-AIA or AIA Status
2. 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 § 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.
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.
Claims 1, 3, 5, 7, 8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over JP2004203952-A Kubo (Kubo) in view of US20150239941 A1 to Pottecher (Pottecher), both of record, as evidenced by LinablueTM, MSDS, DIC Healthcare (2015) (Linablue MSDS).
All references to Kubo refer to its machine translation, a copy of which was provided to Applicants in an earlier Office action.
Linablue MSDS at page 2 discloses that the indicated product was approved by US and European regulators in 2015; so, the Office considers the Linablue MSDS to have a 2015 publication date.
Regarding instant claims 1, 3 and 5, at [0006] Kubo discloses an aqueous pigment liquid composition comprising a pigment derived from the algae ([0010]-[0011]) Spirulina in the amount of from 5 to 35 wt%, which the claimed amount of 3 to 9 wt% phycocyanin overlaps and the claimed amount of 6 to 8 wt% as in claim 3 of phycocyanin lies within; and Kubo discloses at [0006] the liquid composition further comprising an antifoaming agent and/or an emulsifier (“at least one emulsifier”). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, Kubo at [0019] in Example 1 and [0023] in Example 2 discloses that its pigment comprises LinablueTM (Dainippon chemicals) and that the product comprises 40 wt% of the colorant or pigment. Linablue MSDS at page 2 discloses what appears to be the same pigment product disclosed in Examples 1 and 2 of Kubo as having 40 wt% of pigment, and a carrier as 55 wt% trehalose and 5 wt% trisodium citrate (claim 5). The ordinary skilled artisan would have found it obvious to use the claimed 3 to 9 wt% of phycocyanin, based on the total weight of the liquid composition because Kubo discloses that the claimed amount of phycocyanin makes a desirable aqueous liquid pigment composition.
The Office considers the claimed phycocyanin as including the Spirulina pigment of Kubo, as evidenced by the disclosure in Pottecher at [0002].
Further, and regarding instant claim 16, at [0014]-[0015], Kubo discloses the liquid composition comprising at least one emulsifier which is glycerin fatty acid esters (“mono- and/or di- glycerides”) or lecithin (claims 1 and 7) in the amount at from 0.1 to 5.0 parts by weight per 100 parts by weight, based on the weight of the algae-derived pigment, or an amount of pigment of from (5 to 35 wt% X 0.1 to 5 wt% or) 0.005 to 1.75 wt% (claim 16) of the liquid composition, which the 0.5 to 3 wt% emulsifier based on the weight of the claim 1 liquid composition overlaps. See MPEP 2144.05.I. Kubo at [0017] also discloses from 10 to 40 wt% of glycerol, based on the total weight of the liquid composition. The ordinary skilled artisan would have found it obvious to use the claimed 0.5 to 3 wt% of the recited at least one emulsifier, based on the total weight of the liquid composition because Kubo discloses that the claimed amount of the at least one emulsifier makes a desirable aqueous liquid pigment composition.
Further regarding instant claim 1, Kubo does not disclose a liquid composition comprising 50 to 65 wt% of glycerol and from 15 to 25 wt% of water, each based on the total weight of the liquid composition.
Pottecher discloses at Abstract a method for stabilizing a phycocyanin liquid composition by macerating it in a comprising water and glycerol, wherein (at [0024]) a favored liquid form retains the phycocyanin in a bioactive and native form. At [0032], Pottecher discloses the glycerol and water in a ratio of up to 60/40, or up to 60 wt% water, which the claimed 15 to 25 wt% lies within, and as low as 40 wt% glycerol, which the claimed 50 to 65 wt% lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, at [0033]-[0034], Pottecher discloses that the glycerol acts is a sweetener and a preservative; and discloses at [0017] that to avoid precipitation the pH of phycocyanin can be controlled. The ordinary skilled artisan would have found it obvious in Pottecher to use the claimed 50 to 65 wt% glycerol and 15 to 25 wt% water, based on the total weight of the liquid composition, as claimed because Pottecher discloses that stable phycocyanin liquid compositions desirably contain the claimed amounts of water and glycerol, based on the total weight of the liquid composition.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Pottecher for Kubo to make its liquid pigment composition to comprise a water and glycerol mixture in an amount of 50 to 65 wt% glycerol and water, based on the total weight of the liquid composition. Both references disclose aqueous phycocyanin pigment compositions comprising water, glycerol and an emulsifier. The ordinary skilled artisan in Kubo would have desired to make its liquid composition with the claimed amounts of water and glycerol as in Pottecher to provide its liquid composition having a desired sweetness and preservative effect.
Regarding instant claim 8, Kubo does not provide a viscosity for its liquid composition or disclose a liquid composition having a viscosity of <2000 mPas at 25°C, as determined with a Haake spindle rheometer. However, the viscosity of a liquid composition of Kubo in water as disclosed at [0011], [0015] and [0017] appears to be substantially the same as or less than that of the claimed composition because it is the same composition but with less glycerol and more water. Accordingly, absent a clear showing as to how the viscosity properties of the liquid composition of Kubo at [0011], [0015] and [0017] and the claimed liquid composition differ, the Office considers the liquid composition of [0011], [0015] and [0017] of Kubo to have the claimed viscosity of (less than) <2000 mPas at 25°C, as determined with a Haake spindle rheometer. See MPEP 2112.01.I.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over JP2004203952-A Kubo (Kubo) in view of US20150239941 A1 to Pottecher (Pottecher), as evidenced by LinablueTM, MSDS , DIC Healthcare (2015) (Linablue MSDS) as applied to claim 1 above, and further in view of US2013/0216665 A1 to Mason et al. (Mason).
Regarding claims 9 and 10, Kubo at [0011], [0015] and [0017] as modified by Pottecher at [0032] discloses a liquid composition comprising a phycocyanin in water with glycerol, an emulsifier and a citrate or trehalose carrier.
Kubo as modified by Pottecher does not disclose the liquid composition further comprising a natural colorant of claim 9, or a natural colorant selected from the group consisting of a carotenoid, a safflower petal extract, a gardenia yellow extract concentrate, a carrot concentrate, curcumin extract, or an anthocyanin containing vegetable or fruit concentrate, or mixtures thereof as in claim 10.
Mason at Abstract discloses a multiple or water-in-oil-in-water (W/O/W) emulsion (“liquid composition”) of the type for stabilization of the water-dispersible natural coloring agents (at [0002]) phycocyanin (from Spirulina), safflomin from Carthamus which is (at [0021]) safflower and anthocyanin from (at [0080]) from fruits and vegetables, by stabilizing them (at [0028]) towards factors such as changes in pH levels, oxidation, light, ingredient interactions and temperature fluctuations. At [0034], Mason discloses a water containing liquid composition comprising at least one, thus including more than one water-dispersible natural coloring agent. Further, at [0094] Mason discloses the emulsion comprising an oil-soluble emulsifier as lecithins and/or mono-glycerides and di-glycerides, and (at [0105]) further comprising glycerol in the aqueous phase. In addition, at [0109] Mason discloses its stable composition has a pH in the aqueous phase of at most 6.0.
The Office considers the claimed safflower petal extract concentrate to include the safflomin of Mason.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Mason for Kubo as modified by Pottecher to add a natural colorant as an anthocyanin from a fruit or vegetable or a safflower petal extract concentrate. All references disclose stable liquid compositions of phycocyanins and natural colorants. The ordinary skilled artisan in Kubo would have desired to include the anthocyanin or the safflower petal extract concentrate of Mason with to pigment liquid composition solution of Kubo as modified by Pottecher so as to control or modify the color of the pigment composition.
Response to Arguments
In view of the amendment dated December 15, 2025, the following rejections have been withdrawn as moot:
The rejection of claim 7 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of claim 1 from which it depends.
The remarks accompanying the amendment dated December 15, 2025 (Reply) have been fully considered, but are not found persuasive for the following reasons:
Regarding the position taken in the Reply at pages 4-5 that the art does not disclose the claimed emulsifier and that there is a “long list” of emulsifiers, respectfully this assertion lacks any supporting evidence and goes against a wealth of evidence in the art. Aside from the disclosure of Kubo at [0014]-[0015] which prefers mono- and di- glycerides, Example 2 of Kubo at [0023] discloses glycerin fatty acid ester emulsifiers. The Office considers the claimed mono- and/or di-glycerides to include the glycerin fatty acid esters of Example 2 of Kubo.
Regarding the position taken in the Reply at page 4 that none of the art suggests alleged advantages of a reduction in foaming during and after mixing, maintained color integrity, reduced turbidity afforded by the recited liquid composition, respectfully, none of these alleged advantages are claimed and, even if somehow claimed, no evidence shows that the art liquid composition fails to meet any of them. To the contrary, the liquid composition disclosed at [0006] of Kubo includes antifoaming agents.
Regarding the position taken in the Reply at page 5 that Kubo fails to disclose the claimed carrier, respectfully this allegation is not supported by credible evidence. To the contrary, Linablue MSDS at page 2 discloses what appears to be the same pigment product disclosed in Examples 1 and 2 of Kubo as having 40 wt% of pigment, and a carrier as 55 wt% trehalose. Linablue provides evidence that Kubo discloses the claimed carrier. No evidence on the record suggests otherwise.
Regarding the position taken in the Reply at page 5 that none of the art combined with Kubo cures the deficiencies of Kubo or discloses all of the claimed limitations in a liquid composition, respectfully the position urged simply attempts to equate a lack of anticipation by secondary references with non-obviousness. Regarding Pottecher and Mason, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Pottecher at Abstract teaches a method for stabilizing a phycocyanin liquid composition by macerating it in a comprising water and glycerol in (at [0032]) the claimed proportions of water and glycerol to stabilize the liquid composition. Mason discloses of water-dispersible natural coloring agents of phycocyanin (at [0002]) (from Spirulina), safflomin from Carthamus which is (at [0021]) safflower and anthocyanin from (at [0080]) from fruits and vegetables and (at [0034]) their combination in a stable liquid composition
Regarding the position taken in the Reply at page 5 that Linablue MSDS “merely discloses a pigment composition” and is somehow inadequate art, the position respectfully ignores the subject matter disclosed in Linablue MSDS. In fact, Linablue MSDS at page 2 discloses what appears to be the exact same pigment as disclosed in Examples 1 and 2 of Kubo; that is not just any pigment. Further, Linablue MSDS when properly viewed serves as evidence of what Kubo already discloses and is more akin to a dictionary such that Kubo anticipates the disclosed pigment and carrier.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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, Nikki H 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.
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.
/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791