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 claims filed 15 July 2025 have been entered. Claims 1-17 and 25-28 are pending. Claims 18-24 have been cancelled. The previous objections to the claims have been withdrawn in view of applicant’s amendments to the claims. The previous 112(a) rejections have been withdrawn in view of applicant’s amendments to the claims. The previous 112(b) rejections have been withdrawn in view of applicant’s amendments to the claims. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
Claim Objections
Claims 5 and 8 are objected to because of the following informalities:
Claim 5, line 5: “the aqueous slurry” should read “the aqueous slurry of microalgal biomass”
Claim 8, line 4: the aqueous slurry” should read “the aqueous slurry of microalgal biomass”
Appropriate correction is required.
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.
Claim 8 is 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 8 recites the limitation "the microalgal slurry" in line 6. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 8 depends, recites “an aqueous slurry of microalgal biomass.” For the purpose of examination, “the microalgal slurry” will be interpreted as: the aqueous slurry of microalgal biomass.
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.
All citations to Balusson in this document refer to the English translation unless otherwise noted.
Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1, English translation relied upon for reference) in view of Harel (US 2007/0082008 A1) and Stewart (US 2003/0198730 A1).
Regarding claim 1, Balusson discloses a process of making an intercalated and/or exfoliated organophilic clay from clay and macroalgae which can be used as an animal feed supplement (p1, lines 10-12). Balusson discloses the method of preparation comprises obtaining macroalgae comprising between 0.2 and 20% dry matter (p3, lines 112-113). Balusson discloses the macroalgae may be fresh (p3, lines 118-121). Balusson further discloses a formulation intended to be distributed to cattle as part of their feed (feed supplement) which is a mixture of bentonite (13%) algues fraisches broyées (fresh crushed algae, 30%), eau (water, 49%) and solution d’acide lactoque (9%) (Original French Document pp14-15 Table 1 and English translation p7, lines 304-310) the mixture comprising water and macroalgal biomass constitutes an aqueous slurry of macroalgal biomass. The quantity of bentonite (13%) disclosed by Balusson is close to the claimed range of 1-12 wt% of porous material in the feed supplement. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. MPEP 2144.05 I.
Balusson discloses mixing clay (porous mineral) with the macroalgae (p3, lines 111-117). Balusson discloses clay includes smectite such as montmorillonites for example, and in particular sodium, potassium and/or calcium montmorillonites, and vermiculites (p3, lines 96-102). The instant specification discloses smectites, montmorillonites, vermiculites as suitable porous minerals [0053]. Balusson further discloses the clay and macroalgae undergo shear mixing (first mixture) using a twin-screw extruder, therefore extruding the product of Balusson (p4, lines 147-148).
Balusson does not disclose the algae is a microalgae.
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the microalgal biomass of Harel for the macroalgal biomass of Balusson because it is prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. In the instant case macroalgal biomass and microalgal biomass are both recognized in the art as sources of essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations, Harel [0009].
Alternatively, Balusson does not disclose the clay is included from 1-12% of the feed supplement.
Stewart, in the field of animal supplements, discloses a feed supplement comprising a natural ingredient capable of acting as a rumen bypass ingredient and a plant food source comprising omega-3 fatty acids [0035-0037]. Stewart further discloses the plant food source comprising omega-3 fatty acids may be an algal source [0039]. Stewart discloses the natural ingredient may be clay, including montmorillonite and smectite group members including vermiculite [0050] and [0053]. Stewart discloses the clay may be included from 3-8% of the omega-3 feed ingredients [0082].
Stewart’s 3-8% clay falls within the claimed range of between 1-12% porous mineral.
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 the microalgae and clay composition of Balusson in view of Harel with the quantity of clay of Stewart because all are drawn to feed supplements for animals. One of ordinary skill in the art would have had a reasonable expectation of success because Stewart teaches the 3-8% clay is appropriate for inclusion in animal feed supplements.
Regarding claim 2, Balusson discloses at least 10-20% by weight algae relative to the weight of dry clay (p4, lines 144-147). Balusson discloses the method of preparation comprises obtaining algae comprising between 0.2 and 20% dry matter (microalgal slurry) (p3, lines 112-113). Balusson discloses the algae may be fresh (p3, lines 118-121).
Balusson does not disclose 1-7.5% algal biomass.
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063]. Harel discloses a microalgal feed comprising 3% Crypthecodinium cohnii, microalgae [0073].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the quantity of microalgal biomass of Harel with the algal clay composition of Balusson because both are drawn to animal feeds comprising algae and Harel discloses the microalgae provide essential nutrients and oils for optimal growth in animal husbandry.
Regarding claim 3, Balusson discloses the method of preparation comprises obtaining algae comprising between 0.2 and 20% dry matter (p3, lines 112-113). Balusson discloses the algae may be fresh (p3, lines 118-121). The 0.2-20% dry matter of Balusson’s algae encompasses the claimed range of 2-15% solids. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Where the primary reference has established that algae having a dry matter content of 0.2-20% is suitable as the raw material to make the extruded feed, one of ordinary skill in the art would have been motivated to provide microalgae having the same dry matter content so as to be consistent with the teaching of the primary reference.
Claims 4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) and Stewart (US 2003/0198730 A1) as applied to claim 1 above, and further in view of Buntel (WO 2015/057198 A1) and Burr (US 2015/0327574 A1).
Regarding claim 4, Balusson in view of Harel and Stewart discloses the method of claim 1 as discussed above.
Balusson does not disclose the first mixture further comprises flax seed between 40-60% and a dry feed composition between 35-55% of the feed supplement.
Buntel, in the field of livestock feed supplements, discloses an extruded [0052] dietary premix composition for ruminants such as cattle (livestock) [0014] and [0011]. Buntel discloses the mixture can comprise a nitrogen source material, binding agent, bulking agent, water [0037] and a carbohydrate [0004]. Buntel discloses the bulking agent can be silicate, kaolin, and clay [0045].
Buntel discloses the carbohydrate component of the mixture may be microalgae [0035], wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran [0035]. Buntel discloses about 20% to about 70% of carbohydrate component [0018], which encompasses the claimed range of 35%-55%. Overlapping ranges establish prima facie obviousness. MPEP 2144.05.
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 the carbohydrate component of Buntel with the microalgal/clay supplement of Balusson in view of Harel and Stewart because they are all drawn to extruded animal feed supplements comprising algae. One of ordinary skill in the art would have had a reasonable expectation of success because Buntel discloses the carbohydrate quantity is appropriate of extruded feed supplements.
Burr is drawn to animal feed supplements [0001] for animals including ruminants [0014]. Burr discloses flaxseed contains omega fatty acids and may provide benefits to the animal [0040]. Burr discloses adding between about 5 wt. % and 50 wt. % flaxseed to form the feed supplement [0040].
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to include flaxseed, as taught in Burr, in the feed supplement, as taught in Balusson in view of Harel and Stewart to obtain a feed comprising flaxseed. One of ordinary skill in the art at the time the invention was filed would have been motivated to include flaxseed to provide benefits to the animal by providing a source of fat as well as fiber (Burr, para 0040).
Regarding claim 9, Balusson in view of Harel, Stewart, Buntel and Burr discloses the method of making the feed supplement of claim 4, including the flax seed and the dry feed composition.
Balusson does not disclose batch mixing the flax seed and dry feed composition with the microalgae mineral ingredient prior to extrusion.
Buntel discloses the method of preparing the premix dietary composition may include combining the fatty acid component and carbohydrate component (wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran [0035]) to form a mixture and then processing the mixture into a tablet, capsule, pellet or granular material [0004]. Buntel discloses processing includes extrusion [0049].
Burr discloses the flax seed may be added to the pourable admixture before forming the final product [0040].
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have mixed the wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran of Buntel and the flax seed of Burr since Buntel and Burr both disclose mixing the recited ingredients before producing the final product.
Regarding the claim limitation of “batch mixing,” a mixing process is either “continuous” or “batch” in nature and it obvious to select either batch or continuous mixing with predictable results. MPEP 2144.04 V. E.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1), Stewart (US 2003/0198730 A1), Buntel (WO 2015/057198 A1) and Burr (US 2015/0327574 A1) as applied to claim 4 above, and further in view of Pittman (US 2008/0260910 A1), Martin (Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective. AAPS PharmSciTech 17, 3–19 (February 2016). https://doi.org/10.1208/s12249-016-0485-3) and Matson (US 2003/0003193 A1).
Regarding claim 5, Balusson discloses the algae is harvested from a foreshore area and has 11% dry matter. The algae are then poured into a knife mill operator and continually transferred into a mixing tank. The bentonite (porous mineral) are poured dispensed) into the filling hopper of a co-rotating twin screw extruder so as to premix the bentonite and algae (p6, lines 250-260). Balusson further discloses the clay and microalgae undergo shear mixing (first mixture) using a twin-screw extruder, therefore extruding the product of Balusson (p4, lines 147-148).
Balusson does not disclose the twin screw extruder is a continuous mixing extruder.
Martin, in the field of twin screw extruders, discloses a twin screw extruder (TSE) has small mass continuous mixing and results in a highly efficient distributive and/or dispersive mixing that results in a more uniform product as compared to large mass batch mixers (p8, bottom of LH column to top of RH column).
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 continuous mixing twin screw extruder of Martin as the twin screw extruder of Balusson because it results in a more uniform extruded product.
Additionally, where a process is inherently either batch-wise or continuous, it is prima facie obvious to make a disclosed batch mode a continuous mode, absent the showing of unexpected results. MPEP 2144.04 V. E.
Balusson does not disclose the porous mineral is a zeolite.
Pittman is drawn to livestock feed (Abstract). Pittman discloses the feed may be extruded [0028]. Pittman discloses the feed includes zeolite [0014]. Pittman discloses zeolite is a porous mineral [0023]. Pittman discloses from about 0.01% to about 10% zeolite [0024]. Pittman discloses the zeolites may serve as an adjuvant in a drying agent or binding agent capacity for toxins in mammals, and also as a caking or binding agent to assist in pelletization [0035].
It would have been obvious to one of ordinary skill in the art at the time the invention was filed invention to include the porous mineral of zeolite, as taught in Pittman, to obtain a feed comprising a porous mineral in an amount of about 0.01% to about 10%. One of ordinary skill in the art at the time the invention was filed would have been motivated to include a porous mineral present in an amount of about 0.01% to about 10% because it serves as an adjuvant in a drying agent or binding agent capacity for toxins in mammals, and also as a caking or binding agent to assist in pelletization (Pittman, [0035]).
Balusson does not disclose the continual transfer of the algae is done by pumping.
Matson, in the field of prepared food products, discloses food manufacturing system where a pump moves a slurry type material to a die, where the die is an extrusion die in which cooking is done to form the final food product [0037].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the pump of Matson to move the algal slurry of Balusson since Matson discloses the pump system as a known method for moving an edible slurry to an extruder.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1), Stewart (US 2003/0198730 A1), Buntel (WO 2015/057198 A1), Burr (US 2015/0327574 A1) Pittman (US 2008/0260910 A1), Martin (Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective. AAPS PharmSciTech 17, 3–19 (February 2016). https://doi.org/10.1208/s12249-016-0485-3) and Matson (US 2003/0003193 A1) as applied to claim 5 above, and further in view of Adekola (Engineering Review Food Extrusion Technology and Its Applications, J. of Food Science and Eng. June 2016, 149-168).
Regarding claim 6, Balusson discloses shear mixing is implemented with a twin screw extruder and heating the combination of algae and clay to a temperature of 30-95 oC (86-203 oF) (p4, lines 147-154) which lies outside the claimed range of 270-300 oF.
Adekola, in the field of food extrusion, discloses the maximum product temperature for a shear cooking extruder is 125-175oC (257-347oF), which encompasses the claimed range (Table 1, p152). Adekola further discloses a food extruded at 145 oC (293 oF). (p162, RH col, 1st full para), which falls within the claimed range of 270-300 oF.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the extrusion temperature of Adekola with the extrusion of Balusson since Adekola discloses the temperature is appropriate for extruding food products.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1), Stewart (US 2003/0198730 A1), Buntel (WO 2015/057198 A1), Burr (US 2015/0327574 A1) Pittman (US 2008/0260910 A1), Martin (Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective. AAPS PharmSciTech 17, 3–19 (February 2016). https://doi.org/10.1208/s12249-016-0485-3), Matson (US 2003/0003193 A1) and Adekola (Engineering Review Food Extrusion Technology and Its Applications, J. of Food Science and Eng. June 2016, 149-168). as applied to claim 6 above, and further in view of Karthikeyan (Mass Cultivation of Microalgae in Open Raceway Pond for Biomass and Biochemical Production, International Journal of Advanced Research in Biological Sciences, 2016, 3(2), pp247-260).
Regarding claim 7, Balusson discloses at least 10-20% by weight algae relative to the weight of dry clay (p4, lines 144-147). Balusson discloses the method of preparation comprises obtaining algae comprising between 0.2 and 20% dry matter (p3, lines 112-113). Balusson discloses the algae may be fresh (p3, lines 118-121). Balusson’s 0.2-20% dry matter encompasses the claimed range of 2-15% solids. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Where the primary reference has established that algae having a dry matter content of 0.2-20% is suitable as the raw material to make the extruded feed, one of ordinary skill in the art would have been motivated to provide microalgae having the same dry matter content so as to be consistent with the teaching of the primary reference.
Balusson does not disclose 1-7.5% algal biomass (as interpreted in the 112(b) rejection above).
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063]. Harel discloses a microalgal feed comprising 3% Crypthecodinium cohnii, microalgae [0073].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the quantity of microalgal biomass of Harel with the algal clay composition of Balusson because both are drawn to animal feeds comprising algae and Harel discloses the microalgae provide essential nutrients and oils for optimal growth in animal husbandry.
Balusson does not disclose the algae is a product of open pond cultivation.
Karthikeyan, in the field of algae cultivation, discloses microalgae cultivation can be done in open culture systems like ponds and raceway ponds are cost effective to build and simple to operate (p248, Sections 1.1 and 1.2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the open pond cultivation of Karthikeyan to cultivate the algae of Balusson because the open pond cultivation has the advantage of being cost effective and easy to operate.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1, English translation relied upon for reference) in view of Harel (US 2007/0082008 A1) and Stewart (US 2003/0198730 A1) as applied to claim 1 above, and further in view of Martin (Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective. AAPS PharmSciTech 17, 3–19 (February 2016). https://doi.org/10.1208/s12249-016-0485-3) and Matson (US 2003/0003193 A1).
Regarding claim 8, Balusson discloses the algae is harvested from a foreshore area and has 11% dry matter. The algae are then poured into a knife mill operator and continually transferred into a mixing tank. The bentonite (porous mineral) are poured (dispensed) into the filling hopper of a co-rotating twin screw extruder so as to premix the bentonite and algae (p6, lines 250-260). Balusson further discloses the clay and microalgae undergo shear mixing (first mixture) using a twin-screw extruder, therefore extruding the product of Balusson (p4, lines 147-148).
Balusson does not disclose the twin screw extruder is a continuous mixing extruder.
Martin, in the field of twin screw extruders, discloses a twin screw extruder (TSE) has small mass continuous mixing and results in a highly efficient distributive and/or dispersive mixing that results in a more uniform product as compared to large mass batch mixers (p8, bottom of LH column to top of RH column).
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 continuous mixing twin screw extruder of Martin as the twin screw extruder of Balusson because it results in a more uniform extruded product.
Additionally, where a process is inherently either batch-wise or continuous, it is prima facie obvious to make a disclosed batch mode a continuous mode, absent the showing of unexpected results. MPEP 2144.04 V. E.
Balusson does not disclose the continual transfer of the algae is done by pumping.
Matson, in the field of prepared food products, discloses food manufacturing system where a pump moves a slurry type material to a die, where the die is an extrusion die in which cooking is done to form the final food product [0037].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the pump of Matson to move the algal slurry of Balusson since Matson discloses the pump system as a known method for moving an edible slurry to an extruder.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1).
Regarding claim 10, Balusson discloses a process of making an intercalated and/or exfoliated organophilic clay from clay and macroalgae which can be used as an animal feed supplement (p1, lines 10-12). Balusson discloses the method of preparation comprises obtaining macroalgae comprising between 0.2 and 20% dry matter (algal slurry) (p3, lines 112-113). Balusson discloses the macroalgae may be fresh (p3, lines 118-121). Balusson further discloses a mixture of bentonite (14.37%) algues fraisches broyées (fresh crushed algae, 32.35%) and eau (water, 53.19%) (Original French Document pp14-15 Table 2).
Balusson discloses mixing clay (porous mineral) with the algae (p3, lines 111-117). Balusson discloses clay includes smectite such as montmorillonites for example, and in particular sodium, potassium and/or calcium montmorillonites, and vermiculites (p3, lines 96-102). The instant specification discloses smectites, montmorillonites, vermiculites as suitable porous minerals [0053]. Balusson further discloses the clay and algae undergo shear mixing (first mixture) using a twin-screw extruder (p4, lines 147-150). Balusson discloses the algae and clay are pre-mixed and kneaded under pressure by the twin screw extruder and the temperature of the mix is maintained at 75oC (elevated temperature), which meets the claim limitation of forming the algae-mineral ingredient into the feed supplement at an elevated heat and pressure (p6, lines 254-269).
Balusson does not disclose the algae is a microalgae.
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the microalgal biomass of Harel for the macroalgal biomass of Balusson because it is prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. In the instant case macroalgal biomass and microalgal biomass are both recognized in the art as sources of essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations, Harel [0009].
Regarding the 1 part microalgal slurry to 2-4 parts porous mineral, Balusson discloses the mass ratio of the clay to the algae is less than or equal to 1.6 or the product is 10-20% microalgae relative to the weight of the dry clay (p4, lines 144-147). Balusson also discloses the microalgae added to the clay is 0.2-20% dry matter (p3, lines 112-113). However, it is known in the art that the quantity of microalgae slurry is a result effective variable, the more microalgae slurry the more calories and nutrients from the microalgae available to the animal ingesting the supplement. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art. Additionally it is noted the claims do not recite an amount of microalgae in the slurry and much of the water from the slurry will be lost during the step of heating and pressurizing to form the product.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) as applied to claim 10 above, and further in view of Pittman (US 2008/0260910 A1) as evidence by Britannica (https://www.britannica.com/science/clinoptilolite, 2024).
Regarding claims 11 and 12, Balusson does not disclose the porous mineral is an aluminosilicate.
Pittman is drawn to livestock feed (Abstract). Pittman discloses the feed may be extruded [0028]. Pittman discloses the feed includes zeolite [0014]. Pittman discloses zeolite is a porous mineral and zeolites typically contain oxygen, silicon and aluminum withing their structural framework and clinoptilolite is an abundant and commonly used zeolite [0023]. As evidenced by Britannica, clinoptilolite is a hydrated alkali aluminosilicate (p1). Pittman discloses from about 0.01% to about 10% zeolite [0024]. Pittman discloses the zeolites may serve as an adjuvant in a drying agent or binding agent capacity for toxins in mammals, and also as a caking or binding agent to assist in pelletization [0035].
Pittman discloses zeolite having a size range of about 5 microns to about 2,000 microns [0026], which encompasses the claimed range of 250 microns to 850 microns. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed invention to include the porous mineral of zeolite, as taught in Pittman, to obtain a feed comprising a porous mineral. One of ordinary skill in the art at the time the invention was filed would have been motivated to include a porous mineral because it serves as an adjuvant in a drying agent or binding agent capacity for toxins in mammals, and also as a caking or binding agent to assist in pelletization (Pittman, [0035]).
Claims 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) as applied to claim 10 above, and further in view of Martin (Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective. AAPS PharmSciTech 17, 3–19 (February 2016). https://doi.org/10.1208/s12249-016-0485-3) and Matson (US 2003/0003193 A1).
Regarding claim 13, Balusson discloses the algae is harvested from a foreshore area and has 11% dry matter. The algae are then poured into a knife mill operator and continually transferred into a mixing tank. The bentonite (porous mineral) are poured (dispensed) into the filling hopper of a co-rotating twin screw extruder so as to premix the bentonite and algae (p6, lines 250-260).
Balusson’s disclosure of harvested algae with 11% dry matter falls within the claimed range of 2-15% solids.
Balusson further discloses the clay and microalgae undergo shear mixing (first mixture) using a twin-screw extrude (p4, lines 147-148).
Balusson does not disclose the twin screw extruder is a continuous mixing extruder.
Martin, in the field of twin screw extruders, discloses a twin screw extruder (TSE) has small mass continuous mixing and results in a highly efficient distributive and/or dispersive mixing that results in a more uniform product as compared to large mass batch mixers (p8, bottom of LH column to top of RH column).
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 continuous mixing twin screw extruder of Martin as the twin screw extruder of Balusson because it results in a more uniform extruded product.
Regarding the claim limitation of “continuous mixer,” a mixing process is either “continuous” or “batch” in nature and it obvious to select either batch or continuous mixing with predictable results in the absence of unexpected results. MPEP 2144.04 V. E.
Balusson does not disclose the continual transfer of the algae is done by pumping.
Matson, in the field of prepared food products, discloses food manufacturing system where a pump moves a slurry type material to a die, where the die is an extrusion die in which cooking is done to form the final food product [0037].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the pump of Matson to move the algal slurry of Balusson since Matson discloses the pump system as a known method for moving an edible slurry to an extruder.
Regarding claim 16, Balusson does not disclose the algae is Nannochloropsis.
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the micro algae can be Nannochloropsis [0061]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the Nannochloropsis microalgal biomass of Harel for the macroalgal biomass of Balusson because it is prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. In the instant case macroalgal biomass and Nannochloropsis microalgal biomass are both recognized in the art as sources of essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations, Harel [0009].
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson in view of Harel, Martin and Matson as applied to claim 13 above, and further in view of Buntel (WO 2015/057198 A1) and Burr (US 2015/0327574 A1).
Regarding claim 14, Balusson does not disclose the first mixture further comprises flax seed between 40-60% and a dry feed composition between 35-55% of the feed supplement.
Buntel, in the field of livestock feed supplements, discloses an extruded [0052] dietary premix composition for ruminants such as cattle (livestock) [0014] and [0011]. Buntel discloses the mixture can comprise a nitrogen source material, binding agent, bulking agent, water [0037] and a carbohydrate [0004]. Buntel discloses the bulking agent can be silicate, kaolin, and clay [0045].
Buntel discloses the carbohydrate component of the mixture may be microalgae [0035], wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran [0035]. Buntel discloses about 20% to about 70% of carbohydrate component [0018], which encompasses the claimed range of 35%-55% dry feed composition. Overlapping ranges establish prima facie obviousness. MPEP 2144.05.
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 the carbohydrate component of Buntel with the microalgal/clay supplement of Balusson because they are both drawn to extruded animal feed supplements comprising algae and clay. One of ordinary skill in the art would have had a reasonable expectation of success because Buntel discloses the carbohydrate quantity is appropriate of extruded feed supplements.
Burr is drawn to animal feed supplements [0001] for animals including ruminants [0014]. Burr discloses flaxseed contains omega fatty acids and may provide benefits to the animal [0040]. Burr discloses adding between about 5 wt. % and 50 wt. % flaxseed to form the feed supplement [0040].
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to include flaxseed, as taught in Burr, in the feed supplement, as taught in Balusson to obtain a feed comprising flaxseed. One of ordinary skill in the art at the time the invention was filed would have been motivated to include flaxseed to provide benefits to the animal by providing a source of fat as well as fiber (Burr, para 0040).
Regarding claim 15, Balusson in view of Harel, Martin, Matson, Buntel and Burr discloses the method of making the feed supplement of claim 14, including the flax seed and the dry feed composition.
Balusson does not disclose batch mixing the flax seed and dry feed composition with the microalgae mineral ingredient prior to extrusion.
Buntel discloses the method of preparing the premix dietary composition may include combining the fatty acid component and carbohydrate component (wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran [0035]) to form a mixture and then processing the mixture into a tablet, capsule, pellet or granular material [0004]. Buntel discloses processing includes extrusion [0049].
Burr discloses the flax seed may be added to the pourable admixture before forming the final product [0040].
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have batch mixed the wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran of Buntel and the flax seed of Burr since Buntel and Burr both disclose mixing the recited ingredients before producing the final product.
Additionally, where a process is inherently either batch-wise or continuous, it is prima facie obvious to make a disclosed batch mode a continuous mode, absent the showing of unexpected results. MPEP 2144.04 V. E.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) as applied to claim 10 above, and further in view of Adekola (Engineering Review Food Extrusion Technology and Its Applications, J. of Food Science and Eng. June 2016, 149-168).
Regarding claim 17, Balusson discloses shear mixing is implemented with a twin screw extruder and heating the combination of algae and clay to a temperature of 30-95 oC (86-203 oF) (p4, lines 147-154) which lies outside the claimed range of 270-300 oF. As to the limitation of cooling the feed supplement after the step of forming, once the mixture leaves the extruder the cooling necessarily starts.
Adekola, in the field of food extrusion, discloses the maximum product temperature for a shear cooking extruder is 125-175oC (257-347oF), which encompasses the claimed range (Table 1, p152). Adekola further discloses a food extruded at 145 oC (293 oF). (p162, RH col, 1st full para), which falls within the claimed range of 270-300 oF.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the extrusion temperature of Adekola with the extrusion of Balusson since Adekola discloses the temperature is appropriate for extruding food products.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) as applied to claim 10 above, and further in view of Stewart (US 2003/0198730 A1).
Regarding claim 25, Balusson does not disclose the porous mineral is a magnesium silicate.
Stewart, in the field of animal supplements, discloses a feed supplement comprising a natural ingredient capable of acting as a rumen bypass ingredient and a plant food source comprising omega-3 fatty acids [0035-0037]. Stewart further discloses the plant food source comprising omega-3 fatty acids may be an algal source [0039]. Stewart discloses the natural ingredient may be clay or magnesium silicate hydroxide [0050] and [0054]. Stewart discloses the natural ingredient (clay or magnesium silicate hydroxide) in the feed supplement results in a higher concentration of essential fatty acids in the eggs and meat from poultry fed the feed supplement [0015].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the magnesium silicate hydroxide of Stewart for the clay of Balusson because Stewart discloses the clay and magnesium silicate are both appropriate for use as the natural ingredient of the feed supplement. It is considered prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. Additionally, Stewart discloses the clay and magnesium silicate hydroxide have the known advantage of resulting in a higher concentration of essential fatty acids in the eggs and meat from poultry fed the feed supplement
Claims 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Balusson (FR 2991978 A1) in view of Harel (US 2007/0082008 A1) and Soomro (Soomro et al. Development of a Two-Stage Microalgae Dewatering Process - A Life Cycle Assessment Approach. Front Plant Sci. 2016 Feb 11;7:113. doi: 10.3389/fpls.2016.00113).
All citations to Balusson refer to the English translation.
Regarding claim 26, Balusson discloses a process of making an intercalated and/or exfoliated organophilic clay from clay and macroalgae which can be used as an animal feed supplement (p1, lines 10-12). Balusson discloses the method of preparation comprises obtaining macroalgae comprising between 0.2 and 20% dry matter (microalgal slurry) (p3, lines 112-113). Balusson discloses the macroalgae may be fresh (p3, lines 118-121). Balusson further discloses the clay and macroalgae undergo shear mixing using a twin-screw extruder, therefore extruding the product of Balusson (p4, lines 147-148).
The step of obtaining macroalgae comprising between 0.2 and 20% dry matter of Balusson encompasses the claimed range of a concentrated algal slurry having between 2-15 dry wt% solids (as interpreted in the 112(b) rejection above). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Balusson does not disclose the algae is a microalgae.
Harel, in the field of feed compositions, discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the microalgal biomass of Harel for the macroalgal biomass of Balusson because it is prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. In the instant case macroalgal biomass and microalgal biomass are both recognized in the art as sources of essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations, Harel [0009].
Balusson does not disclose a step of dewatering the fresh microalgae to obtain between 0.2 and 20% dry matter.
Soomro, in the field of microalgal dewatering processes, discloses the dewatering technique of filtration yields microalgal samples with suspended solids concentrations between 1% and 27% (Filtration, p3 and p4, Table 3). Soomro also discloses the dewatering technique of centrifugation yields microalgal samples with suspended solids concentrations between 2%-15% (Centrifugation, p 4 and Table 6, p5).
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 dewatering techniques of Soomro in order to obtain the desired microalgal slurry of Balusson with 0.2-20% dry matter since Balusson discloses the composition and use fresh algae and Soomro discloses dewatering methods for achieving the range of dry matter (solids) disclosed by Balusson. One of ordinary skill in the art would have had a reasonable expectation of success using Soomro’s dewatering methods with the fresh algae of Balusson in view of Harel because Soomro discloses the dewatering methods are appropriate for microalgae.
Regarding claim 27, Balusson in view of Harel discloses mixing clay (porous mineral) with the microalgae (p3, lines 111-117). Balusson discloses clay includes smectite such as montmorillonites for example, and in particular sodium, potassium and/or calcium montmorillonites, and vermiculites (p3, lines 96-102). The instant specification discloses smectites, montmorillonites, vermiculites as suitable porous minerals [0053]. Balusson further discloses the clay and microalgae undergo shear mixing using a twin-screw extruder, therefore extruding the product of Balusson (p4, lines 147-148).
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Balusson in view of Harel and Soomro as applied to claims 26 and 27 above, and further in view of Buntel (WO 2015/057198).
Regarding claim 28, Balusson does not disclose dry organic composition between 35-55% of the feed supplement prior to extruding.
Buntel, in the field of livestock feed supplements, discloses an extruded [0052] dietary premix composition for ruminants such as cattle (livestock) [0014] and [0011]. Buntel discloses the mixture can comprise a nitrogen source material, binding agent, bulking agent, water [0037] and a carbohydrate [0004]. Buntel discloses the bulking agent can be silicate, kaolin, and clay [0045].
Buntel discloses the carbohydrate component of the mixture may be microalgae [0035], wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran (dry organic compositions) [0035]. Buntel discloses about 20% to about 70% of carbohydrate component [0018], which encompasses the claimed range of 35%-55% dry organic composition. Overlapping ranges establish prima facie obviousness. MPEP 2144.05.
Buntel discloses the carbohydrate is added before the step of processing the composition (Figure 1, #110 and #120) and the processing may include extruding [0049].
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 the carbohydrate component of Buntel with the microalgal/clay supplement of Balusson in view of Harel because they are both drawn to extruded animal feed supplements comprising algae and clay. One of ordinary skill in the art would have had a reasonable expectation of success because Buntel discloses the carbohydrate quantity is appropriate of extruded feed supplements and the carbohydrate is added before extrusion.
Response to Arguments
Applicant's arguments filed 15 July 2025 have been fully considered. To the extent they apply to the above rejections they are not persuasive.
Applicant argues, with respect to the substitution of the microalgal biomass of Harel for the macroalgal biomass of Balusson, that the rejection improperly relies on official notice to establish the argument that it is prima facie obvious to substitute microalgal biomass for macroalgal biomass. Applicant goes on to point to MPEP 2183 for the method of establishing equivalence. #1 Remarks pp10-11.
This argument is not persuasive. No official notice is used to establish the argument for equivalency. A citation to Harel discloses that macroalgal biomass and microalgal biomass are both recognized in the art as sources of essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations, Harel [0009]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the microalgal biomass of Harel for the macroalgal biomass of Balusson because it is prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II. In this case the purpose of both the macroalgae and the microalgae is to provide essential amino acids, fatty acids, vitamins, minerals and secondary metabolites in feed formulations. Therefore, since Harel discloses the microalgae and macroalgae both provide the recited nutritional components, it would be obvious to substitute microalgae for macroalgae in order to provide the nutritional components recited by Harel.
MPEP 2183 seems to refer to establishing equivalency between prior art and the instant claims. In this case, equivalency for substitution is being established between two pieces of prior art. Regardless, the Applicant points to the three points recited in the MPEP 2183:
(A) performs the function specified in the claim,
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(B) is not excluded by any explicit definition provided in the specification for an equivalent, and
(C) is an equivalent of the means- (or step-) plus-function limitation
As to point (A), the instant claim recites no function for the microalgae other than it is able to be provided, mixed and extruded. Harel discloses in Example 16 (p9) that the microalgae is provided, mixed, and extruded to form a feed [0085-0086].
As to point (B), the specification does not provide an explicit definition that would exclude the equivalent substitution.
As to point (C), the instant claim provides no means plus function limitations.
Applicant argues the rationale to substitute the microalgae of Harel for macroalgae of Balusson is an inadequate reason and one may substitute any number of nutritional sources for the macroalgae of Balusson. Applicant argues there is no evidence that the microalgae of Harel would perform the objective of Balusson. Remarks #2 p11.
This argument is not persuasive. 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, both Balusson and Harel are drawn to animal feeds which comprise macroalgae and/or microalgae. The mere fact that there are other known substitutions for the nutritional advantages of micro and macro algae does not negate the disclosure of Harel that both micro and macro algae will supply the nutritional advantages recited by Harel. Applicant has not pointed to a citation in Balusson which discloses any teaching away for the substitution of microalgae for macroalgae.
Applicant argues that Balusson discloses different definitions for microalgae and macroalgae. Applicant points to examples in Harel where microalgae is substituted for other microalgae species and macroalgae is substituted for other macroalgae species. Remarks #3 pp11-12.
This argument is not persuasive. The reference is available for all it discloses. Harel discloses the invention yet further provides animal feed comprising macroalgae-derived, microalgae-derived, plant, and/or lower fungi-derived materials, wherein no animal derived materials are present. The macroalgae-derived, microalgae-derived, plant-derived, and/or lower fungi-derived materials can comprise from about 0.1 % to about 30% of the dry weight of the feed [0026]. The different definitions of the ingredients or the lack of examples showing the substitution does not negate the disclosure of the micro and macro algae included in the feed for the same purpose.
Applicant argues macroalgae and microalgae are not known equivalents in the art and one of ordinary skill would not substitute the microalgae of Harel for the macroalgae of Balusson. It would not be obvious to make that substitution to intercalate clay as in Balusson. Remarks #4 pp12-13.
This argument is not persuasive. Intercalate is defined as: to insert or position between or among existing elements or layers. Applicant has provided no evidence to show that the mixture of microalgae and porous material of Balusson would not result in the intercalating of the microalgae with the porous material as is the case with the macroalgae.
Applicant argues hindsight reasoning with respect to the equivalency of microalgae and macroalgae. Remarks #5 p13.
This argument is not persuasive. 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).
In the instant case Balusson discloses an animal feed with both macroalgae and a porous material. Harel discloses an animal feed with microalgae and/or macroalgae to provide nutritional advantages. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substituted the microalgae of Harel for the macroalgae of Balusson since both are known to be appropriate for animal feed and both provide the nutritional advantages disclosed by Harel which were discussed above.
Applicant argues Balusson in view of Harel does not disclose the aqueous slurry of microalgal biomass at between 1.0 wt% to 7.5 wt% of the feed supplement's total composition. Applicant argues Balusson discloses a slurry of algae while Harel discloses a dried algae and it’s rate of inclusion. Applicant argues there is no evidence that the specific quantity range of 1.0 wt% to 7.5 wt% of microalgal biomass provided as an aqueous slurry is shown or made obvious by the cited references. Remarks pp13-14.
This argument is not persuasive. Balusson discloses making the animal feed supplement with algae and porous material and water (a slurry). Balusson does not disclose the total quantity of algal biomass in the final animal feed. Harel discloses a feed or feed ingredient containing macro- and/or microalgal biomass or macro- and/or microalgal cells [0056]. Harel discloses the feed or feed ingredient provides essential nutrients and oils for optimal growth in animal husbandry [0058]. Harel discloses the feed supplement can be extruded [0063]. Harel therefore discloses the appropriate amount of algal biomass in an animal feed. It is noted that the process of making the animal feed in the instant claims and the prior art includes a step of extrusion which will necessarily produce a dry product regardless of the amount of water included in the previous method steps.
Applicant argues Buntel does not disclose flax seed in combination with the other claimed components. Burr discloses ground flax seed and not whole flax seed. One of ordinary skill would have no reasonable expectation of success in combining the carbohydrate components of Buntel and the ground flax seed of Burr with the algae/clay component of Balusson. Remarks pp15-16.
This argument is not persuasive. With respect to the ground flax seed of Burr vs whole flax seed. The instant claims do not recite whether the flax seed is whole. Therefore both ground and whole flax seed meet the claim limitation of flax seed. The ingredients recited by Buntel and Burr are all common ingredients in animal feed supplements: Buntel discloses the carbohydrate component of the mixture may be microalgae [0035], wheat middlings, soya hulls, brewery byproducts, wheat, corn and/or rice bran [0035] and Burr discloses the flax seed may be added to the pourable admixture before forming the final product [0040]. One of ordinary skill in the art would have a reasonable expectation of success that when combining common feed supplement ingredients one would successfully make an acceptable feed supplement.
Applicant argues Buntel discourages the use of ingredients like flax as recited in Burr, which are high in omega-3’s. Remarks p16.
This argument is not persuasive. Applicant fails to point to specific citations in Buntel or Burr showing the disclosure of discouraging the use of flax seed. Buntel discloses in one embodiment the fatty acids component may include an unsaturated fatty acid [0031]. Buntel also discloses the inclusion of linseed meal in the composition [0044]. Therefore Buntel’s disclosure does not constitute teaching away from flax seed in the composition.
Applicant argues the Office fails to present any kind of rationale for combining Balusson and Adekola. Remarks pp17-19.
This argument is not persuasive. The Office dose provide a rationale for combining Balusson and Adekola. Both are drawn to extrusion methods for making feed/food products. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the extrusion temperature of Adekola with the extrusion of Balusson since Adekola discloses the temperature is appropriate for extruding food products.
Applicant argues, with respect to claim 10, the same arguments relating to the substitution of microalgae for macroalgae. Remarks pp20-21.
This argument is not persuasive for the same reasons as discussed above with respect to claim 1.
Applicant argues Balusson does not disclose the claimed ratio of clay to microalgae and the instant claims provide unexpected results with respect to the ratio. Remarks pp21-23.
This argument is not persuasive. Regarding the 1 part microalgal slurry to 2-4 parts porous mineral, Balusson discloses the mass ratio of the clay to the algae is less than or equal to 1.6 or the product is 10-20% microalgae relative to the weight of the dry clay (p4, lines 144-147). Balusson also discloses the microalgae added to the clay is 0.2-20% dry matter (p3, lines 112-113). However, it is known in the art that the quantity of microalgae slurry is a result effective variable, the more microalgae slurry the more calories and nutrients from the microalgae available to the animal ingesting the supplement. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art. Additionally it is noted the claims do not recite an amount of microalgae in the slurry and much of the water from the slurry will be lost during the step of heating and pressurizing to form the product.
The applicant discussed unexpected results from the claimed range, but the applicant has not provided evidence to show the criticality of the range.
Applicant argues the cooling of the instant claims is an active step. Balusson discloses mixing followed by extrusion then maintaining an elevated temperature for an extended duration. Remarks pp24-25/.
This argument is not persuasive. The instant claims are drawn to a method comprising the recited steps. Therefore the claimed method does not exclude additional steps like that of Balusson maintaining an elevated temperature after extrusion. The claims do not recite that the cooling must occur upon the emergence of the composition from the extruder. Additionally one of ordinary skill would understand that when an elevated temperature for extrusion is finished, when the time for heating ends the composition necessarily cools.
Applicant repeat arguments with respect to the substitution of microalgae for macroalgae. Remarks pp26-27.
These arguments are not persuasive for the same reasons stated above.
Applicant argues there is no teaching or suggestion by Balusson for the need to dewater or concentrate the macroalgae. Remarks pp28-29.
Balusson does not disclose a step of dewatering the algae to obtain between 0.2 and 20% dry matter.
Soomro, in the field of microalgal dewatering processes, discloses the dewatering technique of filtration yields microalgal samples with suspended solids concentrations between 1% and 27% (Filtration, p3 and p4, Table 3). Soomro also discloses the dewatering technique of centrifugation yields microalgal samples with suspended solids concentrations between 2%-15% (Centrifugation, p 4 and Table 6, p5).
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 dewatering techniques of Soomro in order to obtain the desired microalgal slurry of Balusson with 0.2-20% dry matter since Balusson discloses the composition and use fresh algae and Soomro discloses dewatering methods for achieving the range of dry matter (solids) disclosed by Balusson. One of ordinary skill in the art would have had a reasonable expectation of success using Soomro’s dewatering methods with the fresh algae of Balusson in view of Harel because Soomro discloses the dewatering methods are appropriate for microalgae.
Conclusion
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.
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/C.L.G./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793