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 .
DETAILED ACTION
Applicant’s amendment filed on 29 September 2025 is entered. Claims 1, 15, and 19 are amended, and claim 11 is canceled.
Claims 1-10 and 12-20 are pending and under examination.
The claim amendment filed 29 September 2025 is improper because it fails to comply with the provisions of 37 CFR 1.121(c). Claim 11 is canceled but improperly presents the former claim text after the (Canceled) claim status identifier. Claim 15 now presents new text that has been underlined indicating that the claim has been amended, but the claim status identifier is still (Previously Presented).
Amendments to the claims filed on or after July 30, 2003 must comply with 37 CFR 1.121(c) which states:
(c) Claims. Amendments to a claim must be made by rewriting the entire claim with all changes (e.g., additions and deletions) as indicated in this subsection, except when the claim is being canceled. Each amendment document that includes a change to an existing claim, cancellation of an existing claim or addition of a new claim, must include a complete listing of all claims ever presented, including the text of all pending and withdrawn claims, in the application. The claim listing, including the text of the claims, in the amendment document will serve to replace all prior versions of the claims, in the application. In the claim listing, the status of every claim must be indicated after its claim number by using one of the following identifiers in a parenthetical expression: (Original), (Currently amended), (Canceled), (Withdrawn), (Previously presented), (New), and (Not entered).
(1) Claim listing. All of the claims presented in a claim listing shall be presented in ascending numerical order. Consecutive claims having the same status of “canceled” or “not entered” may be aggregated into one statement (e.g., Claims 1–5 (canceled)). The claim listing shall commence on a separate sheet of the amendment document and the sheet(s) that contain the text of any part of the claims shall not contain any other part of the amendment.
(2) When claim text with markings is required. All claims being currently amended in an amendment paper shall be presented in the claim listing, indicate a status of “currently amended,” and be submitted with markings to indicate the changes that have been made relative to the immediate prior version of the claims. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. Only claims having the status of “currently amended,” or “withdrawn” if also being amended, shall include markings. If a withdrawn claim is currently amended, its status in the claim listing may be identified as “withdrawn—currently amended.”
(3) When claim text in clean version is required. The text of all pending claims not being currently amended shall be presented in the claim listing in clean version, i.e., without any markings in the presentation of text. The presentation of a clean version of any claim having the status of “original,” “withdrawn” or “previously presented” will constitute an assertion that it has not been changed relative to the immediate prior version, except to omit markings that may have been present in the immediate prior version of the claims of the status of “withdrawn” or “previously presented.” Any claim added by amendment must be indicated with the status of “new” and presented in clean version, i.e., without any underlining.
(4) When claim text shall not be presented; canceling a claim.
(i) No claim text shall be presented for any claim in the claim listing with the status of “canceled” or “not entered.”
(ii) Cancellation of a claim shall be effected by an instruction to cancel a particular claim number. Identifying the status of a claim in the claim listing as “canceled” will constitute an instruction to cancel the claim.
(5) Reinstatement of previously canceled claim. A claim which was previously canceled may be reinstated only by adding the claim as a “new” claim with a new claim number.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 25 April 2025 and 23 February 2026 is being considered by the examiner.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-10, 12-13, and 16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to product of nature without significantly more.
The claims are directed to a composition of elements (Step 1: Yes).
Claim 1 recites a seaweed powder comprising at least 80% dry basis of particles of a macroscopic, multicellular marine algae, wherein the powder comprises soluble and insoluble fiber, wherein the particles have a D50 of at least 20pm and a D90 of at least 125pm, and wherein the seaweed is selected from the group consisting of: Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., and mixtures thereof. Seaweeds naturally comprise soluble and insoluble dietary fibers, as evidenced by pg. 2 para. 1 of Cotas et al. (Seaweed Polysaccharides: A Rational Approach for Food Safety Studies, Seaweed Polysaccharides: A Rational Approach for Food Safety Studies. Mar. Drugs 2025, 23, 412). Particle sizes of the macroscopic multicellular marine algae merely limit the physical size of the marine algae particles component within the claimed seaweed powder. The macroscopic multicellular marine algae component is still drawn to a naturally occurring seaweed, such as those species recited in claim 1.
Claim 1’s seaweed powder is a product of nature because the all of the structural components of the compositions occur together in nature and/or recite purely naturally occurring components. Claim 1 also recites that the seaweed powder has a storage modulus (G') of at least 30 Pa as determined on a solution of reconstituted milk containing 0.3 wt% aqueous dispersion of said powder relative to the total weight of said solution and wherein said powder has a critical gelling concentration (Co) of at most 0.1 wt%, wherein the milk was reconstituted by dissolving powdered skimmed milk at 10% w/w in ultrapure water having 18.2 MQ.cm resistivity, under stirring for 4 hours at room temperature. However, these limitations are interpreted as intended properties of the claimed seaweed powder, but do not recite any structural limitations of the claimed composition.
Claims 2-10 recite properties of the claimed seaweed powder that do not add any structural or compositional limitations to the claimed seaweed powder.
Claim 12 recites the seaweed powder comprises an additional compound selected from the group consisting of: guar gum, xanthan gum, locust bean gum, cassia gum, tara gum, konjac gum, alginate, agar, carrageenan, beta 1,3 glucans, starch and combinations thereof. Guar gum is a natural gum isolated from Cyamopsis tetragonoloba, as evidenced by Table 1 of Amiri et al. (Plant-Based Gums and Mucilages Applications in Pharmacology and Nanomedicine: A Review. Molecules 2021, 26, 1770). Xanthan gum is a natural gum produced by microbial sources (Amiri pg. 3 para. 2). Locust bean gum is a natural gum isolated from Ceratonia siliqua (Amiri Table 1). Tara gum is a natural gum isolated from Caesalpinia spinosa (Molina) Kuntze (Amiri Table 1). Konjac gum is a natural gum isolated from Amorphophallus konjac K.Koch (Amiri Table 1). Alginate, agar, and carrageenan are naturally occurring gums or mucilage produced by red and brown algae (Amiri pg. 3 para. 2). Cassia gum is a naturally occurring polymer isolated from the seeds of Cassia obtusifolia and Cassia tora, as evidenced by CassiaGums.com (About Cassia Gum, https://www.cassiagums.com/, accessed 16 March 2026). Beta 1,3 glucans are natural components of brown seaweed cell walls, as evidence by the title and abstract of Raimundo et al. (β-1,3-Glucans are components of brown seaweed (Phaeophyceae) cell walls. Protoplasma 254, 997–1016 (2017)). Starches are widespread in nature, such as in corn, rice, wheat, potato, cassava, and seaweeds, as evidenced by the abstract and pg. 1 para. 1 of Tagaliapietra et al. (Seaweed as a Potential New Source for Starch, Produced in the Sea: A Short Review. Starch. 2022, 75, 2200130).
The broadest reasonable interpretation of claims 13 and 16 are compositions that are comprised wholly of the seaweed powder discussed above, and thus would also be subject to the natural phenomenon judicial exception.
Therefore the instant invention recites a judicial exception of a product of nature (Step 2A Prong One: Yes).
This judicial exception is not integrated into a practical application because the claims are drawn the product “seaweed powder” itself, and do not recite any practical application or use of the claimed seaweed powder.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional properties of the seaweed powder as provided in the additional limitations of claim 1 and in dependent claims 2-10 are intended properties of the claimed seaweed powder, but do not recite any structural limitations of the claimed seaweed powder. Since the claimed structure of the seaweed powder is present in nature, these additional properties would also be present because there is no non-natural component within the composition which is shown to artificially introduce the claimed properties. Thus, these properties do not reasonably demonstrate the necessity of human intervention to arrive at the present invention.
Additionally, the broadest reasonable interpretation of dependent claims 13 and 16 are compositions that are comprised wholly of the seaweed powder discussed above, and thus would also be subject to the product of nature judicial exception.
Therefore, the instant invention is not integrated into a practical application and does not include any additional elements that amount to significantly more than the recited judicial exception of a product of nature, and so the instant invention is not patent eligible subject matter under 35 USC §101 (Step 2A Prong Two and Step 2B: No).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10, 12-14, and 16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites a seaweed powder comprising particles of a macroscopic, multicellular marine algae, wherein the seaweed is selected from the group consisting of: Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., and mixtures thereof.
Claim 1 does not clearly recite a seaweed component in the seaweed powder. Instead, the claim recites the seaweed powder comprises “particles of a macroscopic, multicellular marine algae”. There is no indication that the two claim terms “seaweed” and “macroscopic multicellular marine algae” are equivalent terms in the context of the invention. Therefore, the claim term “seaweed” appears to only describe the type of powder (i.e. that the powder is a seaweed powder), but the term does not limit any compositional elements within the powder because the claim does not positively recite a “seaweed” component, only a “macroscopic, multicellular marine algae” component.
This discrepancy further confounds the new limitation, which recites the seaweed is selected from the group consisting of: Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., and mixtures thereof. This Markush group limits the claim term “seaweed”, so it limits the type of seaweed powder (e.g. a Porphyra sp. powder). But due to the claim’s lack of clarity, it cannot be readily determined whether the “macroscopic, multicellular marine algae” particles are also limited to that same species of seaweed (e.g. a Porphyra sp. seaweed powder as claimed would comprise particles of Porphyra sp. macroscopic, multicellular marine algae).
Therefore, it is unclear 1) whether the two claim terms “seaweed” and “macroscopic, multicellular marine algae” are equivalent terms describing the same compositional element or not; and 2) if the genus of seaweed species in the Markush group only limits the type of seaweed powder, or if the Markush group also limits the species of the macroscopic, multicellular marine algae in the seaweed powder.
Claims 2-10, 12-14, and 16 are dependent on claim 1, so are indefinite for the same reasons.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-10 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Torres et al. (Rheology of kappa/iota-hybrid carrageenan from Mastocarpus stellatus: Critical parameters for the gel formation, International Journal of Biological Macromolecules 86 (2016) 418–424) as evidenced by Gomez et al. (Dietary fibre and physicochemical properties of several edible seaweeds from the northwestern Spanish coast, Food Research International 43 (2010) 2289–2294).
The claim terms “seaweed” and “macroscopic, multicellular marine algae” are interpreted as nonequivalent terms because if they were intended to be equivalent concepts they would use the same claim term.
The claim term “seaweed” is interpreted to not limit any compositional element of the claimed seaweed powder because a “seaweed” component is not recited to be present in the composition, so the composition does not require the presence of Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., or mixtures thereof.
The claim term “macroscopic, multicellular marine algae” is interpreted to not be limited by the claim term “seaweed” because the two terms are interpreted to be nonequivalent.
Therefore, the BRI of claim 1 includes any seaweed powder that comprises at least 80% dry basis of particles of any macroscopic, multicellular marine algae, wherein the seaweed is Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., or mixtures thereof.
The limitation “having a storage modulus (G') of at least 30 Pa as determined on a solution of reconstituted milk containing 0.3 wt% aqueous dispersion of said powder relative to the total weight of said solution and wherein said powder has a critical gelling concentration (Co) of at most 0.1 wt%, wherein the milk was reconstituted by dissolving powdered skimmed milk at 10% w/w in ultrapure water having 18.2 MΩ.cm resistivity, under stirring for 4 hours at room temperature” recited in claim 1 is interpreted as a functional limitation that recites functional or physical properties of the seaweed powder, but do not add any additional structural limitations to the claimed seaweed powder. Thus, where the art teaches the structural components of the instant seaweed powder, the functional limitations are considered necessarily met.
Regarding claim 1, Torres teaches seaweed powders (Torres sec. 2.1 and 2.2), and that these seaweed powders have average particle diameters of at least a 20 µm (D50, 50% of the particles are 20 µm or less, which is the average) and have coarser particle sizes over 125 µm, meaning that in one embodiment the seaweed powders could have a D90 of at least 125 µm (meaning 90% of the particles are 125 µm or less) (Torres Table 1 and sec. 2.3). Torres teaches the seaweed powders are made from seaweed Mastocarpus stellatus (Torres sec. 2.1). Mastocarpus stellatus naturally has insoluble and soluble fibers, as evidenced by Gomez (Gomez Table 2 and Pg. 2290 sec. 2.1). Since Torres does not teach any modification of these seaweed powders in section 2.2 for processing the seaweed into a dried powder, the seaweed powder of Torres comprises at least 80% dry basis of particles of macroscopic multicellular marine algae Mastocarpus stellatus.
Regarding claim 2, Torres teaches that the seaweed powder was dried to have a moisture content of 8.9% based on total weight of the powder (Torres sec. 2.2).
Regarding claim 6, the Mastocarpus stellatus seaweed powder taught by Torres naturally has at least 1 wt.% of dietary fiber, as evidenced by Gomez (Gomez Table 2).
Regarding claim 7, the Mastocarpus stellatus seaweed powder taught by Torres naturally has at least 0.1 wt.% of protein, as evidenced by Gomez (Gomez Table 1).
Regarding claims 3-5 and 8-10, the limitations “a G’ of at least 50 Pa” (instant claim 3), “a C0 between 0.001 and 0.100 wt.%” (instant claim 4), “a CIELAB L* value of at least 50” (instant claim 5), “said powder having a Cl- content of at most 20 wt% relative to the weight of the powder” (instant claim 8), “said powder having an amount of acid insoluble material (AIM) of at most 50 wt% relative to the weight of the powder” (instant claim 9), and “said powder having an amount of acid insoluble ashes (AIA ) of at most 5.0 wt% relative to the weight of the powder” (instant claim 10) are functional limitations that recite functional or physical properties of the seaweed powder recited in claim 1, but do not add any additional structural limitations to the claimed seaweed powder. Since the structural limitations of the claimed seaweed powder are anticipated by reference Torres, the claimed functional properties of the seaweed powder are considered to be necessarily met.
Regarding claim 12, Torres teaches that the seaweed powder comprises the additional compound of carrageenan because the carrageenan is extracted from the seaweed powders (Torres sec. 2.4 and Table 1 mass fractions).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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 13-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Torres as applied to claims 1-10 and 12 above, and further in view of Roohinejad et al. (Application of seaweeds to develop new food products with enhanced shelf-life, quality and health-related beneficial properties, Food Research International 99, 1066–1083, made available online 13 August 2016).
Torres does not teach a food, feed, personal care, pharmaceutical or industrial product comprising the seaweed powder itself, only the carrageenan extract of the seaweed powder.
Roohinejad teaches the addition of seaweeds to foods and dairy products (Roohinejad Fig. 1 and Intro. para. 1), and also teaches that edible seaweeds are one of the richest sources of natural antioxidants and antimicrobial traditionally consumed by humans as food (Roohinejad Intro. para. 2), and that the addition of seaweeds impart a vast range of nutritional, physiochemical, textural, and health benefiting properties to foods (Roohinejad Intro. para. 3).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have added the seaweed powder of Torres to a food product, including dairy food products, as suggested by Roohinejad. One of ordinary skill in the art would have been motivated to do so in order to add the beneficial functional effects of the seaweed powder to the food and dairy products. One of ordinary skill in the art would have had reasonable expectations of success because Roohinejad teaches seaweeds impart a vast range of nutritional, physiochemical, textural, and health benefiting properties when added to foods.
Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Reed et al. (The Effects of Salinity upon Cellular Volume of the Marine Red Alga Porphyra purpurea (Roth) C.Ag., Journal of Experimental Botany, Vol. 31, No. 125, pp. 1521-1537, December 1980) in view of Pina et al. (An evaluation of edible red seaweed (Chondrus crispus) components and their modification during the cooking process, LWT - Food Science and Technology 56 (2014) 175-180), Kumar et al. (Salinity and Desiccation Induced Oxidative Stress Acclimation in Seaweeds, Sea plants, First Edition, 2014, 91-123), Colorado State (The health benefits of antioxidants, https://source.colostate.edu/health-benefits-antioxidants, 01 September 2015), and Bono et al. (Production of Fresh Seaweed Powder using Spray Drying Technique, Journal of Applied Sciences 11 (13): 2340-2345, 2011).
Reed teaches providing a biomass of Rhodophyta algae Porphyra purpurea (such as that recited in instant claim 17) and subjecting the algae to a hypersaline environment, which significantly decreases tissue water content of the algae by exuding out water due to osmotic stress (Reed Fig. 2). Reed also teaches that the dry weight of the biomass was calculated in order to determine the changes in tissue water content, and includes the method with which the dry weight was measured (Reed Pg. 1524 para. 1 and Pg. 1524 sec. Results para. 1).
Although Reed does not explicitly teach that the biomass of Porphyra purpurea contained at least 5 wt% dry solids, determining the ranges of amounts of dry solids in the algal biomass to be subjected to the exudation process of Reed would be a matter of routine optimization for one of ordinary skill in the art. MPEP §2144.05(II)(B) states “[i]n order to properly support a rejection on the basis that an invention is the result of "routine optimization", the examiner must make findings of relevant facts, and present the underpinning reasoning in sufficient detail. The articulated rationale must include an explanation of why it would have been routine optimization to arrive at the claimed invention and why a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range. See In re Stepan, 868 F.3d 1342, 1346, 123 USPQ2d 1838, 1841 (Fed. Cir. 2017). As an initial point, the art recognized definition of the terms “dry solids” or “dry weight” is “the amount (or weight) of solids that have had water removed”, and the definition provided in the instant specification appears to agree with this definition (specification [0071]). The algal biomass of Reed necessarily contains a certain amount of dry solids because it comprises red algae, with the solid matter of the red algae making up the dry solids portion of the total biomass. However, Reed does not report the actual values of dry weight that were calculated. One of skill in the art would have recognized that some minimum amount of red algae must be present in the provided biomass of Reed for appreciable exudation to have been measured by Reed, and further that it would be beneficial to determine that minimum amount in order to predictably perform the exudation process. One of ordinary skill in the art would have had the relevant knowledge and skills to determine what range of amounts of red algae dry solids in the provided biomass could be subjected to the water exudation process of Reed, and furthermore would have had reasonable expectations of success in doing so due to Reed’s teachings on how to determine and measure dry weight of the red algae biomass (Reed Pg. 1524 para. 1 and Pg. 1524 sec. Results para. 1). It therefore stands to reason that one of ordinary skill in the art would have had all the necessary teachings and reasonable expectations of success in determining the optimum range of dry solids in the provided biomass.
Reed does not teach cooking an exuded biomass, nor transforming a cooked exuded biomass into a seaweed powder.
Pina teaches that cooking (such as boiling or steaming) Rhodophyta red algae Chondrus crispus significantly increases antioxidant activity (Pina Table 2). However, Pina does not teach cooking the exuded biomass in a brine solution. Kumar teaches a hypersaline solution’s effect on inducing reactive oxygen species (ROS) generation and subsequent cellular antioxidant upregulation and production to counter the increased ROS in Rhodophyta red algae seaweeds such as Gracilaria changii and Chondrus crispus (both species of red algae recited in instant claim 17) (Kumar Table 4.2 and Table 4.3). Thus, when Pina and Kumar are taken together, it would have been obvious to one of skill in the art that combining cooking and hypersalinity exposure (such as cooking the red algae in a hypersaline brine solution) to red algae can significantly increase antioxidant concentration in said red algae.
Pina and Kumar do not teach any advantages of increasing the content of antioxidants in the red algae, nor a transformation of a cooked exuded biomass into a seaweed powder.
Colorado State teaches that antioxidants have many health benefits, including fighting free radicals found in the body, preventing damage to cells and DNA, preventing oxidative stress on cardiovascular system, and improve brain and nervous system health (Colorado para. 1).
However, Reed, Pina, Kumar, and Colorado State do not teach a transformation of a cooked exuded biomass into a seaweed powder.
Bono teaches a spray drying technique applied to Rhodophyta red algae Kappaphycus alvarezii (now named Eucheuma cottonii) with the objective of turning the red algae into a powder with controllable particle size (Bono Fig. 1). Bono also teaches an advantage of drying seaweeds into powders is to preserve them from decaying, making the product more compact for storage and transportation, and allowing for greater storage/shelf life (Bono introduction para. 2).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have provided a biomass comprising several species of Rhodophyta red algae and water having at least 5 wt% of dry solids, and then subjected the biomass to a hypersaline environment to induce an osmotic force to exude out water present inside the seaweed. One of skill in the art would have been motivated to do so because it was known that subjecting an algal biomass to hypersaline environments increases the concentration of antioxidants in the seaweed, which would therefore increase the resultant exuded biomass’ beneficial health properties. One of ordinary skill in the art would have had reasonable expectation of success in this endeavor because Kumar teaches that subjecting red algae to hypersalinity leads to an increase in antioxidant concentrations, and Colorado State teaches that antioxidants have many beneficial health properties. Thus, one of skill in the art would conclude that by subjecting red algae to a hypersaline exudation process, not only will water be exuded from the algae’s tissues, but also antioxidant concentrations are increased, which are known to be beneficial to human health.
One of ordinary skill in the art would have been motivated to have cooked the resultant exuded biomass in a brine solution in order to further increase the health benefits of the resultant cooked biomass by further increasing the antioxidant concentration in it. One of ordinary skill in the art would have had reasonable expectations of success in this endeavor because 1) Colorado State teaches that antioxidants have many beneficial health properties and 2) Pina and Kumar teach that cooking and hypersaline exposure, respectively, can significantly increase antioxidant concentration in red algae, and thus combining both methods into one step would be expected by one of skill in the art to further increase the concentration of antioxidants even more than either one alone.
One of skill in the art would have been motivated to transform the cooked algal biomass into a dried seaweed powder because doing so would preserve the seaweed from decaying, make the product more compact for storage and transportation, and increase storage/shelf life. One of skill in the art would have had reasonable expectations of success in this endeavor because Bono teaches that seaweeds of the phylum Rhodophyta can be spray dried to form powders, that spray drying seaweed into a powder would control particle size, and drying would preserve the seaweed from decaying, make the product more compact for storage and transportation, and increase storage/shelf life.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Reed, Pina, Kumar, Colorado State, and Bono as applied to claims 15 and 17 above, and further in view of Um et al. (Review: A chance for Korea to advance algal-biodiesel technology, Journal of Industrial and Engineering Chemistry 15 (2009) 1–7).
Reed, Pina, Kumar, Colorado State, and Bono do not teach the exudation process is carried out in a closed environment.
Um teaches that closed environments provide little risk of contamination of algae (Um p. 4, section 6 para 2).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have performed the exudation process taught by Reed in a closed environment because doing so would reduce the risk of contaminating the algae with airborne contaminants. One of ordinary skill in the art would have had reasonable expectations of success in this endeavor because Um teaches that closed environments provide little risk of contamination of algae.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Reed, Pina, Kumar, Colorado State, and Bono as applied to claims 15 and 17 above, and further in view of Ali et al. (Post-Harvest Handling of Eucheumatoid Seaweeds, pgs. 131- of Tropical Seaweed Farming Trends, Problems, and Opportunities, Developments of Applied Phycology 9, published 2017).
Reed, Pina, Kumar, Colorado State, and Bono do not teach that the biomass is spread evenly to an area density of between 2 and 50 kg/m2 during the exudation process.
Ali teaches that, in the processing areas of harvested red seaweeds, there are platforms used for processing (primarily for removing water by drying) the harvested seaweed, which are typically elevated off the ground, and the harvested seaweeds are evenly scattered across the surface area of the platform (Ali Pg. 133 sec 8.2.1.2).
However, Ali does not teach the biomass being spread out to the specific area density of 2-50 kg/m2.
One of ordinary skill in the art would have optimized the areal density the seaweed must be spread during an exudation process. MPEP §2144.05(II)(B) states “[i]n order to properly support a rejection on the basis that an invention is the result of "routine optimization", the examiner must make findings of relevant facts, and present the underpinning reasoning in sufficient detail. The articulated rationale must include an explanation of why it would have been routine optimization to arrive at the claimed invention and why a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range. See In re Stepan, 868 F.3d 1342, 1346, 123 USPQ2d 1838, 1841 (Fed. Cir. 2017).
Examiner notes the following facts: 1) platforms exist in processing areas close to seaweed harvesting areas that are used to remove water as taught by Ali; 2) the platforms must have a finite surface area available for the harvested seaweed to be spread; 3) there must be a range of (and a limit to) amounts and/or masses of harvested seaweed which can be physically spread evenly on the platforms; and 4) one of skill in the art would recognize that by maximizing the amount of harvest seaweed being processed at a time, the amount of resultant processed seaweed to be used/stored/marketed would also be maximized. It would therefore be advantageous for one of ordinary skill in the art to determine the optimum surface areal density of the harvested seaweed that a given platform can support with the objective being to maximize the amount of harvested seaweed being processed at a time, and furthermore there is a financial incentive to do so.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used the existing platforms as taught by Ali to scatter out an optimal areal density of harvested seaweed, as an additional step in the exudation process taught by Reed, Pina, Kumar, Colorado State and Bono to remove water from the harvested red seaweed tissues. There are a number of advantages in doing so: 1) it uses already existing platforms in the harvested seaweed processing areas; 2) spreading out the harvested seaweed during the exudation process would maximize the amount of surface area contact the seaweed has with the hypersaline solution responsible for the exudation; and 3) the exudation process can occur very soon after the seaweed is harvested because it is being processed on-site. One of ordinary skill in the art would have had reasonable expectations of success in this endeavor because the platforms were already on-site and the method of exudation was already known to successfully remove water from red seaweeds.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Reed, Pina, Kumar, Colorado State, and Bono as applied to claims 15 and 17 above, and further in view of O’Donnell (How to Measure Brine Concentration, 05/04/2016, Brine Concentration Control), and as evidenced by United States Geological Survey USGS (Water Density, June 5, 2018, https://www.usgs.gov/special-topics/water-science-school/science/water-density).
Reed, Pina, Kumar, Colorado State, and Bono do not teach the brine solution comprises at least 3 wt% of the total weight of the solution at 20°C.
O'Donnell teaches that salt concentrations in brine range from 3.5-26% (O’Donnell para. 1). Although O’Donnell does not explicitly teach that this is relative to the total weight of the solution at 20°C, one of ordinary skill in the art recognize that the density of water is ~1g/ml at 20°C, as evidenced by USGS (Pg. 2 Table), and so if the salt concentrations of O’Donnell were with respect to the total volume of the solution, the percentages would still be the same and/or so close as to not be different from those percentages with respect to the total weight of the solution due to the density of water being ~1g/ml.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have cooked the algal biomass in a brine solution comprising a salt concentration ranging from 3.5-26% because O’Donnell teaches that brines are within that range of salt concentrations. One of ordinary skill in the art would have had reasonable expectations of success because O’Donnell teaches that brine solutions are used for food production and preservation (O’Donnell para. 1), and so one of ordinary skill in the art would have had reasonable expectation of success in using such brines in a cooking procedure.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10 and 12-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over conflicting claims 1-8 and 13-20 of copending Application No. 17/836,068 (reference application) in view of Torres et al. (Rheology of kappa/iota-hybrid carrageenan from Mastocarpus stellatus: Critical parameters for the gel formation, International Journal of Biological Macromolecules 86 (2016) 418–424), and as evidenced by Gomez et al. (Dietary fibre and physicochemical properties of several edible seaweeds from the northwestern Spanish coast, Food Research International 43 (2010) 2289–2294).
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant invention is obvious in view of the conflicting claims.
Regarding instant claim 1, conflicting claim 1 recites a seaweed powder that possess the same characteristics as described in instant claim 1, including a storage modulus of at least 30 Pa or at least 50 Pa as determined in a milk solution containing 0.3 wt% powder, a critical gelling concentration of at most 0.1 wt%, the milk was reconstituted by dissolving skimmed milk at 10% w/w in ultrapure water having 18.2 MΩ.cm resistivity under stirring for 4 hours at room temperature.
The conflicting claims do not recite the seaweed powder comprises soluble and insoluble fiber, nor that the particles have a D50 of at least 20µm and a D90 of at least 125µm. However, a seaweed powder of Mastocarpus stellatus naturally has insoluble and soluble fibers, as evidenced by Gomez (Gomez Table 2 and Pg. 2290 sec. 2.1).
The conflicting claims do not recite the seaweed powder comprises particles that have a D50 of at least 20µm and a D90 of at least 125µm.
Torres teaches seaweed powders (Torres sec. 2.1 and 2.2), and that these seaweed powders have average particle diameters of at least a 20 µm (D50, 50% of the particles are 20 µm or less, which is the average) and have coarser particle sizes over 125 µm, which thus means that in one embodiment the seaweed powders could have a D90 of at least 125 µm (meaning 90% of the particles are 125 µm or less) (Torres Table 1 and sec. 2.3). Torres also teaches that differences in particle size of the seaweed powders can affect the mass fractions of carrageenan extracted from those seaweed powders (Torres Table 1 and pg. 420 sec. 3.1 paras. 2-3).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art to have made the particles of the seaweed powder recited in the conflicting claims have a D50 of at least 20µm and a D90 of at least 125µm because doing so would allow one of ordinary skill in the art to advantageously modulate the amount of carrageenan that can be extracted from the seaweed powder. One of ordinary skill in the art would have had reasonable expectations of success because Torres taught that differences in particle size of seaweed powders can affect the mass fractions of carrageenan extracted from those seaweed powders, thereby demonstrating the means of modulating carrageenan extraction yields from seaweed powders.
Regarding instant claim 2, conflicting claim 2 recites the seaweed powder has a moisture content of at most 25 wt% based on the total weight of the powder.
Regarding instant claim 3, conflicting claim 3 recites the seaweed powder has a G' is at least 50 Pa.
Regarding instant claim 4, conflicting claim 4 recites the seaweed powder has a Co is between 0.001 and 0.100 wt%.
Regarding instant claim 5, conflicting claim 5 recites the seaweed powder has a CIELAB L* value of at least 50.
Regarding instant claim 6, conflicting claim 6 recites the seaweed powder has at least 1 wt% dietary fiber.
Regarding instant claim 7, conflicting claim 7 recites the seaweed powder has at least 0.1 wt% protein.
Regarding instant claim 8, conflicting claim 8 recites the seaweed powder has at most 20 wt% of Cl-.
Regarding instant claim 9, conflicting claim 9 recites the seaweed powder has at most 50 wt% acid insoluble material.
Regarding instant claim 10, conflicting claim 10 recites the seaweed powder has at most 5.0 wt% acid insoluble ashes.
Regarding instant claim 12, the conflicting claims do not recite that the seaweed powder further comprises an additional compound, said compound being in a powdery or non-powdery form, said compound being chosen from the group consisting of guar gum, xanthan gum, locust bean gum, cassia gum, tara gum, konjac gum, alginate, agar, carrageenan, beta 1,3 glucans, starch, and combinations thereof. However, Torres teaches that seaweed powder comprises carrageenan because carrageenan is extracted from seaweed powders (Torres sec. 2.4 and Table 1 mass fractions). Thus, the conflicting claims’ seaweed powder would comprise carrageenan.
Regarding instant claims 13 and 16, conflicting claim 13 recites the conflicting claims recite that the powder is used in food, feed, personal care, pharmaceutical, or industrial products.
Regarding instant claim 14, conflicting claim 14 recites the food, feed, personal care, pharmaceutical, or industrial products is a dairy product.
Regarding instant claim 15, conflicting claim 15 recites a method of producing seaweed-based powder comprising the steps of:
a. providing a biomass containing seaweed and water, and having a dry solids (DS) content of at least 5 wt%;
b. subjecting the biomass to an exudation process to exude the water present inside the seaweed and obtaining an exudated biomass containing an exudated seaweed;
c. cooking the exudated biomass in a brine solution to obtain a cooked biomass;
d. transforming the cooked biomass of step d) ore) into a seaweed-based powder.
Regarding instant claim 17, conflicting claim 17 recites that in the method according to claim 15, wherein the seaweed is chosen from the group of seaweeds consisting of Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsbergii, Gigartina sp., Gracilaria sp, Gelidium sp., Mastocarpus stellatus, and mixtures thereof.
Regarding instant claim 18, conflicting claim 18 recites that the exudation process occurs in a closed environment.
Regarding instant claim 19, conflicting claim 19 recites that the biomass is spread evenly at an area density of 2 and 50Kg/m2 during exudation.
Regarding instant claim 20, conflicting claim 20 recites that the brine solution comprises a salt concentration of at least 3 wt.% relative to the total weight of the solution.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 9-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over conflicting claims 1-2 and 4-8 of copending Application No. 17/762,808 (reference application) and as evidenced by Gomez et al. (Dietary fibre and physicochemical properties of several edible seaweeds from the northwestern Spanish coast, Food Research International 43 (2010) 2289–2294).
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant invention is anticipated in view of the conflicting claims.
Regarding instant claim 1, the method recited in conflicting claims 1-2 and 6 recites a seaweed powder that possess the same characteristics as described in instant claim 1, including comprising 80% dry basis of seaweed particles, a storage modulus of at least 30 Pa as determined in an aqueous (milk) solution containing 0.3 wt% dispersion of said powder, and the seaweed powder contains seaweed particles having a D90 of at least 125 µm (conflicting claim 1). Conflicting claim 2 recites that the seaweed powder contains particles having a D50 of at least 20 µm. Conflicting claim 6 recites the powder has a critical gelling concentration (C0) of at most 0.5 wt%, which overlaps with the critical gelling concentration limitation of instant claim 1.
The conflicting claims do not recite the seaweed powder comprises soluble and insoluble fiber, nor that the particles have a D50 of at least 20µm and a D90 of at least 125µm. However, a seaweed powder naturally has insoluble and soluble fibers, as evidenced by Gomez (Gomez Table 2 and Pg. 2290 sec. 2.1).
Regarding instant claim 9, conflicting claim 7 recites that the seaweed powder contains at most 5.0 wt% acid insoluble ashes.
Regarding instant claim 10, conflicting claim 8 recites that the seaweed powder contains and at most 50 wt% acid insoluble material.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Instant claims 1, 3-5, 9, 12-13, and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over conflicting claims 1-2, 6-7, 9-10, and 13-16 of copending Application No. 17/760,615 (reference application) and as evidenced by Gomez et al. (Dietary fibre and physicochemical properties of several edible seaweeds from the northwestern Spanish coast, Food Research International 43 (2010) 2289–2294).
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant invention is anticipated in view of the conflicting claims.
Regarding instant claims 1 and 3-4, conflicting claim 1 recites a seaweed-based composition which contains at least 80% dry basis of seaweed particles and the particles have a D50 of at least 20 µm. Conflicting claim 9 recites that the particles have a D90 of at least 125 µm. Conflicting claim 13 recites the seaweed powder to have a storage modulus (G’) of 10 to 500 Pa, which overlaps with the storage modulus (G’) limitation in instant claims 1 and 3. Conflicting claim 14 recites the seaweed powder have a critical gelling concentration of 0.001 to 0.5 wt%, which overlaps with the critical gelling concentration limitation in instant claims 1 and 4.
The conflicting claims do not recite the seaweed powder comprises soluble and insoluble fiber, nor that the particles have a D50 of at least 20µm and a D90 of at least 125µm. However, a seaweed powder naturally has insoluble and soluble fibers, as evidenced by Gomez (Gomez Table 2 and Pg. 2290 sec. 2.1).
Regarding instant claim 5, conflicting claim 16 recites that the seaweed powder has a CIELAB L* value of at least 50.
Regarding instant claim 9, conflicting claim 15 recites that seaweed-based composition has 1 to 50 wt% of acid insoluble material, which overlaps with the limitation in instant claim 9.
Regarding instant claim 12, conflicting claim 2 recites a seaweed-based composition comprising water, a seaweed powder, and an additional component chosen from the group consisting of guar gum, xanthan gum, locust bean gum, cassia gum, tara gum, konjac gum, alginate, agar, carrageenan, beta 1,3 glucan, native starch, and combinations thereof.
Regarding instant claims 13 and 16, conflicting claim 10 recites that the composition can be in a food, beverage, nutritional product, dietary supplement, a feed, a personal care product, a pharmaceutical product, or an industrial product.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 29 September 2025 have been fully considered but they are not persuasive.
Regarding Applicant’s arguments that the properties of the claimed seaweed powder produced by the inventive process are different from the properties of the seaweed powder achievable in nature, thus the instant seaweed compositions are not drawn to a product of nature (Remarks pg. 7 paras.1-3), the instant composition of claims 1-10, 12-14, and 16 is not limited to being produced by the instant method of claim 15. Thus, any defining characteristics that Applicant asserts their method gives the resultant seaweed powder is not relevant to the patentability of the claimed composition. The claimed seaweed powder shares all of the same physical components as the seaweed powders of the prior art, and thus is not patentable under the provisions of 35 USC § 101.
Regarding Applicant’s arguments that the claims have been amended to indicate the composition comprises the seaweed species Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., or mixtures thereof, and that the recited seaweeds do not include Mastocarpus stellatus (Remarks pg. 8 para. 1),
As described above, it is unclear if the composition requires the presence of seaweeds Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., or mixtures thereof.
Claim 1 does not clearly recite a seaweed component in the seaweed powder. Instead, the claim recites the seaweed powder comprises “particles of a macroscopic, multicellular marine algae”. There is no indication that the two claim terms “seaweed” and “macroscopic multicellular marine algae” are equivalent terms in the context of the invention. If they were intended to be equivalent, they would use the same claim term. The claim term “seaweed” does not limit any compositional elements within the powder because the claim does not recite a “seaweed” component, only a “macroscopic, multicellular marine algae” component.
The new Markush group limitation limits the claim term “seaweed”, not the “macroscopic, multicellular marine algae” particles, so the claimed seaweed powder is interpreted to not require the presence of Porphyra sp., Palmaria palmata, Eucheuma spinosum, Eucheuma denticulatum, Eucheuma sp., Eucheuma cottonii (also known as Kappaphycus alvarezii), Kappaphycus striatus, Kappaphycus sp., Chondrus crispus, Chondrus sp, Sarcothalia crispata, Mazzaella laminaroides, Mazzaella sp., Chondracanthus acicularis, Chondracanthus chamissoi, Chondracanthus sp., Gigartina pistilla, Gigartina mammillosa, Gigartina skottsberjgii, Gigartina sp., Gracilaria sp, Gelidium sp., or mixtures thereof. Additionally, the claimed composition is open ended (uses the transitional phrase “comprising”), meaning the composition does not exclude Mastocarpus stellatus.
Regarding Applicant's argument that the cited references do not disclose the storage modulus or critical gelling concentration of seaweed powders of the instant claims (remarks pg. 8 para. 3 and pg. 9 para. 3), the claimed seaweed composition of claims 1-10 and 12 are anticipated by reference Torres. The rheological properties G' of at least 30 Pa and Co of at most 0. 1wt% of the instant seaweed powder would necessarily be present in the seaweed powder of Torres because those properties are physical properties of the same anticipated seaweed powder. Likewise, the seaweed powders of claims 13-14 and 16 are obvious over Torres in view of Roohinejad. The seaweed powders of the prior art would necessarily have the same rheological properties G' of at least 30 Pa and Co of at most 0.1wt% of the instant seaweed powder because they are structurally the same seaweed powder. See MPEP $2112.01(I-II).
Regarding Applicant’s arguments that the claimed seaweed powder is not structurally the same as the seaweed powder of the prior art which points to the data presented in the Declaration of Dr. Garnec filed 29 September 2025, (Remarks pg. 8 para. 4, pg. 12 para. 1, and Garnec Declaration pgs. 1-2), the instant composition of claims 1-10, 12-14, and 16 is not limited to being produced by the instant method of claim 15. Thus, any defining characteristics that Applicant asserts their method gives the resultant seaweed powder is not relevant to the patentability of the claimed composition. The claimed seaweed powder shares all of the same physical components as the seaweed powders of the prior art, and thus is not patentable under the provisions of 35 USC §§ 102 and 103.
Regarding Applicant's argument that the rheological properties of the seaweed powder produced by the instant method would not have been predictable to one of ordinary skill in the art, and are not taught by, nor necessarily met by, the prior art (remarks pg. 10 last para. through pg. 11 last para.), instant claims 15 and 17-20 are drawn to a method of producing a seaweed powder, not a method of improving rheological properties of a seaweed powder. Although the seaweed powder produced by the instant method is recited to have the rheological properties of a G' of at least 30 Pa and a Co of at most 0.1wt%, the prior art teaches each and every step of the instant method of producing the seaweed powder, and so would produce the same seaweed powder of the claimed invention. The two seaweed powders would inherently have identical rheological characteristics because they are structurally one and the same, and are produced by practicing the same methods steps. See MPEP $2112.01(I-II).
Regarding Applicant’s arguments that the present claimed invention relates to a method for providing a seaweed with the claimed rheological properties, whereas the cited references relate to increasing the antioxidant activity and reactive oxygen species for health benefits, thus there is no motivation to one of ordinary skill in the art to combine the cited references to improve the rheological properties of a seaweed powder (Remarks pg. 12 para. 2), the combination of the cited references used in the 103 rejection of claims 15 and 17-20 teach each and every step of the claimed method. As such, the resultant seaweed powder would have the exact same rheological and storage characteristics as Applicant claims. A difference in motivation for combining the cited references together to practice the claimed method does not mean that the instant claims are patentably distinct from the prior art. The claims are drawn to a method of producing a seaweed powder having improved rheological properties. The claim phrase “having improved rheological properties” merely describes the properties of the resultant seaweed powder, and does not limit the claims to a method of improving rheological properties of a seaweed powder.
Regarding Applicant’s request to hold the double patenting rejections in abeyance until the claims of the instant application are held to be allowable (Remarks Pg. 15 para. 1), a request to hold a rejection in abeyance is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an objection or requirements as to form (see 37 CFR 1.111(b) and MPEP §714.02). Thus, the double patenting rejections of record have been maintained as no response to these rejections has been filled by applicant at this time.
Conclusion
Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the timing fee set forth in 37 CFR 1.17(p) on 07 February 2025 and 04 April 2025 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(b). 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 Alexander M Duryee whose telephone number is (571)272-9377. The examiner can normally be reached Monday - Friday 9:00 am - 5:00 pm.
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/Alexander M Duryee/Examiner, Art Unit 1657
/LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657