DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 18 June 2024 has been entered.
Claims 1, 6, and 7 have been amended. Claim 14 is newly added. Claims 10 and 11, and the species NRRL number 50836 in claim 1, remain withdrawn.
It is noted that the species of SEQ ID NO: 10 was elected for examination in claims 6 and 7, and the species of SEQ ID NOs: 9, 11, and 12 were withdrawn. As Applicant has amended claims 6 and 7 to remove the elected species of SEQ ID NO: 10, and as only non-elected species remain (i.e. SEQ ID NOs: 9, 11, and 12) in these claims, claims 6 and 7 are now withdrawn from consideration.
Claims 1, 5, and 14 are currently pending and under examination.
This application is a Continuation Application of U.S. Patent Application No. 14/720679, filed May 22, 2015, which claims benefit of priority to U.S. Provisional Patent Application No. 62/002107, filed May 22, 2014.
Withdrawal of Rejections:
The rejection of claims 1 and 5-7 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement, is withdrawn.
The rejection of claims 1 and 5-7 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.
The rejection of claims 6 and 7 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form, is withdrawn.
New Objections and Rejections:
Claim Objections
Claim 14 is objected to because of the following informalities: the term “18S r DNA” should instead read “18S rDNA.” Appropriate correction is required.
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, 5, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pora et al. (IDS; WO 2012/175027, Published 2012).
With regard to claims 1, 5, and 14, Pora et al. teach a mutant Schizochytrium sp. strain identified as 2010-0321, wherein this strain comprises an 18S rDNA sequence having 98% identity to SEQ ID NO: 10 (Abs.; claim 1, 2, 4, 16; see also Sequence Comparison of current SEQ ID NO: 10 to Pora et al. SEQ ID NO: 2- Previously Presented).
As currently written, Applicant claims either the mutant Labyrinthulomycete microorganism deposited under NRRL number 50837 produced as claimed, or a derivative strain thereof. A strain derived from NRRL number 50837 is defined in the claims as a strain comprising an 18S rDNA sequence having at least 90% identity, or at least 98% identity, to SEQ ID NO: 10. As Schizochytrium sp. strain 2010-0321 of Pora et al. comprises an 18S rDNA sequence having 98% identity to SEQ ID NO: 10, Schizochytrium sp. strain 2010-0321 is a strain derived from NRRL number 50837 as claimed, as this taught strain comprises an 18S rDNA sequence having 98% identity to SEQ ID NO: 10.
As the mutant Schizochytrium sp. strain identified as 2010-0321 comprising an 18S rDNA sequence having 98% identity to SEQ ID NO: 10 of Pora et al. cannot be separated from its properties, the mutant Schizochytrium sp. strain identified as 2010-0321 would necessarily produce a microbial oil comprising at least 35% of total fatty acids as DHA and at least 25% of total fatty acids as myristic acid, as well as produce DHA at a rate of at least 100 mg/L/h, and produce at least 20% more DHA and at least 100% more myristic acid as a percent of total fatty acids than the wild type strain from which it is derived.
Conclusion
No claims are allowable.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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