DETAILED ACTION
All objections and rejections raised in prior Office Actions are withdrawn unless restated below.
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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 03/23/2026 has been entered.
Claim Interpretation
Claims 1 and 15 recite:
(ii) subjecting the fermentation broth to an extracting process to extract the microbial oil from the microbial cells while maintaining less than 15 g/Kg of carbohydrate in the fermentation broth during the extracting process; wherein the extracting process comprises:
(a) enzymatically lysing the microbial cells comprising the microbial oil in the fermentation broth to form a lysed cell composition
(b) demulsifying the lysed composition to form a demulsified lysed cell composition, wherein demulsifying comprises adding caustic soda as the sole demulsification agent to the lysed cell composition in an amount of less than 18 g of caustic soda agent per kg of fermentation broth.
Since the claims recite maintaining a carbohydrate concentration “in the fermentation broth during the extracting process,” this is understood as a definition that the material acted upon during the whole of the extracting process is a “fermentation broth.” That is, while step (a) of the claims performs a lysing step to form a “lysed cell composition,” such lysed cell composition is understood to still be a “fermentation broth,” since “an extracting process to extract the microbial oil from the microbial cells while maintaining less than 15 g/Kg of carbohydrate in the fermentation broth during the extracting process,” which is understood as requiring present of a fermentation broth throughout the extraction process including after the initial lysing step.
In view of the above, the demulsification agent is added to the lysed cell composition, which is also a fermentation broth. In at least some embodiments of the invention, the lysed cell composition and an initial fermentation broth will have the same mass before and after a lysing; however, the same is not required by all embodiments. As stated, the fermentation broth after lysing is still considered to be a fermentation broth. As such, the broadest reasonable interpretation of “in an amount of less than 18 g of caustic soda agent per kg of fermentation broth” includes 18 g of caustic soda to whatever composition such caustic soda is being added to even if a mass change occurs after performance of the enzymatic lysing step.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3-11, 15 and 18-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triplett et al. (U.S. 2016/0319217 A1) further in view of Barker et al. (U.S. 2016/0318840 A1) (previously cited) and Ruecker et al. (U.S. 2002/0001833 A1).
Triplett, abstract, teaches:
Disclosed herein are processes for obtaining a microbial oil comprising one or more polyunsaturated fatty acids (PUFAs) from one or more microbial cells by lysing the cells to form a lysed cell composition and then recovering the oil from the lysed cell composition. Further disclosed herein is microbial oil comprising one or more PUFAs that is recovered from microbial cells by at least one process described herein.
Triplett in the claims teaches:
1. A process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids from one or more microbial cells, wherein the process comprises:
(a) lysing the cells comprising the microbial oil to form a lysed cell composition;
(b) demulsifying the lysed cell composition to form a demulsified lysed cell composition;
(c) separating the oil from the demulsified lysed cell composition; and
(d) recovering the oil;
wherein (b) comprises (i) low shear agitation, (ii) axial-flow agitation, or (iii) a combination thereof.
4. The process of claim 1, wherein (b) further comprises adding a base to the lysed cell composition.
5. The process of claim 1, wherein (b) further comprises raising the pH of the lysed cell composition to about 8 or above.
Example 5, para. [0122], of Triplett provide an embodiment wherein:
Example 9
An unwashed cell broth (500-700 kg) containing microbial cells (Schizochytrium sp.) was pasteurized at 60° C. for 1 hour. The cells were lysed by adding a 50 wt % NaOH solution to pH adjust to 7.2 to 7.5 and 0.5%, by weight broth, Alcalase® 2.4 FG (available from Novozymes (Franklinton, N.C.)) and agitating for 2 hours at 55-60°. The lysed cell composition was demulsified by: continuing to agitate the composition at 221 RPM with narrow blade hydrofoil impellers; adding 2.5%, by weight broth, of 50% NaOH solution to adjust the pH to 11.8; adding 2%, by weight composition, NaCl; and heating to 90° C. After a few hours at 90° C., 50 wt. % NaOH was added to the composition to readjust the pH to 10.5 and the composition held at 90° C. with agitation. After a few more hours, the microbial oil was separated from the demulsified lysed cell composition by adding 50 wt % NaOH to adjust the pH to neutral (6.5 to 8.5) and centrifuging (Seital SR 1010 (Seital srl, Italy)) the composition at 1750 RPM to provide a crude oil, which yielded (on average)>96% DHA (by DHA weight).
Alcalase is an enzyme. NaOH solution is caustic soda. As such, Triplett discloses the following method:
A process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids from one or more microbial cells contained in a fermentation broth, the process comprising:
(a) enzymatically lysing the microbial cells comprising the microbial oil in the fermentation broth to form a lysed cell composition;
(b) demulsifying the lysed cell composition to form a demulsified lysed cell composition, wherein demulsifying comprises adding caustic soda to the lysed cell composition;
(c) separating the oil from the demulsified lysed cell composition; and
(d) recovering the oil.
It is noted that Example 9 of Triplett also has addition of NaCl to the demulsification process, which understood as an additional demulsification agent in addition to NaOH.
Triplett, para. [0056], sets forth “In some embodiments, the agitator is a dispersion style agitator that disperses a base and/or salt prior to or during lysing of the cells and/or after demulsifying the lysed cell composition.” “Disclosed herein is a process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids (PUFAs) from one or more microbial cells comprising (a) lysing the cells comprising the microbial oil to form a lysed cell composition; (b) demulsifying the lysed cell composition comprising (i) low shear agitation, (ii) axial-flow agitation, or (iii) a combination thereof and a base to form a demulsified lysed cell composition; (c) separating the oil from the demulsified lysed cell composition; and (d) recovering the oil.” Triplett, para. [0011]. As such, Triplett is understood as describing that base is required for demulsification but not necessarily a salt (e.g. NaCl). That is, by omitting NaCl in the description above, Triplett contemplates embodiments wherein NaCl is not added for demulsifying.
Barker similarly describes method for demulsification and recovery of PUFA-containing microbial oil, for example, as set forth in claim 1 of Barker:
1. A process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids from one or more microbial cells, wherein the process comprises:
(a) lysing the cells comprising the microbial oil to form a lysed cell composition;
(b) demulsifying the lysed cell composition to form a demulsified lysed cell composition;
(c) separating the oil from the demulsified lysed cell composition; and
(d) recovering the oil;
wherein (b) comprises adding at least one enzyme.
The asserted improvement of Barker is inclusion of an enzyme during the demulsifying step. However, the same teaching is a teaching that inclusion of an enzyme is an improvement and not a necessity, just as Triplett does not include an enzyme in the demulsification step as discussed. For example, Barker, para. [0119], provides the following comparative example:
A washed cell broth (750 g) containing microbial cells (Crypthecodinium cohnii) was pasteurized at 60° C. for 1 hour. The washed cells were lysed by passing the broth through a mechanical homogenizer twice at 12,000 PSI. The lysed cell composition was placed in a flask and the composition demulsified by adding 0.73%, by weight composition, of a 50% NaOH solution. The microbial oil was separated from the demulsified lysed cell composition by heating the composition to 90° C. while agitating the composition at a speed of 250 RPM until the pH dropped to 8.0, and centrifuging (Thermo Sorvall ST 40R) the composition at 8000 g for 5 minutes to provide a crude oil, which yielded 42% DHA (by DHA weight) (based on FAME analysis) and a crude oil with an AV of 8.8 and a PV of 0.66 meq.
That is, Barker provides a working example of demulsification wherein NaOH (caustic soda) is the sole demulsification agent added to a lysed cell composition. As such, an ordinarily skilled artisan at the time of filing would have understood that NaCl and enzyme can be omitted from a demulsification step with demulsification remaining to be successful with application of only caustic soda (NaOH) as a sole demulsification agent. “Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.” MPEP 2123(I). Triplett and Barker teaching the possibility and improvements utilizing an enzyme or NaCl as an additional demulsification does not teach away from the broader disclosure that NaOH as a sole demulsification agent is sufficient.
Triplett further does not teach a specific amount of NaOH to be added in terms of g of caustic soda per kg of fermentation broth. Triplett states that NaOH be added until a sufficiently high pH is achieved. However, para. [0119] of Barker does state a specific amount of NaOH to be added being 0.73% of a 50% NaOH solution by weight of the composition (i.e. lysed cell composition), which is 7.3 g of the 50% NaOH solution or 3.65 g of neat caustic soda (NaOH) per kg of the lysed fermentation both. As such, in view of Barker, an ordinarily skilled artisan at time of filing would understand that an amount of less than 10 g of caustic soda per kg of fermentation both (i.e. lysed cell composition) is an appropriate and suitable amount of caustic soda to achieve a functional demulsification.
Upon use of NaOH as a sole demulsification agent, Triplett and Barker teach the following method:
A process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids from one or more microbial cells contained in a fermentation broth, the process comprising:
(a) enzymatically lysing the microbial cells comprising the microbial oil in the fermentation broth to form a lysed cell composition;
(b) demulsifying the lysed cell composition to form a demulsified lysed cell composition, wherein demulsifying comprises adding caustic soda as the sole demulsification agent to the lysed cell composition in an amount of less than 18 g of caustic soda per kg of fermentation broth;
(c) separating the oil from the demulsified lysed cell composition; and
(d) recovering the oil.
Triplett does not state a particular method for obtaining an unwashed cell broth (500-700 kg) containing microbial cells (Schizochytrium sp.), although such a cell fermentation both must be obtained by some method. “A solvent-free process for obtaining PUFA containing oil from microbial cells involves growing microorganisms that are capable of producing the desired oil in a fermentor, pond or bioreactor to produce a microbial cell biomass; releasing the PUFA containing oil into the fermentation medium in which the cells were grown by using mechanical force (e.g., homogenization), enzymatic treatment, or chemical treatment to disrupt the cell walls; and recovering crude oil from the resulting composition comprising PUFA containing oil, cell debris, and liquid by raising the pH, adding a salt, heating, and/or agitating the resulting composition.” Triplett, para. [0008].
Due to a lack of detail for provided by Triplett for “growing microorganisms that are capable of producing the desired oil in a fermentor, pond or bioreactor to produce a microbial cell biomass,” an ordinarily skilled artisan at time of filing would have understood that employment of any appropriate method for growing microorganisms that are capable of producing the desired oil in a fermentor, pond or bioreactor to produce a microbial cell biomass is appropriate and compatible with methods of Triplett being a solvent-free process for obtaining a PUFA containing microbial oil.
Ruecker et al. teaches such a method for growing microorganisms that are capable of producing the desired oil in a fermentor to produce a microbial cell biomass that can be subjected to a solvent-free process to recover a PUFA-containing oil.
Ruecker is directed towards obtaining a lipid/oil that includes omega-3 highly unsaturated fatty acid, in particular docosahexaenoic acid (DHA). Ruecker, para. [0003], [0021].
Ruecker, in the claims, states:
1. A process for obtaining lipid from microorganisms comprising:
(a) lysing cells of the microorganisms to produce a lysed cell mixture [i.e. lysed cell composition];
(b) treating said lysed cell mixture to produce a phase separated mixture comprising a heavy layer and a light layer, wherein said heavy layer comprises an aqueous solution and said light layer comprises said lipid [demulsifying the lysed cell composition to form a demulsified lysed cell composition as discussed further below];
(c) separating said heavy layer from said light layer [separating oil from the demulsified lysed cell composition]; and
(d) obtaining said lipid from said light layer [recovering the oil].
“The solventless extraction process of the present invention can also include at least partially separating the broth from lipids.” Ruecker, para. [0026].
Regarding recitation of less than 15g/Kg or 0.2-5 g/kg of carbohydrate is maintained in the fermentation broth during the oil extraction process as in claims 1 and 15, Ruecker, paras [0035] and [0039], states:
A single F-Tank batch (˜1,200 gallons) was used to generate the starting broth for the three solventless extraction processes. The batch (#F99202) was allowed to run for 94 hours, while controlling the glucose levels at 13 g/L, after which time the corn syrup feed was terminated. Residual glucose levels dropped to <5 g/L four hours later. This resulted in a final age of 98 hours. The final broth volume was 958 gallons. The final yield was 146 g/L. Both in-process contamination checks and a thorough analysis of a final broth sample failed to show any signs of contamination.
Crude oil was obtained by treating three 400-gallon aliquots (approx.) of broth in batch #F99202. Each 400-gallon aliquot from the F-Tank batch was processed separately, starting with the caustic/heat treatment steps.
The fermentation The density of water is 1 kg/L.
As stated in para [0035] of Ruecker, “Residual glucose levels dropped to <5 g/L four hours later.” The fermentation broth with < 5 g/L of glucose is the fermentation media subjected to caustic treatment (KOH is considered to be a caustic agent) and a process of extracting an oil/lipid as described in para. [0039] of Ruecker. A glucose concentration of <5 g/L is considered to be an amount of carbohydrate that is less than 15 g/Kg based upon the density of water being 1 Kg/L, and since glucose is not added during an oil extraction process glucose concentration is maintained at less than 15 g/kg throughout the process as recited in claims 1 and 15 and is further maintained in a range of 0-10 g/kg as recited in claim 3. That is, even if the density of a fermentation broth is below 1 kg/L, the density would have to be less than 0.5 kg/L before a concentration of 5 g/L of glucose would be above 10 g/Kg. If the density of the fermentation broth is above 1 kg/L, as the density of fermentation broth increases the density of glucose/carbohydrate in terms of g/Kg decreases.
Depending upon the density of fermentation broth, 5 g/L of glucose corresponds to the following concentrations
Broth density kg/L Glucose Conc. g/Kg
0.5 10
1.0 5
1.25 4
2 2.5
The density of water is 1 kg/L. While Ruecker does not disclose the density of the fermentation medium broth containing cells, glucose, produced lipids and other media, as shown in the table above any reasonable density for the fermentation broth in the range of 0.5-2 kg/L results in a glucose concentration less than 10 g/Kg with glucose at 5 g/L. Further, Ruecker states that the glucose concentration is less than 5 g/L.
As such, there is technical reasoning to support that a concentration of 5 g/L glucose is within the range of 0-10 g/Kg and less than 15 g/Kg carbohydrate as recited in claims 1 and 3.
Further, “Generally, 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. ‘[[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’" MPEP 2144.05(II). Here, Ruecker directly teaches that the glucose concentration is less than 5 g/L. In view of such a direct teaching, it is not inventive to perform the methods of Ruecker in a manner in which the glucose concentration will be less than 4 g/L, less than 3 g/L or even less than 1 g/L, wherein any reasonable density (as reviewed above) of a fermentation broth having such glucose concentrations will have glucose at a concentration less than 10 g/kg or within the range of 0.2-5 g/Kg as recited in the claims 1, 3 and 15. For example, at a glucose concentration of 1 g/L, the glucose concentration in terms of g/Kg will be 1/5th of the values on the table above.
Again, an ordinarily skilled artisan at time of filing that employment of any appropriate method for growing microorganisms that are capable of producing the desired oil in a fermentor, pond or bioreactor to produce a microbial cell biomass is appropriate and compatible with method consist with Triplett being a solvent-free process for obtaining a PUFA containing microbial oil. Since, Ruecker teaches such a method, an ordinarily skilled artisan would have been motivated to grow microbial cells in a manner consistent with the teachings of Ruecker, which as discussed includes producing a fermentation broth to be subjected to a solvent less extraction process having less than 15 g/kg, less than 10 g/kg or from 0.2-5 g/kg of carbohydrate in such fermentation broth. An ordinarily skilled artisan at time of filing would have been motivated to due this since a fermentation broth subject to the extraction process of Triplett must be produced by some suitable process wherein Ruecker expressly teaches a process for producing such a fermentation broth suitable for treatment with a solventless extraction process to recover a PUFA containing microbial oil. Upon doing the same, the features of claims 1, 3, 6, 7, 15. 19 and 20 are reached.
Regarding claim 4, a glucose concentration of less than 5 g/L is present in the specific fermentation broth taught in para. [0035] of Ruecker prior to the performance of any cell lysis as taught by Ruecker and/or Barker. That is, as stated in para [0035] of Ruecker, “Residual glucose levels dropped to <5 g/L four hours later” during fermentation of cells is within the broadest reasonable meaning of the same carbohydrate range “is maintained in the fermentation broth before step (a),” which is enzymatic lysing of cells. Claim 4 is not interpreted as requiring that the carbohydrate composition is never greater than 10 g/kg during any point in growing the microbial cells in a fermentation broth.
Regarding claims 5 and 18, claims state that cells are capable of producing at least 10 wt.% of their biomass as lipids and does not recite that such amount of lipid is actually produced in any method. Regardless, Ruecker, para. [0015], teach that “the microorganisms comprise at least about 30% by weight of lipid,” which is considered to meet the features of claim 5 when such microorganisms are applied to the methods of Triplett.
Regarding claims 8-11 and 21-24, Triplett in the working examples employs cells of Schizochytrium sp.
Claim(s) 1, 3-12, 15 and 18-25 (all pending claims) is/are rejected under 35 U.S.C. 103 as being unpatentable over Triplett et al., Barker et al. and Ruecker et al. as applied to claims 1, 3-11, 15 and 18-24 above, and further in view of Zhu et al. (Optimization of arachidonic acid production by fed-batch culture of Mortierella alpina based on dynamic analysis, Enz. Microbial. Technol. 38 (2006): 735-40).
Regarding claims 12 and 25, Triplett, para. [0031], and Barker, para. [0031], explicitly teach that microbial cells to which the extraction methods can be applied include Mortierella alpina such that an ordinarily skilled artisan at the time of filing would have been motivated to utilize fermentation broths containing Mortierella alpina in methods according to the teachings of Triplett and Barker including demulsifying by addition of less than 18 g of caustic soda per 1 Kg of fermentation broth as discussed above.
Zhu teach the production of fermentation broths for production of arachidonic acid (a polyunsaturated fatty acid) by fermentation of M. alpina. Fig. 1 of Zhu shows M. alpina fermented on media (i.e. fermentation broth) with various initial glucose concentrations and showing the residual glucose concentration after cultivation. As shown, when the initial glucose concentration is 30 g/L, the residual glucose concentration is low. “When initial concentrations of glucose were 30 and 50 g/L, the glucose was almost used up in the 3rd and 4th day, respectively, the residual glucose concentrations were under 5 g/L,” which is considered to be within the range of 0-10 g/kg (and less than 15 g/kg) of glucose/carbohydrate as recited in the claims. Zhu, page 736, right col. The plots on Fig. 1 of Zhu indicates a glucose concentration well less than 5 g/L and near zero after 4-6 days of cultivation time, but above zero, with initial glucose concentration of 30 g/L. After 5 or 6 days of fermentation, the glucose concentrations in Fig. 3 of Zhu appear to be barely more than zero. The amount of lipids produced is shown in Fig. 3 of Zhu including in amounts of at least about 10 wt.% of biomass for all concentrations of glucose as recited in claim 5. At the time of filing, an ordinarily skilled artisan would have been motivated to extract/obtain oil from the fermentation broths taught by Zhu, including those with residual glucose concentrations near zero after 4-6 days of cultivation time (30 g/L glucose initial concentration), using the methods suggested by the combined teachings of Triplett and Barker, as discussed above, since such methods are particularly advantageous methods for recovery of oil from microbial cells including M. alpina. Again, glucose or other carbohydrate is not added to a fermentation broth during an oil extraction process such that glucose concentrations near zero as taught by Zhu will be maintained.
Further regarding the glucose concentrations recited in claims 1, 3, 15 and 17, “Generally, 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." MPEP 2144.05(II)(A).
Units of g/L and g/Kg are alternate units for measurement of glucose concentration. Zhu does not disclose the density of the cultures discussed therein to allow direct conversion between units. Regardless, as taught in Fig. 3 of Zhu glucose concentrations appear to decrease to near zero with an initial glucose concentration of 30 g/L. In view of the same, it is not inventive to discover workable residual glucose falling within the recited ranges of glucose concentrations including value near zero within a range of 0-15 g/kg, 0-5 g/kg or 0.2-5 g/kg wherein the density of a fermentation is unlikely to be significantly less than 1 kg/L (as density in 1 kg/L units increases, a corresponding density in g/Kg units decreases with glucose concentration expressed in g/L).
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, 3-12, 15 and 18-25 (all pending claims) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-41 of U.S. Patent No. 11,124,736 B2 in view of Triplett et al. (U.S. 2016/0319217 A1), Barker et al. (U.S. 2016/0318840 A1), Ruecker et al. (U.S. 2002/0001833 A1) and Zhu et al. (Optimization of arachidonic acid production by fed-batch culture of Mortierella alpina based on dynamic analysis, Enz. Microbial. Technol. 38 (2006): 735-40).
U.S. Patent No. 11,124,736 B2 is previously published as Triplett. The rejections over Triplett ,Barker, Ruecker and Zhu under 35 USC 103 set forth above are incorporated herein by reference.
The reference claims recite:
What is claimed is:
1. A process for obtaining a microbial oil comprising one or more polyunsaturated fatty acids from one or more microbial cells, wherein the process comprises:
(a) lysing the cells comprising the microbial oil to form a lysed cell composition;
(b) demulsifying the lysed cell composition to form a demulsified lysed cell composition;
(c) separating the oil from the demulsified lysed cell composition; and
(d) recovering the oil;
wherein (b) comprises (i) low shear agitation, (ii) axial-flow agitation, or (iii) a combination thereof, and wherein said (i) low shear agitation, (ii) axial-flow agitation, or (iii) a combination thereof, is provided by an impeller selected from the group consisting of a fluid foil impeller, a hydrofoil impeller, a pitch-blade turbine, and combinations thereof,
and wherein (b) is done from 90° C. to 100 ° C. at a pH of 2 or lower or 10 or higher.
3. The process of claim 1, wherein (b) further comprises adding a base to the lysed cell composition.
14. The process of claim 1, wherein the cells of (a) are contained in a fermentation broth.
17. The process of claim 1, wherein the polyunsaturated fatty acid is selected from docosahexaenoic acid (DHA), eicosapentaenoic acid (EPA), docosapentaenoic acid (DPA), arachidonic acid (ARA), gamma-linolenic acid (GLA), dihomo-gamma-linolenic acid (DGLA), stearidonic acid (SDA), and mixtures thereof.
21. The process of claim 20, wherein the microbial cells are from the order Thraustochytriales.
22. The process of claim 20, wherein the microbial cells are from Mortierella Alpina.
23. The process of claim 1, wherein the microbial cells are from the genus Mortierella, genus Crypthecodinium, or order Thraustochytriales.
24. The process of claim 23, wherein the microbial cells are from the genus Thraustochytrium, Schizochytrium, or mixtures thereof.
21. The process of claim 20, wherein the microbial cells are from the order Thraustochytriales.
22. The process of claim 20, wherein the microbial cells are from Mortierella Alpina.
23. The process of claim 1, wherein the microbial cells are from the genus Mortierella, genus Crypthecodinium, or order Thraustochytriales.
24. The process of claim 23, wherein the microbial cells are from the genus Thraustochytrium, Schizochytrium, or mixtures thereof.
The reference claims meet the features of at least claims 1 and 15 except for 1) enzymatically lysing cells, 2) growing and providing microbial cells in a fermentation broth having less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation such that the same concentration of carbohydrate is present when applied to an extracting process as recited, and 3) demulsification with caustic soda (e.g. NaOH) in an amount of less than 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent.
However, as set forth above in the rejections under 35 U.S.C. 103 over Triplett ,Barker, Ruecker and Zhu, Triplett teaches that enzymatic lysis is a preferred and advantageous method of lysing cells to then be subject to a PUFA oil extraction process such that one having ordinarily skill in the art at time of filing would have been motivated to modify embodiments of the patented claims such that the lysing step is performed enzymatically since lysing must be performed by some appropriate method.
Provision of an appropriate PUFA-containing cell mass in a fermentation broth with carbohydrate concentrations meeting the claim features of less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation are taught particular by Reucker and Zhu wherein the cells/fermentation broth needed to practice the patented claims must be provided by some appropriate means such that an ordinarily skilled artisan at time of filing would have been motivated to modify embodiments of the reference claims to provide such cells as discussed above in reference to the teachings of Rueker and Zhu.
The reference claims directly recite that demulsfication is performed by adjusting pH to 10 or higher wherein patented claim 3 direct states addition of a base. As discussed above, Triplett and Barker teach that addition of a 50% NaOH solution, including without addition of NaCl or an enzyme, is a known method to achieve demulsification by raising pH including addition of NaOH (caustic soda) in an amount meeting the claim limitation of less than 18 g of caustic soda per kg of fermentation broth. It is noted that the patented claims 1 and 3 do not require addition demulsification agents other than a base (i.e. NaOH or caustic soda) wherein the rejections under 35 U.S.C. 103 describe how demulsification by addition of only NaOH is known and taught in the prior art in Barker, para. [0119]. As such, at the time of filing an ordinarily skilled artisan would have been motivated to practice the patented claims by adding a base being a caustic soda in an amount of 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent since the same meets the minimum requirements of the patented claims and at least Barker, para. [0119], demonstrates that the same is an effective means of achieving demulsification.
The features of the remaining dependent claims are met by either the patented claims or otherwise taught by Triplett ,Barker, Ruecker and Zhu as effective features for practice of an oil extraction process requiring lysing, demulsification, and recovery of oil as recited in the patented claims.
Claims 1, 3-12, 15 and 18-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-51 of copending Application No. 18/809,575 in view of Triplett et al. (U.S. 2016/0319217 A1), Barker et al. (U.S. 2016/0318840 A1), Ruecker et al. (U.S. 2002/0001833 A1) and Zhu et al. (Optimization of arachidonic acid production by fed-batch culture of Mortierella alpina based on dynamic analysis, Enz. Microbial. Technol. 38 (2006): 735-40).
The rejections over Triplett ,Barker, Ruecker and Zhu under 35 USC 103 set forth above are incorporated herein by reference.
The reference claims recite:
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The reference claims meet the features of at least claims 1 and 15 except for 1) enzymatically lysing cells, 2) growing and providing microbial cells in a fermentation broth having less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation such that the same concentration of carbohydrate is present when applied to an extracting process as recited, and 3) demulsification with caustic soda (e.g. NaOH) in an amount of less than 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent.
However, as set forth above in the rejections under 35 U.S.C. 103 over Triplett ,Barker, Ruecker and Zhu, Triplett teaches that enzymatic lysis is a preferred and advantageous method of lysing cells to then be subject to a PUFA oil extraction process such that one having ordinarily skill in the art at time of filing would have been motivated to modify embodiments of the reference claims such that the lysing step is performed enzymatically since lysing must be performed by some appropriate method.
Provision of an appropriate PUFA-containing cell mass in a fermentation broth with carbohydrate concentrations meeting the claim features of less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation are taught particular by Reucker and Zhu wherein the cells/fermentation broth needed to practice the patented claims must be provided by some appropriate means such that an ordinarily skilled artisan at time of filing would have been motivated to modify embodiments of the reference claims to provide such cells as discussed above in reference to the teachings of Ruecker and Zhu.
The reference claims directly recite that demulsfication is performed by adjusting pH up to 11 or wherein reference claim 6 direct states addition of a base. As discussed above, Triplett and Barker teach that addition of a 50% NaOH solution, including without addition of NaCl or an enzyme, is a known method to achieve demulsification by raising pH including addition of NaOH (caustic soda) in an amount meeting the claim limitation of less than 18 g of caustic soda per kg of fermentation broth. It is noted that the reference claims 1 and 6 do not require addition demulsification agents other than a base (i.e. NaOH or caustic soda) wherein the rejections under 35 U.S.C. 103 describe how demulsification by addition of only NaOH is known and taught in the prior art in Barker, para. [0119]. As such, at the time of filing an ordinarily skilled artisan would have been motivated to practice the reference claims by adding a base being a caustic soda in an amount of 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent since the same meets the minimum requirements of the patented claims and at least Barker, para. [0119], demonstrates that the same is an effective means of achieving demulsification.
The features of the remaining dependent claims are met by either the reference claims or otherwise taught by Triplett ,Barker, Ruecker and Zhu as effective features for practice of an oil extraction process requiring lysing, demulsification, and recovery of oil as recited in the patented claims.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 3-12, 15 and 18-25 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of copending Application No. 19/329,364 in view of Triplett et al. (U.S. 2016/0319217 A1), Barker et al. (U.S. 2016/0318840 A1), Ruecker et al. (U.S. 2002/0001833 A1) and Zhu et al. (Optimization of arachidonic acid production by fed-batch culture of Mortierella alpina based on dynamic analysis, Enz. Microbial. Technol. 38 (2006): 735-40).
The rejections over Triplett ,Barker, Ruecker and Zhu under 35 USC 103 set forth above are incorporated herein by reference.
The reference claims recite:
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The reference claims meet the features of at least claims 1 and 15 except for 1) enzymatically lysing cells, 2) growing and providing microbial cells in a fermentation broth having less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation such that the same concentration of carbohydrate is present when applied to an extracting process as recited, and 3) demulsification with caustic soda (e.g. NaOH) in an amount of less than 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent.
However, as set forth above in the rejections under 35 U.S.C. 103 over Triplett ,Barker, Ruecker and Zhu, Triplett teaches that enzymatic lysis is a preferred and advantageous method of lysing cells to then be subject to a PUFA oil extraction process such that one having ordinarily skill in the art at time of filing would have been motivated to modify embodiments of the copending such that the lysing step is performed enzymatically since lysing must be performed by some appropriate method.
Provision of an appropriate PUFA-containing cell mass in a fermentation broth with carbohydrate concentrations meeting the claim features of less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation are taught particular by Reucker and Zhu wherein the cells/fermentation broth needed to practice the copending claims must be provided by some appropriate means such that an ordinarily skilled artisan at time of filing would have been motivated to modify embodiments of the reference claims to provide such cells as discussed above in reference to the teachings of Ruecker and Zhu. Further, as far as the plots on Fig. 1 of Zhu indicates a glucose concentration well less than 5 g/L and near zero after 4-6 days of cultivation time, glucose concentration is understood to be less than 5 g/kg even with performance of the removing water step of the copending claims. “[[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’" MPEP 2144.05(II). Since prior art including Zhu teaches that some glucose may remain residual, it is not inventive to discover that a residual amount of glucose falling within the range of 0.2-5 g/kg of glucose would ordinarily be obtained by performing routine culturing methods taught in the prior art.
The reference claims directly recite that demulsfication is performed by addition of an alkalizing agent (i.e. a base). As discussed above, Triplett and Barker teach that addition of a 50% NaOH solution, including without addition of NaCl or an enzyme, is a known method to achieve demulsification by raising pH including addition of NaOH (caustic soda) in an amount meeting the claim limitation of less than 18 g of caustic soda per kg of fermentation broth. It is noted that the reference do not require addition demulsification agents other than a base (i.e. NaOH or caustic soda) wherein the rejections under 35 U.S.C. 103 describe how demulsification by addition of only NaOH is known and taught in the prior art in Barker, para. [0119]. It is noted that removing water step as recited in the copending claims may affect the amount of NaOH required for demulsification. However, “[[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." MPEP 2144.05(II). It is not inventive to discover that even after removal of water that an amount of NaOH (caustic soda) falling within the broad range of less than 18 g per kg of fermentation broth is effective to achieve demulsification. The copending claims do not indicate that any agent other than a base is required such that the copending claims suggest a base, wherein at least Triplett teaches that NaOH or caustic soda is a preferred base for demulsification, is the only demulsification agent required to practice the copending claims.
The features of the remaining dependent claims are met by either the patented claims or otherwise taught by Triplett ,Barker, Ruecker and Zhu as effective features for practice of an oil extraction process requiring lysing, demulsification, and recovery of oil as recited in the patented claims.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 3-12, 15 and 18-25 (all pending claims) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,352,651 B2 in view of Triplett et al. (U.S. 2016/0319217 A1), Barker et al. (U.S. 2016/0318840 A1), Ruecker et al. (U.S. 2002/0001833 A1) and Zhu et al. (Optimization of arachidonic acid production by fed-batch culture of Mortierella alpina based on dynamic analysis, Enz. Microbial. Technol. 38 (2006): 735-40).
The rejections over Triplett ,Barker, Ruecker and Zhu under 35 USC 103 set forth above are incorporated herein by reference.
The reference claims recite:
1. A method of isolating a polyunsaturated fatty acids (PUFAs) containing lipid from a biomass, comprising the following steps:
a) providing a suspension of a biomass comprising cells which contain PUFAs containing lipid;
b) optionally lysing the cells of the biomass;
c) concentrating the suspension to a total dry matter (TDM) content of 20 to 60 wt %, if the suspension has a lower percentage TDM content;
d) adjusting the suspension to a temperature of 20° C. to 100° C.;
e) maintaining the temperature in the range in step d) for at least 1 hour, while adding 10 to 20 moles of base equivalent per 10 kg of total dry matter contained in the suspension;
and wherein the isolation of said lipid does not include an extraction in which lipid is recovered from an organic solvent and is carried out without the addition of salt to the concentrated suspension of step c).
6. The method of claim 1, wherein the base is a hydroxide, a carbonate or a bicarbonate.
11. The method of claim 10, wherein lysing of the cells is carried out enzymatically, mechanically, chemically and/or physically.
20. The method claim 1, wherein the cells which contain a PUFAs containing lipid are of the family of Thraustochytrids.
The reference claims meet the features of at least claims 1 and 15 except for 1) growing and providing microbial cells in a fermentation broth having less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation such that the same concentration of carbohydrate is present when applied to an extracting process as recited, and 2) demulsification with caustic soda (e.g. NaOH) in an amount of less than 18 g of caustic soda per kg of fermentation broth as a sole demulsification agent.
Provision of an appropriate PUFA-containing cell mass in a fermentation broth with carbohydrate concentrations meeting the claim features of less than 10 or 15 g/kg of carbohydrate or 0.2-5 g/kg carbohydrate at conclusion of fermentation are taught particular by Reucker and Zhu wherein the cells/fermentation broth needed to practice the reference claims must be provided by some appropriate means such that an ordinarily skilled artisan at time of filing would have been motivated to modify embodiments of the reference claims to provide such cells as discussed above in reference to the teachings of Ruecker and Zhu. Further, as far as the plots on Fig. 1 of Zhu indicates a glucose concentration well less than 5 g/L and near zero after 4-6 days of cultivation time, glucose concentration is understood to be less than 5 g/kg even with performance of the concentration step of the reference claims. “[[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’" MPEP 2144.05(II). Since prior art including Zhu teaches that some glucose may remain residual, it is not inventive to discover that a residual amount of glucose falling within the range of 0.2-5 g/kg of glucose would ordinarily be obtained by performing routine culturing methods taught in the prior art.
The reference claims directly recite that demulsfication is performed by addition of a base being a hydroxide. As discussed above, Triplett and Barker teach that addition of a 50% NaOH solution, including without addition of NaCl or an enzyme, is a known method to achieve demulsification by raising pH including addition of NaOH (caustic soda) in an amount meeting the claim limitation of less than 18 g of caustic soda per kg of fermentation broth. It is noted that the reference do not require addition demulsification agents other than a base (i.e. NaOH or caustic soda) wherein the rejections under 35 U.S.C. 103 describe how demulsificaiton by addition of only NaOH is known and taught in the prior art in Barker, para. [0119]. Reference claim 1 recites concentrating to 20 to 60 wt%. The molecular weight of NaOH is approximately 40 g/mol. Considering an embodiment with 20 wt%, addition of 10 moles of NaOH base (400 grams of NaOH base) to 10 kg of total dry matter (50 kg of total fermentation broth cell lysate at 20wt% dry matter concentration) is 8 g NaOH per kg of fermentation broth (lysed cells) falling within the range of less than 18 g per kg as recited in the rejected claims.
The features of the remaining dependent claims are met by either the patented claims or otherwise taught by Triplett ,Barker, Ruecker and Zhu as effective features for practice of an oil extraction process requiring lysing, demulsification, and recovery of oil as recited in the patented claims.
Response to arguments
Applicant argues:
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“In another embodiment, the process comprises lysing the microbial cells comprising the microbial oil to form a lysed cell composition, wherein the lysing is selected from mechanical, chemical, enzymatic, physical, and combinations thereof.” Barker, para. [0035].
Applicant argues:
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Barker, para. [0119], provide examples wherein NaOH is the sole demulsification agent. Barker teaches improvements using an enzyme over the otherwise known methods of using NaOH only for demulsification shown in para. [0119].
Conclusion
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/TODD M EPSTEIN/Primary Examiner, Art Unit 1652
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