DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of claims
Claims 1-7, 10-14, 16-18, 22-24, 26-28, 31 and 32 as amended on 3/16/2026 are pending and under examination.
Claim 31 was withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention by original presentation, there being no allowable generic or linking claim. See 37 CFR 1.142(b) and MPEP § 821.03.
In response to the office action, please, cancel non-elected, withdrawn and non-examined claim 31.
Claims 1-7, 10-14, 16-18, 22-24, 26-28 and 32 as field on 3/16/2026 are under examination in the instant office action.
Response to Arguments
Applicant’s arguments filed on 3/16/2026 have been fully considered and are persuasive. The Declaration by Adelheid Kuehnle filed on 10/02/20215 and 10/31/2025 with regard to the scope of the claims as presently amended have been revisited.
The rejection of claims 32 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, has been withdrawn in view of claim amendment.
Claims 1-7, 10-14, 16-18, 22-24 and 26-28 and 32 are free from prior art as explained in the prior office action (repeated below) and are allowed.
The rejection of claims under 35 U.S.C. 101 was withdrawn in view of contents of Declaration by Adelheid Kuehnle and Applicant’s arguments drawn to idea that the claimed product is not a product of nature because original Haematococcus pluvialis culture has been artificially manipulated by inventors under specially designed combination of conditions as designed by inventors to select a novel and materially modified phenotype version of non-encysted cells having markedly different characteristics including never knonw and/or never reported presence of C18:1n7 fatty acid for Haematococcus pluvialis and greater than 85% of ketocarotenoids in total carotenoids for Haematococcus pluvialis.
The rejections of claims under 35 U.S.C. 103 as being unpatentable over Norihiko Hata et al (“Production of astaxanthin by Haematococcus pluvialis in a sequential heterotrophic-photoautotrophic culture”. Journal of Applied Phycology, 2001, 13, pages 395-402), Shah et al (“Astaxanthin-Producing Green Microalga Haematococcus pluvialis: From Single Cell to High Value Commercial Products”. Frontiers in Plant Science. April 2016, Vol.7, article 531, pages 1-28) and Viso et al (“Fatty acids from 28 marine microalgae”. Phytochemistry. 1993, Vol. 34, No. 6, pages 1521-1533) and further in view of Brinda et al (“Accumulation of astaxanthin in flagellated cells of Haematococcus pluvialis - cultural and regulatory aspects”. Current Science, 2004, Vol. 87, No. 9, pages 1290-1295 was withdrawn in view of contents of Declaration by Adelheid Kuehnle and Applicant’s arguments that the combination of the cited references does not teach an animal feed material or a human food comprising non-encysted cells of Haematococcus pluvialis containing microalgal fatty acid C18:1n7 and comprising greater than 85% of ketocarotenoids in total carotenoids for Haematococcus pluvialis.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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Vera Afremova
March 30, 2026
/VERA AFREMOVA/ Primary Examiner, Art Unit 1653