DETAILED ACTION
Background
The amendment dated May 13, 2026 (amendment) amending claim 33 has been entered. Claims 33-36, 39, 41, 43 and 63 as filed with the amendment have been examined. Claims 13-32, 37-38, 40, 42 and 44-62 have been canceled. Claims 1-12 have been withdrawn from consideration.
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 .
Claim Objections
Claim 33 is objected to because of the following informalities:
In claim 33, at the last line before “composition” insert --the --.
Appropriate correction is required.
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.
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.
Claims 33-36, 39, 41, 43 and 63 are rejected under 35 U.S.C. 103 as being unpatentable over US 9708208B2 to Remmereit et al. (Remmereit), of record, in view of AU2016225857 A1 to Medoff et al. (Medoff) and CN107125457 A to Tan et al (Tan), of record.
All references to Tan refer to the Clarivate machine translation, a copy of which was provided with a prior Office action.
The Office interprets the recited protein product in claim 33 as including any protein composition within the scope of the claims and interprets the recited protein as not limited to a single cell protein.
Regarding instant claims 33-36, Remmereit at Abstract discloses culturing (“a) fermenting”) a biomass material with a hyperthermophilic organism. Further, Remmereit at col. 7, lines 40-55 discloses fermenting to degrade the biomass and resulting products comprising proteins for use in animal feeds. At column 10, lines 30-45, Remmereit discloses optimal fermentation conditions for growing cells of the genus Pyrococcus and Thermotoga (claim 36) as, respectively 100°C and 80°C. Further, at col. 11, lines 15-10, Remmereit discloses fermenting with cells of the genus Pyrococcus and Thermotoga to degrade waste products including fish innards (“fish waste” - claim 34), to provide (at col. 10, lines 30-41) a cell culture of peptone and a yeast extract comprising the hyperthermophilic organisms at a cell density reaching 1 X 108 Pyrococcus cells/ml and 2 X 108 Thermotoga cells/ml; and, at col. 14, lines 6-19 Remmereit discloses growth of cells of the genus Pyrococcus and Thermotoga at a cell density of 1 x 108 cells/ml in fish innards. In addition, the Office considers the claimed fish sludge comprising fish feces and uneaten fish feed in claim 35 as including the fish innards of Remmereit. Further, Remmereit discloses at page 5, lines 3-36 a wide variety of thermophiles that can be used to degrade biomass.
The Office considers the recited fermentation culture of the hyperthermophilic organism to include the culture and product disclosed at each of col. 10, lines 30-41 and at col. 14, lines 6-19 of Remmereit and all of its components. Absent a clear showing as to how the recited single cell protein composition excludes any part of the composition of Remmereit as materially affecting the basic and novel characteristics of the claimed invention, the Office interprets a single cell protein composition to include any composition comprising a population of hyperthermophilic cells as claimed and any other ingredients remaining in the Remmereit product. See MPEP 2111.03.III.
Further and regarding instant claim 41, Remmereit does not disclose b) recovering a single cell protein from its hyperthermophilic fermentation culture consisting essentially of a hyperthermophilic organism, does not disclose c) drying the recovered single cell protein composition so that the composition has a moisture content of less than 8 wt% of the total single cell protein composition, based on the weight of the single cell protein composition and does not disclose a single cell protein composition that has a total protein content of from about 5 to about 99 wt% on dry w.\/w basis as weight of the total single cell protein composition. Regarding instant claim 41, Remmereit does not disclose the drying further comprising the concentrating the recovered protein composition by a process selected from the group consisting of coagulation, flocculation, direct drying, spraying drying and vacuum drying and combinations thereof to provide a powder
Medoff at page 136, lines 27-30 discloses single cell protein compositions from microbial proteins which and, at page 139, lines 3-8 discloses feeding microbial proteins to animals as SCP compositions wherein the compositions have been recovered by coagulation (claim 41), precipitation and via semi-permeable membrane from a biomass (“recovering a single cell protein composition consisting essentially of an organism”), and, further discloses drying the recovered single cell protein composition. Further, Medoff at page 17, lines 20-26 discloses extremophiles as microbial sources. Further, Medoff at 140, lines 4-6 discloses protein compositions purified to at least 50% w/w of protein. Still further, at page 171, lines 1-11 Medoff discloses food products containing the food compositions and, at Example 44 discloses a bioconversion using animal waste.
Tan at Abstract on page 2 discloses a method for making a fermented feed comprising combining distillers spent grain, bean pulp, dry grass and fermenting bacteria, fermenting and then drying to form granular feed pellets having a water content of less than 5 wt%.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Medoff for Remmereit to recover a single cell protein from its hyperthermophilic fermentation culture as by coagulation, and to dry the recovered protein composition by a process selected from any of the group consisting of coagulation, flocculation, direct drying, spraying drying and vacuum drying and combinations thereof as in Medoff at page 139, lines 3-8 to provide a single cell protein composition consisting essentially of a hyperthermophilic organism as a powder as in claim 41. Both references are drawn to the culturing of biomass or waste biomass using an extremophilic organism to produce food or feed products. The ordinary skilled artisan working with Remmereit would have desired to recover, dry and concentrate a protein composition as a single cell protein composition from its degraded biomass as in Medoff because Medoff at page 17, lines 20-26 discloses that the same biomass conversion methods of culturing extremophilic bacteria as in Remmereit desirably produce proteins and that the biomass culturing disclosed in Remmereit yields a desirable a single cell protein composition containing the microbes and suitable for use as a protein food or feed product or additive as in Medoff at page 136, lines 27-30 and at page 139, lines 3-8.
The Office considers the dried composition of Remmereit as modified by Medoff to be substantially the same thing as the claimed single cell protein composition. Accordingly, absent a clear showing as to how the protein content of the single cell protein composition of Remmereit as modified by Medoff differs from that as claimed, the Office considers the dried single cell protein composition of Remmereit at col. 10, lines 30-41 and at col. 14, lines 6-19 in view of Medoff at 140, lines 4-6 to make an animal feed having a total protein content of from 5% to 99% on a dry w/w of the total composition as in claim 33. See MPEP 2112.01.I. Further, the Office considers the dried single cell protein composition of Remmereit at col. 10, lines 30-41 and at col. 14, lines 6-19 in view of Medoff at page 139, lines 3-8 and 140, lines 4-6 to comprise a single cell protein composition from a hyperthermophilic fermentation culture and consisting essentially of the hyperthermophilic organism as claimed.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Tan for Remmereit as modified by Medoff to dry its feed or feed additive to the claimed moisture content of less than 8 wt%, based on the weight of a single cell protein composition. All references disclose fermented animal feed from fermented waste. The ordinary skilled artisan in Remmereit as modified by Medoff would have desired to dry its product to the claimed moisture content as in Tan to provide a more storage stable or easily processed granular feed or feed ingredient.
Regarding instant claim 39, the Office considers the claimed composition further comprising DNA, RNS or lipids from the hyperthermophilic organisms as including the bioconverted fish innards disclosed at col. 14 of Remmereit.
Regarding instant claim 43, Remmereit at col. 7, lines 50-55 discloses a food or feed comprising a protein composition recovered from its hyperthermophilic fermentation culture.
Regarding instant claim 63, at col. 14, lines 6-19 Remmereit as modified by Medoff at page 17, lines 20-26 and page 136, lines 27-30 discloses microbial fermentation products, which the Office considers as including single cell protein compositions comprising protein from the biomass material on which hyperthermophilic organisms are cultured.
Response to Arguments
In view of the amendment dated May 13, 2026, the following rejections have been withdrawn as moot: The rejections of claims 33-36, 39, 41, 43 and 63 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the recited % (percent) unit for the percent as in claim 33; and,
The rejections of claims 33-36, 39, 41, 43 and 63 under 35 U.S.C. 103 as being unpatentable over US 9708208B2 to Remmereit et al. in view of KR20090020450 A to Shim and CN107125457 A to Tan et al.
The positions taken with respect to cited reference KR20090020450 A to Shim have been considered but are moot because the new ground of rejection does not rely on Shim as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The positions taken in the remarks accompanying the amendment dated May 13, 2026 (Reply) have been fully considered but are not found persuasive for the following reasons:
The Office agrees with the facts asserted in the Reply that the art cited in Shim, Remmereit and Tan does not disclose a single cell protein composition and that this art does not the recovering a single cell protein composition from a biomass hyperthermophilic organism fermentation culture.
Regarding the position taken in the Reply that Tan does not disclose a hyperthermophilic organism or culturing it, respectfully the Office does not rely on Tan for the disclosure of a hyperthermophilic organism or method of using it.
Regarding the position taken in the Reply that the recited “consisting essentially of” language distinguishes the instant claims over the art, respectfully this is not found persuasive. The record contains no reason or evidence that any materials or culturing steps in Remmereit “materially affect the basic and novel characteristic(s)" of the claimed invention particularly as the biomass disclosed at col. 14, lines 6-19 Remmereit is substantially the same thing as the claimed biomass. See MPEP 2111.03.III. However, the rejection does not rely on Remmereit for the recited recovering a single cell protein composition.
The position taken alleging that the rejection relies on the art improperly for any disclosure of the claimed protein content, respectfully the rejection does not rely on Remmereit for the claimed amount of protein. However, the Office finds the disclosed Example at page 31, line 24 of the instant specification disclosing a biomass yield of 800 mg protein per liter a composition substantially the same as that of the biomass disclosed at col. 14, lines 6-19 Remmereit after growth of cells of the genus Pyrococcus and Thermotoga at a cell density of 1 x 108 cells/ml on fish innards.
The remaining positions taken in the Reply at pages 11-12 merely reiterate positions already address. Accordingly, these positions are taken as a general allegation of patentability. See 37 CFR 1.111(b).F
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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