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 .
Applicant’s amendment filed 10/28/2025 has been entered. Claims 1 and 11 were amended. Claims 1, 3-8, 10 and 11 are under examination.
Applicant’s amendment has necessitated a new rejection.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/18/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
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.
Claim(s) 1, 3-8, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Hjelland et al. (US 2012/0302742; published November 29, 2012) in view of Herve et al. (US 4,897,266; January 30, 1990) and Moigne et al. (US 6,346,252; patented February 12, 2002).
Applicant claims a method of preparing concentrated algal extract comprising grinding fresh algae, homogenizing the ground algal material in aqueous solution to form a homogenate, removing alginate and cellulose from the homogenate by flocculation to obtain a filtrate; and concentrating the filtrate to reach 9-70% percentage dry matter, containing 0-3% by weight alginate and 0-3% cellulose, wherein the extract comprises laminarin, fucans, lipids, proteins and polyphenols, wherein each step is performed above freezing point of water (claim 1)
Applicant claims a method of preparing concentrated algal extract comprising providing fresh algae within the previous 24 hours, grinding the algae until cells rupture above freezing point of water, homogenizing the ground algal by adding 1-21 kg of water per kg of algal material, flocculating the homogenized algae, removing flocculant from the homogenized algae to obtain a filtrate; optionally adjusting pH of the filtrate and concentrating the filtrate to reach 9-70% percentage dry matter at a temperature between 40-90˚C, containing 0-3% by weight alginate and 0-3% cellulose, wherein the extract comprises laminarin, fucans, lipids, proteins and polyphenols (claim 11)
Hjelland et al. teach a process for obtaining fucoidan and laminarin from live, harvested seaweed by exuding seaweed, collecting the exudate solution and separating fucoidan or laminarin from the exudate (abstract). The fucoidan primarily contain L-fucose and ester sulfate groups and protein and is an alternate name for fucan [0002]. Chemical extraction, purification and fractionating steps for obtaining fucoidan from seaweed include adding water then hydroxides, ethanol or quaternary ammonium salts or cationic surfactants to precipitate crude fucoidan which comprises alginate [0007]. The harvested seaweeds include genuses of Laminaria, Ecklonia, Fucus, Ascophyllum and Sargassum, specifically, Laminaria digitata, Laminaria hyperborea, Ascophyllum nodosum and Fucus vesiculosus [0015]. The process steps are performed such that the seaweed is kept at a temperature above 0˚C and below 30˚C [0016]. The components are separated from lower molecular weight component by ultrafiltration [0023-24]. The fucoidan and laminarian can be separated in any order and remain in their natives state because no chemical extraction or thermal degradation step is used which results in low amounts of alginate, pigments, polyphenols, proteases, acids and other components of seaweed [0026]. The exudate solution is filtered and dried to separate a powder which comprises 70-90% fucoidan along with proteins, inorganic salts and water [0027]. The yield of fucoidan and laminarian can be increased by rinsing with water one to three times wherein the rinse water will have additional exudate that can be added to the exudate solution collected in step (ii) prior to step (iii), or directly from the rinse water [0031]. The fucoidan obtained can be used in nutraceuticals, cosmetics, supplements, medicinal applications and functional foods [0034-35]. Examples 1 & 2 comprise dry matter of 3.45-5.7% before being collected, dried, pressed and freeze dried [0038, 0040, 0044]. The dried powder has a pH of 6.89-6.98, 85wt% fucoidan, 4.4-7wt% moisture, 0-3wt% salt and 4-6wt% protein [0039, 0041, 0044].
Hjelland et al. do not specified the extract has 9-70 dry matter, however collecting samples with a dry matter of 3.45-5.7% and further drying them to make 85% fucoidan with 4.4-7% moisture is taught which teaches that % dry matter can be increased with routine optimization by drying the samples to a specific moisture degree.
With respect to claim 11, Hjelland et al. do not specify concentrating the filtrate to reach 9-70% percentage dry matter at a temperature between 40-90˚C, however to improve ultrafiltration the solution was heated to about 65 C and then concentrated [0040]. MPEP 2144.05 states that differences in 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. Therefore, adjusting temperature within this range during the concentrating step would have been prima facie obvious.
Hjelland et al. teach removing alginate but does not specify removing 0-5% by weight cellulose and alginate, preferably 1-4% by weight, such that the intracellular fluid is preserved or that lipids are present in the exudate solution. It is for this reason that Herve et al. and Moigne et al. are joined.
Herve et al. teach a method of obtaining products extracted from algae by cryocomminution, milling, ultradecantation and ultrafiltration (abstract). The process produces products with a pH close to 4.8 (column 1, lines 17-31). The filtrate produced has cellulose and alginate that is eliminated during decantation (column 1, lines 43-46; column 3, lines 31-34). A filtrate of laminaria saccharine was prepared by milling and then decanting at high speed to eliminate cellulose and alginate before being filtered to remove impurities (Examples 1 & 4). The filtrates comprise ash, lipids, proteins, and glucides (Tables 1 & 4).
Hjelland and Herve do not teach pH of the extract is between 2.5 to 3. It is for this reason that Moigne is joined.
Moigne teach a clarified algae extract produced by crushing algae, grinding and concentrating the extract (abstract; column 3, lines 22-58). The supernatant was acidified with citric acid to a value of 2 to 5 to slow down degradation of the matrix and allows activity of the product to be maintained more than 13 months (column 3, lines 59-61; column 7, lines 9-17). The dry matter % varies from 2.03-21.2% which is dependent on temperature it is treated with (column 4, lines 42-47).
Hjelland et al., Herve et al. and Moigne teach methods of making concentrated algae extracts. Therefore, it would have been prima facie obvious to combine the teachings of Hjelland, Herve and Moigne to produce an extract comprising 0-5% alginate and cellulose with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Hjelland, Herve and Moigne to adjust the amount of cellulose and alginate to 0-5% because Hjelland teach crude fucoidan comprises alginate and components of extracts can be separated from lower molecular weight components by ultrafiltration and Herve teach that filtrates of laminaria saccharine are decanted at high speed to eliminate cellulose and alginate before being filtered to remove impurities. Therefore, one of ordinary skill in the art would have been motivated to adjust the amounts of alginate and cellulose by routine optimization 1-4% by weight of the extract by decantation.
It would have been prima facie obvious to combine the teachings of Hjelland, Herve and Moigne to produce an extract comprising intracellular fluid comprising lipids with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Hjelland, Herve and Moigne to obtain extracts comprising lipids because Hjelland teach fucoidan and laminarian can be separated in any order along with low amounts of alginate, polyphenols and proteins and Herve teach that filtrates of laminaria saccharine comprise lipids along with proteins. Therefore, one of ordinary skill in the art would have been motivated to adjust process steps to produce algae extracts wherein the intracellular fluid is preserved along with laminarin, fucans, lipids, proteins and polyphenols with routine optimization.
It would have been prima facie obvious to combine the teachings of Hjelland et al., Herve et al. and Moigne to produce an extract with a pH of 2.5-3 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Hjelland, Herve and Moigne to adjust the pH to 2.5 to 3 because Moigne teach adjusting to pH of 2 to 5 aids in preserving activity of the algae matrix over a period of months.
Response to Arguments
Applicant's arguments filed 10/28/2025 have been fully considered but they are not persuasive. Applicant argues that Herve and Moigne do not teach or suggest the claimed method. The Examiner is not persuaded by this argument in view of the teachings of Hjelland, Herve and Moigne. Applicant argues that Moigne’s process cannot be meaningfully combined with Herve and that Moigne teaches away from the present claims and Herve because dry matter is diluted. The Examiner is not persuaded by this argument because Herve et al. and Moigne teach methods of making concentrated algae extracts.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617