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 .
DETAILED ACTION
Status of Claims
Note: The amendment of August 18th 2025 has been considered.
Claims 30, 50 and 51 have been amended.
Claims 1-29, 31-33 ,40-47 and 52 are cancelled.
Claims 30, 34-39, 48-51, 53-60 are pending and examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
In light of the amendment filed on August 18th 2025, the rejection of claims 50-52 and 57 under 35 USC §112(b) have been withdrawn.
Claim Rejections - 35 USC § 102
In view of the amendment filed on August 18th 2025, the rejection of claims 30-35, 38, 48-50, 54, 56 and 58 under 35 USC §102, has been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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 30, 34, 35, 38, 48-51, 53, 54 and 56-60 are rejected under 35 U.S.C. 103 as being unpatentable over Braun et al. (USPatPub. 2011/0105433 A1). Evidenced by NPL Gruger., “Fatty Acid Composition of Fish Oils” (from a US Fish and Wildlife Services report published in the mid 1960’s and available online at https://spo.nmfs.noaa.gov/Circulars/CIRC276.pdf in 2014).
Regarding claim 30: Braun discloses a mixture of LC-PUFAs source (i.e., LC-PUFAs containing oil and/or LC-PUFAs) and lecithin (i.e., a polar lipid that is phospholipid), wherein the ratio of the polar lipid (i.e., lecithin) to LC-PUFAs is at least 85:15 and the LC-PUFAs source is either fish oil and/or added LC-PUFAs (see Braun abstract; paragraphs [0016], [0019]-[0024], [0050] and [0051]). Given the fact fish oil is known to comprise about 25%-50% LC-PUFAs (see Gruber Table 1, pages 11-15), the range of polar lipids and LC-PUFA containing fractions recited in claim 30, overlaps the range of polar lipids and LC-PUFA containing fraction in Braun, a prima facie case of obviousness exists.
Regarding claim 34, 35 and 38: Braun discloses that lecithins from any sources are well-suited for the composition, for example, soybean, sunflower, egg yolk and/or synthetically prepared (see Braun paragarphs [0050]-[0054]), which reads on claim 34: “the at least one phospholipid is in the polar lipid fraction and is selected from the group consisting of vegetable phospholipids, marine phospholipids, animal phospholipids, and single cell organism phospholipids, or mixtures thereof”, claim 35: “the polar lipid fraction comprises vegetable phospholipids obtained from soybean, sunflower, or rapeseed”,
Regarding claims 48 and 49: Braun discloses the LC- PUFAs source (i.e., LC-PUFAs containing oil and/or LC-PUFAs) comprise, DHA, ARA and/or EPA (see Braun paragraphs [0019]-[0024]), which reads on the claimed limitations.
Regarding claim 50: Braun discloses the mixture of LC-PUFAs source the lecithin comprise antioxidants and/or free fatty acids (see Braun paragraphs [0026], [0027] and [0036]), which meets the claimed limitations.
Regarding claims 51 and 53: Braun discloses adding the mixture of LC-PUFAs source (i.e., LC-PUFAs containing oil and/or LC-PUFAs) and lecithin (i.e., a polar lipid that is phospholipid and an antioxidant) to food products, such as marine oil (i.e., LC-PUFAs containing product), olive oil, dairy products, soups, etc. to form a stable product (see Braun paragraphs [0031]-[0035]). While Braun fails to disclose the extent of stability of the composition, given the fact the claimed composition is similar to the mixture in Braun, it is examiner’s position the claimed stability is inherently present in the mixture of LC-PUFAs source and lecithin in Braun. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 54: Braun discloses the mixture of LC-PUFAs source and lecithin further comprises antioxidants, such as tocopherols, rosemary extract and/or citric acid (see Braun paragraph [0026]), which meets the claimed limitations.
Regarding claim 56: Braun discloses examples where 70% liquid lecithin is mixed with 30% fish oil (see Braun paragraphs [0106] and [0113]). Given the fact the mixture of the two liquids is liquid, Braun meets the claimed limitations.
Regarding claims 57, 59 and 60: Braun discloses adding the mixture of LC-PUFAs source (i.e., LC-PUFAs containing oil and/or LC-PUFAs) and lecithin (i.e., a polar lipid that is phospholipid) to food products, such as marine oil (i.e., LC-PUFAs containing product), olive oil, dairy products, soups, etc. to form a stable product (see Braun paragraphs [0031]-[0035]), which meets the claimed limitations.
Regarding claim 58: Braun discloses the mixture of LC-PUFAs source and lecithin maybe incorporated into LC-PUFAs containing raw materials (e.g., olive oil) (see Braun paragraph 0035), which meets the claimed limitations.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Braun et al. as applied to claims 30, 34, 35, 38, 48-51, 53, 54 and 56-60 above, and further in view of Ben-Dror et al., (USPatPub. 2018/0125898 A1).
Regarding claim 36: Braun discloses that lecithins from any sources are well-suited for the composition (see Braun paragraph [0051]), but fails to disclose lecithin from krill or fish; However, Ben-Dror discloses that marine lecithin from krill and/or fish has enhanced antioxidant properties (see Ben-Dror abstract; paragraphs [0009] and [0010]). Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Braun and to have used marine lecithin from krill and/or fish, as the marine lecithin has enhanced oxidation resistance, and thus arrive at the claimed limitations.
Claims 37 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Braun et al. as applied to claims 30, 34, 35, 38, 48-51, 53, 54 and 56-60 above, and further in view of NPL Butina et al., “Comparative Analysis of the Physiological Value of Lecithins Obtained From Different Types of Raw Materials” (from Journal of Pharmaceutical Sciences and Research Vol. 9(12), 2017, 2493-2497).
Braun discloses that lecithins from any sources are well-suited for the composition, for example, soybean, sunflower, egg yolk and/or synthetically prepared (see Braun paragarphs [0050]-[0054]), but fails to disclose the egg-yolk is from a chicken egg; However, given the fact that chicken eggs and oilseed plants are known to be the primary sources of lecithin (see Butina page 2493, right column), it would have been obvious to a skilled artisan to use egg-yolk from chicken, as chicken eggs are well known and conventional source of egg yolk lecithin, and thus arrive at the claimed limitations.
Claim 55 is rejected under 35 U.S.C. 103 as being unpatentable over Braun et al. as applied to claims 30, 34, 35, 38, 48-51, 53, 54 and 56-60 above, and further in view of Naguib et al., (USPatPub. 2004/0116512 A1).
Regarding claim 55: Braun discloses the mixture of LC-PUFAs source and lecithin further comprises antioxidants, such as tocopherols, rosemary extract and/or citric acid (see Braun paragraph [0026]), but fails to disclose the mixed tocopherols comprises alpha-, beta-, gamma- and delta-tocopherols; However, Naguib discloses mixed tocopherols comprising alpha-, beta-, gamma- and delta- tocopherols, has increased antioxidant potency (see Naquib abstract; paragraph [0002]). Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Braun and to have used mixed tocopherols comprising alpha-, beta-, gamma- and delta-tocopherols, in order to provide a composition with increased antioxidant potency, and thus arrive at the claimed limitations.
Response to Arguments
Applicant's arguments filed on August 18th 2025 have been fully considered but they are not persuasive.
Applicant argues the prior art references fail to render the claimed invention obvious, because Braun discloses in paragraph [0110] of the examples of using 50% and 70% lecithin. The examiner respectfully disagrees.
While Braun discloses examples with polar lipid (i.e., lecithin) that is outside the claimed range, Braun also discloses in the abstract and in paragraphs [0016] and [0019] a mixture of LC-PUFAs source (e.g., fish oil) with a polar phospholipid (i.e., lecithin) where the ratio of the polar lipid to LC-PUFAs is at least 85:15, which overlaps with the claimed contents. Moreover, paragraph [0018] further discloses the content of the polar lipid is between 60% to 95%, and the content of the LC-PUAs is between 5% to 40% (i.e., a ratio of polar lipid to LC-PUFAs between 60:40 to 95:5), which also overlaps with the claimed LC-PUFAs content range and polar lipid content range.
Conclusion
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 ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792