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
Response to Amendment
All rejections not repeated in this Office Action have been withdrawn.
Claims 1-9 and 12-15 are currently pending in this Office Action.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-6, 9, 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Torres et al. (Rheology of K/L-hybrid carrageenan from Mastocarpus stellatus: Critical parameters for the gel formation) in view of Strong (US 3,907,770) and evidenced by WORMS (NPL Reference- Mastocarpus stellatus (Stackhouse) Guiry, 1984, World Register of Marines Species).
Regarding Claims 1, and 13-15, Torres discloses a method of dispersing a seaweed powder (equilibrated seaweed powder, section 2.4, page 419) in an aqueous environment (soaked in 100mL distilled water, section 2.4, page 419), comprising the steps of:
a. providing a seaweed powder and an aqueous environment (soaked in 100mL distilled water, section 2.4, page 419); the seaweed powder comprising 100% dry basis of seaweed particles (Torres does not add any additional component in the process of obtaining seaweed powder, see section 2.2 Seaweeds processing, page 419), wherein the seaweed powder contains seaweed particles having a d90 that is within 125 to 200 µm (see Table 1, page 420, where a distribution under ‘mass fraction (%)’ shows 64.9% of the particles are below 125µm and 7.5% are above 200µm); that is, since 64.9% of the particles are less than 125µm, and 7.5% are greater than 200µm, it is construed that particles having a size between the 64.9th percentile and the 92.5th percentile is within 125µm to 200µm and therefore meets the limitation of “at least 125µm” ;
b. dispersing the seaweed powder in the aqueous environment at a pH greater than 3.5, and below 9.0 as per claim 15 (dispersed in distilled water, which inherently has a pH of or near 7, see section 2.4 Kappa/iota-hybrid carrageenan extraction, page 419).Torres is silent to the limitation of the seaweed powder having a storage modulus greater than 10 Pa determined on a 0.1%-1.5% aqueous dispersion. However, the limitation is directed to a property of the seaweed powder. When the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Also see MPEP 2112.01. In this case, since the only required structure is a seaweed powder having at least 80% seaweed particles and having a D90 of at least 125µm, the seaweed powder of Torres is construed to have the claimed properties. Additionally, it is noted that Torres uses M. Stellatus seaweeds (see section 2.1, page 419), a red seaweed from the Phyllophoraceae family (see Evidentiary reference WoRMS under classification, page 1), which is similar to Applicant’s as addressed in the rejection of Claims 4 and 5. Therefore, it would have been expected for the storage modulus to have been similar.
Torres is silent to wherein the aqueous environment contains a salt and has an ionic strength of at least 0.01 M. Strong is relied on to teach known methods of extracting carrageenan from seaweed. Specifically, Strong notes that providing seaweed in an aqueous environment with a neutral, or slightly acidic, water-soluble salt can provide isolation of certain components of carrageenan such as the separation of lambda and kappa fractions (see Col. 6, Ln. 15-27). Therefore, since it is known that certain salts can favor the particular extraction of carrageenan from seaweed, it would have been obvious to one of ordinary skill in the art to incorporate a salt into the aqueous environment for the purpose of extracting a particular component of seaweed. As to the limitation of the aqueous environment having an ionic strength of at least 0.01M (also required by Claim 14), Strong discloses the inclusion of a salt, such as potassium chloride, in an amount of 1 to 10% (see Col. 6, Ln. 26-32) which necessarily overlaps with the claimed “at least 0.01M” in ionic strength. Note that Strong mainly utilizes percentages by weight in the reference (see Col. 5, Ln. 1-12) and thus it is construed that the potassium chloride concentration is given in weight percentages. A concentration of 1-10% weight would equate to a solution having 1-10g of KCl per 1L of water which is approximately 0.0134M to 0.134M (for simple salt solution such as KCl, the molarity and ionic strength are the same).
As to the limitation of “adjusting the PH during dispersion to maintain a desired pH, wherein the pH is at least 3.5 and at most 9.0”, the claimed step of “maintain a desired pH” is construed to be conditional to the solution reaching a pH level below 3.5 or above 9.0. Therefore, if the pH of the claimed solution is never outside of the claimed range, the step of “maintain a desired pH” is not required. In this case, Torres notes that pH is a key factor that affects the chemical structure and gel characteristics of the isolated KI from the seaweed (see page 418, last paragraph). It was further noted by Torres that the pH of KI solutions were controlled during sample preparation at 6.8 -+- 0.3 (see 2.5 Sample preparation, page 419). Therefore, as suggested by Torres, it would have been obvious to one of ordinary skill in the art to maintain the pH of the solution to 6.8 -+ 0.3 for the purpose of maintain the chemical structure of the isolated KI. The pH of the prior art solution is necessarily maintained and there is no explicit recitation within the Torres reference that the pH of the solution would be outside of the claimed range of 3.0 to 9.5.
Regarding Claim 2, the term “d50” is construed to be a particle size in which 50% of the sample set has a particle size that is below said particle size (in this case, 50% has a particle size below at least 20 µm as claimed). Torres further teaches an average particle size of 117µm, wherein d50 is construed to be between 80µm to 125µm, because 35.6% of the particles are below 80 microns and 35.1% are above 125 microns.
Regarding Claim 3, Torres further teaches wherein the seaweed powder contains seaweed particles having a d90 that is within 125 to 200 µm (see Table 1, page 420, where a distribution under ‘mass fraction (%)’ shows 64.9% of the particles are below 125µm and 7.5% are above 200µm). Therefore, there is a reasonable expectation that D90 is below 200µm because only 7.5% (3.5% having 250<x<500 and 4.0% having 200<x<250) of the particles are above 200µm.
Regarding Claims 4 and 5, Torres further teaches wherein the seaweed is a red seaweed wherein the seaweed powder is from Mastocarpus stellatus which is from the Phyllophoraceae family (see Evidentiary reference WoRMS under classification, page 1).
Regarding Claim 6, Torres further teaches wherein the seaweed powder has a critical gelling concentration (CO) of at most 0.5 wt%; that is, Torres discloses seaweed powder concentrations of 0.1wt%, and wherein “All gels exhibited stable and weak gel properties” (see Page 423, left column, first paragraph). Therefore, the seaweed powder has a critical gelling concentration that is below 0.5wt%.
Regarding Claim 9, Torres further teaches wherein the aqueous environment contains 100 wt% water based on the total weight of said environment (soaked in 100mL distilled water, see section 2.4, page 419).
Regarding Claim 12, Torres further teaches wherein the seaweed powder is dispersed in the aqueous environment in an amount of at least 0.1 wt% based on the total dry solids content of said environment (100% since seaweed powder is the only dry solids content, see Section 2.4, page 419).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied in Claim 1, further in view of Hasanuddin (ID 201302460 A- see Derwent Abstract) and Darmawan et al. (The Quality of Alkali Treated Cottonii (ATC) Made from Eucheuma cottonii Collected from Different Regions in Indonesia).
Regarding Claim 7, Torres is silent to wherein the seaweed powder contains an amount of acid insoluble ashes (AIA ) of at most 5.0 wt% relative to the weight of the powder. Hasanuddin is relied on to teach a method of manufacturing a seaweed extract powder (i.e. carrageenan powder) to provide a non-toxic and economical seaweed powder (see ‘Advantage’, page 2) to be used in the food industry (see ‘Use’, page 2). The powder of Hasanuddin has an acid insoluble ash content of 0.078-0.095% (see ‘Polymers’, page 2). Darmawan is also relied on to teach Acid Insoluble Ash as value that indicates the existence of residual contamination of mineral or metal that cannot be dissolved in acid in a product (see section 3.3. of page 122). Darmawan notes that critical steps are required in order to avoid “high value of acid insoluble ash content”. Therefore, since both Torres and Hasanuddin are directed to seaweed powder used in the food industry, it would have been obvious to one of ordinary skill in the art to provide an acid insoluble ash content conventionally used in foods. Additionally, in view of Darmawan, it would have been obvious to one of ordinary skill in the art to minimize the AIA content to reduce the amount of insoluble contaminants within a food product.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied in Claim 1, further in view of Blakemore et al. (WO 02/48199 A2).
Regarding Claim 8, Torres is silent to wherein the seaweed powder contains an amount of acid insoluble material (AIM) of at most 50 wt% relative to the weight of the powder. Blakemore is relied on to teach the production of carrageenan and carrageenan products including powder used in the food industry (see abstract and Claim 20). Blakemore provides a carrageenan product comprising about 2% by weight of acid insoluble material (see abstract) which is predominantly cellulosic material (page 13, lines 18-19). Pure carrageenan with its cellulosic materials removed produces higher clarity and are able to swell and solubilize at lower temperature (Page 4, ln. 8-19). Therefore, since both Torres and Blakemore are directed to seaweed extract powder, it would have been obvious to one of ordinary skill in the art to reduce the acid insoluble material to about 2% for the purpose of improving the clarity and solubility of the seaweed extract powder.
Response to Arguments
The arguments filed 22 January 2026 has been considered, but is found not persuasive over the prior art of record.
Applicant argues that Torres does not disclose dispersing a seaweed powder in a salt-containing medium with an ionic strength at or above 0.01 M nor does Torres actively maintains pH during the dispersion step. Applicant also argues that Strong does not remedy the deficiencies of Torres because Strong is directed to alkaline extraction and selective fractionation, not to the dispersion of all components of a seaweed powder as claimed. Therefore, Applicant argues that the combination would change Torres’ distilled-water soak into a selective extraction/fractionation step which contrast with the claimed method which requires maintaining dispersion of the seaweed powder while controlling pH within 3.5-9.0 in a salted medium of defined ionic strength (page 4-5 of the remarks).
The arguments are found not persuasive because the claim does not require a step of “actively maintaining”; rather, the claim recites “adjusting the pH during dispersion to maintain a desired pH, wherein the pH is at least 3.5 and at most 9.0” (emphasis added), which is not seen as an active step but rather a conditional step that is necessary when the pH is below 3.5 and over 9.0. That is, if the pH remains within the “desired pH”, then there is no adjusting required. In any case, even if the step of actively adjusting the pH is required by the claim, Torres notes that pH is a key factor in maintaining the chemical structures of the isolated seaweed components, and notes in a subsequent step that the KI solution is “controlled” during sample preparation at a level of 6.8 + 0.3. Therefore, Torres suggest to maintain the seaweed powder solutions at similar levels to maintain the chemical structures and the requisite gelling characteristics for downstream processing.
As to the limitation of having an ionic strength of at least 0.1M, it is maintained that the combination of Torres and Strong provides a solution comprising a dispersed seaweed powder and salt, which salt is provided for the purpose of favoring the isolation of certain seaweed components, and thus would necessarily comprising an ionic strength.
As to Applicant’s argument regarding the combination of Torres and Strong leading to Torres being changed into a selective extract/fractionation step (page 5 of the remarks), the argument is not persuasive because Torres is already directed to the isolation of a particular component of seaweed powder, namely a Kappa/iota-hybrid. Also, Strong is directed to the isolation of a Kappa component of carrageenan. Therefore, it is maintained that the Torres and Strong combination is proper.
In response to Applicant’s argument the Strong requires a strong base alkali modification (page 6 of the remarks), the argument is not persuasive because Strong is relied on to teach an aqueous solution of a neutral, or slightly acidic, water-soluble salt such as potassium chloride (see Col. 6, Ln. 15-26) which is known to be effective in isolating kappa-carrageenan fraction.
In response to Applicant’s argument that the ionic strength cannot be routinely optimized because the claimed ionic strength is selected to maintain the dispersion of seaweed powder components while maintaining pH during dispersion within 3.5-9.0, whereas Strong is expressly tied to selective extraction of one carrageenan fraction over another (page 6 of the remarks). The argument is not persuasive because while the combination do not indicate a particular ionic strength, Strong discloses the inclusion of a salt, such as potassium chloride, in an amount of 1 to 10% (see Col. 6, Ln. 26-32) which necessarily overlaps with the claimed “at least 0.01M” in ionic strength. Note that Strong mainly utilizes percentages by weight in the reference (see Col. 5, Ln. 1-12) and thus it is construed that the potassium chloride concentration is given in weight percentages. A concentration of 1-10% weight would equate to a solution having 1-10g of KCl per 1L of water which is approximately 0.0134M (for simple salt solution such as KCl, the molarity and ionic strength are the same).
In response to Applicant’s argument that the storage modulus (G’) of at least 10 Pa is not met by the prior art because the amended claim has tied the G’ to the specific powder population (having a D90 of at last 125 micrometer) and to dispersion under a medium defined by salt presence, ionic strength and pH actively maintained within 3.5-9.0 (page 6 of the remarks), the argument is not persuasive because the claim explicitly recites that the “seaweed powder [has] a storage modulus (G’) of at least 10 -Pa as determined on a 0.3wt% aqueous dispersion of said powder” (emphasis added) which does not appear to tie the required storage modulus with the dispersion under a medium defined by a salt presence, ionic strength, and actively maintained pH level. Rather, it appears that the recited storage modulus (G’) is solely based on a 0.3 wt% aqueous dispersion wherein the seaweed powder has a D90 of at least 125 microns and comprises at least 80% on a dry basis of seaweed particles. Therefore, it is maintained that since the prior art discloses a 100% seaweed particle having a D90 above 125 microns, that properties such as the storage modulus would have been similar absent limitation distinguishing the claimed seaweed powder from the prior art seaweed powder.
In response to Applicant’s argument regarding the combination of Torres and Strong (page 7 of the remarks), the arguments are not persuasive in view of the responses above. In particular, it is noted that the claim does not require “maintaining dispersion of all components”, but rather, simply a dispersion or a step of dispersing seaweed powder in an aqueous environment which is taught by Torres.
For these reasons, the prior art is maintained.
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.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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