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 .
Election/Restrictions
Applicant’s election of claims 24-32, 35-37, and 40 in the reply filed on 7/9/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Therefore, claims 33, 34, 38, 39, 41-43 are withdrawn from further consideration by the Examiner as being drawn to non-elected inventions.
Thus, the restriction is hereby made FINAL.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 24-28, 30-32, 35-37, 40 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Kraan et al. (US 2018/0014558).
Krann teaches a seaweed based salmon feed (see abstract) additive and suggests Asparagopsis Taxiformis [0052] as a red algae containing organobromine compounds, the feed showing favorable results with regard to the overall fish health, size and weight (i.e. growth production traits). Kraan additionally discloses the other feed components you would add to the animal feed, i.e. proteins (from fish meal), fish oil, binders, fillers, vitamins and mineral mixes, colorants, antibiotics etc. [0003]. The seaweed formulations are made by drying and crushing into a powder [0031] and then, for example, forming a feed pellet [0029] for consumption by marine animals such as salmon [0055]. Clearly showing favorable results with regard to overall fish health size and weight are indicators of growth. Water is noted as being used when making the feed pellets containing red seaweed (Asparagopsis Taxiformis).
Applicant argues that Kraan only mentions Asparagopsis in paragraph 52. Applicant argues that the tests in Kraan do not involve Asparagopsis.
While this is noted, so what ? Asparagopsis is clearly mentioned in Kraan.
Applicant submits that there is no information provided that the actual formulations used by Kraan in their work for "seaweed meal 1", "seaweed meal 2" or "seaweed blend" (Kraan Table, paragraph 74) even contains Asparagopsis. As mentioned above, Asparagopsis is only mentioned once in the entire specification and no further elaboration is provided, according to applicant. In addition to this, Asparagopsis is not included in the formulation species listed in the claims in Kraan, according to applicant. Applicant notes that Kraan is concerned with taste improvement (Kraan, paragraph 93). Applicant submits that the taste improvement is based on a theory where red seaweeds are high in bromophenols (Kraan, paragraphs, 40, 47) and this improves the taste. However, Applicant submits that Asparagopsis species is not rich in bromophenols. In support of this, Applicant submits herewith Paul, N.A. et al., Chemical defence against bacteria in the red alga Asparagopsis armata: linking structure with function, Marine Ecology Progress Series, vol. 306:87-101, (2006) and Blanco, S. et al., Manipulation of the surface-associated bacteria on Asparagopsis taxiformis and its effect on seaweed growth and halogenated natural products, J. Applied Phycology, 37:2679-2689, (2025) which provide a chemical analyses of Asparagopsis which indicates that the major halogenated metabolites are dibromochloromethane, bromoform, bromochloroacetic acid, dibromoacetic acid and dibromoacrylic acid, and not bromophenol.
While this is noted, it is also noted that the disclosure of Kraan is NOT limited to only bromophenols. Thus, applicant’s argument is moot.
Furthermore, the primary information relating to bromophenols and taste provided by Kraan is for Polysiphonia (family Rhodomelaceae), according to applicant. Applicant respectfully submits that Asparagopsis is a different family Bonnemaisoniaceae and it is not surprising that it does not have bromophenols which are taught to influence taste.
Once again, the disclosure of Kraan is NOT limited to only bromopehnols.
There are >10,000 species of red seaweed and the taxonomic diversity is reflected in the chemical diversity, according to applicant. Applicant respectfully submits that the person skilled in the art would not have considered Asparagopsis based on Kraan. In relation to paragraph 52 of Kraan, Applicant submits that this paragraph indicates that these species have high levels of bromophenols which improve the taste of farmed fish or marine animals such as shrimp.
While this is noted, it is also noted that bromophenols are not mentioned with respect to Asparagopsis in paragraph 52.
Bromophenols are also said to have a range of biological activities including feeding deterrent, R - glucosidase inhibitory, and growth stimulatory effects, according to applicant. The reason for referring to Asparagopsis later in the paragraph is unclear as it does not form part of the embodiment recited but seems to relate to a possible role for bromophenols, according to applicant.
Once again, this is not agreed with for the above reasons.
It should be also noted that this is the only mention of Asparagopsis, according to applicant. As such, there appears to be a suggestion that Asparagopsis taxiformis could be used to improve the taste of farmed fish or marine animals, according to applicant. However, as indicated above, it is not believed that Asparagopsis contains significant amounts of bromophenols, hence the role ascribed to bromophenols Kraan is irrelevant, according to applicant. The Examiner contends that Kraan teaches the increased production trait of Asparagopsis, according to applicant. As mentioned above, Applicant submits that there is no teaching that Asparagopsis can be utilized to improve taste or a production trait.
The claimed production trait is growth which reads on anyone and anything since every organism needs to grow to stay alive.
The present invention reports an increased production trait from Asparagopsis which is not obvious as there is no teaching in Kraan about the use of Asparagopsis to improve a production trait, according to applicant. Further, In the information provided, Kraan also teaches away from an improved production trait (weight) from inclusion of the three seaweed meals in one phase of work: Kraan at paragraph 95 recites that "During the first 3 months growth was at par although weight gain was lower in the seaweed-based diet ("Diet A") caused due to higher oil and protein content and a 8% lower moisture level in Diet B compared to Diet A, according to applicant. Differences are explained due to that the two diets are not isocalorific and isonitrogenous, according to applicant. In Phase 2 both diets were manufactured to be isocalorific and isonitrogenous, according to applicant. Over the second period of the trial, the Diet A showed a better feed conversion ratio (2.2% better than Diet B), gutted weight of fish (1.4% better than Diet B), EWOS growth Index (8.9% better than Diet B) and mortality rates (3 times lower than Diet B), according to applicant. However, again, Applicant submits that Kraan does not provide any indication that of the contents of seaweed meal 1', 'seaweed meal 2' or 'seaweed blend'. Applicant respectfully submits that the above does not provide any evidence that 'seaweed meal l' or 'seaweed meal 2' contain Asparagopsis or any contents thereof, or the contents of the 'seaweed blend'.
Once again, Kraan does NOT have to mention that Asparagopsis is in any specific seaweed meal.
Applicant submits that this comparison cannot be relied upon as teaching that using Asparagopsis would lead to an increase in production trait. Applicant submits that Kraan does not disclose, teach or suggest each and every feature of the claimed invention and, as such cannot anticipate the claimed subject-matter. Furthermore, Applicant submits that, based on the above, one of ordinary skill in the art would not have looked towards the presently claimed invention because there is simply no motivation to do SO. In fact, as discussed hereinabove, the person skilled in the art would have looked away from utilizing Asparagopsis because it does not have a high bromophenol content, according to applicant.
Once again, the argument to the bromophenol content is moot for the above reasons.
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.
Claims 24-32, 35-37, 40 are rejected under 35 U.S.C. 103 as being unpatentable over Kraan et al. (US 2018/0014558).
Krann teaches a seaweed based salmon feed (see abstract) additive and suggests Asparagopsis Taxiformis [0052] as a red algae containing organobromine compounds, the feed showing favorable results with regard to the overall fish health, size and weight (i.e. growth production traits). Kraan additionally discloses the other feed components you would add to the animal feed, i.e. proteins (from fish meal), fish oil, binders, fillers, vitamins and mineral mixes, colorants, antibiotics etc. [0003]. The seaweed formulations are made by drying and crushing into a powder [0031] and then, for example, forming a feed pellet [0029] for consumption by marine animals such as salmon [0055]. Clearly showing favorable results with regard to overall fish health size and weight are indicators of growth.
Water is noted as being used when making the feed pellets containing red seaweed (Asparagopsis Taxiformis). Whether one uses water or an alcohol such as methanol is simply the choice of the artisan in an effort to optimize the desired results.
MPEP 2144.05, subsection II.
II. ROUTINE OPTIMIZATION
A. Optimization Within Prior Art Conditions or Through Routine Experimentation
Generally, differences in concentration or 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
B. There Must Be an Articulated Rationale Supporting the Rejection
In order to properly support a rejection on the basis that an invention is the result of "routine optimization", the examiner must make findings of relevant facts, and present the underpinning reasoning in sufficient detail. The articulated rationale must include an explanation of why it would have been routine optimization to arrive at the claimed invention and why a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range. See In re Stepan, 868 F.3d 1342, 1346, 123 USPQ2d 1838, 1841 (Fed. Cir. 2017). See also In re Van Os, 844 F.3d 1359,1361,121 USPQ2d 1209, 1211 (Fed. Cir. 2017 ("Absent some articulated rationale, a finding that a combination of prior art would have been ‘common sense’ or ‘intuitive’ is no different than merely stating the combination ‘would have been obvious.’"); Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362, 119 USPQ2d 1822 (Fed. Cir. 2016) ("[R]eferences to ‘common sense’ … cannot be used as a wholesale substitute for reasoned analysis and evidentiary support … .").
The Supreme Court has clarified that an "obvious to try" line of reasoning may properly support an obviousness rejection. In In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977), the CCPA held that a particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation, because "obvious to try" is not a valid rationale for an obviousness finding. However, in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court held that "obvious to try" was a valid rationale for an obviousness finding, for example, when there is a "design need" or "market demand" and there are a "finite number" of solutions. 550 U.S. at 421 ("The same constricted analysis led the Court of Appeals to conclude, in error, that a patent claim cannot be proved obvious merely by showing that the combination of elements was ‘[o]bvious to try.’ ... When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under §103."). Thus, after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process.
Applicant argues that Kraan only mentions Asparagopsis in paragraph 52. Applicant argues that the tests in Kraan do not involve Asparagopsis.
While this is noted, so what ? Asparagopsis is clearly mentioned in Kraan.
Applicant submits that there is no information provided that the actual formulations used by Kraan in their work for "seaweed meal 1", "seaweed meal 2" or "seaweed blend" (Kraan Table, paragraph 74) even contains Asparagopsis. As mentioned above, Asparagopsis is only mentioned once in the entire specification and no further elaboration is provided, according to applicant. In addition to this, Asparagopsis is not included in the formulation species listed in the claims in Kraan, according to applicant. Applicant notes that Kraan is concerned with taste improvement (Kraan, paragraph 93). Applicant submits that the taste improvement is based on a theory where red seaweeds are high in bromophenols (Kraan, paragraphs, 40, 47) and this improves the taste. However, Applicant submits that Asparagopsis species is not rich in bromophenols. In support of this, Applicant submits herewith Paul, N.A. et al., Chemical defence against bacteria in the red alga Asparagopsis armata: linking structure with function, Marine Ecology Progress Series, vol. 306:87-101, (2006) and Blanco, S. et al., Manipulation of the surface-associated bacteria on Asparagopsis taxiformis and its effect on seaweed growth and halogenated natural products, J. Applied Phycology, 37:2679-2689, (2025) which provide a chemical analyses of Asparagopsis which indicates that the major halogenated metabolites are dibromochloromethane, bromoform, bromochloroacetic acid, dibromoacetic acid and dibromoacrylic acid, and not bromophenol.
While this is noted, it is also noted that the disclosure of Kraan is NOT limited to only bromophenols. Thus, applicant’s argument is moot.
Furthermore, the primary information relating to bromophenols and taste provided by Kraan is for Polysiphonia (family Rhodomelaceae), according to applicant. Applicant respectfully submits that Asparagopsis is a different family Bonnemaisoniaceae and it is not surprising that it does not have bromophenols which are taught to influence taste.
Once again, the disclosure of Kraan is NOT limited to only bromopehnols.
There are >10,000 species of red seaweed and the taxonomic diversity is reflected in the chemical diversity, according to applicant. Applicant respectfully submits that the person skilled in the art would not have considered Asparagopsis based on Kraan. In relation to paragraph 52 of Kraan, Applicant submits that this paragraph indicates that these species have high levels of bromophenols which improve the taste of farmed fish or marine animals such as shrimp.
While this is noted, it is also noted that bromophenols are not mentioned with respect to Asparagopsis in paragraph 52.
Bromophenols are also said to have a range of biological activities including feeding deterrent, R - glucosidase inhibitory, and growth stimulatory effects, according to applicant. The reason for referring to Asparagopsis later in the paragraph is unclear as it does not form part of the embodiment recited but seems to relate to a possible role for bromophenols, according to applicant.
Once again, this is not agreed with for the above reasons.
It should be also noted that this is the only mention of Asparagopsis, according to applicant. As such, there appears to be a suggestion that Asparagopsis taxiformis could be used to improve the taste of farmed fish or marine animals, according to applicant. However, as indicated above, it is not believed that Asparagopsis contains significant amounts of bromophenols, hence the role ascribed to bromophenols Kraan is irrelevant, according to applicant. The Examiner contends that Kraan teaches the increased production trait of Asparagopsis, according to applicant. As mentioned above, Applicant submits that there is no teaching that Asparagopsis can be utilized to improve taste or a production trait.
The claimed production trait is growth which reads on anyone and anything since every organism needs to grow to stay alive.
The present invention reports an increased production trait from Asparagopsis which is not obvious as there is no teaching in Kraan about the use of Asparagopsis to improve a production trait, according to applicant. Further, In the information provided, Kraan also teaches away from an improved production trait (weight) from inclusion of the three seaweed meals in one phase of work: Kraan at paragraph 95 recites that "During the first 3 months growth was at par although weight gain was lower in the seaweed-based diet ("Diet A") caused due to higher oil and protein content and a 8% lower moisture level in Diet B compared to Diet A, according to applicant. Differences are explained due to that the two diets are not isocalorific and isonitrogenous, according to applicant. In Phase 2 both diets were manufactured to be isocalorific and isonitrogenous, according to applicant. Over the second period of the trial, the Diet A showed a better feed conversion ratio (2.2% better than Diet B), gutted weight of fish (1.4% better than Diet B), EWOS growth Index (8.9% better than Diet B) and mortality rates (3 times lower than Diet B), according to applicant. However, again, Applicant submits that Kraan does not provide any indication that of the contents of seaweed meal 1', 'seaweed meal 2' or 'seaweed blend'. Applicant respectfully submits that the above does not provide any evidence that 'seaweed meal l' or 'seaweed meal 2' contain Asparagopsis or any contents thereof, or the contents of the 'seaweed blend'.
Once again, Kraan does NOT have to mention that Asparagopsis is in any specific seaweed meal.
Applicant submits that this comparison cannot be relied upon as teaching that using Asparagopsis would lead to an increase in production trait. Applicant submits that Kraan does not disclose, teach or suggest each and every feature of the claimed invention and, as such cannot anticipate the claimed subject-matter. Furthermore, Applicant submits that, based on the above, one of ordinary skill in the art would not have looked towards the presently claimed invention because there is simply no motivation to do SO. In fact, as discussed hereinabove, the person skilled in the art would have looked away from utilizing Asparagopsis because it does not have a high bromophenol content, according to applicant.
Once again, the argument to the bromophenol content is moot for the above reasons.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL V MELLER whose telephone number is (571)272-0967. The examiner can normally be reached M-F 9 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, Terry McKelvey can be reached at 571-272-0995. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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MICHAEL V. MELLER
Primary Examiner
Art Unit 1655
/MICHAEL V MELLER/Primary Examiner, Art Unit 1655