DETAILED ACTION
Background
The amendment dated October 15, 2025 (amendment) amending claims 1 and 8 and canceling claims 4-5 and 11-12 has been entered. Claims 1-3, 6-10 and 13 as filed with the amendment have been examined. In view of the cancelation of claims 4-5 and 11-12, all rejections of claims 4-5 and 11-12 have been withdrawn.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on amendment dated October 15, 2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 6-10 and 13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites an amount of a coating oil as “10 to 40 % w/w” without reciting the basis or denominator for weight. Does Applicant intend to recite an amount of coating oil, based on the total weight of a coated fish feed pellet, or based on the total weight of an uncoated fish feed pellet or based on some other weight measure?
The Office interprets the claims as reciting an amount of coating oil, based on the total weight of a coated fish feed pellet.
Claims 1 and 8 recites an amount of an microbial oil as “at least 50 % w/w” without reciting the basis or denominator for weight. Does Applicant intend to recite an amount of microbial oil, based on the total weight of a coating oil composition, or based on the total weight of the oil in the coating oil composition, or based on some other weight measure?
The Office interprets the claims as reciting an amount of microbial oil, based on the total weight of oil in the coating oil composition.
Claims 1 and 8 reciting an algal oil comprising amounts of oleic acid and linoleic acid in the algal oil and, at the same time in ”g/kg feed” is indefinite and confusing. It is not clear if the amounts of the oleic and linoleic acid are based on their amount per kg oil as the claim appears to recite, their amount per kg of feed as the claim also appears to recite, or their amount on some other kg basis. The amount of any fatty acid contained in algal oil cannot not vary when more or less of the algal oil is used in a feed because varying the total amount of the oil used does not change its composition.
The recited “g/kg” amounts of alpha-linoleic acid, arachidonic acid (ARA), eicosapentaenoic acid (EPA) and docosahexaenoic acids (DHA) in claims 1 and 8 are indefinite because the claims do not state a basis for the kg denominator. Is the recited amount one based on the total amount of algal oil or on the basis of a kg of some other thing?
The Office interprets the amounts in “g/kg” of each of the six recited fatty acids as being based on a kg of the recited algal oil.
Claims 2-3, 6-7, 9-10 and 13 are rejected as being dependent from a rejected base claim.
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 1-3, 6-10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over US 20180000130 A1 to Rakitsky et al. (Rakitsky) in view of US 12059006 B2 to Brooks et al. (Brooks), as evidenced by Ashford, A. et al, "Electron Microscopy May Reveal Structure of Docosahexaenoic Acid-Rich Oil Within Schizochytrium sp.", Lipids, Vol. 35, no. 12 (2000), (Ashford), and, further as evidenced by US 2012/0183668 A1 to Odom et al. (Odom), all of record.
The Office interprets the amounts in “g/kg” of the six recited fatty acids as being based on a kg of the recited algal oil.
Regarding instant claims 1 and 6-8, Rakitsky at [0034]-[0035] discloses aquaculture feed pellets (“fish feed pellets”) which (at [0033]) are coated with a coating oil composition comprising (at [0006]-[0009]) a variable ratio (claim 6) of from 5 to 90 wt% of a dispersion of lysed microbial cells and also from 10 to 90 wt% of a triglyceride oil from the lysed cells (“microbial oil”) and from other organisms (at [0018]) a fish or a plant oil (“vegetable oil”), for example (as at [0043]) rapeseed oil (claim 7), or a combination of fish and plant oils. Further, Rakitsky discloses at Example 4 and [0043] methods for admixing the fish feed pellets with a dispersion (“coating oil”) comprising a microbial oil which is an algal oil from Schizochytrium in the amount of 20 % w/w of the fish feed pellets (claim 1).
Further, the Office considers the claimed method of modulating the sedimentation or sinking speed of dry fish feed pellets comprising admixing a coating oil comprising a microbial oil as recited in claim 8 to include the method of coating fish feed pellets with a microbial oil disclosed in Example 4 of Rakitsky.
Still further, the Example 4 coating of Rakitsky comprises 10, 20 and 30 wt% canola oil and, respectively, 90, 80 and 70 wt% of the lysed microbial cells. In addition, Rakitsky discloses at [0095] in Example 5 and accompanying Table 1 on page 6 a fish feed of Diets C and D containing 20 wt% of a 50:50 w/w mix of canola oil with Schizochytrium algal oil and fish oil made by admixing extruded fish feed pellets with the coating oil. The product fish feed pellets in Rakitsky Example 5 comprise (at Table 2 in the right hand col. of page 6) 2.0 wt.% (20 g/kg feed and 80 k/kg algal oil) docosahexaenoic acid (DHA, 22:6 n-3), and 0.8 wt% (8 g/kg) eicosapentaenoic acid or EPA, which the claimed range 0.03 - 73.66 g/kg feed (0.003 to 7.366 wt%) encompasses. As evidenced by Ashford at Table 1 at the bottom of p. 1379, right hand column, the Schizochytrium oil in Rakitsky comprises 3.4 wt% (34 g/kg) of oleic acid and 0.1 wt% (1 g/kg) of arachidonic acid (ARA), 0.3 wt% (3 g/kg) of eicosapentaenoic acid (EPA, 20:5 n-3), each of which the claimed range 0.03 - 24.55 g/kg overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I.
In addition, and regarding instant claims 3 and 10 Rakitsky does not disclose an example of a fish feed pellet wherein the coating oil comprises at least 50 % w/w of a microbial oil as an algal oil as in claims 1 and 8 or comprising 50 % w/w of the microbial oil as in claims 3 and 10. Further, Rakitsky does not disclose an Example wherein the coating oil in coated fish feed pellets or methods of making them comprises an algal oil composition of oleic acid (18:ln-9) in the range 0.28 - 229.15 g/kg algal oil (0.028 to 22.915 wt%), linoleic acid in the range 0.22 - 233.24 g/kg algal oil, alpha-linolenic acid (ALA) in the range 0.28-225.06 g/kg algal oil, and DHA in the range of from 0.03 - 73.66 g/kg (0.003 to 7.366 wt%) algal oil as in claims 1 and 8. However, Rakitsky at [0012] discloses its oil dispersion as comprising from 30 to 90 wt% of lysed microbial cells and 10 to 70 wt% of triglyceride oils and disclosed at [0043] that its microbial oil as lysed Schizochytrium cells comprises 50% w/w microbial oil, giving a range of 15 to 45 wt% of algal oil in its coating compositions.
An amount of algal oil in a coating oil of Rakitsky ranging from 15 to 45 wt% mixed with 30 to 70 wt% of oil from other organisms converts to 10/70 minimum algal oil/triglyceride to 45/10 maximum or about 14% to about 84 % w/w of the coating oil as algal oi, which range the claimed 50 % w/w of algal oil lies within. In fact, any coating oil composition comprising more than 66.6 wt% of lysed algal cells that are 50 % w/w or more of algal oil with 33.3 wt% or less of other oils comprises 50 wt% or more of algal oil. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Rakitsky would have found it obvious to use a coating oil comprising 50 % w/w of algal oil, based on the total weight of oil in the coating oil because Rakitsky discloses that the claimed proportion of algal oil makes a desirable fish feed pellet coating oil.
Odom at Table 3 on page 16, left column, discloses that rapeseed oil or canola oil as used in Rakitsky comprises 59.1 wt% of oleic acid, 19.3 wt.% or linoleic acid, which the claimed 0.22-233.24 g/kg encompasses, and 8.4 wt% (84 g/kg) of alpha-linolenic acid (ALA), which the claimed 0.28-225.06 g/kg encompasses. See MPEP 2144.05.I.
Brooks at col. 14, line 62 to col. 15, line 48 discloses use of many species of microalgae for making algal oil for (at col. 33, lines 29-39) and their blends in food and feed applications, wherein Brooks discloses at col. 26, lines 1-4 use of the several species of microalgae to tailor the composition of an algal oil blend. Further, at col. 25, lines 55-63 Brooks discloses biomasses containing at least 90 wt% algal oil or almost entirely of algal oil. At col. 26, lines 25-29, Brooks discloses algal oil with at least 10% (100 g/kg), 20% (200 g/kg), or 25% of each of oleic acid and alpha-linolenic acid; and discloses at col. 26, lines 29-33 algal oil that is substantially free of DHA. Further, Brooks at col. 26, lines 35-40 discloses an algal oil containing 10 to 16 wt% (100 to 160 g/kg oil) of 18:2 (linoleic acid). Accordingly, Brooks discloses production of an algal oil to mimic canola or rapeseed oil. In addition, Brooks discloses at col. 14, line 62 to col. 15, line 48 biomass from many species of microalgae and (at col. 25, lines 55-63) discloses biomasses containing at least 90 wt% algal oil. Accordingly, Brooks discloses algal extracts comprised of almost entirely of algal oil.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Brooks for Rakitsky to include in its microbial algal oil 1 part of algal oil from Schizochytrium, 1 part (Ex. 5, Diet C and D of Rakitsky) or 2 parts (Ex. 4 of Rakitsky) having 100 g/kg oil or 200 g/kg oil of oleic acid, 100 g/kg oil to 160 g/kg oil of 18:2 (linoleic acid) and 10, 20 or 25 wt% (100, 200 or 250 g/kg oil) of 18:3 (alpha-linolenic acid) to give an algal oil product comprising 3.33 to 12.5 wt% (33.3 to 125 g/kg) of oleic acid; further, comprising 3.33 to 12.5 wt% (33.3 to 125 g/kg) of alpha-linolenic acid (ALA); still further comprising substantially no DHA, which the claimed range of from 0.03 - 73.66 g/kg (0.003 to 7.366 wt%) algal oil includes; and, yet further, comprising 3.33 to 8 wt% (33.3 to 80 g/kg) of linoleic acid. All references disclose food or feed compositions comprising algal oil to provide improved nutrition. The ordinary skilled artisan working in Rakitsky would have desired to include a rapeseed substitute of Brooks having a low DHA content and containing ALA in an algal oil to provide oil coated fish feed pellets having the same nutrition as in Example 4 and Example 5, Diets C and D of Rakitsky as a stable dispersion.
In addition, it would have been obvious for Rakitsky in view of Brooks to use lysed cells comprising at least 90 wt% of algal oil as in Brooks in its coating oil to provide a higher oil yield in its lysed cells and provide improved nutrition in the coated fish feed pellets of Rakitsky.
Regarding instant claims 2 and 7, Example 4 in Rakitsky (at [0094]) discloses extruded feed pellets (claim 2) coated with a coating oil dispersion of lysed Schizochytrium cells comprising the algal oil in canola or rapeseed oil (“rapeseed oil” - claim 7). The disclosed Example 4 coating oil dispersion in Rakitsky comprises (at [0043]) a coating oil dispersion of (50 g) lysed Schizochytrium cells containing 50% lipid and 50 grams of canola oil as having a total of 75 g oil as 50 g canola oil and 25 g Schizochytrium oil as the microbial oil (33.3% of oil, 25 wt% of the coating).
Regarding instant claims 9 and 13, Example 4 at [0094] of Rakitsky discloses a variable ratio of at least one additional oil selected from vegetable oil and fish oil as coating of extruded feed pellets with a dispersion of lysed microbial cells in canola or rapeseed oil (“vegetable oil” as rapeseed oil in claim 13). The Example 4 coating of Rakitsky comprises 10, 20 and 30 wt% canola oil and, respectively, 90, 80 and 70 wt% of the lysed microbial cells for a total of (90 X 40% or) 36%, (80 X 40% or) 32% and (70 X 40% or) 28 wt% algal oil.
Response to Arguments
In view of the amendment dated October 15, 2025, the following rejections have been withdrawn as moot:
The rejections of claims 1-2, 4, 6-9, 11 and 13 under 35 U.S.C. 102(a)(1) as being anticipated by US 20180000130 A1 to Rakitsky et al.;
The rejections of claims 3 and 10 under 35 U.S.C. 103 as being unpatentable over US 20180000130 A1 to Rakitsky et al.;
The rejections of claims 8-11 under 35 U.S.C. 103 as obvious over US 2009/0324636 A1 to Piechocki et al. in view of US 12059006 B2 to Brooks et al.; and,
The rejection of claim 10 under U.S.C. 103 as obvious over US 20180000130 A1 to Rakitsky et al. in view of US 12059006 B2 to Brooks et al.
The following rejection has been withdrawn to further compact prosecution in this application:
The rejection of claim 12 under 35 U.S.C. 103 as being unpatentable over US 2009/0324636 A1 to Piechocki et al. in view of US 12059006 B2 to Brooks et al., as evidenced by Ashford, A. et al, "Electron Microscopy May Reveal Structure of Docosahexaenoic Acid-Rich Oil Within Schizochytrium sp.", Lipids, Vol. 35, no. 12 (2000) and US 2012/0183668 A1 to Odom et al.
Applicant’s arguments with respect to claims 1-13 have been considered but are moot because the new ground of rejection does not rely on Piechocki as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the remarks accompanying the amendment dated October 15, 2025 (Reply), the positions have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply at pages 3-6, the position alleges that Rakitsky is silent with regard to modulating the sinking rate of fish feed pellets, respectfully the Office action acknowledges this. However, the claimed coated fish feed pellets wherein the coating oil comprises at least 10% w/w of a microbial oil appear to be substantially the same thing as the microbial oil coated fish feed pellets of [0043] and Examples 4 and 5 of Rakitsky, now modified by Brooks at col. 25, line 55 to col. 26, line 40. No clear showing or other evidence on the record suggests any difference between the modulated sinking rate of fish feed pellets as claimed and those of Rakitsky. Rather any distinction is based on bald assertions that the Rakitsky feed pellet does not perform as claimed. See MPEP 2112.01.I.
Further regarding the position taken in the Reply at pages 3-6 and recited algal oil amounts and amounts disclosed in Rakitsky, the Office acknowledges that Example 5 of Rakitsky does not comprise a coating oil having at least 50 % w/w of an algal oil, based on either the total weight of oil in the coating oil or the entire coating composition. However, the Example 4 coating of Rakitsky comprises 10, 20 and 30 wt% canola oil and, respectively, 90, 80 and 70 wt% of the lysed microbial cells which at [0043] of Rakitsky comprise 50 % w/w of algal oil. Accordingly, each of the Example 4 compositions comprise more than 50 % w/w algal oil, based on the total weight of oil in the coating. Be advised that contrary to the position taken at the top of page 5, Example 1 of Rakitsky discloses 10%, 20% and 30% of canola oil loading in the lysed cell biomass, and not 10%, 20% and 30% of lysed cells in canola oil.
Still further, the position taken in the Reply that the claims require a coating oil composition that is at least 50 % w/w of algal oil, based on the total weight of the coating oil composition this position assumes incorrectly that the claims recite a coating oil that consists of oil or a coating oil wherein the recite amount of algal oil is based on the total weight of the coating oil composition. However, the Office is entitled to interpret the claims broadly as is reasonable consistent with the instant specification. See MPEP 2111.01. The claims do not provide a weight basis for the alleged coating oil which is reasonably based on the total weight of oil as the active ingredient in the coating composition. Further, the claimed coating oil is open-ended and can comprise the separate cellular materials along with the microbial oil. Finally, even if somehow the claims were interpreted to read as reciting a coating oil comprising at least 50 % w/w of a microbial oil, based on the total weight of the coating oil (which they do not), newly combined Brooks at col. 25, lines 55-63 discloses biomasses containing at least 90 wt% algal oil or almost entirely algal oil. The ordinary skilled artisan would have found it obvious to increase the oil content of the Rakitsky biomass as in Brooks which discloses that such high oil fraction algae provide desirable oil compositions for use in animal feed.
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.
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, Nikki H Dees can be reached on (571) 270-3435. 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.
/ANDREW E MERRIAM/Examiner, Art Unit 1791