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 .
Claim(s) 1, 3-7, 10-12, 14-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Espin et al. (WO2019/057896).
Regarding claim 1, Espin teaches methods for isolating a betalain pigment color comprising applicants steps a), b), and c) (pg. 4, ln. 16-21; examples; claim 1).
Regarding claims 3-4, Espin teaches wherein the ethylene releasing compound is the claimed 2-chloroethylphosphoric acid (claims 1-3; examples; pg. 5, ln. 14-15; Items 4-5).
Regarding claim 5, Espin teaches wherein the betalains of step c) are harvested from at least 100 beet plants (pg. 5, ln. 20-24; claims; Item 12).
Regarding claim 6, Espin teaches wherein the amount of betalain pigment isolated from step c is an amount of betalain at least 15% higher as compared to beet plants not treated with the ethylene-releasing compound in a control experiment (Item 15; pg. 5, ln. 26-33; pg. 29-35; example 1).
Regarding claim 7, in the examples Espin teaches applying 360 g/ha (applicant’s g/ha) of the ethylene releasing compound by spraying which anticipates the claimed range (examples 1-2).
Regarding claim 10, Espin teaches wherein the foliar spraying of the ethylene-releasing compound is done later than 2 weeks after planting (Item 20; Claim 11).
Regarding claim 11, Espin teaches wherein the foliar spraying of ethylene-releasing compound of step a) is done at least 3 times before the harvesting the beet plants or wherein harvesting of the beet plants is done later than 6 weeks after planting (Item 21; Claim 12).
Regarding claim 12, Espin teaches wherein the isolating of the betalains is done by extraction of the betacyanins and betaxanthin pigments from the taproots of the harvested beet plants as claimed because Espin teaches that the betalains (which are pigments which can be red-violet (betacyanins) or yellow-orange (betaxanthins)) are extracted from the beetroots (and the beetroot is the taproot portion of the plant) (pg. 8, ln. 29-31; pg. 9, ln. 6-13; Example 1).
Regarding claim 14, Espin teaches a betalain pigment color composition obtained by the method of claim 1 (Claims 1, 13; Items 1 and Item 22).
Regarding claim 15, Espin teaches wherein the betalain is used to color and edible product or a pharmaceutical product (pg. 9, ln. 32-pg. 10, ln. 3; Items 22-24; Claims 14-15).
Regarding claim 16, Espin teaches wherein the edible product is a food product selected from the claimed dairy product, juice, wine gum, marmalade, jam, macaroni, pasta, sausage casings, etc. (Items 22-25; Claims 14-15; pg. 9, ln. 32-pg. 10, ln. 3).
Espin teaches all limitations of the claim and thereby anticipates the claims.
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.
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.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Espin et al. (WO2019/057896), and further in view of Gableman et al. (US6353156).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claim 1, Espin teaches methods for isolating a betalain pigment color comprising applicants steps a), b), and c) (pg. 4, ln. 16-21; examples; claim 1).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Espin does not teach wherein the beet plants are selected from the claimed group. However, this deficiency in Espin is addressed by Gabelman.
Gabelman teaches that the claimed Ruby Lake and Red Cloud beet varieties contain high levels of betalains (see Examples 4-10; Claims).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art to use the claimed Ruby Lake or Red cloud variety of beet plants in the methods of Espin in order to develop the claimed method, because Espin already teaches performing the same method that is instantly claimed on other beet varieties and Gabelman teaches that the claimed Ruby Lake or Red Cloud varieties are known to have high betalain content. Thus, it would be obvious to use either of these claimed varieties in the method of Espin in order to achieve even higher levels of betalain for extraction from the plants since these plants already known to produce higher amounts of betalain and using beet varieties with high amounts of betalain allow for higher amounts of betalain to be extracted from each plant thereby leading to higher yields of betalain from these beet crops.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s amendments to the claims have overcome the previous claim objections, 101, 112, 102 and 103 rejections of record. Applicant’s amendments to the claims have also prompted the new grounds of rejection presented in this office action.
Conclusion
No claims are 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 Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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, Sue X Liu can be reached at (571)-272-5539. 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.
/ERIN E HIRT/Primary Examiner, Art Unit 1617