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 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.
Claim 11 is 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.
As to claim 11, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 11 recites the broad recitation of the biomass of the thermophilic fungus is provided as a source of iron, and the claim also recites preferably, the biomass of the thermophilic fungus is provided to replace soya as source of iron, more preferably, the biomass of the thermophilic fungus is provided to replace soya as source of iron in a meat replacer, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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 1-4, 9, 11, 13 , 18-21 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by WO2018/029353 (DE LAAT).
As to claims 1-4 and 18-19, DELAAT provides a thermophilic strain of Rhizomucor pusillus (pg. 15, lines 1-16) that can be added to food or feed (pg. 5, lines 1-10). DE LAAT teaches that the product can be in powder form or cake form (pg. 18, lines 5-11 and pg. 4, lines 15-22). How the cake and powder are formed are process recitations that do not result in a structural difference relative to the product of DE LAAT and that claimed. De LAAT teaches that essential amino acids such as lysine are present (pg. 9, lines 30-38). The addition of the strain would naturally provide a mineral. It is also noted that (iii) of claim 1 only requires providing the composition. The claim does not require that the composition be mixed or formed with any of a) – g).
As to claims 9, 11, and 13, again, the term provided is interpreted as meaning as being directed to an intended use for purposes of examination. Indeed, the base word provide only means make available.
The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable).
As to claim 21, it is noted that whether the composition is a dog or cat food, does not result in a structural difference. Rather, the recitation is an intended use that does not confer patentability to the claims.
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 16-17 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/029353 (DE LAAT).
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De Laat does not specifically indicate the water content of dry matter content. Rather, De Laat teaches that the dry matter product can vary and be optionally dried (pg. 14, lines 20-25). Thus, it would have been obvious to vary the dry matter and/or water content as desired .
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DELAAT provides a thermophilic strain of Rhizomucor pusillus 143028 (pg. 15, lines 1-16) that can be added to food or feed (pg. 5, lines 1-10). It would have been obvious to use other strains such as Rhizomucor pusillus 143028 as De Laat teaches that
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DELAAT provides a thermophilic strain of Rhizomucor pusillus (pg. 15, lines 1-16) that can be added to food or feed (pg. 5, lines 1-10). The limitation that the food or feed is for cats or dogs is an intended use that does not confer patentability to the product as no structural difference results.
Response to Arguments
Applicant's arguments filed 12/16/2025 have been fully considered but they are not persuasive.
The applicant argues that DE LAAT does not teach incorporating thermophilic fungal biomass into the products, as claimed. However, the claims only require an ingredient be provided. No mixing is required.
Moreover, it is argued that the De Laat does not teach adding the thermophilic fungus specifically to supplement for choline and minerals. However, the choline and minerals are inherent to the thermophilic fungus and De Laat teach the same strains (pg. 15, lines 1-16), as claimed (see claims 18-20).
BIJL is no longer cited.
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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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 Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791