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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/2/2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities: line 2 recites “andor”. The term should be “or” to be consistent with the language of iii) . Appropriate correction is required.
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 9 and 21-23 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 9 is rejected as it is unclear how the products of claim 9 fit within the products of a)-g) of claim 1. a)-g) do not recite a vegan or vegetarian food product or pet food. Moreover, given pet food can be considered ready to eat if it is intended to be consumed without further processing, the claim is interpreted as the pet food falls is ready to eat and further limits iii) b) of claim 1.
Claim 21 is rejected as it depends on claim 9 and includes all the recitations of claim 9.
Claims 22-23 are rejected for reciting the biomass of the thermophilic fungus is incorporated as a source of iron to replace soya as source of iron. However, claims 22 and 23 ultimately depend from claim 11, which does not recite that soya or a meat replacer is present. Moreover, it is not clear soya could still be present yet for some other reason other than a source of iron.
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 1-4, 9, 11, 13, 16-23 are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/029353 (DE LAAT) in view of United States Patent Application Publication No. 2018/0343894 (LAMMERS).
As to claims 1-4, 11 and 18-19, DELAAT provides a thermophilic strain of Rhizomucor pusillus fungus (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, choline, and iron.
DELAAT is silent as to incorporating the feed into ready to eat foods such as pet foods.
LAMMERS teaches fungus can be incorporated into pet food and pet treats (see claim 2 of LAMMERS, [0017], [0026]). The protein in an amount of 5 to 30% by weight basis (see claim 5 of Lammers and [0019]). Thus, it would have been obvious to incorporate the fungal strain of DELAAT in a pet food in an amount of 5 to 30% by weight. This overlaps that of iii) b).
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 claims 9 and 13, DELAAT is silent as to incorporating the feed into ready to eat foods such as pet foods.
LAMMERS teaches fungus can be incorporated into pet food and pet treats (see claim 2 of LAMMERS, [0017], [0026]). The protein in an amount of 5 to 30% by weight basis (see claim 5 of Lammers and [0019]). Thus, it would have been obvious to incorporate the fungal strain of DELAAT in a pet food in an amount of 5 to 30% by weight. This overlaps that of iii) b).
As to claims 16-17, 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 .
As to claim 20, 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 it is a good source of protein for food.
As to claim 21, 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.
As to claims 22-23, the addition of the strain of DE LAAT would naturally provide iron.
Response to Arguments
Applicant's arguments filed 7/2/2026 have been fully considered but they are not persuasive.
The applicant argues that De Laat does not teach or suggest incorporating thermophilic fungal biomass into the specific food products recited in claim 1 at the claimed compositional limits to obtain those food products. However, LAMMERS is now cited to teach this feature.
The applicant also argues that the mere presence of choline and minerals in the
fungal biomass does not anticipate the claimed method. The claims require a method of
providing a source of choline and a mineral in a food product. This requires not merely that the
biomass contains these nutrients, but that the biomass is incorporated into a food product at
levels that meaningfully provide these nutrients.
However, the anticipation rejection is withdrawn. Moreover, compounds such as choline and minerals are inherent to the thermophilic strain of Rhizomucor pusillus (pg. 15, lines 1-16). The addition of such ingredients to food products would also provide the compounds inherent to the composition (pg. 5, lines 1-10).
The applicant also argues that claim 16 requires a dry matter concentration of at least 12% (w/v) for the sieved, filtered or decanted biomass cake. Claim 17 requires a water content of no more than 7% (w/w) for the dried powder. Applicant respectfully submits that the claimed dry matter and water content values are not merely arbitrary optimization parameters.
However, , DELAAT provides a thermophilic strain of Rhizomucor pusillus fungus (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). Thus, the form of the fungus can vary. Moreover, it would have been obvious to vary the solids and moisture contents based on the application of the product.
Conclusion
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.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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