DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. The amendment filed December 3, 2025 has been received and entered.
3. Claims 1-20 are currently pending.
Election/Restrictions
4. Applicant’s election without traverse of Category A (Algae species): Porphyridium spp.; Category B (Insect species): Hermetia illucens (black soldier fly); Category C (Fungal species): Saccharomyces cerevisiae; and Category D (Plant species): combination of peas, chickpeas, lentils, barley, sweet potatoes, pumpkin and flaxseed in the reply filed on December 3, 2025 is acknowledged.
5. Claims 1-20 are examined on the merits in regards to the elected species.
Claim Objections
6. Claim 14 is objected to because of the following informalities: the claim does not end in a period. Appropriate correction is required.
7. Claim 18 is objected to because of the following informalities: the claim contains a “16” after the period. This appears to be a typographical error. Appropriate correction is required.
8. Applicant is advised that should claim 18 be found allowable, claim 19 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-20 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.
9. Claim 1 is indefinite because it is unclear what is considered to be encompassed by the limitation that the composition is “animal free”. The composition requires an insect ingredient; however, insects are members of the kingdom Animalia and can be considered animals. In addition, the statement that the composition is “animal free” appears to encompass a whole animal which is confusing in the overall context of the claim.
Claim 1 is also indefinite because it states that it can contain “algae-based products,” “yeast -based products,” “insect-based products,” “fungus-based products,” “plant-based products.” It is unclear what characteristics a product must have in order to be considered a “based product.” Amino acids such as alanine and arginine are common to all the categories listed. It is unclear if these amino acids would be considered a “based-product.”
10. Claim 2 is indefinite because the metes and bounds of “nutritionally significant” are unclear.
11. Claim 3 states that the algae has a hydrocolloid content about 10% dry mass weight. However, it is unclear if the “mass weight” is referring to the weight of the algae or the whole composition.
12. Claims 5-7, 10, 13, 15, and 17 are indefinite because they state that the ingredients are present on a “per dry weight basis” but it is unclear if this is the weight of the whole composition.
13. Claims 18 and 19 are indefinite because it is unclear what ingredients are considered to be “micronutrients”. In addition, it is unclear what characteristics an ingredient must have in order to be considered a micronutrient or vitamin “based product”.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
14. Claims 10-20 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 10 states that the algae “may be” provided in the formulation. The use of “may be” indicates that all the limitations of claim 10, and its dependent claims, are optional. There are no limitations in claim 10 beyond the optional “may be” phrase. Thus, claim 10 and its dependent claims do not further limit the parent claims because claim 10 only requires optional limitations. This is improper.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
15. Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to natural products without significantly more.
MPEP § 2106 sets forth the Subject Matter Eligibility Test to determine if a claim is directed to patent eligible subject matter. Step 1 asks if a claim is directed to a statutory category of invention. Applicant’s claims are directed to a product; thus, the answer to Step 1 is Yes.
The analysis then moves to Step 2A, Prong One, which asks if a claim recites to a product of nature. In this case, applicant’s claims recite a combination of algae or algae-based products (with Porphyridium as the elected species); yeast or yeast -based products (with S. cerevisiae as the elected species); insect or insect-based products (with H. illucens as the elected species); fungus or fungus-based products (with S. cerevisiae as the elected species); and (e) plant or plant-based products (with the combination of peas, chickpeas, lentils, barely, sweet potato, pumpkin, and flaxseed as the elected species). Algae, yeast, insects, fugus, plants, and the elected species of each category are all naturally occurring. The claims can also vitamins, taurine, and arachidonic acid which are also naturally occurring. Thus, the claims do recite products of nature. MPEP § 2106.04(b) states that “When a claim recites a nature-based product limitation, examiners should use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A.”
MPEP § 2106.04(c)(I) states that “if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception…”. To perform the markedly different characteristic analysis, MPEP § 2106.04(c)(II) states “The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties…”.
In this case, each ingredient reads directly on a product of nature. In addition, as discussed above in paragraph 9, a “based-product” can be considered to encompass a single natural product, such as amino acid, that is common to each of the groups listed.
There is no indication that mixing the specified ingredients together as commensurate in scope with the stated claims changes the structure, function, or other properties of the extracts in any marked way in comparison with the closest naturally occurring counterpart. The closest naturally occurring counterpart for each ingredient is the ingredient itself. Each ingredient appears to maintain its naturally occurring structure and properties and is merely present in the combination. In addition, there is nothing to show that mixing the ingredients in the particular concentrations produces any sort of marked distinction. Thus, the claimed mixture as a whole does not display markedly different characteristics in comparison with the naturally occurring counterparts. Therefore, the answer to Step 2A, Prong One, is Yes.
Thus, the analysis must move to Step 2A, Prong Two, which asks if the claim recites additional elements that integrate the judicial exception into a practical application. As discussed in MPEP § 2106.04(d)(2) this evaluation is performed by identifying whether there are additional elements recited in the claim beyond the judicial exception and evaluating these additional elements to determine whether the claim as a whole integrates the exception into a practical application. In this case, applicant’s claims are directed to a composition with an intended use as a food composition. MPEP § 2106.04(d)(2) specifically states that a claim is only directed to “an intended use of a claimed invention or a field of use limitation, then it cannot integrate a judicial exception under the ‘treatment or prophylaxis’ consideration.” Therefore, applicant’s intended use is not sufficient to integrate the judicial exception into a practical application. Thus, the answer to Step 2A, Prong Two, is No.
Thus, the analysis must move to Step 2B which asks if claims recite additional elements that amount to significantly more than the judicial exception. MPEP § 2106.05 states that this evaluation is performed by “Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” In this case, the additional element in the claims is the combination of ingredients. However, MPEP § 2106.05(d) states that well-understood, routine, and conventional activities are not sufficient to show that the claims amount to significantly more than the judicial exception. Mixing specific ingredients does not amount to significantly more than a combination of judicial exception because mixing compounds is well-understood, routine, and conventional in the field. Thus, mixing the ingredients together does not amount to significantly more than a combination of judicial exception because mixing compounds is well-understood, routine, and conventional in the field.
In addition, applicant’s intended use as a food composition is not considered to amount to significantly more. As discussed in MPEP § 2106.05(I)(A), “Generally linking the use of the judicial exception to a particular technological environment or field of use” is not considered to be enough to qualify as significantly more. An intended use of a claimed composition only generally links the exception to the field of use. Therefore, the additional elements are not considered to amount to significantly more. Thus, the answer to Step 2B is No. Consequently, the claims are not directed to patent eligible subject matter.
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.
16. Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rubin (US 2017/0332689).
This reference teaches a nutritional product which contains insect, plant, fungus, yeast, and algae ingredients (see paragraphs 11-15). The reference states that the “animal” ingredient is required; however, the reference specifically teaches using insects to meet this requirement. Thus, the reference is considered to anticipate claim 1.
17. Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lammers (WO 2017/081214).
This reference teaches a pet food composition which contains ingredients from insects, yeast, plants, algae, and fungi (see claim 2). The reference does not require an animal derived ingredient (see page 2, lines 19-25). Thus, the reference is considered to anticipate claim 1.
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.
18. Claim(s) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lammers (WO 2017/081214) in view of Delaney (US 2006/0240150).
As discussed above, Lammers teaches a pet food composition which contains ingredients derived from insects, yeast, plants, algae, and fungi (see claim 2). The reference does not require an animal derived ingredient (see page 2, lines 19-25). The reference teaches that the composition should also contain a hydrocolloid such as carrageenan (an algae based ingredient) in amount from 0.05 to 30% which would act as a stabilizer or gelling agent (see page 5 and claims 4 and 6). The reference does not teach that the composition contains taurine, arachidonic acid, or B vitamins.
However, Delaney teaches a method for determining the nutritional completeness of a pet food. The reference teaches analyzing the food for levels of taurine, arachidonic acid, and B vitamins against known acceptable levels for these compounds (see paragraphs 37-39). Thus, it was known in the art at the time of the invention that pet food should contain nutritionally appropriate amounts of taurine, arachidonic acid, and B vitamins. Therefore, an artisan of ordinary skill would have reasonably expected that the pet food compositions taught by Lammers should be analyzed for the presence of the these compounds with additional amounts of each being added to meet the nutritional requirements of the pet as taught by Delaney. This reasonable expectation of success would have motivated the artisan to modify the pet food of Lammers to include concentrations of taurine, arachidonic acid, and B vitamins in the amounts claimed by applicant.
19. Claim(s) 8-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lammers (WO 2017081214) in view of Delaney (US 2006/0240150) as applied to claims 1-7 above, and further in view of Clasadonte (WO 2019/185888), Criggall (US 6,338,866), and Tsuge (JP 2008247901 – English translation).
The teachings of Lammers and Delaney are discussed above. As discussed above, Lammers teaches using ingredients from each of algae, insects, fungus/yeast, and plants. However, the references do not teach including Prophyridium as the algae ingredient, black soldier fly as the insect ingredient, S. cerevisiae as the fungus/yeast ingredient, or peas, chickpeas, lentils, barley, sweet potato, pumpkin, and flaxseed as the plant ingredients.
However, Clasadonte teaches ingredients for pet foods. The reference teaches using flaxseed oil, pumpkin seed oil, insect meal from black solider fly, pea, barley, flaxseed, chickpea, lentils, sweet potatoes, vitamins, and minerals (see pages 6, 21, and 26).
Criggall teaches using S. cerevisiae (brewer’s yeast) in pet foods. The food also contains palatability enhancers which can be coated onto the food (see abstract).
Tsuge teaches using Prophyridium as a preferred source of a red yeast extract for pet foods (see abstract and page 8).
Thus, each of the ingredients claimed by applicant was known in the art at the time of the invention to be appropriate for use in a pet food composition. Given these teachings, the artisan would have reasonably expect that these ingredients could be used as the algae, insect, fungus/yeast, and plant ingredients in the pet food composition taught by Lammers. This reasonable expectation of success would have motivated the artisan to modify Lammers to include the use of the claimed ingredients in the pet food composition.
The references do not specifically teach adding the ingredients together in the amounts claimed by applicant. However, as discussed in MPEP section 2144.05(II)(A), “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).” Varying the concentration of ingredients within a nutritional composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
20. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655