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 .
DETAILED ACTION
Status of Claims
Claims 42-61 are pending.
Priority
Instant application 18029120, filed claims benefit as follows:
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Information Disclosure Statement
All references from the IDS received 03/29/2023, 02/07/2025, 10/14/2025, and 2/12/2025 have been considered unless marked with a strikethrough.
Restriction Requirement
Applicant election of Group I, claims 42-58, 60-61 without traverse is acknowledged. Claim 59 is withdrawn as not reading on an elected group.
Claim Rejection – 112(b)
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 46 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.
The claim requires a percentage of water but does not provide the means of measure. For example, is the 2-3% by volume, by weight or by number of molecules? It is not clear from the claim as it stands.
Claim Rejection – 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 42-45, 51-52, and 57 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by the article to An-Ping Zeng (“Zeng”, made of record on the IDS).
With respect to claim 42, Zeng teaches at for example page 134, col 1-2, using stock cultures of Lactobacillus reuteri using a two step procedure where glycerol was inoculated with the anaerobic culture at a pH of 5.5. Zeng teaches the biotransformation of glycerol to 3-HPA (page 134). Further, Zeng teaches conditions to convert 3-HPA to acrolein (page 137):
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And distillation:
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Although fractional distillation is not explicit, the acknowledgement of different boiling points and separation by boiling point in considered a fractional distillation using the BRI standard since fractional distillation is separation of fractions using different boiling points in a distillation.
See also page 138 columns 1 and 2.
With respect to claim 43-44, the fermentation broth is associated with “ongoing biological fermentation” since at least the conversion of starting materials is not instantaneous. Further, since the term “ongoing” is not defined in the specification this interpretation is reasonable using the BRI standard; glycerol is used.
With respect to claims 45, the distillation would be an azeotrope containing water and the product, but the specific azeotrope containing 2-4% water or specific conditions of the azeoprope are not taught (claim 46-50).
With respect to claim 51-52, the conversion takes place so the specification states at [0073] for example that L. reuteri expresses glycerol dehydratase. The other steps were discussed above. Further, the same paragraph teaches a B-12 enzyme. Further, these are endogenous to the organism.
With respect to claim 57, at least the specification at [0086] suggests that L. reuteri is an acidophilic organism.
Claim Rejection – 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) 42-52, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over the article to An-Ping Zeng (“Zeng”, made of record on the IDS) in view of US2767216 (“Evans”, made of record on the IDS) and in view of US-4329513 (“Aoshima”, made of record on the IDS).
The Zeng article teaches as disclosed above and at least those teachings are incorporated by reference herein.
The Zeng article fails to teach the explicit conditions, temperatures and concentrations of the distillation. Evans teaches azeotropes with water such that between acrolein and water.
It would have been prima facie obvious to combine the teaches of Zeng and Evans in order to isolate a known composition through a known process. One would expect success because both references relate to the synthesis and purification of acrolein in the presence of water.
With respect to claims 49-50, the combination fails to explicitly teach all the conditions of the distillation such as concentrations, and temperature.
However, Aoshima in addition to supporting the azeotropic distillation argument above, additionally teaches overlapping temperatures of a distillation of acrolein and water.
This supports the temperature optimization argument above. It would have been prima facie obvious to arrive at overlapping temperatures because at least Aoshima teaches a distillation at an overlapping temperature. See MPEP 2144.05 incorporated by reference herein with respect to optimizing distillation protocols such at temperature, pressure and concentration.
Claim(s) 42-45, 51-55, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over the article to An-Ping Zeng (“Zeng”, made of record on the IDS) in view of the article to Kalatari et al (“Kalatari”, made of record on the IDS).
Zeng teaches as disclosed above and at least those teachings are incorporated by reference herein.
Zeng fails to teach microorganisms expressing glycerol dehydratase enzyme, related to B12-dependent glyercol dehydratase and alhdehydr dehydrogenase from K pneumoniae.
Kalatari teaches for example:
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It would have been prima facie obvious to substitute one organism performing a similar function for another with predictable results – applying prong B of KSR. Further, one would be motivated to maximize the production of acrolein.
Claim(s) 42-45, 51-55 and 57-58 are rejected under 35 U.S.C. 103 as being unpatentable over the article to An-Ping Zeng (“Zeng”, made of record on the IDS) in view of the article to Kalatari et al (“Kalatari”, made of record on the IDS) and further in view of US10260072 (“Jessen”, made of record on the IDS).
The combination teaches as disclose above and at least those teachings are incorporated by reference herein.
The combination fails to teach a further mutation in a gene coding for dihydroxyacetone kinase.
Jessen discloses such an organism. For example, Jessen teaches:
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It would have prima facie obvious to substitute or combine different micro organisms in order to optimize and/or maximize the production of the output product. One skilled in the art would expect success because the pathway and products are similar.
Claim(s) 42-45 and 51-58 are rejected under 35 U.S.C. 103 as being unpatentable over the article to An-Ping Zeng (“Zeng”, made of record on the IDS) in view of the article to Kalatari et al (“Kalatari”, made of record on the IDS) in view of US10260072 (“Jessen”, made of record on the IDS), and US-7695943 (“Sarcabal”, made of record on the IDS) and US6803218 (“Genecor”, made of record on the IDS) and US20080131945 (“Toraya”, made of record on the IDS) and the article to Yang (“Yang”, made of record on the IDS) and US7371558 (“Cervin”, made of record on the ISR).
The combination teaches as disclosed above and those teachings are incorporated by reference herein.
The combination fails to teach different genetic backgrounds.
In the same field of endeavor the following references teach different generic backgrounds.
Jessen teaches acidophilic microorganisms, yeast cells which relate to the 3-HP pathway gene encoding enzymes. Jessen teaches microorganisms have 3-HP pathway genes that are exogenous (claim 12 for example). Jessen teaches organisms further comprising a mutation in a gene coding for aldehyde dehydrogenase. Kalatari teaches exogenous gene coding for B12-dependent enzymes (paragraph 2). Further, Jessen teaches a mutation in a gene for dihydroxyacetone.
Sarcabal teaches an organism with an exogenous glycerol dehydratase enzyme independent of coenzyme B12 (col. 3, for example).
Genecor teaches thermophilic microorganisms in glycerol fermentation.
Toraya teaches mutations in genes coding for NADH-dependent oxidoreductase in the same field of endeavor.
Yang teaches mutations in the gene encoding for NAD-linked glycerol dehydrogenase.
Cervin teaches a microorganism having a gene mutation in aldehyde dehydrogenase – endogenous gldA gene for example.
In this case the various reference teach alternative genetic states in a known genetic pathway all related to the same field of endeavor. Applying either prong A or prong B of KSR it would have been prima facie obvious to one having ordinary skill in the art to combine the different organisms, or substitute different genetic backgrounds in order to optimize the production of the product.
Claim(s) 42-45, 51-55, 57, and 60-61 are rejected under 35 U.S.C. 103 as being unpatentable over the article to An-Ping Zeng (“Zeng”, made of record on the IDS) in view of the article to Kalatari et al (“Kalatari”, made of record on the IDS) and further in view of US4107204 (“Murib”, made of record on the ISR).
The combination teaches as disclosed above, and at least those teachings are incorporated by reference herein.
The combination fails to teach oxidation by chemical means.
Murib teaches the oxidation acrolein to acrylic acid using a chemical catalyst.
Applying KSR prong A, one could combine the steps of the combination with the oxidation of Murib in order to optimize the synthesis of acrylic acid. It would have been predictable since the combination teaches the synthesis of the acrolein starting material used by Murib to synthesize the acid.
Conclusion
No claims allowed.
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/CLINTON A BROOKS/Supervisory Patent Examiner, Art Unit 1621