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 .
This office action was written in response to the Applicants Remarks filed 2/27/26. Claims 1-5, 13-17 are pending and have been examined on the merits. Claims 6-12 were cancelled. Claims 16 and 17 are new.
Withdrawn Rejections
The 101 rejection of claim 15 has been withdrawn due to the amendment to the claim.
The 112(b) rejections of claims 3 and 5 have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejections of claims 1, 13, 14, and 15 as being anticipated by Legarth (US 2016/0128357) have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejections of claims 1, 4 and 5 as being anticipated by Park et al. KR 20160139921 have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejections of claims 1 and 4 as being anticipated by I et al. (KR 20140056802) have been withdrawn due to the amendments to the claims.
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 1-5, 13-17 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 1 has been amended to recite, “and wherein the fermented plant material of the composition comprises at least 60% (w/w) of the plant material selected from the family Fabaceae”.
This recitation can have two meanings. First, it is unclear if the Applicants intend for the fermented family Fabaceae plant material to comprise at least 60% of the total composition, or second, if the Applicants intend for the at least 60% of the fermented plant material to be from the family Fabaceae. If the second is intended, this is further confusing because the previous recitation in the claim “wherein the fermented plant material is selected from the family Fabaceae”, already encompasses the idea that at least 60% of the plant material is from the family Fabaceae, since the family Fabaceae is recited as a selected plant material. The claim has been interpreted as if the Applicants intend the Fabaceae to comprise at least 60% of the composition. However, appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Legarth (US 2016/0128357).
Regarding Claim 1: Legarth discloses a fermented seaweed and/or algae and fermented plant material/combinatorial where the fermented plant material can be from leguminous plants [abstract; 0032; 0043; 0044; 0083; 0113; 0116; 0118; 0119]. Legarth discloses that the fermented seaweed/algae material is more than 10% of the composition or 10 to 55% of the composition [0112]. Legarth discloses that plant material for example when it is rapeseed is present at more than 17% and more than 40% [0117]. Legarth does not explicitly disclose the amount of plant material when it is the proteinaceous/legume material. However, since the combinatorial composition is a mixture of seaweed/algae, lactic acid bacteria and plant material and since the amount of algae/seaweed can be more than 10% and the amount of lactic acid can be between 0.1 to 10%, then the remaining composition can be said to contain the legume plant material around at least 20%; or at least more than 40%, which is in line with the amount of rapeseed allowed for; or at least 84.9% where algae/seaweed is present at 10.1% and lactic acid is present at 5%.
Although Legarth does not explicitly disclose wherein the fermented plant material is at least 60% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Legarth overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 2: Legarth discloses as discussed above in claim 1. Legarth discloses wherein the inoculum/lactic acid can be 0.1 to 10% of the combined materials [0088].
Although Legarth does not disclose 25-150 g lactic acid per kg (2.5% - 15%) fermented composition, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Legarth overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 3: Legarth discloses as discussed above in claim 1. Legarth discloses the amount of fermented seaweed and/or algae at more than 10% or 10% to 55% [0112; claim 1 and claim 45].
Further, the amounts are substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding Claim 13: Legarth discloses a fermented seaweed and/or algae and fermented plant material where the fermented plant material can be from leguminous plants [abstract; 0032; 0043; 0044; 0083; 0113; 0116; 0118; 0119]. Legarth discloses as feed or feed ingredient comprising the fermented seaweed and/or algae and fermented plant material where the fermented leguminous plants [0043; 0139].
Regarding Claim 14: Legarth discloses as discussed above in claim 13. Legarth discloses a food and/or feed product comprising a fermented seaweed and fermented legume composition [abstract; 0044; 0139].
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Legarth (US 2016/0128357) as applied to claim 1 above and in further view of Park et al. KR 20160139921.
Regarding Claims 4 and 5: Legarth discloses as discussed above in claim 1. Legarth does not disclose wherein the composition further comprises carotenoid (claim 4); wherein the composition comprises at least 0.0001 g carotenoid (at least 0.00001%) (claim 5).
Park discloses a fermented algae composition containing fermented algae and mung bean or peas [abstract; pg. 7]. Park discloses including carotenoids and specifically fucoxanthin in the composition at 0.05% to 1% or vitamin C (an antioxidant) at about 1.6% [pg. 2, 1st paragraph; pg. 3, pg. 7, Test 4].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Legarth to include a carotenoids as in Park in order to slow the deterioration of the food product, to accelerate the rate of fermentation, and to provide the effects of neutralizing free radicals in the body upon consumption.
Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Legarth (US 2016/0128357) in view of “Legarth 2” WO 2020/038897.
Regarding Claim 15: Legarth discloses a fermented seaweed and/or algae and fermented plant material/combinatorial where the fermented plant material can be from leguminous plants [abstract; 0032; 0043; 0044; 0083; 0113; 0116; 0118; 0119]. Legarth discloses that the fermented seaweed/algae material is more than 10% of the composition or 10 to 55% of the composition [0112]. Legarth discloses that plant material for example when it is rapeseed is present at more than 17% and more than 40% [0117]. Legarth does not explicitly disclose the amount of plant material when it is the proteinaceous/legume material. Legarth discloses a food and/or feed product comprising a fermented seaweed and fermented legume composition [abstract; 0044; 0139]. Legarth discloses using the composition in feed for animals [0138].
Since the combinatorial composition is a mixture of seaweed/algae, lactic acid bacteria and plant material and since the amount of algae/seaweed can be more than 10% and the amount of lactic acid can be between 0.1 to 10%, then the remaining composition can be said to contain the legume plant material around at least 20%; or at least more than 40%, which is in line with the amount of rapeseed allowed for; or at least 84.9% where algae/seaweed is present at 10.1% and lactic acid is present at 5%.
Although Legarth does not explicitly disclose wherein the fermented plant material is at least 60% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Legarth overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Legarth does not explicitly disclose administering the fermented composition to a human or animal wherein the administering leads to - increasing the color in a salmonoid;- increased increasing growth of fish and/or animals;- reducing mortality;- increased increasing feed conversion; and/or - reduced reducing feed consumption of fish and/or animals.
Legarth 2 discloses an animal feed product comprising a feed compound and a fermented ingredient comprising fermented seaweed/algae and fermented plant material [abstract]. Legarth 2 discloses that the fermented plant material can be soybean meal, peas or lupins amongst other plants [pg. 6, lines 20-29; pg. 9, line 17]. Legarth 2 discloses that the animal feed product contains 0.5% to 50% of the fermented ingredient [claim 7]. Legarth 2 discloses that the fermented ingredient contains at least 5% lactic acid relative to the animal feed product [pg. 10, lines 30-36]. Legarth 2 discloses increased nutritional uptake of an animal consuming the fermented composition [page 13, lines 37 and 38]. Legarth 2 discloses administering the fermented feed to animals to improve the feed conversion rate of an animal [pg. 16, lines7-9].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify Legarth to include it in the administration of animal feed to animals and that it would have improved feed conversion as in Legarth 2 since they are both drawn to compositions containing lactic acid fermented seaweed/algae and proteaceous plant material and both are drawn to enhancing nutrition.
However, the limitations following the step of administering the feed in claim 15 are recitations of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding Claim 17: Legarth discloses as discussed above in claim 1. Legarth discloses where the fermented plant material can be from leguminous plants [abstract; 0032; 0043; 0044; 0083; 0113; 0116; 0118; 0119]. Legarth does not disclose that the plant material is soybean.
Legarth 2 discloses that a fermented seaweed/algae and plant material composition. Legarth 2 discloses that the fermented plant material can be soybean meal, peas or lupins amongst other plants [pg. 6, lines 20-29; pg. 9, line 17].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Legarth to include soybean as the plant material as in Legarth 2 since soybean is a readily available, inexpensive, versatile, and a good source of protein and since Legarth discloses that its invention include leguminous plants.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Legarth (US 2016/0128357) and Park et al. KR 20160139921 as applied to claim 5 above and in further view of Hirano et al. JP 2003169605 Machine Translation.
Regarding Claim 16: Legarth as modified discloses as discussed above in claim 5. Legarth does not disclose wherein the carotenoid is astaxanthin and/or β-carotene.
Park discloses a fermented algae composition containing fermented algae and mung bean or peas [abstract; pg. 7]. Park discloses including carotenoids and specifically fucoxanthin in the composition at 0.05% to 1% or vitamin C (an antioxidant) at about 1.6% [pg. 2, 1st paragraph; pg. 3, pg. 7, Test 4].
Hirano discloses a feed additive containing fermented seaweed and vegetables [abstract]. Hirano discloses including 1-10% antioxidants and discloses β-carotene as an antioxidant [0033].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to further modify the composition of Legarth to include β-carotene as the carotenoid in the fermented feed as in Hirano since Park which modified Legarth discloses carotenoids as antioxidants, since β-carotene is a carotenoid.
Response to Arguments
16. The 101 rejection of claim 15 has been withdrawn due to the amendment to the claim.
17. The 112(b) rejections of claims 3 and 5 have been withdrawn due to the amendments to the claims.
18. The 102(a)(1) rejections of claims 1, 13, 14, and 15 as being anticipated by Legarth (US 2016/0128357) have been withdrawn due to the amendments to the claims.
19. The 102(a)(1) rejections of claims 1, 4 and 5 as being anticipated by Park et al. KR 20160139921 have been withdrawn due to the amendments to the claims.
20. The 102(a)(1) rejections of claims 1 and 4 as being anticipated by I et al. (KR 20140056802) have been withdrawn due to the amendments to the claims.
Pertinent Prior Art
21. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Cai et al. CN 102342449 Feb 2012 Machine Translation discloses a fermented mixture of soybeans and seaweed wherein the soybean to seaweed ratio is 100:3-10 (~97% -90%) [abstract].
Conclusion
22. 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.
22. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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