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 is in response to the application filed on February 24, 2023. The earliest effective filing date of the application is August 28, 2020.
Priority
The present application is a 371 National Stage Application of PCT/KR2021/011326 which has a filing date of August 25, 2021.
Status of Application
The amendment filed November 10, 2025 with the Applicant Remarks has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 5, 7, 12 – 18, and 20 – 25
Withdrawn claims: 12 – 18 and 20 – 25
Previously cancelled claims: 8 and 19
Newly cancelled claims: 6 and 9 – 11
Amended claims: 1
Claims currently under consideration: 1 – 5 and 7
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: The previous objection of claim 10 has been withdrawn due to the cancellation of claim 10.
Withdrawn Rejections: All previous rejections of claims 6 and 9 – 11 are withdrawn due to the cancellation of claims 6 and 9 – 11. The previous rejection under 35 U.S.C § 103 over Brooks of claims 1 – 5 and 7 are withdrawn in light of Applicant’s amendments.
35 U.S.C § 103 Rejections: A new rejection under 35 U.S.C § 103 over Brooks of claims 1 – 5 and 7 is made as necessitated by Applicant’s amendments.
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 – 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al. (US 20100297296 A1 – IDS Filed on February 24, 2023) in view of Borzelleca et al. (Evaluation of the Safety of Tara Gum as a Food Ingredient: A Review of the Literature. Journal of the American College of Toxicology. Vol 12, Iss 1, pp. 81 – 89. (1993) and Banerjee et al. (Food Gels: Gelling Process and New Applications. Critical Reviews in Food Science and Nutrition. Vol 52. Iss 4. Pp. 334 – 346. (2012)).
Regarding claim 1, Brooks teaches an algal milk consisting of:
8% dried whole algal cells containing about 40% lipid;
200 units of vitamin D;
200 units of vitamin A;
0.2% xanthan gum; and
water to 100% (i.e., aqueous liquid medium – [0285]).
Brooks teaches microalgae (i.e., algal cells), such as Chlorella, can be capable of heterotrophic growth ([0099]). Brooks teaches when Chlorella is grown in heterotrophic conditions where the carbon source is a fixed carbon source and in the absence of light, the normally green colored microalgae has a yellow color, lacking or is significantly reduced in green pigmentation (i.e., chlorophyll deficient – [0099]). Brooks teaches the food product contains heterotrophically grown microalgae (i.e., algal cells) of reduced chlorophyll content (i.e., chlorophyll deficient) compared to phototrophically grown microalgae (i.e., algal cells - [0142]). Therefore, Brooks teaches the use of chlorophyll-deficient Chlorella as the dried whole algal cells in the algal milk.
While the algal milk as taught by Brooks comprises 8% dried whole algal cells (i.e., chlorophyll-deficient chlorella), Brooks teaches the food composition formed by the combination of microalgal biomass and/or product derived therefrom comprises at least 0.1% w/w or v/v microalgal biomass (i.e., chlorophyll-deficient chlorella) or microalgal oil ([0212]).
The range of dried whole algal cell (i.e., chlorophyll-deficient chlorella) content, at least 0.1% w/w, as disclosed by Brooks, overlaps with the claimed range of 0.5 – 5% by weight based on the total weight of the composition. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
While Brooks does not explicitly state the water in the algal milk can be replaced with milk, Brooks teaches dried algal biomass can be converted into a food product by a consumer or food service company simply by adding a liquid, such as water or milk, and optionally mixing, and/or cooking without adding oils or fats ([0240]). Such mixtures can be used for making cakes, breads, pancakes, waffles, drinks (such as algal milk), sauces and the like ([0240]). MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). One of ordinary skill in the art would have substituted water with milk before the effective filing date of the application because milk, like the water in the algal milk of Brooks is an aqueous liquid medium suggested by Brooks. Additionally, it would have been obvious to try any of the explicitly stated liquids suggested for reconstituting algal cells (water and milk) in the algal milk of Brooks. Therefore, it would have been obvious to one of ordinary skill in the art to have replaced the water in the algal milk with milk.
Brooks does not teach the algal milk contains tara gum.
Borzelleca teaches tara gum has high water-holding capacity and effective protective colloidal characteristics, and its solutions have relatively low loss of viscosity after heating at 120°C (p. 82, paragraph 3). Borzelleca teaches like locust bean gum, tara gum has synergistic gel-strength enhancing effects when combined with carrageenan, xanthan, or agar (p. 82, paragraph 3). Borzelleca teaches the physical properties of tara gum suggest that it is a potential replacement for locust bean gum alone or in combination with it or other gums as a formulation aid, stabilizer, and thickener for food applications (p. 82, paragraph 4).
Brooks and Borzelleca are combinable because they are concerned with the same field of endeavor, namely, stabilizers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included tara gum as a complimentary stabilizer to xanthan gum in the algal milk of Brooks, as taught by Borzelleca because tara gum in an effective stabilizer and thickener that has synergistic gel-strength enhancing effects when combined with xanthan. Further, Banerjee teaches hydrocolloids (i.e., xanthan and tara gum) thicken, gel, and stabilize aqueous dispersions (p. 334, paragraph 3). Therefore, one of ordinary skill in the art would have had reasonable expectation of success before the effective filing date of the application to tailor the xanthan and tara gum content of the algal milk (i.e., dispersion) of Brooks to achieve a stabilized composition.
While Brooks does not teach the weight ratio of xanthan gum to tara gum is in the range of 7:3 – 9:1, one of ordinary skill in the art would have adjusted the ratio of xanthan gum to tara gum during routine optimization to find the algal milk with the most synergistic gel-strength enhancement. MPEP §2144.05(II) states where 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). The claimed weight ratio of xanthan gum to tara gum, 7:3 – 9:1, would thus be obvious.
While Brooks does not teach xanthan gum and tara gum (i.e., the stabilizer) are present in an amount of 0.1 to 0.3 % by weight based on the total weight of the composition, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included tara gum as a complimentary stabilizer to xanthan gum in the algal milk of Brooks such that the total amount of xanthan gum and tara gum makes up 0.1 to 0.3% by weight of the algal milk, as taught by Borzelleca, because tara gum in an effective stabilizer and thickener that has synergistic gel-strength enhancing effects when combined with xanthan.
Regarding claim 2, while Brooks does not teach the dried whole algal cells are a powder obtained by drying a biomass obtained through culturing a chlorophyll-deficient chlorella strain, this recitation is directed toward a method of production of the product of claim 2. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claims 2 have been considered when assessing the patentability of the product.
The structure implied by claim 2 is interpreted to be a beverage composition comprising chlorophyll-deficient chlorella; a mixture of xanthan gum and tara gum as a stabilizer; and an aqueous liquid medium.
The algal milk product comprising dried whole algal cells, xanthan gum, tara gum, and water, as described above, is encompassed by claim 2. Therefore, the product of claim 2 is rendered obvious by Brooks in view of Borzelleca.
Regarding claim 3, Brooks teaches the microalgae in the algal milk is a strain of Chlorella protothecoides ([0013]). Brooks teaches Chlorella protothecoides was used to generate strains lacking in or with reduced pigmentation (i.e., chlorophyll deficient) using a combination of UV and chemical mutagenesis (i.e., the UV light is used prior to heterotrophic cultivation – [0102]). Brooks describes Chlorella protothecoides successfully being cultivated under heterotrophic conditions using cellulosic-derived sugars from cornstover and sugar beet pulp ([0112]; Example 20). Brooks teaches when Chlorella is grown in heterotrophic conditions where the carbon source is a fixed carbon source (i.e., cellulosic-derived sugars from cornstover and sugar beet pulp) and in the absence of light, the normally green colored microalgae has a yellow color, lacking or is significantly reduced in green pigmentation (i.e., chlorophyll deficient – [0099]). Therefore, Brooks teaches the use of chlorophyll-deficient Chlorella protothecoides as the dried whole algal cells in the algal milk.
Regarding claim 4, Brooks teaches the microalgae in the algal milk is a strain of Chlorella protothecoides ([0013]). Brooks teaches Chlorella protothecoides was used to generate strains lacking in or with reduced pigmentation (i.e., chlorophyll deficient) using a combination of UV and chemical mutagenesis (i.e., the UV light is used prior to heterotrophic cultivation – [0102]). Brooks describes Chlorella protothecoides successfully being cultivated under heterotrophic conditions using cellulosic-derived sugars from cornstover and sugar beet pulp ([0112]; Example 20). Brooks teaches when Chlorella is grown in heterotrophic conditions where the carbon source is a fixed carbon source (i.e., cellulosic-derived sugars from cornstover and sugar beet pulp) and in the absence of light, the normally green colored microalgae has a yellow color, lacking or is significantly reduced in green pigmentation (i.e., chlorophyll deficient – [0099]). Therefore, Brooks teaches the use of chlorophyll-deficient Chlorella protothecoides as the dried whole algal cells in the algal milk.
While Brooks teaches a Chlorella protothecoides species obtained with a sugar in the absence of light, this recitation is directed toward a method of production of the product of claim 4. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claims 4 have been considered when assessing the patentability of the product.
The structure implied by claim 4 is interpreted to be a beverage composition comprising chlorophyll-deficient Chlorella protothecoides; a mixture of xanthan gum and tara gum as a stabilizer; sugar; and an aqueous liquid medium.
Brooks teaches the carbohydrate component of the biomass (i.e., algal cells) is between and 2%-8% free sugar including sucrose, by dry weight ([0012]).
The algal milk product comprising dried whole Chlorella protothecoides cells, xanthan gum, tara gum, sugar, and water, as described above, is encompassed by claim 4. Therefore, the product of claim 4 is rendered obvious by Brooks in view of Borzelleca.
Regarding claim 5, Brooks teaches the biomass comprises at least 40% protein by dry weight ([0014]).
The range of biomass (i.e., chlorophyll-deficient chlorella) protein content, at least 40% protein by dry weight, as disclosed by Brooks, overlaps with the claimed range of at least 45% by weight of microalgae proteins based on a dry weight. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 7, Brooks does not teach the algal milk contains agar.
Response to Arguments
Applicant's arguments filed November 10, 2025 have been fully considered but they are not persuasive.
Applicant argues the algal milk disclosed by Brooks does not comprise milk or soymilk, therefore Brooks does not teach all elements of claim 1, as amended (p. 6, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. See the rejection of claim 1 above.
Applicant argues the gel-strength enhancing effect of tara gum, as described in Borzelleca, has nothing to do with the claimed invention because the claimed composition, as well as the algal milk taught by Brooks, is in the form of dispersion, not in the form of gel. Therefore, a person of ordinary skill in the art would not have been motivated to combine Brooks and Borzelleca to reach the present invention. (p. 7, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. Banerjee teaches hydrocolloids (i.e., xanthan and tara gum) thicken, gel, and stabilize aqueous dispersions (p. 334, paragraph 3). The fact that the claimed composition and the composition of Brooks are dispersions does not exclude them from also forming gels.
Conclusion
No claims are allowed.
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 LARK JULIA MORENO whose telephone number is (571)272-2337. The examiner can normally be reached 6:30 - 4:30 M - F.
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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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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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