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
This Non-Final Office Action is responsive to the communication received 01/06/2026.
Election/Restrictions
Applicant’s election without traverse in the Reply filed on 01/06/2026 of Group II, claims 2-3 is acknowledged.
The Restriction/Election Requirements are deemed proper and are made FINAL.
Claims 1-10 are pending.
Claims 1 and 4-10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the Reply filed on 01/06/2026.
Claims 2-3 are under examination in this Office Action.
Claim Rejections - 35 USC § 112 - (d)
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 the fourth paragraph of 35 U.S.C. 112 (pre-AIA ):
Subject to the [fifth paragraph of 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.
Claim 3 is/are rejected under 35 U.S.C. 112(d) or 35 U.S.C. 112 (pre-AIA ), fourth 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 2 is directed towards SEQ ID NOs 12, 4 and 8 and Claim 3 is directed towards SEQ ID NOs 4 to 7, 10 to 11 and 13, thus Claim 3 broadens the limitations of claim 2 by adding additional SEQ ID NOs not recited in independent claim 2.. 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 § 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.
Claim 2 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by McCarren et al. (2007) Amino Acid Sequence Search Sequence 8 Result 1 UniProt downloaded 01/26/2026 pages 1 to 16 (hereinafter referred to as "McCarren")
It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter which there is reason to believe inherently includes functions that are newly cited or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to "prove that subject matter shown to be in the prior art does not possess characteristic relied on" (205 USPQ 594, second column, first full paragraph).
Claim 2 include limitations of and is capable of exerting proton translocation activity higher than that of a rhodopsin having an amino acid sequence set forth in SEQ ID NO: 3 that is/are reasonably interpreted as at best either a characteristic or an intended use limitation.
With regards to claim 2, McCarren teaches:
a) as in claim 2, SEQ ID NO 8 (see entire document especially pages 15-16).
GenCore version 6.5.2
Copyright (c) 1993 - 2026 Biocceleration Ltd.
OM protein - protein search, using sw model
Run on: January 26, 2026, 09:56:17 ; Search time 46 Seconds
(without alignments)
390720.870 Million cell updates/sec
Title: US-18-045-012B-4
Perfect score: 1305
Sequence: 1 MTILSKKGFKVALATVAAGI..........NKIAFGVIIWNVAVTESESK 256
Scoring table: BLOSUM62DX
Gapop 10.0 , Gapext 0.5
Searched: 182486956 unique seqs, 69584646596 residues
Total number of hits satisfying chosen parameters: 182486956
Minimum DB seq length: 0
Maximum DB seq length: 2000000000
Post-processing: Minimum Match 0%
Maximum Match 100%
Listing first 150 summaries
Database : UniProt_202504:*
RESULT 1
A4GHN5_9BACT
Query Match 100.0%; Score 1305; Length 256;
Best Local Similarity 99.2%;
Matches 254; Conservative 2; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MTILSKKGFKVALATVAAGILPASAHAATLXPNDYVGISFWLISMALIAATAFFFIETTR 60
||||||||||||||||||||||||||||||:|||||||||||||||||||||||||||||
Db 1 MTILSKKGFKVALATVAAGILPASAHAATLAPNDYVGISFWLISMALIAATAFFFIETTR 60
Qy 61 VEGKWKTSLTVSGLVTLVAAVHYFYMRDVWVSTGESPTVYRYIDWLITVPLLMVEFYLIL 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 VEGKWKTSLTVSGLVTLVAAVHYFYMRDVWVSTGESPTVYRYIDWLITVPLLMVEFYLIL 120
Qy 121 RAITKVSXGIFWRLMIGTVVMLVGGYAGEIGYISATLGFIIGMLGWAYILYEIFAGEASK 180
|||||||:||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 RAITKVSIGIFWRLMIGTVVMLVGGYAGEIGYISATLGFIIGMLGWAYILYEIFAGEASK 180
Qy 181 VAADEAPASVQSAFSTMRWIVTIGWAIYPLGYFMGYMNGAVSDEALNIIYNFADVWNKIA 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 VAADEAPASVQSAFSTMRWIVTIGWAIYPLGYFMGYMNGAVSDEALNIIYNFADVWNKIA 240
Qy 241 FGVIIWNVAVTESESK 256
||||||||||||||||
Db 241 FGVIIWNVAVTESESK 256
Thus, McCarren anticipates the present claims.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Christian Boesen whose telephone number is 571-270-1321. The Examiner can normally be reached on Monday-Friday 9:00 AM to 5:00 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Heather Calamita can be reached at 571-272-2876. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice .
/CHRISTIAN C BOESEN/Primary Examiner, Art Unit 1684
Prosecution Insights