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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-8) in the reply filed on December 15, 2025 is acknowledged. The traversal is on the ground(s) that the PCT office has not raised issues of Unity of Invention. This is not found persuasive because the results of the PCT international phase and the Int’l preliminary report on patentability are not legally binding on the USPTO during the U.S. national phase.
The requirement is still deemed proper and is therefore made FINAL.
Request for Information under 37 C.F.R. 1.105
Applicant and the assignee of this application are required under 37 CFR 1.105 to provide the following information that the examiner has determined is reasonably necessary to the examination of this application:
E. Ibanez et al. (conference paper presented at 12th International Symposium on Supercritical Fluids, 2018), cited in the present specification, p. 5 [0022].
The information is required to enter in the record the art suggested by the applicant as relevant to this examination. Applicant indicates that the reference describes specific conditions of supercritical fluid extraction (SFE) of Isochrysis galbana, which include applying the CO2 extraction, setting the pressure to 250-400 bar and 40-70° C, etc. As the reference discloses relevant teachings closely related to the presently claimed subject matter, the examiner requests that the reference be submitted for further examination.
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.
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 1-7 and 14 are rejected under 35 U.S.C. 103 as obvious over unpatentable over Gilbert-Lopez et al. (“Downstream processing of Isochrysis galbana: a step towards microalgal biorefinery”, Green Chem, 2015, 17 4599) (“Gilbert-Lopez” hereunder).
Claim 1 is directed to a supercritical fluid CO2 extract of Isochrysis sp. and/or Tisochrysis sp.,. comprising
(a) not more than 1.5 % b.w. of carotenoids,
(b) not more than 2.0 % b.w. of chlorophylls, and
(c) at least 15 % b.w. of free fatty acids,each weight percentage amount based on the total weight of the extract,
wherein the extract has a gardner color value of not more than 9 at an extract concentration of 0.018% in oil.
Gilbert-Lopez study discloses supercritical fluid CO2 extract yields of Isochrysis galbana having less than 1.5 % b.w. of carotenoids and less than 2 % b.w. of chlorophyll. See below. Table 1 of the reference shows that the extraction of lipids and pigments from I. galbana is highly dependent on pressure and temperature – for example, at 200 bar and 50°C, the carotenoids and chlorophyll contents are about 0.5-0.56 % and 0.08-0.12 %, respectively. See the present claims 2-5.
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The reference further teaches using ethanol as a co-solvent and manipulate the temperature to extract medium polar compounds including free fatty acids. See p. 4603, 3.2 Design of the conditions of sequential extraction of Isochrysis galbana. Thus, following the teachings and suggestion to use sequential extraction method to fractionate targeted compounds would have been prima facie obvious. See the present claims 1 and 6.
The color value as presently claimed would have been an inherent or obvious result of the purified product with reduced level of pigments. See the present claim 1.
Regarding claim 7, Gilbert-Lopez teaches only non-polar lipids were extracted from the SFE CO2 method and suggests using other extraction methods to separate polar lipids (phospholipids and glycolipids). See p. 4607, 3.3.3, Lipid profile at the different steps of the integrated process.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Gilbert-Lopez to claims 1-7 as above, and further in view of Delgado Ramallo (ES 2594602 B1, published on December 21, 2016, cited in IDS) and Reddy et al. (US 20150140619 A1, published on May 21, 2015) (“Reddy” hereunder).
Although Gilbert-Lopez fails to disclose the alkenone contents of the extract, further removal of undesirable components to purify the extract would have been an obvious endeavor. For example, Delgado Ramallo teaches using purified omega 3 fatty acids (EPA and DHA) in food, nutraceuticals and cosmetic applications.
Reddy teaches that C-10, C12, C17 hydrocarbon alkenone can be isolated from Isochrysis microalgae with polar solvents, including ethanol, etc. See abstract, [0043].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of the Gilbert-Lopez and further purified the extract to remove undesired components such as long chain hydrocarbon alkenones using known methods, as motivated by Delado Ramallo and Reddy. As Delado Ramallo teaches application of purified extracts from Isochrysis microalgae, and Reddy teaches available separation methods to remove the hydrocarbon alkenones from the lipid extracts of Isochrysis sp., the skilled artisan would have had a reasonable expectation of successfully combining the teachings of the references and removing the impurifies from the lipid extract.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Gilbert-Lopez as applied to claims 1-7 as above, and further in view of Minatelli et al. (WO 2015142999 A1, published on September 24, 2015, cited in IDS)(“Minatelli” hereunder).
Although Gilbert-Lopez generally teaches that the refined algae extracts can be used in cosmetic industries, the reference does not specifically mention cosmetic formulations.
Minatelli teaches and suggests that the fatty acids extracted from Isochrysis sp. are useful in cosmetic preparations including moisturizing creams, sunblock products, and other topical cosmetic products known in the art. See [00114]. Using supercritical fluid CO2 exaction to obtain the algae-based oil is suggested. See [0076].
It would have been obvious to one of ordinary skill in the at before the effective filing date of the present application to modify the teachings of Gilbert-Lopez and make cosmetic composition such as a moisturizer with the extracted lipids from Isochrysis galbana as motivated by Minatelli. The skilled artisan would have been motivated to do so with a reasonable expectation of success in combining the teachings of the references, as 1) both references disclose SFE Co2 extracts from the same marine algae and 2) the latter teaches application of the fatty acids extracted from marine algae including Isochrysis species in cosmetics and suggests that specific applications of the algal oils.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Gilbert-Lopez as applied to claims 1-7 as above, and further in view of Hermann et al. (US 20100080761 A1, published on April 1, 2010) (“Hermann” hereunder).
Although Mintatelli generally suggests using the supercritical fluid CO2 exract of Isochrysis sp. In known topical formulations, the reference specifically fails to teach using it with dihydroxyacetone (DHA) and/or erythulose.
Hermann disclose self-tanning formulation comprising DHA and extracts of Isochrysis sp. See Table 1, example formulations 6 and 7.
Given the teachings of using the SFC extract of Isochrysis sp. In topical formulations, one of ordinary skill in the art before the effective filing date of the present application would have been obviously motivated to look to prior art such as Hermann for specific formulations comprising extracts from the marine algae. As the latter shows the application of the Isochrysis sp in a tanning composition comprising dihydroxyacetone, a cosmetic composition comprising the SFE extract of Isochrysis sp. Of Gilbert-Lopez and dihydroxyacetone in a self-tanning composition would have been an obvious combination.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Chun et al. (KR 20020000660A, published January 5, 2002) disclose pigment extraction of chlorophyll and carotenoid from seaweed using supercritical and subcritical CO2 with entrainer. The reference teaches that the pressure, temperature, and the flow rate of carbon dioxide and the cosolvent are adjusted to control the extraction of chlorophyll and carotenoid pigments from algae.
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/GINA C JUSTICE/ Primary Examiner, Art Unit 1617