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 of Group I, claims 1-10 and the dairy based beverage species in the reply filed on September 30, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 11-19 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
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 1-10 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 recites “unrefined and unmodified red seaweed flour”. Although the instant specification states that “unrefined” and “unmodified” is intended to mean without isolating, purifying, or chemically modifying the individual components of the seaweed, such as carrageenan (page 6 lines 1-5), as the disclosure further states the flour is formed by drying (page 6 lines 3-5), which is isolating the materials from water, can be treated with a salt solution or heated to reduce the microorganisms which could chemically modify the composition (page 7 lines 1-17), the term “unrefined and unmodified” in claim 1 is unclear. It is additionally noted that the term “modify” as used in the definition is extremely broad and would include any number of processing steps.
The terms “rich” and ”low” in claim 2 are relative terms which renders the claim indefinite. The terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what scope the claimed terms would and would not encompass. For example, it is unclear as to if 15% kappa carrageenan would encompass a flour rich in said carrageenan, or if 15% iota carrageenan would encompass a flour low in said carrageenan. The recited terms are relative based on some unknown benchmark and thus are unclear. It is suggested that applicant amend the claim to specifically recite the intended ranges.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 7 recites the broad recitation between 70:30 and 90:10, and the claim also recites preferably between 80:20 and 85:15 which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Similarly, claim 9 recites the broad recitation from 900 to 2000kDa, and the narrow recitation of preferably from 1000 to 1500 kDa.
Claim 8 recites the limitation "the kappa-carrageenan in the non-coproessed red seaweed flour" in claim 7. There is insufficient antecedent basis for this limitation in the claim. Neither a “kappa carrageen” nor a “non-coprocessed red seaweed flour” were recited in the claims from which claim 8 depends and thus it is unclear as to if the terms meant to refer to another claim, such as claim 3 which recites kappa carrageenan, or if the terms contain a typographical error and are meant to refer to the coproessed red seaweed flour.
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.
Notes
“Coprocessed” means a process that effectively reduces the size of at least some if not all of the particles to a colloidal size and is also known as co-attrition (page 4 lines 14-19).
Claims 1, 2, 6, 7, 9, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Tuason et al (WO 03/096976) in view of Kamada et al (US 6,270,830).
Regarding claims 1 and 6, Tuason et al (Tuason) teaches of a stabilizer composition by teaching of a colloid microcrystalline cellulose composition co-attrited (i.e. coprocessed) with a hydrocolloid that is recovered and dispersed as a stabilizer (abstract, page 3 lines 4-6, page 5 lines 19-20, page 11 line 22, and page 12 lines 13-16 and 19-21).
Tuason is not specific to the hydrocolloid as an unrefined and unmodified seaweed flour derived from red seaweed of the Rhodophyta class as recited in claim 1, or to the seaweed as preferably derived from a genera including Eucheuma as recited in claim 6.
Tuason teaches that the hydrocolloids include seaweed polysaccharides including kappa and iota carrageenan, and mixtures thereof in a refined, semi-refined, or unrefined state (page 6 lines 19-23, page 7 lines 2-5, and claim 5). Tuason teaches in processing the product, the hydrocolloid, and thus the unrefined carrageenan, is added in the form of a powder (page 9 lines 10 and 14-15).
Kamada teaches a stabilizer ground and mixed, i.e. coprocessed or reduced in size, with 10-90% fine cellulose and 10-90% gelling agent preferably including semirefined carrageenan, kappa carrageenan, and iota carrageenan (abstract, column 5 lines 14-25, column 2 line 67 through column 3 line 2-13). Kamada teaches that kappa and iota carrageenan are contained within red algae and can be extracted with an alkali, purified, and then recovered (column 3 lines 13-17). Kamada teaches that semi refined carrageenan is obtained without extraction by immersing red algae in alkali followed by washing, drying, and grinding; is cited under the named processed Eucheuma seaweed; and contains kappa carrageenan as the major component (column 3 lines 18-26). It is noted that as discussed above the term unrefined and unmodified are unclear and although Kamada teaches of “semirefined” dried seaweed, as it is processed in a manner as disclosed, see for example, instant specification page 7 lines 1-17, it is considered to encompass an unmodified and unrefined seaweed flour as claimed.
Regarding the hydrocolloid as an unrefined seaweed powder derived from red seaweed of the Rhodophyta class as recited in claim 1, preferably derived from a genus including Eucheuma as recited in claim 6, as Tuason teaches the hydrocolloid as seaweed carrageenin in an unrefined state, and Kamada teaches that carrageenan is derived from red (Rhodophyta) Eucheuma seaweed it would have been obvious to one of ordinary skill in the art for the unrefined seaweed carrageenan of Tuason to be unrefined carrageenan, i.e. unrefined red seaweed of Rhodophyta Eucheuma with kappa carrageenan as a major component in view of Kamada. In other words, to use a known source of carrageenan, i.e. Rhodophyta Eucheuma with majority component of kappa carrageenan, wherein kappa carrageenan was disclosed would have been an obvious suggestion of the prior art. Furthermore, as Tuason teaches the hydrocolloid is used in the production process in powder form, it would have been obvious for the unrefined seaweed to be in powdered form, including as a flour.
Regarding the hydrocolloid as an unmodified as recited in claim 1, as Tuason discloses carrageenan, but does not require its modification (all), specifically teaching that it may be processed with no, low or high levels of alkali, thus encompassing, no alkali treatment (page 7 lines 3-4) the teachings of Tuason encompasses, or at least suggest an unmodified seaweed flour, wherein it would have been obvious and well within the purview of one of ordinary skill in the art to use the element as disclosed without undisclosed modifications. The position of the office is further supported as Tuason teaches the hydrocolloids are preferably natural (page 7 lines 14-16), which at least suggests an unmodified state of the hydrocolloid, i.e. red seaweed flour.
Regarding the flour as derived from seaweed rich in kappa carrageen and low in iota carrageen as recited in claim 2, as discussed above the claimed terms are unclear. Regardless, as it would have been obvious for the unrefined carrageenan powder, i.e. seaweed flour of Kamada to be derived from known sources of carrageen including red (Rhodophyta) Eucheuma seaweed as taught by Kamada, and Kamada further teaches the major component of said seaweed can be kappa carrageen or iota carrageenan, the use of a seaweed “rich” in kappa carrageen and “low” in iota-carrageenan would have been obvious to one of ordinary skill in the art. It is noted that the term low is considered to encompass zero.
Regarding the weight ratio of colloidal microcrystalline cellulose (MCC) to red seaweed flour as between 70:30 and 90:10 as recited in claim 7, as discussed above, the claim is unclear. As discussed above, it would have been obvious for the hydrocolloid of Tuason to be red seaweed flour. Tuason teaches the ratio of mcc to hydrocolloid is 50:50 to 90:10 (page 7 lines 25-28), and thus the teachings of the prior art encompass a ratio of mcc to red seaweed flour within the claimed range.
Regarding the stabilizer composition as having an initial viscosity of 50-1000mPas when measured as a 2.6% dispersion in deionized water on a Brookfield RV viscosimeter spindle 3 at 20rpm and 20C as recited in claim 9, or a 24 hour viscosity of 510-5000mPas when measured as a 2.6% dispersion in deionized water on a Brookfield RV viscosimeter spindle 3 at 20rpm and 20C as recited in claim 9, Tuason is not specific to a general range of viscosities for the stabilizer compositions, however, exemplifies the product containing kappa carrageenan with a 2.6% dispersion in deionized water having an initial viscosity of 725cps (1,100mPas) and a 24 hour viscosity of 3,350mPas (Example 5). It would have been obvious for the product of Tuason to have about the same properties as the product examples, because when forming a product of the prior art, one of ordinary skill in the at would expect the method of the prior art result in a product with similar properties to those disclosed in the examples. Thus, for the stabilizer of Tuason to have an initial viscosity of about 725mPas and a 24-hour viscosity of about 3,350mPas when measured at 2.6% in deionized water would have been an obvious suggestion of the prior art. Furthermore, as no temperature was disclosed for measurement, it would be understood, or at least obvious that the temperature encompasses room temperature including 20C. Thus, a product with the viscosity as claimed is considered obvious over the teachings of the prior art. It is noted that regardless of the measurement apparatus, i.e. Brookfield viscometer with 3 spindle and 20rpm, or other apparatus, the viscosity of the product would be the same under the same temperature and dilution conditions.
Claims 3-5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Tuason et al (WO 03/096976) in view of Kamada et al (US 6,270,830), as evidenced by Agoda-Tandjawa et al (WO 2020/076698).
As discussed above, Tuason teaches of a stabilizer composition comprising colloid microcrystalline cellulose co-processed with a hydrocolloid, wherein it would have been obvious for the hydrocolloid to be unrefined and unmodified red seaweed flour derived from red seaweed Rhodophyta Eucheuma with kappa carrageenan as a major component. Tuason teaches that the hydrocolloids include seaweed polysaccharides including kappa and iota carrageenan, and mixtures thereof in an unrefined state (page 6 lines 19-23, page 7 lines 2-5, and claim 5).
Tuason is silent to the red seaweed flour as comprising 25-70% dry weight kappa-carrageenan as recited in claim 3, preferably 40-70% as recited in claim 4, or wherein the red seaweed flour comprises less than 10% dry weight iota carrageenan as recited in claim 5, and to the kappa-carrageenan in the non-processed red seaweed flour as having an average molecular weight of 900-2000kDa as recited in claim 8.
Regarding the red seaweed flour as comprising 25-70% dry weight kappa-carrageenan as recited in claim 3, preferably 40-70% as recited in claim 4, or wherein the red seaweed flour comprises less than 10% dry weight iota carrageenan as recited in claim 5, as discussed above, it would have been obvious for the hydrocolloid of Tuason to be unrefined and unmodified (non-extracted) red seaweed flour derived from red seaweed Rhodophyta Eucheuma with kappa carrageenan as a major component in view of Tuason and Kamada. As evidenced by Agoda-Tandjawa et al (AT) non-extracted seaweed contains polysaccharides, including carrageenan, in essentially their naturally occurring amounts (paragraph 21). Thus, as the prior art teaches the use of the same unrefined and unmodified, i.e. unextracted, seaweed as claimed and disclosed, the carrageenan composition of the seaweed material as claimed is considered encompassed, or at least obvious over the teachings of the prior art. Alternatively, as Tuason teaches the use of kappa and/or iota carrageenan, and it would have been obvious to use a seaweed with a majority kappa carrageenan in view of Kamada, the combination of the prior art would result in the kappa carrageenan in a majority amount, such as 50% or more dry weight, and for the iota carrageenan to be less than 50% by dry weight. To use the ranges suggested by the prior art, wherein no more specific guidance is given would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding the kappa-carrageenan in the non-processed red seaweed flour as having an average molecular weight of 900-2000kDa as recited in claim 8, as discussed above, the claimed limitation is unclear. Regardless, as evidenced by Agoda-Tandjawa et al (AT) non-extracted seaweed contains polysaccharides, including carrageenan, in essentially their naturally occurring amounts (paragraph 21). Thus, as the prior art teaches the use of the same unrefined and unmodified, i.e. unextracted, seaweed as claimed and disclosed, the carrageenan of the seaweed material as claimed is considered encompassed, or at least obvious over the teachings of the prior art. Furthermore, it is noted that the claimed limitation appears to be a product by process limitation, in which a material to be used to make the claimed product is characterized. A product by process claim is considered in as much as it affects the final product. In the instant case as the molecular weight could change during processing, such as with co-attrition, the claim thus imparts the inclusion of a kappa carrageenan to the final product, which is not limited to the recited average molecular weight.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792