DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
2. The amendment, filed 01/06/26, has been entered. Claims 1-16 are pending and under examination. Claims 7-16 are newly added. Claim 1 is amended.
Withdrawal of Objections/Rejections
3. The following are withdrawn from the Office Action, filed 10/09/25:
The rejection of claim 1 under 35 U.S.C. 102(a)(1) as being anticipated by Mintel 2018 (All-In-One Multivitamin & Mineral tablet, Mintel GNPD, ID#5625063, April 2018), found on page 3 at paragraph 6, is withdrawn in light of Applicant’s amendments thereto.
The rejection of claims 1-3 under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Mintel 2018 (All-In-One Multivitamin & Mineral tablet, Mintel GNPD, ID#5625063, April 2018), found on page 4 at paragraph 11, is withdrawn in light of Applicant’s amendments thereto.
The rejection of claims 1-3 under 35 U.S.C. 103 as being unpatentable over Giampapa et al. 2004 (US 2004/0001817 A1), found on page 5 at paragraph 13, is withdrawn in light of Applicant’s amendments thereto.
New Objections and Rejections Necessitated by Applicant’s Amendments
New Claim Objections
4. Newly added claims 8, 15, and 16 are each objected to under 37 CFR 1.75 as being a substantial duplicate of claims 4, 5, and 6 which have been indicated as allowable if written in the independent form. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
5. Newly added claims 10, 11, and 12 are each objected to because of the following informalities: misspelled words. Each claim recites “contnet” (see line 2) which appears to be a misspelling of the word “content”. Appropriate correction is required.
New Rejection: Claim Rejections - 35 USC § 112
6. 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.
7. Claims 8, 15, and 16 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Newly added claims 8, 15 and 16 each recite “…wherein a total amount of the blue-green algae powder and the α-linolenic acid relative to the total amount of the tableted food or beverage is 100% by weight” which is indefinite because it is unclear how the two required elements (i.e. blue-green algal powder and linolenic acid) can be 100% of the tableted food or beverage because that leaves no weight (i.e. zero) for any additional components to constitute a tableted food or beverage and one cannot divide a number by zero since the operation is undefined. Accordingly, clarification is required to remove scope ambiguity and thereby ascertain the metes and bounds of the claim.
8. See MPEP 2113 for suitability of 102/103 a combined rejection for product-by-process claims and MPEP 2131.03 for suitability of 102/103 a combined rejection for numerical ranges.
New Rejection: Claim Rejections - 35 USC § 102/103
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. Claims 1-3 and 7-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Vidalo et al. 2008 (US 2008/0260692).
Vidalo teaches edible compositions used as dietary and nutritional supplements and comprising filamentous cyanobacteria including mixtures of Arthrospira and Spirulina in preferred ratios of 40:60 to 80:20 wherein Arthrospira is 10-70% by dry weight of one strain; 10-70% by dry weight of another strain of Arthrospira and up to an additional 30% by dry weight of Spirulina along with a-linolenic acid (e.g. [0001, 0030, 0039, 0044-45, 0053-55]; Table 6, and Vidalo claims 23, and 29-30; meeting limitations regarding the relative amounts of components found in instant claims 1, 7, 9-14, and 16 with sufficient specificity; see MPEP 2131.03). Further, Vidalo teaches the compositions are suitable for nursing infants (i.e. necessarily a liquid/beverage) and/or may be in the form of a tablets (i.e. tableted) and syrups (i.e. also a liquid/beverage; see [0060, 0081]; meeting limitations found in the preambles of claims 1, 9 and 16).
With regards to methods steps found in dependent claims 2 and 3, it is noted that the method in which the a-linolenic acid was produced (i.e. is derived from a plant; and wherein the plant is selected from soybean and sesame) for the product per se, is immaterial to its patentability because “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. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process” (see In re Thorpe, 227 USPQ 964, 966 Fed. Cir. 1985; and MPEP 2113).
Therefore, Vidalo teaches compositions comprising 10-70% by dry weight of each of two Arthrospira strains (i.e. range of 20 to 140%) plus up to 30% of Spirulina (i.e. range of 50 to 170%) and 0.01% alpha-linolenic acid, yielding ranges from 50.01% at the low end of the range to over 100% at the higher end, which fully encompasses claimed ranges of 80%, 90% and 100% by dry weight in newly amended or added claims 1, 7, 8, 13, 14, and 15.
Therefore, Vidalo anticipates the invention as claimed.
However, in the alternative, with regards to any particular concentration of the components in claims 1 and 7-16; MPEP 2144.05 states, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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." Thus, the claimed invention, as a whole, is prima facie obvious in view of the teachings of the prior art, absent any convincing evidence to the contrary regarding the criticality of the specifically claimed range. Further, MPEP 2112.01 states that “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since the Patent Office does not have the facilities for examining and comparing Applicant’s composition with that of the prior art reference, the burden is upon the Applicant to show a novel and/or unobvious distinction between the material structural and functional characteristics of the claimed compositions with that of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594.
Therefore, it is also the Office’s position that (1) there is no evidence of record regarding the criticality of the claimed concentrations; (2) one of ordinary skill in the art would have an operational expectation of success for the entire range disclosed by the prior art; and/or (3) the concentration(s) are results-effective variables and thus there is motivation for one of ordinary skill to optimize them through routine experimentation (see MPEP 2144.05II(B)).
Accordingly, the claims, as written, are anticipated by and/or are unpatentable over Vidalo.
Potentially Allowable Subject Matter
15. Claims 4, 5, and 6 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
16. No claims are allowed at this time.
17. 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).
18. 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.
19. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY MAILLE LYONS whose telephone number is (571)272-2966. The examiner can normally be reached on Monday-Friday 8 am to 5 pm EST. 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. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dan Kolker can be reached on (571)-272-3181. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
20. 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.
/MARY MAILLE LYONS/Examiner, Art Unit 1645
February 3, 2026