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 .
Priority
Acknowledgement is made on the instant application’s claim to the priority benefit of U.S. Provisional Application No. 63/408920, filed on 9/22/2022, under 35 U.S.C. 119(e).
Power of Attorney
There is no Power of Attorney on file and it is recommended that applicant submits one to facilitate prosecution.
Drawings
The drawings are objected to because some of the text in Figure 3 are too small to read. 37 C.F.R. 1.84 section (p)(3) requires that “Numbers, letters, and reference characters must measure at least .32 cm. (1/8 inch) in height”. See MPEP § 608.02(V).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
In addition to Replacement Sheets containing the corrected drawing figure(s), applicant is required to submit a marked-up copy of each Replacement Sheet including annotations indicating the changes made to the previous version. The marked-up copy must be clearly labeled as “Annotated Sheets” and must be presented in the amendment or remarks section that explains the change(s) to the drawings. See 37 CFR 1.121(d)(1). Failure to timely submit the proposed drawing and marked-up copy will result in the abandonment of the application.
Claim Objections
Claims 1 and 5-13 are objected to because of the following informalities: the species name “F. diplosiphon” is not italicized. Claim 1 is also objected to since the full species name of the cyanobacteria should be provided when first recited in a set of claims. Appropriate correction is required.
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 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Qin (Pub. No. CN 110012967 A) in view of Sitther et al. (Pub. No. US 2019/0071699 A1).
Qin discloses a feed composition for improving the survival rate of Pacific blue swimming crabs (Abstract). The feed composition comprises small fish, shrimp, cyanobacteria, antibacterial substances, and nutrients (par. [0011]).
Qin is comparable to the instant application for the following reasons:
Regarding claims 1-3 and 10: feeding crabs in a sandy pond having a clean water source with the disclosed feed composition containing cyanobacteria (par. [0046]) in order to improve the survival of the crabs is analogous to “A method for improving aquaculture growth and/or survival rate, comprising growing said aquaculture in the presence of cyanobacteria F. diplosiphon”.
Qin is different from the claimed method in that it does not specify the cyanobacteria to be Fremyella diplosiphon.
Nevertheless, F. diplosiphon is a known cyanobacterial species as substantiated by Sitther et al. (par. [0009]). Sitther et al. teaches that cyanobacteria are rich in lipids (par. [0008]). It would have thus been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to specifically use F. diplosiphon as the cyanobacteria in Qin’s method with reasonable expectation that it would provide lipids as nutrients for the crabs. The rationale to support obviousness is that all claimed elements were known in the prior art and their combination would have yielded nothing more than predictable results. See MPEP § 2143 and KSR, 550 U.S. 398, 82 USPQ2d at 1395; Sakraida v. AG Pro, Inc., 425 U.S. 273, 282, 189 USPQ 449, 453 (1976).
Claims 1-3 and 10 are thus obvious over Qin in view of Sitther et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELLE F PAGUIO FRISING whose telephone number is (571)272-6224. The examiner can normally be reached Monday-Friday, 8:00 a.m. - 4:00 p.m..
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, Melenie L. Gordon can be reached at (571) 272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michelle F. Paguio Frising/Primary Examiner, Art Unit 1651
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