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 .
Claim Status
The amendment of 04/21/2026 has been entered. Claims 1-15 and 17-18 are pending (claim set as filed on 04/21/2026).
Claims 1-15 and 17-18 are currently under examination and were examined on their merits.
Declaration under 37 CFR 1.132
The Declaration under 37 CFR 1.132 and the supplemental Response filed on 04/22/2026 have been received and considered.
Withdrawn Objections/Rejections
The rejection of claims 1-18 under 35 U.S.C. 112(b) as being indefinite as set forth in the previous Office action is withdrawn in light of the amendment filed on 04/21/2026.
Claim Rejections - 35 USC § 103
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.
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 factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-15 and 17-18 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Nagai et al. (US 2021/0246417 A1, published on 08/12/2021), hereinafter ‘Nagai’, in view of Butterworth et al. (US 2021/0037861 A1, published on 02/11/2021), hereinafter ‘Butterworth’, and Janse et al. (WO 2021/155157 A1, published on 08/05/2021), hereinafter ‘Janse’, as evidenced by Tang et al. (“Drum drying”, published in 2003, Encyclopedia of agricultural, food, and biological engineering, pages 211-212), hereinafter ‘Tang’, and Martinez-Alvarez et al. (“Recent Advances in Astaxanthin Micro/Nanoencapsulation to Improve Its Stability and Functionality as a Food Ingredient”, published on 08/01/2020, Marine Drugs 2020, 18(8), 406, pages 1-25), hereinafter ‘Martinez-Alvarez’.
Nagai’s general disclosure relates to “[a] method for producing a dried bacterial cell powder containing a carotenoid” (see entire document, including abstract).
Regarding claim 1, it is noted that the instant specification states that “[a]s used herein, the term "free-flowing powder" refers to a powder” (see specification, paragraph [0013]).
Pertaining to a method, Nagai teaches a method of producing a composition comprising cells of at least one bacterium, wherein the composition is in the form of a free flowing powder (“The present invention relates to a dried bacterial cell powder containing a carotenoid and a method for producing the same”; paragraph [0001]), the method comprising
providing a drum dryer comprising two rotatable cylinders (paragraphs [0012], [0046], [0082]). The Examiner notes that a double drum dryer comprises two spaced apart rotatable cylinders, with a gap of width G and a Length of L inches therebetween, as evidenced by Daud (page 211, left column, paragraph 2; page 211, right column, paragraph 2). It is noted that the gap size between the drums is defined by the distance between the drums (nip width) and the length of each drum, which corresponds to the length of the gap (page 212, right column, paragraph 2; see Fig. 1 and Fig. 2b).
providing a fermentation broth feed comprising cells of at least one bacterium in a liquid suspension (paragraphs [0033], [0042], [0080], [0082]); and
introducing said fermentation broth feed into said drum dryer to provide said composition (paragraphs [0042], [0046], [0082]-[0083]). It is noted that a feed is inherently introduced at a feed rate.
Regarding claims 6 and 9, pertaining to the surface temperature, Nagai teaches a surface temperature of a drum dryer of 140° C to 160° C (paragraphs [0042]-[0045], [0082]) (instant claim 6), and wherein said drum dryer is operated to provide a surface temperature of 150 °C or 160 °C (paragraph [0045]) (instant claim 9). The Examiner notes that drum dryers are heated to provide a specific surface temperature of each of the rotatable cylinders, as evidenced by Tang (see introduction on page 211).
Regarding claims 12 and 13, Nagai teaches “the drum rotation speed may be, but not limited to, 1 to 5 rpm, 2 to 5 rpm, 2 to 4 rpm, or 2 to 3 rpm.” (paragraph [0047]).
In addition, Nagai discloses that “a method for producing a dried bacterial cell powder containing a carotenoid is provided, said method comprising the step of bringing bacterial cells of a carotenoid-producing microorganism into contact with a heat transfer unit having a temperature exceeding 100° C. for heat drying” (paragraph [0026]), wherein [t]he dried bacterial cell powder of the present invention can be mixed with a feed for feeding poultry” (paragraph [0052]), and that “[p]oultry fed with a feed containing the dried bacterial cell powder of the present invention lay eggs enriched with a carotenoid (paragraph [0054]; see Example 3 in paragraphs [0106]-[0109]). Nagai further teaches wherein a carotenoid is astaxanthin (paragraph [0012]), which lacks stability, as evidenced by Martinez-Alvarez (“Astaxanthin and astaxanthin-containing lipid extracts obtained from these sources present an intense red color and a remarkable antioxidant activity… However, their use is hindered by: their instability in the presence of high temperatures, acidic pH, oxygen or light; their low water solubility, bioaccessibility and bioavailability”; see entire document, including abstract).
Nagai further teaches wherein “[a]ny microorganism can be used in the present
invention without particular limitations as long as it can produce a carotenoid.’, and wherein “[e]xamples thereof include bacteria of the genus Paracoccus, bacteria of the genus Sphingomonas, bacteria of the genus Brevundimonas, bacteria of the genus Erythrobacter,” (paragraph [0027]).
Nagai does not expressly teach wherein at least 90% of the composition is in the form of a free flowing powder (instant claim 1).
Nagai does not teach
wherein at least 90% of said cells of said at least one bacterium in said composition are in intact form (instant claim 1).
a drum dryer comprising two spaced-apart rotatable cylinders, with a gap of width G inches and a length of L inches therebetween (instant claim 1).
a total solid content C of from about 0.09 to about 0.15 of the total weight of the fermentation broth feed (instant claim 1).
introducing said fermentation broth feed into said drum dryer at a rate of W Kg per hour of no greater than 14x[(GxL)/C] (instant claim 1), wherein a rate of introduction of said fermentation broth feed into said drum dryer is no greater than 10x[GxL/C] Kg per hour (instant claim 2).
wherein said composition is generated at a rate of from about 5 to about 50 Kg/hour (instant claim 3).
wherein said rate W is from about 10 to about 300 Kg per hour (instant claim 4).
wherein said width G is from about 0.010 to about 0.015 inches (instant claim 5).
wherein said drum dryer is operated at a steam pressure of at least 40 psig (instant claim 7), wherein said drum dryer is operated at a steam pressure of from about 40 to about 75 psig (instant claim 8), wherein said drummer dryer is operated to provide a surface temperature of said rotable cylinders of from about 150 to about 160°C (instant claim 9).
wherein each of said rotatable cylinders comprises a plating layer selected from the group consisting of chrome and stainless steel (instant claim 10), wherein each of said rotatable cylinders comprises a chrome plating layer (instant claim 11).
wherein said rotatable cylinders are rotated at a speed of from about 5 to about 12 revolutions per minute (rpm) (instant claim 12), wherein said rotatable cylinders are rotated at a speed of about 9.6 rpm (instant claim 13).
wherein each said rotatable cylinders have a diameter of about 12 inches (instant claim 14).
wherein said composition has a moisture content of less than about 4wt% (instant claim 15).
heating said concentrated fermentation broth feed to a temperature from about 40°C to about 55°C prior to introducing into said drum dryer (instant claim 17).
further comprising introducing energy into the dryer to provide a residual product moisture content of less than about 4wt% (instant claim 18).
Butterworth’s general disclosure relates “to a product, which comprises at least 30% or more intact plant cells, which comprises 15% or less water by weight, which has a particle size in the range 75-500 μm,” (see entire document, including abstract). Butterworth further teaches using a double-drum drier for drying a product comprising plant cells (paragraphs [0018], [0066], [0206]).
Regarding claims 1 and 5, pertaining to a drum dryer, Butterworth teaches a drum-dryer comprising two spaced-apart rotatable cylinders, with a gap of width G inches and a length of L inches therebetween (instant claim 1), wherein the said width G is about 0.010 inches (instant claim 5) (paragraphs [0206]-[0208]). The Examiner notes that Butterworth’s separation gap of 250 μm and drum length of 300 mm correspond to 0.00984 inches and 11.811 inches, respectively, and that the length of the instant gap corresponds to Butterworth’s length of the drums.
Pertaining to the composition, Butterworth teaches wherein roller drying results in a composition with a high proportion of intact cells (see Example 10, paragraph [0515]).
Additionally, Butterworth teaches a dried composition with more than 90% of the composition being intact cells (see Example 12 in paragraphs [0534]-[0537]; see Fig. 12).
Regarding claim 3, pertaining to the generation rate of the composition, Butterworth teaches wherein said composition is generated at a rate of 11 kg/h (paragraph [0510]).
Regarding claim 4, pertaining to rate W, Butterworth teaches wherein the rate W is 15 kg/h (paragraph [0510]).
Regarding claims 7 and 8, pertaining to steam pressure, Butterworth further teaches wherein the drum dryer is operated at a steam pressure of 14.5 psig (“steam pressure 1 bar over atmospheric”; paragraph [0211]). It is noted that 1 bar over atmospheric corresponds to about 14.5 psig.
Regarding claims 12 and 13, pertaining to a rotation speed of the cylinders, Butterworth teaches wherein the rotatable cylinders are rotated at a speed of 2.62 rpm (paragraph [0210]).
Regarding claim 14, pertaining to the rotatable cylinders, Butterworth teaches wherein the rotatable cylinders have a diameter of about 12 inches (“radius=150 mm”; paragraph [0207]). The Examiner notes that a radius of 150 mm corresponds to a diameter of 11.811 inches.
Regarding claims 15 and 18, pertaining to the moisture content of a composition, Butterworth teaches wherein a composition has a moisture content of less than 5 wt% (paragraphs [0199]-[0200], [0205]-[0206]).
Janse’s general disclosure relates to “processes for recovering and purifying human milk oligosaccharides (HMOs) from a fermented broth” (paragraph [0001]). Janse teaches using a drum-drier for obtaining an HMO product (paragraph [0016], [0040]-[0048]).
Regarding claim 1, pertaining to a total solid content, Janse teaches a total solid content of 5 to 30 wt% of a composition prior to drying corresponding to 0.05 to 0.30 of the total weight (“approximately 5 to 30 wt.%.”; paragraph [0038]).
Regarding claims 7 and 8, pertaining to steam pressure, Janse teaches a steam pressure of 3.3 bar(g) used in double drum drying (paragraph [0072]). It is noted that 3.3 bar(g) corresponds to about 47.8 psig.
Regarding claims 10 and 11, pertaining to a plating layer of the cylinders, Janse teaches wherein “the cylinder wall of the drum dryer contacting the material to be dried is chrome plated” (paragraph [0042]), and that “[t]his prevents contamination of the dried product from metal components leaching from the unprotected walls of conventional drums, such as cast-iron drums; or corrosion products present on the drums from flaking off” (paragraph [0042]).
Regarding claims 12 and 13, pertaining to a rotation speed of the cylinders,
Janse teaches wherein “[d]rum rotation speed is preferably 1 to 10 rpm” (paragraph [0044]).
Regarding claims 15 and 18, pertaining to the moisture content of a composition, Janse teaches wherein a composition after drying has a moisture content of less than about 4wt% (paragraph [0040]) (instant claims 15 and 18). Janse further teaches introducing energy into a dryer to decrease residual moisture content (paragraphs [0040]-[0042]) (instant claim 18). The Examiner notes that heating the cylinder of a drum dryer intrinsically comprises introducing energy into the dryer.
Regarding claim 17, pertaining to heating a fermentation broth feed prior to introducing into a drum dryer, Janse teaches wherein a “[f]eed temperature is preferably 4°C to 110°C, more preferably, 4°C to 95°C” (paragraph [0044]).
Janse further teaches that “[v]ariables affecting drum dryer operation include rotation speed, drum gap size, nip width, drum temperature, steam pressure, feed temperature and feed solids concentration (paragraph [0044]).
While Nagai does not expressly teach wherein at least 90% of the composition is in the form of a free flowing powder (instant claim 1), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Nagai’s teachings on the bacterial cell powder with Nagai’s teachings on mixing the powder with chicken feed, in order to create a composition wherein 100% of the composition is in the form of a free flowing powder. One would have been motivated to do so, in order create a superior bacterial cell powder that can be uniformly mixed with chicken feed.
While modified Nagai does not teach wherein at least 90% of said cells of said at least one bacterium in said composition are in intact form (instant claim 1), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined modified Nagai’s teachings with Butterworth’s teachings on intact cells, in order to create a method of producing a bacterial cell powder wherein at least 90 % of the cells of said at least one bacterium in said composition are in intact form. One would have been motivated to do so, in order to ensure protection of astaxanthin by the intact bacterial cells.
While modified Nagai does not teach a fermentation broth feed with a total solid content C of from about 0.09 to about 0.15 of the total weight of the fermentation broth feed (instant claim 1), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Nagai’s method with Janse’s total solid content, to have provided a fermentation broth feed comprising a total solid content C of from 0.05 to 0.30 of the total weight of the fermentation broth feed. One would have been motivated to do so to optimize the drying process of the bacterial cells.
While modified Nagai does not provide a gap of a specific width G inches and of a specific length L inches between the two spaced-apart rotatable cylinders of the drum dryer, a specific feed rate W, and a fermentation broth feed with the specific total solid content C of from about 0.09 to about 0.15 of the total weight of the fermentation broth feed, wherein the fermentation broth feed is introduced into the drum dryer at a rate of W Kg per hour of no greater than 14x[(GxL)/C] to provide said composition (instant claim 1), and wherein a rate of introduction of said fermentation broth feed into said drum dryer is no greater than 10x[GxL/C] Kg per hour (instant claim 2), the instantly recited drum-drying parameters gap width G, gap length L, solid content C, and feed rate W would be within the realm of routine experimentation of a skilled artisan, since drum-drying is a commonly used technique and the instantly recited process parameters are known result-effective parameters. One would have been motivated to optimize gap width, gap length, solid content C, and feed rate W to increase the amount of intact cells and to provide a powder that allows for uniform mixing. As such, a skilled artisan would have arrived at the claimed invention wherein the rate of W Kg per hour for introducing the fermentation broth feed into the drum dryer is no greater than 14x[GxL/C], and is further no greater than 10x[GxL/C] Kg per hour.
A skilled artisan would have reasonably expected success in combining modified Nagai’s teachings with Butterworth’s and Janse’s teachings, since all references are directed to drum-drying of biologically produced compositions.
While modified Nagai does not teach wherein the composition is generated at a rate of from about 5 to about 50 Kg/hour (instant claim 3), wherein rate W is from about 10 to about 300 Kg per hour (instant claim 4), wherein said width G is from 0.010 to about 0.015 inches (instant claim 5), and wherein each said rotatable cylinders have a diameter of about 12 inches (instant claim 14), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Nagai’s method for producing a bacterial cell powder with Butterworth’s teachings on feed and generation rate, on gap width and cylinder diameter, in order to create a method for producing a bacterial cell powder wherein the composition is generated at a rate of about 11 kg/hour, wherein the rate W is 15 Kg per hour, wherein width G is about 0.010 inches and wherein each said rotatable cylinders have a diameter of about 12 inches. One would have been motivated to do so to improve the drying process for producing a superior bacterial cell powder.
While modified Nagai does not teach wherein said drum dryer is operated at a steam pressure of at least 40 psig (instant claim 7), wherein said drum dryer is operated at a steam pressure of from about 40 to about 75 psig (instant claim 8), wherein said drum dryer is operated to provide a surface temperature of said rotatable cylinders of from about 150 to about 160°C (instant claim 9), wherein each of said rotatable cylinders comprises a plating layer selected from the group consisting of chrome and stainless steel (instant claim 10), wherein each of said rotatable cylinders comprises a chrome plating layer (instant claim 11), wherein said rotatable cylinders are rotated at a speed of from about 5 to about 12 revolutions per minute (rpm) (instant claim 12), wherein said rotatable cylinders are rotated at a speed of about 9.6 rpm (instant claim 13), wherein said composition has a moisture content of less than about 4wt% (instant claim 15), further comprising introducing energy into the dryer to provide a residual product moisture content of less than about 4wt% (instant claim 18) and wherein the method comprises heating said fermentation broth to a temperature from about 40°C to about 55°C prior to introducing into said drum dryer (instant claim 17), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined modified Nagai’s teachings with Janse’s teachings on drum drying parameters and on the moisture level of a dried composition, to have created a method of producing a bacterial cell composition, wherein said drum dryer is operated at a steam pressure of 47.8 psig, wherein said drum dryer is operated to provide a surface temperature of said rotable cylinders at 150°C or 160°C, wherein each of said rotatable cylinders comprises a chrome plating layer, wherein said rotatable cylinders are rotated at a speed of 1-10 rpm, wherein said composition has a moisture content of less than about 4wt% , further comprising introducing energy into the dryer to provide a residual product moisture content of less than about 4wt%, and wherein the method comprises heating said fermentation broth to a temperature of 4°C to 95°C prior to introducing into said drum dryer. One would have been motivated to do so in order to optimize the drying process of the bacterial cells and to obtain a superior bacterial cell powder.
While modified Nagai does not teach wherein said rotatable cylinders are rotated at a speed of from about 5 to about 12 revolutions per minute (rpm), wherein said rotatable cylinders are rotated at a speed of about 9.6 rpm, and wherein the fermentation broth is heated to a temperature from about 40°C to about 55°C prior to introducing into said drum dryer, the instantly recited rotation speeds of the cylinders and the instantly recited temperatures of the fermentation broth prior to drum-drying would have been with the realm of routine experimentation of a skilled artisan, since modified Nagai teaches a drum dryer rotation speed of 1-10 rpm and a fermentation broth of a temperature of 4°C to 95°C prior to introducing into a drum dryer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to determine the optimal drum dryer rotation speed and the optimal fermentation broth temperature prior to drum-drying in order to obtain a superior bacterial cell powder. Further, one would expect success since modified Nagai’s teachings are directed to compositions comprising different bacterial genera (see Nagai above), and therefore, manipulation of the above cited parameters based on the teachings of the references would be within the purview of an artisan. It is further noted that, 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955). See MPEP § 2144.05 part II A.
Response to Arguments
Applicant has traversed the previous rejections of claims 1-18 under 35 U.S.C. 103 in the reply filed on 04/21/2026 (remarks, pages 4-8). Nagai, Butterworth, and Janse are still relied upon in the above rejection. Applicant's arguments filed on 04/21/2026 and Applicant’s Declaration under 37 CFR 1.132 have been fully considered but they are not persuasive.
In Applicant’s reply, Applicant states that “none of the cited references, either alone or in
combination, teach or suggest the surprising dependence of the rate (W) of introduction of the
fermentation broth feed into the drum dryer on the various parameters ( dryer length L, gap width G and solid content C of the feed)”, and that “[d]etermining such a relationship would require undue experimentation by one of ordinary skill in the art in the absence of an inventive step” (remarks, page 5). Applicant further describes that “Janse is irrelevant with regard to the claimed invention”, and “that it would not have been obvious to one of ordinary skill
in the art to have combined Nagai's method for producing a bacterial powder with Butterworth's
method for drying of an entirely different material obtained from plants and intended to solve an
entirely different problem, and further that such a combination would not teach or suggest the
invention of claim 1 as currently amended” (remarks, page 7).
The Examiner responds that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Nagai provides a method of producing a composition comprising bacterial cells in form of a powder by introducing a fermentation broth feed into a double drum dryer, surface temperatures and rotation speeds of a drum dryer, and motivation to produce a free-flowing powder. Butterworth provides drum dryer dimensions, feed and generation rate, steam pressure, rotation speed, moisture content of a composition, and intact cells in the composition. Janse provides total solid content, steam pressure, chrome plating layer, drum rotation speed, moisture content, feed temperature, and teachings on variables affecting drum dryer operation. It would have been obvious to have combined Nagai’s, Butterworth’s and Janse’s teachings to create an optimized drying process for bacterial cells since all references are directed to drum drying of biologically produced materials. As discussed above, it would have been within the skill of an artisan to determine optimal drum drying process parameters. By determining the optimal process parameters, one of ordinary skill would have arrived at the claimed invention wherein the fermentation broth feed into said drum dryer has a rate of W Kg per hour of no greater than 14x[(GxL)/C].
Applicant describes that “the use of the carefully selected drying parameters, as defined by claim 1 as filed, has surprisingly been found to produce a free flowing powder which is substantially devoid of burnt material” (remarks, page 4), and that neither Nagai or Butterworth mention the issue of burning of material (remarks, pages 5-6). Applicant further explains that Appendix I which is presented in Applicant’s Declaration shows that “use of the specific parameters as defined by claim 1 as currently amended, requiring a specified feed flow rate as a function of the gap width and length of the cylinders used, as well as the total solid content of the feed broth, resulted in compositions in the form of free flowing powder, while use of a higher flow rate resulted in ribbons and/or flakes” (remarks, page 5).
The Examiner responds that Applicant's argument that the references fail to show a certain feature of the invention, it is noted that the feature upon which Applicant relies (i.e., devoid of burnt material) is not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is further noted, that the composition being devoid of burnt material and in form of free flowing powder would naturally result from performing the claimed method steps. Nagai in view of Butterworth and in view of Janse teaches the claimed method and composition. Therefore, it is highly expected, i.e. obvious, that modified Nagai’s composition would have the same properties as the claimed composition. As such, Applicant’s results presented in Applicant’s declaration are not considered unexpected. The Examiner further recognizes that Applicant’s Declaration is not commensurate in scope with base claim 1 (see MPEP 716.02(d)). Base claim 1 recites an unspecified gap length L (“14x[(GxL)/C]”) which allows for different gap lengths. However, Applicant’s results described in the Declaration were obtained by using a single gap length L of 20 inches (see Results table in Appendix I-1 and I-2). Therefore, Applicant’s results are not commensurate in scope with base claim 1.
In response to Applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Conclusion
No claims are allowed.
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).
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.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANDRA ZINGARELLI whose telephone number is (703)756-1799. The examiner can normally be reached M-F 9-5.
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/SANDRA ZINGARELLI/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653
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