DETAILED ACTION
The present application is being examined under the pre-AIA first to invent provisions.
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 23, 2026 has been entered.
Claims 1-90 and 93 have been canceled. Claims 91-92 and 94-100 are pending, Claims 97-100 are withdrawn, and Claims 91-92 and 94-96 have been considered on the merits. All arguments have been fully considered.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 91 and 94-96 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Yoshitomi et al (US 2003/0113432 A1; 6/19/2003. Cited on IDS) in view of Hertrampf et al (Krill Meal. In: Handbook on Ingredients for Aquaculture Feeds. Springer, Dordrecht.).
The instant claims recite a krill meal composition comprising less than about 50 g/kg total fat and greater than about 65% protein.
Yoshitomi teaches a krill meal comprising 7.0 fat and 65.1 protein (Table 5), wherein the krill meal is an animal feed (a food product) (para 0036).
Yoshitomi does not teach the claimed concentration of fat (claim 91) and protein (claims 91 and 94).
However, Yoshitomi does teach the krill meal comprises 7.0 fat and 65.1 protein. Hertrampf teaches krill meal (Title), wherein krill meal composition comprises 52.2-67.3% protein and 4.2-15.9% fat (Table 23-01), the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals (p.222 para 1).
Therefore, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to obtain a krill meal having an optimized concentration of protein and fat, since Yoshitomi and Hertrampf both disclose a krill meal comprises protein and fat, and Hertrampf discloses that protein content of krill meal varies from 52.2% to 67.3% and fat content varies from 4.2% to 15.9%. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the claimed invention to optimize the concentration of protein and fat depending on the season, availability of food, the area where krill is caught, the age and sex of the animals, as evidenced by Hertrampf. Generally, differences in concentration will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. (MPEP 2144.05 II) Moreover, at the time of the claimed invention, one of ordinary skill in the art would have been motivated by the cited reference to obtain a krill meal having an optimized concentration of protein and fat with a reasonable expectation of success.
Claim 92 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Yoshitomi et al (US 2003/0113432 A1; 6/19/2003. Cited on IDS) in view of Hertrampf et al (Krill Meal. In: Handbook on Ingredients for Aquaculture Feeds. Springer, Dordrecht.) as applied to claims 91 and 94-96 above, further in view of Yamaguchi et al (Bulletin of the Japanese Society of Scientific Fisheries. 1983;49(9):1411-1415. Cited on IDS).
Yoshitomi does not teach the krill meal comprises from about 5 to about 100 mg/kg astaxanthin esters (claim 92).
However, Yoshitomi and Hertrampf both teach a krill meal, and Hertrampf does teach krill meal comprises 130 mg/kg – 330 mg/kg carotenoids, mainly astaxanthin (Table 23-01), the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals (p.222 para 1). Yamaguchi teaches the content of carotenoids in a krill meal, wherein the content is 15-20 mg/100 g, astaxanthin diester is 65-75% and astaxanthin monoester is 15-25% (Abstract).
Therefore, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to include an optimized amount of astaxanthin esters in a krill meal, since Yoshitomi, Hertrampf and Yamaguchi all disclose a krill meal, Hertrampf discloses a krill meal comprises astaxanthin and the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals, and Yamaguchi discloses that a krill meal comprises astaxanthin esters. Generally, differences in concentration will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. (MPEP 2144.05 II) Moreover, at the time of the claimed invention, one of ordinary skill in the art would have been motivated by the cited reference and routine practice to include an optimized amount of astaxanthin esters in a krill meal with a reasonable expectation of success.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 91-92 and 94-96 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 1 of U.S. Patent No 9,034,388 B2 (referred to as the ‘388 patent) in view of Hertrampf et al (Krill Meal. In: Handbook on Ingredients for Aquaculture Feeds. Springer, Dordrecht.) and Yamaguchi et al (Bulletin of the Japanese Society of Scientific Fisheries. 1983;49(9):1411-1415. Cited on IDS).
Claim 1 of the ‘388 patent recites a krill meal comprising greater than 65% protein and less than 50 g/kg total fat.
‘388 patent does not teach the krill meal comprises from about 5 to about 100 mg/kg astaxanthin esters (claim 92).
However, ‘388 patent does teach a krill meal. Hertrampf teaches krill meal comprises 130 mg/kg – 330 mg/kg carotenoids, mainly astaxanthin (Table 23-01), the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals (p.222 para 1). In addition, Yamaguchi teaches the content of carotenoids in a krill meal, wherein the content is 15-20 mg/100 g, astaxanthin diester is 65-75% and astaxanthin monoester is 15-25% (Abstract).
Therefore, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to include an optimized amount of astaxanthin esters in a krill meal, since ‘388 patent, Hertrampf and Yamaguchi all disclose a krill meal, Hertrampf discloses a krill meal comprises astaxanthin and the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals, and Yamaguchi discloses that a krill meal comprises astaxanthin esters. Generally, differences in concentration will not support patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. (MPEP 2144.05 II) Moreover, at the time of the claimed invention, one of ordinary skill in the art would have been motivated by the cited references to include an optimized amount of astaxanthin esters in a krill meal with a reasonable expectation of success.
Response to Arguments
Applicant argues that neither Yoshitomi nor Nicol-alone or in combination-discloses a krill meal composition having both less than about50 g/kg total fat and greater than about65% protein, that Yoshitomi affirmatively teaches away from removing krill lipid, that Nicol's own data set correlates low fat with low protein in krill products, contrary to the claimed combination, that the Examiner's application of MPEP § 2144.05 (II) is misplaced because the references do not disclose overlapping ranges for the claimed combination, that the claimed composition is a delipidated krill meal obtained as the residue of lipid extraction, a product not described or suggested by any cited reference, and that no reference discloses a krill product reaching greater than about 70% protein as recited in claim 94. However, these arguments are moot in light of the new rejections above.
Applicant argues that the specification establishes that the claimed composition exhibits unexpected retention of astaxanthin during delipidation, and that Yamaguchi teaches astaxanthin ester content outside the range claimed in claim 92.
These arguments are not found persuasive because applicant’s arguments regarding “unexpected retention of astaxanthin during delipidation” appear to have no connection to the subject at issue, since delipidation is not recited in the rejected claims. Furthermore, Hertrampf does teach a krill meal comprises astaxanthin, and Yamaguchi does teach a krill meal comprises astaxanthin esters. In addition, Hertrampf does teach the composition of krill meal is affected by the season, availability of food, the area where krill is caught, the age and sex of the animals. Therefore, one skill in the art would be motivated to obtain a krill meal having a desired nutritional composition based on the season, availability of food, the area where krill is caught, the age and sex of the animals.
Conclusion
No claims are allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNN Y FAN whose telephone number is (571)270-3541. The examiner can normally be reached on M-F 7am-4pm.
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/Lynn Y Fan/
Primary Examiner, Art Unit 1759
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