DETAILED ACTION
The present application is being examined under the pre-AIA first to invent provisions.
Applicant’s amendment and response filed on 12/1/2025 have been received and entered into the case. 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 Claims 91-92 and 94-100 are pending, Claims 97-100 are withdrawn, and Claims 91-92 and 94-96 have been considered on the merits.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.
Withdrawn Rejections
Rejections of Claim 93 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 Nicol et al (FAO. 1997;1-11.) are withdrawn in view of applicant’s amendments – Claim 93 has been canceled.
Rejections under nonstatutory double patenting are withdrawn in light of applicant’s filling of Terminal Disclaimer.
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 Nicol et al (FAO. 1997;1-11.).
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. Nicol teaches krill of all species contain a wide range of biochemicals which are of nutritional and possible pharmaceutical value (p.7 para 1), wherein a krill product contains fat < 7% and a protein content of 18-22% (p.7 para 2), and Table 8 demonstrates biochemical composition of Euphausia superba contains 22.46 % dry weight of lipid and 37.5 % dry weight of protein.
Therefore, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to optimize the concentration of fat, since the claimed fat is less than about 50 g/kg (< 5%), Yoshitomi discloses a krill meal comprises 7.0 fat (7%) and Nicol discloses a krill product comprises fat < 7%. The concentration of fat taught in the prior art is close and/or overlaps with the claimed concentration of fat. 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 fat as a matter of routine experimentation. (MPEP 2131.03 II-III) In addition, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to optimize the concentration of fat and protein, since Yoshitomi discloses a krill meal comprises 7.0 fat (7%) and protein, and Nicol discloses a krill product comprises a wide range of biochemicals including fat and protein which are of nutritional and possible pharmaceutical value. In other words, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to extract a desired amount of fat and protein for intended nutritional and possible pharmaceutical uses. 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 optimize the concentration of fat and protein with a reasonable expectation for successfully obtaining a krill meal.
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 Nicol et al (FAO. 1997;1-11.) 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 does teach a krill meal. 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 astaxanthin esters in a krill meal, since Yoshitomi and Yamaguchi both disclose a krill meal, and Yamaguchi discloses that a krill meal comprises astaxanthin esters. In addition, at the time of the claimed invention, it would have been obvious to one of ordinary skill in the art to optimize the concentration of astaxanthin esters as a matter of routine experimentation. 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 optimize the concentration of astaxanthin esters with a reasonable expectation for successfully obtaining a krill meal.
Response to Arguments
Applicant argues that cited references do not teach a krill meal with less than about 50 g/kg fat (i.e., less than 5% fat), that a skill in the art would not be motivated to combine Yoshitomi and Nichol to arrive at the claimed invention, and that the references teach different methods which are not compatible.
These arguments are not found persuasive because Nicol’s krill product with fat < 7% overlaps with the claimed krill meal with less than about 50 g/kg fat (i.e., less than 5% fat). Furthermore, 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) In the instant case, applicant has failed to provide evidence demonstrating the criticality of the claimed concentration. In addition, Yoshitomi does teach a krill meal comprises fat and protein, wherein the krill meal is used as a main material of feed for cultured fish. Nicol does teach krill of all species contain a wide range of biochemicals which are of nutritional and possible pharmaceutical value, a krill hydrolysate containing fat and protein is used mainly as an additive to fish. Since Yoshitomi and Nicol both disclose a krill composition comprises fat and protein that provides nutritional value in fish feed. Therefore, a skill in the art would be motivated to combine Yoshitomi and Nichol to obtain a krill composition to achieve desired nutrition. Finally, applicant’s arguments regarding the “references teach different methods which are not compatible” appear to have no connection to the subject at issue, since claims are directed to a composition.
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 extension fee 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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached on (571)272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Lynn Y Fan/
Primary Examiner, Art Unit 1759
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