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 .
This office action is in response to applicant’s submission dated June 17, 2026. Any objection and/or rejections made in previous actions and not repeated below are hereby withdrawn.
Claims 1-3, 5-12, and 14-20 are currently pending. Claims 3 and 13 are cancelled, and claims 14 and 15 remain withdrawn.
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.
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.
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, 2, 5, 8-12, and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Galley et al. (WO 2007/122422 A2) in view of Durante et al. (Effect of drying and co-matrix addition on the yield and quality of supercritical CO2 extracted pumpkin (Cucurbita moschata Duch.) oil, Food Chemistry).
With respect to Claims 1 and 18, Galley et al. teaches a method of preparing an oil body solution comprising extracting oleaginous compositions from plant material and combining with an aqueous medium, then separating out the oil phase. [Pg. 7, Ln. 21-29] Galley et al. teaches the use of plant material from a variety of sources, including the seeds. [Pg. 9, Ln. 11-27] Galley et al. teaches that the oil body solution can comprise between 1-35% protein. [Pg. 14, Ln. 3-4] The method of Galley et al. comprises adding seeds to the extraction media, which comprises a buffer with a pH of 7.5, then homogenizing into a slurry, filtrating and centrifuging the slurry. [Pg. 27, Ln. 25-29] Additionally, the oil body composition is freeze dried. [Pg. 28, Ln. 21-22]
Galley et al. reads on preparing suspension of seed and non-seed plant material in an aqueous phase, adjusting the pH of the suspension to greater than 6, mechanically disrupting the suspension to form a slurry, diluting the slurry with a buffer with a pH between 6.5-10, filtering and centrifuging the slurry to form an oil body solution, and subsequently freeze drying the oil body solution to form a powder, but is silent to the combination of seed and non-seed plant material between 50:50-90:10 dry weight ratio and being selected from the combination of seed and non-seed plant material recited in the instant claim.
Durante et al. teaches a process for extraction of nutrients from pumpkin flesh and pumpkin seeds in order to optimize the amount of nutrients extracted and provide an enriched oil. [Abstract] Additionally, Durante et al. teaches that the flesh and seeds can be used in a 1:1 ratio, and the resulting extract is rich in vitamin E and carotenoids. [Abstract] The invention taught by Durante et al. reads on a seed:non-seed ratio of 50:50, but does not teach the specific combination of hemp seed and pumpkin non-seed.
Galley et al. and Durante et al. exist within that same field of endeavor in that they teach oil extraction methods from plant materials. Where Galley et al. teaches a general method of extraction from a variety of seed and plant material, Durante et al. teaches that pumpkin flesh is a valuable addition to a seed oil extraction.
Though both references are explicitly silent to the combination of hemp seed and pumpkin non-seed material in a single combination, Galley et al. teaches the use of hemp seed in an oil extraction method and Durante et al. teaches a combination of seed and non-seed material, wherein the non-seed material is pumpkin. MPEP 2144.06 I states, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. In the instant circumstance, it would have been obvious to substitute the non-seed plant material in Galley with the pumpkin material taught in Durante et al. in combination with the hemp seed material already taught.
The composition of Galley et al. is primarily seed material and the combination taught by Durante et al. teaches a ratio of 50:50 seed:non-seed plant material. MPEP 2144.05 I states, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”. The range resulting from Galley et al. in view of Durante et al. teaches a ratio of seed:non-seed of 50:50 to 100:0 overlaps with the ratio of 50:50-90:10, and the protein content taught in the oil body composition of Galley et al. overlaps with the protein content of the non-seed plant material. MPEP 2144.05 I also states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Additionally, MPEP 2112.01 states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The invention as taught by Galley et al. in view of Durante et al. uses an overlapping ratio of seed:non-seed material and an identical seed and non-seed material in hemp and pumpkin respectively. Therefore, the non-seed plant material would have the same amount of protein content.
Finally, Galley et al. teaches buffering the oil body solution to a pH between 6.5 and 10, before the homogenization step. [Pg. 27, Ln. 25-29] MPEP 2144.04 IV. C, states, “Selection of any order of mixing ingredients is prima facie obvious”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. in view of Durante et al. to develop a method of preparing an oil body solution, wherein the suspension comprises seed and non-seed plant material between 50:50 and 95:5, adjusting the pH of the solution to above 6, mechanically forming a slurry, diluting the slurry with a buffer, wherein the buffer has a pH between 6.5-10, filtering and centrifuging the slurry to form an oil body solution, and freeze drying the oil body solution to form a powder, wherein the non-seed plant material has a protein content between 4-25% and is selected from hemp seed and pumpkin non-seed plant material, thereby rendering claim 1 obvious.
With respect to Claim 2, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. Additionally, the protein content of the oil curd is taught to be 1-35%, [Pg. 14, Ln. 3-4] and the carbohydrate content is taught to be between 0.01-40%. [Pg. 17, Ln. 21-25] The plant material used in the composition would comprise an amount of protein and carbohydrate that overlaps with the amount in the final oil body solution, both of which overlap with the amount recited in claim 2. MPEP 2144.01 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. to develop a method of creating an oil body solution, wherein the protein content of the seeds is between 13-30% and the carbohydrate content is between 8-27% and the carbohydrate content of the plant material is between 16-35%, thereby rendering claim 2 obvious.
With respect to Claims 5, 16, and 17, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. Additionally, Galley et al. teaches suspending the plant material in an aqueous solution of phosphate buffer of pH 7.5, homogenizing the composition in the solution, and maintaining the pH of 7.5 in the curd composition. [Pg. 27, Ln. 25-33] Therefore, Galley et al. reads on claims 5, 16, and 17.
With respect to Claim 8, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. Additionally, Galley et al. teaches homogenizing the solution in a blender. [Pg. 27, Ln. 26-27] Therefore, Galley et al. reads on claim 8.
With respect to Claims 9 and 11, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. Additionally, Galley et al. teaches the average particle size of the oil body composition is between 0.1-10 µm, [Pg. 15, Ln. 8-11] and teaches filtering the slurry to obtain the oil body composition. [Pg. 27, Ln. 27-28] The range of particle size overlaps with the range recited in claim 11, and the method of particle size reduction is the same as recited in claim 9. Galley et al. is silent to the pore size of the filter, but MPEP 2112.01 I states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. Additionally, MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The process and composition taught by Galley et al., as substantially identical to the process and composition recited in claims 9 and 11, would utilize a filter with a pore size identical to the size recited in claim 9. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. in order to develop a method of producing an oil body solution wherein the solution is passed through a filter with a pore size of 200 µm or less and an average particle size between 4 and 26 µm, thereby rendering claims 9 and 11 obvious.
With respect to Claim 10, Galley et al. teaches the invention recited in claim 9, as described above. The method of Galley et al. comprises adding seeds to the extraction media, which comprises a buffer with a pH of 7.5, then homogenizing into a slurry, filtrating and centrifuging the slurry. [Pg. 27, Ln. 25-29] The pH of the buffer taught by Galley et al. reads on the pH of the recited solution. Additionally, the first and second retentate are fundamentally identical products that would be combined to form a third product for the same purpose, and MPEP 2144.06 I states, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”.
The recitation in claim 10 of, “filtered using a filter with a pore size of 200 µm or less, to provide a second retentate separated from a second filtrate”, amounts to a duplication of the method step recited in claim 9 of, “filtered using a filter with a pore size of 200 µm or less, to provide a first retentate separated from a first filtrate”. MPEP 2144.04 states, “that mere duplication of parts has no patentable significance unless a new and unexpected result is produced”. It would have been obvious to filter the retentate a second time in order to produce a more purified product.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. to develop a method of producing an oil body according to claim 9, wherein the method comprises suspending the first retentate in a buffer with a pH between 6.5-10, filtering through a 200 µm pore filter in order to obtain a second retentate, then combining the first and second retentate to produce the oil body solution, thereby rendering claim 10 obvious.
With respect to Claim 12, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. Though Galley et al. is silent to the solids content of the oil body, the process and composition taught by Galley et al. is substantially identical to the process and composition taught in claim 1. According to MPEP 2112.01 I, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”, therefore, it would have been obvious for the solids content to be identical to the amount recited in claim 12.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. to produce a method of extracting oil bodies from plant material according to the method of claim 1, wherein the solids content is between 1-15%, thereby rendering claim 12 obvious.
Claims 3 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Galley et al. (WO 2007/122422 A2) in view of Durante et al. (Effect of drying and co-matrix addition on the yield and quality of supercritical CO2 extracted pumpkin (Cucurbita moschata Duch.) oil, Food Chemistry), in further view of Gray (WO 2012/110797 A1).
With respect to Claim 3, 19, and 20, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above. The composition of Galley et al. is primarily seed material and the combination taught by Durante et al. teaches a ratio of 50:50 seed:non-seed plant material and Galley et al. teaches diluting the slurry with a buffer with a pH between 6.5-10.
MPEP 2144.05 I states, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”. The ranges resulting from Galley et al. in view of Durante et al. teach a ratio of seed:non-seed of 50:50 to 100:0 and a slurry diluted to between 6.5-10 pH, both of which overlap with the corresponding ranges of 50:50 to 85:15 recited in claim 19 and 8.5-10 pH recited in claim 20. MPEP 2144.05 I also states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Both references are silent to the omega-3 composition of the plant material.
Gray teaches a method of extracting an oil body from plant material and drying extracted oil. [Pg. 1, Ln. 3-4] Additionally, Gray teaches the beneficial effects of omega-3 fatty acids for medical and dietary reasons, [Pg. 1, Ln. 25-26] and teaches that omega-3 fatty acids can be extracted from plant seeds. [Pg. 2, Ln. 19-22]
Galley et al., Durante et al., and Gray et al. exist within the same field of endeavor in that they teach extraction processes for oil body solutions from plant material. Where Galley et al. teaches a general method of oil body solution extraction, Durante et al. teaches that pumpkin flesh is a valuable addition to a seed oil extraction, and Gray et al. teaches that omega-3 fatty acids are beneficial for nutritional and medical reasons. Though the references are silent to the omega-3 fatty acid content of the material, the process and composition taught by Galley et al. in view of Durante et al. is substantially identical to the process and composition taught in claim 1. According to MPEP 2112.01 I, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”, therefore, the composition would possess the amount of omega-3 fatty acid recited in claims 3 and 19.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. in view of Durante et al., further in view of Gray to produce a method of extracting an oil body from plant material as recited in claim 1, wherein the ratio of seed:non-seed plant material is 50:50-85:15, the pH is adjusted to between 8.5-10 in step b), and the omega-3 fatty acid content of the seed material is between 10-60%, thereby rendering claims 3, 19, and 20 obvious.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Galley et al. (WO 2007/122422 A2) in view of Durante et al. (Effect of drying and co-matrix addition on the yield and quality of supercritical CO2 extracted pumpkin (Cucurbita moschata Duch.) oil, Food Chemistry) in further view of Deckers et al. (6,146,645).
With respect to Claims 6 and 7, Galley et al. in view of Durante et al. teaches the invention recited in claim 1, as described above, but is silent to the temperature at which the composition is processed.
Deckers et al. teaches a method of extracting oil body solutions from plant material, [Col. 4, Ln. 15-20] wherein the temperature of the liquid before extraction is between 10-90°C. [Col. 8, Ln. 23-25] Additionally, Deckers et al. teaches imbibing the plant material for between 15 minutes to 2 days, prior to grinding. [Col. 8, Ln. 1-2] This temperature range overlaps with both temperature ranges recited in claim 6 and the time overlaps with the time recited in claim 7. MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Additionally, it would have been obvious to use a liquid to soak the seeds at a temperature for wet milling before being added to the mill, because according to MPEP 2144.04 IV C states, “Selection of any order of mixing ingredients is prima facie obvious”.
Galley et al., Durante et al., and Deckers et al. exist within that same field of endeavor in that they teach oil extraction methods from plant materials. Where Galley et al. teaches a general method of extraction from a variety of seed and plant material, Durante et al. teaches that pumpkin flesh is a valuable addition to a seed oil extraction, and Deckers et al. teaches an elevated temperature for oil extractions.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Galley et al. in view of Durante et al., in further view of Deckers et al. in order to develop a method according to claim 1, wherein the suspension in step a) is heated to between 90-120°C and cooled to 4-30°C for at least one hour, thereby rendering claim 6 and 7 obvious.
Response to Arguments
Applicant's arguments filed June 17, 2026, have been fully considered but they are not persuasive.
With respect to applicant’s assertion on Page 7, lines 6-7, “inclusion of the non-seed material together with the seed material significantly improved the odor stability of the oil body solution”. MPEP 2145 VI states, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims”. The claim does not recite a limitation related to odor stability, therefore, applicant’s assertion is not germane to the patentability of the invention.
Applicant’s remaining assertions with respect to claims 1, 19, and 20 have been considered but are moot because the new ground of rejection relies on a new reference not applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
For this reason, and those enumerated above, applicant’s assertions are found to be unpersuasive, and the rejections of claims 1-3, 5-12, and 16-20 are maintained.
Conclusion
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.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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