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 .
Election/Restrictions
Applicant's election with traverse of Group I (Claims 1-2, 4-12, and 14-15) in the reply filed on 02 April 2026 is acknowledged. The traversal is on the ground(s) that the combination of Michailovna and Dong does not disclose, teach, or suggest the same method as recited in claim 1. Applicant argues that there is no extraction of the solid phase using an alkaline solution This is not found persuasive because Michailovna clearly states the third seaweed reside may be treated with an alkaline solution, such as of sodium hydroxide (page 9 lines 17-18). In addition applicant argues that Michailovna teaches a “hot water extraction” step which is not included in the method of the present claims and thus the technical different is that the animal feed is obtained in the presented processes using fewer steps than taught by Michailovna. This is not found to be persuasive because Michailovna teaches all the claimed limitations of claim 1 and thus clearly teaches the same methodology regardless of the inclusion of the “hot water extraction”.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 7, 9, and 14-15 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 7, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 9, the claim states “the reactive extraction is carried out with base” (emphasis added). In this case, it is unclear to what “base” is referring to and thus renders the claim indefinite because it is unclear what the “base” limitation is in reference to. In addition the claims sates in parenthesis “(5-10% aqueous solution)” in this case there is a question or doubt as to whether the range in the parenthesis is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 14 recites the broad recitation “a temperature of 0℃ to 80℃”, and the claim also recites “preferably 0℃ to less than 40℃, more preferably 10℃ to less than 40℃” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 15 recites the broad recitation a “temperature of 0℃ to 80℃”, and the claim also recites “preferably 60℃ to 80℃” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
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, 10, 12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Michailovna et al. (herein referred to as Michailovna, WO 2005/014657 A1) in view of Dong et al. (herein referred to as Dong, “Determination of the Extraction, Physicochemical Characterization, and Digestibility of Sulfated Polysaccharides in Seaweed—Porphyra haitanensis”)
With regard to Claim 1, Michailovna teaches a method of processing seaweed (Abstract) wherein the concentrates obtained from the seaweed can be used as a feed additive (page 10, lines 9-10). Michailovna teaches providing a mixture of algae and alcohol (page 4, lines 15-16). Michailovna reads such that the treatment with alcohol results in an alcoholic fraction and an insoluble first seaweed residue which comprises polyphenols, mannitol, carotenoids, amino acids, oligosaccharides, iodine, mineral salts and B vitamins (page 7, lines 26-19). One with ordinary skill in the art would recognize that to extract the components listed above, the cell structure would inherently have to be broken.
Michailovna teaches the separation of the algae and alcohol mixture to obtain a liquid phase and a solid phase and recovering the obtained phases separately (page 7, lines 17-29)
Michailovna teaches the first seaweed residue (i.e., the “solid phase”) can be further treated by the addition of an aqueous acidic solution into the solid phase and recovering the purified solid phase and the aqueous phase separately (page 8, lines 1-17).
Michailovna teaches extraction of the second seaweed residue (i.e., the solid phase obtained in step c) can be treated with hot water and then subsequently treated with an alkaline solution (page 8, lines 19-20 and page 9, lines 17-25).
Michailovna teaches the method allows the seaweed to be processed to obtain a range of different fractions and extracts including polysaccharides with standard characteristics (page 9, lines 27-30) and allows a concentrate rich in biologically active low molecular weight compounds to be obtained (page 10, lines 4-7).
However, Michailovna is silent to step a) being performed with water, rather Michailovna teaches mixing the algae with ethanol (page 4, lines 15-16).
Dong teaches extracting polysaccharides from seaweed using water extraction and alcohol precipitation (abstract). Dong’s method involves treating the seaweed with distilled water followed by a separation step (3.2. Extraction of PHPs). Dong teaches this extraction method has little effect on the structure and function of polysaccharides and high yield (4. Conclusion).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Michailovna in view of Dong to utilize water as the extraction solvent in step a) to have a high yield of polysaccharides with little effect on the structure and function of the polysaccharide.
With regard to Claim 2, Michailovna teaches wherein the pretreatment includes a mechanical pretreatment (page 7 lines 10-15).
With regard to Claim 5, Michailovna teaches the separation in step b) is carried out using aqueous solution containing alcohol (page 4 lines 15-16, page 7 lines 17-29).
With regard to Claim 6, Michailovna teaches the liquid phase obtained in step b) contains pigments (carotenoids), tannins (polyphenols), and proteins (amino acids) (page 7 lines 26-28).
With regard to Claim 7, Michailovna teaches the purification in step c) is performed using an effective amount of hydrochloric acid (page 8 lines 1-5)
With regard to Claim 8, Michailovna teaches the extraction performed in step d) is performed using an aqueous solution of sodium hydroxide (NaOH, page 9 lines 17-25).
With regard to Claim 10, Michailovna teaches the macroalgae is brown macroalgae (Michailovna reads such that the macroalgae is brown seaweed) (page 6 lines 24-25).
With regard to Claim 12, Michailovna teaches separating the liquid phase obtained (step b) to provide a product A and residue solid material separately (page 7 lines 17-29). Michailovna teaches the product A comprises polyphenols, mannitol, carotenoids, amino acids, oligosaccharides, iodine, mineral salts and B-vitamins (page 7 lines 26-28). One with ordinary skill in the art would recognize that carotenoids is well known in the art to be utilized as a pigment. Therefore Michailovna reads such that product A can be pigments
With regard to Claim 14, Michailovna teaches step a) is performed at a temperature of about 40-60°C (pager 7 lines 17-19). Michailovna teaches step d) is performed at a temperature of 55-65°C (pager 9 lines 17-20). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. It is important to note that Michailovna does not specify the exact temperatures for steps b) and c), however one with ordinary skill in the art can reasonably deduce that if a temperature is not specified the step most likely is not temperature dependent and is most likely performed at room temperature which is within the range limited by the claim. Therefore it would be obvious to one with ordinary skill in the art to determine the appropriate temperature for steps b) and c) based on the desired results. See MPEP 2144.05(II)(A) 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.".
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Michailovna (WO 2005/014657 A1) in view of Dong “Determination of the Extraction, Physicochemical Characterization, and Digestibility of Sulfated Polysaccharides in Seaweed—Porphyra haitanensis”) and Li et al (herein referred to as Li, CN 102417548 A)
With regard to Claim 4, Michailovna is silent to the chemical pretreatment performed by degradation of plant cell walls with formic acid blends.
Li teaches a method of extracting active polysaccharide from brown seaweed (abstract). Li teaches under the certain condition, organic acid to plant cell wall carbohydrates (cellulose and hemicellulose) is partially hydrolyzed and dissolved. If using this organic acid system in extraction of brown active polysaccharide, it is possible by controlling the technological conditions, the cell wall cellulose and algin substance partially degradable, so as to change the structure layer of the brown algae cell wall, the intracellular active ingredient quickly dissolving, cell wall polysaccharides can be released as soon as possible ([0030]). Li teaches the organic acid used may be formic acid or a formic acid blend (claim 4).
Therefore, Li imparts reasoning for obviousness because the teaching shows the formic acid blends were known to degrade the cell walls of brown seaweed (macroalgae) successfully and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select a formic acid blend, because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Michailovna (WO 2005/014657 A1) in view of Dong “Determination of the Extraction, Physicochemical Characterization, and Digestibility of Sulfated Polysaccharides in Seaweed—Porphyra haitanensis”) and Abbas et al. (herein referred to as Abbas, WO 2008109111 A2).
With regard to Claim 9, Michailovna is silent to the solid phase obtained in step c being fed through a twin screw press extruder.
Abbas teaches methods of treating an edible fiber source to make an animal feed (abstract). Abbas teaches the method includes contacting an edible fiber source in a mixture with an inorganic fiber hydrolyzing agent such as sodium hydroxide and potassium hydroxide (page 3 lines 30-32, page 5 lines 12-16). Abbas teaches the process can be conducted in batch or continuous modes wherein the continuous mode advantageously occurs in a co-rotating extruder wherein the twin screw extruder is used as the mixing device (page 4 lines 9-28). One with ordinary skill in the art would recognize that a twin screw extruder would be equivalent to a twin screw press extruder.
Therefore, It would have been obvious to one with ordinary skill in the art to modify Michailovna to in view of Abbas to utilize a twin screw extruder (twin screw press extruder) as a mixing device for the reactive extraction.
Claim 11 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Michailovna (WO 2005/014657 A1) in view of Dong “Determination of the Extraction, Physicochemical Characterization, and Digestibility of Sulfated Polysaccharides in Seaweed—Porphyra haitanensis”) and Gong et al. (herein referred to as Gong, CN 1563072 A)
With regard to Claims 11 and 15, Michailovna teaches the solid phase obtained in step c can be treated with hot water and then subsequently treated with an alkaline solution (page 8, lines 19-20 and page 9, lines 17-25). Michailovna teaches the method allows the seaweed to be processed to obtain a range of different fractions and extracts including polysaccharides with standard characteristics (page 9, lines 27-30) and allows a concentrate rich in biologically active low molecular weight compounds to be obtained (page 10, lines 4-7).
However, Michailovna is silent to extracting the biomass obtained in the above process to provide phytosterols and purified macroalgae biomass product animal feed and recovering the products separately.
Gong teaches a method for extracting phytosterol from seaweed (abstract, [0002]). Gong teaches Fucosterol is a plant sterol that can inhibit carcinogenesis induced by chemical carcinogens and has the function of preventing and treating cancer. ([0004]). Gong teaches the production of fucosterol from seaweed has the advantages of simple process, relatively low production cost, and abundant raw material resources ([0008]). Gong teaches extracting the fucosterol with an extraction solvent at a temperature of 60℃ ([0011]-[0013]) and separating the solid and liquid fractions wherein the liquid fraction contains the fucosterol ([0013]). See MPEP 2144.05(I) 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 with ordinary skill in the art to modify Michailovna to add a step to extract fucosterol because fucosterol is a desirable product that can inhibit carcinogenesis induced by chemical carcinogens and has the function of preventing and treating cancer. Michailovna clearly teaches the process can be used to obtain a range of different fractions and a purified macroalgae biomass and therefore the addition of the teachings of Gong to extract fucosterol, including the step performed at 60℃, would have been obvious because the idea of combining Michailovna and Gong flows logically from their having been individually taught in the prior art.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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