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 .
DETAILED ACTION
Claims 1-3 filed on 04/04/2024 are acknowledged. No preliminary amendment was filed.
Priority
This application claims foreign priority to CHINA 2023100722929 filed on 02/07/2023.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1 and 2 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more than the judicial exception.
The claim is evaluated below using the “Subject Matter Eligibility Test for Products and Processes” flow chart as shown in MPEP § 2106 III.
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Yes. The claims are drawn to a composition of matter and the method (process) of obtaining the composition which are two of the four statutory categories.
Step 2A, Prong One: Do the claims recite an abstract idea, law of nature, or natural phenomenon?
Yes, the claims are directed to a natural phenomenon. Claim 1 is directed towards a chlorella galactomannan (CM) with a general structure of
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As evidenced by the instant specification, the CM is a compound obtained by separation and purification of Chlorella pyrenoidosa, Chlorella ellipsoidea, Chlorella emersoni, Chlorella kesslerii, or Chlorella vulgaris (instant specification paragraph 0040-0045). There is no indication in the record that isolation of the CM results in a marked difference in structure, function or other. As such, this is a product of nature exception.
Claim 2 is directed towards the product by process from which the CM is extracted including the starting material, a Chlorella dry powder, and the extraction, separation, and purification of the CM. These limitations do not impart a markedly different characteristic to the CM that results in a marked difference in structure, function or other. As such, this is a product of nature exception.
Step 2A, Prong Two: Do the claims recite additional elements that integrate the judicial exception into a practical application?
No. Regarding claim 1, there are no additional steps recited in the claim that integrate the judicial exceptions into a practical application. The judicial exception is not integrated into a practical application because the claims do not require the addition of anything beyond the compound of the CM.
Regarding claim 2, the claim is a product by process, resulting in the compound CM that does not impart a markedly different characteristic to the CM that results in a marked difference in structure, function or other. The judicial exception is not integrated into a practical application because the claims do not require the addition of anything beyond the compound of the CM.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No. The judicial exceptions are recited without additional limitations amounting to significantly more than the judicial exceptions.
While claim 2 requires the preparation of the CM from Chlorella dry powder before performing separation and purification, these are considered to be insignificant extra-solution activity that do not amount to more than the recited judicial exceptions. See MPEP 2106.05(g). The specification does not teach that the method of extracting and purifying the CM from a Chlorella powder results in a markedly different characteristic. Therefore, the claim does not include additional elements that are sufficient to amount to significantly more than the product of nature exception as those additional elements were well understood, routine and conventional in the field as taught above.
As the instant claims recite judicial exceptions that are not integrated into a practical application and recite no elements that amount to significantly more than the judicial exceptions, the claims were found to not be drawn to eligible subject matter under 35 USC 101.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Suarez et al. (US 2011/0104189 A1, published 05/05/2011, PTO-892).
Suarez is drawn to compositions obtained from Chlorella polysaccharide extract (title). Suarez exemplified a hot water extraction of chlorella pyrenoidosa dry powder, precipitating the crude extract with ethanol, and resuspended in water (paragraphs 0238-0241). As evidenced by the instant specification, the instant CM was obtained from Chlorella pyrenoidosa after extraction with hot water (instant specification paragraphs 0054-0060 and Fig 1). Therefore, a hot water extract of the dry powder of Chlorella pyrenoidosa would necessarily contain the CM of the instant invention and would meet the limitations of instant claim 1 and 2. MPEP 2112(II) makes clear that there is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. Furthermore, MPEP 2145 states that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.
Accordingly, the claims are anticipated by the art.
Allowable Subject Matter
The following is an examiner’s statement of reasons for allowance:
Instant claim 3 is drawn to a sulfated Chlorella mannogalactan (SCM) compound, comprising an SCM derivative or pharmaceutically acceptable salt thereof, having a general formula below wherein R1 is one or more of H or the -SO3H; n is an integer of 1-10; the SCM has a peak molecular weight of 10 kDa-35 kDa and a polydispersity index of 1-3, and the SCM compound has a content of sulfate groups of 20%-60% and the SCM compound is obtained by sulfation modification of the CM. The SCM was obtained by a sulfation modification method of the CM obtained from the Chlorella dry powder (instant specification paragraphs 0064-0066).
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SCM general formula
The closest prior art, Suarez et al. (US 2011/0104189 A1, published 05/05/2011, PTO-892) is discussed above. While Suarez teaches the hot water extraction of Chlorella dry powder, Suarez does not disclose the exact CM of instant claim 1. Suarez does not teach the sulfonation of the polysaccharides extracted from Chlorella. Therefore, the instantly claimed compound is non-obvious over the closest applicable prior art of Suarez.
Conclusion
Claim 3 is allowed.
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/S.L.S./Examiner, Art Unit 1693
/SCARLETT Y GOON/Supervisory Patent Examiner, Art Unit 1693
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