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 .
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 1-15 are 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.
The terms “pressurized” and “hot” in the phrase “pressurized hot water Extraction” are indefinite. Both terms are not explicitly defined in the specification or the claims. Examples of possible pressures and temperatures are given in the specification, but no solid range for either temperature or pressure is stated. Thus it is impossible to determine what temperature or pressure may qualify to meet the limitations of the claims. For the purpose of this office action it is assumed any temperature or pressure above standard room temperature or pressure meets the limitations of the claims. This phrase is present in both independent claims and the rejection applies to all dependent claims.
The term “volume of water is varied” in claim 4 is indefinite. It is unclear is the water volume must be varied during the extraction process or may be varied be for batches of production or both. For the purpose of this office action it is assumed that any variability of water in any way meets the limitations of the claims.
The term “time or extraction is varied to adjust the resulting extraction product yield” is indefinite in claim 6. Specifically the term “extraction” after the word “time”. It is unclear what variable (heat, pressure or other) may be varied to increase “extraction” or what limitations that may imply. The variable as stated for the word “extraction” cannot be product yield, as that must be varied by the claim limitations at the end.
The term “pressure of the extraction vessel” in claim 7 is indefinite. It is unclear is the pressure must be varied during the extraction process or may be varied be for batches of production or both. For the purpose of this office action it is assumed that any variability pressure in any way meets the limitations of the claims.
The term “overly degrade” in claim 11 is indefinite. The method/test/physical parameter that is to measure degradation is not given or implied. Furthermore, the variability or the method/test/physical parameter to be “overly degraded” is not stated or implied. This term is not defined in the specification of claims. For the purpose of this office action, if the carotenoids are not completely destroyed it is assumed to meet the limitation of the claim of “overly degraded”.
Claims 11 is also indefinite for the following phrase. “where the pressure, temperature, and time components are monitored such that the dielectric constant of water changes as pressure increases which allows for greater solubilization of more hydrophobic compounds” implies no clear claim limitations. Monitoring is a passive action, and does not imply changing any or the physical properties of the mixture. What physical property (temperature, pressure or other) that should be monitored or possibly changed to effect what outcome is not clear. For the purpose of this office action it is assumed that any knowledge or recording of temperature or pressure or time meets the limitations of this claim.
The term “chromatography” in claims 8 and 15 are indefinite. Chromatography is a method of composition analysis. In no way is chromatography a refining step as the action of analysis itself does change the makeup of a composition.
The following is a list of terms which lack antecedent basis, and the claims the term is found in.
“starting material” in claim 3. “Solvent” in claim 5. “extraction vessel” in claim 7. “co-solvents” in claim 14 as water is not previously defined as a solvent. “hydrophobic compounds” in claim 11.
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.
Claim(s) 1-8, 10-12 and 14-15 is/are rejected under 35 U.S.C. 102(a1/a2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Caulfield et al (US 2017/0183377 A1).
Caulfield teaches a method of producing carotenoids (abstract) from a biomass.
The biomass is distillers grains, see p 17.
The process includes adding, monitoring, and adjusting the heat, pressure and time for extraction. See p 16. This is done to optimize whatever is wished from the extraction process, see p 28-29. The amount of feedstock used increase the amount of product yield.
The solvents used include water and other solvents such as alcohols, see p 14,20. The product is subject to further refinement such as separation, fractionalization, and centrifugal force. See p 34-38.
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.
Claim(s) 9 and 13 is/are rejected under 35 U.S.C. 103 as obvious over Caulfield et al (US 2017/0183377 A1) and Englert et al (US 2016/0083766 A1).
To see what Caulfield teaches please see above. Caulfield does not specifically state what carotenoids are present in the distiller grain.
Englert teaches a method of producing Carotenoids from distillers grain and/or corn. See abstract and p 25. This includes lutein or zeaxanthin. See abstract and P.7.
Englert is used here to show that an obvious variant of the carotenoids production found in the process of Caulfield when using corn or distillers grain is one with lutein and/or zeaxanthin. This carotenoids are present in such feedstocks and the purpose of both inventions is to obtain carotenoids.
In the alternative it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use to process of Caulfield to produce the carotenoids lutein and/or zeaxanthin as found in Englert. The purpose of the process of Caulfield is to produce said carotenoids, and these carotenoids are found in the used feedstock.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FRANK C CAMPANELL whose telephone number is (571)270-3165. The examiner can normally be reached Monday-Friday 9:00-5:00.
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/FRANCIS C CAMPANELL/Examiner, Art Unit 1771
/PREM C SINGH/Supervisory Patent Examiner, Art Unit 1771