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 .
Claim status
Claims 1-18 filed 04/11/2024 are pending in the application and are hereby examined on the merits.
Claim Objections
Claims 1, 3, 10 and 12 are objected to because of the following informalities: “Halocynthia roretzi” should be presented in italic form. Appropriate correction is required.
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 4-9 and 13-18 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.
Claim 4 depends from claim 1 and recites that “wherein a plasmalogen content in a predetermined mass of the processed ascidian after freeze drying is 10% or more of the plasmalogen content in the predetermined mass immediately after freeze drying after a lapse of two months at room temperature”. It is not clear what the limitation means. For the purpose of examination, the limitation is construed to mean that “wherein a plasmalogen content in a predetermined mass of the processed ascidian that is stored at room temperature for two months is 10% or more of the plasmalogen content in the predetermined mass immediately after freeze drying”. Claims 5-9 and 13-18 are rejected for the same reason and are construed similarly. Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2 and 11 rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 2 depends from claim 1 and recites that the method further comprises “subjecting the processed ascidian to use of a plasmalogen contained in the processed ascidian”. However, since claim 1 recites “using the processed ascidian stored for two months or more as described above to use a plasmalogen contained in the processed ascidian”, claim 2 fail to further the subject matter of the claim upon which it depends.
Claim 11 is rejected for the same reason.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-2, 4-9, 10-11 and 13-18 are rejected under 35 U.S.C. 103 as being unpatentable over Shionoya WO00/44246 A1 (English translation relied upon for reference, hereinafter referred to as Shionoya).
Regarding claims 1-2 and 10-11, Shionoya teaches a method comprising freeze drying an ascidian (e.g., sea squirt) without encystment (e.g., tunic or outer skin is removed) to obtain a processed ascidian (e.g., dried sea squirt powder) (0007; 0018-0019). Shionoya additionally teaches storing the processed ascidian for a long time even at room temperature without losing taste or aroma (0032). Shionoya further teaches using the dried sea squirt powder as an ingredient in a food (0046-0047). Given that sea squirt inherently contains plasmalogen, including the dried sea squirt powder in a food necessarily encompasses the use of plasmalogen present in the dried sea squirt powder.
Regarding the duration of storing the processed ascidian, where Shionoya teaches that the dried sea squirt powder can be stored for a long time without losing taste or aroma, one of ordinary skill in the art would have been motivated to store the dried sea squirt powder any duration during shell life depending on when to use it.
Regarding claims 4-9 and 13-18, it is noted those claims are directed to the stability property of the processed ascidian or the dried sea squirt powder. In the instant case, given that prior art teaches the same step of freeze drying ascidian without encystment as the claimed invention, it logically follows that the stability property of the dried sea squirt powder as recited in claims 4-9 and 13-18 are encompassed by prior art. See 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Note that claims 7-9 and 17-18 do not recite an active step of storing the processed ascidian at a temperature of 35 °C.
Claims 3 and 12 rejected under 35 U.S.C. 103 as being unpatentable over Shionoya as applied to claims 1 and 10 above, and further in view of Bu CN 113416231 A (English translation relied upon for reference, hereinafter referred to as Bu).
Regarding claims 3 and 12, Shionoya as recited above teaches freeze drying the sea squirt but is silent regarding treating the sea squirt with hot water before performing the freeze drying.
Bu teaches a method of obtaining antioxidant polypeptides from sea squirt, comprising the step of carrying out enzymolysis on sea squirt inner capsule pieces, separating, purifying, and freeze-drying to obtain the antioxidant polypeptides (Abstract; 0008). Further, Bu teaches that the sea squirt raw material is boiled in water to inactive enzymes (0011;0019).
Both Shionoya and Bu are directed to processing sea squirt. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Shionoya by subjecting the sea squirt without encystment to a boiling process in water so as to inactivate the enzymes.
Claims 1-2, 4-9, 10-11 and 13-18 are rejected under 35 U.S.C. 103 as being unpatentable over Shionoya WO00/44246 A1 (English translation relied upon for reference, hereinafter referred to as Shionoya) in view of Takeshi JP2019162042A (cited in the IDS submitted 04/11/2024, English translation relied upon for reference, hereinafter referred to as Takeshi).
Regarding claims 1-2 and 10-11, Shionoya teaches a method comprising freeze drying an ascidian (e.g., sea squirt) without encystment (e.g., tunic or outer skin is removed) to obtain a processed ascidian (e.g., dried sea squirt powder) (0007; 0018-0019). Shionoya additionally teaches storing the processed ascidian for a long time even at room temperature without losing taste or aroma (0032). Shionoya further teaches using the dried sea squirt powder as an ingredient in a food (0046-0047).
Shionoya does not explicitly teaches using plasmalogen contained in the processed ascidian.
Takeshi in the same field of endeavor discusses the health benefit of plasmalogen (0004, e.g., applying plasmalogen to foods will support memory through daily consumption), teaches that ascidian contains plasmalogen (0005), and teaches extracting the freeze-dried sea squirt powder with a solvent followed by treating with a lipolytic enzyme to obtain an extract that comprises plasmalogen, and using the extract to make different food products (e.g., tablet, soft capsule, gummy, jelly, a soft drink, etc.) (0057; 0073;0075; 0077; 0079; 0081).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Shionoya by including the process of Takeshi on the stored dried squirt powder (e.g., extracting and lipolytic enzyme treatment to obtain the extract, and formulating the extract into a food product) for the aforementioned health benefit.
The process of subjecting the dried squirt powder to extraction and enzymatic treatment to obtain an extract and formulating different products with the extract reads on the limitation about using the stored processed ascidian to use a plasmalogen contained in the processed ascidian.
Regarding the duration of storing the processed ascidian, where Shionoya teaches that the dried sea squirt powder can be stored for a long time without losing taste or aroma, one of ordinary skill in the art would have been motivated to store the dried sea squirt powder any duration during shell life depending on when to use it.
Regarding claims 4-9 and 13-18, it is noted those claims are directed to the stability property of the processed ascidian or the dried sea squirt powder. In the instant case, given that prior art teaches the same step of freeze drying ascidian without encystment as the claimed invention, it logically follows that the stability property of the dried sea squirt powder as recited in claims 4-9 and 13-18 are encompassed by prior art. See 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Note that claims 7-9 and 17-18 do not recite an active step of storing the processed ascidian at a temperature of 35 °C.
Claims 3 and 12 rejected under 35 U.S.C. 103 as being unpatentable over Shionoya in view of Takeshi as applied to claims 1 and 10 above, and further in view of Bu CN 113416231 A (English translation relied upon for reference, hereinafter referred to as Bu).
Regarding claims 3 and 12, Shionoya as recited above teaches freeze drying the sea squirt but is silent regarding treating the sea squirt with hot water before performing the freeze drying.
Bu teaches a method of obtaining antioxidant polypeptides from sea squirt, comprising the step of carrying out enzymolysis on sea squirt inner capsule pieces, separating, purifying, and freeze-drying to obtain the antioxidant polypeptides (Abstract; 0008). Further, Bu teaches that the sea squirt raw material is boiled in water to inactive enzymes (0011;0019).
Both Shionoya and Bu are directed to processing sea squirt. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Shionoya by subjecting the sea squirt without encystment to a boiling process in water so as to inactivate the enzymes.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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