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 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 1-2, 7-10, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brooks et al (herein referred to as Brooks, CN 102271525 A)
With regard to Claim 1, Brooks teaches a method of preparing a food composition for an egg fluid substitute ([0014],[0019], [0201]), comprising the step of lysing microorganisms ([0166]-[0168]).
With regard to Claim 2, Brooks teaches the lysis is carried out by bead beating, blending, or French pressing ([0167]).
With regard to Claim 7, Brooks teaches the microorganism is an edible microorganism ([0009]).
With regard to Claim 8, Brooks teaches the edible microorganism is a microalga ([0014]).
With regard to Claim 9, Brooks teaches the edible microorganism is Chlorella spp. ([0014], [0064]).
With regard to Claim 10, Brooks teaches further comprising the step of adding a food additive to the lysed microorganism ([0211], Brooks reads such that addition emulsifiers, water, or other liquids can be added)
With regard to Claim 12, Brooks teaches the egg fluid is whole or part of the egg ([0201]).
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 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al (herein referred to as Brooks, CN 102271525 A) in view of Liu et al. (herein referred to as Liu, “Ultrasound for microalgal cell disruption and product extraction: A review”)
With regard to Claim 3, Brooks teaches the microorganism is lysed by is silent to the lysing being done by ultrasound.
Liu teaches to facilitate the release of these important biomolecules from microalgae, effective cell disruption is usually necessary, where the use of ultrasound has gained tremendous interest due to due to its advantages such as high efficiency, mild operating conditions, low toxicity, and time saving (abstract, 1. Introduction). Liu teaches regardless of the specific cause or causes of cell disruption under ,ultrasonic treatment, many factors could impact on the final result, and the overall cavitational effects can be influenced by various parameters such as ultrasound frequency, intensity and treatment time (3.1. Effects of ultrasonic parameters). Liu teaches the initial few seconds of sonication caused the most significant cell disruption in microalgae species with the time intact cells were halved being as low as 2 seconds in some species. Liu teaches sonication time is directly related and proportional to energy consumption, thus a short-period ultrasound process is always preferred (3.1.3. Treatment time). With regard to temperature Liu teaches considerable heat could be generated during ultrasonic processing, the sample temperature should be regulated, otherwise proteins and other intracellular metabolites could be damaged or destroyed (6.1. Ultrasound energy input and destruction of target compounds). Liu teaches this results in temperature rise and might cause destruction of target compounds, therefore, cooling is usually required during or after operation (3.3. Effects of sonochemical reactor design).
It would have been obvious to one with ordinary skill in the art to modify Brooks in view of Liu to use ultrasound (sonication) to lyse the cells because of its high efficiency, mild operating conditions, low toxicity, and time saving. It would be obvious to optimize the time of ultrasound to achieved the desired lysis result and Liu clearly shows time as low as 2s is sufficient to halve the amount of intact cells. In addition it would been obvious to include a cooling step as taught by Liu to avoid a rise in temperature that might cause destruction of desired compounds. See MPEP 2144.05(II)(A) "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) Lastly it would have been obvious to repeat the steps as needed to achieve the desired result. See MPEP 2144.05(II)(A) see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.");
With regard to Claims 4 and 5, The claims are specific to the microorganism being yeast (claim 4) or a bacterium (claim 5). In this case, the microorganism is a micro algae and therefore the limitations of the claims are not applicable to the micro algae and are thus the claims are properly rejected.
Claim 6 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al (herein referred to as Brooks, CN 102271525 A).
With regard to Claim 6, Brooks teaches a method of preparing a food composition for an egg fluid substitute ([0014],[0019], [0201]), comprising the step of lysing microorganisms ([0166]-[0168]). Wherein the lysing method ([0167]) and the microorganism ([0014], [0064]) is substantially identical to what is claimed. Therefore one with ordinary skill in the art would recognize the lysed microorganism would inherently be in a colloidal state and turn into a gel having a young’s modulus of 10 to 60 kPa upon heating as claimed. 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. Also see MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this case, Brooks teaches the claimed method and the claimed microorganism therefore the lysed microorganism taught by Brooks with inherently have the claimed properties.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al (herein referred to as Brooks, CN 102271525 A) in view of Kizer et al. (herein referred to as Kizer, US 20190000112 A1)
With regard to Claim 11, Brooks teaches further comprising the step of adding a food additive to the lysed microorganism ([0211], Brooks reads such that addition emulsifiers, water, or other liquids can be added).
However Brooks is silent to the additive being maltodextrin and/or transglutaminase.
Kizer teachesfFood products, such as egg substitutes, that are derived from non-animal sources including unicellular algae (abstract, [0074], [0079]). Kizer teaches the product analogs and/or food product analogs comprise other ingredients that improve one or more of the following: color, taste, and nutritional and other qualities. These ingredients include maltodextrin used a sweetener ([0236]-[0238]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Brooks in view of Kizer to include maltodextrin to improve the color, taste, and/or nutritional qualities of the product.
Claims 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al (herein referred to as Brooks, CN 102271525 A) in view of Dillon et al. (herein referred to as Dillon, US 20120135479 A1)
With regard to Claims 13 and 14, Brooks teaches a method of preparing a food composition for a milk substitute([0014],[0019], [0057], [0205]), comprising the step of lysing microorganisms ([0166]-[0168]).
However, Brooks is silent to heating the microorganism.
Dillon teaches methods for extracting, recovering, isolating and obtaining a lipid from a microorganism (abstract). Dillon teaches methods of lysing cells which includes heating the microorganism, wherein the temperature is typically at least 50℃ ([0024]). 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. Dillon teaches heating degrades or breaks down the cell walls and membranes of the microorganisms ([0259]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Brooks to include heating the microorganism as taught by Dillon to degrade the cell walls and membranes of the microorganism.
With regard to Claim 15, Brooks teaches the lysis is carried out by bead beating, blending, or French pressing ([0167]).
With regard to Claim 16, Brooks teaches the edible microorganism is Chlorella spp. ([0014], [0064]).
Claims 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Brooks et al (herein referred to as Brooks, CN 102271525 A) in view of Dillon (US 20120135479 A1) and Schiff-Deb (US 20150352034 A1)
With regard to Claim 17, Brooks teaches a method of preparing a food composition for a milk substitute([0014],[0019], [0057], [0205]), comprising the step of lysing microorganisms ([0166]-[0168]).
However, Brooks is silent to heating the microorganism.
Dillon teaches methods for extracting, recovering, isolating and obtaining a lipid from a microorganism (abstract). Dillon teaches methods of lysing cells which includes heating the microorganism, wherein the temperature is typically at least 50℃ ([0024]). 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. Dillon teaches heating degrades or breaks down the cell walls and membranes of the microorganisms ([0259]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Brooks to include heating the microorganism as taught by Dillon to degrade the cell walls and membranes of the microorganism.
However, the combination of Brooks and Dillon is silent to diluting the lysed microorganisms with water.
Schiff-Deb teaches compositions containing microalgae or microalgal components (abstract). Schiff-Deb teaches mechanically lysing and homogenizing algal biomass ([0125]). Schiff-Deb teaches cells can be lysed without separation from some or all of the fermentation broth when the fermentation is complete. For example, the cells can be at a ratio of less than 1:1 v:v cells to extracellular liquid when the cells are lysed ([0137]). One with ordinary skill in the art would recognize that in a ratio a less than 1:1 there would more an excess of liquid compared to the biomass and therefore the biomass would be diluted.
Therefore, Schiff-Deb imparts reasoning for obviousness because the teaching shows that diluting microorganisms prior to lysing was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to dilute the desired microorganism prior to lysing, because it would be 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.
With regard to Claim 18, Brooks teaches the lysis is carried out by bead beating, blending, or French pressing ([0167]).
With regard to Claim 19, Brooks teaches a method of preparing a food composition for a milk substitute([0014],[0019], [0057], [0205]), comprising the step of lysing microorganisms ([0166]-[0168]).
However, Brooks is silent to heating the microorganism and the temperature at which the microorganism is heated.
Dillon teaches methods for extracting, recovering, isolating and obtaining a lipid from a microorganism (abstract). Dillon teaches methods of lysing cells which includes heating the microorganism, wherein the temperature is typically at least 50℃ ([0024]). 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. Dillon teaches heating degrades or breaks down the cell walls and membranes of the microorganisms ([0259]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Brooks to include heating the microorganism to at least 50℃ as taught by Dillon to degrade the cell walls and membranes of the microorganism.
With regard to Claim 20, Brooks teaches the edible microorganism is Chlorella spp. ([0014], [0064]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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/K.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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