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 § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 10 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. In this case, Claim 10 states “a marine or freshwater algal species, in particular an extract, an oil or a refinement of Ulva lactuca”, in the specification filed 19 March 2024 and the foreign priority document filed 27 September 2022 the applicant teaches “a marine or freshwater algal species, in particular an extract, an oil or a refinement of Eisenia bicyclis” However the specification filed 19 March 2024 and the foreign priority document filed 27 September 2022 do not further teach specifically “Ulva Lactuca”. Therefore, because the species are not consistent between the specification and the claims, the subject matter was not clearly described in the specification.
Claim 10 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. In this case, Claim 10 states “a marine diatom species, in particular an extract, an oil or a refinement of Thalassiosira pseudonana, Thalassiosira rotula, or Chaetoceros muelleri”, in the specification filed 19 March 2024 and the foreign priority document filed 27 September 2022 the applicant teaches “a marine diatom species, in particular an extract, an oil or a refinement of Phaeodactylum tricornutum” However the specification filed 19 March 2024 the foreign priority document filed 27 September 2022 does not further teach specifically “Thalassiosira pseudonana, Thalassiosira rotula, or Chaetoceros muelleri”. Therefore, because the species are not consistent between the specification and the claims, the subject matter was not clearly described in the specification. The examiner will thus examine the claim as the following “a marine diatom species, in particular an extract, an oil or a refinement”
Claim Rejections - 35 USC § 112(b)
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, 3, 4, 6, 7, 8-13, 16 and 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 1 recites the limitation "the non-pollen composition" in the second bullet point. There is insufficient antecedent basis for this limitation in the claim.
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 1 recites the broad recitation “proteins in an amount from 10 w% to 50 w%”, and the claim also recites “preferably of 20 w% to 40 w%”, which is the narrower statement of the range/limitation. In addition claim 1 recites the broad recitation, “fatty acids in an amount from 1 w% to 20 w%”, and the claim also recites “preferably of 4 w% to 12 w%”. 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.
The term “nutritionally effective amount” in claims 3 is a relative term which renders the claim indefinite. The term “nutritionally effective amount” is first defined in lines 3 and 17 of claim 1 as “0.01 w% to 1 w%” and then further defined differently in claim 3 as “a daily dosage to a colony of 30,000 of 15 mg to 6000 mg”. The above are two different measurements being defined by the same term and thus make the claim unclear. The examiner suggests that applicant delete the phrase “nutritionally effective amount” in claim 3 to clarify the claim.
Claims 4, 6, 7, 8-13, 16 and 18 are rejected due to their dependency on the above rejected 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.
Claim 1, 3, 4, 6-9, 12-13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Guo et al. (herein referred to as Guo, EP 3881685 A1) in view of Doane et al. (herein referred to as Doane, WO 2016004312 A1) and Panickar et al. (herein referred to as Panickar, WO 2018089723 A1).
With regard to Claim 1, Guo teaches a method for feeding invertebrates ([0103]). Guo teaches providing a pollen substitute composition ([0111]) comprising proanthocyanidins ([0085], [0127], [0133] i.e., condensed tannins). Guo teaches administering the pollen substitute to invertebrates ([0103]) wherein the pollen substitute composition is administered to honey bees ([0126], Guo reads such that the administration of the product improves honey quality, therefore the bees would inherently be honey bees if they are producing honey). Guo teaches wherein the proanthocyanidins are provided as part of the pollen substitute compositions ([0085]). Guo teaches the proanthocyanidins are present in the aqueous extract of the Ceratonia siliqua Linn. fruit of the present invention in an amount of 15% to 20% ([0133]) and Ceratonia siliqua Linn. is present in the composition in 5 to 120 parts by weight (claim 11). Therefore proanthocyanidins would be present in an amount of about 0.24% to about 24% given the other components in the composition. 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. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) Guo teaches wherein the pollen substitute comprises protein, carbohydrates, vitamins and minerals from cactus extract ([0112]). Guo teaches by optimizing the ratio of the extract of the pericarp of the Ceratonia siliqua Linn. fruit to the cactus extract in the bee feed, the inventors further find that the bee feed prepared from the extract of the pericarp of the Ceratonia siliqua Linn. fruit and the cactus extract at a specific ratio has better effects of improving immunity and reducing mortality of bees ([0112]). Therefore, it would be obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to optimize the amount of cactus extract to achieve the desired amount of protein, carbohydrates, vitamins and minerals in the feed to improve immunity and reduce mortality. 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." Guo teaches the composition does not comprise pollen (claim 1). Guo teaches wherein the protein, carbohydrates, vitamins and minerals and optionally further components add up to 100 w% ([0112], Claim 11). Guo teaches the components of the composition in parts by weight and therefore easily be related to the dry weight of the compositions (claim 11).
However, Guo is silent the pollen substitute comprising fatty acids.
Doane teaches insect feeds and methods of feeding such insect feeds to insects, such as bees (abstract). Doane teaches specific fatty acids (C-2 to C-24) may also be added to the insect feed such as the short chain volatile fatty acids ([0034]). Doane teaches those of ordinary skill in the art understand that an optimal balance of amino acids, fatty acids, macro- and micro-minerals, vitamins, and carbohydrates from a variety of sources are needed to provide the optimal levels and balance of these nutrients to support optimal growth and health ([0018]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Guo in view of Doane to include fatty acids to provide the optimal levels and balance of these nutrients to support optimal growth and health.
In addition, Guo is silent to the proanthocyanidins being in oligomeric form, in catechin form, in epicatechin form, in epi-gallocatechin form, in gallocatechin form, in epiafzelechin form, or in afzelechin form.
Panickar teaches a feed composition (abstract). Panickar teaches proanthocyanidins are polyphenolic flavonoids and many of these proanthocyanidins are dimers, trimers or oligomers of catechins and epicatechins, which are also polyphenols ([0045]).
Panickar imparts reasoning for obviousness because the teaching shows that utilization of proanthocyanidins in catechin and epicatechin form in a feed was known to be 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 selected proanthocyanidins in catechin and epicatechin form because it would be obvious to one of 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 3, Guo teaches the proanthocyanidins is an anti-oxidant component and plays a role in supplementing nutrients, lowering blood lipid level and regulating blood glucose ([0085]) and can be administrated daily to groups of bees ([0319]). Therefore, it would have been obvious to one with ordinary skill in the art to optimize the dosage of proanthocyanidins to the colony to achieve the desired anti-oxidant effect as well as the appropriate amount to supplement nutrients, lowering blood lipid level and regulating blood glucose.
With regard to Claim 4, Guo teaches the composition is a whole invertebrate diet ([0319]).
With regard to Claim 6, Guo teaches the composition was administered outside the hive ([0319]).
With regard to Claim 7, Guo teaches the source of the proanthocyanidins is a non-pollen tissue from fruit ([0012]).
With regard to Claim 8, Guo teaches the source of the proanthocyanidins is an extract ([0089]).
With regard to Claim 9, Guo teaches the source of the proanthocyanidins is a non-pollen tissue from the group Fabaceae ([0012], one with ordinary skill in the art would recognize that Ceratonia siliqua Linn. is in the Fabaceae family).
With regard to Claim 12, Guo teaches the source of the proanthocyanidins is from a plant and the source is a non-pollen tissue ([0084])
With regard to Claim 13, Guo teaches wherein proanthocyanidins are provided to a eusocial been colony ([0319])
With regard to Claim 16, Guo teaches the composition is essentially free of pollen (claim 1, whole document).
Claim 10 rejected under 35 U.S.C. 103 as being unpatentable over Guo (EP 3881685 A1) in view of Doane (WO 2016004312 A1) Panickar (WO 2018089723 A1) and Aslan et al. (herein referred to as Aslan, “ Monitoring the antioxidant activities by extracting the polyphenolic contents of algae collected from the Bosphorus”)
With regard to Claim 10, Guo is silent to wherein the source of the proanthocyanidins is a non-pollen source selected from the group consisting of a marine or freshwater algal species.
Aslan teaches the identification and quantification of ascorbic acid, phenolic acids and flavonoids from Ulva Lactuca (abstract). Aslan teaches extracting catechin from Ulva Lactuca (page 314). Per applicants specification proanthocyanidins are formed through epimerization of catechins (background) and per claim 1, “catechin form” is an acceptable proanthocyanidin for the claimed invention.
Therefore, Aslan imparts reasoning for obviousness because the teaching shows that Ulva Lactuca extract as a source of proanthocyanidins was known to be 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 selected Ulva Lactuca extract as a source of proanthocyanidins because it would be obvious to one of 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 11 rejected under 35 U.S.C. 103 as being unpatentable over Guo (EP 3881685 A1) in view of Doane (WO 2016004312 A1), Panickar (WO 2018089723 A1), and Ferreira et al. (herein referred to as Ferreira, “Towards the Synthesis of Proanthocyanidins: Half a Century of Innovation”).
With regard to Claim 11, Guo is silent to wherein the proanthocyanidins are chemically synthesized.
Ferreira teaches the chemical synthesis of proanthocyanidins (Introduction, Figure 3).
Therefore, Ferreira imparts reasoning for obviousness because the teaching shows that the chemical synthesis of proanthocyanidins was known to be 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 selected chemical synthesis of proanthocyanidins because it would be obvious to one of 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 18 rejected under 35 U.S.C. 103 as being unpatentable over Guo (EP 3881685 A1) in view of Doane (WO 2016004312 A1), Panickar (WO 2018089723 A1), and Shin et al. (herein referred to as Shin, JP 2002199848 A)
With regard to Claim 18, Guo is silent to wherein the proanthocyanidin is Procyanidin B 1, Procyanidin B2, Procyanidin B3 and/or Procyanidin B4.
Shin teaches a formulated feed for aquatic invertebrates contains proanthocyanidin, and the method for feeding aquatic invertebrates comprising giving them the formulated feed (abstract). Shin teaches the composition the composition comprises apple phenome which contains proanthocyanidin B1 and proanthocyanidin B2 ([0007], [0012]).
Therefore, Shin imparts reasoning for obviousness because the teaching shows that invertebrate feed containing proanthocyanidin B1 and proanthocyanidin B2 was known to be 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 selected proanthocyanidin B1 and proanthocyanidin B2 for the use in invertebrate feed because it would be obvious to one of 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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792