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
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.
Claim 5 is 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 5 recites the limitation "the plant-derived protein" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, Claim 5 will be interpreted as reciting the limitation “The preparation method of biomass granules according to claim 3”.
Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 3-7, 10-11, 14-15 and 17-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Alt et al. (US 2009/0196954 A1).
With respect to Claim 1, Alt et al. teaches a process for the granulation of amino acids and vitamins, that is characterized by the granulation occurring in a circulating fluidized bed, [0019] wherein the process includes spraying an aqueous solution on the particles. [0020] Additionally, Alt et al. prepares concentrated solutions of purified chemicals and fermented broths for use in coating the biomass particles. [0035] Therefore, Alt et al. anticipates the invention recited in claim 1.
With respect to Claim 3 and 4, Alt et al. teaches that the solids to be granulated comprise amino acids, specifically lysine, arginine, and methionine. [0034]
With respect to Claim 5, Alt et al. anticipates claim 3, as described above. The recitation of “wherein the plant-derived protein is a soy protein concentrate or soy bean molasses” does not further limit claim 3 in the instance wherein amino acid is selected from the group of core material recited. Therefore, Alt et al. anticipates claim 5 with the teaching of the selection of an amino acid as a core material.
With respect to Claim 6, Alt et al. teaches the use of a fluidized bed. [0019]
With respect to Claim 7, Alt et al. teaches the nozzle for the fluidized bed sits on the bottom of the bed in order for delivering the coating. [0055]
With respect to Claim 11, Alt et al. teaches a process for the granulation of amino acids and vitamins, that is characterized by the granulation occurring in a circulating fluidized bed, [0019] wherein the process includes spraying an aqueous solution on the particles. [0020] Additionally, Alt et al. utilizes concentrated solutions of purified chemicals and fermented broths in the coating of the biomass particles. [0035]
The recitation of “with improved flowability” is interpreted as a non-limiting recitation of the preamble. MPEP 2111.02 I states, “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”. Therefore, Alt et al. anticipates the invention recited in claim 11.
With respect to Claims 10 and 17, Alt et al. anticipates the invention recited in claim 1 and 11, as described above. Additionally, the recitation of the flowability of the biomass as measured by the Carr index amount to a recitation of an inherent property of the composition. MPEP 2112.01 I states, 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 obviousness or anticipation has been established”. The invention taught by Alt et al. is substantially identical to the invention recited in claims 1 and 11 respectively, therefore it would possess the same inherent properties, thereby anticipating the inventions recited in claims 10 and 17.
With respect to Claim 14, Alt et al. teaches that the solids to be granulated comprise amino acids, specifically lysine, arginine, and methionine. [0034]
With respect to Claim 15, Alt et al. anticipates claim 11, as described above. The recitation of “wherein the plant-derived protein is a soy protein concentrate or soy bean molasses” does not further limit claim 11 in the instance wherein amino acid is selected from the group of core material recited. Therefore, Alt et al. anticipates claim 15 with the teaching of the selection of an amino acid as a core material.
With respect to Claim 18, Alt et al. teaches a process for the granulation of amino acids and vitamins, that is characterized by the granulation occurring in a circulating fluidized bed, [0019] wherein the process includes spraying an aqueous solution on the particles. [0020] Additionally, Alt et al. utilizes concentrated solutions of purified chemicals and fermented broths in the coating of the biomass particles. [0035]
Additionally, The claim recites the limitation “wherein the biomass granule is prepared by a preparation method comprising”. MPEP 2113 I states, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”. Therefore, the biomass granule taught by Alt et al. anticipates the invention recited in claim 18.
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 2, 8-9, 12-13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Alt et al. (US 2009/0196954 A1) as applied to claims 1 and 11 respectively, in view of Subramanian et al. (US 2008/0096964 A1).
With respect to Claims 2 and 13, Alt et al. teaches the invention recited in claim 1 and 11, as described above, but is silent to the use of microalgae in the production of the fermented or concentrated biomass.
Subramanian et al. teaches a method and composition for preparing a food product fortified with PUFA, [0058] comprising the steps of coating a food product with a liquid coating comprising encapsulated PUFA compositions. [0060-61] Additionally, Subramanian et al. teaches that the PUFA composition may comprise algae from the genus Thraustochytrium and Schizochytrium [0068] that is cultured in a fermentation medium, [0067] and subsequently harvested as a biomass through any process known in the art, such as fluidized spray drying. [0094]
Alt et al. and Subramanian et al. exist within the same field of endeavor in that they teach the process and makeup of foodstuff. Where Alt et al. teaches a composition coated with an amino acid, Srinivasan et al. teaches a fermented and concentrated PUFA solution, comprising algae, designed to be sprayed onto a food composition. Srinivasan et al. teaches that the PUFA composition comprising algae is desireable due to the beneficial nutritional properties, [0003] and it would therefore be obvious to use the algae from the genus Schizochytrium in the production of the invention taught by Alt et al.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Alt et al. in view of Subramanian et al. to devise a method according to claims 1 and 11 respectively, wherein the biomass fermented or concentrated solution comprises microalgae of the genus Schizochytrium, thereby rendering claims 2 and 13 obvious.
With respect to Claims 8 and 12, Alt et al. teaches the invention recited in claims 1 and 11, as described above, but is silent to the amount of core material used in the biomass composition.
Subramanian et al. teaches a method and composition for preparing a food product fortified with PUFA, [0058] comprising he steps of coating a food product with a liquid coating comprising encapsulated PUFA compositions. [0060-61] Additionally, Subramanian et al. teaches that the PUFA composition may be coated in another layer of the PUFA-containing composition, wherein the coating covers 80-99% of the core material. [0097] The remaining core material would comprise 1-20% of total biomass granule.
Alt et al. and Subramanian et al. exist within the same field of endeavor in that they teach the process and makeup of foodstuff. Where Alt et al. teaches a composition coated with an amino acid, Srinivasan et al. teaches a fermented and concentrated PUFA solution, comprising algae, designed to be sprayed onto a food composition. Srinivasan et al. teaches that the PUFA composition comprising algae is desireable due to the beneficial nutritional properties, [0003] and it would therefore be obvious to use the algae from the genus Schizochytrium in the production of the invention taught by Alt et al.
The amount of core material taught in Srinivasan et al. overlaps with the amount recited in claims 9 and 16. MPEP 2144.05 I states, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Alt et al. in view of Srinivasan et al. in order to devise the invention recited in claims 1 and 11 respectively, wherein the biomass granules comprise 5-30% core material, thereby rendering claims 8 and 12 obvious.
With respect to Claims 9 and 16, Alt et al. in view of Srinivasan et al. teaches the invention recited in claim 8, as described above, and Alt et al. teaches the invention recited in claim 11, as described above. Alt et al. and Subramanian et al. are silent to the amount of protein in the biomass granules, but Srinivasan et al. teaches that the PUFA composition may comprise added additional ingredients, such as protein. [0045] Additionally, Subramanian et al. teaches that one of ordinary skill in the art would have been motivated to control the amount of protein in the composition in order to increase the oxidative stability of the coating. [0063]
The amount of protein recited in claims 9 and 16, are the results of routine optimization. MPEP 2144.05 II states, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical”. One of ordinary skill in the art would have found it obvious to perform routine optimization in order to prevent oxidative deterioration by adjusting the amount of protein in the composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Alt et al. in view of Subramanian et al. in order to devise a method of producing a biomass granule according to the invention recited in claims 8 and 11 respectively, wherein the protein content of the core material is 15% or greater, thereby rendering claims 9 and 16 obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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