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 .
Status of the Claims
Claims 1-3, 5, 7, 10-13, 15, 17-20, 62-65, 73-74, and 77-79 are currently pending. Claims 4, 6, 8-9, 14, 16, 21-61, 66-72, 75-76, and 80-87 are cancelled. Claims 73-74 and 77-79 are withdrawn due to a restriction/election requirement. Claims 1-3, 5, 7, 10-13, 15, 17-20, and 62-65 are under examination.
Election/Restrictions
Claims 73-74 and 77-79 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected method, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 8/17/2026.
Applicant's election with traverse of a method for manufacturing a frozen product and an oil immersed product in the reply filed on 8/17/2026 is acknowledged. The traversal is on the ground(s) that the technical feature of the invention is not taught in the prior art reference Jeffrey. The applicant argues that Jeffrey does not teach a microalgae-containing product but instead a pigment extract, nor using inactivated chlorophyllase to prepare the microalgae product, nor that the microalgae is a Haptophyceae.
This is not found persuasive because pigment extracts of plankton are still considered to be microalgae extracts as they are extracted from an algal species. Further, Jeffrey does in fact directly disclose a method of using acetone to inactivate chlorophyllase to prepare such a pigmented microalgae extract (see Jeffrey pg. 350, ¶ 3 and pg. 351, ¶ 1). Although the prior art did not explicitly state the plankton taught are of the class Haptophyceae, Jeffrey teaches the plankton comprised coccolithophores which are classified taxonomically as Haptophyceae. Thus they would inherently meet the claimed limitation.
The requirement is still deemed proper and is therefore made FINAL.
Priority
Applicant is advised of possible benefits under 35 U.S.C. 119(a)-(d) and (f), wherein an application for patent filed in the United States may be entitled to claim priority to an application filed in a foreign country.
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. JP 2018-248155, filed on 12/28/2018.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55 and thus the effective filing date of this application is 12/28/2018.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 7/3/2024, 12/18/2025, and 2/24/2026 were considered, initialed, and attached hereto. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Objections
Claims 1-3, 5, 7, 10-13, 15, 17-20, and 62-65 are objected to because of the following informalities: the taxonomical groups “Haptophyceae” in claim 1, “Pavlovaceae” in claim 62, and “Pavlova” in claim 63 and the microalgae species “P.calceolate, P.granifera, P.gyrans, P.lutheri, P.pinguis, or P.salina” in claim 64 and “P.granifera or P.gyrans” in claim 65 should be italicized in proper scientific naming convention. Appropriate correction is required.
Claims 2-3, 5, 7, 10-13, 15, 17-20, and 62-65 are objected to for being dependent on claim 1.
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 1-3, 5, 7, 10-13, 15, 17-20, and 62-65 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.
Regarding claim 1, the recitation of “a step of maintaining microalgae under a condition where an amount of stress applied to the microalgae from after culture to step (B)” renders the claim indefinite. The method makes no mention of culturing the microalgae prior to this recitation and thus it is unclear if the microalgae production method is further limited by a culturing step prior to or included in step (A) or not.
Claims 2-3, 5, 7, 10-13, 15, 17-20, and 62-65 are rejected for being dependent on claim 1.
Regarding claim 2, the recitation of “wherein the predetermined value of the density and/or the predetermined factor of the concentration is determined based on an increase in pheophorbide upon concentrating the microalgae” renders the claim indefinite. Based off the language used, it is implied that the variable parameters in the beginning of the method are determined by the end result of the method. As such, it is unclear as to how one could even determine what value of density and/or concentration factor to use unless one had the foresight to know the end result of concentrating the microbe before the method step (A) is even carried out. For examination purposes, the claim has been broadly interpreted to mean there is an increase in pheophorbide upon concentrating the microbe.
Regarding claims 3 and 11, the broad recitation of “10 g/L” is followed by the recitation of “(dry weight)” which is the narrower statement of the range/limitation. 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.
Claim 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 1-2, 7, 12, 15, 17, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jeffrey (Jeffrey, “Photosynthetic Pigments of the Phytoplankton of Some Coral Reef Waters”, 1968 Apr, Limnology and Oceanography, 13(2), pgs. 350-355) and as evidenced by Wikipedia (Wikipedia, “Haptophyte”, 2026 Jun 28, en.wikipedia.org/wiki/Haptophyte, accessed 2026 Sep 15).
Jeffrey’s general disclosure relates to a method of producing coccolithophore phytoplankton pigmentation products by stressing cells via centrifugation and extracting them with acetone to inactivate the chlorophyllase (see abstract, pg. 350, ¶ 3, and pg. 351, ¶ 1).
Regarding claim 1, Jeffrey teaches a method of generating a microalgae pigmentation product (see Jeffrey pg. 350, ¶ 2) by collecting seawater and concentrating the microalgae phytoplankton via centrifugation, which is a form of maintained mechanical stress, at a controlled value of 10,000 x g (see Jeffrey pg. 350, ¶ 3). Centrifugation also maintains a determined density of the cells in the sample in the form of a pellet. Jeffrey teaches the phytoplankton were then extracted with an acetone solvent to inactivate the chlorophyllase (see Jeffrey pg. 350, ¶ 3 and pg. 351, ¶ 1). The taught phytoplankton comprised coccolithophores (see Jeffrey abstract) which are inherently classified taxonomically as Haptophyceae, as evidenced by Wikipedia (see Wikipedia pg. 2, ¶ 4). As indicated in the 112b rejection above, it is unclear if the claim further limits the scope of the method to include a culturing step prior to or during step (A) and thus renders the claim indefinite.
Regarding claim 2, Jeffrey teaches after concentrating the cells and inactivating the chlorophyllases the phytoplankton underwent chromatography which showed major zones of pheophorbide α (see pg. 352, ¶ 1). As noted in the 112b rejection above, the method step as claimed relies on foresight reasoning to determine the values of the density and/or concentration factor and thus renders the claim indefinite. Under broadest reasonable interpretation, the claim language is interpreted to mean there is an increase in pheophorbide upon concentrating the microbe.
Regarding claim 7, Jeffrey teaches the phytoplankton were chemically stressed from a wash step with a sodium chloride solution administered at 5-10 volumes (see pg. 351, ¶ 1), which overlaps with the claimed stress value of less than or equal to 5.
Regarding claim 12, Jeffrey teaches that the phytoplankton extract was further concentrated via centrifugation after the chlorophyllase inactivation step (see pg. 351, ¶ 1).
Regarding claim 15, Jeffrey teaches that the phytoplankton underwent chromatography which showed major zones of fucoxanthin (see pg. 352, ¶ 1) and thus indicating that it did not decompose after the method steps performed.
Regarding claim 17, Jeffrey teaches the phytoplankton were centrifuged again post-chlorophyllase inactivation to remove water droplets (see pg. 351, ¶ 1).
Regarding claim 19, Jeffrey teaches the phytoplankton comprised coccolithophores (see Jeffrey abstract) which are inherently capable of producing fucoxanthin, as evidenced by Wikipedia (see Wikipedia pg. 2, ¶ 1).
Claims 1-3, 5, 7, 10-13, 15, 17-20, and 62-65 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ortiz (Publication No. WO2015136123 A1 – date of publication 9/17/2015), as evidenced by Wikipedia (Wikipedia, “Haptophyte”, 2026 Jun 28, en.wikipedia.org/wiki/Haptophyte, accessed 2026 Sep 15), and as further evidenced by van Leeuwe (van Leeuwe et al., “An optimized method for automated analysis of algal pigments by HPLC”, 2006 May 17, Marine Chemistry, 102, pgs. 267-275).
Ortiz’s general disclosure relates to the production of a microalgae extract through culturing and stress treatments (see pgs. 8-9 – “Algal extract of the invention”).
Regarding claim 1, Ortiz teaches a method of obtaining a microalgae extract by applying a stressor of a chemical or enzymatic treatment to the microalgae biomass (see Ortiz pgs. 8-9 – “Algal extract of the invention”). Ortiz also teaches the microalgae belongs to the group Haptophyta (see pg. 28, ¶ 2), which is a common spelling variation of Haptophyceae as evidenced by Wikipedia (see Wikipedia pg. 1, ¶ 1). Ortiz teaches concentrating the microalgae by freeze-drying and centrifugation methods (see Ortiz pg. 48, ¶ 4 and pg. 49, ¶ 1). Centrifugation maintains a determined density of the cells in the sample in the form of a pellet. Since freeze-drying the microalgae is taught, then inherently the chlorophyllase enzyme would be inactivated as evidenced by van Leeuwen (see van Leeuwen pg. 273, ¶ 4).
Regarding claim 2, Ortiz teaches the microalgae can be optionally freeze-dried (see pg. 48, ¶ 4), and if the freeze-dried step is not performed then the chlorophyllase would not be inactivated during the method and would not degrade the chlorophyll that are present as a by-product in the taught method (see pg. 11, ¶ 4 and pg. 12, ¶ 1). Thus the concentration of pheophorbide, which is a natural breakdown product of chlorophyll, would be expected to increase upon concentrating the microalgae containing it via centrifugation (see pg. 48, ¶ 4). As noted in the 112b rejection above, the method step as claimed relies on foresight reasoning to determine the values of the density and/or concentration factor and thus renders the claim indefinite. Under broadest reasonable interpretation, the claim language is interpreted to mean there is an increase in pheophorbide upon concentrating the microbe.
Regarding claims 3 and 11, Ortiz teaches the pigment fucoxanthin can comprise 0.001-90% of the microalgae by weight (see pg. 21, ¶ 3) and is extracted in methanol (see pg. 48, ¶ 4 and pg. 49, ¶ 1). Thus, the claimed density of 10 g/L or less than would calculate to 1.26 wt% or less which is disclosed in the prior art. Additionally, the claimed density of greater than or equal to 1 g/L would calculate to 0.126 wt% or greater which is disclosed in the prior art.
Regarding claim 5, Ortiz teaches that the fucoxanthin was extracted from the microalgae and concentrated from 5 mg (see pg. 64, ¶ 5) to 722 mg (see pg. 66, ¶ 1) which is a more than a 100-fold increase as claimed.
Regarding claim 7, Ortiz teaches the microalgae is chemically stressed by a hydrolysis treatment with 4 g/L of potassium hydroxide (KOH) (see pg. 43, ¶ 1). As 4 is less than or equal to about 5, this reads on the claimed value.
Regarding claim 10, Ortiz teaches that the concentrating of the microalgae extract during the production process is an optional step carried out “as desired” (see pg. 34, ¶ 2) and thus could not be included in the method.
Regarding claim 12, Ortiz teaches the microalgae was freeze-dried which inactivates the chlorophyllase enzyme and then can be further concentrated using rotoevaporation (see pg. 48, ¶ 4 and pg. 49, ¶ 1).
Regarding claim 13, Ortiz teaches that the microalgae can be freeze-dried by sustained vacuum pressure at 50[Symbol font/0xB0]C (see Ortiz pg. 48, ¶ 4) and inherently freeze-drying will inactivate the chlorophyllase enzyme (see van Leeuwen pg. 273, ¶ 4).
Regarding claim 15, Ortiz teaches that the chlorophyllase inactivation step does not decompose fucoxanthin as fucoxanthin remains present in the final extract (see pg. 53, ¶ 1).
Regarding claim 17, Ortiz teaches drying the final extracted product (see pg. 53, ¶ 1).
Regarding claim 18, Ortiz teaches chlorophyll is produced by the microalgae extract production process (see pg. 11, ¶ 4 and pg. 12, ¶ 1) and that it can comprise 1-99.998 wt% of the overall microalgae (see pg. 21, ¶ 3), of which 3+ wt% would calculate to 30 mg/g or more as claimed.
Regarding claims 19-20, Ortiz teaches the microalgae is capable of producing fucoxanthin (see pg. 21, ¶ 3) and that this extract can comprise 0.001-90 wt% of the overall microalgae (see pg. 21, ¶ 3), of which 0.8+ wt% would calculate to 8 mg/g or more as claimed.
Regarding claims 62-65, Ortiz teaches the microalgae can be Pavlova gyrans and Pavola lutheri (see pg. 28, ¶ 5) which are organisms that belong to the genus Pavlova and the family Pavlovaceae.
Conclusion
No claims are allowed.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Emmalee R. Williams whose telephone number is (571)272-5472. The examiner can normally be reached Monday - Friday 7:30 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EMMALEE R WILLIAMS/ Examiner, Art Unit 1653
/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
