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 .
DETAILED ACTION
This application is a CON of 16/498101 filed September 26, 2019, with provisional application 62/487676, filed April 20, 2017.
Applicant’s submission of claims filed August 12, 2024 is acknowledged.
Election/Restrictions
Applicant’s election without traverse of Invention I in the reply filed on April 12, 2026 is acknowledged. Claims 1-20 are pending. Claims 7-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on April 12, 2026. Claims 1-6 are under examination.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 62/487676, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Claim 1 recites “Candida apicola, Pichia guilliermondii, and Pichia occidentalis”, claim 5 recites “rhamnolipids”, and claim 6 recites “iturin”. None of these limitations are disclosed in the prior filed provisional application, therefore do not receive domestic benefit.
Therefore, references predating 4/19/2018 that disclose the claim limitations, "Candida apicola, Pichia guilliermondii, Pichia occidentalis", "rhamnolipids" or "iturin" can be applied in prior art rejections.
Claim Objections
Claims 1-20 show incorrect status identifiers and do not comply with 37 C.F.R. 1.121(c)(3). Claims 7-20 should be labeled “(Withdrawn)”, remaining claims should be identified appropriately (MPEP 714(II)(C)(A)).
Claim 6 is objected to because of a typographical error: claim 6 should add “or” line 1, “surfactin or iturin.”.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a nature-based product without significantly more.
Claims 1-6 recite composition comprising a biosurfactant-producing yeast and a biosurfactant growth product of said yeast, and fermentation broth, which is a statutory category of invention (Step 1: Yes).
Claims 1-6 recite naturally occurring yeast and biosurfactants that are naturally produced by said yeast, thus is a judicial exception in the form of being a product of nature (Step 2A, Prong 1: Yes).
Claims 1-6 recite the composition is for enhancing aquaculture and further comprises fermentation broth wherein the yeast are cultivated and the biosurfactant are present, and claim 3 recites the composition further comprises fish food. It is a well-understood and routine practice in the industry to combine microbial-based products such as the claimed composition with fermentation broth and fish food, as evidenced by Locus Agriculture IP (US 11,324,224 B2) (3 (col.10, lines 16-20; col. 22, lines 16-18). Therefore, the claims do not recite additional elements that amount to significantly more than the judicial exception (Step 2A, Prong 2: No) (Step 2B: No).
Therefore, claims 1-6 are not patent eligible subject matter.
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)(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 and 4 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Farmer et al. (US 20200071600 A1, filed 04/08/2018, hereinafter “Farmer”).
The applied reference has a common inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Farmer teaches a composition comprising a yeast fermentation product comprising broth resulting from fermentation of a yeast, an alkaline compound, and a chelating agent (claim 27). Farmer teaches the composition comprises a yeast selected from Wickerhamomyces anomalus, Pichia guilliermondii, and Starmerella bombicola, which anticipates claim 1 (claim 28). Farmer teaches the composition further comprises a microbial growth by-product, selected from glycolipids, lipopeptides and phospholipids, which anticipates claims 1 and 4 (claims 32-33).
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 1-2 and 4-6 are rejected under 35 U.S.C. 103 as being obvious over Farmer et al. (WO 2018148265 A2, filed 02/07/2018, hereinafter “Farmer2”).
The applied reference has a common joint inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2).
Farmer2 teaches environmentally friendly compositions for reducing the viscosity of crude oil using microorganisms and/or biosurfactants produced by microorganisms (abstract). Farmer2 teaches the composition comprises a Pichia yeast selected from one or more of Pichia anomala, Pichia sydowiorum, Pichia guilliermondii, and Pichia lynferdii, which meets the instant claim 1 (claims 2-3). Farmer2 teaches the composition comprises one or more biosurfactants are glycolipids selected from sophorolipids (SLPs), rhamnolipids (RLPs), and mannosylerythritol lipids (MELs), which meets the instant claims 4-5 (claim 7). Farmer2 teaches the composition further comprises surfactin, which meets claim 6 (claim 9). Farmer2 teaches the microorganisms in the microbe-based product may be in an active or inactive form, which meets claim 2 (pg. 16, line 13). Farmer2 teaches the microbe-based product can contain fermentation broth comprising the microorganisms and metabolic products (biosurfactants), which meets this limitation in claim 1 (pg. 26, Example 11).
In view of the foregoing, all the claimed limitations are found in one reference and are taught to be optional variations to a ‘base’ product they exemplify. As such, the claimed compositions taught by Farmer2 are within the scope of the instant claims, and thus Farmer2’s compositions render the invention prima facie obvious. The rationale to support this conclusion of obviousness is that Farmer2 provides a teaching, suggestion, and motivation to substitute different variables disclosed within the reference. Furthermore, there is no evidence on the record that indicates that the claimed supplement exhibits any unexpected results compared to the prior art.
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C.102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
Claims 1-6 are rejected under 35 U.S.C. 103 as being obvious over Locus Solutions IPCO LLC (US 11,324,224 B2, domestic benefit filing date 9/27/2017, hereinafter “Locus”).
The applied reference has a common joint inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2).
Locus teaches microbe-based compositions comprising cultivated microorganisms and/or growth by-products, comprising biologically pure yeast selected from the Pichia clade, and/or growth by-products thereof, such as biosurfactants, enzymes and solvents, and methods of using these compositions to enhance production in agriculture, horticulture, livestock rearing and aquaculture industries (abstract). Locus teaches the yeast can be P. guilliermondii and/or P. occidentalis, which meets the limitation in claim 1 (col. 5, lines 47-55). Locus teaches the microbe-based composition of the subject invention can comprise the fermentation broth containing a live and/or an inactive culture and/or the microbial metabolites produced by the microorganism and/or any residual nutrients, which meets the limitations in claims 1-2 (col.10, lines 16-20). Locus teaches the composition can also be applied to or combined with standard fish feed and fed to farmed fish, which meets claim 3 (col. 22, lines 16-18). Farmer teaches the biosurfactants of the subject composition are glycolipid biosurfactants, such as mannosylerythritol lipids, sophorolipids, rhamnolipids or trehalose lipids, as well as lipopeptides, such as surfactin, iturin, fengycin and lichenysin, which meets the limitations in claims 4-6 (col. 9, lines 27-31).
In view of the foregoing, all the claimed limitations are found in one reference and are taught to be optional variations to a ‘base’ product they exemplify. As such, the claimed compositions taught by Locus are within the scope of the instant claims, and thus Locus’s compositions render the invention prima facie obvious. The rationale to support this conclusion of obviousness is that Locus provides a teaching, suggestion, and motivation to substitute different variables disclosed within the reference. Furthermore, there is no evidence on the record that indicates that the claimed supplement exhibits any unexpected results compared to the prior art.
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C.102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2 and 4-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13-14, 16, and 18 of copending Application No. 18/698537 (reference application) in view of Takahashi et al. (J. Oleo Sci. 60, (5) 267-273 (2011), hereinafter “Takahashi”).
Regarding claims 1 and 4-5, claim 13 of ‘537 recites a defoaming composition comprising a yeast culture comprising a sophorolipid and one or more traditional defoaming components, which meets the limitations in claims 1 and 4-5. Claim 18 of ‘537 recites the composition further comprises one or more of water, a preservative, a pH adjuster, inter alia. Claim 14 of ‘537 recites the yeast culture is a Starmerella sp. and/or Candida sp, however does not recite the species Starmerella bombicola as in instant claim 1, nor does the composition of ‘537 recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘537 comprising a sophorolipid and Starmerella species, wherein the Starmerella species is S. bombicola and the composition further comprises fermentation broth that is pH adjusted as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘537, for efficient SL production as taught by Takahashi.
Regarding claim 2, claim 16 of ‘537 recites the yeast is in spore form, which inherently is ‘inactive form’, thus anticipates the instant claim.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 4-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11-15 of copending Application No. 18/764498 (reference application) in view of Takahashi.
Regarding claim 1, claim 11 of ‘498 recites a reverse osmosis composition comprising a yeast culture comprising a biosurfactant and one or more traditional reverse osmosis components, such as a preservative or pH booster, which meets the limitation in claim 1. Claim 13 of ‘498 recites the yeast culture is a Starmerella sp. and/or Candida sp, however does not recite the species Starmerella bombicola as in instant claim 1, nor does the composition of ‘498 recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘498 comprising a biosurfactant and Starmerella species, wherein the Starmerella species is S. bombicola and the composition further comprises fermentation broth that is pH adjusted as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘498, for efficient SL production as taught by Takahashi.
Regarding claims 4-5, claims 12 and 14-15 of ‘498 recite the biosurfactant is a glycolipid, a sophorolipid, and a linear sophorolipid (which is a species of the generic ‘sophorolipid’), thus anticipates the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2 and 4-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-17 and 19-20 of copending Application No. 18/698475 (reference application) in view of Takahashi.
Regarding claims 1 and 4-5, claims 16 and 20 of ‘475 recites a flocculating composition comprising a yeast culture comprising a sophorolipid and one or more traditional flocculating components, such as a preservative or pH booster, which meets the limitation in claim 1. Claim 17 of ‘475 recites the yeast culture is a Starmerella sp. and/or Candida sp, however does not recite the species Starmerella bombicola as in instant claim 1, nor does the composition of ‘475 recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘475 comprising a biosurfactant and Starmerella species, wherein the Starmerella species is S. bombicola and the composition further comprises fermentation broth that is pH adjusted as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘475, for efficient SL production as taught by Takahashi.
Regarding claim 2, claim 19 of ‘475 recites the yeast is in spore form, which inherently is ‘inactive form’, thus anticipates the instant claim.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2 and 4-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15-16 and 18 of copending Application No. 18/258371 (reference application) in view of Takahashi.
Regarding claims 1 and 4-5, claim 15 of ‘371 recites a dust suppressing composition comprising a yeast culture comprising a sophorolipid and one or more traditional dust suppressing components, which meets the limitation in claim 1. Claim 16 of ‘371 recites the yeast culture is a Starmerella sp. and/or Candida sp, however does not recite the species Starmerella bombicola as in instant claim 1, nor does the composition of ‘371 recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘371 comprising a biosurfactant and Starmerella species, wherein the Starmerella species is S. bombicola and the composition further comprises fermentation broth as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘371, for efficient SL production as taught by Takahashi.
Regarding claim 2, claim 18 of ‘371 recites the yeast is in spore form, which inherently is ‘inactive form’, thus anticipates the instant claim.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2 and 4-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-5 of U.S. Patent No. 11,691,915 in view of Takahashi.
Claim 1 of ‘915 recites an improved concrete composition comprising an inactive Starmerella bombicola yeast culture, a sophorolipid biosurfactant, and a concrete mixture, which meets the limitation in claim 1. Claims 3-4 of ‘915 recite concentrations of the sophorolipid and yeast in the composition, however the selection of specific concentrations clearly would have been a routine matter of optimization using standard laboratory techniques available at the time of filing on the part of the artisan of ordinary skill, said artisan recognizing that the effectiveness of the composition would have been affected by these concentrations. Claim 5 of ‘915 recites the sophorolipid is a lactonic sophorolipid, which is in essence a species of the generic ‘sophorolipid’. The composition of ‘915 does not recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘915 comprising a sophorolipid biosurfactant and Starmerella bombicola species, wherein the composition further comprises fermentation broth as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘915, for efficient SL production as taught by Takahashi.
Claims 1-2 and 4-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 18-19 and 21 of copending Application No. 18/698652 (reference application) in view of Takahashi.
Regarding claims 1 and 4-5, claim 18 of ‘652 recites a grinding aid composition comprising a yeast culture comprising a sophorolipid and one or more traditional grinding aid components, which meets the limitation in claim 1. Claim 19 of ‘652 recites the yeast culture is a Starmerella sp. and/or Candida sp, however does not recite the species Starmerella bombicola as in instant claim 1, nor does the composition of ‘652 recite a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘652 comprising a biosurfactant and Starmerella species, wherein the Starmerella species is S. bombicola and the composition further comprises fermentation broth as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘652, for efficient SL production as taught by Takahashi.
Regarding claim 2, claim 21 of ‘652 recites the yeast is in spore form, which inherently is ‘inactive form’, thus anticipates the instant claim.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1 and 4-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 12-13, and 16-17 of U.S. Patent No.11,414,640 in view of Takahashi.
Claims 16-17 of ‘640 recite a composition produced according to the method of claim 1 comprising a microorganism and/or a growth by-product thereof, a substrate on which the microorganism was grown, and nutrients for microbial growth, wherein the growth by-product is a biosurfactant selected from sophorolipids, rhamnolipids, trehalose lipids, iturin, surfactin, fengycin, lichenysin and mannosylerythritol lipids, which meets the limitations in instant claims 1 and 4-6. Claims 1 and 12-13 of ‘640 recite a method of making the composition by cultivating a microorganism and/or producing a microbial growth by-product, wherein the microorganism is a yeast selected from Wickerhamomyces anomalus, Pichia kudriavzevii, Pichia guilliermondii, Pichia occidentalis, Starmerella bombicola, Pseudozyma aphidis, and Saccharomyces boulardii, which meets the species limitation in claim 1. ‘640 does not recite the composition further comprises a fermentation broth.
However, Takahashi teaches Starmerella bombicola NBRC 10243 produced sophorolipids (SL), which are glycolipid biosurfactants and the culture conditions for the yeast were investigated in a shake-flask culture, wherein SL production was significantly affected by the pH of the medium and was highly accelerated at pH 6 (abstract), which meets these limitations in instant claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition recited in ‘640 comprising a sophorolipid biosurfactant and Starmerella bombicola species, wherein the composition further comprises fermentation broth as taught by Takahashi with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to formulate a composition comprising S. bombicola in a fermentation broth in the compositions recited in ‘640, for efficient SL production as taught by Takahashi.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA EDWARDS whose telephone number is (571)270-0938. The examiner can normally be reached M-F 8am-5pm EST.
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/LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657
/JESSICA EDWARDS/
Examiner, Art Unit 1657
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