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 Objections
Claim 5 is objected to because of the following informalities: the term “or” should be deleted before 170 in claim 5. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 depends on claim 2. Claim 2 recites the spray angle of 60o to 70o but claim 3 recites a spray angle of 60o to 75o. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 2-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of U.S. Patent No. 11,559,074 (074 Patent) in view of BETE, Spray Dry Manual, BETE Fog Nozzle, Inc, 2005 at www.bete.com (IDS of 8/27/2024).
Although the claims at issue are not identical, they are not patentably distinct from each other because the differences in the claims relate to the chosen spray drying techniques. The method for both the present application and 074 Patent involve preparing an emulsion, introducing the emulsion into a high-pressure homogenizer, and spray drying the emulsion. The emulsions both comprise algae. The dry matter content of claim 1 recites 15 to 40% by weight. Claim 1 of the 074 parent recites a significant overlapping amount of 15 to 50% by weight of the emulsion. While the claims recite different properties such as flow value, dispersibility, wettability, degree of wetting, and particle size distribution, BETE teaches on pg. 2, in Section 1.4.2 that spray dryers are characterized by the atomization of the feedstock and the contacting of the spray with heated air. The atomization stage is designed to create the optimum conditions for evaporation and to lead to a dried product having the desired characteristics. One skilled in the art would have selected the spray dryer based on the desired characteristics and resulting properties. This includes flat bottom dryers (Fig. 2.10.1). BETE also acknowledges that air brooms with low pressure can be used to sweep clean and/or cool dryer chamber walls (see pg. 19). It would have been obvious to one skilled in the art to use a flat-bottom spray dryer equipped with an air broom for sweeping the spray drying chamber with low-pressure air as recited in claim 1 of the 074 Patent, which would naturally provide the recited properties.
Claims 3-6 recite spray angles and drying zone temperatures. It would have been obvious to one skilled in the art to vary the spray angles and drying zone temperatures based on the selected spray dryer (see BETE, Section 1.4.2).
Claim 8 recites that the microalgal flour granules are of the Chlorella genus. It would have been obvious to one skilled in the art to use Chlorella in the process of 074 Patent given the 074 Patent is generally directed to flour from algae and indicates that Chlorella is a preferred algae (074 Patent, col. 5, lines 5-10).
Claims 9-10 recite the aerated bulk density and specific surface area. The claims of the 074 Patent are silent as to these properties. However, as noted above, one skilled in the art would have selected the spray dryer based on the desired characteristics and resulting properties. It would have been obvious to one skilled in the art to use flat-bottom spray dryer equipped with an air broom for sweeping the spray drying chamber with low-pressure air as recited in claim 1 of the 074 Patent, which would naturally provide the recited properties.
Claim 11 recites that lipid is in an amount of at least 25% by dry weight. The 074 Patent recites that at least 10% by dry weight of lipids are present. Thus, the amounts overlap.
Claim 12 recites that intact cells are present at a percentage of 5 to 95%. Claim 1 of the 074 Patent recites that the cells are mechanically lysed but silent as to the percentage of cells that remain intact. It would have been obvious that a small percentage of cells such as 5% could still remain intact.
Relevant Cited Art Not Relied Upon
SUTHAR, "Spray Drying Technology: An overview", Indian Journal of Science and Technology, 2(10): 44-47 (2009) (SUTHAR) (IDS of 8/27/2024)
Claims Free Of Prior Art
Claims 1-12 are free of the prior art. The prior art such as United States Patent Application Publication No. 2010/0303989 (see IDS of 8/27/2024) teach a method for making an algal flour [0168] but do not teach a method of preparing microalgal flour granules, comprising:
1) preparing a microalgal flour emulsion in water at a dry matter content of 15 to 40% by weight;
2) introducing the emulsion into a high-pressure homogenizer;
3) spraying the homogenized emulsion in a spray drying zone of a vertical spray- dryer equipped with a moving belt at its base, and with a spray nozzle in its upper part, while at the same time regulating: a) a pressure applied at the spray nozzle at a value of less than 50 bar, so as to
select a particle size distribution of droplets sprayed, b) a spray angle at 60° to 70°, at an inlet temperature of the spray drying zone of 160° to 250°C, and c) an outlet temperature of the spray drying zone of 55° to 90°C;
4) regulating an inlet temperature of a drying zone on the moving belt to 40° to
80°C, and an outlet temperature of the drying zone on the moving belt of 40° to 80°C;
5) regulating an inlet temperature of a cooling zone at a temperature of 10° to 40°C and an outlet temperature of the cooling zone 20° to 80°C; and
6) collecting microalgal flour granules with the claimed properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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