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 .
Election/Restrictions
Applicant’s election of Group I, claims 1-12, in the reply filed on 7/29/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)), and therefore made final
Claims 13-15 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 7/29/2026.
Claims 1-12 as filed on 8/15/2024 are under examination in the instant office action.
Claim Rejections - 35 USC § 112
Indefinite
Claims 5, 6, 9, 10 and 12 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.
Claims 5, 6, 9 and 12 are rendered indefinite by phrases “preferably”. 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 5 recites the broad recitation of yeast genus names, and the claim also recites yeast species names and further yeast strains, which are the narrower statements 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.
In the present instance, claims 6 and 9 recite the broad range of amounts of protein per gram (34% and more), and the claim also recite smaller protein ranges (“41% or more” and further “42.5% or more”), which are the narrower statements 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.
In the present instance, claim 10 recite several forms of yeast cells including dried and further intact or disrupted. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by “dried” form is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims would be intact or disrupted but either dried or not necessarily dried.
In the present instance, claim 12 recites the broad limitation, drawn to various animals to be fed, and the claim also recites narrow limitation, drawn to generic aquatic species to be and further to various fishes and furthermore to salmon and trout to be fed, which are the narrower statements 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
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, 5 and 7-12 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by EP 2 627 193 (Borregaard AS) (IDS reference).
EP 2 627 193 discloses an animal feed comprising yeast cell derived material or yeast single cell protein product (entire document) made from Saccharomycetales yeast cells including species of Kluyveromyces lactis and Pichia jadinii (par. 0030), wherein the animal feed comprises up to 10% (w/w) yeast single cell protein product (par. 0050).
The yeast cells are dried and inactivated or disrupted (par. 0031). The yeast single cell protein product comprises about 40% or 50-60 % (w/w) of protein per gram of dried yeast cells (par. 0033).
The cited document does not teach the use of genetically engineered yeast cells. The protein of natural yeast cells inherently comprises all essential amino acids within the meaning of the claims.
The cited animal feed comprises 10-20% of plant-based materials (par. 0051) or 20% soybean (table 2, diet 2), which is same as claim-recited less than 25% (w/w) of plant-based protein products. The cited animal feed comprises 14% of oil (table 2, diet 2) which is in the claimed recited range from 1 to 25% (w/w) oil.
The cited animal feed is intended for salmon and rainbow trout (par. 0056).
Thus, the disclosure by cited document is considered to anticipate the claimed invention.
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.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over EP 2 627 193 (Borregaard AS) in view of Sharif et al (IDS reference; Aquaculture, September 2020, Vol. 531, article 735885, pages 1-8).
EP 2 627 193 discloses an animal feed comprising yeast cell derived material or yeast single cell protein product (entire document) made from Saccharomycetales yeast cells including Kluyveromyces lactis and Pichia jadinii (par. 0030), wherein the animal feed comprises up to 10% (w/w) yeast single cell protein product (par. 0050) and wherein yeast single cell protein product comprises about 40% or 50-60 % (w/w) of protein per gram of dried yeast cells (par. 0033).
EP 2 627 193 clearly teaches that the yeast cells are grown on various substrate and that exact nature of growth medium for making yeast derived materials is not critical. Nevertheless, it is silent about ethanol as carbon source or substrate for growing yeast cells.
However, the prior art clearly teaches and suggests the use of ethanol as carbon substrate for single cell protein (SCP) production by yeast cells; for example: see figure 1, page 5, of the reference by Sharif. The reference by Sharif also teaches that fungal species including yeasts Yarrowia and Kluyveromyces (table 3, page 3) contain up to 50% protein when cultured for SCP production; and that their amino acid profile meets the standards of FAO (page 3, section 3.3).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to provide animal feed comprising single cell protein of yeast cells grown on ethanol as carbon substrate with a reasonable expectation of success in providing animal feed suitable for feeding animals including fish because the yeast cells are grown on various substrate including ethanol for SCP production (Sharif) and because exact nature of growth medium for making yeast derived materials is not critical as taught by the prior art (EP 2 627 193).
Thus, the claimed invention as a whole was clearly prima facie obvious, especially in the absence of evidence to the contrary.
The claimed subject matter fails to patentably distinguish over the state art as represented be the cited references. Therefore, the claims are properly rejected under 35 USC § 103.
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 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature without significantly more.
The claims recite a composition comprising yeast cell proteins. The claim-recited yeasts are natural and not genetically engineered organisms. Thus, the yeast cell derived materials including proteins are natural products or a product of nature.
Thus, this judicial exception is not integrated into a practical application because it is nothing more than an attempt to generally link the product of nature to a particular technological environment.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because when considered separately and in combination, they do not add significantly more (also known as an “inventive concept”) to the exception.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VERA AFREMOVA whose telephone number is (571)272-0914. The examiner can normally be reached Monday-Friday: 8.30am-5pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Vera Afremova
August 28, 2026
/VERA AFREMOVA/ Primary Examiner, Art Unit 1653
Prosecution Insights