DETAILED ACTION
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 Application
Receipt of the Response and Amendment after Non-Final Office Action filed 05/08/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the claim warning has been withdrawn; (2) the objections to the specification have been withdrawn; and (3) the 35 U.S.C. §103 rejection of claim 25 over Nakahara and Bleakley has been withdrawn.
The status of the claims upon entry of amendment filed 05/08/2026 stands as follows:
Pending claims: 1, 6-9, 13-14, 18-23, 26-29
Withdrawn claims: 9, 13-14, 18-23 (*Claim 9 is incorrectly marked as being “Previously presented” instead of “Withdrawn”. Appropriate correction is required.)
Previously cancelled claims: 2-5, 10-12, 15-17, 24
Newly cancelled claims: 25
Amended claims: 1
New claims: None
Claims currently under consideration: 1, 6-8, 26-29
Currently rejected claims: 1, 6-8, 26-29
Allowed claims: None
Drawings
The drawings are objected to because it is not clear what is meant by “C” and “h” in Figures 1A-1C as there is no legend in the Figures to describe what is meant by “C” and “h” and there is no mention of “C” and “h” in the present specification.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities:
“50<R,255” should be read as “50<R<255”.
“M*1.%>Y>M*0.5” should be read as “M*1.5>Y>M*0.5”.
Appropriate correction is required.
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 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Nakahara (WO 2019/102732; IDS citation; page numbers (i.e., pages 1-14) of English translation relied on for citations except where otherwise noted) in view of Bleakley (Bleakley et al., “Functional and Bioactive Properties of Protein Extracts Generated from Spirulina platensis and Isochrysis galbana T-Iso”, Applied Sciences, 11, 3964; previously cited).
Regarding claims 1 and 29, Nakahara teaches a food-grade spirulina biomass (corresponding to an algae-containing composition for food or drink wherein the algae is spirulina) (page 2, paragraph beginning “The above problems can be solved”), wherein the biomass may have color coordinates in the range of 35 ≤ L ≤ 85; a ≥ 0; and 30 ≤ b ≤ 60, as measured according to CIELAB color space (page 4, 1st paragraph; page 5, paragraph beginning “An example of L value of orange spirulina”). This disclosed L value range falls within the claimed range of L values recited in part (a) of present claim 1. This disclosed a value range encompasses the claimed range of a values recited in part (a) of present claim 1. This disclosed b value range overlaps the claimed range of b values recited in part (a) of present claim 1. Nakahara exemplifies L, a, and b values within these ranges as being 63.5, 7.5, and 42.3, respectively (page 5, paragraph beginning “An example of L value of orange spirulina”; page 9, table below paragraph beginning “For the algae obtained in Examples 6 to 8”; [0040] of original, non-translated Nakahara reference). These values fall within the claimed L, a, and b values ranges recited in part (a) of present claim 1. Using these exemplified values of L=63.5, a=7.5, and b= 42.3, the maximum value of (a+b) in Nakahara is 49.8 (corresponding to 7.5 + 42.3), which is smaller than (L*1.2), and therefore falls within the claimed range of (a+b) recited in part (a) of present claim 1. Nakahara also discloses that the ethanol used to discolor the spirulina does not dissolve the protein in the spirulina (page 6, paragraph beginning “The gray spirulina of the present invention”). Therefore, Nakahara at least suggests that all the protein originally present in the spirulina prior to decolorization is present in the spirulina after decolorization.
Nakahara discloses that spirulina is attracting attention from consumers as a protein source due to its high protein content (page 2, paragraph beginning “Algae such as spirulina”); and that its biomass may be prepared by purification (page 2, paragraph beginning “The above mentioned algae”). Nakahara also discloses that its spirulina may be Spirulina platensis (page 7, paragraph beginning “Seed algal culture”); and at least suggests that the spirulina biomass may be spirulina or an extract thereof (page 7, paragraph beginning “And this invention also provides”).
Nakahara does not disclose that its biomass has a protein content of 80-99 wt.% based on dry weight as recited in present claim 1; or a protein content of 90-99 wt.% based on dry weight as recited in present claim 29.
However, Bleakley discloses that Spirulina platensis contains 65-77 wt.% protein based on dry weight (page 1, paragraph under “Introduction”). Bleakley further discloses that there is a growing consumer demand for food products derived from microalgae and that algal protein extracts have potential for use in food products (abstract). Bleakley discloses that its Spirulina platensis protein extracts contain 85.5 ± 4.9 wt.% based on dry weight (page 3, 2nd paragraph; page 7, Table 1), thereby providing a range of protein content based on dry weight of 80.6-90.4 wt.%. This range of protein content falls within the claimed protein concentration recited in present claim 1; and overlaps the protein concentration recited in present claim 29. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the biomass of Nakahara to have a protein content of 80.6-90.4 wt.% based on dry weight as taught by Bleakley. Since Nakahara discloses that (1) high protein content is an important feature of spirulina, (2) that the biomass may be prepared by purification, (3) that the biomass may be an extract of spirulina, and (4) that the spirulina for the biomass may be Spirulina platensis (page 2, paragraph beginning “Algae such as spirulina”; page 2, paragraph beginning “The above mentioned algae; page 7, paragraph beginning “And this invention also provides”; page 7, paragraph beginning “Seed algal culture”), but does not disclose a protein content for Spirulina platensis or for the purified biomass made from Spirulina platensis, a skilled practitioner would have been motivated to consult an additional reference such as Bleakley in order to determine a suitable amount of protein for Spirulina platensis and for the purified biomass/extract made from Spirulina platensis, thereby rendering the claimed protein concentrations recited in present claims 1 and 29 obvious.
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Nakahara (WO 2019/102732; IDS citation; page numbers (i.e., pages 1-14) of English translation relied on for citations) in view of Bleakley (Bleakley et al., “Functional and Bioactive Properties of Protein Extracts Generated from Spirulina platensis and Isochrysis galbana T-Iso”, Applied Sciences, 11, 3964) as applied to claim 1 above, and further in view of Cheng (WO 2020/001185 A1; English translation relied on for citations; previously cited).
Regarding claim 6, Nakahara teaches the invention as described above in claim 1, including the food-grade spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”). Nakahara does not disclose that the biomass has a particle size of 0.05-1000 µm.
However, Cheng discloses a solid beverage powder containing a plant wall-breaking powder (page 3, paragraph under “Technical field”; page 3, 2nd paragraph under “Background technique”). Cheng teaches that the plant wall-breaking powder is spirulina (page 7, 3rd paragraph) having a particle size of less than 75 µm in order to provide good stability to the beverage powder and to allow the powder to be directly drunk and quickly dissolved in the mouth (page 3, 2nd paragraph under “Background technique”). This disclosed particle size overlaps the claimed particle size. The selection of a value within the overlapping range renders the claimed particle size obvious. MPEP §2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the biomass powder of Nakahara to have the particle size taught by Cheng. Since Nakahara discloses that its spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”), but does not disclose a particle size for its powder, a skilled practitioner would have been motivated to consult an additional reference such as Cheng in order to determine a suitable particle size for a spirulina biomass food or beverage in a solid powder form. The practitioner would have been motivated to use the particle size taught by Cheng in order for the powder of Nakahara to have good stability and to allow the powder to be directly drunk and quickly dissolved in the mouth. Therefore, the claim is rendered obvious.
Regarding claim 7, Nakahara teaches the invention as described above in claim 1, including the food-grade spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”). Nakahara does not disclose that the biomass has a particle size of 1 µm >D(10)>8 µm.
However, Cheng discloses a solid beverage powder containing a plant wall-breaking powder (page 3, paragraph under “Technical field”; page 3, 2nd paragraph under “Background technique”). Cheng teaches that the plant wall-breaking powder is spirulina (page 7, 3rd paragraph) having a particle size of less than 75 µm in order to provide good stability to the beverage powder and to allow the powder to be directly drunk and quickly dissolved in the mouth (page 3, 2nd paragraph under “Background technique”). This disclosed particle size means that the D(10) is also less than 75 µm, which overlaps the claimed particle size. The selection of a value within the overlapping range renders the claimed particle size obvious. MPEP §2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the biomass powder of Nakahara to have the D(10) particle size taught by Cheng. Since Nakahara discloses that its spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”), but does not disclose a particle size for its powder, a skilled practitioner would have been motivated to consult an additional reference such as Cheng in order to determine a suitable particle size for a spirulina biomass food or beverage in a solid powder form. The practitioner would have been motivated to use the particle size taught by Cheng in order for the powder of Nakahara to have good stability and to allow the powder to be directly drunk and quickly dissolved in the mouth. Therefore, the claim is rendered obvious.
Regarding claim 8, Nakahara teaches the invention as described above in claim 1, including the food-grade spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”). Nakahara does not disclose that the biomass has a particle size of 10 µm >D(50)>80 µm.
However, Cheng discloses a solid beverage powder containing a plant wall-breaking powder (page 3, paragraph under “Technical field”; page 3, 2nd paragraph under “Background technique”). Cheng teaches that the plant wall-breaking powder is spirulina (page 7, 3rd paragraph) having a particle size of less than 75 µm in order to provide good stability to the beverage powder and to allow the powder to be directly drunk and quickly dissolved in the mouth (page 3, 2nd paragraph under “Background technique”). This disclosed particle size means that the D(50) particle size is also less than 75 µm, which overlaps the claimed particle size. The selection of a value within the overlapping range renders the claimed particle size obvious. MPEP §2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the biomass powder of Nakahara to have the D(50) particle size taught by Cheng. Since Nakahara discloses that its spirulina biomass may be directly consumed as a food or beverage in a solid or powder form (page 3, paragraph beginning “The present invention relates to an algae containing composition for food and drink”), but does not disclose a particle size for its powder, a skilled practitioner would have been motivated to consult an additional reference such as Cheng in order to determine a suitable particle size for a spirulina biomass food or beverage in a solid powder form. The practitioner would have been motivated to use the particle size taught by Cheng in order for the powder of Nakahara to have good stability and to allow the powder to be directly drunk and quickly dissolved in the mouth. Therefore, the claim is rendered obvious.
Claims 26-28 are rejected under 35 U.S.C. 103 as being unpatentable over Nakahara (WO 2019/102732; IDS citation; page numbers (i.e., pages 1-14) of English translation relied on for citations) in view of Bleakley (Bleakley et al., “Functional and Bioactive Properties of Protein Extracts Generated from Spirulina platensis and Isochrysis galbana T-Iso”, Applied Sciences, 11, 3964; previously cited) as applied to claim 1 above as evidenced by Colorizer (https://colorizer.org/; previously cited).
Regarding claims 26, 27, and 28, Nakahara teaches the invention as described above in claim 1, including that the food-grade spirulina biomass may have color coordinates in the range of wherein the biomass may have color coordinates in the range of 35 ≤ L ≤ 85; a ≥ 0; and 30 ≤ b ≤ 60 as measured according to CIELAB color space (page 4, 1st paragraph; page 5, paragraph beginning “An example of L value of orange spirulina”). This disclosed L value range falls within the claimed range of L values recited in part (a) of present claim 1. This disclosed a value range encompasses the claimed range of a values recited in part (a) of present claim 1. This disclosed b value range overlaps the claimed range of b values recited in part (a) of present claim 1. The selection of a value within the encompassing or overlapping ranges renders the claimed a value and b value obvious. MPEP §2144.05.I.
Nakahara also exemplifies an L value of 63.5 and a b value of 42.3 within the disclosed ranges (page 5, paragraph beginning “An example of L value of orange spirulina”; [0040] of original, non-translated Nakahara reference). This disclosed range of a ≥ 0 and the exemplified L and b values of Nakahara of 63.5 and 42.3, respectively, (page 5, paragraph beginning “An example of L value of orange spirulina”; page 9, table below paragraph beginning “For the algae obtained in Examples 6 to 8”; [0040] of original, non-translated Nakahara reference) provide values which satisfy the features recited in parts (a)-(d) of present claim 1. For example, a spirulina biomass having L, a, and b values of 63.5, 33.71, and 42.3, respectively, has: (A) color coordinates within the range of 15<L<90, 0<a<95, and 0<b<55 so that the maximum value (a+b) is 76.01, which is smaller than (L*1.2); (B) a spectrum absorbance at the maximum absorbance peaks in the range of 400-560 nanometers (corresponding to the complementary color of the color having the aforementioned L, a, and b values); (C) RGB color space values wherein R is 226, G is 128, and B is 80 so that 50<R<255 and each of G and B is equal to or smaller than (R-30); and (D) CMYK color space values wherein C is 0, M is 0.434, Y is 0.648, and K is 0.113, so that C=0, 0.1<M<0.8, 0.1<Y<0.8, 0.01<K<0.5, K<M*6 and M*1.5>Y>M*0.5 as evidenced by Colorizer (page 1, boxes labeled “RGB(A)”, “CMYK”, and “Lab”; page 1, blue color shown beside “Complementary” near bottom third of page). Since the biomasses of Nakahara may comprise the features of parts (a)-(d) recited in present claim 1, Nakahara is considered to render present claims 26, 27, and 28 obvious.
Response to Amendment
The Declaration under 37 CFR 1.132 filed 05/08/2026 is insufficient to overcome the rejection of claims 1, 25, and 29 based upon Nakahara and Bleakley as set forth in the last Office action for the following reasons.
The Declaration stated that the term “biomass” is different than the term “extract”. The Declaration stated that a skilled practitioner would understand that the term “biomass” means “material produced by the growth of microorganisms, plants or animals” according to the Glossary reference. The Declaration stated that this definition of “biomass” includes cellular matter, cell walls, and intracellular materials. The Declaration stated that a skilled practitioner would understand that the term “extract” means “The separate phase (often but not necessarily organic) that contains the material extracted from the other phase. Where appropriate the term “loaded solvent” may be used, but is not recommended” according to the Orange Book reference. The Declaration stated that a skilled practitioner would understand that the term “extract” means “a product (such as an essence or concentrate) prepared by extracting” wherein “extracting” means “to withdraw (something, such as a juice or a constituent element) by physical or chemical process” or “to treated with a solvent so as to remove a soluble substance”. The Declaration argued that in the context of the present application, a spirulina biomass would be understood to comprise cellular material whereas a spirulina protein extract would comprise spirulina proteins without any other cellular matter (Declaration, paragraphs 4a-4f).
However, the Examiner points out that, while the term “biomass” encompasses cellular matter, cell walls, and intracellular materials, the term “biomass” also encompasses protein. The present claims require the biomass to contain 80-99 wt.% protein based on dry weight but does not require any other type of material(s) to be present in the biomass, let alone specifically requiring cellular material. The term “biomass” used in the present claims does not imply a requirement that every single material found in fresh spirulina is present in the claimed product, especially wherein the Applicant has not: (1) provided any evidence of such a composition of the claimed product; or (2) provided any definition of “biomass” in the present specification, let alone a definition stating that the term “biomass” in the claims means that every single material found in fresh spirulina is present in the claimed product. Nakara discloses that its product comprises an algal component in its liquid form or dried, crushed algae in its powder form (page 3, paragraph beginning “The present invention relates to”; page 5, paragraph beginning “Grinding Step”). An algal component and dried, crushed algae are both algal biomass. Therefore, the product of Nakahara comprising either a liquid form containing an algal component; or a powder form containing dried, crushed algae (page 3, paragraph beginning “The present invention relates to”; page 5, paragraph beginning “Grinding Step”) is a biomass as the product contains “material produced by the growth of microorganisms, plants or animals”, wherein the microorganism is algae. For at least these reasons, the Declaration’s statements regarding the definition of “biomass” in relation to the present claims are unpersuasive.
The Declaration then pointed to Exhibit C as demonstrating that the spirulina biomass of the present application (i.e., decolorized spirulina) preserves most of the cellular morphology with a cell width similar to that of fresh spirulina and at least partial retention of microstructures (Declaration, paragraphs 4g-4i).
However, the Examiner points out that present claims 1, 6-8, and 26-29 are directed to a product, not a method of making a product. As such, the present claims do not require the spirulina biomass to be obtained through ethanolic extraction and oxidation as seems to be the method of obtaining the decolorized spirulina of Exhibit C. Also, Exhibit C does not disclose the method of producing the decolorized spirulina so it is unclear as to whether the method used to produce the decolorized spirulina of Exhibit C is the same method described in the present specification. Therefore, the product of present claims 1, 6-8, and 26-29 are not necessarily the product of the method used in Exhibit C and thus may not have the features of the decolorized spirulina of Exhibit C. Furthermore, the present claims do not require the biomass to have any particular cell width or microstructure. As such, the Declaration’s statements in regard to Exhibit C are moot.
Furthermore, the Examiner points out that, even if the present product were produced using the same method used to produce the decolorized spirulina in Exhibit C, the present product would not contain all the material produced by the spirulina as Exhibit C states that phycobiliproteins were extracted from the decolorized spirulina (“Executive Summary”). According to the Declaration, the decolorized spirulina of Exhibit C would not be biomass as the decolorized spirulina of Exhibit C would not contain all material from fresh spirulina. This situation would further point to the Declaration’s arguments relating to the interpretation of “biomass” in the present claims being unpersuasive.
For at least these reasons, the Declaration is insufficient to overcome the rejections of claims 1, 25, and 29 based upon Nakahara and Bleakley as set forth in the last Office action.
Response to Arguments
Objection to Drawings: Applicant submitted replacement drawings wherein the commas in the numbers for the L, a, b, C, and h values in Figures 1A-1C were replaced with decimal points. However, the replacement drawings did not explain or provide a legend describing what is meant by “C” and “h” in Figures 1A-1C. Therefore, the objection is maintained as written herein.
Objection to Specification: Applicant submitted a replacement specification which fully addresses the objection. Therefore, the objection is withdrawn.
Claim Warning: Applicant canceled claim 25. Therefore, the warning is moot.
Claim Objections: Applicant amended claim 1 to address the objection. However, claim 1 remains objected to for the reasons described in the objection above.
Claim Rejections – 35 U.S.C. §103 of claims 1, 25, and 29 over Nakahara and Bleakley: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant canceled claim 25. Applicant argued that the compositions of Nakahara contain more than only “biomass” as the liquid compositions of Nakahara contain a solvent such as water, saline, or milk, which are non-spirulina components (Applicant’s Remarks, page 7, 1st paragraph under heading beginning “Claim Rejections” – page 8, 3rd paragraph).
However, as described in the responses to Applicant’s arguments in the Non-Final Office Action filed 01/26/2026, Nakahara discloses that its composition may be in a powder form obtained by drying and crushing algae (page 3, paragraph beginning “The present invention relates to”; page 5, paragraph beginning “Grinding Step”). The dried powder form does not contain a solvent (Nakahara, page 5, paragraph beginning “Grinding Step”); therefore, the powder form does not require non-organism components (i.e., solvent) to be present in its composition so that Nakahara discloses a form of spirulina biomass which does not contain non-organism components.
Nakahara also discloses that its composition may be in a liquid form comprising an algal component and a solvent (page 3, paragraph beginning “The present invention relates to”). However, neither the present specification nor the present claims exclude a solvent from being present in the biomass. For the purpose of examination, the term “spirulina biomass” is interpreted as being a composition comprising of or consisting of matter from spirulina as the present specification does not define the term “biomass” at all and thus, cannot restrict the definition of “biomass” to any particular definition.
Furthermore, the Examiner points out that the present specification does not disclose a specific biomass which does not contain a solvent as the specific examples in the present specification comprise water as a solvent and thus produce a biomass comprising water (i.e., “separating the biomass and resuspending in water” recited in line 20 on page 3 of the present specification; “The biomass was then separated and re-suspended in the water […] Spirulina samples were obtained using the process according to Example 1” recited in lines 21-26 on page 19 of the present specification).
For at least these reasons, Applicant’s arguments regarding the compositions of Nakahara comprising non-spirulina components so that the compositions of Nakahara are not “biomass” as presently claimed are unpersuasive.
Applicant then argued that Nakahara does not: teach biomass having a protein content of 80-99 dwt.% as presently claimed; or teach or suggest the claimed L, a, and b color values (Applicant’s Remarks, page 8, 4th paragraph).
However, in response to Applicant’s assertion that Nakahara does not teach a protein content of 80-99 dwt.% as presently claimed, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Bleakley renders the claimed protein content obvious as described above in the rejection of present claim 1.
In response to Applicant’s assertion that Nakahara does not or teach or suggest the claimed L, a, and b color values, Nakahara teaches that its biomass may have color coordinates in the range of 35 ≤ L ≤ 85; a ≥ 0; and 30 ≤ b ≤ 60, as measured according to CIELAB color space (page 4, 1st paragraph; page 5, paragraph beginning “An example of L value of orange spirulina”). This disclosed L value range falls within the claimed range of L values recited in part (a) of present claim 1. This disclosed a value range encompasses the claimed range of a values recited in part (a) of present claim 1. This disclosed b value range overlaps the claimed range of b values recited in part (a) of present claim 1. Nakahara exemplifies L, a, and b values within these ranges as being 63.5, 7.5, and 42.3, respectively (page 5, paragraph beginning “An example of L value of orange spirulina”; page 9, table below paragraph beginning “For the algae obtained in Examples 6 to 8”; [0040] of original, non-translated Nakahara reference). These values fall within the claimed L, a, and b values ranges recited in part (a) of present claim 1. Using these exemplified values of L=63.5, a=7.5, and b= 42.3, the maximum value of (a+b) in Nakahara is 49.8 (corresponding to 7.5 + 42.3), which is smaller than (L*1.2), and therefore falls within the claimed range of (a+b) recited in part (a) of present claim 1. For at least these reasons, Nakahara renders the claimed L, a, and b values obvious.
Applicant then pointed to the Declaration filed 05/08/2026 to demonstrate that the claimed spirulina biomass is different from the protein extract of Bleakley; and that any combination of the teachings of Nakahara and Bleakley would not obtain a spirulina biomass (Applicant’s Remarks, page 8, 6th paragraph – page 10, 1st paragraph; page 11, 2nd paragraph).
See the section labeled “Response to amendment” above.
Applicant then argued that Bleakley does not teach or suggest a biomass with the claimed protein quantity as Bleakley only teaches “extracts” which are distinct from “biomass”. Applicant argued that Bleakley cannot remedy the deficiencies of Nakahara for this reason. Applicant argued that there is no motivation to combine Nakahara’s compositions containing non-algal components with the Bleakley’s teaching about extracts (Applicant’s Remarks, page 8, 7th paragraph; page 10, 2nd paragraph- page 11, 1st, 3rd- 4th paragraphs).
However, as previously stated, for the purpose of examination, the term “spirulina biomass” is interpreted as being a composition comprising of or consisting of matter from spirulina as the present specification does not define the term “biomass” at all. Therefore, Applicant cannot restrict the definition of “biomass” to any particular definition, let alone a definition requiring that all materials present in fresh spirulina be present in the claimed spirulina biomass as asserted in the Declaration.
An “extract” of an organism such as spirulina would necessarily contain at least one material from the organism (e.g., protein from the organism). The spirulina protein extract of Bleakley contains spirulina protein. Spirulina protein is a material produced by spirulina. Therefore, according to the definition being applied in the present examination, the spirulina protein extract of Bleakley is a composition comprising spirulina protein and is thus considered to be spirulina biomass as presently claimed. Bleakley teaches that its spirulina protein extracts contain 85.5 ± 4.9 wt.% based on dry weight (page 3, 2nd paragraph; page 7, Table 1), thereby providing a range of protein content based on dry weight of 80.6-90.4 wt.%. This range of protein content falls within the claimed protein concentration recited in present claim 1. Since the spirulina protein extracts of Bleakley are considered to be spirulina biomass as previously described and the extracts of Bleakley contain 80.6-90.4 wt.% based on dry weight, the spirulina protein extracts of Bleakley are each a spirulina biomass having a protein content within the range of 80-99 dwt.% as presently claimed.
In response to Applicant’s assertions that Bleakley cannot remedy the deficiencies of Nakahara and that there is no motivation to combine Nakahara’s compositions containing non-algal components with the Bleakley’s teaching about extracts, as described above in the rejection of present claim 1, Nakahara discloses that (1) high protein content is an important feature of spirulina, (2) its biomass may be prepared by purification, (3) its biomass may be an extract of spirulina, and (4) its spirulina may be Spirulina platensis (page 2, paragraph beginning “Algae such as spirulina”; page 2, paragraph beginning “The above mentioned algae; page 7, paragraph beginning “And this invention also provides”; page 7, paragraph beginning “Seed algal culture”), but does not disclose a protein content for Spirulina platensis or for the purified biomass (e.g., protein extract) made from Spirulina platensis. Therefore, a skilled practitioner would have been motivated to consult Bleakley in order to determine a suitable amount of protein for Spirulina platensis and for purified biomass/extract (e.g., protein extract) made from Spirulina platensis. Bleakley discloses that its Spirulina platensis protein extracts contain 85.5 ± 4.9 wt.% based on dry weight (page 3, 2nd paragraph; page 7, Table 1), thereby providing a range of protein content based on dry weight of 80.6-90.4 wt.%. This range of protein content falls within the claimed protein concentration recited in present claim 1, thereby rendering the claimed protein content.
For at least these reasons, Applicant’s arguments regarding combining the teachings of Bleakley with the teachings of Nakahara are unpersuasive.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of claims 1 and 29 are maintained as written herein. The rejection of claim 25 is withdrawn due to the cancelation of the claim.
Claim Rejections – 35 U.S.C. §103 of claims 6-8 over Nakahara, Bleakley, and Cheng; claims 26-28 over Nakahara and Bleakley as evidenced by Colorizer: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that neither Cheng nor Colorizer remedy the aforementioned deficiencies of Nakahara and Bleakley (Applicant’s Remarks, page 11, 5th -10th paragraphs).
However, Nakahara and Bleakley have been shown to render present claim 1 obvious. Therefore, Cheng and Colorizer are relied on merely for their teachings regarding the additional features recited in present claims 6-8 and 26-28.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of claims 6-8 and 26-28 are maintained as written herein.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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