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 Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 01/12/2026 is acknowledged. Receipt of the Response and Amendment filed 01/21/2026 is acknowledged.
The status of the claims upon entry of the amendment filed 01/12/2026 was as follows:
Pending claims: 1, 6-23, 25-28 (*the second clam 27 is interpreted as being claim 28.)
Withdrawn claims: 9-23
Previously cancelled claims: 2-5, 10-12, 15-17, 24
Newly cancelled claims: None
Amended claims: 1, 7-8
New claims: 26-28
Claims currently under consideration: 1, 6-8, 25-28
Currently rejected claims: 1, 6-8, 25-28
Allowed claims: None
The status of the claims upon entry of the present amendment filed 01/21/2026 stands as follows:
Pending claims: 1, 6-23, 25-29
Withdrawn claims: 9-23
Previously cancelled claims: 2-5, 10-12, 15-17, 24
Newly cancelled claims: None
Amended claims: 1, 7-8
New claims: 29
Claims currently under consideration: 1, 6-8, 25-29
Currently rejected claims: 1, 6-8, 25-29
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/12/2026 has been entered.
Drawings
The drawings are objected to because the commas in the numbers for the L, a, b, C, and h values in Figures 1A-1C should be replaced with decimal points (e.g., “70,53” should be read as “70.53”). Additionally, it is not clear what is meant by “C” and “h” in Figures 1A-1C.
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.
Specification
The disclosure is objected to because of the following informalities:
There are two tables labeled as “Table 2” in the specification. The second Table 2 on page 21 will be referred to hereinafter as “Table 4”.
The commas in the numerical values in Tables 1-4 and in the paragraphs discussing results should be replaced with decimal points (e.g., “10,44” should be read as “10.44”).
Appropriate correction is required.
Claim Warnings
Applicant is advised that should claim1 be found allowable, claim 25 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Objections
Claim 1 is objected to because “0.1M<Y<0.8” should be read as “0.1<Y<0.8”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 25, 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, 25, 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 claims 1 and 25; 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 claims 1 and 25; 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 high protein content is an important feature of spirulina, that its biomass may be prepared by purification, that its biomass may be an extract of spirulina, and that 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 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, 25, 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/).
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 Arguments
Drawings: Applicant provided replacement drawings as requested. However, Figs. 1A-1C are objected to for the reasons provided above.
Claim Rejections - 35 U.S.C. §103 of claims 1 and 25 over Nakahara and Bleakley; claims 6-8 over Nakahara, Bleakley, and Cheng: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant stated that the Oxford English Dictionary defines “biomass” as “the total quantity or weight of organisms in a given area or volume”. Applicant argued that Nakahara does not disclose “a food-grade spirulina biomass” as the algae-containing composition of Nakahara contains components that are not organisms (e.g., solvent, antioxidants, an odor control composition) and is thus not biomass as required by present claim 1 (Applicant’s Remarks filed 01/12/2026, page 7, 3rd paragraph – page 9, 3rd paragraph).
However, Nakahara discloses that a powdered algae-containing composition for food or drink can be obtained by drying and crushing algae (page 3, paragraph beginning “The present invention relates to”; page 5, paragraph beginning “Grinding Step”) so that Nakahara does not require non-organism components to be present in its composition.
The Examiner points out that the present specification does not define the term “biomass” at all and thus, cannot restrict the definition of “biomass” to the definition provided in the Oxford English Dictionary, especially wherein “biomass” has different definitions in the art. For example, “biomass” is also defined as “biological material derived from living, or recently living organisms” (“General biomass information”, 2026, Forest Research, https://www.forestresearch.gov.uk/tools-and-resources/fthr/biomass-energy-resources/general-biomass-information/).
The Examiner also points out that the present specification does not disclose a specific biomass which fits the definition asserted by the Applicant as the specific examples in the present specification comprise water as a solvent and thus produce a composition as defined by the Applicant (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 the purpose of this examination, the term “spirulina biomass” is interpreted as being a composition comprising of or consisting of organic matter from spirulina.
Applicant amended claim 1 to recite that the spirulina biomass has a protein content of 80-99 wt.% based on dry weight. Applicant argued that Bleakley does not disclose a spirulina biomass having the claimed protein content as the spirulina protein extract containing 85.5 ± 4.9 wt.% protein based on dry matter disclosed by Bleakley is not a spirulina biomass, but a protein extract. Applicant then argued that there is no evidence that the extract has the L, a, and b values required by present claim 1 (Applicant’s Remarks filed 01/21/2026, page 6, paragraphs under “Claim 1”).
However, as stated above, for the purpose of this examination, the term “spirulina biomass” is interpreted as being a composition comprising of or consisting of organic matter from spirulina. Spirulina protein is organic material from spirulina and thus the spirulina protein extract of Bleakley is encompassed by this interpretation of “spirulina biomass”. In response to the Applicant’s assertion that there is no evidence that the extract has the L, a, and b values required by present claim 1, Nakahara discloses that its spirulina biomass may be produced from spirulina or an extract thereof (page 7, paragraph beginning “And this invention also provides”). Therefore, the combination of Nakahara and Bleakley render a spirulina biomass having the claimed protein content and claimed L, a, and b values obvious.
Applicant then argued that the Examiner has not pointed to a specific biomass which meets the features recited in part (a) of present claim 1 as the Examiner points to two separate sections of Nakahara for the L, a, and b values. Since the Examiner does not point to a single biomass in Nakahara which meets the color coordinate features recited in part (a) of claim 1, Nakahara does not teach this feature, and thus, cannot render claim 1 obvious (Applicant’s Remarks filed 01/12/2026, page 9, 4th – 5th paragraphs).
However, the Examiner points out that all of the spirulina biomass compositions of Nakahara have an a value of at least -5, and more specifically an a value of at least 0 (page 4, 1st paragraph). Therefore, this a value combined with the specific L and b values disclosed within the same paragraph of Nakahara (i.e., page 5, paragraph beginning “An example of L value of orange spirulina”) provide values of (a+b) which are equal to or smaller than (L*1.2) as described above in the rejections of present claims 1 and 26-28. The Examiner also points out that the present claims are rejected under 35 U.S.C. §103, not 35 U.S.C. §102, wherein rejections under 35 U.S.C. §103 permit such combining of features from separate sections within a single reference.
The Examiner also points out that the present specification does not disclose a spirulina biomass as defined by Applicant as the biomasses disclosed in the examples of the present specification are suspended in water (page 19, lines 21-26). Since water is a non-biological component, the spirulina samples of the examples in the present specification would not qualify as spirulina biomass as defined by the Applicant. Consequently, the spirulina samples of the examples in the present specification would not represent a specific biomass which meets the features recited in part (a) of present claim 1 as defined by the Applicant.
Applicant then argued that the Examiner has provided an alleged motivation to combine Nakahara and Bleakley to arrive at an algae-containing composition but that this algae-containing composition is different from a spirulina biomass as presently claimed (Applicant’s Remarks filed 01/12/2026, page 10, 1st paragraph).
However, Nakahara was shown to disclose that its algae-containing composition is a spirulina biomass as described in the Examiner’s response above. Since the prior art has been shown to render present claim 1 obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of claim 1 is maintained as written herein.
Applicant argued that claims 6-8 and 25 are non-obvious for similar reasons that claim 1 is non-obvious (Applicant’s Remarks filed 01/12/2026, page 10, 2nd paragraph).
However, claim 1 is shown to be rendered obvious for the reasons provided in its rejection and in the Examiner’s responses above. 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 the claims are maintained as written herein.
Claims 26-28: Applicant argued that none of the cited prior art references disclose parts (b)-(d) of claim 1 (Applicant’s Remarks filed 01/12/2026, page 10, 3rd paragraph).
However, claims 26-28 are shown to be rendered obvious by the combination of Nakahara and Bleakley as evidenced by Colorizer.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791