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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/26/2026 has been entered.
Claims 4-6, 10-16, 18-19, 22-25 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Information Disclosure Statement
The information disclosure statement filed 2/26/2026 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4, 13, 14, and 15 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.
Claim 4 recites a limitation of a Lemna extract composition “configured to contain organoleptic properties”. Given than any edible substance has organoleptic properties, it is unclear what is required to “configure” the claimed extract to have organoleptic properties.
Claims 13, 14, and 15 depend from cancelled Claim 9. For the purposes of examination, the claim(s) are interpreted to depend from Claim 12.
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 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Olivier (US 9765112 B2).
Regarding Claim 4, Olivier teaches an extract of Lemna (Abstract). The extract comprises 1-50% protein (Column 28, Line 32), 1-10% fat (Column 29, Line 3), and 30-90% carbohydrates (Column 29, Line 20).
Regarding the moisture content, Olivier additionally teaches that after drying, the moisture content is below 40% (Column 28, Lines 18-19). It would have been obvious to have utilize a Lemna extract with any moisture content above 40% to prepare the Lemna extract of Olivier, including the claimed range.
Regarding the limitation that the extract “contain organoleptic properties”, where Olivier teaches that the extract can be used for e.g. feed (Column 29, Line 5), and teaches that other components of the extract are suitable for food (Column 8, Line 24), the extract is interpreted to “contain organoleptic properties” as claimed.
Regarding the limitation that the extract “modulates a characteristic of a food product”, note that any food ingredient modulates a characteristic of a food product. Additionally, note that the Claim does not require that the extract be added to food.
Regarding Claim 5, Olivier teaches drying (Column 29, Line 7) via e.g., a vacuum oven (Column 29, Lines 52-53), which is evaporation.
Regarding Claim 6, where Olivier teaches a Lemna extract, as claimed, with the compositional limitations as claimed, Olivier is interpreted to teach a “complete protein”.
Claims 10-16, 18- 19, and 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Olivier in view of Xu (“Duckweed (Lemnaceae) for potentially nutritious human food: A review”, DOI: 10.1080/87559129.2021.2012800)
Regarding Claims 10, 11, and 12, Olivier teaches an extract of Lemna, and additionally teaches that some components of the extract are suitable for food (Column 8, Line 24).
Olivier does not specifically address the use of the claimed composition for use in food.
Xu teaches that the fat, protein, and carbohydrates of duckweed (such as Lemna, Page 2, Paragraph 2) are suitable for human consumption (Page 5, “Chemical and nutritional characteristics of duckweed suitable for human food”).
It therefore would have been obvious to have utilized any component of a Lemna extract for use in food, including the composition of Olivier. One would have been motivated to utilize such a composition since Xu teaches that the components of duckweed are useful for human consumption. Note that incorporating Lemna extract into a food encompasses “adding and/or mixing” the extract into a food product.
Additionally, note that the addition of any food ingredient has the effect of “modulating a characteristic of a food product”.
Regarding Claims 13 and 14, where modified Olivier teaches the addition of a Lemna extract with the claimed macronutrient composition to a food product, the method of modified Olivier is interpreted to modulate the characteristics of food products as claimed.
Note that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. See MPEP 2145 II.
Regarding Claim 15, Xu teaches the use of duckweed in foods such as bread (Page 10, Paragraph 1).
Regarding Claims 16, 18, and 19, Olivier teaches an extract of Lemna, and additionally teaches that some components of the extract are suitable for food (Column 8, Line 24).
Olivier does not specifically address the use of the claimed composition for use in food.
Xu teaches that the fat, protein, and carbohydrates of duckweed (such as Lemna, Page 2, Paragraph 2) are suitable for human consumption (Page 5, “Chemical and nutritional characteristics of duckweed suitable for human food”).
It therefore would have been obvious to have utilized any component of a Lemna extract for use in food, including the composition of Olivier. One would have been motivated to utilize such a composition since Xu teaches that the components of duckweed are useful for human consumption. Note that incorporating Lemna extract into a food encompasses has the effect of a food product comprising a food product and Lemna extract.
Additionally, note that the addition of any food ingredient has the effect of “modulating a characteristic of a food product”.
Regarding Claim 22, Xu teaches the use of Lemna in foods such as snacks and nutrition bars (Page 10, Paragraph 1).
Regarding Claim 23, Xu teaches that Lemna provides beneficial nutritional characteristics (Page 10, Paragraph 1).
Regarding Claims 24 and 25, Olivier teaches an extract of Lemna but does not specifically address the presence of an aromatic compound.
Xu teaches that Lemna contains carotenoids (Page 10, Paragraph 3), which is a terpene.
Absent evidence to the contrary, the extract of Olivier is therefore interpreted to comprise an aromatic compound such as a carotenoid.
Additionally, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to include an aromatic compound, such as a carotenoid (or terpene), in the extract of Olivier. One would have been motivated to make such a modification to utilize a compound known to have nutritional benefits which was naturally occurring in Lemna.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-6, 7-18, and 19-25 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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