DETAILED ACTION
1. The present application is being examined under the pre-AIA first to invent provisions.
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 23, 2025 has been entered.
3. Claims 1-3 are currently pending.
4. In the reply filed on December 14, 2015, applicant elected Group II, now claim 3, without traverse.
5. Claims 1 and 2 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
6. Claim 3 is examined on the merits.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
7. Claim 3 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 3 has been amended to state that the preparation comprises a daily dose of 25 mg of drone brood, 50 mg of a calcium compound, and 100 IU of vitamins of the D group or its active metabolites. These new limitations introduce new matter into the claims. The original claims and specification teach using 10 mg to 1000 mg of drone brood, 25 mg to 3,000 mg of a calcium compound, and 50 to 1,000,000 IU of vitamin D (with a specific example of 50,000 IU). The original claims and specification do not specifically teach using 25 mg of drone brood, 50 mg of the calcium compound, and 100 IU of D vitamins. Thus, there is a lack of literal basis for these new limitations in the claims. In addition, as discussed in MPEP section 2163.05(II), the broad disclosure of a generic claim or range does not necessarily provide support for each species that would fall within that broad generic range. Thus, even though 25 mg of drone brood, 50 mg of a calcium compound, and 100 IU of vitamins of the D group falls within the broad generic ranges disclosed, there is not considered to be literal or inherent support for each point within that range. Therefore, the limitations of 25 mg of drone brood, 50 mg of a calcium compound, and 100 IU of vitamins of the D group adds new matter to the disclosure.
Response to Arguments
Applicant does not present any new arguments in regards to the merits of the rejection itself and reiterates previously filed arguments. For responses to those arguments please see the previous Office actions.
8. No claims are allowed.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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, Anand Desai can be reached at 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655
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