DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 6, 2025 has been entered.
3. Claims 16, 17, 19-26, 28-30, and 34-40 are currently pending.
Election/Restrictions
4. In the replies filed on January 22, 2024 and February 6, 2025, applicant elected Group I, now claims 16, 17, 19-26, 28-30, and vegetable nitrate source for species A and Beta vulgaris for species A-1 without traverse.
5. Claims 22, 34-40 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species and invention, there being no allowable generic or linking claim.
6. Claims 16, 17, 19-21, 23-26, and 28-30 are examined on the merits in regards to the elected species.
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.
7. Claim(s) 16, 17, 19-21, 23-26, and 28-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bailey (US 2016/0303177) in view of Malaguti (J. Appl. Physiol. (2009), vol. 107, pp. 1028-1036) with “Golden Beets, White Beets, and Red Beets” article (https://resyncproducts.com/blogs/resync-blog/golden-beets-white-beets-and-red-beets#:~:text=Different%20betalains%20create%20different%20colors,is%20the%20antioxidant%20%E2%80%9Cbetaine%E2%80%9D ) providing evidence in regards to beet characteristics.
Bailey teaches a nutritional supplement comprises beet root and green tea for enhancing muscle recovery after athletic performance. The reference teaches that the supplement also is useful in increasing energy and promoting cognition. The reference teaches that the beet root is a nitrate source and suggests 500 mg of nitrate as a useful amount. In addition, the reference teaches red or golden (yellow) beets. The reference teaches that green tea is a source of caffeine in the supplement and suggests 125 mg of caffeine as a useful amount. The reference teaches that the composition can be formulated as a chewable solid or paste using solid carriers such as anticaking agents (see paragraphs 2-6, 29, 38, 40, and 42 and Figures 1, 7, and 8). Bailey does not specifically teach that the composition contains vitamins and minerals. However, the “Golden Beets, White Beets, and Red Beets” article teaches that beets naturally contain vitamin C, vitamin B6, iron, magnesium, potassium, and manganese (see page 3). Thus, the composition of Bailey would naturally contain these vitamins and minerals.
Bailey does not specifically teach including sulforaphane in the composition. However, Malaguti teaches that sulforaphane is useful for protecting against muscle damage caused by exercise (see abstract).
These references show that it was well known in the art prior to the effective filing date of the invention to use the claimed ingredients in compositions for protecting muscle during exercise. It is well known that it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is useful for the same purpose. The idea for combining them flows logically from their having been used individually in the prior art.
Based on the disclosure by these references that these substances are used in compositions for protecting muscle during exercise, an artisan of ordinary skill would have a reasonable expectation that a combination of the substances would also be useful in creating compositions for protecting muscle during exercise. Therefore, the artisan would have been motivated to combine the claimed ingredients into a single composition. No patentable invention resides in combining old ingredients of known properties where the results obtained thereby are no more than the additive effect of the ingredients. See MPEP section 2144.06, In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980), Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992).
The references do not specifically teach adding the ingredients together in the amounts claimed by applicant. However, as discussed in MPEP section 2144.05(II)(A), “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” The references teach the use of each of the ingredients in a pharmaceutical composition. Varying the concentration of ingredients within a pharmaceutical composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
The references do not specifically teach the use of chewing gum base in the composition. However, as discussed above, Bailey specifically teaches formulating the composition into a chewable solid. An artisan of ordinary skill would reasonably expect that a chewing gum base could be used to formulate the chewable solid specifically suggested by the reference. This reasonable expectation of success would have motivated the artisan to make this modification.
8. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Susan Coe Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 3:30pm.
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, Terry McKelvey can be reached at 571-272-0775. 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.
/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655