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 .
In view of applicant’s amendment, previous 112(d) rejection on claim 79 is hereby withdrawn.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Claim Interpretation
The amended claim recites “b) a filler comprising inulin in an amount of 60-85% by weight”. Such limitation is interpreted by the Examiner (based on the reading of present specification (see [010] and [011]) and the previous claim filed on January 9, 2023) to mean that a filler (b) is present in the amount of 60-85% by weight, and the filler includes inulin.
Claim Objections
Claim 61 is objected to because of the following informalities: applicant need to change “b) a filler comprising inulin in an amount of 60-85% by weight” to --- b) a filler in an amount of 60-85% by weight, wherein the filler comprises inulin --- (so as to make the meaning of claim more clear). Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 61-68 and 70-80 are 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
In claim 61, applicant recite “[a] composition comprising: a) a microalgae powder in an amount of 5-30% by weight, comprising astaxanthin; and b) a filler comprising inulin in an amount of 60-85% by weight or (c) a filler being inulin and magnesium in a combined amount of 60-85% by weight, wherein said composition is characterized by increased stability, . .. , wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months.”
The Examiner interprets the limitation “wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months” to mean that the composition remains stable (as indicated by at least 95% of the astaxanthin remaining in the composition) for a minimum of six months (see Paragraph 7 below)). However, instant composition being claimed to be stable (as indicated by at least 95% of said astaxanthin remaining in said composition) for a minimum of six months (180 days) is not described in present specification in such a way as to reasonably convey to one skilled in the art that inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention for the following reasons: as shown in present specification, applicant’s inventive Formulation 4 was shown to be stable at 35 days (no coating, under vacuum); Formulation 6 was stable at 35 days (no coating, under vacuum); Formulation 7 was stable at 30 days (no coating, under vacuum or not); Formulation 8 was stable at 90 days (no coating, under vacuum or not) (these formulations all contained instant components (a) and (b) in the amounts that fall within the claimed ranges). However, there was no showing of maintenance in the increased stability for the minimum of 6 months as instantly claimed. In fact, the data shown in Table 28 (in relation to present Example 10) indicates that at 6 months, the composition is not stable (only 87% of the active ingredient remaining). Therefore, for the reasons explained above, it is the Examiner’s position that instant composition being claimed to be stable (as indicated by at least 95% of said astaxanthin remaining in said composition) for a minimum of six months (180 days) is not described in present specification in such a way as to reasonably convey to one skilled in the art that inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
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 61-68 and 70-80 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.
The amended claim 61 states that compared to a control, instant composition is characterized by increased stability, wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition “after” a period of at least 6 months. The italicized portion of such limitation is confusing and indefinite: (i) Do applicant mean that after 6 months (or 7 months, 8 months, etc.) of the storage of the composition, testing of the composition is performed, and the testing shows that at least 95% of the astaxanthin remained in the composition? Or, (ii) do they mean that the composition only becomes stable after 6 months? Or , (iii) do they mean that the composition remains stable forever beyond 6 months? Or, (iv) do they meant that the composition remains stable for a minimum of six months?
For the purpose of examining the claim on the merit, the Examiner interpreted “wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months” to mean that the composition remains stable (as indicated by at least 95% of the astaxanthin remaining in the composition) for a minimum of six months (i.e., the scenario (iv) as described above). (the Examiner also notes that the first three scenarios do not have support in the originally filed disclosure).
IF applicant meant the scenario (iv), they need to change “after a period of at least 6 months” to --- for a minimum of six months --- (so as to remove any confusion). Applicant also need to change “comprises” as in “wherein said increased stability comprises at least 95% of said astaxanthin remaining . . .” to --- means --- (so as to make the meaning of the claim clear).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 65 and 66 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 61, from which both claims 65 and 66 depend, states that the microalgae powder comprises astaxanthin. Yet, claim 65 states that the microalgae powder of claim 61 comprises at least one carotenoid. However, the astaxanthin of claim 61 is already a carotenoid. Thus, claim 65 fails to further limit the subject matter of claim 61. Also, claim 66 is stating that the microalgae powder of claim 61 is selected from the group consisting of astaxanthin, lutein and fucoxanthin. However, since claim 61 already requires the microalgae powder to comprise astaxanthin, claim 66 fails to further limit the subject matter of claim 61.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 80 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
The amended claim 61, from which instant claim 80 depends, now recites that “said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months.” This means that the increased stability testing is performed by measuring the percentage of the astaxanthin remaining in the composition, which implies that the presence of astaxanthin is required. Thus, claim 80, limitation (ii) which recites “a composition missing at least one of said (a) or said (b) or (c)” fails to further limit the subject matter of instant claim 61.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 61, 63-67, 70-72, 74-77, 79 and 80 are rejected under 35 U.S.C. 103 as being unpatentable over Wu (CN 106473114 A and its English translation) in view of Long et al (CN 106913589 A and its English translation) and Licari (US 6,455,068 B1) (with (i) Mularczyk et al (“Astaxanthin and other Nutrients from Haematococcus pluvialis-Multifunctional Applications”, Mar Drugs, vol.18(9) (Sep.7, 2020), pg.1-22), which is being cited here merely to support the Examiner’s assertion that Haematococcus pluvialis has been shown to accumulate up to 5% dry weight of astaxanthin; (ii) an internet article on nutrition facts on grapefruit as obtained from the website: https://www.urmc.rochester.edu/encyclopedia/content.aspx?contenttypeid=76&contentid=09111-2, which is being cited here merely to support the Examiner’s assertion that grapefruit contains alpha-tocopherol) .
In its Example 1 (see [0040]-[0045]); see also [0009]-[0010]) , Wu teaches an anti-aging composition comprising 20% of rose petals, 32% of whole grape fruit powder, 36% of inulin and 12% of Haematococcus pluvialis (the percentages are by weight – see [0010]).
With respect to instant component (a), Wu’s Haematococcus pluvialis is instant microalgae of claim 76 and thus teaches instant microalgae of claim 61. Wu also teaches ([0044]) that the main active ingredient of Haematococcus pluvialis is astaxanthin (instant carotenoid of claims 65-66). Thus, Wu’s Haematococcus pluvialis teaches instant microalgae comprising astaxanthin. Wu does not explicitly teach that the Haematococcus pluvialis is in a powder form. However, as evidenced by Long et al (see [0006]), Haematococcus pluvialis powder has been approved by the FDA and has been used in the health care product market as a dietary ingredient. It would have been obvious to one skilled in the art to use Haematococcus pluvialis in a powder form in Wu’s anti-aging composition with a reasonable expectation of success. Thus, Wu in view of Long teaches instant microalgae powder comprising astaxanthin. As to instant range (5-30 wt.%) for the amount of the microalgae powder, as stated above, Wu’s anti-aging composition of Embodiment 1 contains 12 wt.% of Haematococcus pluvialis (instant microalgae powder comprising astaxanthin). Since such value falls within instant range, Wu teaches instant range for the amount of the microalgae powder. As stated in In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976), “the disclosure in the prior art of any value within a claimed ranges is an anticipation of that range.” Thus, Wu in view of Long renders obvious instant component (a) microalgae powder in an amount of 5-30 wt.% comprising astaxanthin.
With respect to instant component (b), the inulin present in Wu’s anti-aging composition of Example 1 teaches instant filler comprising inulin. With respect to instant range 60-85 wt.% for the amount of the filler comprising inulin, Wu teaches ([0010]) that its composition can contain inulin in the amount of 20-50 wt.%. Such range does not overlap with instant range 60-85 wt.% for the amount of the filler (inulin). However, Licari (col.1, lines 54-57) teaches that high dietary fiber intake has been associated with lower risk or improvement in several chronic diseases and that this association has led to the recommendations to increase dietary fiber consumption (Wu also recognizes ([0035]) that modern civilization diseases such as obesity, diabetes and hyperlipidemia are due to the insufficient dietary fiber intake). Licari teaches (col.4, lines 3-14) inulin as a preferred dietary fiber component and teaches that preferably the dietary fiber component (such as inulin) can be used in the amount of at least 50 wt.%. Based on Licari’s teaching (and also based on Wu’s recognition of the association of insufficient dietary fiber and modern civilization diseases), it would be obvious to one skilled in the art to increase the dietary fiber component such as inulin to at least 50 wt.% in Wu’s composition with a reasonable expectation of achieving lower risk or improvement in several chronic diseases, such as obesity, diabetes and hyperlipidemia. The range at least 50 wt.% overlaps with instant range 60-85 wt.% for the amount of the filler comprising inulin, thus rendering instant range prima facie obvious. In the case “where the [claimed] ranges overlap or lie inside ranges disclosed by the prior art,” a prima facie case of obviousness would exist which may be overcome by a showing of unexpected results, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) (besides, 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. See MPEP 2144.05 (II)(A)). Thus, Wu in view of Licari renders obvious instant component (b) a filler comprising inulin in an amount of 60-85% by weight.
With respect to instant limitation “wherein said composition is characterized by increased stability, processability, or both, compared to a control, and wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months”, since Wu in view of Long and Licari teaches instant composition of claim 61 comprising instant components (a) and (b), such composition would naturally show increased stability, processability, or both, when compared to a control (such as described in claim 80), wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months as recited in claim 61 or 6-12 months as recited in claim 63.
Thus, Wu in view of Long and Licari renders obvious instant claims 61, 63, 76 and 80.
With respect to instant claims 64, 70 and 71, as shown above, Wu’s anti-aging composition also comprises whole grape fruit powder, and Wu teaches ([0015]-[0016]) that the main functional substance of the whole grape fruit powder is red wine polyphenol, which contains a variety of powerful antioxidants. Thus, Wu in view of Long and Licari renders obvious instant claims 64, 70 and 71 (instant claims 70 and 71 do not require the presence of the wax material in instant composition of claim 64. It only requires that if the composition of claim 64 further comprises a wax material, then the wax material has to be selected from those listed in claim 70 and that the wax material has to be carnauba wax and the amount for the carnauba wax has to be 1-10 wt.% as recited in claim 71). With respect to instant claim 72, as discussed above, Wu’s anti-aging composition contains whole grapefruit powder, and according to nutrition facts on grapefruit (obtained from the website: https://www.urmc.rochester.edu/encyclopedia/content.aspx?contenttypeid=76&contentid=09111-2 ), grapefruit contains vitamin E (alpha-tocopherol) (instant antioxidant of claim 72 (ii)). Thus, Wu in view of Long and Licari renders obvious instant claim 72.
With respect to instant claims 65 and 66, Wu teaches ([0044]) that the main active ingredient of is Haematococcus pluvialis is astaxanthin (instant carotenoid of claims 65-66). Thus, Wu in view of Long and Licari renders obvious instant claims 65 and 66.
With respect to instant claim 67, Wu teaches ([0010]) that its anti-aging composition may contain Haematococcus pluvialis in the amount of 1-15 wt.%. Furthermore, as evidenced by Mularczyk et al (see pg.7, lines 6-7), Haematococcus pluvialis has been shown to accumulate up to 5% dry weight of astaxanthin. Assuming about 5% dry weight of astaxanthin, this gives the amount for the astaxanthin present in Wu’s anti-aging composition containing 1-15 wt.% of Haematococcus pluvialis to be in a range of about 0.05-0.75 wt.%. Although such range does not overlap with instant range 1-8 wt.% for the amount of astaxanthin, it is the Examiner’s position that the higher end (0.75 wt.%) of such range and the lower end (1 wt.%) of instant range are close to each other such that a prima facie case of obviousness would exist: where the claimed ranges and prior art do not overlap but are close enough that one skilled in the art would have expected them to have the same properties, a prima facie case of obviousness would also exist which may also be overcome by a showing of unexpected results, In re Titanium Metals Corporation of America v. Banner, 227 USPQ 773 (Fed. Cir. 1985). Besides, 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. See MPEP 2144.05 (II)(A). Thus, Wu in view of Long and Licari renders obvious instant claim 67.
With respect to instant claim 74, as discussed above, Wu’s Example 1 composition contains 12 wt.% of Haematococcus pluvialis. Such value falls within instant range 8-24 wt.% for the amount of the microalgae powder, and thus teaches instant range. In re Wertheim supra. Thus, Wu in view of Long and Licari renders obvious instant claim 74.
With respect to instant claim 75, instant claim recites claim limitations for the magnesium recited in (c) of claim 61. However, instant claim language of claim 75 does not require the presence of instant component (c) (i.e., a filler being the combination of inulin and magnesium) in instant composition of claim 61. It only requires that if the filler of claim 61 were the combination of inulin and magnesium, then the magnesium has to satisfy the limitation of claim 75. Thus, Wu in view of Long and Licari still renders obvious instant claim 75.
With respect to instant claim 77, as already discussed above, Wu’s anti-aging composition comprises whole grape fruit powder, and as discussed above in relation to the rejection of claim 72, grapefruit contains vitamin E (alpha-tocopherol) (instant component (iii) (one or more additives) of claim 77). Thus, Wu in view of Long and Licari renders obvious instant claim 77.
With respect to instant claim 79, based on the teachings of Wu in view of Long and Licari as discussed above, it would be obvious to one skilled in the art to prepare Wu’s anti-aging composition by mixing 12 wt.% of Haematococcus pluvialis (microalgae) in powder form and at least 50 wt.% of inulin (along with 20 wt.% of rose petals and 32 wt.% of whole grape fruit powder). As already discussed above, the range at least 50 wt.% overlaps with instant range 60-85 wt.% for the amount of the filler comprising inulin, thus rendering instant range prima facie obvious. In re Wertheim, supra (besides, 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. See MPEP 2144.05 (II)(A)). Thus, Wu in view of Long and Licari renders obvious instant claim 79.
Claim(s) 62 is rejected under 35 U.S.C. 103 as being unpatentable over Wu (CN 106473114 A and its English translation) in view of Long et al (CN 106913589 A and its English translation) and Licari (US 6,455,068 B1) as applied to claim 61 above, and further in view of Giampapa (US 2004/0001817 A1) and Liang et al (CN 106261445 A and its English translation).
With respect to instant claim 62, Wu teaches ([0002]) that its invention relates to the field of nutritional health products, in particular to an anti-aging composition, but does not explicitly teach that its anti-aging composition is in the form of a tablet. As evidenced by Giampapa (see [0061]), it is already known in the art that an anti-aging nutritional supplement composition can be in the form of a tablet, capsule or caplet. Furthermore, as evidenced by Liang et al (see [0006] and [0009]) (and as also evidenced by Long et al ([0075])), Haematococcus pluvialis-containing composition has been made into an anti-aging Haematococcus pluvialis tablet. It would have been obvious to one skilled in the art to have Wu’s anti-aging composition containing Haematococcus pluvialis powder in the form of a tablet according to the well-known practice in the art (and also for convenience reasons) with a reasonable expectation of success. Thus, Wu in view of Long and Licari, and further in view of Giampapa and Liang renders obvious instant claim 62.
Claim(s) 68 is rejected under 35 U.S.C. 103 as being unpatentable over Wu (CN 106473114 A and its English translation) in view of Long et al (CN 106913589 A and its English translation) and Licari (US 6,455,068 B1) as applied to claim 61 above, and further in view of Boursier et al (US 2011/0311599 A1).
As discussed above, Wu’s anti-aging composition comprises rose petals, whole grape fruit powder, inulin (instant filler comprising inulin) and Haematococcus pluvialis.
Wu’s composition does not contain instant maltodextrin or gum acacia. Wu teaches ([0025]) that inulin is a soluble dietary fiber. As evidenced by Boursier ([0098]-[0101]), it is known in the art that branched maltodextrin (another well-known soluble dietary fiber) is beneficial to the metabolism and to the intestinal equilibrium. It would have been obvious to one skilled in the art to further incorporate branched maltodextrin (in addition to the inulin) as another soluble dietary fiber in Wu’s anti-aging composition so as to bring benefits to the metabolism and intestinal equilibrium as taught by Boursier. Thus, Wu in view of Long and Licari, and further in view of Boursier renders obvious instant claim 68.
Claim(s) 73 is rejected under 35 U.S.C. 103 as being unpatentable over Wu (CN 106473114 A and its English translation) in view of Long et al (CN 106913589 A and its English translation) and Licari (US 6,455,068 B1), as applied to claim 61 above, and further in view of Boursier et al (US 2011/0311599 A1), Liang et al (CN 106261445 A and its English translation), Hall (US 2017/0015603 A1) and Leslie (WO 2009/143020 A1).
First of all, with respect to instant limitation “wherein said filler further comprising a dietary fiber being present in said composition”, as evidenced by Boursier ([0098]-[0101]), it is known in the art that branched maltodextrin (which teaches instant dietary fiber of claim 73 further contained in the filler of claim 61) is beneficial to the metabolism and to the intestinal equilibrium. It would have been obvious to one skilled in the art to further incorporate branched maltodextrin (in addition to the inulin) in Wu’s anti-aging composition so as to bring benefits to the metabolism and intestinal equilibrium as taught by Boursier. Secondly, Wu’s anti-aging composition of Example 1 does not contain a wax material which is required to be present in the composition of claim 73. However, as evidenced by Liang et al (see [0006] and [0009]) (and as also evidenced by Long et al ([0075])), Haematococcus pluvialis-containing composition has been made into an anti-aging Haematococcus pluvialis tablet. It would have been obvious to one skilled in the art to have Wu’s anti-aging composition containing Haematococcus pluvialis powder in the form of a tablet (according to the well-known practice in the art and also for convenience reasons) with a reasonable expectation of success. Furthermore, as evidenced by Hall ([0047] and [0012]) and Leslie ([0063]), it is well known in the art that carnauba wax (instant wax material of claim 73) is often used as a binding agent for a tablet composition. It would have been obvious to one skilled in the art to use carnauba wax in Wu’s anti-aging composition as a binding agent with a reasonable expectation of aiding the tablet-formation of Wu’s anti-aging composition. Leslie teaches ([0063]) that such a binding agent (carnauba wax) can be used in the amount of 0.5-30 wt.%. With respect to instant range for the weight ratio of the further added dietary fiber to the wax material being 80:1 to 2:1, although Boursier does not teach the amount for the branched maltodextrin (the dietary fiber of claim 73), Wu teaches ([0035]) that insufficient dietary fiber intake brings modern civilization diseases, such as obesity, diabetes, colon cancer, constipation, etc.. Based on Wu’s such teaching, and based on Leslie’s teaching that carnauba wax can be used in the amount of 0.5-30 wt.%, it would be within a realm of one of ordinary skill in the art to determine the optimum weight ratio range for the dietary fiber (branched maltodextrin) to the wax material. That is, instant range for the weight ratio of the dietary fiber to the wax material would have been obvious to one skilled in the art before the effective filing date of the claimed invention since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Thus, Wu in view of Long, Licari and Boursier, and further in view of Liang, Hall and Leslie renders obvious instant claim 73.
Claim(s) 78 is rejected under 35 U.S.C. 103 as being unpatentable over Wu (CN 106473114 A and its English translation) in view of Long et al (CN 106913589 A and its English translation) and Licari (US 6,455,068 B1) as applied to claim 61 above, and further in view of Qiu et al (CN 109043537 A and it English translation).
Although Wu does not teach that its anti-aging composition is used in ameliorating or reducing muscle pain or muscle cramps, Qiu et al (see [0039] of English translation) teaches that natural astaxanthin in Haematococcus pluvialis can reduce muscle pain, reduce muscle damage and shorten recovery time. It would have been obvious to one skilled in the art to administer Wu’s anti-aging composition comprising Haematococcus pluvialis (a source of astaxanthin) to a patient having muscle pain or muscle damage so as to reduce the muscle pain and muscle damage and to shorten recovery time. Thus, Wu in view of Long and Licari, and further in view of Qiu renders obvious instant claim 78.
Response to Arguments
Applicant argue that instant 112(a) rejection on claims 61-68 and 70-80 is moot in view of their amendment to claim 61. The Examiner believes that such argument is already addressed above in Paragraph 7.
Applicant argue that instant 103 rejections should be withdrawn in view of their amendment of claim 61 which now recites a filler comprising inulin in an amount of 60-85 wt.% since the gap between Wu’s upper limit of 50 wt.% and the amended lower limit of 60 wt.% represents a 20% increase, which is a substantial difference that one skilled in the art would not consider to have the same properties. However, for the reasons already explained above in Paragraph 14, Wu in view of Long and Licari renders obvious instant component (b) a filler comprising inulin in an amount of 60-85% by weight.
Applicant also argue that Wu in view of the other cited prior art(s) does not teach or suggest instant limitation “wherein said composition is characterized by increased stability, processability, or both, compared to a control, and wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months”. However, as already addressed above, since Wu in view of Long and Licari teaches instant composition of claim 61 comprising instant components (a) and (b), such composition would naturally show increased stability, processability, or both, when compared to a control, wherein said increased stability comprises at least 95% of said astaxanthin remaining in said composition after a period of at least 6 months as recited in claim 61.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIN J. LEE whose telephone number is (571)272-1333. The examiner can normally be reached on M-F 9 am-5:30pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached on 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SIN J LEE/
Primary Examiner, Art Unit 1613
May 25, 2026
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