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 .
DETAILED ACTION
This Office Action is responsive to Applicant’s Amendment and Remarks, filed June 5, 2026. The amendment, filed June 5, 2026, is entered, wherein claims 43, 46 – 47, and 60 – 61 are amended, claims 1 – 36, 38, 45, 48, and 58 are canceled, and claims 51 – 55 and 59 are withdrawn.
Receipt is acknowledged of Declaration of Jos Rietjens filed on June 5, 2026.
Priority
This application is a national stage application of PCT/NL2020/050191, filed March 20, 2020, which claims benefit of foreign priority document NL2022788, filed March 22, 2019.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Withdrawn Objections
The objection of claims 43 and 59 – 61 in the previous Office Action, dated March 5, 2026, is withdrawn in view of the amended claims 43 and 59 – 61.
Withdrawn Rejections
The rejection of claims 46 and 63 in the previous Office Action, dated March 5, 2026, 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for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been considered and is withdrawn in view of the amended claims 46 – 47.
The following are maintained / modified grounds of rejection necessitated by Applicant’s Amendment and Remarks, filed June 5, 2026, wherein claims 43, 46 – 47, and 60 – 61 are amended, claims 1 – 36, 38, 45, 48, and 58 are canceled, and claims 51 – 55 and 59 are withdrawn. Previously cited references have been used to establish the maintained / modified grounds of rejection.
New Claim Objections
Claim 60 is objected to because of the following informalities:
Claim 60 was amended in accordance with the claim objection set forth in the previous Office Action. However, the amendment does not properly identify claim 60 as “(Currently Amended)” and does not provide the required amendment markings showing the changes relative to the immediately preceding version of the claim. Appropriate correction is required.
Maintained / Modified Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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:
i. Determining the scope and contents of the prior art.
ii. Ascertaining the differences between the prior art and the claims at issue.
iii. Resolving the level of ordinary skill in the pertinent art.
iv. Considering objective evidence present in the application indicating obviousness or
nonobviousness.
Claims 37, 39 – 44, 46, 56, and 61 – 62 are rejected under 35 U.S.C. 103 as being unpatentable over Omar et al. (Nitric Oxide, 2012, Vol. 26, Issue 4, page 229 – 240, cited in the PTO-892 on March 5, 2026) in view of Hecht (Healthline, 2018, cited in the PTO-892 on March 5, 2026), and Lárez Velásquez et al. (E-Polymer, 2008, Vol. 8, Issue 1, cited in the PTO-892 on March 5, 2026).
Omar et al. teach that inorganic nitrates/nitrites mediate the principal effects via nitric oxide. Inorganic nitrate has simple ionic structures. Orally ingested inorganic nitrate can utilize the enterosalivary circulation, which may prevent an abrupt effect or toxic levels of nitrite and can prolong NO-related effects (Abstract). Omar et al. state that inorganic nitrate (NO3-) and nitrite (NO2-) are salts of nitric acid and nitrous acid, respectively, and that nitrate and nitrite anions are water-soluble ionic species (page 230, Left Col., para. 4). In addition, inorganic nitrate/nitrite may compensate for diminished endothelial function, and tolerance has not been reported. Omar et al. also disclose that inorganic nitrate/nitrite has also been reported to have important cytoprotective effects (Abstract). The use of inorganic nitrate and nitrite continues until the early part of the 20th century for cardiovascular disease and also other conditions, such as epilepsy, lung diseases and as diuretics to treat oedema (page 230, Left Col., para. 1). Thus, Omar et al. teach that inorganic nitrates may treat lung diseases, cardiovascular disease and oedema, which reads on the limitation “disorder related to the airways” of claim 41, “arterial pulmonary hypertension” of claim 42, and “post traumatic pain and/or swelling” of claim 44. Omar et al. disclose that inorganic nitrate and nitrite are hydrophilic salts which do not undergo first pass metabolism by the liver and so can be readily administered orally. Ingestion of nitrate by humans results in its reduction to nitrite via the enterosalivary circulation (page 230, Left Col., para. 4). Upon secretion into the oral cavity, the nitrate in the saliva is reduced to nitrite by the action of commensal bacteria found on the back of the tongue. Omar et al. further teach that following ingestion of inorganic nitrate, nitrate is readily absorbed and produces increased salivary, plasma, and urinary nitrate and subsequently nitrite levels. Omar et al. also describe the metabolism of inorganic nitrate through the nitrate-nitrite-NO pathway, wherein bacterial nitrate-reductase activity generates nitrite and the resulting nitrite is thereafter metabolized to NO in the stomach and circulation. (page 230, Right Col., para. 4; page 231, Left Col., para. 1). Omar et al. teach the conversion of inorganic nitrates into NO, which reads on the limitation of claim 61. Omar et al. additionally teach that nitrate can be reduced to nitrite endogenously in mammalian tissue by xanthine oxidoreductase (page 230, Left Col., para. 4). In a rat model of hypertension, intervention with high dose nitrate results in a reduction in blood pressure (page 236, Left Col., para. 3). The use of inorganic nitrite in human studies results in vasodilatation in the pulmonary vasculature leading to reduction in pulmonary arterial pressure (PAP) (page 236, Right Col., para. 1). The disclosure further confirms that inorganic nitrates would treat arterial pulmonary hypertension, which reads on the limitation of claim 42.
However, Omar et al. do not teach supplying nitrate in the form of chitosan nitrate having the presently recited molecular weight and nitrate-to-chitosan characteristics.
Hecht teaches that oedema has a wide variety of causes (page 2, para. 3). One of the common causes is injury, wherein a fraction, sprain, strain, or bad bruise in leg, ankle, foot or hand can result in swelling and pain (page 2, para. 5). Thus, Hecht teaches that injury-associated oedema may present as swelling accompanied by pain.
Lárez Velásquez et al. teach the synthesis of chitosan nitrate salt by preparing an aqueous medium of biopolymer chitosan and employing an excess of HNO3 (Abstract) and represent chitosan nitrate as QH+NO3- (page 2, para. 5). Lárez Velásquez et al. explain that the polyelectrolyte properties of chitosan arise from positive charges developed on the macromolecules due to protonation of the amine groups in acid medium and teach that the properties of chitosan salts in aqueous solution depend upon the nature of the counterion (page 1, para. 1). Lárez Velásquez et al. further discuss NO3- as a counterion of chitosan nitrate and report that the equilibrium constants may indicate that, at low ionic strength, there is a higher dissociated fraction of NO3- ions than Cl- ion (page 6, para. 2). Lárez Velásquez et al. confirm the presence of nitrate in the chitosan nitrate salt by FTIR, reporting characteristics nitrate-anion signals at 1327 cm-1 and 823 cm-1 (page 2, para. 6). Lárez Velásquez et al. also report that the chitosan nitrate preparation is dialyzed and that acid-base and conductimetric titration confirmed the absence of free acid moieties (page 7, para. 2), thereby supporting that the nitrate present in the studied material is associated with the chitosan nitrate salt rather than residual nitric acid. Thus, Lárez Velásquez et al. teach that nitrate is present as a counterion of chitosan nitrate and provide support that a fraction of the nitrate ions may be dissociated in aqueous solution. The chitosan used has a molecular weight of 400,000 Da and acetylation degree of 0.162. Thus, Lárez Velásquez et al. teach the preparation of chitosan nitrate using a chitosan with 400,000 Da molecular weight, which corresponds to the limitation “20 – 500 kDa” of claim 37. The chitosan salt is prepared by placing 3.0 g of chitosan in 125 mL deionized water and a small stoichiometric excess of HNO3 (65%) is added (page 6, para. 4; page 7, para. 1). Lárez Velásquez et al. teach that chitosan has demonstrated to be a promising material for biomedical applications, such as controlled drug release. Lárez Velásquez et al. further explain that many such applications are related to the polyelectrolyte properties of chitosan arising from protonation of its amine groups in acidic medium (page 1, para. 1). Furthermore, Lárez Velásquez et al. disclose that charged moieties on the polymer chains originate from diverse conformational arrangements which contribute to the modeling of chitosan polyelectrolyte behavior and conformational arrangements of polyelectrolyte chains in aqueous solution are controlled by different factors, such as molecular weight (page 1, para. 1).
It would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to employ the chitosan nitrate of Lárez Velásquez et al. as a source of nitrate for obtaining the nitrate-derived physiological effects taught by Omar et al. because Omar et al. teach that inorganic nitrate/nitrite mediates its principal effects through nitric oxide and teach therapeutic uses of inorganic nitrate/nitrite, including treatment of cardiovascular and lung diseases and oedema and teach that ingested inorganic nitrate is absorbed and enters the enterosalivary circulation, wherein nitrate is reduced to nitrite and subsequently converted to nitric oxide, and Lárez Velásquez et al. teach the preparation of the specific chitosan nitrate salt QH+NO3- and identify nitrate as the anionic counterion associated with protonated chitosan. Lárez Velásquez et al. further confirm the nitrate counterion by FTIR and report that the equilibrium behavior of chitosan nitrate in aqueous solution may indicate a dissociated fraction of NO3- ions at low ionic strength. Lárez Velásquez et al. additionally teach that chitosan has been considered a promising material for biomedical applications, including controlled drug release, and explain that many such applications are related to the polyelectrolyte properties resulting from protonation of chitosan’s amine groups. Accordingly, one of ordinary skill in the art seeking to provide nitrate for obtaining the known physiological and therapeutic effects associated with the nitrate-nitrite-NO pathway taught by Omar et al. would have had reason to employ the known chitosan nitrate salt in view of Lárez Velásquez et al. because Lárez Velásquez et al. establish that the material contains nitrate as the counterion of protonated chitosan and that a fraction of such nitrate counterions may exist in dissociated form in aqueous solutions. The teaching that chitosan was already considered useful in biomedical applications would have further supported consideration of the chitosan salt in a biomedical context. The combination would have involved using the known nitrate-containing chitosan salt of Lárez Velásquez et al. to provide nitrate for the known physiological nitrate-nitrite-NO pathway of Omar et al., thereby predictably providing nitrate capable of undergoing reduction of nitrite and subsequent formation of NO. One of ordinary skill in the art would have had a reasonable expectation of success because Lárez Velásquez et al. experimentally prepare and characterize chitosan nitrate as QH+NO3-, confirm nitrate as the counterion, and provide evidence that a fraction of nitrate ions may be dissociated in aqueous solution, while Omar et al. establish the physiological fact of available inorganic nitrate, including its absorption, reduction to nitrite, and subsequent conversion to NO. Thus, taken together, these teachings would have provided a reasonable basis for expecting the nitrate made available from chitosan nitrate under physiological aqueous conditions to participate in the known nitrate-nitrite-NO pathway and thereby providing nitrate-derived NO and its associated physiological effects.
As to claim 37, Lárez Velásquez et al. teach preparation of chitosan nitrate using chitosan having a molecular weight of approximately 400,000 Da, i.e., 400 kDa, which falls within the claimed range of 20 – 500 kDa. Thus, the chitosan nitrate material relied upon in the combination discussed above possesses a chitosan molecular weight within the presently claimed range. One of ordinary skill would have had a reasonable expectation of success employing chitosan nitrate having the recited molecular weight because Lárez Velásquez et al. actually prepare and characterize the nitrate salt using chitosan of approximately 400 kDa.
With respect to claims 43 – 44, Omar et al. teach the use of inorganic nitrate/nitrite in connection with oedema. Hecht teaches that oedema may result from physical injury and that injuries such as fractures, sprains, strains, and bruising may produce swelling accompanied by pain. Thus, one of ordinary skill would have recognized that a subject suffering from injury-associated oedema may also be a subject in need of pain treatment. In view of the above discussed teachings of Omar et al. and Lárez Velásquez et al. concerning the therapeutic use of inorganic nitrate/nitrite and the provision of nitrate by chitosan nitrate, respectively, it would have been obvious to employ the chitosan nitrate composition of Lárez Velásquez et al. to provide nitrate for treating oedema taught by Omar et al., including injury-associated oedema as further supported by Hecht because Hecht’s teaching that injury-associated oedema may manifest as swelling accompanied by pain further establishes that such treatment would be administered to a subject experiencing post-traumatic swelling and pain. Accordingly, one of ordinary skill in the art would have had reasonable expectation of success for the reasons discussed above regarding the availability of nitrate from chitosan nitrate and the teaching of physiological activity of inorganic nitrate/nitrite of Omar et al.
Regarding claim 46, the claim further requires that the chitosan has a molecular weight in the range of 150 – 250 kDa. Lárez Velásquez et al. disclose that molecular weight is one of the factors controlling the conformational arrangements of chitosan polyelectrolyte chains in aqueous solution. As previously set forth, one of ordinary skill in the art would have recognized molecular weight as a variable affecting the properties of chitosan and would have selected an appropriate molecular weight to obtain desired chitosan characteristics. Lárez Velásquez et al. further explain that changes in molecular weight may result in a molecular weight induced conformational transition and report that a chitosan conformational transition has been demonstrated at 223 kDa (page 2, para. 3), which falls within the presently claimed range of 150 – 250 kDa. This disclosure further supports the finding that molecular weights within the recited range are known in the art as relevant to the molecular weight dependent conformational behavior of chitosan. Accordingly, selection of chitosan molecular weight within the recited range would have been within the ordinary skill in the art in view of the recognized effect of molecular weight on chitosan conformation.
With respect to claim 56, Lárez Velásquez et al. teach preparation of chitosan nitrate using chitosan having an acetylation degree of 0.1662 and a small stoichiometric excess of HNO3. An acetylation degree of 0.162 corresponds to a deacetylated fraction of approximately 0.838 and therefore approximately 0.838 amine-bearing units per average repeat unit. Based on the disclosed degree of acetylation and formation of the nitrate salt, the corresponding nitrate-anion-to-chitosan weight ratio is approximately 1:3.2, which falls within the claimed range of 1:1 to 1:10. Thus, Lárez Velásquez et al. teach chitosan nitrate composition having a nitrate-anion-to-chitosan weight relationship within the recited range.
Claims 47, 49 – 50, 57, 60, and 63 are rejected under 35 U.S.C. 103 as being unpatentable over Omar et al. (Nitric Oxide, 2012, Vol. 26, Issue 4, page 229 – 240, cited in the PTO-892 on March 5, 2026) in view of Adler (Future Science, 2015, Vol. 1, Issue 1, cited in the PTO-892 on March 5, 2026), Torregrossa et al. (Journal of Geriatric Cardiology, 2011, Vol. 8, Issue 4, page 230 – 242, cited in the PTO-892 on March 5, 2026), Lárez Velásquez et al. (E-Polymer, 2008, Vol. 8, Issue 1, cited in the PTO-892 on March 5, 2026), and Francois (EP0755253B1).
Omar et al. teach that inorganic nitrates/nitrites mediate the principal effects via nitric oxide. Inorganic nitrate has simple ionic structures. Orally ingested inorganic nitrate can utilize the enterosalivary circulation, which may prevent an abrupt effect or toxic levels of nitrite and can prolong NO-related effects (Abstract). Omar et al. state that inorganic nitrate (NO3-) and nitrite (NO2-) are salts of nitric acid and nitrous acid, respectively, and that nitrate and nitrite anions are water-soluble ionic species (page 230, Left Col., para. 4). In addition, inorganic nitrate/nitrite may compensate for diminished endothelial function, and tolerance has not been reported. Omar et al. also disclose that inorganic nitrate/nitrite has also been reported to have important cytoprotective effects (Abstract). Ingestion of nitrate by human results in its reduction to nitrite via the enterosalivary circulation (page 230, Left Col., para. 4). Upon secretion into the oral cavity, the nitrate in the saliva is reduced to nitrite by the action of commensal bacteria found on the back of the tongue. Omar et al. further teach that following ingestion of inorganic nitrate, nitrate is readily absorbed and produces increased salivary, plasma, and urinary nitrate and subsequently nitrite levels. Omar et al. also describe the metabolism of inorganic nitrate through the nitrate-nitrite-NO pathway, wherein bacterial nitrate-reductase activity generates nitrite and the resulting nitrite is thereafter metabolized to NO in the stomach and circulation. The swallowed nitrite, under the influence of the acidic conditions in the stomach, becomes protonated to nitrous acid. A proportion of the nitrous acid decomposes to produce NO (page 230, Right Col., para. 4; page 231, Left Col., para. 1). Thus, Omar et al. teach the physiological nitrate-nitrite-NO pathway by which nitrate provides a substrate for the biological formation of nitrite and subsequently NO, which corresponds to the nitrate-to-nitrite-to-NO pathway recited in claim 60. Omar et al. additionally teach that nitrate can be reduced to nitrite endogenously in mammalian tissue by xanthine oxidoreductase (page 230, Left Col., para. 4).
However, Omar et al. do not teach supplying nitrate in the form of chitosan nitrate having a molecular weight in the range of 20 – 500 kDa. Omar et al. do not teach using chitosan nitrate for skin protection and/or for promoting healthy aging, wherein the skin protection is a protection against environmental influences or reduction of skin aging, and the subject suffers from a lack of nitric oxide, wherein the lack of nitric oxide is due to aging. Omar et al. do not teach that the weight ratio between nitrate anion and chitosan is between 1:1 and 1:10. Omar et la. do not teach administering chitosan nitrate as a nasal spray. Omar et al. do not explicitly teach that the nitrate is supplied as chitosan nitrate or that nitrate made available from chitosan nitrate undergoes the disclosed pathway. Omar et al .also do not explicitly characterize the disclosed commensal bacteria as anaerobic bacteria.
Adler teaches that the role of NO in skin’s response to UV radiation and skin pigmentation has paved a way for future use of NO as a cosmeceutical and/or novel non-UV tanning agent capable of reducing photoaging (page 12, Executive summary). Thus, Adler teaches that NO is capable of reducing photoaging, which reads on the limitation “skin protection” of claim 47 and “protection against environmental influences and reduced skin aging” of claim 49.
Torregrossa et al. teach that constitutive production of NO is reduced with aging (Abstract), thereby providing an aging-related context of reduced NO production corresponding to the limitation “the lack of nitric oxide is due to aging” of claim 50.
Lárez Velásquez et al. teach the synthesis of chitosan nitrate salt by preparing an aqueous medium of biopolymer chitosan and employing an excess of HNO3 (Abstract) and represent chitosan nitrate as QH+NO3- (page 2, para. 5). Lárez Velásquez et al. explain that the polyelectrolyte properties of chitosan arise from positive charges developed on the macromolecules due to protonation of the amine groups in acid medium and teach that the properties of chitosan salts in aqueous solution depend upon the nature of the counterion (page 1, para. 1). Lárez Velásquez et al. further discuss NO3- as a counterion of chitosan nitrate and report that the equilibrium constants may indicate that, at low ionic strength, there is a higher dissociated fraction of NO3- ions than Cl- ion (page 6, para. 2). Lárez Velásquez et al. confirm the presence of nitrate in the chitosan nitrate salt by FTIR, reporting characteristics nitrate-anion signals at 1327 cm-1 and 823 cm-1 (page 2, para. 6). Lárez Velásquez et al. also report that the chitosan nitrate preparation is dialyzed and that acid-base and conductimetric titration confirmed the absence of free acid moieties (page 7, para. 2), thereby supporting that the nitrate present in the studied material is associated with the chitosan nitrate salt rather than residual nitric acid. Thus, Lárez Velásquez et al. teach that nitrate is present as a counterion of chitosan nitrate and provide support that a fraction of the nitrate ions may be dissociated in aqueous solution. The chitosan used has a molecular weight of 400,000 Da and acetylation degree of 0.162. Thus, Lárez Velásquez et al. teach the preparation of chitosan nitrate using a chitosan with 400,000 Da molecular weight, which corresponds to the limitation “20 – 500 kDa” of claim 47. The chitosan salt is prepared by placing 3.0 g of chitosan in 125 mL deionized water and a small stoichiometric excess of HNO3 (65%) is added (page 6, para. 4; page 7, para. 1). Lárez Velásquez et al. teach that chitosan has demonstrated to be a promising material for biomedical applications, such as controlled drug release. Lárez Velásquez et al. further explain that many such applications are related to the polyelectrolyte properties of chitosan arising from protonation of its amine groups in acidic medium (page 1, para. 1). Furthermore, Lárez Velásquez et al. disclose that charged moieties on the polymer chains originate from diverse conformational arrangements which contribute to the modeling of chitosan polyelectrolyte behavior and conformational arrangements of polyelectrolyte chains in aqueous solution are controlled by different factors, such as molecular weight (page 1, para. 1).
Francois teaches a composition comprising chitosan, wherein the chitosan may be present as a pharmaceutically acceptable salt (para. [0010]), wherein the salt form may be chitosan nitrate (para. [0013]). The composition can be administered via the nasal route using a nasal spray device (para. [0031]). Thus, Francois provides additional support that chitosan nitrate is recognized as a pharmaceutically acceptable chitosan salt and teaches nasal spray administration of a chitosan-containing pharmaceutical composition, which reads on the limitation “a nasal spray” of claim 63.
It would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to employ the chitosan nitrate of Lárez Velásquez et al. as a source of nitrate for obtaining the nitrate-derived nitric oxide taught by Omar et al., including for the skin protective and aging-related purposes in view of Adler and Torregrossa et al. because Omar et al. teach that inorganic nitrate/nitrite mediates its principal biological effects through nitric oxide and teach the physiological nitrate-nitrite-NO pathway, wherein nitrate is reduced to nitrite and nitrite is subsequently converted to NO produces biological effects and Lárez Velásquez et al. teach the specific chitosan nitrate salt QH+NO3-, identify nitrate as the anionic counterion associated with the protonated chitosan, confirm the nitrate counterion by FTIR, and provide support that a fraction of the nitrate counterions may exist in dissociated form in aqueous solution. Adler teaches that NO is involved in the skin response to UV radiation and may be useful for reducing photoaging, and Torregrossa et al. teach that the NO production decreases with aging. One of ordinary skill in the art would have been motivated to make the combination because Omar et al. establish that biologically available nitrate provides a substrate for formation of nitrite and subsequently NO and that nitrate/nitrite-derived NO produces recognized physiological effects, while Lárez Velásquez et al. provide a known chitosan nitrate material containing nitrate counterions capable of becoming available in aqueous solution. Adler teaches a beneficial role for NO in reducing photoaging, and Torregrossa et al. identify reduced NO production as a consequence of aging. Accordingly, a person of ordinary skill seeking to provide nitrate-derived NO for skin-related effects taught by Adler or to address reduced NO production associated with aging as taught by Torregrossa et al. therefore would have had reason to employ the chitosan nitrate of Lárez Velásquez et al. as the nitrate source. Lárez Velásquez et al. further recognize chitosan-based materials for biomedical application, thereby supporting consideration of such a chitosan salt in biomedical context. The proposed combination would have involved the use of a known material according to its known chemical characteristics to obtain a predictable result. Specifically, the chitosan nitrate of Lárez Velásquez et al. would provide nitrate counterions, and Omar et al. teach the known physiological fact of available nitrate through reduction to nitrite and subsequent formation of NO. Thus, the predictable result of the combination would have been provision of nitrate capable of participating in the known nitrate-nitrite-NO pathway and thereby providing nitrate-derived NO for the skin protective and aging-related purposes identified by Adler and Torregrossa et al. One of ordinary skill in the art would have had a reasonable expectation of success because Lárez Velásquez et al. prepare and characterize chitosan nitrate as QH+NO3-, confirm nitrate as the counterion, and provide support that a fraction of nitrate ions may be dissociated in aqueous solution, while Omar et al. establish that available inorganic nitrate is absorbed, reduced to nitrite, and subsequently converted to NO. Adler further teaches that NO produces the desired skin-related effect, and Torregrossa et al. teach reduced NO production with aging. Taken together, these teachings would have provided a reasonable basis for expecting nitrate made available from administered chitosan nitrate under physiological aqueous conditions to participate in the known nitrate-nitrite-NO pathway and provide nitrate-derived NO for the skin protective and aging-related purposes taught by Adler and Torregrossa et al.
Regarding claim 47, Lárez Velásquez et al. teach preparation of chitosan nitrate using chitosan having a molecular weight of approximately 400,000 Da, i.e., 400 kDa, which falls within the recited range of 20 – 500 kDa. Thus, the chitosan nitrate material relied upon in the combination discussed above possesses a molecular weight within the claimed range. Adler further teaches that NO has a beneficial role in the skin response to UV radiation and may be useful for reducing photoaging. Accordingly, one of ordinary skill in the art would have had reason to employ chitosan nitrate of Lárez Velásquez et al., having a molecular weight within the claimed range, as a nitrate source for providing nitrate-derived NO for the skin protective purpose taught by Adler. One of ordinary skill would have had a reasonable expectation of success because Lárez Velásquez et al. actually prepare chitosan nitrate using chitosan of approximately 400 kDa, Omar et al. teach the physiological nitrate-nitrite-NO pathway, and Adler teaches the desired skin-related effect of NO.
With respect to claim 57, Lárez Velásquez et al. teach preparation of chitosan nitrate using chitosan having an acetylation degree of 0.162 and a small stoichiometric excess of HNO3. An acetylation degree of 0.162 corresponds to a deacetylated fraction of approximately 0.838 and therefore approximately 0.838 amine-bearing units per average repeat unit. Based on the disclosed degree of acetylation and formation of the nitrate salt, the corresponding nitrate-anion-to-chitosan weight ratio is approximately 1:3.2, which falls within the claimed range of 1:1 to 1:10. Thus, Lárez Velásquez et al. teach chitosan nitrate composition having a nitrate-anion-to-chitosan weight relationship within the recited range.
Responses to Applicant’s Remarks:
Applicant’s Remarks, filed June 5, 2026, have been fully considered. To the extent Applicant’s arguments are directed to the prior grounds of rejection in which Francois was relied upon as the primary reference, those arguments are moot in view of the new grounds of rejection set forth above. Upon further consideration, the present grounds principally rely upon Omar et al. for the physiological nitrate-nitrite-NO pathway and the therapeutic effects associated with nitrate/nitrite-derived NO, and upon Lárez Velásquez et al. for the specific chitosan nitrate material, including the presence and aqueous behavior of the nitrate counterion. Francois is relied upon only for the additional teachings identified in the rejection. Applicant’s remaining arguments are addressed below to the extent they remain relevant to the newly stated grounds.
Applicant argues that Francois does not teach or suggest that chitosan nitrate functions as an NO donor. Applicant contends that the active ingredient in Francois is the antimigraine compound, while chitosan merely functions as an absorption enhancer. Applicant further argues that Francois lists chitosan nitrate only as one of several possible chitosan salts and does not identify chitosan nitrate itself as therapeutically active. This argument does not overcome the presently stated rejection because the present rejection no longer relies upon Francois as the basis for concluding that chitosan nitrate would provide nitrate-derived NO. Omar et al. is relied upon for the physiological teaching that available nitrate is reduced to nitrite and subsequently give rise to NO. Lárez Velásquez et al. is relied upon for the specific chitosan nitrate material, which they represent as QH+NO3-, thereby identifying nitrate as the counterion associated with protonated chitosan, and for the aqueous solution studies indicating that a fraction of the nitrate counterions may exist in dissociated form. Accordingly, whether Francois recognizes chitosan nitrate as an NO donor, or instead employs chitosan principally as an absorption enhancer in an antimigraine formulation, is not determination of the present rejection. Francois is relied upon only for the additional teachings identified above, such as nasal spray administration.
Applicant further argues that Francois teaches away from the claimed use because the antimigraine compound of Francois has vasoconstrictive activity, whereas NO is known to promote vasodilation. Applicant contends that a person of ordinary skill therefore would have been discouraged from using the composition of Francois to provide NO. To the extent Applicant relies upon the vasoconstrictive action of Francois’s antimigraine compound as evidence of teaching away, the argument is not applicable to the principal basis of the presently stated rejection. The present rejection does not rely upon Francois’s antimigraine treatment as the reason to administer chitosan nitrate for production of nitrate-derived NO. Instead, Omar et al. supply the therapeutic and physiological nitrate-nitrite-NO teaching, and Lárez Velásquez et al. supply the chitosan nitrate material and the relevant nitrate-counterion chemistry. Accordingly, the pharmacological purpose of Francois’ separate antimigraine active ingredient does not negate the reason to combine Omar et al. with Lárez Velásquez et al. set forth in the present rejection.
Applicant argues that Omar et al. concern simply inorganic nitrate and do not teach that chitosan nitrate would behave in the same manner or function as a NO donor. Applicant further contends that Omar et al. do not suggest using chitosan nitrate to deliver nitrate to bacteria residing in the mouth, skin, mucous membranes, or gastrointestinal tract. The argument is not persuasive. Omar et al. is not relied upon for teaching chitosan nitrate itself, nor does the rejection require Omar et al. to disclose the structure of chitosan nitrate. Omar et al. is relied upon for the known biological behavior of available nitrate, including bacterial reduction of nitrate to nitrite and subsequently to NO through the nitrate-nitrite-NO pathway. Lárez Velásquez et al. further study chitosan nitrate in aqueous solution and report that the equilibrium behavior may indicate a dissociated fraction of NO3- ions. Thus, the present rejection does not equate the intact structure of chitosan nitrate with the inorganic nitrate salts explicitly discussed by Omar et al., nor does it require the intact chitosan nitrate polymer to be converted directly to nitrite. Instead, Lárez Velásquez et al. provide support that nitrate associated with chitosan nitrate may exist in dissociated form in aqueous solution, while Omar et al. separately teach the known physiological fact of available nitrate. Accordingly, the combined teachings provide the factual basis for expecting nitrate made available from the chitosan nitrate salt to be capable of entering the nitrate-nitrite-NO pathway taught by Omar et al.
Applicant argues that Lárez Velásquez et al. is directed to polymer chemistry and physical properties of chitosan salts rather than therapeutic use, and therefore do not teach that chitosan nitrate acts as an NO donor or treats NO-deficiency conditions. The argument is not persuasive because the rejection does not rely on Lárez Velásquez et al. for therapeutic NO-donor activity or for treatment of an NO-deficiency condition. Lárez Velásquez et al. is relied upon for the specific chemical and physical teachings concerning chitosan nitrate. In particular, Lárez Velásquez et al. prepare and characterize QH+NO3-, identify nitrate as the counterion associated with protonated chitosan, confirm the presence of nitrate in the salt by FTIR, and report aqueous solution behavior indicating that a fraction of nitrate counterions may be dissociated. Lárez Velásquez et al. further report that the studied preparation was dialyzed and that titration confirmed the absence of free acid, supporting that the nitrate being characterized is associated with the chitosan nitrate salt rather than merely residual nitric acid. Omar et al. separately provide the biological teaching concerning the physiological conversion of available nitrate to nitrite and subsequently to NO. Thus, the references are relied upon for complementary teachings. Lárez Velásquez et al. do not need to independently teach the therapeutic use that is provided by the combination.
Applicant argues that there was no motivation to select chitosan nitrate from among the various chitosan salts disclosed by Francois and use it as an NO donor. Applicant characterizes the rejection as relying on hindsight because the references allegedly provide no reason to choose chitosan nitrate specifically. The argument is not persuasive. The stated reason to combine arises from the teachings of the references rather than from the present disclosure. Omar et al. teach that nitrate provides a physiological substrate for formation of nitrite and subsequently NO and further teach recognized biological and therapeutic effects associated with nitrate-derived NO. Lárez Velásquez et al. independently teach a known chitosan nitrate material containing nitrate as the counterion of protonated chitosan and provide evidence that a fraction of such nitrate counterions may exist in dissociated form in aqueous solution. Accordingly, one of ordinary skill in the art seeking to provide nitrate for the known nitrate-nitrite-NO pathway taught by Omar et al. would have had reason to consider the known nitrate-containing chitosan salt of Lárez Velásquez et al. The rejection does not rely upon Francois’s listing of chitosan nitrate among multiple chitosan salts as the reason for selecting the nitrate salt. Instead, the selection is supported by the specific teaching of chitosan nitrate of Lárez Velásquez et al. and the behavior of its nitrate counterion when considered in view of the teaching of biological utility of available nitrate of Omar et al. For the skin-related claims, Adler additionally teaches a beneficial role of NO in reducing photoaging, while Torregrossa et al. teach that endogenous NO production decreases with aging. For the post-traumatic claims, Hecht supplies the teaching that injury-associated oedema may manifest as swelling accompanied by pain. These teachings provide additional claim-specific reasons for applying the nitrate-derived NO pathway in the claimed context.
Applicant further argues that the cited references do not provide a reasonable expectation that chitosan nitrate would successfully function as an NO donor because none of the references allegedly shows that nitrated associated with chitosan would be biologically available for conversion to NO. However, the argument is not persuasive. The present rejection does not assume that the intact chitosan nitrate structure is converted directly to nitrite or NO. Lárez Velásquez et al. characterize chitosan nitrate as a QH+NO3-, wherein NO3- is the counterion associated with protonated chitosan, and study the behavior of the chitosan nitrate salt in aqueous solution. Lárez Velásquez et al. report that the equilibrium behavior may indicate a dissociated fraction of nitrate ions in aqueous solution. Lárez Velásquez et al. further confirm nitrate in the chitosan nitrate material and report that the preparation was dialyzed and shown to be free of residual acid. Omar et al. separately teach the physiological behavior of available nitrate, including reduction of nitrate to nitrite and subsequent formation of NO. Thus, the expectation of success does not depend upon treating intact chitosan nitrate as structurally identical to the inorganic nitrate salts exemplified by Omar et al. Instead, it is based upon Lárez Velásquez et al. as a support that nitrate is the counterion of chitosan nitrate and that a fraction of such nitrate may exist in dissociated form, together with the teaching of Omar et al. concerning the subsequent physiological fact of available nitrate. Taken together, these teachings provide a reasonable basis for expecting nitrate made available from chitosan nitrate under aqueous physiological conditions to be capable of participating in the known nitrate-nitrite-NO pathway taught by Omar et al.
Applicant argues that Omar et al. and Hecht do not establish that chitosan nitrate specifically would be effective for post-traumatic pain or swelling. Applicant contends that Omar et al. merely discuss oedema and Hecht merely associates injury with pain and swelling. However, the argument is not persuasive. Omar et al. is relied upon for teaching nitrate/nitrite treatment in connection with oedema, while Hecht teaches that oedema may result from injury and that fractures, sprains, strains, and bruises may produce swelling accompanied by pain. Lárez Velásquez et al. provide the chitosan nitrate material to be sued as the nitrate source for the reasons discussed above. Thus, the references collectively establish a reason to apply the nitrate-based treatment taught by Omar et al., using the chitosan nitrate of Lárez Velásquez et al., to injury-associated oedema as taught by Hecht. Neither Omar et al. nor Hecht is relied upon individually to teach the complete claimed method. Instead, Omar et al. provide the nitrate/oedema treatment context, Hecht provides the relationship between injury, oedema, swelling, and pain, and Lárez Velásquez et al. provide the nitrate-containing chitosan salt. One of ordinary skill in the art therefore would have had reason to treat injury-associated oedema, with the reasonable expectation of treating swelling in a subject who may also experience the associated pain.
Applicant argues with respect to the skin protection claims that Adler only teaches that NO may be useful for skin protection and that Torregrossa et al. merely teach that NO production decreases with age. Applicant contends that these references do not provide a reason to administer chitosan nitrate specifically. The argument is not persuasive. Adler is relied upon for identifying the beneficial skin-related effect of NO, and Torregrossa et al. is relied upon for identifying aging as a condition associated with decreased NO production. Neither reference is relied upon to teach chitosan nitrate. Omar et al. provide the known biological pathway by which available nitrate gives rise to nitrite and subsequently NO, while Lárez Velásquez et al. provide the specific chitosan nitrate material and support concerning the availability of its nitrate counterion in aqueous solution. Thus, Adler and Torregrossa et al. supply the reason why nitrate-derived NO would be desirable for the claimed skin protective and aging-related purposes, while Omar et al. and Lárez Velásquez et al. provide the nitrate-to-NO pathway and the nitrate-containing material, respectively. The references therefore provide complementary teachings supporting the claimed combination.
Applicant also relies on the Declaration of Jos Rietjens as evidence of unexpected results. Applicant asserts that chitosan nitrate produced lower urinary nitrate excretion than potassium nitrate and therefore allegedly provided improved retention and bioactivation of nitrate, with the Declaration reporting reductions in urinary nitrate excretion of approximately 9 – 37% relative to potassium nitrate. Applicant contends that these results show that chitosan nitrate unexpectedly outperforms a conventional inorganic nitrate sources as an NO donor. The Declaration has been fully considered. However, the evidence is not sufficient to outweigh the evidence supporting the prima facie case. In particular, the present rejection does not depend upon a teaching or expectation that potassium nitrate and chitosan nitrate are interchangeable nitrate salts that would exhibit equivalent nitrate retention, bioactivation, or urinary nitrate excretion. Omar et al. is relied upon for the physiological behavior of available nitrate, while Lárez Velásquez et al. is relied upon for the specific chitosan nitrate material and the aqueous behavior of its nitrate counterion. Neither reference is relied upon for a teaching that potassium nitrate and chitosan nitrate constitute equivalent alternatives expected to exhibit the same pharmacokinetic properties. Accordingly, the observed difference in urinary nitrate excretion between chitosan nitrate and potassium nitrate does not directly rebut the particular prior art teachings or the reason for combining those teachings in the present rejection. Moreover, the Declaration reports testing in a single healthy participant using several chitosan molecular weights and infers increased gastrointestinal nitrate retention and increased biological conversion from reduced urinary nitrate excretion. The Declaration does not directly measure nitrite production, NO production, treatment of an NO-deficiency condition, skin protection, pulmonary effects, pain relief, or the other therapeutic endpoints encompassed by the pending claims. Further, the claims encompass broad methods and therapeutic indications that extend beyond the specific oral supplementation experiment reported in the Declaration. Thus, the evidence has not been shown to be commensurate in scope with the pending claims. Accordingly, while the Declaration and the asserted evidence of unexpected results have been fully considered, the evidence is insufficient to outweigh the evidence supporting the prima facie case of obviousness.
Applicant further argues that the alleged superior performance of chitosan nitrate relative to potassium nitrate establishes that one of ordinary skill would not have expected chitosan nitrate to function as claimed. The argument is not persuasive. The obviousness inquiry does not require the prior art to predict the precise degree of nitrate retention or every pharmacokinetic property subsequently observed for chitosan nitrate. The question is whether the prior art would have provided a reason to employ chitosan nitrate with a reasonable expectation that nitrate made available from the salt may participate in the known nitrate-nitrite-NO pathway. Lárez Velásquez et al. provide support that nitrate is present as the counterion of chitosan nitrate and that a fraction of the nitrate ions may exist in dissociated form in aqueous solution, while Omar et al. teach the physiological conversion of available nitrate to nitrite and subsequently to NO. Thus, the asserted difference in degree in urinary nitrate excretion does not establish that the expected basic function, which is the availability of nitrate capable of entering the nitrate-nitrite-NO pathway, would have been unpredictable. Evidence that the claimed material may perform better than expected is relevant and has been considered, but such evidence must be weighed against the strength of the prima facie case and must be reasonably commensurate with the scope of the claims.
Finally, Applicant argues that the rejection is based on impermissible hindsight because multiple references are required to reconstruct the claimed invention. However, the argument is not persuasive. The use of multiple references does not itself establish hindsight. The question is whether the prior art provides an articulated reason why a person of ordinary skill would have combined or applied the teachings with a reasonable expectation of success. Omar et al. teach the physiological nitrate-nitrite-NO pathway and recognized biological or therapeutic effects associated with nitrate/nitrite-derived NO; Lárez Velásquez et al. teach and characterize the specific chitosan nitrate material, identify nitrate as the counterion associated with protonated chitosan, and provide support that a fraction of nitrate ions may exist in dissociated form in aqueous solution; Adler provides the additional teaching concerning beneficial skin-related effects of NO; Torregrossa et al. provide the aging-related teaching concerning reduced NO production; Hecht provides the relationship between physical injury, oedema, swelling, and pain; and Francois supplies the additional nasal spray teaching where that limitation is recited. The stated reasons for combining these teachings therefore arise from identifiable relationships within the prior art; Omar et al. provide a reason to supply biologically available nitrate; Lárez Velásquez et al. provide a known nitrate-containing chitosan material whose nitrate counterion may become available in aqueous solution; and the additional references provide the particular therapeutic or administration contexts recited in the dependent claims. The rejection therefore rests upon articulated prior art teachings and predictable relationships rather than reconstruction of the claimed invention using Applicant’s disclosure as a roadmap.
Conclusion
No claim is found to be allowable.
Applicant's amendment necessitated the maintained / modified 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.
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/H.Y.L./Examiner, Art Unit 1693
/SCARLETT Y GOON/Supervisory Patent Examiner, Art Unit 1693
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