DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 06/16/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the 35 U.S.C. §112(a) rejections of claims 1 and 5-17 have been withdrawn; (2) the 35 U.S.C. §112(b) rejections of claims 1 and 5-17 have been withdrawn; and (3) the 35 U.S.C. §103 rejections of claims 5-6 and 8 over Johnson and Douglas as evidenced by Regulations and Eriksson have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 7, 9-17, 23-24
Withdrawn claims: None
Previously cancelled claims: 2-4, 18-22
Newly cancelled claims: 5-6, 8
Amended claims: 1, 7, 9, 17
New claims: 23-24
Claims currently under consideration: 1, 7, 9-17, 23-24
Currently rejected claims: 1, 7, 9-17, 23-24
Allowed claims: None
Claim Objections
Claims 1, 9, 17, and 24 are objected to because of the following informalities:
In claims 1 and 17, “10-200mg” should be read as “10- 200 mg”.
In claims 9 and 24, “50-100mg” should be read as “50-100 mg”.
Appropriate correction is required.
Claim Objections
Applicant is advised that should claim 1 be found allowable, claim 17 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. Applicant is advised that should claim 7 be found allowable, claim 23 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. Applicant is advised that should claim 9 be found allowable, claim 24 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 7, 9, 17, and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Amazon (“MuscleMeds Carnivor Beef Aminos, Beef Protein Isolate, Beef Liver, Beef Albumin, Creatine, BCAAs for Recovery and Muscle Growth, 300 Tablets”, 2012, https://www.amazon.com/Musclemeds-Carnivor-Aminos-Tablets-Count/dp/B008M9SDN2/ref=sr_1_5_mod_primary_new?crid=38BSJJ7Y3K8KI&dib=eyJ2IjoiMSJ9.aS1mfDYMBnBa0IU9qv9zuGjf9SizLZTm4q7XlhQRJ5OyOoNeWP9pYZN9cQTev8DVVlG8XQt0xuJPSvv7Mld_5qBfFpkQJgcYI2HZRfBE_i8PADU43pT9_jIT4j6Ip8jYfbHevXy91gM4_EQMHjO3-iLRMnN3o8xw37h-98ostvJbAE08LyLT2e4lkALkGxfPOem0QXSxl3GavBgSVglnEKg2oI-0zMkD4MCS1eXEHd9oSWTfyE3a-Pj8QsqcCbwlDGwkwpV2zazOCdOjcd59rB7YKZfWlyDLIolQFlyz8.eNVPXirITLN-UxX3lrEAF2Ns9MQPfdlTLkYr0YZtA8&dib_tag=se&keywords=muscle+meds+carnivor+beef+aminos&qid=1750781368&sbo=RZvfv%2F%2FHxDF%2BO5021pAnSA%3D%3D&sprefix=muscle+meds+carnivor+beef+aminos%2Caps%2C111&sr=8-5; previously cited) in view of Douglas (Douglas, B., “Beef Liver: The Bodybuilder’s Superfood”, 2020, NSP Nutrition, https://nspnutrition.com/blogs/articles/beef-liver-the-bodybuilders-superfood; previously cited) as evidenced by Regulations (“Nutrition labeling of food”, 2026, 21 CFR 101.9, https://www.ecfr.gov/current/title-21/part-101/section-101.9; previously cited).
Regarding claims 1, 7, 9, 17, 23, and 24, Amazon teaches a dietary supplement (corresponding to MuscleMeds Carnivor Beef Aminos) for building muscle comprising: desiccated liver, amino acids, and AKG, wherein the amino acids and AKG are provided separately from and in addition to the liver (1st page, 2nd – 3rd bullets under “About this item”; 1st page, Ingredients list in the box labeled “Just the Facts!”; 2nd page, paragraph under “Product Description”). Even if compounds are not extracted from liver to provide desiccated liver extract, the desiccated liver would still contain extracted components from the liver, thereby rendering the claimed liver extract obvious.
The prior art discloses that the supplement is fat-free and contains 0 g total fat (1st page, Ingredients list in the box labeled “Just the Facts!”). However, nutrition facts labels may state that a consumable product is fat-free and contains 0 g total fat if the product contains less than 0.5 g of fat per serving as evidenced by Regulations (page 8, section beginning with “(2)”). Therefore, the supplement of Amazon may contain fat. This feature is noted because Amazon does not specify that the desiccated liver in the supplement is un-defatted or defatted. However, the only two options for the desiccated liver is un-defatted or defatted and since the supplement of Amazon may comprise up to less than 0.5 g fat, both options are potentially included in the supplement as the desiccated liver. Un-defatted or defatted liver provides a genus of only two options, which represents a genus small enough so that un-defatted liver is able to be at once envisaged a skilled practitioner. MPEP §2131.02.III. For these reasons, the desiccated liver disclosed by Amazon is considered to render the claimed un-defatted desiccated liver extract obvious.
Amazon also teaches that a bottle of the dietary supplement contains 8 ounces of the supplement; and 300 tablets of the supplement wherein a dose of the supplement comprises 3 tablets (1st page, Ingredients list in the box labeled “Just the Facts!”; 1st page, “Item Weight”). Therefore, each tablet weighs 760 mg and each dose weighs 2,270 mg. Amazon does not specify the amount of AKG in the supplement. However, the minimum amount would be greater than 0 mg based on Amazon disclosing that AKG is in the supplement while the maximum amount would be less than the total weight of the dose. Therefore, the concentration of AKG is from greater than 0 mg to less than 2,270 mg, which encompasses the AKG contents recited in present claims 1, 9, 17, and 24.
Amazon also teaches that the amino acids in the supplement include a combination of methionine, phenylalanine, and tryptophan provided by the combination of beef protein isolate, beef albumin, and beef liver (1st page, Ingredients list in the box labeled “Just the Facts!”). The amino acids provided by the beef protein isolate and beef albumin provide amino acids separate from the amino acids provided by the beef liver as recited in present claim 1. Amazon teaches that the bottle contains 8 ounces of the supplement; and 300 tablets of the supplement wherein a dose of the supplement comprises 3 tablets (1st page, Ingredients list in the box labeled “Just the Facts!”; 1st page, “Item Weight”). Therefore, each tablet weighs 760 mg and each dose weighs 2,270 mg. Amazon discloses that 100 g of the supplement contains 1,236 mg methionine, 2,504 mg phenylalanine, and 384 mg tryptophan (1st page, Ingredients list in the box labeled “Just the Facts!”). Therefore, each dose of the supplement contains 28 mg methionine, 57 mg phenylalanine, and 9 mg tryptophan, wherein a portion of the value is provided by the beef protein isolate and beef albumin. Therefore, Amazon is considered to provide amounts of methionine, phenylalanine, and tryptophan which at least overlaps the claimed amount of amino acids provided separately from and in addition to the beef liver extract recited in present claims 1, 7, 17, and 23.
In regard to the overlapping ranges, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Amazon teaches that the supplement comprises desiccated liver (1st page, Ingredients list in the box labeled “Just the Facts!”); and that the supplement is for building muscle (2nd page, paragraph under “Product Description”). Amazon does not teach that the desiccated liver contains micronutrients, cellular cytokines, and peptides related to liver repair as recited in present claims 1 and 17.
However, Douglas teaches a desiccated liver for building muscle which retains naturally-occurring micronutrients (corresponding to vitamins and minerals) and amino acids of the liver (page 1, paragraphs under picture; page 5, 2nd paragraph under “Vince Gironda”). Since the desiccated liver of Douglas is vacuum dried at body temperature and retains naturally-occurring amino acids, it would be obvious for the desiccated liver of Douglas to also retain cellular cytokines and peptides as these components are made of amino acids and the process of Douglas is merely removing water from the liver. As such, the desiccated liver of Douglas is considered to contain micronutrients, cellular cytokines, and peptides related to liver repair as recited in present claims 1 and 17.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the desiccated liver of Amazon to contain its naturally-occurring micronutrients, cellular cytokines, and peptides as taught by Douglas. Since Amazon discloses that the supplement comprises desiccated liver (1st page, Ingredients list in the box labeled “Just the Facts!”); and that the supplement is for building muscle (2nd page, paragraph under “Product Description”), but does not specify a particular desiccated liver component, a skilled practitioner would have been motivated to consult an additional reference such as Douglas in order to determine a suitable desiccated liver component for muscle building, thereby rendering the claimed liver extract comprising enzymes obvious.
The prior art does not specifically state that the supplement triggers repair of a organs in humans; or that the AKG hydroxylates the amino acids to accelerate a repair process of the organ being treated as recited in present claim 1. The prior art also does not specifically state that the supplement triggers repair of a liver organ and associated skin conditions; that the liver extract treats the liver organ; or that the AKG accelerates a repair process of the liver organ and activates hydroxylation for collagen and elastin production as recited in present claim 17. However, regarding product claims, when the ingredient recited in the reference is substantially identical to that of the claims, claimed properties are presumed to be inherent. “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s function, does not render the old composition patentably new to the discoverer.” Please see MPEP §2112 (I), Atlas Powder Co. v. IRECO Inc., 190 F .3d 1342, 1347, 51 USPQ2d 1943. 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function, or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. Please see MPEP §2112 (I), In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). As such, since the prior art teaches a dietary supplement comprising the presently claimed ingredients, the supplement of the prior art presumably has the same properties as the presently claimed supplement.
It is noted that claim 1 and 17 are product-by-process claims and “even though product-by-process claims are limited by and defined by the process, determination of patentability is based upon the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113.I. While Amazon discloses a supplement comprising amino acids and AKG provided separately from the un-defatted desiccated liver extract, the determination of patentability is based upon the composition itself, not whether the amino acids and AKG were added to the supplement separately from the liver extract.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Amazon (“MuscleMeds Carnivor Beef Aminos, Beef Protein Isolate, Beef Liver, Beef Albumin, Creatine, BCAAs for Recovery and Muscle Growth, 300 Tablets”, 2012, https://www.amazon.com/Musclemeds-Carnivor-Aminos-Tablets-Count/dp/B008M9SDN2/ref=sr_1_5_mod_primary_new?crid=38BSJJ7Y3K8KI&dib=eyJ2IjoiMSJ9.aS1mfDYMBnBa0IU9qv9zuGjf9SizLZTm4q7XlhQRJ5OyOoNeWP9pYZN9cQTev8DVVlG8XQt0xuJPSvv7Mld_5qBfFpkQJgcYI2HZRfBE_i8PADU43pT9_jIT4j6Ip8jYfbHevXy91gM4_EQMHjO3-iLRMnN3o8xw37h-98ostvJbAE08LyLT2e4lkALkGxfPOem0QXSxl3GavBgSVglnEKg2oI-0zMkD4MCS1eXEHd9oSWTfyE3a-Pj8QsqcCbwlDGwkwpV2zazOCdOjcd59rB7YKZfWlyDLIolQFlyz8.eNVPXirITLN-UxX3lrEAF2Ns9MQPfdlTLkYr0YZtA8&dib_tag=se&keywords=muscle+meds+carnivor+beef+aminos&qid=1750781368&sbo=RZvfv%2F%2FHxDF%2BO5021pAnSA%3D%3D&sprefix=muscle+meds+carnivor+beef+aminos%2Caps%2C111&sr=8-5; previously cited) in view of Douglas (Douglas, B., “Beef Liver: The Bodybuilder’s Superfood”, 2020, NSP Nutrition, https://nspnutrition.com/blogs/articles/beef-liver-the-bodybuilders-superfood; previously cited) as evidenced by Regulations (“Nutrition labeling of food”, 2026, 21 CFR 101.9, https://www.ecfr.gov/current/title-21/part-101/section-101.9; previously cited) as applied to claim 1 above, and further evidenced by Bell (“Dicalcium Phosphate in the Food Industry”, 2025, Bell Chem, https://web.archive.org/web/20250429004308/https://www.bellchem.com/news/dicalcium-phosphate-in-the-food-industry; previously cited).
Regarding claim 10, Amazon teaches the invention as describe above in claim 1, including the supplement further comprising dicalcium phosphate (1st page, Ingredients list in the box labeled “Just the Facts!”). Dicalcium phosphate is a buffering agent as evidenced by Bell (1st paragraph). Therefore, Amazon discloses a supplement containing a buffering agent to protect against stomach acidity as presently claimed.
Claims 11-16 are rejected under 35 U.S.C. 103 as being unpatentable over Amazon (“MuscleMeds Carnivor Beef Aminos, Beef Protein Isolate, Beef Liver, Beef Albumin, Creatine, BCAAs for Recovery and Muscle Growth, 300 Tablets”, 2012, https://www.amazon.com/Musclemeds-Carnivor-Aminos-Tablets-Count/dp/B008M9SDN2/ref=sr_1_5_mod_primary_new?crid=38BSJJ7Y3K8KI&dib=eyJ2IjoiMSJ9.aS1mfDYMBnBa0IU9qv9zuGjf9SizLZTm4q7XlhQRJ5OyOoNeWP9pYZN9cQTev8DVVlG8XQt0xuJPSvv7Mld_5qBfFpkQJgcYI2HZRfBE_i8PADU43pT9_jIT4j6Ip8jYfbHevXy91gM4_EQMHjO3-iLRMnN3o8xw37h-98ostvJbAE08LyLT2e4lkALkGxfPOem0QXSxl3GavBgSVglnEKg2oI-0zMkD4MCS1eXEHd9oSWTfyE3a-Pj8QsqcCbwlDGwkwpV2zazOCdOjcd59rB7YKZfWlyDLIolQFlyz8.eNVPXirITLN-UxX3lrEAF2Ns9MQPfdlTLkYr0YZtA8&dib_tag=se&keywords=muscle+meds+carnivor+beef+aminos&qid=1750781368&sbo=RZvfv%2F%2FHxDF%2BO5021pAnSA%3D%3D&sprefix=muscle+meds+carnivor+beef+aminos%2Caps%2C111&sr=8-5; previously cited) in view of Douglas (Douglas, B., “Beef Liver: The Bodybuilder’s Superfood”, 2020, NSP Nutrition, https://nspnutrition.com/blogs/articles/beef-liver-the-bodybuilders-superfood; previously cited) as evidenced Regulations (“Nutrition labeling of food”, 2026, 21 CFR 101.9, https://www.ecfr.gov/current/title-21/part-101/section-101.9; previously cited) as applied to claim 1 above, and further evidenced by Eat (“Beef Liver”, 2025, Eat This Much, https://www.eatthismuch.com/calories/beef-liver-2766; previously cited).
Regarding claims 11, 12, 13, 14, 15, and 16, Amazon teaches the invention as described above in claim 1, including the supplement comprises beef liver (1st page, Ingredients list in the box labeled “Just the Facts!”). Beef liver contains threonine, tryptophan, valine, histidine, proline, glycine, arginine, methionine, phenylalanine, tyrosine, glutamine, isoleucine, leucine, and/or lysine as evidenced by Eat (page 2, section under “Amino Acids”). Therefore, the beef liver in the supplement of Amazon contains threonine, tryptophan, valine, histidine, proline, glycine, arginine, methionine, phenylalanine, tyrosine, glutamine, isoleucine, leucine, and/or lysine so that the supplement further comprises the liver extract components threonine, tryptophan, valine, histidine, proline, glycine, arginine, methionine, phenylalanine, tyrosine, glutamine, isoleucine, leucine, and/or lysine as recited in present claims 11, 12, 13, 14, 15, and 16.
The prior art does not specifically state that the components are for treating the liver, lungs, brain, kidneys, thyroid, or skin as recited in present claims 11, 12, 13, 14, 15, and 16, respectively. However, regarding product claims, when the ingredient recited in the reference is substantially identical to that of the claims, claimed properties are presumed to be inherent. “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s function, does not render the old composition patentably new to the discoverer.” Please see MPEP §2112 (I), Atlas Powder Co. v. IRECO Inc., 190 F .3d 1342, 1347, 51 USPQ2d 1943. 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function, or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. Please see MPEP §2112 (I), In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). As such, since the prior art teaches a dietary supplement comprising the claimed ingredients, the supplement of the prior art presumably has the same properties as the claimed supplement.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(a) of claims 1 and 5-17: Applicant canceled claims 5-6 and 8; and amended claims 1, 7, and 9-17 to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §112(b) of claims 1 and 5-17: Applicant canceled claims 5-6 and 8; and amended claims 1, 7, and 9-17 to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1 and 5-17 over Johnson and Douglas: Applicant’s amendments have been fully considered and are considered to overcome the rejections. Therefore, the rejections of the claims over Johnson and Douglas are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1, 5-9, and 17 over Amazon and Douglas as evidenced by Regulations and Eriksson: Applicant’s amendments and arguments have been fully considered and are not considered to overcome the cited prior art.
Applicant amended claim 1 to recite the features of now-canceled claims 5, 6, and 8. Applicant argued that the Examiner’s reliance on Douglas is moot as claim 1 no longer recites “fat-soluble repair enzymes” for which Douglas provided teaching (Applicant’s Remarks, page 7, paragraph under “Second Claim Rejection” – page 8, 1st paragraph).
However, Douglas is still cited in the prior art rejection for its teaching regarding the presence of the claimed “micronutrients, cellular cytokines, and peptides” now recited in present claim 1.
Applicant then argued that Amazon does not teach the claimed structurally dosed amino acids as the supplement of Amazon comprises peptide-bound protein isolate (i.e., peptide-bound amino acids) whereas the present claims require precise milligram levels of individual amino acids (i.e., milligrams of free amino acids) (Applicant’s Remarks, page 8, 2nd paragraph).
However, the Examiner points out that none of the present claims require the amino acids to be free amino acids instead of peptide-bound amino acids. Therefore, Applicant’s arguments regarding such free amino acids are moot.
Applicant then argued that the AKG content of Amazon does not meet the claimed AKG content. Applicant argued that liver cells only contain 0.01-0.05 wt.% AKG so that even if the supplement of Amazon contained 100% pure liver, the maximum amount of AKG that could be present in the supplement of Amazon is 1.13 mg. As such, Applicant argued that it is physically impossible for the supplement of Amazon to contain the claimed content of AKG (Applicant’s Remarks, page 8, 3rd paragraph – page 9, 1st paragraph).
However, the Examiner points out that Amazon does not teach that the AKG in its supplement is provided by liver (i.e., Amazon only teaches beef liver as being part of the beef amino acid complex) (1st page, Ingredients list in the box labeled “Just the Facts!”). Since Amazon teaches AKG as being an entity separate from the beef liver, Applicant’s arguments regarding the content of AKG being limited by the content of AKG in beef liver are moot.
Since the prior art is shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of 1, 7, 9, and 17 are maintained as written herein. The rejections of claims 5-6 and 8 are moot due to the cancelation of these claims.
Claim Rejections – 35 U.S.C. §103 of claim 10 over Amazon and Douglas as evidenced by Regulations, Eriksson, and Bell: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Bell does not cure the aforementioned deficiencies of Amazon and Douglas so that claim 10 is patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 9, entire page).
However, Amazon and Douglas were shown to render claim 1 obvious. Bell is continued to be relied on as an evidentiary reference for the additional features recited in claim 10. Since the prior art is shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of claim 10 is maintained as written herein.
Claim Rejections – 35 U.S.C. §103 of claims 11-16 over Amazon and Douglas as evidenced by Regulations, Eriksson, and Eat: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Eat does not cure the aforementioned deficiencies of Amazon and Douglas so that claims 11-16 are patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 10, entire page).
However, Amazon and Douglas were shown to render claim 1 obvious. Eat is continued to be relied on as an evidentiary reference for the additional features recited in claims 11-16. Since the prior art is shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of claims 11-16 are maintained as written herein.
Conclusion
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.
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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Prosecution Insights