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
Acknowledgement is made to Applicant’s response filed 09/24/2025.
Claims 19, 21, 22, 26, and 27 are pending and are currently under consideration.
Claims 19, 21, 22, 26, and 27 are currently amended.
Claims 20 and 23-25 are newly cancelled.
Withdrawn Rejections
The rejections made under 112 have been withdrawn in view of Applicant’s amendments correcting said issues.
The rejections made under 102 and 103 have been withdrawn in view of Applicant’s amendments adding new limitations to the claims.6
Claim Interpretation
It is noted that based on the newly presented ranges, when the micelle forming agent is present in an amount of 50%, even if all the other components are present in their minimum amounts, the total composition exceeds 100%, thereby leading one of ordinary skill in the art to understand that all of the ranges are approximate ranges.
New Grounds of Rejection
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 19, 21, 22, 26, and 27 (all claims currently under consideration) 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The response filed 09/24/2025 has introduced NEW MATTER into the claims.
As presently amended claim 19 recites that the curcumin extract is present at a concentration of from 11% to 50%. Thus, the claim broadly encompasses selection of the specific range of 11-50% for the curcumin extract, which was not previously encompassed by the claims or the specification as originally filed.
The response did not point out where support for currently amended claim 19 could be found in the originally filed disclosure. Although the PTO has the initial burden of presenting evidence or reasons why persons skilled in the art would not recognize in the disclosure a description of the invention defined by the claims, when filing an amendment an applicant should show support in the original disclosure for new or amended claims. See MPEP 714.02 and 2163.06 (“Applicant should therefore specifically point out the support for any amendments made to the disclosure.”).
As presently amended, the claims now recite limitations, which were not clearly disclosed in the specification as filed, and now change the scope of the instant disclosure as filed. Such limitations recited in the presently amended claims, which did not appear in the specification, as filed, introduce new concepts and violate the description requirement of the first paragraph of 35 U.S.C 112. Applicant is required to provide sufficient written support for the limitations recited in the present claims in the specification or claims, as filed, or remove these limitations from the claims in response to this Office Action.
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:
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 19, 21, 22, 26, and 27 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Deshpande et al (WO 2015/145389)(IDS Reference).
Deschpande teaches a composition consisting of curcumin in an amount of 1-55%, a soluble starch (modified starch) in an amount of 10-90%, a hydrogenated vegetable oil (micelle forming agent) in an amount of 1-25%, and ascorbic acid (which functions as an acidifier) in an amount of 1-10% (see entire document, for instance, page 26, lines 1-17, and page 25, lines 24-31). The composition is taught as being in the form of powders, microencapsulated powders, and sachets (see entire document, for instance, page 11, lines 17-19).
Deschpande, while teaching ranges that directly overlap the instantly claimed ranges also includes amounts that fall outside of said ranges. Further, while teaching amounts that overlap the instantly claimed ranges, does not expressly articulate the instantly claimed ratios.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to optimize the amounts of the components present within the taught ranges, and thereby arriving at the instantly claimed ranges and ratios. One would have been motivated to do so since the prior art expressly teaches ranges that overlap the instantly claimed ranges. It is noted that MPEP 2144.05 states: "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” It is further noted that MPEP 2144.05 states: “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
Response to Arguments
It is noted that Applicant’s arguments filed 09/24/2025 are directed to grounds of rejection that have been withdrawn in view of Applicant’s amendments. Applicant’s arguments are not found persuasive against the ground of rejection set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611