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 .
Response to Amendment
Applicant's amendment and argument filed October 30, 2025, in response to the non-final rejection, are acknowledged and have been fully considered. Any previous rejection or objection not mentioned herein is withdrawn.
Claims 1-5, 7, 8, 10, 13, 14, 17-22, 24, 27, 28, and 31 are pending - as elected with traverse in the reply filed on 10/2/2024 and the supplemental response filed on 4/28/2025, including the further election of the species of: an aqueous extract of cranberry pulp and peel containing cyanidin glucosides. Claims 3 and 18 remain withdrawn as being drawn to a non-elected species and invention, respectively. Pending claims 1, 2, 4, 5, 7, 8, 10, 13, 14, 17, 19-22, 24, 27, 28, and 31 have been examined on the merits.
Response to Arguments
Applicant’s arguments have been fully considered however, they are not persuasive. Applicant has argued that the prior art (Bailey ‘471) teaches “70% ethanol/water” and the providing and advantages of “alcohol-rich extraction solvents” and that Bailey is unsuitable for an “alcohol free” solvent system. However, ethanol/water, hydro-alcoholic solutions, and “ethanol-heavy” solutions, including 70% ethanol which contains 30% water, are still broadly and reasonably considered aqueous solvents. Also, whereas the prior art is shown to be useful for extracting anthocyanins, the mere adjusting the degree of the proportions of the extraction solvent such as water and/or ethanol (including 0% to 100% of each) which achieves the same purpose of extracting anthocyanins remains an obvious variation well within the purview and knowledge of one of skill in the art, and in the alternative would have been at least obvious to try from among the finite number of extraction solvents (especially among polar solvents and from among well-known extraction solvents such as ethanol, water, and mixtures thereof), and objectively in view of the prior art teachings that the extraction solvent comprises “an aqueous solution comprising about 0-95% ethanol in water or 0-100% methanol in water” [0032]. Furthermore, the claims are not drawn to or commensurate in scope with an unexpected result (i.e. they remain inclusive of or obvious in view of the extractions provided by the prior art). Accordingly the claims remain rejected over the cited reference and for the reasons of record.
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.
Claim(s) 1, 2, 5, 17, 19, and 20, are/remain rejected under 35 U.S.C. 103 as being unpatentable over Bailey et al (US 2002/0055471 A1; of record).
The instant claims are drawn to a process of providing an aqueous extract of a plant fruit (as elected, a cranberry) seed, skin, or pulp and contacting the extract with microbe(s) or enzyme(s) from among pullulanase, cellulase, lipase, pectinase, and tannase (it is noted that claims that do not exclude selection of an enzyme (e.g. claims 5 does not requiring selection of microbes, but remains inclusive of selection of the enzymes) are therefore also included in the ground of rejection.
Bailey, teaches (see entire document) providing in a method isolation of anthocyanins from plant material and that the material can be from any plant or part known to so contain anthocyanins, including from cranberries, including teaching:
“[0027] The methods of this invention produce purified extracts and compositions enriched in anthocyanins from plant materials that naturally contain anthocyanins. The method of this invention further provide extracts and compositions enriched in total anthocyanins and proanthocyanins. As used herein, the term "extract" refers to a substance derived from a plant source that naturally contains anthocyanins, including extracts prepared from the whole plant or from various parts of the plant, such as the fruit, leaves, stems, roots, etc. Thus, the method of this invention is not limited to the particular part of the plant used to prepare the extract. In addition, the plant material may be fresh or dried plant material. Examples of plants and fruits that may be used in the preparation of the purified extracts of this invention include any plant, including fruits and vegetables, that contains anthocyanins, including blueberries, bilberries, blackberries, strawberries, red currents, black currants, cranberries, cherries, raspberries, grapes, currants, elderberries, hibiscus flowers, bell peppers, red cabbage, purple corn, and violet sweet potatoes. Most colored fruits and vegetables are known to contain anthocyanins.”
Bailey ‘471 teaches that the extraction solvent includes aqueous solutions including alcohol containing and alcohol free solvents by teaching providing “an aqueous solution comprising about 0-95% ethanol in water or 0-100% methanol in water” [0032], and additionally teaches providing an enzyme, including pectinase may be provided (various, e.g. at [0033, 0050, 0075] and claims) and that the enzyme “serves to prevent the extract from gelling at any point during or after the extraction process so that it will remain flowable” during purification.
It would have been obvious to one of skill in the art at the time of the instant invention effective filing to have provided a cranberry material as instantly claimed with an enzyme, including pectinase and solvent including alcohol-free aqueous solutions, and obtained anthocyanins therefrom, because each was taught by the reference of Bailey et al. One would have been motivated to have obtained anthocyanins therefrom, because Bailey is directed to teaching methods of isolating anthocyanins from plant material, including cranberries, and one would have been aware of the complex structures of the plant materials and the benefit of providing hydrolytic enzymes, such as the pectinase of Bailey, to among other benefits, prevent the anthocyanin containing extracts from gelling or otherwise interfering with the purification thereof. One would have had a reasonable expectation of success, because success merely requires the teachings of the reference and knowledge of one in the art, and especially in the absence of evidence of the criticality or objective evidence to the contrary.
Bailey et al ‘471 is relied upon for the reasons discussed above. If not expressly taught thereby, based upon the overall beneficial teaching provided by this reference with respect to isolating anthocyanins and treating plant matter contain anthocyanins in the manner disclosed therein, the adjustments of particular conventional working conditions (e.g., determining one or more suitable plant source material or part thereof, selection of extraction solvent and hydrolytic enzyme, including pectinase, and the ranges thereof in which to provide each in the purification process), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was effective filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim Objections
All other claims (claims 4, 7, 8, 10, 13, 14, 21, 22, 24, 27, 28, and 31) are objected to as being dependent upon one or more rejected base claim(s).
Conclusion
No claims are presently allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AARON J KOSAR whose telephone number is (571)270-3054. The examiner can normally be reached Mon.-Fri. 9-6 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at (571)272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AARON J KOSAR/ Primary Examiner, Art Unit 1655
Prosecution Insights