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
Claims 13, 16-17 and 20 are pending.
Response to Amendment
Applicant amended claim 13 and deleted the species sodium carbonate.
Applicant amended claims 13, 16, and 20 and replaced “component” with “source”.
Applicant amended claim 20 and deleted “an extract thereof”.
The objection of claims 13, 16-17, and 20 is withdrawn in view of the amendment.
The rejection of claim 20 under 35 U.S.C. 112(a) is withdrawn in view of the amendment.
The rejection of claim 20 under 35 U.S.C. 112(b) is withdrawn in view of the amendment.
The rejection of claims 13, 16-17, and 20 under 35 U.S.C. 103 is withdrawn in view of the amendment.
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 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Sprout Living (Sprout Living, Broccoli and Kale Organic Sprout Mix, Date First Available February 3, 2017) in view of Mays (WO 2008008954 A2, published 01/2008) and Saenz (EP- EP-3123874-A1, published 02/2017), as evidenced by Vale (Phytochemistry 115 (2015): 252-260)
Regarding claims 13 and 16, Sprout Living teaches administering a composition consisting of broccoli sprout powder (i.e., source glucoraphanin) and kale sprout powder (i.e., source of myrosinase) (page 1 Title, Ingredients) by sprinkling onto a salad toast, or mixing into a smoothie (About this item). Evidentiary reference, Vale, reports that kale sprout contains myrosinase (Abstract).
Sprout Living does not teach that the composition comprises potassium carbonate.
However, Mays teaches a composition comprising glucosinolate compounds (Abstract) and teaches potassium carbonate can be used as an acceptable carrier (page 11 line 6).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition taught by Sprout Living by adding potassium carbonate as a carrier as suggested by Mays. One of ordinary skill in the art would be motivated to do so in order to improve flowability of the composition. Since Mays teaches potassium carbonate is a good carrier to use in powder composition of glucosinolate compound, and Sprout Living teaches a desire to form a healthy composition comprising glucoraphanin (i.e., a glucosinolate compound) there is a reasonable expectation of success.
Sprout Living does not teach that the composition treats diabetes or cardiovascular diseases.
However, Saenz teaches Brassicaceae family such as kale and broccoli contain glucosinolates, mainly glucoraphanin, and myrosinase which are segregated by the plant itself ([0002] and [0006]), and teaches myrosinase catalyzes glucoraphanin into sulforaphane ([0007]). Saenz teaches sulforaphane has an immunostimulant activity which can play a protecting role against diseases such as cardiovascular diseases, lung and bladder cancer, tumors and gastrointestinal diseases or diabetes ([0004]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the composition taught by Sprout Living by administering the composition to a subject to treat diabetes or cardiovascular diseases as suggested by Saenz. One of ordinary skill in the art would be motivated to do so in order to treat the disease. Since Sprout Living teaches the composition contains broccoli and kale sprouts, and since Saenz teaches sulforaphane produced in these plants can treat diabetes or cardiovascular diseases, there is a reasonable expectation of success.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Sprout Living, Mays, and Saenz as applied to claim 16 above, and further in view of USDA (USDA Foreign Agricultural Service, published 04/28/2015).
Regarding claim 17, Sprout Living teaches the composition consists of broccoli sprout and kale sprout and teaches a serving size of the composition of 3.5 g (page 1 Ingredients). Sprout Living and Mays do not teach a ratio of broccoli, kale, and potassium carbonate.
However, USDA teaches that the maximum level of potassium carbonate in food is 60 g/kg (page 87 last table).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the composition taught by Sprout Living by adding 0.21 g of potassium carbonate to 3.5 g of composition. One of ordinary skill in the art would be motivated to mix 3 g of broccoli sprout, 0.5 g of kale sprout, and 0.21 g of potassium carbonate (i.e., ratio of ~ 14:2:1) in order to form a healthy composition with good taste and flowability. MPEP 2144.05 states that where 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.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Sprout Living, Mays, and Saenz as applied to claim 16 above, and further in view of Li (Plant Physiology and Biochemistry 43.6 (2005): 503-511, of record in Office Correspondence mailed on 08/29/2024)
Regarding claim 20, Sprout Living does not teach source of myrosinase is horseradish or radish.
However, Li teaches that horseradish roots (Title and Abstract) and Raphanus sativus (i.e., radish) seedlings contain myrosinase (page 503 right column last para.) and teaches that the horseradish myrosinase enzyme hydrolyzes glucoraphanin from broccoli (page 506 para. 2.3. Metabolism of broccoli glucosinolates by purified myrosinase from horseradish roots).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the composition taught by Sprout Living by adding horseradish or radish as suggested by Li. One of ordinary skill in the art would be motivated to do so in order to enhance the hydrolysis of glucoraphanin into sulforaphane. Since Li teaches a desire to use horseradish myrosinase to breakdown glucoraphanin, there is a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 01/06/2026 have been fully considered but they are not persuasive.
Applicant argues the invention aims to improve the stability of compositions containing glucoraphanin and myrosinase, and prevent the decrease in glucoraphanin content in said compositions during storage and argues that the examiner's view is based on hindsight formed after reading the content of this invention. Applicant argues referenced prior art do not teach that the addition of a basic salt can maintain the stability of the composition comprising a source of glucoraphanin and a source of myrosinase. Applicant argues that the prior art teaches away from the claimed invention and that Hanschen teaches the highest activity of broccoli and myrosinase is at pH 6.5-7, which means an acidic or neutral pH conditions, rather than alkaline pH condition.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
EFSA and Hanschen are not relied upon in this rejection. Newly cited prior art Mays teaches a composition comprising a glucosinolate compound and a suitable carrier and teaches potassium carbonate can be used as an acceptable carrier (page 11 line 6). One of ordinary skill in the art would be motivated to add potassium carbonate to the composition taught by Sprout Living in order to add an appropriate carrier and improve the composition’s flowability. In response to applicant's argument that the composition has improved stability and less decrease in glucoraphanin content, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., improving the stability of compositions containing glucoraphanin and myrosinase, and preventing the decrease in glucoraphanin content in said compositions during storage) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Applicant should provide claims commensurate in scope with the results (i.e., increased stability of the composition) or request an interview to discuss the argument.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY A CRUM whose telephone number is (571)272-1661. The examiner can normally be reached M-F 8:00-5:00 CT with alternate Fridays off.
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/MARY A CRUM/Examiner, Art Unit 1657
/THANE UNDERDAHL/Primary Examiner, Art Unit 1699