DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 30, 2025 has been entered.
3. Claims 1, 2, 4, 8, 9, 12, and 16-22 are currently pending.
Election/Restrictions
4. In the reply filed on October 28, 2024, applicant elected Group I, now claims 1, 2, 4, 8, 9, 12, and 16-22, pulse protein for species A and sarcopenia for species B without traverse.
5. Claims 1, 2, 4, 8, 9, 12, and 16-22 are examined on the merits in regards to the elected species.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
6. Claim(s) 1, 2, 4, 12, 16-19, and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Benefits of pea protein and inulin for weight management” (https://nutraceuticalbusinessreview.com/benefits-of-pea-protein-and-inulin-for-weight-management--119318 - published July 4, 2016).
This reference teaches combining pea protein and inulin from chicory to reduce the loss of muscle mass in individuals. The reference teaches that the inulin used is “Fibruline” (see pages 3 and 4). “Fibruline” is defined by applicant in the specification as a chicory inulin with a degree of polymerization from 2 to 60 with an average degree of polymerization of about 10 (see page 28, lines 8-11).
The reference does not specifically teach adding the ingredients together in the amounts claimed by applicant. However, as discussed in MPEP section 2144.05(II)(A), “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).” The reference teaches the use of each of the ingredients in a pharmaceutical composition. Varying the concentration of ingredients within a pharmaceutical composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
The reference does not require any active ingredients other than the pea protein and the inulin. Thus, the reference composition is considered to consist essentially of these two ingredients. The reference does not specifically teach that the administration of the composition has the same effects as claimed by applicant in claim 2. However, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
7. Claim(s) 8, 9 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Benefits of pea protein and inulin for weight management” (https://nutraceuticalbusinessreview.com/benefits-of-pea-protein-and-inulin-for-weight-management--119318 - published July 4, 2016) as applied to claims 1, 2, 4, 12, 16-19, and 21-22 above, and further in view of Babault (Journal of the International Society of Sports Nutrition (2015), vol. 12, no. 3, 9 pages).
As discussed above, the “Benefits of pea protein and inulin for weight management” article teaches reducing a loss of muscle mass by administering a composition consisting essentially of pea protein and inulin. The reference does not specifically teach that the loss of muscle mass is caused by sarcopenia, i.e. age-related muscle loss.
However, Babault teaches that administration of pea protein is useful for maintenance of muscle mass during the aging process and in the elderly (see page 8, “Conclusions”). Thus, an artisan of ordinary skill would reasonably expect that the pea protein and inulin composition taught by the “Benefits of pea protein and inulin for weight management” article would be useful in specifically treating sarcopenia. This reasonable expectation of success would have motivated the artisan to modify the “Benefits of pea protein and inulin for weight management” article to include the treatment of individuals with sarcopenia.
8. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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.
/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655
