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 .
Applicant’s amendments filed 11/10/2025 have been entered.
Claims 1-8, 10-19 are pending.
The outstanding rejection under 35 USC 103a is withdrawn in view of the amendments filed 11/10/2025.
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) 1-8, 10-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 5,968,544 (’544) and WO88/09132 (‘132).
‘544 teaches an acidic beverage comprising creatine monohydrate, amino acids, and electrolytes, with pH of 2.5 – 6.0 (see col. 2, lines 28-32; col. 3, line 45; claims 19-13). ‘054 teaches the electrolytes include sodium, potassium, calcium and the “Typical amounts are as follows: 400 mg/l sodium, 100 mg/l calcium, 600 mg/l chloride, 200 mg/l sodium, 75 mg/l magnesium, and 50 mg/l phosphorus. The amount of creatine per liter of the prepared beverage ranges from 0.5 to 30 g (see col. 4, line 18-24). ‘544 teaches the composition can help with the exhaustion from exercise (see col. 1, lines 5-65).
‘132 teaches an acidic beverage composition comprising amino acids such as leucine in an amount up to 10g/l, isoleucine in an amount up to 5 g/l and valine in an amount up to 8 g/l, used for improving recovery from exhaustion due to physical or mental activities (see claims 1-3, 17, 20).
The references do not expressly teach the composition comprising the herein claimed components, in the herein claimed amount.
It would have been obvious to one of ordinary skill in the art at the time of filing to formulate a composition comprising the herein claimed components, in the herein claimed amount.
One of ordinary skill in the art would have been motivated to formulate a composition comprising the herein claimed components, in the herein claimed amount. As the components recited in the claims are known to be useful in exhaustion recovery, combining them into a single composition, useful for the very same thing would be prima facie obvious (In re Kerkhoven 205 USPQ 1069 (CCPA 1980)). Furthermore, the optimization of result effect parameters (dosage range, dosing regimens) is obvious as being within the skill of the artisan. The optimization of known effective amounts of known active agents to be administered, is considered well in the competence level of an ordinary skilled artisan in pharmaceutical science, involving merely routine skill in the art. It has been held that it is within the skill in the art to select optimal parameters, such as amounts of ingredients, in a composition in order to achieve a beneficial effect. See In re Boesch, 205 USPQ 215 (CCPA 1980). It is also noted that “[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). As the cited prior art teaches the range of amount of the components encompassed that recited in the claims, prima facie obviousness exists.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-8, 10-19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 SAN MING R HUI whose telephone number is (571)272-0626. The examiner can normally be reached Mon - Fri 9:30-5:30.
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/SAN MING R HUI/ Primary Examiner, Art Unit 1627
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