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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 20 May 2026 has been entered.
DETAILED OFFICE ACTION
This Office Action is in response to the papers filed on 20 May 2026.
CLAIMS UNDER EXAMINATION
Claims 1, 3, 5, 8 and 11-12 are pending and have been examined on their merits.
PRIORITY
The Applicant claims priority to Provisional Application 63/211887, filed on 17 June 2021. The priority document provides support for an excipient (MCC). It does not provide support for a carrier, diluent or adjuvant as recited in claim 1 (iii). The priority document does not provide support for a microcapsule, tablet, granule, powder, troche, pill or suspension. The priority document does not provide support for the ranges of Lactobacillus and herbal extracts recited in claim 1. The claimed limitations have support in the disclosure filed on 15 March 2022.
REJECTIONS:
The previous rejections have been withdrawn. New grounds of rejection have been necessitated by claim amendment.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 3, 5-8 and 11-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Question 1: Are the claims directed to a process, machine manufacture or composition of matter? Yes, claims 1, 3, 5-8 and 11-12 are directed to a composition of matter.
Question 2A: Are the claims directed to a product of nature, a law of nature, a natural phenomenon, or an abstract idea (judicially recognized exceptions)?
Prong 1. Yes, claims 1, 3, 5-8 and 11-12 are directed to a nature-based product limitation. The limitation in the claims that sets forth a nature based product are:
Claim 1 recites a composition consisting of 1) a mixture of probiotic bacterial strains, 2) an herbal mix and 3) a nutritionally acceptable carrier, diluent, excipient, adjuvant, nutritionally active ingredient or combination thereof. The closest naturally occurring counterparts are the individual bacteria and herbs. The specification indicates the strains recited in claim 1 are each naturally occurring ([0077] of PG Pub). As evidenced by the specification, vasaka, turmeric and holy basil are naturally occurring plants ([0094] of PG Pub).
The nature based product lacks markedly different characteristics (and thus is a product of nature exception) because: When the claimed components are compared to their natural counterparts, they do not have different chemical characteristics. The Instant Specification does not indicate the claimed strains are not found in nature, or manipulated in such a way to produce something markedly different than a strain found in nature. The Instant Specification does not indicate the claimed plants are markedly different than those found in nature. Claim 1 has been amended to recite the amounts of each Lactobacillus strain and herb. The specification does not indicate the ranges now recited in the claim result in something markedly different when the individual components are combined.
Prong Two: Do the claims recite additional elements that integrate the judicial exception into a practical application? No. The claims are directed to a product (i.e. a composition) and not a method of administration to a subject.
Question 2B: Do the claims recite any additional elements that amount to significantly more than the judicial exception?
(a) Are there any additional elements recited in the claim beyond the exception identified above? Yes.
(b) Do the additional elements, taken individually and as a combination result in significantly more? No.
Regarding claim 1: the composition can be in the form of a capsule or powder. The specification does not define a capsule. A capsule is small container for the claimed ingredients that does not result in significantly more than the recited judicial exceptions. A powder is a mixture of dry particles. A mixture of dried ingredients does not result in significantly more than the recited judicial exceptions. Water reads on a “nutritionally acceptable diluent”. Water is a naturally occurring judicial exception.
Claim 3 recites the deposit number of each strain. The specification does not indicate the claimed strains have been manipulated in such a way as to produce something markedly different than a strain found in nature.
Claim 5 recites a bacteria that is heat-killed. Therefore the claim is directed to how a bacteria is killed. Dead bacteria occur in nature. The limitation does not produce something markedly different.
Regarding claim 8: Magnesium is a known naturally occurring mineral. It is well known in the art that silica is a naturally occurring mineral. Microcrystalline cellulose is refined wood pulp. Each ingredient is a naturally occurring judicial exception.
Regarding claim 11: Vitamins, micronutrients, minerals, prebiotics, fatty acids and amino acids are naturally occurring components (hence, judicial exceptions).
Regarding claim 12: The vitamins and minerals recited in claim 12 are naturally occurring (hence, judicial exceptions).
Therefore, claims 1, 3, 5-8 and 11-12 are not eligible subject matter under 35 USC 101.
RESPONSE TO APPLICANT’S ARGUMENTS
The arguments made in the response filed on 20 May 2026 are acknowledged.
Argument 1: The arguments state the combination, and not the individual components, of the claimed product should be analyzed.
Response to Argument 1: Because the claim is a nature-based product, i.e., a combination of naturally occurring substances, the nature-based product (the combination) is analyzed to determine whether it has markedly different characteristics from any naturally occurring counterpart(s) in their natural state. In this case, there is no naturally occurring counterpart to the claimed combination (the components do not occur together in nature), so the combination is compared to the individual components as they occur in nature. The specification does not indicate something markedly different is produced when the components are combined in the claimed amounts. Therefore the argument is not persuasive.
Argument 2: The arguments state a synergistic effect is observed when the claimed strains are combined with the claimed herbs.
Response to Argument 2: The Declaration under 37 CFR 1.132 by Dr. Vivek Lal filed on 20 May 2026 is acknowledged. The Declaration is insufficient to overcome the rejection made under 35 USC 101 because: Figure 1 indicates an effect is observed with the combination of Lactobacilli and herbal mix. It is also noted the effect changes due to concentration. The Experiments use a blend of “equal parts” vasaka, holy basil and turmeric (see page 2, lines 2-4). The Experiments use “equal parts” of the claimed strains of L. plantarum, acidophilus and rhamnosus (see page 2, lines 4-6). None of the claims are commensurate with the ratios and concentrations used in the experiments which produce the effect. Claim 1 does not require the deposited strains. The Applicant has not claimed the concentrations that cause the synergistic effect. The Applicant has only provided arguments, without providing evidence, of a synergistic effect at all ratios and concentrations of ingredients.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3, 5, 8 and 11-12 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1: The claim is directed to a composition (a mixture of ingredients). The preamble of the claim recites a product which consists of components (i)-(iii). Components (i) and (ii) recite the transitional phrase “consisting of”. This transitional phrase excludes any additional components. Component (iii) recites a nutritionally acceptable carrier, diluent, excipient, adjuvant, active ingredient or any combination thereof. The specification does not define these terms. Examiner notes medicinal herbs and bacterial probiotics read on nutritionally active ingredients and adjuvants. Therefore claim 1 appears open to additional bacteria and herbs in component (iii), but these additional components would combine with components (i)-(ii) (which exclude additional ingredients) in the claimed product. Therefore the metes and bounds of the claimed composition are unclear. Appropriate correction is required.
Claim 8 recites the term “MCC”. It is unclear if the abbreviation means “microcrystalline cellulose (MCC)”. The metes and bounds of the claim are unclear. Appropriate correction is required.
Claim 12 recites “the at least one vitamin” and “the at least one mineral”. There is a lack of antecedent basis for “at least one vitamin” and “at least one mineral” in claim 11. Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 8 and 11-12 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claim 8: The claim recites a nutritionally acceptable excipient which consists of magnesium stearate, silica and MCC. Each of the components is an excipient. The claim is not further limiting because the base claim recites “a…nutritionally acceptable excipient” (hence, singular).
Regarding claim 11: The claim recites a combination of nutritionally active ingredients. The claim is not further limiting because the base claim recites “a nutritionally active ingredient” (hence, singular).
Regarding claim 12: “at least one vitamin” does not further limit “a vitamin” recited in claim 11. The limitation “at least one mineral” does not further limit “a mineral” as recited in claim 11.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1, 3, 5, 8 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Lal et al. (previously cited; Inhaled Respiratory Probiotics For Lung Diseases Of Infancy, Childhood and Adulthood WO2018/191073 18 October 2018) in view Doshi et al. (previously cited; Herbal Cough Formulations And Process For The Preparation Thereof. US2006/0257507 2006) as evidenced by Medical News Today (previously cited; What is the difference between prebiotics and probiotics? 29 October 2018).
Lal et al. teach a probiotic composition which contains a combination of Lactobacilli species (Abstract). Lal teaches “the bacterial population can consist of L. plantarum, L. acidophilus and L. rhamnosus” (page 2, lines 12-13). This reads on the “consisting of” claim language recited in instant claim 1. The bacterial population “can be suspended in a pharmaceutically acceptable carrier” (see page 2, lines 28-29). Because the composition is administered, it is interpreted to be a nutritionally acceptable carrier. Lal teaches formulation as a capsule, suspension or powder (page 10, lines 7-10).
Lal also teaches the following:
The art teaches non-replicating probiotic microorganisms in a therapeutically effective dose ([0095]). The art teaches adjusting the dose based on state of health and weight ([0095]). The non-replicating micro-organisms are present in an amount equivalent to between 104 to 109 cfu/g of dry composition, even more preferably in an amount equivalent to between 105 and 109 cfu/g of dry composition ([0095]). In Example 20, Lal teaches each bacteria concentration is measured, and its concentration is adjusted to 1x106.
The composition may contain at least one therapeutic agent that reduces a symptom or effect of bronchopulmonary disease (page 2, lines 22-25). The therapeutic can be an anti-inflammatory agent or an anti-oxidant (page 2, lines 26-27). The disclosed probiotic composition is for the treatment of bronchopulmonary dysplasia, cystic fibrosis lung disease and chronic obstructive pulmonary disease (page 1, lines 9-11).
Lal teaches a mixture of bacteria which consists of Lactobacillus plantarum.
Lal teaches a nutritionally acceptable carrier that contains the bacteria.
The composition can include at least one therapeutic agent.
The deficiencies of Lal are:
The art does not anticipate the claimed amounts of Lactobacillus strains.
Lal is silent regarding the use of holy basil, turmeric or vasaka in the disclosed composition.
Doshi et al. teach a composition for the treatment of chronic respiratory disorders (Abstract). The disorder may be allergic asthma, allergic rhinitis ([0037]). The art teaches an oral formulation in the form of a syrup ([0080]). The art teaches 10-40% Tulsi (Ocimum sanctum), 2-20% Curcuma longa and 10-25% vasaka ([0080]). As evidenced by the Instant Specification, “Ocicum sanctum” is holy basil (Example 1). As evidenced by the Instant Specification, “curcuma longum” is turmeric extract (Example 1). Doshi teaches the product contains excipient ([0080]). The excipient is interpreted to read on a nutritionally acceptable excipient. Doshi teaches multi-ingredient therapy includes a combination of herbs which may have either a complimentary or supplementary action for each other ([0006]). Therefore the product taught by Dosi is interpreted to read on a nutritionally acceptable adjuvant.
It would have been obvious to use the probiotic strains in the claimed amount. Lal teaches equal parts of each strain at a concentration of 1x106 . The skilled artisan would adjust the amount of each strain based on the desired therapeutic effect, as taught by Lal. One would have had a reasonable expectation of success since Lal teaches the therapeutic amount of the strains can be optimized based on the patient. The MPEP teaches 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. See MPEP 2144.05.
It would have been obvious to combine the teachings of the prior art by using the composition taught by Doshi as an ingredient in Lal’s composition. Lal teaches a composition of the claimed probiotics in a suspension for treating respiratory conditions and Doshi teaches a composition for treating the same conditions. It is prima facia obvious to combine two compositions, each of which is taught by the prior art to be used for that very same purpose (In re Kerkoven). One would combine the bacteria composition taught by Lal with the adjuvant taught by Doshi to provide an enhanced treatment for respiratory disorders. One would have had a reasonable expectation of success sine Lal teaches the probiotic mixture can be combined with additional therapeutic agents. One would have expected similar results since both references are directed to compositions for treating respiratory disorders. The ranges of holy basil, turmeric and vasaka extracts taught by Dosi overlap with the claimed amounts. Therefore, the examiner asserts the claimed concentration is prima facie obvious (See MPEP 2133.03).
The components recited in instant claim 1 are a combined mixture. While the transitional phrase “consisting of” in the preamble, (i) and (iii) excludes additional components (See 2111.03 II), (iii) allows unidentified carrier, diluent, excipient, adjuvant, active ingredient or any combination thereof (See MPEP 2111.03 I). Combining 1) a suspension consisting of the claimed probiotics in a nutritionally acceptable carrier with 2) a nutritionally acceptable adjuvant containing holy basil extract, turmeric extract and vasaka extract would meet the limitations of the claimed product. Therefore claim 1 is rendered obvious.
Lal teaches Lactobacillus rhamnosus ATCC 53103, Lactobacillus plantarum wcfsl ATCC BAA-793, and Lactobacillus acidophilus ATCC 4356. Lal does not teach the deposit numbers recited in claim 3.
No sequences have been provided for the deposited strains recited in claim 3. The Instant Specification identifies the claimed species as probiotics. The specification does not indicate the recited strains have been genetically modified.
As evidenced by the Instant Specification, the inflammatory cascade is inhibited or prevented by Lactobacillus ([0087]). The Instant Specification discloses “probiotic Lactobacillus spp. reduce the inflammation of lungs in various lung diseases by reduction of neutrophilic inflammation” ([0087]). Lal teaches a combination of Lactobacillus decreases neutrophilic inflammation (MPO) in a lung injury model (Figure 25). Lal teaches the inflammatory cascade shown in Figure 1 is prevented by Lactobacillus (page 14, lines 30-31). Lal teaches probiotic Lactobacillus reduces the inflammation of lungs in various lung diseases by inhibition of neutrophilic inflammation (see page 14, lines 32-33). Therefore the strains taught by Lal have the same mechanism of action and treat the same disorder.
In the absence of evidence to the contrary, the Lactobacillus rhamnosus, Lactobacillus plantarum, Lactobacillus acidophilus taught by the prior art are expected to be the same as those recited in claim 3 or an obvious variant. If, however, the strains disclosed by Lal are not the species deposited then it would have been obvious to use Lal’s species for those claimed as they possesses the same identifying characteristics and are obvious variants. One would expect the same results since, as evidenced by the Instant Species, Lactobacillus have the ability to inhibit or reduce inflammation. Therefore claim 3 is rendered obvious.
Lal teaches the Lactobacillus species is heat-killed (page 2, lines 16-17). Therefore claim 5 is included in this rejection .
Lal teaches the use of silica as an excipient (page 12, line 8). Therefore claim 8 is rendered obvious.
Lal teaches the lung microbiome may be manipulated to correct dysbiosis and restore "healthy" microbial communities via use of probiotics and prebiotics (see page 34, lines 27-29). As evidenced by Medical News Today, a “prebiotic” is a type of fiber (see first paragraph on page 1). Therefore Lal suggests the use of a prebiotic fiber to correct dysbiosis. Therefore claim 11 is included in this rejection.
Therefore Applicant’s Invention is rendered obvious as claimed.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Lal in view of Doshi as applied to claim 1 above, and further in view of Park et al. (previously cited; Dietary vitamin C intake protects against COPD: the Korea national health and nutrition examination survey in 2012. International Journal of COPD 2016:11 2721–2728).
Claim 1 is rejected on the grounds set forth above. The teachings of Lal and Doshi are reiterated.
Lal does not teaches the composition contains vitamin C.
Park teaches the main contributing factors for development of COPD include reduced antioxidant capacity (page 2726, left column, first paragraph). Park teaches intake of vitamin C, an antioxidant, is a risk factor for COPD (page 2724, left column, last paragraph). Park teaches Vitamin C intake is protective against COPD (page 2724, right column, last paragraph; see page 2726, left column, last paragraph).
It would have been obvious to use vitamin C in the composition taught by Lal. Lal teaches a probiotic composition which can be used to treat COPD and Park teaches Vitamin C is an antioxidant that can be used to reduce the risk of COPD. One would use it as a nutritionally active ingredient since Lal teaches adding additional therapeutic agents that treat respiratory disorders. One would have had a reasonable expectation of success since Lal teaches therapeutic agents can be used in the disclosed composition. Therefore claim 12 is rendered obvious.
Therefore Applicant’s Invention is rendered obvious as claimed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1, 3, 5, 8 and 11-12 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-14 of US20240316129. Although the conflicting claims are not identical, they are not patentably distinct from each other because the claim limitations of the Instant Application encompass claim limitations of the patent.
Regarding instant claim 1: Claim 1 of the ‘129 Application is directed to a food, medical food, dietary supplement and nutraceutical composition comprising the organisms recited in instant claim 1. The composition comprises at least one of holy basil, turmeric and vasaka. Claim 6 discloses the weight percent of L. plantarum 5-10%, the weight percent of L. acidophilus is 10-15% and L. rhamnosus 5-10% in an excipient. Claim 7 discloses 5-10% turmeric, 10-15% holy basil extract and 10-15% vasaka extract.
Claim 14 recites the composition is in an orally ingestible form selected from a capsule, microcapsule, tablet, granule, powder, suspension and syrup. It would have been obvious to include the components in the amounts recited in instant claim 1. One would have been motivated to do so since the ‘129 Applicant recites discloses the claimed stains and herbal extracts are combined in the amounts recited in the instant application. Regarding claim 3: claim 1 of the ‘129 recites RSB11, RSB12 and RSB13. The Affidavits filed on 20 May 2026 in the Instant Application disclose these are the same as the deposited strains recited in instant claim 3. Regarding instant claim 5: claim 5 of the ‘129 recites heat-killed strains. Regarding instant claim 8: claim 8 of the ‘129 Application discloses an excipient consisting of magnesium stearate, silica and MCC. Regarding instant claim 11: claim 11 reads of the ‘129 Application reads on the claimed nutritionally active ingredients. Regarding instant claim 12: claim 12 of the ‘129 Applicant reads on the claimed vitamins.
37 CFR 1.132 Declaration
The examiner acknowledges receipt of the Declaration under 37 CFR 1.132 by Dr. Vivek Lal filed on 20 May 2026. The Declaration under 37 CFR 1.132 filed 20 May 2026 is insufficient to overcome the rejections because:
Figure 1 indicates an effect is observed with the combination of Lactobacilli and herbal mix. It is also noted the effect changes due to concentration. The Experiments use a blend of “equal parts” vasaka, holy basil and turmeric (see page 2, lines 2-4). The Experiments use “equal parts” of the claimed strains of L. plantarum, acidophilus and rhamnosus (see page 2, lines 4-6). None of the claims are commensurate with the ratios and concentrations used in the experiments that produce the effect. Claim 1 does not require the deposited strains disclosed. The Applicant has not claimed the concentrations that cause the synergistic effect. The Applicant has only provided arguments, without providing evidence, of a synergistic effect at all ratios and concentrations of ingredients.
Upon consideration of the facts taught by the prior art and the information submitted by the Affiant, the balance of evidence indicates that the prior art teaches the instantly claimed inventions.
RESPONSE TO APPLICANT’S ARGUMENTS
The arguments made in the response filed on 20 May 2026 are acknowledged.
Argument 1: The Applicant argues the Declaration filed on 20 May 2026 provides evidence of unexpected results. The Applicant argues Lal does not teach the claimed herbs, and Doshi does not teach the claimed herbs would act synergistically with each other or with a probiotic composition.
Response to Argument 1:
The Declaration filed is not persuasive to overcome the rejections for the reasons set forth above. As set forth above, Lal teaches a bacteria mixture that consists of L. plantarum, L. acidophilus and L. rhamnosus. The strains are in a suspension of a nutritionally acceptable carrier. Doshi teaches a composition that reads on a nutritionally active ingredient. Lal and Doshi teach compositions for treating respiratory disorders. The rejections under 35 USC 103 above are consistent with case law. Applicants are referred to In re Kerkoven (205 USPQ 1069) in which it was shown to be prima facia obvious to combine two compositions, each of which is taught by the prior art to be used for that very same purpose. Examiner notes none of the claims require the strains the Applicant argues provide a synergistic effect.
Argument 3: The Applicant argues the transitional phrase “consisting of” excludes additional herbs disclosed by Doshi.
Response to Argument 3: The claim is directed to a composition. The components recited in instant claim 1 are a combined mixture. While the transitional phrase “consisting of” in the preamble, (i) and (ii) excludes additional components (See 2111.03 II), (iii) allows unidentified carrier, diluent, excipient, adjuvant, active ingredient or any combination thereof (See MPEP 2111.03 I). As written, the claim does not exclude additional herbs as an adjuvant or active ingredient in component (iii).
Because all of the ingredients are combined, the composition does not exclude the additional components taught by Doshi. Combining 1) a suspension containing only the claimed probiotics in a nutritionally acceptable carrier with 2) a nutritionally acceptable adjuvant comprising holy basil extract, turmeric extract and vasaka extract would meet the limitations of the claimed product.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATALIE MOSS whose telephone number is (571) 270-7439. The examiner can normally be reached on Monday-Friday, 8am-5pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau can be reached on (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is (571) 270-8439.
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/NATALIE M MOSS/ Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653
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