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
The Amendment filed March 02, 2026 has been entered. Claims 1, 8-15, and 17-22 remain pending in the application. Claims 2-7, and 16 are canceled. Claims 11-15 and 19 were previously withdrawn from further consideration. Claims 1, 8-10, and 20-21 are amended and support is found in the claims and Specification as originally filed. Claim 22 is newly added and support is found in the original Specification. Applicant’s amendments to the Specification overcome rejections previously set forth in the Non-Final Office Action mailed 03/16/2026.
Claim Objections
Claims 8 and 10 are objected to because of the following informalities:
Claim 8 and 10 recite “a volume median diameter Dy(50)”. Applicant is advised to rephrase to “a volume median diameter Dv(50)” (emphasis added) as supported in the original claims and Specification.
Appropriate correction is required.
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.
Claims 1, 8-10, 17-18 and 20-22 are rejected are under 35 U.S.C. 103 as obvious over Pompejus et al. (WO 2012/100991; hereafter as “Pompejus”) in view of Toshiki et al. (WO 2017038138 A1; English translation incorporated herein; hereafter as “Toshiki”) and Zhong et al. (CN 107927729 A; English translation incorporated herein; hereafter as “Zhong”).
Pompejus an oral health improving composition [Abstract], corresponding to the composition of Claims 1 and 20, comprising:
ground whole peas [Pg. 51, Line 23], corresponding to the ground whole peas of Claims 1, 8, 10 and 20;
magnesium oxide [Pg. 51, Line 30;], thereby reading on the MgO of Claims 1, 10, 20, and corresponding to the MgO of Claims 8 and 17;
zinc oxide [Pg. 52, Line29], thereby reading on the ZnO of Claims 1, 10 and 20, and corresponding to the ZnO of Claim 22;
about 0% to about 70% by weight glycerin [Page 32, Lines 17,25], which overlaps with a plasticizer which is at least one polyol, wherein said plasticizer represents 20% to 60% by weight of Claims 1 and 20; overlaps glycerol in a quantity of 5% to 40% by weight, based on the total weight of the composition of Claims 8; overlaps wherein said plasticizer represents 30% to 60% by weight of Claim 9; overlaps glycerol in a quantity of 40% by weight of Claim 10; and corresponds to wherein said plasticizer is glycerol of Claim 18;
Water [Pg. 52, Line 22], corresponding to the water of Claims 1, 8, 10 and 20;
Wherein said composition is an injectable solution [Pg. 25, Lines27-29; Pg. 49, Line 20], corresponding to wherein said composition is injectable of Claim 8;
Ingredients such as adhesive [Pg. 30, Line 24], corresponding to wherein said composition is adhesive of Claim 10;
Thickening agents and surfactants [Pg. 30, Lines 28-31], thereby reading on the thickeners and surfactants of Claim 20.
However, Pompejus does not explicitly teach the ground whole pea seed volume median diameter Dv(50) between 10 and 75 µm of Claims 1, 8, 10 and 20; wherein the metal oxide represents from 5% to 10% by weight based on the weight of the ground whole pea seeds of Claims 1, 8 and 20; a plasticizer which at least one polyol or a mixture of polyols of Claims 1 and 20; wherein the plasticizer represents 20% to 60% by weight based on the weight of the ground whole pea seeds of Claims 1 and 20; wherein said composition is injectable of Claim 8, glycerol as a plasticizer, in a quantity of 5% to 40% by weight, based on the total weight of the injectable composition of Claim 8, wherein said plasticizer represents 30% to 60% by weight based on the weight of the ground whole pea seeds of Claim 9, a metal oxide in a quantity of 10% by weight based on the weight of the ground whole pea seeds of Claim 10, and glycerol as plasticizer, in a quantity of 40% by weight based on the weight of the ground whole pea seeds of Claim 10; volume median diameter Dv(50) between 15 and 60 µm of Claim 21.
Regarding the amount of plasticizer of Claims 1, 8-10, and 20, one of ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Pompejus for the amount of glycerin (0-70% by weight) overlaps the instantly claimed ranges (20-60% of Claims 1 and 20; 5-40% of Claim 8; 30-60% of Claim 9; 40% of Claim 10) and is therefore considered to establish a prima facie case of obviousness. It would have been obvious to one of ordinary skill in the art to select any portion of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art reference, MPEP 2144.05.
Regarding the amount of metal oxide, Toshiki teaches an injectable composite for toothpaste [Page 47, ¶ 2; Page 91, ¶ 1], comprising glycerin [Page 53, ¶ 1-2], zinc oxide [Page 32, ¶ 3; Page 50, ¶ 1] and 0.5-10 % by weight of metal oxide particles [Claim 6; Page 21, ¶ 2-3], thereby overlapping with wherein the metal oxide represents from 5% to 10% by weight of Claims 1, 8 and 20, and overlapping with a metal oxide in a quantity of 10% by weight of Claim 10.
Toshiki offers the motivation that if the composite contains an aqueous solvent, metal oxide particles improve dispersibility [Page 56, ¶ 3]. Toshiki also teaches that zinc oxide particles can also function as a colorant [Page 54, ¶ 2].
Regarding the ground whole pea seed particle size, Zhong teaches an edible pharmaceutical product [Abstract], comprising seed powders [¶ 0064-0065, 0155, 0320, 0325], cowpea powder [¶ 0029-0030, 0065], glycerin [¶ 0317-0318], and magnesium oxide [¶ 0362-0363], wherein the seed powder particle size is less than 75 µm [¶ 022] which overlaps with the ground whole pea seed volume median diameter Dv(50) between 10 and 75 µm of Claims 1, 8, 10 and 20, and overlaps with a volume median diameter Dv(50) between 15 and 60 µm of Claim 21.
Zhong offers the motivation that seed powders are edible and may contain medicinal properties [¶ 0029].
Pompejus, Toshiki, and Zhong are considered to be analogous art as the claimed invention, as all are in the same field of methods of preparing composites comprising glycerin and metal oxides that are edible.
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the amount of metal oxide of Toshiki and ground seed particle diameter of Zhong with the composition of Pompejus, with the motivation to improve dispersibility and to impart medicinal properties of the final product, thereby arriving at the claimed invention.
One of ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Toshiki for the amount of metal oxide (5-10% by weight), the seed particle size of Zhong ( <75 µm) overlaps the instantly claimed ranges (metal oxide amount: 5-10% of Claims 1, 8, and 10% of Claim 10; and seed particle size: 10-75 µm of Claims 1, 8, 10, 20, and 15-60 µm of Claim 21) and is therefore considered to establish a prima facie case of obviousness. It would have been obvious to one of ordinary skill in the art to select any portion of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art reference, MPEP 2144.05.
Response to Arguments
Applicant’s arguments 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gianesello et al. (WO 2004/028550 A2) teaches glycerin, 10-35 wt. % plasticizer, MgO, ZnO, adhesive, water, and ground seed [Pages 8, 10-12].
Mankino et. Al (JP 2007/237026 A) teaches a cleaning construction material comprising 0.1-20 parts by mass metal oxide, plasticizer, thickening agents, whole dried biomass material with a particle size 100 µm or less, and seeds [¶ 0001, 0041, 0045, 0065, 0085, 0094].
Pan et al. (CN 106009707 A) teaches a board adhesive comprising biomass such as pea flour with a particle size of 50-200 µm [¶ 0001, 0014].
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 DORIS LING whose telephone number is (571)270-3961. The examiner can normally be reached Monday-Friday, 8:30am-5:00pm.
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/DORIS LING/Examiner, Art Unit 1764
/ROBERT C BOYLE/Primary Examiner, Art Unit 1764
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