STN 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 .
Instantly amended claims 1, 2, 6 and 7 are examined.
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.
Previously presented rejection of claim(s) 1, 2, 6 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Talbott WO 2019046660, Kuranov RU 2315616, Belcaro, Evidence-Based Complementary and Alternative Medicine, Vol. 1 2013-01-01, pages 1-5 and Pedersen US 20060024385 is maintained further in view of
Bagchi, Gen. Pharmac. Vol. 30, No. 5, pp. 771–776, 1998; Milanesch, Men and Women. PLoS ONE 8(6): e65406, 1-8, 2013; and Shichiri, J. Clin. Biochem. Nutr. | May 2014 | vol. 54 | no. 3 | 151–160.
Bagchi, Milanesch, Pérez and Shichiri are added to address Applicants arguments in the context of amendments to claims.
Applicants arguments focus on the amendments to claims
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Prior art with regards to the ingredients are discussed in the previous action. As such the transitinal phrase ‘consisting of’ does not change the active ingredients proanthocyanidin content greater than 95% by weight and a catechin and epicatechin (dependent claim 2).
Bagchi teaches Protective Effects of Grape Seed Proanthocyanidins and Selected Antioxidants against TPA-Induced Hepatic and Brain Lipid Peroxidation. Bagchi at page 775 column A, Proanthocyanidins including catechin and epicatechin.
Milanesch explicitly teaches that oxidative stress may represent one of the underlying mechanism linking late-life depression with negative health outcomes and the effect of Lipid Peroxidation and Depressed Mood in Men (see title and Abstract) . Likewise, Shichiri also teaches the role of lipid peroxidation in neurological disorders and that lipid peroxidation is involved in neurological disorders, including AD, PD, stroke, and DS. There are few clinical reports about the efficacy of antioxidants for neurological
disorders. See page 158 column B section under Conclusion.
As such the inherent property of the extract relating to lipid peroxidation and the consequence of lipid peroxidation in depression in men are not applicants invention.
As per MPEP 2112 Requirements of Rejection Based on Inherency; Burden of Proof [R-10.2019], "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer."
The discovery of a new use for an old structure based on unknown properties of the structure might be patentable to the discoverer as a process of using. In re Hack, 245 F.2d 246, 248, 114 USPQ 161, 163 (CCPA 1957). However, when the claim recites using an old composition or structure and the “use” is directed to a result or property of that composition or structure, then the claim is anticipated. In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978).
Again as previously noted. obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art.
As such Applicants arguments are not persuasive.
THIS ACTION IS MADE FINAL. 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 NIZAL S CHANDRAKUMAR whose telephone number is (571)272-6202. The examiner can normally be reached M-F 8-5 EST.
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, Andrew Kosar can be reached at (571) 272-0913. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NIZAL S CHANDRAKUMAR/Primary Examiner, Art Unit 1625
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