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 .
DETAILED ACTION
This application is a 371 of PCT/KR2021/002046.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 26, 2026 has been entered.
Status of Claims
Claims 6 and 11-12 are pending.
Claims 6 and 11-12 are under examination.
Response to Amendments/Arguments
Claim Rejections - 35 USC § 103
Applicant’s arguments, see pages 4-7 of the Remarks, filed July 26, 2026, with respect to claim 6 have been fully considered and are persuasive. Claim 6 has been amended to recite a hangover relieving composition comprising a lysate of mutant Saccharomyces cerevisiae Kwon P-1, P-2, P-3, or mixtures thereof, which is not taught by Pico Entech Co LTD (KR 10-2017-0046540 – form PTO-1449) or Zhao (CN 106387917 – cited previously on form PTO-892). Therefore, the rejection of claim 6 under 35 U.S.C. 103 has been withdrawn.
Applicant’s arguments, see pages 4-7 of the Remarks, filed July 26, 2026, with respect to claim 11 have been fully considered and are persuasive. Claim 11 depends from claim 1 and claim 1 has been amended to recite a hangover relieving composition comprising a lysate of mutant Saccharomyces cerevisiae Kwon P-1, P-2, P-3, or mixtures thereof, which is not taught by Pico Entech Co LTD (KR 10-2017-0046540 – form PTO-1449), Zhao (CN 106387917 – cited previously on form PTO-892), or Wang (US 2005/0271739 – form PTO-892). Therefore, the rejection of claim 11 under 35 U.S.C. 103 has been withdrawn.
Claim Rejections - 35 USC § 101
Applicant’s arguments, see pages 7-9, filed July 26, 2026, with respect to claims 6 and 11 have been fully considered and are persuasive. Claim 1 has been amended to recite a hangover relieving composition comprising a lysate of mutant Saccharomyces cerevisiae Kwon P-1, P-2, P-3, or mixtures thereof, which is not directed to a product of nature. Therefore, the rejection of claims 6 and 11 under 35 U.S.C. 101 has been withdrawn.
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 double patenting rejection is appropriate where the claims at issue 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 reference 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. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/forms/. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Maintained/Amended Rejections
Claims 6 and 11-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of US Patent No. 11,618,889 (reference patent) in view of Pico Entech Co LTD (KR 10-2017-0046540 – form PTO-1449 and English Translation of KR 10- 2017-0046540. Retrieved on 4/14/2025. - cited previously on form PTO-892. English Translation of KR 10-2017-0046540 is used for specific passage of Pico Entech Co LTD), Zhao (CN 106387917 – cited previously on form PTO-892 and English Translation of CN 106387917. Retrieved on 4/15/2025. English Translation of CN 106387917 is used for specific passages of Zhao), von der Haar (Optimized protein extraction for quantitative proteomics of yeasts. PLoS One. 2007 Oct 24;2(10):e1078. – form PTO-892), and Wang (US 2005/0271739 – cited previously on form PTO-892). Although the claims at issue are not identical, they are not patentably distinct from each other because they are claiming common subject matter, as follows:
Regarding claim 6 of the instant application, claims 1-4 of the reference patent recites Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP, wherein said Saccharomyces cerevisiae P-1, P-2, and P-3 have enhanced ability to produce aldehyde dehydrogenase and glutathione. The aldehyde dehydrogenase and glutathione inherently have hangover relieving properties (see Column 2 line 49 through Column 3, line 17 of the reference patent and the abstract of the instant application).
The claims of the reference patent do not recite a hangover relieving composition comprising a lysate of Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP. However, claim 6 of the reference recites culturing the Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP.
Regarding claim 6, Pico Entech Co LTD discloses a hangover relieving composition comprising glutathione and aldehyde dehydrogenase (page 2, 2nd full paragraph to 8th full paragraph, and Manufacture examples 2-3 at page 4).
Regarding claims 6 and 12, Zhao discloses a sobering-up composition (reading on a hangover relieving composition) comprising an aldehyde dehydrogenase derived from S. cerevisiae (abstract and page 3, 2nd full paragraph). Zhao discloses lysis of S. cerevisiae under alkaline conditions and preparing an oral or chewable tablet (page 3, bottom through page 4).
Regarding claims 6 and 12, lysis of S. cerevisiae by alkaline lysis and by bead beating was known in the art, as disclosed by von der Haar (pages 1-2 “Basic Procedure”).
Regarding clam 11, Wang discloses a composition for accelerating the metabolic of alcohol to prevent/reduce alcohol intoxication, drunkenness and hangover, wherein the composition comprises an aldehyde dehydrogenase and NAD ([0043] and claims 2- 3 and 6). Wang discloses that increasing or maintaining the concentration of coenzyme NAD and the NAD/NADH ratio (i.e., redox state) in the body, which enhances the alcohol metabolism rate and prevents the drinker from developing alcohol-drinking related diseases and alcoholic syndrome ([0017]).
Therefore, it would have been obvious to one having ordinary skill in the art to modify the claims of the reference patent by (1) preparing an edible tablet comprising the lysate of Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP of the reference patent and (2) adding NAD to the lysate. One of ordinary skill in the art would have been motivated to add NAD to further improve efficacy of the hangover relieving composition because NAD enhances alcohol metabolism. One of ordinary skill in the art would have been motivated to prepare a lysate of the Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP in order to formulate the lysate into an edible table to administer the tablet to a subject in need. One of ordinary skill in the art would have had a reasonable expectation of success since the claims of the reference patent recites Saccharomyces cerevisiae Kwon P-1 KCTC13925BP, P-2 KCTC14122BP, and P-3 KCTC14123BP having enhanced ability to produce aldehyde dehydrogenase and glutathione, Pico Entech Co LTD discloses a hangover relieving composition comprising glutathione and aldehyde dehydrogenase, Zhao discloses preparing an edible tablet, and Wang discloses a hangover relieving composition comprising NAD and aldehyde dehydrogenase.
Applicant's arguments filed March 20, 2026 have been fully considered but they are not persuasive.
Applicant argues that the subject matter of amended claim 6 distinguishes over the cited reference patent.
This is not found persuasive. Zhao discloses a sobering-up composition (reading on a hangover relieving composition) comprising an aldehyde dehydrogenase derived from S. cerevisiae (abstract and page 3, 2nd full paragraph). Zhao discloses lysis of S. cerevisiae under alkaline conditions and preparing an oral or chewable tablet (page 3, bottom through page 4). Further, lysis of S. cerevisiae by alkaline lysis and by bead beating was known in the art, as disclosed by von der Haar (pages 1-2 “Basic Procedure”).
Hence the rejection has been maintained.
Conclusion
Claims 6 and 11-12 are pending.
Claims 6 and 11-12 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YONG D PAK whose telephone number is (571)272-0935. The examiner can normally be reached M-Th: 5:30 am - 3:30 pm.
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/YONG D PAK/Primary Examiner, Art Unit 1652
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