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 .
Status of Claims
Claims 1-19 are pending.
Priority
Instant application 17/798,778, filed 08/10/2022 claims priority as follows:
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Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
All references from IDS(s) received 08/10/2022 and 12/06/2024 have been considered unless marked with a strikethrough.
Election/Restrictions
Applicant’s election of Group I, claims 1-11 in the reply filed on 09/02/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 12-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/02/2025.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ohtaka et al. (US 5,153,012 A; published 1992; cited in IDS).
Ohtaka discloses an antioxidant beverage composition containing β-carotene, and effective amounts of vitamin C, vitamin B2 and vitamin E (see e.g. claims 1-5). See also col 2, lines 31-35:
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Therefore, Ohtaka anticipates a composition consisting essentially of:
an effective dose of at least two antioxidants selected from the group consisting of:
Vitamin C, Vitamin B2, beta-carotene, and Vitamin E.
Please note the recitation:
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is being interpreted according to MPEP 2111.02 (II), which states: “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”.
See also MPEP 2112.02, which states: “[W]hen 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.”
Applicant claims a composition consisting essentially of a mixture of four antioxidants. See for example Table 2 at page 13 of the Specification, which discloses the antioxidant blend (“ANTIOX”). The use of the composition is apparently directed to a property resulting from combining the four antioxidants. Ohtaka discloses a composition comprising the same four antioxidants.
Therefore, claims 1 and 3 are anticipated by Ohtaka.
Claims 2 and 4-11 are directed to limitations which further elaborate on the intended use of the composition of claim 1. As noted above, the use of the composition is directed to a property resulting from combining the four antioxidants, said combination previously disclosed by Ohtaka. Therefore, claims 2 and 4-11 are anticipated by Ohtaka.
Please note that if the use of the claimed composition is directed to a result or property produced by unrecited structural elements of the composition, Applicant is invited to identify and introduce those structural elements into the claims in order to distinguish the claimed composition from Ohtaka’s composition.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined 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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
18/548,797
Claims 1-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of copending Application No. 18/548,797 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference application recite use of at least one antioxidant selected from the group consisting of Vitamin B2, Vitamin C, beta-carotene, Vitamin E, and mixtures thereof directly delivered to the large intestine to increase the population of Blautia sp in the gut microbiome. Therefore, the reference application is drawn to a composition which anticipates the composition of the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
18/550,642
Claims 1-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of copending Application No. 18/550,642 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference application recite use of at least one antioxidant selected from the group consisting of Vitamin B2 (“riboflavin”), Vitamin C, beta-carotene, Vitamin E, and mixtures thereof directly delivered to the large intestine to decrease the population of Fusobacterium spp. in a person’s gut. Therefore, the reference application is drawn to a composition which anticipates the composition of the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
19/312,760
Claims 1-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-41 of copending Application No. 19/312,760 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference application recite an active agent selected from the group consisting of, inter alia, Vitamin B2 (“riboflavin”), Vitamin C, beta-carotene, Vitamin E, and combinations thereof for use in improving intestinal health in an animal. Therefore, the reference application is drawn to a composition which anticipates the composition of the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Claims 1-11 are rejected. Claims 12-19 are withdrawn.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kyle Nottingham whose telephone number is (571)270-0640. The examiner can normally be reached M-F from 8:30 am - 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Brooks can be reached at (571) 270-7682. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.N./Examiner, Art Unit 1621
/CLINTON A BROOKS/Supervisory Patent Examiner, Art Unit 1621