DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicants’ amendment to the claims, filed on September 24, 2025, is
acknowledged. This listing of the claims replaces all prior versions and listings of the
claims.
Claims 1-2, 4-7, 9, and 11-20 are pending in this application.
Claims 3, 8, and 10 are cancelled.
Previous rejections of claims 3, 8, and 10 are withdrawn in view of the instant amendment to cancel these claims.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 U.S.C. § 112(b)
The rejection of claim 2 for being indefinite because the phrase “the magnetized elderberry ferment is capable of increasing total antioxidant capacity (TAC and a concentration of erythrocyte glutathione S-transferase (GST-RBC)… of the subject concentration of malondialdehyde” is unclear because of the phrase “of the subject” is withdrawn in view of the amendment of “of the subject” to “in the blood of the subject”.
The rejection of claim 2 for being indefinite for the use of relative terms (i.e., “increasing” and “decreasing”) is withdrawn in view of the amendment to include “after the composition is administered to the subject” which provides a reference that allows a determination if the recited values increased and decreased can be determined.
The rejection of claim 6, 14, and 20 for being indefinite for the use of relative terms (i.e., “strong”) is withdrawn in view of the amendment to remove “strong” from the claims.
Claim Rejections - 35 USC § 103
The rejection of claims 7, 12-13, 15-16, and 18-19 under 35 U.S.C. 103 for being unpatentable over Lin et al. (CN 11/2106909 A, Published December 22, 2020, Filed June 19, 2020; as cited in the PTO-892 from 1/30/25; hereafter “Lin”) in view of Młynarczyk et al. (Journal of Functional Foods, E-published December 22, 2017. Vol 40, p. 377-390; as cited in the PTO-892 from 1/30/25; hereafter “Młynarczyk”) and Ricci et al. (Food Chemistry, Published March 15, 2019, E-published October 10, 2018, No. 276, p. 692-699; as cited in the PTO-892 from 1/30/25; hereafter “Ricci”) is withdrawn. The rejection is are withdrawn because the combination of cited references does not teach or suggest the newly added limitations to the claims: (claims 7 and 12-13) “A method of promoting bone differentiation”; and (claims 15-16 and 18-19) “A method for improving phagocytic activity of leukocytes.”
The rejection of claims 14 and 20 rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk and Ricci as applied to claims 1-2 and 4-5 above, and further in view of Hu et al. (CN 11/3223803 A, Published August 6, 2021; Citations from Espacenet accessed on December 20, 2024; as cited in the PTO-892 from 1/30/25; hereafter “Hu”) and Msilvestro (Jobmaster Magnets, Published July 8, 2015; as cited in the PTO-892 from 1/30/25; hereafter “Msilvestro”) is withdrawn. The claims are withdrawn because the combination of cited references does not teach the newly added limitations to the claims: (claim 14) “A method of promoting bone differentiation”; and (claim 20) “A method for improving phagocytic activity of leukocytes.”
Claims 1-2 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Lin et al. (CN 11/2106909 A, Published December 22, 2020, Filed June 19, 2020; as cited in the PTO-892 from 1/30/25; hereafter “Lin”) in view of Młynarczyk et al. (Journal of Functional Foods, E-published December 22, 2017. Vol 40, p. 377-390; as cited in the PTO-892 from 1/30/25; hereafter “Młynarczyk”) and Ricci et al. (Food Chemistry, Published March 15, 2019, E-published October 10, 2018, No. 276, p. 692-699; as cited in the PTO-892 from 1/30/25; hereafter “Ricci”). The modification of the rejection is necessitated by the newly added limitation “wherein the magnetized elderberry ferment has a total polyphenol content of 2337.07 ug/mL” to claim 1.
Regarding claim 1, Lin teaches a method of preparing a fruit-based fermentation comprising wolfberry that is performed under a magnetic field, wherein the fermentation process comprises a sequential fermentation of the fruit with 0.01-0.5% yeast such as Saccharomyces cerevisiae, then 0.01-0.25% lactic acid bacterium such as Streptococcus thermophilus TCI633, and then 3-10% acetic acid bacterium such as Acetobacter aceti (para [0007-0009, 0013, 0018, 0038, 0043-0046, 0055]; Claims 1 and 2). Lin also teaches wherein the wolfberry ferment has a total polyphenol content of more than 436 µg/ml as well as that fermentation of the starting material under a magnetized environment can increase the levels of polyphenols in the product, as compared to fermentation without a magnetized environment, as well as shorten the fermentation time (para [0016, 0018, 0053]).
Regarding claim 4, Lin also teaches wherein the fruit and water solution is mixed at 50-100 °C for 0.5-1.5 hours (para [0012, 0038, 0040, 0055]; Meeting claim limitations instant claims 4 sufficient specificity because the range taught by the prior art substantially overlaps with the claimed range and, absent evidence to the contrary, the skilled artisan would have an operational expectation of success over the entire range taught in the prior art).
Regarding claim 5, Lin also teaches wherein the magnetic field is generated by magnets on the periphery of the fermentation apparatus (para [0055]).
Lin does not teach the fruit-based fermentation comprises elderberry extract.
With regards to the use of elderberry extract, Młynarczyk teaches that elderberry (Sambucus nigra) is enriched in polyphenols with antioxidant capacity (Abstract; p. 380, col 1, para 2 – p. 380, col 2, para 1). Młynarczyk teaches wherein elderberry is capable of reducing malondialdehyde in levels in the blood of a subject (p. 384, col 2, para 1). Młynarczyk further teaches that elderberry extract comprising polyphenols enabled antioxidation, improved osteoporosis, and increased bone density in subjects (p. 384, col 2, para 1; Table 4). Młynarczyk further teaches that elderberry improves the immune system (p. 382, col 1, para 2).
In addition, Ricci teaches that fermentation of elderberry (Sambucus nigra) by microorganisms increases levels of polyphenols and antioxidants (Abstract; p. 696, col 1, para 1 – p. 696, col 2, para 2; Table 4).
In view of the combined teachings of Lin, Młynarczyk, and Ricci, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified a method comprising administering a magnetized fruit ferment made by sequentially fermenting a berry extract with 0.01 wt% to 0.5 wt% of Saccharomyces cerevisiae, 0.01 wt% to 0.25 wt% of Streptococcus thermophilus TCI633, and 3 wt% to 10 wt% of Acetobacter aceti under a magnetized environment, as taught by Lin, by substituting the wolfberry with elderberry because Mlynarczyk and Ricci teach elderberry also has high antioxidant and polyphenol content that enables antioxidation, thereby arriving at the invention of claims 1 and 4-5.
An ordinary artisan would have been motivated to make the substitution of wolfberry taught by Lin with elderberry taught by Młynarczyk in order to provide a composition for treating osteoporosis, improving bone density, and improving the immune system. This is because Młynarczyk taught that elderberry extract enabled antioxidation, improved osteoporosis, and increased bone density in subjects. Since Lin taught fruit fermentation under the magnetized environment elevates polyphenol and antioxidant levels to a greater extent than fermentation alone as well as shortened the fermentation process, Młynarczyk taught elderberry was known for its high levels of polyphenols and antioxidants as well as it could be used to improve a plurality of conditions or health parameters, Ricci taught that fermentation increased the levels of antioxidants and polyphenol levels contained in elderberry, an ordinary artisan would have been motivated to have substituted the wolfberry fruit taught by Lin with elderberry the elderberry taught by Młynarczyk in order to produce a ferment with high polyphenol and antioxidant content able to treat a plurality of conditions.
An ordinary artisan would have had a reasonable expectation of success because Lin already taught that extracting a fruit and water mixture under heat, along with the fermentation of a high polyphenol and antioxidant containing fruit under a magnetized environment produced by a plurality of magnets, would produce a ferment which could be used to improve immunity and a simple substitution for another fruit with high levels of polyphenols and antioxidants such as comprised in elderberry, as taught by Młynarczyk, would have been likely to yield similar results. Further, Młynarczyk already taught that elderberry comprised high antioxidants and polyphenols as well as has been used to improve antioxidation, osteoporosis, bone density, and immunity and Ricci already taught that fermenting elderberry increased the levels of polyphenols and antioxidants in elderberry extracts.
Since the combination of Lin, Młynarczyk, and Ricci teach the method of claim 1 (including the concentrations of Saccharomyces cerevisiae, Streptococcus thermophilus TCI633, and of Acetobacter aceti at each sequential fermentation step), it is the examiner’s position that the magnetized elderberry ferment produced from the method of the combined teachings of Lin, Młynarczyk, and Ricci necessarily would produce a total polyphenol content of 2337.07 µg/ml since the process meets the positively recited steps recited in claim 1. Since the Office does not have the facilities for examining and comparing applicant’s method of producing a magnetized fruit ferment with the method of producing a magnetized fruit ferment of the prior art, the burden is on the applicant to show a novel or unobvious difference between the recited method and the recited method of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594. As a result, the method of claim 1 taught by the combination of Lin, Młynarczyk, and Ricci inherently comprises a total polyphenol content of 2337.07 µg/ml.
Alternatively, or in addition, even if the steps recited in claim 1 did not amount to a composition that necessarily has a total polyphenol content of 2337.07 µg/ml, that amount of total polyphenol content can be arrived at through routine optimization through the course of ordinary experimentation (see MPEP 2144.05). An ordinary artisan would have immediately recognized that phenols are antioxidants and that the total phenolic content is a results effective variable in a composition that enables antioxidation. Since the effectiveness of a composition is result effective variable dependent on the concentration of its active ingredients like the phenol content, it would have been obvious for one of ordinary skill through normal optimization procedures known in the art to obtain a total phenolic content of 2337.07 µg/ml.
Regarding claim 2, the relevant teachings of Lin, Młynarczyk, and Ricci, as applied to claims 1 and 4-5, are discussed above and incorporated hereafter.
Młynarczyk further teaches wherein elderberry is capable of reducing malondialdehyde in levels in the blood of a subject (p. 384, col 2, para 1).
The combined teachings of Lin, Młynarczyk, and Ricci do not teach wherein the magnetized elderberry ferment increases the total antioxidant capacity and increases a concentration of glutathione S-transferase (GST- RBC) in the blood of a subject. However, these limitations do not add a positively recited step to the methods from which they depend, and thus have been interpreted as expression of intended results and not given patentable weight (see MPEP 2111.04). Thereby arriving at the invention of claim 2.
Consequently, the invention of claims 1-2 and 4-5 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claims 7, 9, and 11-13 are newly rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk and Ricci as applied to claims 1-2 and 4-5 above, and further in view of Domazetovic et al. (Clinical Cases in Mineral and Bone Metabolism, published 2017, Vol. 14, No. 2, p. 209-216; cited on the attached Form PTO-892; hereafter “Domazetovic”). The new rejection is necessitated by the newly added limitation “A method for promoting bone differentiation” to claim 7.
Regarding claims 7 and 12-13, the relevant teachings of Lin, Młynarczyk, and Ricci, as applied to claims 1-2 and 4-5 are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, and Ricci do not explicitly teach wherein the magnetized elderberry ferment is capable of promoting bone differentiation.
Domazetovic teaches oxidants contribute to osteoporosis and bone loss, and that antioxidants either directly or by counteracting the action of oxidants by contributing to activate the differentiation of osteoblasts, activate the mineralization process and induces bone formation, and reduces osteoclast activity (Abstract; p. 210, col 2, para 4; p. 212, col 1, para 2; Figure 1). Domazetovic teaches that osteoblasts produce new bone tissue (p. 210, col 1, para 4; Figure 1). Domazetovic teaches that reactive oxygen species reduce the differentiation of osteoblasts (p. 210, col 2, para 4).
In view of the combined teachings of Lin, Młynarczyk, Ricci, and Domazetovic, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to administer the magnetized elderberry ferment made by the method taught by Lin, Młynarczyk, and Ricci to treat an osteoporotic patient by inducing osteoblast differentiation. This is because Domazetovic teaches antioxidants increase the differentiation of osteoblasts and induce bone formation, thereby arriving at the invention of claims 7 and 12-13.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to administer the magnetized elderberry ferment made by the method taught by Lin, Młynarczyk, and Ricci to treat an osteoporotic patient by inducing osteoblast differentiation and bone formation. This is because Młynarczyk further teaches that elderberry extract comprising polyphenols enables antioxidation, improves osteoporosis, and increases bone density in subjects, and Domazetovic teaches antioxidants increase the differentiation of osteoblasts and induce bone formation.
Regarding claim 9, the relevant teachings of Lin, Młynarczyk, Ricci, and Domazetovic, as applied to claims 1-2, 4-5, 7 and 12-13, are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, Ricci, and Domazetovic do not explicitly teach wherein the magnetized elderberry ferment increases concentrations of osteocalcin and type 1 procollagen amino-terminal-propeptide (P1NP) in blood of the subject, thereby enhancing bone formation in the subject. However, these limitations do not add a positively recited step to the methods from which they depend, and thus have been interpreted as expression of intended results and not given patentable weight (see MPEP 2111.04). Thereby arriving at the invention of claim 9.
Regarding claim 11, the relevant teachings of Lin, Młynarczyk, Ricci, and Domazetovic, as applied to claims 1-2, 4-5, 7 and 12-13, are discussed above and incorporated herein.
Since the combination of Lin, Młynarczyk, Ricci, and Domazetovic teaches the method of claim 7 (including the concentrations of Saccharomyces cerevisiae, Streptococcus thermophilus TCI633, and of Acetobacter aceti at each sequential fermentation step), it is the examiner’s position that the magnetized elderberry ferment produced from the teachings of Lin, Młynarczyk, Ricci, and Domazetovic necessarily would produce a total polyphenol content of 2337.07 µg/ml since the process meets the positively recited steps recited in claim 7. Since the Office does not have the facilities for examining and comparing applicant’s method of producing a magnetized fruit ferment with the method of producing a magnetized fruit ferment of the prior art, the burden is on the applicant to show a novel or unobvious difference between the recited method and the recited method of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594. As a result, the method of claim 7 taught by the combination of Lin, Młynarczyk, Ricci, and Domazetovic inherently comprises a total polyphenol content of 2337.07 µg/ml.
Alternatively, or in addition, even if the steps recited in claim 7 did not amount to a composition that necessarily has a total polyphenol content of 2337.07 µg/ml, that amount of total polyphenol content can be arrived at through routine optimization through the course of ordinary experimentation (see MPEP 2144.05). An ordinary artisan would have immediately recognized that phenols are antioxidants and that the total phenolic content is a results effective variable in a composition that enables antioxidation based promotion of bond differentiation. Since the effectiveness of a composition is result effective variable dependent on the concentration of its active ingredients like the phenol content, it would have been obvious for one of ordinary skill through normal optimization procedures known in the art to obtain a total phenolic content of 2337.07 µg/ml.
Consequently, the invention of claims 7, 9, and 11-13 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claims 15-19 are newly rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk and Ricci as applied to claims 1-2 and 4-5 above, and further in view of Alvarado et al. (Nutrition, published 2006, Vol. 22. No. 7-8, p. 767-777; cited on the attached Form PTO-892; hereafter “Alvarado”). The new rejection is necessitated by the newly added limitation “A method for improving phagocytic activity of leukocytes” to claim 15.
Regarding claims 15 and 18-19, the relevant teachings of Lin, Młynarczyk, and Ricci, as applied to claims 1-2 and 4-5 are discussed above and incorporated herein.
Młynarczyk teaches that elderberry fruit comprises ascorbic acid (vitamin C) (p. 378, col 2, para 2).
The combined teachings of Lin, Młynarczyk, and Ricci do not explicitly teach wherein the magnetized elderberry ferment is capable of improving phagocytic activity of leukocytes.
Alvarado teaches dietary supplementation with antioxidants comprising vitamin C in subjects with early-aging increases increased phagocytosis (Table 2; p. 769, col 2, para 3; p. 771, col 2, para 1).
In view of the combined teachings of Lin, Młynarczyk, Ricci, and Alvarado, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to administer the magnetized elderberry ferment made by the method taught by Lin, Młynarczyk, and Ricci to improve the phagocytic activity of leukocytes in subjects with premature aging since Alvarado teaches supplementation with antioxidants comprising vitamin C in subjects with early-aging increases increased phagocytosis, thereby arriving at the invention of claims 15 and 18-19.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to administer the magnetized elderberry ferment made by the method taught by Lin, Młynarczyk, and Ricci to improve the phagocytic activity of leukocytes in subjects with premature aging since. This is because Młynarczyk further teaches that elderberry fruit comprises vitamin C, and Alvarado teaches supplementation with antioxidants comprising vitamin C in subjects with early-aging increases increased phagocytosis.
Regarding claim 16, the relevant teachings of Lin, Młynarczyk, Ricci, and Alvarado, as applied to claims 1-2, 4-5, 15 and 18-19, are discussed above and incorporated herein.
Lin also teaches wherein the fruit-based fermentation can enhance immunity (para [0093]). Lin further teaches the fruit-based ferment can alter the expression of interleukin (IL) genes (para [0093]).
The combined teachings of Lin, Młynarczyk, Ricci, and Alvarado does not explicitly teach wherein the magnetized elderberry ferment further improves expression level of interleukin-18 gene in the subject. However, these limitations do not add a positively recited step to the methods from which they depend, and thus have been interpreted as expression of intended results and not given patentable weight (see MPEP 2111.04). Thereby arriving at the invention of claim 16.
Regarding claim 17, the relevant teachings of Lin, Młynarczyk, Ricci, and Alvarado, as applied to claims 1-2, 4-5, 15 and 18-19, are discussed above and incorporated hereafter.
Since the combination of Lin, Młynarczyk, Ricci, and Alvarado teach the method of claim 15 (including the concentrations of Saccharomyces cerevisiae, Streptococcus thermophilus TCI633, and of Acetobacter aceti at each sequential fermentation step), it is the examiner’s position that the magnetized elderberry ferment produced from the teachings of Lin, Młynarczyk, and Ricci necessarily would produce a total polyphenol content of 2337.07 µg/ml since the process meets the positively recited steps recited in claim 15. Since the Office does not have the facilities for examining and comparing applicant’s method of producing a magnetized fruit ferment with the method of producing a magnetized fruit ferment of the prior art, the burden is on the applicant to show a novel or unobvious difference between the recited method and the recited method of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594. As a result, the method of claim 15 taught by the combination of Lin, Młynarczyk, Ricci, and Alvarado inherently comprises a total polyphenol content of 2337.07 µg/ml.
Alternatively, or in addition, even if the steps recited in claim 15 did not amount to a composition that necessarily has a total polyphenol content of 2337.07 µg/ml, that amount of total polyphenol content can be arrived at through routine optimization through the course of ordinary experimentation (see MPEP 2144.05). An ordinary artisan would have immediately recognized that phenols are antioxidants and that the total phenolic content is a results effective variable in a composition that enables antioxidation based promotion of bond differentiation. Since the effectiveness of a composition is result effective variable dependent on the concentration of its active ingredients like the phenol content, it would have been obvious for one of ordinary skill through normal optimization procedures known in the art to obtain a total phenolic content of 2337.07 µg/ml.
Consequently, the invention of claims 15-19 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claims 15-19 are newly rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk and Ricci as applied to claims 1-2 and 4-5 above, and further in view of Ali et al. (Antioxidants, August 11, 2021, Vol. 10, No. 8; as cited in the PTO-892 from 1/30/25; hereafter “Ali”). The new rejection is necessitated by the newly added limitation “A method for improving phagocytic activity of leukocytes” to claim 15.
Regarding claims 15 and 18-19, the relevant teachings of Lin, Młynarczyk, and Ricci as applied to claims 1-2 and 4-5 are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, and Ricci do not explicitly teach wherein the magnetized elderberry ferment is capable of improving phagocytic activity of leukocytes.
Ali teaches that a ferment of fruit extract comprising high levels of polyphenols and antioxidants improves immunity as well as neutrophil phagocytosis and migration capacities (Abstract; p. 12, para 3; p. 16, para 2; Figure 5). An ordinary artisan would immediately recognize neutrophils as leukocytes. Ali teaches evaluating the migration and phagocytosis activity of neutrophils in order to detect immune function (p. 12, para 3).
In view of the combined teachings of Lin, Młynarczyk, Ricci, and Ali, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to administer the magnetized elderberry ferment made by the taught by Lin, Młynarczyk, and Ricci to improve the phagocytic activity of leukocytes in subjects with premature aging since Ali teaches that a ferment of fruit extract comprising high levels of polyphenols and antioxidants improves immunity as well as neutrophil phagocytosis, thereby arriving at the invention of claims 15 and 18-19.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to administer the magnetized elderberry ferment made by the method taught by Lin, Młynarczyk, and Ricci since Ali teaches that a ferment of fruit extract comprising high levels of polyphenols and antioxidants improves immunity as well as neutrophil phagocytosis.
Regarding claim 16, the relevant teachings of Lin, Młynarczyk, Ricci, and Alvarado, as applied to claims 1-2, 4-5, 15 and 18-19, are discussed above and incorporated hereafter.
Lin also teaches wherein the fruit-based fermentation can enhance immunity (para [0093]). Lin further teaches the fruit-based ferment can alter the expression of interleukin (IL) genes (para [0093]).
The combined teachings of Lin, Młynarczyk, Ricci, and Ali do not explicitly teach wherein the magnetized elderberry ferment further improves expression level of interleukin-18 gene in the subject. However, these limitations do not add a positively recited step to the methods from which they depend, and thus have been interpreted as expression of intended results and not given patentable weight (see MPEP 2111.04). Thereby arriving at the invention of claim 16.
Regarding claim 17, the relevant teachings of Lin, Młynarczyk, Ricci, and Ali, as applied to claims 1-2, 4-5, 15 and 18-19, are discussed above and incorporated herein.
Since the combination of Lin, Młynarczyk, Ricci, and Ali teach the method of claim 15 (including the concentrations of Saccharomyces cerevisiae, Streptococcus thermophilus TCI633, and of Acetobacter aceti at each sequential fermentation step), it is the examiner’s position that the magnetized elderberry ferment produced from the teachings of Lin, Młynarczyk, and Ricci necessarily would produce a total polyphenol content of 2337.07 µg/ml since the process meets the positively recited steps recited in claim 15. Since the Office does not have the facilities for examining and comparing applicant’s method of producing a magnetized fruit ferment with the method of producing a magnetized fruit ferment of the prior art, the burden is on the applicant to show a novel or unobvious difference between the recited method and the recited method of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594. As a result, the method of claim 15 taught by the combination of Lin, Młynarczyk, Ricci, and Ali inherently comprises a total polyphenol content of 2337.07 µg/ml.
Alternatively, or in addition, even if the steps recited in claim 15 did not amount to a composition that necessarily has a total polyphenol content of 2337.07 µg/ml, that amount of total polyphenol content can be arrived at through routine optimization through the course of ordinary experimentation (see MPEP 2144.05). An ordinary artisan would have immediately recognized that phenols are antioxidants and that the total phenolic content is a results effective variable in a composition that enables antioxidation based promotion of bond differentiation. Since the effectiveness of a composition is result effective variable dependent on the concentration of its active ingredients like the phenol content, it would have been obvious for one of ordinary skill through normal optimization procedures known in the art to obtain a total phenolic content of 2337.07 µg/ml.
Consequently, the invention of claims 15-19 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk and Ricci as applied to claims 1-2 and 4-5 above, and further in view of Hu and Msilvestro.
Regarding claim 6, the teachings of Lin, Młynarczyk, and Ricci as applied to claims 1-2 and 4-5 are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, and Ricci do not explicitly teach wherein the magnets used to produce the magnetized elderberry ferment comprise N35 neodymium-iron-boron magnets.
However, Hu teaches low cost N35 neodymium-iron-boron (NeFeB) magnets (para [0001]). Hu further teaches the magnets are sintered which increases the strength of the magnet (para [0021]). Hu further teaches the magnets are plated which lengthens its service life as well as increases corrosion resistance (para [0029]).
Further, Msilvestro teaches that neodymium-iron-boron (NIB) magnets are strong magnets (p. 3, para 3-4; p. 3, para 6-8). Msilvestro teaches the neodymium-iron-boron magnets have a higher energy density, strength and holding power as compared to other common strong magnets (p. 3, para 1-6).
In view of the combined teachings of Lin, Młynarczyk, Ricci, Hu, and Msilvestro, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention modify the plurality of magnets around the fermenter taught used to produce a magnetized elderberry ferment taught by Lin, Młynarczyk, and Ricci such that they comprise N35 neodymium-iron-boron magnet taught by Hu, thereby arriving at the claimed invention of claim 6.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to substitute one magnet type for another with a reasonable expectation of success because there is no change in the function of the substituted element. Since Lin already taught a plurality of magnets were used around the body of the fermenter to produce the magnetized environment, an ordinary artisan would have been motivated to substitute those magnets for a plurality of N35 neodymium-iron-boron magnets because Hu taught N35 neodymium-iron-boron are strong as well and Msilvestro already taught that neodymium-iron-boron are cost effective while also having immense strength.
Consequently, the invention of claim 6 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk, Ricci, and Domazetovic as applied to claims 1-2, 4-5, 7, 9, and 11-13 above, and further in view of Hu and Msilvestro.
Regarding claim 14, the teachings of Lin, Młynarczyk, Ricci, and Domazetovic, as applied to claims 1-2, 4-5, 7, 9, and 11-13 are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, Ricci, and Domazetovic do not explicitly teach wherein the magnets used to produce the magnetized elderberry ferment comprise N35 neodymium-iron-boron magnets.
However, Hu teaches low cost N35 neodymium-iron-boron (NeFeB) magnets (para [0001]). Hu further teaches the magnets are sintered which increases the strength of the magnet (para [0021]). Hu further teaches the magnets are plated which lengthens its service life as well as increases corrosion resistance (para [0029]).
Further, Msilvestro teaches that neodymium-iron-boron (NIB) magnets are strong magnets (p. 3, para 3-4; p. 3, para 6-8). Msilvestro teaches the neodymium-iron-boron magnets have a higher energy density, strength and holding power as compared to other common strong magnets (p. 3, para 1-6).
In view of the combined teachings of Lin, Młynarczyk, Ricci, Domazetovic, Hu, and Msilvestro, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the plurality of magnets around the fermenter taught used to produce a magnetized elderberry ferment taught by Lin, Młynarczyk, Ricci, and Domazetovic such that they comprise N35 neodymium-iron-boron magnet taught by Hu, thereby arriving at the claimed invention of claim 14.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to substitute one magnet type for another with a reasonable expectation of success because there is no change in the function of the substituted element. Since Lin already taught a plurality of magnets were used around the body of the fermenter to produce the magnetized environment, an ordinary artisan would have been motivated to substitute those magnets for a plurality of N35 neodymium-iron-boron magnets because Hu taught N35 neodymium-iron-boron are strong as well and Msilvestro already taught that neodymium-iron-boron are cost effective while also having immense strength.
Consequently, the invention of claim 14 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk, Ricci, and Alvarado as applied to claims 1-2, 4-5, and 15-19 above, and further in view of Hu and Msilvestro.
Regarding claim 20, the teachings of Lin, Młynarczyk, Ricci, and Alvarado, as applied to claims 1-2, 4-5, and 15-19 are discussed above and incorporated hereafter.
The combined teachings of Lin, Młynarczyk, Ricci, and Alvarado do not explicitly teach wherein the magnets used to produce the magnetized elderberry ferment comprise N35 neodymium-iron-boron magnets.
However, Hu teaches low cost N35 neodymium-iron-boron (NeFeB) magnets (para [0001]). Hu further teaches the magnets are sintered which increases the strength of the magnet (para [0021]). Hu further teaches the magnets are plated which lengthens its service life as well as increases corrosion resistance (para [0029]).
Further, Msilvestro teaches that neodymium-iron-boron (NIB) magnets are strong magnets (p. 3, para 3-4; p. 3, para 6-8). Msilvestro teaches the neodymium-iron-boron magnets have a higher energy density, strength and holding power as compared to other common strong magnets (p. 3, para 1-6).
In view of the combined teachings of Lin, Młynarczyk, Ricci, Alvarado, Hu, and Msilvestro, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention modify the plurality of magnets around the fermenter taught used to produce a magnetized elderberry ferment by Lin, Młynarczyk, Ricci, and Alvarado such that they comprise N35 neodymium-iron-boron magnet taught by Hu, thereby arriving at the claimed invention of claim 20.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to substituting one magnet type for another with a reasonable expectation of success because there is no change in the function of the substituted element. Since Lin already taught a plurality of magnets were used around the body of the fermenter to produce the magnetized environment, an ordinary artisan would have been motivated to substitute those magnets for a plurality of N35 neodymium-iron-boron magnets because Hu taught N35 neodymium-iron-boron are strong as well and Msilvestro already taught that neodymium-iron-boron are cost effective while also having immense strength.
Consequently, the invention of claim 20 would have been obvious to one of ordinary skill in the art before the effective filing date.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Lin in view of Młynarczyk, Ricci, and Ali as applied to claims 1-2, 4-5, and 15-19 above, and further in view of Hu and Msilvestro.
Regarding claim 20, the teachings of Lin, Młynarczyk, Ricci, and Ali, as applied to claims 1-2, 4-5, and 15-19 are discussed above and incorporated herein.
The combined teachings of Lin, Młynarczyk, Ricci, and Ali do not explicitly teach wherein the magnets used to produce the magnetized elderberry ferment comprise N35 neodymium-iron-boron magnets.
However, Hu teaches low cost N35 neodymium-iron-boron (NeFeB) magnets (para [0001]). Hu further teaches the magnets are sintered which increases the strength of the magnet (para [0021]). Hu further teaches the magnets are plated which lengthens its service life as well as increases corrosion resistance (para [0029]).
Further, Msilvestro teaches that neodymium-iron-boron (NIB) magnets are strong magnets (p. 3, para 3-4; p. 3, para 6-8). Msilvestro teaches the neodymium-iron-boron magnets have a higher energy density, strength and holding power as compared to other common strong magnets (p. 3, para 1-6).
In view of the combined teachings of Lin, Młynarczyk, Ricci, Ali, Hu, and Msilvestro, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention modify the plurality of magnets around the fermenter taught used to produce a magnetized elderberry ferment taught by Lin, Młynarczyk, Ricci, and Ali such that they comprise N35 neodymium-iron-boron magnet taught by Hu, thereby arriving at the claimed invention of claim 20.
An ordinary artisan would have been motivated to and had a reasonable expectation of success to substituting one magnet type for another with a reasonable expectation of success because there is no change in the function of the substituted element. Since Lin already taught a plurality of magnets were used around the body of the fermenter to produce the magnetized environment, an ordinary artisan would have been motivated to substitute those magnets for a plurality of N35 neodymium-iron-boron magnets because Hu taught N35 neodymium-iron-boron are strong as well and Msilvestro already taught that neodymium-iron-boron are cost effective while also having immense strength.
Consequently, the invention of claim 20 would have been obvious to one of ordinary skill in the art before the effective filing date.
Applicant’s Arguments and Examiner’s Response
ARGUMENT: Applicant submits that none of the cited references disclose(s) or teach(es) the magnetized elderberry ferment of the claimed invention and its total polyphenol content being 2337.07 ug/mL.
RESPONSE TO REMARKS: Applicant’s arguments are not found persuasive. For the reasons set forth in the modified and new rejections above, it would have been obvious to one of ordinary skill in the art to modify the method of making a fermented fruit product under a magnetized ferment taught by Lin by substituting the wolfberry fruit with elderberry fruit. Since the combination Lin, Mlynarczyk, and Ricci teach the positively recited steps of claim 1, the total polyphenol content of 2337.07 μg/mL is presumed to be inherent to the method thereof. Even if not present, an ordinary artisan would have immediately recognized that phenols are antioxidants and that the total phenolic content is a results effective variable in a composition that enables antioxidation. Since the effectiveness of a composition is result effective variable dependent on the concentration of its active ingredients like the phenol content, it would have been obvious for one of ordinary skill through normal optimization procedures known in the art to obtain a total phenolic content of 2337.07 µg/ml.
ARGUMENT: None of the cited references discloses or teaches the magnetized elderberry ferment of the claimed invention and method for promoting bone differentiation by using the same.
RESPONSE TO REMARKS: Applicant’s arguments are not found persuasive. The limitation that the elderberry ferment is capable of promoting bone differentiation is a new limitation in claim 7 not required by the claim set from April 24, 2024, and is addressed by the new rejection based on the combination of Lin, Mlynarczyk, Ricci, and Domazetovic. For the reasons set forth in the new rejections above, it would have been obvious to one of ordinary skill to use the magnetized elderberry ferment made by the method taught by Lin, Mlynarczyk, and Ricci to promote bone differentiation in osteoporotic patients. This is because Młynarczyk further teaches that elderberry extract comprising polyphenols enabled antioxidation, improved osteoporosis, and increased bone density in subjects, and Domazetovic teaches oxidants contribute to osteoporosis and bone loss, and that antioxidants either directly or by counteracting the action of oxidants by contributing to activate the differentiation of osteoblasts, activate the mineralization process and induces bone formation, and reduces osteoclast activity.
ARGUMENT: None of the cited references discloses or teaches the magnetized elderberry ferment of the claimed invention and method for improving phagocytic activity of leukocytes by using the same.
RESPONSE TO REMARKS: Applicant’s arguments are not found persuasive. The limitation that the elderberry ferment is capable of for improving phagocytic activity of leukocytes is a new limitation in claim 15 not required by the claim set from April 24, 2024, and is addressed by the new rejection based on the combination of Lin, Mlynarczyk, Ricci, and Alvarado or the combination of Lin, Mlynarczyk, Ricci, and Ali. For the reasons set forth in the new rejections above, it would have been obvious to one of ordinary skill to use the magnetized elderberry ferment made by the method taught by Lin, Mlynarczyk, and Ricci to improve phagocytic activity of leukocytes. This is because the Młynarczyk teaches that elderberry fruit contain vitamin C and Alvarado teaches dietary supplementation with antioxidants comprising vitamin C in subjects with early-aging increases increased phagocytosis. Alternatively, an ordinary artisan would have used the magnetized elderberry ferment taught by Lin, Mlynarczyk, and Ricci to improve phagocytic activity of neutrophils, which are leukocytes, since Ali teaches that a ferment of fruit extract comprising high levels of polyphenols and antioxidants improves immunity as well as neutrophil phagocytosis and migration capacities.
Conclusion
No claims are in condition for allowance.
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.
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/SCOTT E. MULDER/
Examiner, Art Unit 1656
/David Steadman/Primary Examiner, Art Unit 1656