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 .
Election/Restrictions
Claims 11 and 13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 December 19, 2025.
Claims 1-10, 14 and 15 have been examined on the merits.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6, 8, 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Baradat et al. (WO 2015082427 A1, published on June 11, 2015, cited as FR 3013979 in IDS) (“Baradat” hereunder).
The present claim 1 is directed to a process for preparing a totum which is a mixture of a plant material with a solid fatty material at room temperature, the process comprising:
(a) contacting a plant material that is fresh and comprises at least 10% water by mass of water in relation to its total mass (mass/mass) before or after desiccation loss, alone or as a mixture, with a fatty material chosen from a fat and a hydrogenated oil, at a temperature of between 50° C. and 180° C. to produce a plant material-fat material mixture;
(b) grinding the plant material-fat material mixture at a temperature of between 50° C. and 180° C. to form a ground material;
(c) heating the ground material to a temperature of between 50° C. and 180° C. to dehydrate the mixture to form a dehydrated mash; and
(d) recovering a solid totum at room temperature comprising 4% or less water by mass of the total mass of the totum.
Baradat teaches a process of making an oily totum, the method comprising
dehydrating and crushing fresh grapes by dispersing the fresh plant material in oil at a temperature above the melting temperature; the reference teaches that the solid materials from the grape is placed in a dryer or a dehydrator and for about 48 hours until the water content in the solid grape material becomes about 10-18 % by weight, see translation, 11, last 5 lines;
mixing the grape powder obtained from a) and a mixture of oils;
c1) heating the mixture of b) to a high temperature 80-200°C over a short period of time (i.e., less than 10 minutes); and
c2) microdispersing the solid and breaking the cells of the raw materially in the oil at a temperature above the melting point of the oil
and recovering and filtering the oily extract of the grape. See translation, p. 10, bridging paragraph – p. 11, last line.
Although Baradat teaches refers the grape materials in step a) is in “dehydrated” form, the present claim defines a plant material having at least 10 % water by mass as a “fresh” material, thus the dehydrated grape in the prior art method a) having about 11-18 % water content meets the present claim limitation.
As for the water content of the final product, Baradat teaches that the oil and solid plant material in powder form in step b) can water in the amount of 3-30 % and 5-15 %. Thus, it is obvious that the final product at the end of the heating step c1) can further remove remaining moisture.
As for the extraction oil, the reference further teaches using a natural ingredient of ingredient of plant origin having emulsifying properties and promoting the extraction of the compounds from the plant material to the oil. The reference discloses glycerol oleate, glycerol stearate, rice wax or carnauba wax as such examples of emulsifying oils. See translation, the 5th full paragraph. Using any of the disclosed emulsifying oils according to the teachings and suggestions of Baradat to prepare a solid totum of grape in fatty material(s) would have been prima facie obvious. For above reasons, the present claims 1, 2, 4-6 and 8 are viewed obvious over the prior art.
Regarding the present claim 3, Baradat specifically mentions that the steps involving heating the grape material is carried out in the absence of light or any oxidizing radiation such as UV to limit the risks of photooxidation and degradation of the photosensitive molecules present in the grapes. See translation, p. 14, the 2nd full paragraph.
Regarding the present claim 14 and 15, Baradat specifically teaches that the contacting the grape with the fatty materials in step a) and heating the ground mixture in step d) are carried out with stirring of the mixture. See translation, p. 14, the 3rd full paragraph.
Claims 7 is rejected under 35 U.S.C. 103 as being unpatentable over Baradat as applied to claims 1-6, 8, 14 and 15 as above, and further in view of Byun et al. (KR 20180083998 A, published on July 24, 2018) (“Byun” hereunder).
Baradat teaches that the disclosed method is useful in extraction of the active ingredients of the grapes including OPC (oligomeric procyanidolic complexes) in the oily composition without using chemical solvent. See translation, p. 3, bridging paragraph – p. 5. The reference suggests that the disclosed method can be used to obtain a stabilized concentrate of grapes enriched in polyphenols which can be used for cosmetic and nutraceutical products. See translation, p. 19, the 2nd full paragraph – bridging paragraph.
Baradat fails to teach applying the disclosed method to obtain extracts of other plant materials.
Byun teaches an antioxidant composition comprising an extract of Capsicum. annuum as an active ingredient. The reference teaches that the extract of Capsicum annuum is rich in polyphenol, flavonoid and useful as a food additive, a pharmaceutical composition and a cosmetic composition. See abstract. The reference discloses a process of extracting polyphenol contents via an ethanol extraction. See translation, p. 10.
Given the teachings of Baradat for a solvent-free process to extract polyphenolic antioxidants from grapes, one of ordinary skill in the art before the effective filing date of the present application would have been obviously motivated look to prior arts such as Byun and use the prior art method in extracting useful components from other plant materials such as pepper. Since Byun teaches that pepper (Capsicum annuum) extracts have high contents of polyphenolic antioxidants useful in cosmetics and pharmaceutical formulations, the skilled artisan would have had a reasonable expectation of successfully combining the teachings of the references and applying the chemical-free Baradat method to extract the antioxidant actives from pepper in a more environmentally friendly process.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Baradat as applied to claims 1-6, 8, 14 and 15 as above, and further in view of Yang et al. (CN 110169496 A, published on August 27, 2019) (“Yang” hereunder).
Although Baradat suggests using an emulsifying agent to promote the extraction of compounds from the grapes, the fails to disclose glycerol monolaurate or glycerol monocaprate of the present claims 9 and 10.
Yang teaches glyceryl monolaurate is an emulsifier found in milk and sunflower and well-known non-toxic food additive. See translation, p. 2, Background.
It is well settled in patent law that combining or substituting art-recognized functional equivalents is prima facie obvious. See MPEP 2144.06 II & II. Since Baradat and Yang establish that glyceryl monostearate, monooleate and monolaurate are all monoglycerides of saturated fatty acid emulsifiers safe to use in cosmetics, foods and pharmaceuticals, combining or substituting one for the other for the same purpose of extracting compounds from grapes in oil in the Baradat method would have been prima facie obvious before the effective filing date of the present application.
Conclusion
No claims are allowed.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617