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 .
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 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.
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/11/2026 has been entered.
Status of claims
The amendment filed on 09/11/2026 is acknowledged. Claims 3, 16, 21-23, and 25 have been canceled and claims 4-10, 19, and 20 have been withdrawn. Claims 1, 2, 11-15, 17, and 18 are under examination in the instant office action.
As stated in the office action dated 08/26/2025 the species election of “pyrones” is construed as maltol and/or ethyl maltol.
Rejections withdrawn
Applicant’s amendments and arguments filed on 09/11/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
Rejections maintained
The following rejection of the claims is maintained for reasons of record and the following. The rejection is modified based on the amendments.
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.
Claims 1, 2, 11-15, 17, and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Furrer et al. (US 2006/0142177 A1).
Furrer et al. meet all of the limitations of claims 1, 2, 11-15, 17, and 18. Furrer et al. disclose
a combination of 0.10000% by weight of maltol (the claimed component b) and 0.05000% by weight of raspberry ketone (the claimed component a) within a blackberry flavour composition (the instant claims 1, 2, and 11-15) (paragraph 24) comprising water, i.e., aqueous (the claimed aqueous-based end user composition in the instant claims 13, 14, and 18).
The combination of maltol and raspberry ketone is 0.15000% relative to the total composition (the instant claim 18).
The weight percentages of maltol and raspberry ketone relative to the combination of maltol and raspberry ketone are calculated to be 66.7% and 33.3% by weight, respectively, (0.1/(0.1+0.5)=66.7% and 0.05/(0.1+0.5)=33.3%) (the instant claim 1).
With respect to the art rejection above, it is noted that the reference does not teach that the combination of maltol and raspberry ketone can be used in the manner instantly claimed, [antimicrobial in the instant claims 1, 2, 11-15, and 18] and [for killing or inhibiting the growth of Staphylococcus aureus, etc., in the instant claims 11 and 12]; however, the intended use of the claimed composition does not patentably distinguish the composition, per se, since such undisclosed use is inherent in the reference composition. In order to be limiting, the intended use must create a structural difference between the claimed composition and the prior art composition. In the instant case, the intended use does not create a structural difference, thus the intended use is not limiting.
It is noted that though Furrer et al. do not expressly teach that the combination of maltol and raspberry ketone providing a synergistic effect having a synergistic index (SI) value of greater than 0.1 to less than 1 in the instant claim 15; the very teaching of the identical compounds to those presently claimed must necessarily possess the same effects, even though such properties may not have been appreciated by Furrer et al. at the time of the invention. Please refer to MPEP 2112.I:
“[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.” Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable.
With respect to the art rejection above, it is noted that the reference does not teach that the composition comprising combination of maltol and raspberry ketone can be used in the manner instantly claimed, [personal care, etc., in the instant claims 1 and 17]; however, the intended use of the claimed composition does not patentably distinguish the composition, per se, since such undisclosed use is inherent in the reference composition. In order to be limiting, the intended use must create a structural difference between the claimed composition and the prior art composition. In the instant case, the intended use does not create a structural difference, thus the intended use is not limiting.
Response to Applicants’ arguments:
Applicant’s argument based on the amendment is addressed in the modified rejection above (the new limitation in claim 1 was previously recited in the now canceled claim 16 which was rejected previously in the office action dated 06/11/2026).
Applicant’s arguments with regard to the antimicrobial effects of the claimed composition are basically the same as the previous response, thus the response discussed previously (office action dated 06/11/2026 page 5-6) apply here as well and are not persuasive for reason discussed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG YU whose telephone number is (571)270-1328. The examiner can normally be reached on 9 am - 5:30 pm.
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, Ali Soroush can be reached on 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HONG YU/
Primary Examiner, Art Unit 1614
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