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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/15/2026 has been entered.
Response to Amendment
The amendment filed on 05/15/2026 has been entered. Claims 1 and 6-12 are pending in the application. Claims 6-12 are withdrawn.
Applicant’s amendments to the claims have not introduced new matter and are supported in the instant specification in at least Pg. 4 and Pg. 9 of the instant specification.
Applicant’s amendment has overcome the 112(a) rejection presented in the action dated 03/16/2026 and that rejection is correspondingly withdrawn.
Response to Arguments
Applicant’s arguments, see Pg. 5-7 filed 05/15/2026 with respect to claim 1, have been fully considered however are solely directed to the claim limitations “the stirring is performed for 1 to 20 minutes” introduced in the amendment filed 05/15/2026, which postdates the final rejection mailed 03/16/2026.
Upon further search and consideration and as necessitated by the amendment, the 35 U.S.C. 103 rejection of 03/16/2026 is withdrawn and a new grounds of rejection is made under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN104086396A English; cited and included in office action dated 10/17/2025).
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 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 factual inquiries for establishing a background for determining obviousness under 35 U.S.C.
103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or
nonobviousness.
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 is rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN104086396A English; cited and included in office action dated 10/17/2025).
Regarding claim 1, Chen teaches a method of preparing shell-derived citric acid complexes of calcium where shells are taken as raw materials, a solution of citric acid is produced, the shell raw material and citric acid solution are mixed to provide a water-soluble calcium ion solution that is then filtered to removed impurities before drying by one or more methods including spray drying to provide the calcium citrate complex (Abstract; Claims 1, 2, 5, and 9). Chen teaches an example where the mixing of the raw shell material and the citric acid solution is conducted for 20 minutes prior to performing solid-liquid separation to remove impurities (Pg. 3, Example 1). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 (I). In the instant case, the value taught by Chen (20 minutes stirring) overlaps with the claimed range (1- 20 minutes stirring). Therefore, the value in Chen renders obvious the claimed range.
Chen does not expressly state that the obtained calcium citrate is mono calcium citrate (C12-H14CaO14) powder as claimed.
However, in addition to the teachings of Chen outlined above, Chen teaches a method that includes mixing shell powder derived from one or more of marine shells, aquatic shells and terrestrial shells with citric acid in a ratio of citrate to calcium ions of 1.7-5.2:1 (Pg. 3, par. 11; Pg. 3, Example 1). Chen further teaches the mixing time between the shells and the citric acid solution is 20 minutes (Pg. 3, Example 1).
Comparatively, the instant invention mixes shells, such as from oysters, with citric acid in a molar ratio of 1:0.8 to 1:5 and stirs for a preferable duration of 1 to 20 minutes (see Pg. 2, 4, and 9 in the instant specification).
Accordingly, the process of Chen is substantially similar to the process of the instant invention such that a skilled artisan would conclude the process of Chen produces mono calcium citrate as a reaction product, meeting the limitation of “recovering mono calcium citrate (C12H14CaO14) powder,” required by the claim. Once a reference teaching a product appearing to be substantially identical is made the basis of a rejection, and the examiner presents evidence or reasoning tending to show inherency, the burden shifts to the applicant to show an unobvious difference. "[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency’ under 35 U.S.C. 102, on prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products." In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)), see MPEP 2112. Applicant has not clearly shown an unobvious difference between the instant invention and the prior art’s product. Moreover, the USPTO does not possess the capabilities to manufacture, test, and make comparisons of the prior art products In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jordan Wayne Taylor whose telephone number is (571)272-9895. The examiner can normally be reached Monday - Friday, 7:30 AM - 5 PM EST; Second Fridays Off.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sally A. Merkling can be reached on (571)272-6297. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JORDAN W TAYLOR/Examiner, Art Unit 1738
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