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 .
DETAILED ACTION
Claims 1-15 and 17-18 are pending. Claims 1-14 are examined on the merits. Claims 15 and 16-17 are withdrawn.
Election/Restrictions
Applicant’s election with traverse of Claims 1-14 (from an interview on 2/27/2026), the species Vitis vinifera, maltodextrin, in the reply filed on 2/5/2026 is acknowledged. However, 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Claims 15 and 16-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/5/2026 and 2/27/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6/26/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 6-7 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In Claim 6, the term “natural” renders the claim vague and indefinite because one does not know what origin or process would make something "natural" as opposed to not being "natural". For example, mixture of molecules in the composition used in claim 6 are some sort of extract meaning that some sort of extraction process was performed to make each extract and thus it is unclear how those processes would be "natural" versus not being "natural". Therefore, the term “natural" makes the claims unclear.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-10 and 12-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claim(s) 1-10 are directed to a composition comprising natural products. Flavanol monomers can be catechins, which are found in grapes. Epsilon-viniferin is found in grapes. Extracts of Vitis vinifera are found in grapes. Stilbenes are found in grapes. Licorice is a plant. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
MPEP § 2106 sets forth the Subject Matter Eligibility Test to determine if a claim is directed to patent eligible subject matter. Step 1 asks if a claim is directed to a statutory category of invention. Applicant’s claims are directed to a product; thus, the answer to Step 1 is Yes.
Step 2A, Prong One, asks if a claim recites to a product of nature. In this case, applicant’s claims fruits and spice, which are food or beverages. Thus, the claims do recite products of nature. MPEP § 2106.04(b) states that “When a claim recites a nature-based product limitation, examiners should use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A.”
MPEP § 2106.04(c)(I) states that “if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception…”. To perform the markedly different characteristic analysis, MPEP § 2106.04(c)(II) states “The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties…”.
In this case, in claims 1-10, the homogenized form of the ingredients mixed together would still be a product of nature because as long as there are nature-based molecules found in the composition, the composition contains a mixture of products that are found in nature (the individual natural molecules) and thus must be evaluated as per the described analysis. As for Claim 12, in the form of a powder or solution would be a product of nature because dried plants or grapes can be crushed by falling and be crushed by rocks or animals to form a powder. A solution can be made when plants are crushed and form a juice, which is a solution. Mixing together various natural molecules doesn’t change those molecules per se; they are simply mixed together and thus would have the same characteristics as the same molecules prior to being mixed together.
Therefore, the answer to Step 2A, Prong One, is Yes.
Thus, the analysis must move to Step 2A, Prong Two, which asks if the claim recites additional elements that integrate the judicial exception into a practical application. As discussed in MPEP § 2106.04(d)(2) this evaluation is performed by identifying whether there are additional elements recited in the claim beyond the judicial exception and evaluating these additional elements to determine whether the claim as a whole integrates the exception into a practical application.
The homogenized composition of the different plants and vegetables together are non-natural. However, a composition can be used in many different ways and thus not integrate the judicial exception into a practical application. Thus, the answer to Step 2A, Prong Two, is No.
The analysis must then move to Step 2B which asks if claims recite additional elements that amount to significantly more than the judicial exception. MPEP § 2106.05 states that this evaluation is performed by “Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” In this case, the amounts of Claims 1-5, 7, 9 are amounts of molecules that can be found in grapes. The mixing of homogenized fruits is well understood, routine, and conventional method of making a product for supplementing nutrition such as a fruit juice or powder (see Liu, 2013, J American Society for Nutrition Adv Nutr, 4: 3845-3925). Thus, the answer to Step 2B is No. Therefore, the claims are not directed to patent eligible subject matter.
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)(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.
Claim(s) 1-4, 6, 7-9, and 12-14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ramirez et al. (US 20180271928 A1).
Ramirez et al. teaches a vitis vinifera fruit and red wine extract with bioactive compounds: 4.32 mg epicatechin, 2.72 mg catechin, 2.07 mg gallic acid, 0.9 mg trans-resveratrol, 0.47 mg rutin, 0.42 mg epsilon-viniferin, 0.28 mg, p-coumaric acid, 0.14 mg ferulic acid and 0.04 mg quercetin per gram. The at least 15% of flavanol monomers are catechins and epicatechins, which are 62%. The 0.42 mg epsilon-viniferin is at least 15 ppm. The mixture of molecules from extract of Vitis vinifera are all taught. Stilbenes at least 100 ppm is taught by trans resveratrol because resveratrol is 3,5,4′-trihydroxy-trans-stilbene. The ratio of Claim 4 is 7.04 to 0.42, which is about 16. The weight of Claim 3 is met. The polyphenols of vitis vinifera extract is at least 50%; thus, Claims 7 and 9 limitations are met. Grape extract would involve grape pomace and grape seed; thus, Claim 8 limitation is met. Grams is a powder unit; thus, Claim 12 is limitation is met. Grape is a food and food can be a drug; thus, Claims 13-14 limitations are met.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-4 and 6-14 are rejected under 35 U.S.C. 103 as being unpatentable over Ramirez et al. (US 20180271928 A1) further in view of von Maltzahn et al. (US 2016023702 A1).
Ramirez et al. teaches a vitis vinifera fruit and red wine extract with bioactive compounds: 4.32 mg epicatechin, 2.72 mg catechin, 2.07 mg gallic acid, 0.9 mg trans-resveratrol, 0.47 mg rutin, 0.42 mg epsilon-viniferin, 0.28 mg, p-coumaric acid, 0.14 mg ferulic acid and 0.04 mg quercetin per gram. The at least 15% of flavanol monomers are catechins and epicatechins, which are 62%. The 0.42 mg epsilon-viniferin is at least 15 ppm. The mixture of molecules from extract of Vitis vinifera are all taught. Stilbenes at least 100 ppm is taught by trans resveratrol because resveratrol is 3,5,4′-trihydroxy-trans-stilbene. The ratio of Claim 4 is 7.04 to 0.42, which is about 16. The weight of Claim 3 is met. The polyphenols of vitis vinifera extract is at least 50%; thus, Claims 7 and 9 limitation are met. Grape extract would involve grape pomace and grape seed; thus, Claim 8 limitation is met. Grams is a powder unit; thus, Claim 12 is limitation is met. Grape is a food and food can be a drug; thus, Claims 13-14 limitations are met.
However, Ramirez et al. does not teach licorice extract and maltodextrin.
von Maltzahn et al. teaches a pharmaceutical compositions and medical foods thereof, optionally comprising micronutrients, polyphenols, prebiotics, probiotics, or other agents are provided and methods of making same (Abstract) comprising a single dosage with maltodextrin [0555] and flavoring agent licorice [0314].
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add maltodextrin and licorice because von Maltzahn et al. teaches a pharmaceutical compositions and medical foods thereof, optionally comprising micronutrients, polyphenols, prebiotics, probiotics, or other agents are provided and methods of making same (Abstract) comprising a single dosage with maltodextrin [0555] and flavoring agent licorice [0314]. One would have been motivated to make composition with maltodextrin and licorice for the expected benefit of making a composition of polyphenols from vitis vinifera as taught by Ramirez et al. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Ramirez et al. (US 20180271928 A1) and von Maltzahn et al. (US 20160213702 A1) as applied to claims 1-4 and 6-14 above, and further in view of Lemaire et al. (US 8980342 B2).
The teachings of Ramirez et al. and von Maltzahn et al. are set forth above and applied as before.
The combination of Ramirez et al. and von Maltzahn et al. do not specifically teach the flavanol dimers (PAC B1 and B2) is greater than 5%.
Lemaire et al. teaches a grape extract comprising concentrations of flavanol monomers of greater than about 5% by weight, and more preferably within a range from about 12% by weight to about 50% by weight, and a concentration of flavanol dimers preferably greater than about 2% by weight, and more preferably within a range from about 6% by weight to about 20% by weight. The flavanol monomers preferably include catechin, epicatechin, epicatechin gallate, and gallic acid. The flavanol dimers preferably include procyanidin B1, procyanidin B2, procyanidin B3, procyanidin B4, and procyanidin B2-O-gallate (Abstract). Nutritional profile of the grape extract (Powergrape .TM. grape extract, NATUREX). Loss of drying [JO Mar. 11, 1977] 3.50% Proteins (Nx6.25) [JO Mar. 11, 1977] 1.40% Lipids [JO Mar. 11, 1977] 0.30% Ash [JO Mar. 11, 1977] 1.38% Soluble sugars [JO Mar. 11, 1977] 3.00% Total polyphenols [Folin-Ciocalteau] 90.42% Including flavanol monomers [HPLC] 12.00% Including flavanol dimers[HPLC] 6.00% TOTAL 100.00% (Table 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add flavanol dimers because Lemaire et al. teaches a grape extract comprising concentrations of flavanol monomers of greater than about 5% by weight, and more preferably within a range from about 12% by weight to about 50% by weight, and a concentration of flavanol dimers preferably greater than about 2% by weight, and more preferably within a range from about 6% by weight to about 20% by weight. The flavanol monomers preferably include catechin, epicatechin, epicatechin gallate, and gallic acid. The flavanol dimers preferably include procyanidin B1, procyanidin B2, procyanidin B3, procyanidin B4, and procyanidin B2-O-gallate (Abstract). Nutritional profile of the grape extract (Powergrape .TM. grape extract, NATUREX). Loss of drying [JO Mar. 11, 1977] 3.50% Proteins (Nx6.25) [JO Mar. 11, 1977] 1.40% Lipids [JO Mar. 11, 1977] 0.30% Ash [JO Mar. 11, 1977] 1.38% Soluble sugars [JO Mar. 11, 1977] 3.00% Total polyphenols [Folin-Ciocalteau] 90.42% Including flavanol monomers [HPLC] 12.00% Including flavanol dimers[HPLC] 6.00% TOTAL 100.00% (Table 2). One would have been motivated to make composition with flavanol dimers for the expected benefit of making a composition of polyphenols from vitis vinifera as taught by Ramirez et al. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
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.
Claims 1-9, 11-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11266705 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because molecules in the extracts of vitis vinifera mixture are not all present.
U.S. Patent No. 11266705 B2 teaches:
1. A nutritional or therapeutic agent consisting essentially of a mix obtained from Vitis vinifera and Vaccinium angustifolium extracts, wherein the mix contains: at least 1% of catechins and/or epicatechins, the percentage being given by weight in relation to the total weight of the mix, at least 5 ppm (parts per million in the mix) of ferulic acid; and at least 200 ppm of resveratrol; malvidin 3-glucoside at a concentration of at least 300 ppm, at least 50 ppm of quercetin and/or quercetin glycosides, and at least 500 ppm of anthocyanidins; and wherein the nutritional or therapeutic agent formulated as a tablet, capsule, gel capsule, microcapsule, suspension, emulsion, food supplement, drink or food for humans or animals.
2. The agent according to claim 1, characterized in that the mix comprises at least 5% of catechins and/or epicatechins, the percentage being given by weight in relation to the total weight of the mix.
3. The agent according to claim 1, characterized in that the mix comprises at least 10 ppm (parts per million in the mix) of ferulic acid.
4. The agent according to claim 1, characterized in that the extract of Vitis vinifera has a flavanol polymer content of less than 0.5% by weight of the total weight of the polyphenols of the extract.
5. The agent according to claim 1, for use as a drug for humans or animals.
However, at least 15 ppm E-viniferin, maltodextrin are not taught.
These references show that it was well known in the art at the time of the invention to use the claimed ingredients in compositions of extracts of vitis vinifera. It is well known that it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is useful for the same purpose. The idea for combining them flows logically from their having been used individually in the prior art. In re Pinten, 459 F.2d 1053, 173 USPQ 801 (CCPA 1972); In re Susi, 58 CCPA 1074, 1079-80; 440 F.2d 442, 445; 169 USPQ 423, 426 (1971); In re Crockett, 47 CCPA 1018, 1020-21; 279 F.2d 274, 276-277; 126 USPQ 186, 188 (1960).
Based on the disclosure by these references that these substances are used in compositions to treat cancer, an artisan of ordinary skill would have a reasonable expectation that a combination of the substances would also be useful in creating compositions from extracts of Vitis vinifera. Therefore, the artisan would have been motivated to combine the claimed ingredients into a single composition. No patentable invention resides in combining old ingredients of known properties where the results obtained thereby are no more than the additive effect of the ingredients. See In re Sussman, 1943 C.D. 518; In re Huellmantel 139 USPQ 496; In re Crockett 126 USPQ 186.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add maltodextrin because excipients or coating agents, such as maltodextrin are used for composition structure (TABLE 4). One would have been motivated to make composition with maltodextrin for the expected benefit of making a composition of polyphenols from vitis vinifera as taught by U.S. Patent No. 11266705 B2. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Claims 1-9, 11-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11263200 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because molecules in the extracts of vitis vinifera mixture are not all present.
U.S. Patent No. 11263200 B2 teaches:
1. A nutritional or therapeutic agent comprising at least one molecule mix obtained from Vitis vinifera and Vaccinium angustifolium extract, wherein the mix contains: at least 1% of catechins and/or epicatechins, the percentage being given by weight in relation to the total weight of the mix, at least 5 ppm (parts per million in the mix) of ferulic acid, malvidin 3-glucoside at a concentration of at least 300 ppm, resveratrol, at least 50 ppm of quercetin and/or quercetin glycosides, and at least 500 ppm of anthocyanidins, wherein the nutritional or therapeutic agent formulated as a tablet, capsule, gel capsule, powder, solution, microcapsule, suspension, emulsion, food supplement, drink and food for humans or animals.
2. The nutritional or therapeutic agent of claim 1, wherein the molecule mix comprises at least 5% of catechins and/or epicatechins, the percentage being given by weight in relation to the total weight of the mix.
3. The nutritional or therapeutic agent according to claim 1, wherein the molecule mix comprises at least 10 ppm (parts per million in the mix) of ferulic acid.
4. The nutritional or therapeutic agent of claim 1, wherein the mix is formed by: an extract of Vitis vinifera and/or an extract of Vaccinium angustifolium, and an extract obtained from Vitis vinifera and Vaccinium angustifolium.
5. The nutritional or therapeutic agent of claim 4, wherein the extract of Vitis vinifera has a flavanol polymer content of less than 0.5% by weight of the total weight of the polyphenols of the extract.
6. The nutritional or therapeutic agent of claim 1, wherein the molecule mix comprises: at least 200 ppm of resveratrol.
7. A therapeutic composition for humans or animals, the therapeutic composition comprising the nutritional or therapeutic agent of claim 1.
However, at least 15 ppm E-viniferin, maltodextrin are not taught.
These references show that it was well known in the art at the time of the invention to use the claimed ingredients in compositions of extracts of vitis vinifera. It is well known that it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is useful for the same purpose. The idea for combining them flows logically from their having been used individually in the prior art. In re Pinten, 459 F.2d 1053, 173 USPQ 801 (CCPA 1972); In re Susi, 58 CCPA 1074, 1079-80; 440 F.2d 442, 445; 169 USPQ 423, 426 (1971); In re Crockett, 47 CCPA 1018, 1020-21; 279 F.2d 274, 276-277; 126 USPQ 186, 188 (1960).
Based on the disclosure by these references that these substances are used in compositions to treat cancer, an artisan of ordinary skill would have a reasonable expectation that a combination of the substances would also be useful in creating compositions from extracts of Vitis vinifera. Therefore, the artisan would have been motivated to combine the claimed ingredients into a single composition. No patentable invention resides in combining old ingredients of known properties where the results obtained thereby are no more than the additive effect of the ingredients. See In re Sussman, 1943 C.D. 518; In re Huellmantel 139 USPQ 496; In re Crockett 126 USPQ 186.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add maltodextrin because excipients or coating agents, such as maltodextrin are used for composition structure (TABLE 4). One would have been motivated to make composition with maltodextrin for the expected benefit of making a composition of polyphenols from vitis vinifera as taught by U.S. Patent No. 11263200 B2. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Claims 1-4 and 6-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 19 of copending Application No. 17/295535 (US 20220016195 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because molecules in the extracts of vitis vinifera mixture are not all present.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
However, at least 15 ppm E-viniferin, maltodextrin are not taught.
19. A composition comprising a mixture of molecules obtained from Vitis vinifera and Vaccinum angustifolium, said mixture comprising: at least 1% of catechins and/or epicatechins, the percentage being given by weight relative to the total weight of the mixture, at least 5 ppm (parts per million in the mixture) of ferulic acid, and at least 200 ppm of resveratrol, for single-dose use taken on a one-time, non-repeated basis to improve or maintain the cognitive functions of a sick human being or of a sick animal, the single dose being taken less than 5 hours before the desired effect.
These references show that it was well known in the art at the time of the invention to use the claimed ingredients in compositions of extracts of vitis vinifera. It is well known that it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is useful for the same purpose. The idea for combining them flows logically from their having been used individually in the prior art. In re Pinten, 459 F.2d 1053, 173 USPQ 801 (CCPA 1972); In re Susi, 58 CCPA 1074, 1079-80; 440 F.2d 442, 445; 169 USPQ 423, 426 (1971); In re Crockett, 47 CCPA 1018, 1020-21; 279 F.2d 274, 276-277; 126 USPQ 186, 188 (1960).
Based on the disclosure by these references that these substances are used in compositions to treat cancer, an artisan of ordinary skill would have a reasonable expectation that a combination of the substances would also be useful in creating compositions from extracts of Vitis vinifera. Therefore, the artisan would have been motivated to combine the claimed ingredients into a single composition. No patentable invention resides in combining old ingredients of known properties where the results obtained thereby are no more than the additive effect of the ingredients. See In re Sussman, 1943 C.D. 518; In re Huellmantel 139 USPQ 496; In re Crockett 126 USPQ 186.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add maltodextrin because excipients or coating agents, such as maltodextrin are used for composition structure [0078]. One would have been motivated to make composition with maltodextrin for the expected benefit of making a composition of polyphenols from vitis vinifera as taught by U.S. 20220016195 A1. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Conclusion
No claim is allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached on Monday-Friday 9-5:30 PM.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655