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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/18/2025 has been entered.
Claims 2-21 are pending. Claims 2-8 and 21 are examined on the merits. Claims 9-20 are withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejection not reiterated below are hereby withdrawn.
Election/Restrictions
Applicant’s election without traverse of Group I (Claims 1-8) in the reply filed on May 29, 2024 is acknowledged.
Claims 9-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim.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 May 29, 2024.
Response to Amendment
Claim Rejections - 35 USC § 103
Claim(s) 2-8 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Borse et al. (WO 2005070236 A1) further in view of Ribeiro et al. (2019, Food and Bioprocess Technology, 12: 1381-1394) and Li et al. (CN 109220781 A). This is not a new rejection but with slight modification.
Borse et al. teaches a process of preparing a beverage concentrate in powder form with rosemary, which has antioxidant activities (page 1, lines 4-16). The process comprises the step of drying rosemary, pulverizing the dried rosemary, extracting in distilled water, emulsifying the aqueous emulsion, drying the concentrate, blending the concentrated filtrate with carrier (page 3, lines 18-31), drying concentrated blended extracts, obtaining the rosemary herbal beverage powder (page 4, lines 1-8). The aqueous extract of rosemary is boiled in water (page 5, lines 8-9). The emulsion is spray dried (page 5, lines 21-22). Blending is homogenizing.
However, Borse et al. does not teach elderberries extracted with aqueous alcohol, stabilizers gum Arabic, thickening agent maltodextrin, and emulsifier sunflower lecithin, rosemary extracting temp at 65-70 degree C, pH 4.0-5.0.
Ribeiro et al. teaches a process of extracting elderberry, which is known for neutralizing free radical activities (page 1380, right column), comprising milled elderberry extracted in water and ethanol, centrifuged, then spray dried (page 1383, Extraction Procedure, Spray Drying Technique). The microencapsulating agents for protecting the active substance and increase its stability are gum acacia, maltodextrin, soya protein powder, soy milk powder, isolated soya protein (page 1382, left column, last 5 lines), modified chitosan, sodium alginate, gum arabic (page 1383, left column, Reagents and Preparation of the Solutions). Soy contains lecithin. Elderberry extracted with water and ethanol would inherently have a pH with a range of 4.73 to 5.19 (see https://fyi .extension.wisc.edu/safefood/2020/06/05/elderberries-beautiful-to-look-at-not-for-canning/).
Li et al. teaches a method of extracting rosemary in distilled water at 60-70 degree C (Claim 9).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention combine the composition of the two processes because rosemary extract and elderberry extract are known to have antioxidant activities. One would have been motivated to make a process of combining two extracts for the expected benefit of increasing antioxidant activities as taught by Ribeiro et al. who teaches a process of extracting elderberry, which is known for neutralizing free radical activities (page 1380, right column) and Borse et al. teaches a process of preparing a beverage concentrate in powder form with rosemary, which has antioxidant activities (page 1, lines 4-16). 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.
Although the references do not explicitly teach the composition in the form of sunflower lecithin, since soya protein powder themselves are a food product with lecithin, it would clearly have been a natural and obvious choice for a form of the reference composition. Accordingly, it would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to use the composition as beneficially taught by Ribeiro et al. as a food in addition to a medicine. The adjustment of particular conventional working conditions (e.g., determining suitable formulations and/or which anticancer compositions to combine with the composition and/or appropriate labeling of the food product) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
The references also do not specifically teach performing the process in the temperature range claimed by applicant. Li et al. teaches a method of extracting rosemary in distilled water at 60-70 degree C (Claim 9). The process in the temperature range is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, optimization of general conditions is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal process in the time span and temperature range to use in order to best achieve the desired results. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of applicant’s invention.
Response to Arguments
Applicant argues that the references use organic solvents and not water for extracting rosemary.
In response to Applicant’s argument, Li et al. teaches a method of extracting rosemary in distilled water at 60-70 degree C (Claim 9). Thus, the reference teaches the use of water extraction for rosemary. In addition, the claims are not limited to water extraction only for the extraction of the elderberry anthocyanin; therefore, the limitation of a water extract is not read into the claims.
Applicant argues that there is no reason to combine the references.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the composition of the two processes because rosemary extract and elderberry extract are known to have antioxidant activities. One would have been motivated to make a process of combining two extracts for the expected benefit of increasing antioxidant activities as taught by Ribeiro et al. who teaches a process of extracting elderberry, which is known for neutralizing free radical activities (page 1380, right column) and Borse et al. teaches a process of preparing a beverage concentrate in powder form with rosemary, which has antioxidant activities (page 1, lines 4-16). Thus, there is a reason to combine the references.
Applicant argues that there is unexpected result from combining rosemarinic acid with elderberry extract.
In response to Applicant’s argument, rosemary extract and elderberry extract are known to have antioxidant activities. For the activities to be unexpected Applicant needs to show data. The mere use of argument would not be convincing. Ribeiro et al. teaches a process of extracting elderberry with consideration of keeping the activities of the antioxidants active throughout the extraction process. Factors to consider are the pH, temperature, solvents involved, etc. (see p.1382, paragraph 1). Please submit data to support your argument with an affidavit.
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