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/Restriction
Applicant’s election of the invention of species b in the reply filed on 11/04/2025 is acknowledged. 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)). Where applicant claims two or more independent or distinct inventions and as a result of amendment to the claims, he or she cancels the claims to one or more of such inventions, leaving claims to one invention, and such claims are acted upon by the examiner, the claimed invention thus acted upon is elected.
Priority
This application repeats a substantial portion of prior Application No. 17/667,880, filed 02/09/2022, and adds disclosure not presented in the prior application. Because this application names the inventor or at least one joint inventor named in the prior application, it may constitute a continuation-in-part of the prior application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 01/26/2023 has been considered by the examiner.
Claim Objections
Claims 14-16, 18-19, 21 and 24 are objected to because of the following informalities:
The claims do not use standard scientific nomenclature. Italics are used for bacterial and viral taxa at the level of family and below. In particular:
In particular:
A genus (or genus group) is always italicized and capitalized, even when not paired with a species or subspecies name, and whether given in full or abbreviated: Allosaurus, Falco, Anas, and the "E." in E. coli. Supergenus and subgenus, when applicable, are treated the same way. A genus section is only capitalized.
Any lower (infrageneric) taxa are italicized, i.e. species and (when applicable) subspecies and other formal infraspecific names. They are never capitalized, even where based on a proper name (except for viruses). Examples: the tulip tree is Liriodendron chinense; all modern humans are Homo sapiens; the peninsula newt is Notophthalmus viridescens piaropicola. Except in viruses, a species (or subspecies) name is always preceded by the genus name, or a capitalized abbreviation of it when the meaning of the abbreviation is clear in context. Viruses are so narrowly named at the species level (e.g. Human herpesvirus-5) that including the genus would usually be superfluous, and they are capitalized like a genus. The word "virus" at the end of a viral species or genus name is not capitalized.
Interpolations that are not names but terms or symbols, such as "cf.", "var.", "×", "+", and the parentheses (round brackets) around interpolated names (covered in the next entry), are not italicized: Ninox cf. novaeseelandiae; the interpolation "subsp." is conventionally only used for plantsand bacteria: Eschscholzia californica subsp. mexicana and Bacillus cereus subsp. mycoides, versus Equus quagga borensis, a zebra subspecies.
Claim 15 recites “mannanase enzyme” and “mannase” as separate components but these terms are synonyms of each other.
Claim 16 recites “luo han guo” and “monk fruit” and “siraitia grosvenorii” as separate components but these terms are synonyms of each other.
Claim 18 recites “Acacia Senegal gum” and “Acacia gum” as separate components but these terms are synonyms of each other.
Claim 19 recites “ginger” and “Zingiber officinale” as separate components but these terms are synonyms of each other.
Appropriate correction is required.
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.
Claims 14-16 and 21-24 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.
Claims 14-16 and 21-24 recite a Markush-type grouping “at least one selected from the group of […] and combinations thereof”. However, the unprecedented size and heterogeneity of the component lists (e.g. 80+ components) fails to set clear boundaries for the claim, rendering the scope of the claim indefinite. The Markush group is so expansive that persons skilled in the art cannot determine the metes and bounds of the claimed invention (e.g. the claims recite a mixture of nutritional, food, cosmetic, pharmaceutical, cleaning, surfactant, pesticide, and microorganisms limitations within the Markush group).
In claim 14, the terms: “marine organism derived peptides”, “alfalfa derivatives”, “fungi oil”, “marine organism oil”, “glycogen supplement”, “phytoestrogen”, “ketone”, “soluble […] essence derived from […] oil” are indefinite because the specification does not teach how to use all members suggested by the generic language of the claim and such genera covers thousands of different permutations. The term “Lactobacillus spp.” is a broad generic term without specific species or functional limits.
In claim 15, the terms “a compound of caprylic acid and glycerin”, “compound of capric acid and glycerin”, and “grain derivative” are indefinite for encompassing a large number of compositions without clear, definable properties.
The use of the term “zamea propanediol” in claim 15 (line 15), which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term. Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
In claim 16, the terms: “marine organism derived peptides”, “alfalfa derivatives”, “fungi oil”, “marine organism oil”, “glycogen supplement”, “phytoestrogen”, “ketone”, “soluble […] essence derived from […] oil” are indefinite for encompassing a large number of compositions without clear, definable properties. The term “Bifidobacterium spp.” is a broad generic term without specific species or functional limits.
In claim 21, the terms “glutamic acid derived compound”, “trisodium salt”, “benzenesulfonic acid C10-C16-alkyl derivatives” are indefinite for encompassing a large number of compositions without clear, definable properties. The term “Streptococcus spp.” And “Saccharomyces spp.” is a broad generic term without specific species or functional limits.
In claim 22, the term “syrup solid” is indefinite for encompassing a large number of compositions without clear, definable properties
Claim Rejections - 35 USC § 102
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 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.
Claim 14 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fitzgerald (US Patent No. 1,878,766).
In regard to claim 14, Fitzgerald teaches a composition comprising:
an acid (e.g. citric acid, boric acid), sodium bicarbonate, and menthol [lines 24-42; Formula No. 1].
Claim 15 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Slavtcheff et al. (US Patent No. 6,451,331)
In regard to claim 15, Slavtcheff et al. teach a composition comprising:
an acid (e.g. citric acid), sodium bicarbonate, and sodium cocoyl isethionate [col. 9, Example 1, Table I].
Claim 16 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Witzel et al. (US Patent No. 4,127,645).
In regard to claim 16, Witzel et al. teach a composition comprising:
an acid (e.g. citric acid), sodium bicarbonate, and watermelon essence (e.g. watermelon flavor) [col. 3, table, Example 3].
Claim 17 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nurnberg (US Patent No. 6,565,881 – cite no. 6 in 01/26/2023 IDS).
In regard to claim 17, Nurnberg teaches a composition comprising:
36.7% by mass sodium bicarbonate, an acid (e.g. citric acid), and tea tree oil [col. 5, lines 60-65, Manufacturing Example 1].
Claim 18 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Olof Melander et al. (US Patent No. 3,073,744).
In regard to claim 18, Olof Melander at al. teach a composition comprising:
44.5% by mass sodium bicarbonate, an acid (e.g. tartaric acid), and sodium cyclamate [col. 3, lines 50-66, Example 4].
Claim 21 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Miller (US Patent No. 3,630,924).
In regard to claim 21, Miller teaches a composition comprising:
20% by mass sodium bicarbonate, an acid (e.g. adipic acid), and potassium persulfate [col. 4, lines 5-10, Example I].
Claim 22 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schobel (US Patent No. 4,687,662).
In regard to claim 22, Miller teaches a composition comprising:
47.77% by mass sodium bicarbonate, an acid (e.g. citric acid), and acetaminophen [col. 7, line 55 – col. 8, line 5, Inventive Run 1].
Claim 23 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wang (CN-101322557).
In regard to claim 23, Wang teaches a composition comprising:
40% by mass sodium bicarbonate, an acid (e.g. citric acid), and magnesium (II) gluconate [pg. 3, 4th para.].
Claim 24 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zinsser (US RE05057).
In regard to claim 24, Zinsser teaches a composition (e.g. compound) comprising:
61.5% by mass sodium bicarbonate (e.g. bicarbonate of soda), an acid (e.g. tartaric acid), and gum arabic [col. 1, last para.].
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 19 is rejected under 35 U.S.C. 103 as being unpatentable over Nurnberg (US Patent No. 6,565,881 – cite no. 6 in 01/26/2023 IDS).
In regard to claim 19, Nurnberg teaches a composition comprising:
35% by mass sodium bicarbonate, an acid (e.g. citric acid), and green tea [col. 6, lines 35-50, Manufacturing Example 3]. “A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) [See MPEP 2144.05].
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Graziella (EP-0363569-A1)
In regard to claim 20, Graziella teaches a composition, comprising:
sodium bicarbonate between 5% by mass to 60% by mass, an acid (e.g. tartaric acid), and spirulina [pg. 8, clm. 17]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) [See MPEP 2144.05].
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 17-20 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 19-22, respectively of copending Application No. 18/377,386 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
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 15 and 16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13 and 12, respectively of copending Application No. 18/377,386 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the sub-genus claimed in the conflicting application anticipates the claimed genus in the application being examined.
the claim being examined is, for example, generic to a species or sub-genus claimed in a conflicting patent or application, i.e., the entire scope of the reference claim falls within the scope of the examined claim. In such a situation, a later patent to a genus would, necessarily, extend the right to exclude granted by an earlier patent directed to a species or sub-genus. In this type of nonstatutory double patenting situation, an obviousness analysis is not required for the nonstatutory double patenting rejection. The nonstatutory double patenting rejection in this case should explain the fact that and, therefore, a patent to the genus would improperly extend the right to exclude granted by a patent to the species or sub-genus should the genus issue as a patent after the species or sub-genus.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
the claim being examined is, for example, generic to a species or sub-genus claimed in a conflicting patent or application, i.e., the entire scope of the reference claim falls within the scope of the examined claim. In such a situation, a later patent to a genus would, necessarily, extend the right to exclude granted by an earlier patent directed to a species or sub-genus. In this type of nonstatutory double patenting situation, an obviousness analysis is not required for the nonstatutory double patenting rejection. The nonstatutory double patenting rejection in this case should explain the fact that the species or sub-genus claimed in the conflicting patent or application anticipates the claimed genus in the application being examined and, therefore, a patent to the genus would improperly extend the right to exclude granted by a patent to the species or sub-genus should the genus issue as a patent after the species or sub-genus.
Conclusion
It appears the inventor(s) filed the current application pro se (i.e., without the benefit of representation by a registered patent practitioner). While inventors named as applicants in a patent application may prosecute the application pro se, lack of familiarity with patent examination practice and procedure may result in missed opportunities in obtaining optimal protection for the invention disclosed. The inventor(s) may wish to secure the services of a registered patent practitioner to prosecute the application, because the value of a patent is largely dependent upon skilled preparation and prosecution. The Office cannot aid in selecting a patent practitioner.
A listing of registered patent practitioners is available at https://oedci.uspto.gov/OEDCI/. Applicants may also obtain a list of registered patent practitioners located in their area by writing to Mail Stop OED, Director of the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Smith whose telephone number is (571)270-3599. The examiner can normally be reached Monday - Friday 9:30am-6pm EST.
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, Amber R Orlando can be reached at (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 November 7, 2025