DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments
Status of Claims
The amendment, filed on 6 July 2026, is acknowledged.
Claim 1 has been amended.
Claims 1-5, 7-8, and 10 are pending and under consideration in the instant Office Action, to the extent of the following previously elected species:
the specific first mineral zinc;
the specific first amino acid L-aspartic acid;
the specific first polysaccharide inulin;
the specific slow release coating alginate;
the specific further components vitamins A, C, and D;
the specific second mineral iron;
the specific second amino acid L-glycine; and
the specific second polysaccharide fructooligosaccharide.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 103
The rejection of claims 1-5, 7-8, and 10 under 35 U.S.C. § 103 is withdrawn in view of Applicant’s amendment to claim 1 and in favor of the new grounds of rejection below.
Nonstatutory Double Patenting Rejections
The nonstatutory double patenting rejection of claims 1-5, 7-8, and 10 is withdrawn in view of Applicant’s amendment to claim 1 and in favor of the new grounds of rejection below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6 July 2026, was filed after the mailing date of the non-final Office Action on 6 February 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
New Grounds of Rejection
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.
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 1-5, 7-8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Rabovsky et al. (U.S. Patent No. 11,207,388 B2, published on 28 December 2021, cited by Applicant in the IDS filed on 11 July 2024, hereafter referred to as Rabovsky) in view of Hebei Werleigh Animal Pharmaceutical Group Co. Ltd. (Chinese Patent Application Publication No. CN 109331174 A, published on 15 February 2019, provided by Applicant in the IDS filed on 6 July 2026, references to English translation, hereafter referred to as Hebei).
Rabovsky teaches dietary supplement compositions useful for human or animal consumption (Abstract). The dietary supplement may comprise one or more mineral-amino acid compound/polysaccharide complexes, in which the mineral-amino acid compounds are conjugated to one or more polysaccharides (claim 1 and col. 2, lines 21-23). In some embodiments, the mineral may be iron or zinc (col. 27, lines 45-53), the amino acid may be L-aspartic acid or L-glycine (col. 27, lines 60-66), and the polysaccharide may be inulin or oligofructose, which is interpreted as being equivalent to the elected fructooligosaccharide (col. 28, lines 7-10 and Table that spans col. 34-35). Rabovsky further teaches that the dietary supplement may contain additional ingredients, including vitamin A, vitamin C, and vitamin D (col. 29, lines 21-25). Finally, Rabovsky teaches that their composition may have a coating “designed to prevent moisture adsorption and minimize the water activity of the final blend” and “to deliver the contents [of the composition] to the intestines of a mammal following oral administration”, which is interpreted as being equivalent to a “slow release” coating (col. 6, lines 5-9 and col. 9, lines 39-43). In some embodiments the coating is sodium alginate (col. 6, line 14).
Rabovsky does not teach a particle size of their invention. This deficiency is offset by the teachings of Hebei.
Hebei teaches dietary supplements in the form of sustained release tablets which comprise mineral-amino acid compounds including iron and zinc as the mineral and glycine, methionine, and lysine as the amino acid (claims 1-3). When preparing the tablets, Hebei teaches sieving dried components through a 20-40 mesh screen (claim 8). Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “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). These guidelines apply to the particle size taught by Hebei, which falls within the range of <80 mesh recited in instant claim 1.
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to modify the invention of Rabovsky to use particles of a size 20-40 mesh in view of the teachings of Hebei because the use of a known technique in similar inventions yields predictable results. Rabovsky teaches a dietary supplement composition that may comprise one or more mineral-amino acid compound/polysaccharide complexes, in which the mineral-amino acid compounds are conjugated to one or more polysaccharides, with the minerals being selected from iron and zinc, the amino acid being selected from L-aspartic acid or L-glycine, and the polysaccharide being selected from inulin or oligofructose. Rabovsky further teaches that their composition may comprise the additional ingredients vitamin A, vitamin C, and vitamin D and that their composition may have a coating which comprises sodium alginate.
In view of the teachings of Hebei, a person of ordinary skill would be motivated to sieve their composition to the size of 20-40 mesh because Rabovsky does not teach an appropriate size for the components in their composition and Hebei provides missing information that an ordinary artisan would require to complete their invention. In addition, Hebei teaches this size to be suitable for dietary supplement compositions that comprise mineral-amino acid complexes, which the ordinary artisan would recognize as applicable to the invention of Rabovsky. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 1-5, 7-8, and 10 in view of the teachings of Rabovsky and Hebei.
Claims 1-5, 7-8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Rabovsky et al. (U.S. Patent No. 8,273,393 B2, published on 25 September 2012, cited by Applicant in the IDS filed on 11 July 2024, hereafter referred to as Rabovsky II) in view of Hebei (Chinese Patent Application Publication No. CN 109331174 A, published on 15 February 2019, provided by Applicant in the IDS filed on 6 July 2026, references to English translation), Kruger et al. (Exp. Biol. Med. 2003, 228, 683., provided by Applicant in the IDS filed on 11 July 2024, hereafter referred to as Kruger) and Parreidt et al. (Foods 2018, 7, 170., hereafter referred to as Parreidt).
Rabovsky II teaches a complex of one or more mineral-amino acid compounds conjugated to one or more polysaccharides as dietary supplements (claim 1 and Abstract). The mineral may be zinc or iron (claims 7, 10, and 12-17, col. 1, line 61-col. 2, line 4, and col. 5, lines 10-11), the amino acid may be L-aspartic acid or L-glycine (col. 5, lines 11-17), and the polysaccharide may be inulin or a polyfructose (col. 5, lines 17-21). Finally, Rabovsky II teaches their complex to comprise additional ingredients including vitamin A, C, and D (claims 9-10 and 12-17 and col. 2, lines 4-5).
Rabovsky II does not teach a particle size of their composition, the polysaccharide to be fructooligosaccharides, nor the complex to have a coating. These deficiencies are offset by the teachings of Hebei, Kruger, and Parreidt.
Hebei has been described above.
Kruger teaches the effect of fructooligosaccharides on calcium bioavailability in growing rats (Title and Abstract). Maximizing bone mass during adolescence is taught to be vital to preventing osteoporosis later in life and is strongly correlated with the bioavailability of calcium (pg. 683, right column, para. 1). Kruger assessed the retention of calcium in rats fed with diets containing inulin and fructooligosaccharides (FOS) and its impact on bones and collagen (pg. 633, right column, para. 3 - pg. 684, left column, para. 3). The results of the study demonstrated that inulin “increased calcium absorption significantly compared with [the] control” and that FOS significantly decreased Type I collagen cross-link excretion, which is indicative of bone resorption, and increased bone density (pg. 687, right column, para. 1).
Parreidt teaches the utility of edible alginate films and coatings, including improving/maintaining quality and extending the shelf-life of edible products by “reducing dehydration (as a sacrificial moisture agent), controlling respiration, enhancing product appearance, improving mechanical properties, etc.” (Abstract). Alginates are taught to be naturally occurring, indigestible polysaccharides which are classified as generally regarded as safe (GRAS) by the U.S. Food and Drug Administration, and are frequently used in food, beverage, and pharmaceutical industries (pg. 3-4, Alginate). The properties of alginates allow incorporation of natural and/or chemical additives when used as films and/or coatings, including plasticizers, surfactants, antimicrobials, antioxidants, flavors, and nutritional improvements (pg. 6-13, Additives). In addition to providing a moisture barrier (pg. 24) and gaseous barrier (pg. 25), Parreidt teaches that edible alginate coatings can be used to slowly release active compounds over an extended period of time, which has been utilized to slowly release molecules such as glucose, insulin, potassium sorbate, and lemongrass oil, among other species (pg. 26, Active Compound Release Applications). Parreidt concludes that edible alginate coatings can be used to efficiently decrease evaporation of water, loss of desirable odor and flavor, and prevent microorganism growth (pg. 27, Conclusions).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Kruger and Parreidt with the invention of Rabovsky II to arrive at the claimed invention because combining prior art elements according to known methods to impart known benefits yields predictable results. Rabovsky II taught dietary supplements containing mineral-amino acid compounds conjugated to one or more polysaccharides, which may be zinc or iron, L-aspartic acid or L-glycine, and inulin, respectively, as well as the additional components vitamins A, C, and D.
In view of the teachings of Hebei, a person of ordinary skill would be motivated to sieve their composition to the size of 20-40 mesh because Rabovsky II does not teach an appropriate size for the components in their composition and Hebei provides missing information that an ordinary artisan would require to complete their invention. In addition, Hebei teaches this size to be suitable for dietary supplement compositions that comprise mineral-amino acid complexes, which the ordinary artisan would recognize as applicable to the invention of Rabovsky II. In view of the teachings of Kruger, one of ordinary skill would be motivated to select an FOS as the polysaccharide because Kruger teaches the oligosaccharides to improve bone density and calcium retention in subjects that ingest the molecule, which the ordinary artisan would recognize as beneficial in a dietary supplement.
Finally, a person of ordinary skill would be motivated to coat the invention of Rabovsky II with an edible alginate coating in view of the teachings of Parreidt because Parreidt teaches the coatings to be safe, allow the incorporation of beneficial molecules such as glucose, insulin, and potassium sorbate, allow the modification of active component release rates, and to protect the coated material from degradation, which the ordinary artisan would also recognize as beneficial in a dietary supplement. As a result, there is a reasonable expectation of success in arriving at the invention of claims 1-5, 7-8, and 10 in view of the teachings of Rabovsky II, Hebei, Kruger, and Parreidt.
Response to Arguments
The Applicant’s arguments, filed on 6 July 2026, have been fully considered but are not persuasive. Applicant argues in the para. that spans the bottom of pg. 6 and top of pg. 7 that the Rabovsky reference does not teach a coated complex. The Examiner disagrees because the Rabovsky reference teaches that embodiments of their invention may “include a coating designed to prevent moisture adsorption and minimize the water activity of the final blend” (col. 6, lines 5-9) and that the coating has the ability “to deliver the contents [of the composition] to the intestines of a mammal following oral administration” (col. 9, lines 39-43). Para. [0029] of the instant spec. discloses that a slow release coating “can control and/or delay mineral release from the complex, thus preventing or delaying dissolution or disintegration of the at least one mineral, compound, or complex in the stomach”. Therefore, the coating taught by Rabovsky is considered to be equivalent to the “slow release” coating recited in the instant claims and Applicant’s argument is not found to be persuasive.
In response to applicant's arguments against the references individually on pg. 7-8, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues in the para. that spans the bottom of pg. 7 and top of pg. 8 that the Kruger reference does not teach a composition containing a complex of a mineral-amino acid conjugated to a polysaccharide. The Kruger reference was used for its teachings regarding the utility of fructooligosaccharides and was not argued to teach a composition containing a complex of a mineral-amino acid conjugated to a polysaccharide. The rejection presented in the previous Office Action and remade above argued that using a fructooligosaccharide in the composition containing a complex of a mineral-amino acid conjugated to a polysaccharide taught by Rabovsky II would be obvious in view of the teachings of Kruger and Applicant’s argument is found to be unpersuasive.
Applicant also argues in this para. that the Parreidt reference teaches coating “whole food items” and not a complex of a mineral-amino acid conjugated to a polysaccharide. The Parreidt reference was not argued to teach coating a complex of a mineral-amino acid conjugated to a polysaccharide in the rejection above nor the rejection presented in the previous Office Action. The referenced rejections argued that coating the composition containing a complex of a mineral-amino acid conjugated to a polysaccharide taught by Rabovsky II with a coating comprising alginate would be obvious in view of the teachings of Parreidt.
Finally, Applicant argues in this para. that a person of ordinary skill would not consider combining the Kruger or Parreidt reference with the Rabovsky II reference. Guidelines on analogous and nonanalogous art are provided in MPEP § 2141.01(a). “In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103, the reference must be analogous art to the claimed invention.” In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). “A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention).” The Rabovsky II reference is directed to dietary supplements, the Kruger reference is directed to the impact of diets comprising fructooligosaccharides, and the Parreidt reference is directed to the properties and impact of edible alginate coatings. Applicant’s arguments are found to be unpersuasive because the properties of polysaccharides following consumption and properties of edible coatings are considered to be reasonably pertinent to dietary supplements designed to be ingested, therefore the Kruger and Parreidt references are considered analogous art to the Rabovsky II reference and appropriate to use in a rejection under 35 U.S.C. § 103.
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 1-5, 7-8, and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7-10, 12-20, 22-27, and 30 of U.S. Patent No. 8,273,393 B2 in view of Hebei (Chinese Patent Application Publication No. CN 109331174 A, published on 15 February 2019, provided by Applicant in the IDS filed on 6 July 2026, references to English translation), Kruger (Exp. Biol. Med. 2003, 228, 683.), and Parreidt (Foods 2018, 7, 170.).
U.S. Patent No. 8,273,393 B2 recites a composition comprising a complex of one or more mineral-amino acid compounds conjugated to one or more polysaccharides (claims 1, 7-10, 12-20, 22-27, and 30). The minerals may be zinc and iron (claims 8, 10, 12-17, and 22-23), the amino acid may be L-glycine and L-aspartic acid (claims 25-26), and the polysaccharide may be inulin (claims 27 and 30). Finally, Patent ‘393 recites the composition to comprise the additional ingredients vitamins A, C, and D (claims 9-10 and 12-20).
U.S. Patent No. 8,273,393 B2 does not recite a particle size of their composition, the polysaccharide to be fructooligosaccharide, nor the composition to be coated with alginate. These deficiencies are offset by the teachings of Hebei, Kruger, and Parreidt.
Hebei, Kruger, and Parreidt have been described above.
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Hebei, Kruger, and Parreidt with the invention of commonly assigned U.S. Patent ‘393 to arrive at the claimed invention because combining prior art elements according to known methods to impart known benefits yields predictable results. Patent ‘393 recited dietary supplements containing mineral-amino acid compounds conjugated to one or more polysaccharides, which may be zinc or iron, L-aspartic acid or L-glycine, and inulin, respectively, as well as the additional components vitamins A, C, and D.
In view of the teachings of Hebei, a person of ordinary skill would be motivated to sieve their composition to the size of 20-40 mesh because Patent ‘393 does not recite an appropriate size for the components in their composition and Hebei provides missing information that an ordinary artisan would require to complete their invention. In addition, Hebei teaches this size to be suitable for dietary supplement compositions that comprise mineral-amino acid complexes, which the ordinary artisan would recognize as applicable to the invention of ‘393. In view of the teachings of Kruger, one of ordinary skill would be motivated to select an FOS as the polysaccharide because Kruger teaches the oligosaccharides to improve bone density and calcium retention in subjects that ingest the molecule, which the ordinary artisan would recognize as beneficial in a dietary supplement.
Finally, a person of ordinary skill would be motivated to coat the invention of Patent ‘393 with an edible alginate coating in view of the teachings of Parreidt because Parreidt teaches the coatings to be safe, allow the incorporation of beneficial molecules such as glucose, insulin, and potassium sorbate, allow the modification of active component release rates, and to protect the coated material from degradation, which the ordinary artisan would also recognize as beneficial in a dietary supplement. As a result, there is a reasonable expectation of success in arriving at the invention of claims 1-5, 7-8, and 10 in view of the invention recited in claims 1, 7-10, 12-20, 22-27, and 30 of U.S. Patent No. 8,273,393 B2 and in view of the teachings of Hebei, Kruger, and Parreidt.
Claims 1-5, 7-8, and 10 are directed to an invention not patentably distinct from claim claims 1, 7-10, 12-20, 22-27, and 30 of commonly assigned U.S. Patent No. 8,273,393 B2 in view of the teachings of Hebei, Kruger, and Parreidt. Specifically, see above.
The U.S. Patent and Trademark Office may not institute a derivation proceeding in the absence of a timely filed petition. The USPTO normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411). Commonly assigned U.S. Patent No. 8,273,393 B2, discussed above, may form the basis for a rejection of the noted claims under 35 U.S.C. 102 or 103 if the commonly assigned case qualifies as prior art under 35 U.S.C. 102(a)(2) and the patentably indistinct inventions were not commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention.
In order for the examiner to resolve this issue the applicant or patent owner can provide a statement under 35 U.S.C. 102(b)(2)(C) and 37 CFR 1.104(c)(4)(i) to the effect that the subject matter and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. Alternatively, the applicant or patent owner can provide a statement under 35 U.S.C. 102(c) and 37 CFR 1.104(c)(4)(ii) to the effect that the subject matter was developed and the claimed invention was made by or on behalf of one or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention, and the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; the application must also be amended to disclose the names of the parties to the joint research agreement.
A showing that the inventions were commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention will preclude a rejection under 35 U.S.C. 102 or 103 based upon the commonly assigned case. Alternatively, applicant may take action to amend or cancel claims such that the applications, or the patent and the application, no longer contain claims directed to patentably indistinct inventions.
Claims 1-5, 7-8, and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, 19-20, and 22-23 of U.S. Patent No. 11,207,388 B2 in view of Rabovsky II (U.S. Patent No. 8,273,393 B2, published on 25 September 2012, cited by Applicant in the IDS filed on 11 July 2024), Hebei (Chinese Patent Application Publication No. CN 109331174 A, published on 15 February 2019, provided by Applicant in the IDS filed on 6 July 2026, references to English translation), Kruger (Exp. Biol. Med. 2003, 228, 683.), and Parreidt (Foods 2018, 7, 170.).
Commonly assigned U.S. Patent No. 11,207,388 recites a dietary supplement comprising one or more mineral-amino acid compounds conjugated to one or more polysaccharides (claim 1). The minerals may be iron or zinc and the polysaccharide may be oligofructose, which is equivalent to the elected fructooligosaccharide (claims 19-20 and 22-23). Finaly, Patent ‘388 recites the composition to comprise the additional components vitamins A, C, and D (claims 6 and 19-20).
U.S. Patent No. ‘388 does not recite the specific amino acid, the polysaccharide to be inulin, nor the composition to be coated with alginate. These deficiencies are offset by the teachings of Rabovsky II, Hebei, Kruger, and Parreidt.
Rabovsky II, Hebei, Kruger, and Parreidt have been described above.
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Rabovsky II and Parreidt with the invention recited in claims 1, 6, 19-20, and 22-23 of U.S. Patent No. 11,207,388 B2 to arrive at the invention of instant claims 1-5, 7-8, and 10 because combining prior art elements according to known methods to impart known benefits yields predictable results. Patent ‘388 recited dietary supplements containing mineral-amino acid compounds conjugated to one or more polysaccharides, that the minerals may be zinc or iron and the polysaccharide FOS, as well as comprising the additional components vitamins A, C, and D. In view of the teachings of Rabovsky II, one of ordinary skill would be motivated to try using L-glycine or L-aspartic acid as the amino acid in the composition of Patent ‘388 because Rabovsky II teaches the amino acids to be suitable for use in a complex with a mineral that is subsequently conjugated to a polysaccharide and provides missing information the ordinary artisan would need to complete the invention of Patent ‘388.
In view of the teachings of Hebei, a person of ordinary skill would be motivated to sieve their composition to the size of 20-40 mesh because Patent ‘388 does not recite an appropriate size for the components in their composition and Hebei provides missing information that an ordinary artisan would require to complete their invention. In addition, Hebei teaches this size to be suitable for dietary supplement compositions that comprise mineral-amino acid complexes, which the ordinary artisan would recognize as applicable to the invention of ‘388. In view of the teachings of Kruger, a person of ordinary skill would be motivated to use inulin alongside or in place of FOS as the polysaccharide because Kruger teaches both oligosaccharides to improve bone density and calcium retention in subjects that ingest the molecule, which the ordinary artisan would recognize as beneficial in a dietary supplement. Finally, one of ordinary skill would be motivated to coat the invention of Patent ‘388 with an edible alginate coating in view of the teachings of Parreidt because Parreidt teaches the coatings to be safe, allow the incorporation of beneficial molecules such as glucose, insulin, and potassium sorbate, allow the modification of active component release rates, and to protect the coated material from degradation, which the ordinary artisan would also recognize as beneficial in a dietary supplement. As a result, there is a reasonable expectation of success in arriving at the invention of claims 1-5, 7-8, and 10 in view of the invention recited in claims 1, 6, 19-20, and 22-23 of U.S. Patent No. 11,207,388 B2 and in view of the teachings of Rabovsky II, Hebei, Kruger, and Parreidt.
Claims 1-5, 7-8, and 10 are directed to an invention not patentably distinct from claim 1, 6, 19-20, and 22-23 of commonly assigned U.S. Patent No. 11,207,388 B2 in view of the teachings of Rabovsky II, Hebei, Kruger, and Parreidt. Specifically, see above.
The U.S. Patent and Trademark Office may not institute a derivation proceeding in the absence of a timely filed petition. The USPTO normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411). Commonly assigned U.S. Patent No. 11,207,388 B2, discussed above, may form the basis for a rejection of the noted claims under 35 U.S.C. 102 or 103 if the commonly assigned case qualifies as prior art under 35 U.S.C. 102(a)(2) and the patentably indistinct inventions were not commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention.
In order for the examiner to resolve this issue the applicant or patent owner can provide a statement under 35 U.S.C. 102(b)(2)(C) and 37 CFR 1.104(c)(4)(i) to the effect that the subject matter and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. Alternatively, the applicant or patent owner can provide a statement under 35 U.S.C. 102(c) and 37 CFR 1.104(c)(4)(ii) to the effect that the subject matter was developed and the claimed invention was made by or on behalf of one or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention, and the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; the application must also be amended to disclose the names of the parties to the joint research agreement.
A showing that the inventions were commonly owned or deemed to be commonly owned not later than the effective filing date under 35 U.S.C. 100(i) of the claimed invention will preclude a rejection under 35 U.S.C. 102 or 103 based upon the commonly assigned case. Alternatively, applicant may take action to amend or cancel claims such that the applications, or the patent and the application, no longer contain claims directed to patentably indistinct inventions.
Response to Arguments
The Applicant’s arguments, filed on 6 July 2026, have been fully considered but are not persuasive. In the section titled “Obviousness-type Double Patenting” spanning pg. 9-10, Applicant reiterates their arguments detailed above. For the reasons above, Applicant’s arguments are not found to be persuasive. Particularly relevant to Applicant’s arguments regarding the particle size, the new grounds of rejection above demonstrate that the claimed particle size would be obvious in view of the teachings of the Hebei reference.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sean J. Steinke, Ph.D., whose telephone number is (571) 272-3396. The examiner can normally be reached Mon. - Fri., 09:00 - 17:00 ET.
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, David Blanchard, can be reached at (571) 272-0827. 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.
/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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