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 .
This office action is in response to the amendment filed on March 31st, 2026. The applicant
has canceled claims 9 and 11. Claims 8, 10, and 12-20 are pending and are under examination.
Any objections or rejections not reiterated below are hereby withdrawn.
Withdrawal of Rejections
Applicant’s arguments filed March 31st, 2026, with respect to correcting informalities in the instant specification and adding a generic definition for “Sarravis® Core” have been considered and are persuasive. The objections to the instant specification has been withdrawn. The applicant has amended to specification to correct informalities noted by the examiner and to add the generic term for Sarravis® Core. In their remarks, the applicant recites that paragraph [00126] is further amended to add the generic term for Sarracenia , and that Sarracenia is properly identified with ® throughout, an implies that Sarracenia is a registered trademark. These amendments regarding the term “Sarracenia” do not appear in the instant specification amendments submitted on March 31st, 2026. However, such amendments are unnecessary because the term “Sarracenia” is not a registered trademark, and the term ”Sarracenia” is a scientific plant genus name known in the art.
Applicant’s arguments filed March 31st, 2026, with respect to the objection to claim 18 have been fully considered and are persuasive. The objection to claim 18 has been withdrawn. The applicant has amended claim 18 to make the phrase “Coronavirus Disease” lowercase.
Applicant’s arguments filed March 31, with respect to the rejection of claims 8 have been fully considered and are persuasive. The rejection of claims has been withdrawn. The applicant has amended claims 8, 19, and 20 to delete the relative term “about” which rendered claims 8, 19, and 20 indefinite, along with claims 12-18 which depend from claim 8.
Pending Objections and Rejections
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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 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.
I. Claims 8, 12-14, 16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al. (Oral Surgery, Oral Medicine, Oral Pathology and Oral Radiology 2016, 122 (5), e163); Palamara et al. (Antiviral Res. 1995, 27 (3), 237-253); Bede et al. (Inflamm. Res. 2008, 57, 279-286); and Poole and James (Clin. Ther. 2018, 40 (8), 1282-1298).
Applicant's arguments filed March 31st, 2026 have been fully considered but they are not persuasive. The obviousness of the subject matter recited in claims 8, 12-14, 16, and 18-20 is clarified below.
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 herpes simplex virus 1 (HSV-1) is broadly known in the art as a pathogen that infects humans. One of skill in the art would have been motivated to treat HSV-1. By the time of the effective filing date of the claimed invention, it was known in the art that the pitcher plant Sarracenia purpurea (Patel), glutathione (Palamara), magnesium (which increases glutathione blood concentration; Palamara and Bede) and acyclovir and valacyclovir (Poole and James) all have activity useful for treating HSV-1, and therefore are useful for the common purpose of treating HSV-1. One of skill in the art would have been motivated to combine these materials, as described by the cited references, to treat HSV-1. This motivation to combine is based on the shared utility of these materials for the purpose of treating HSV-1; therefore, it is irrelevant that some components are nutraceuticals and another component is a pharmaceutical drug.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
II. Claims 8, 10, 12-14, 16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al. (Oral Surgery, Oral Medicine, Oral Pathology and Oral Radiology 2016, 122 (5), e163); Palamara et al. (Antiviral Res. 1995, 27 (3), 237-253); Bede et al. (Inflamm. Res. 2008, 57, 279-286); and Poole and James (Clin. Ther. 2018, 40 (8), 1282-1298); as applied to claims 8, 12-14, 16, and 18-20 above, and in further view of Arens and Travis (J. Clin. Microbiol. 2000, 38 (5), 1758-1762) (to address Claim 10).
The examiner’s response to the applicant’s arguments regarding claims 8, 12-14, 16, 18-20 are of record above.
Applicant's arguments filed March 31st, 2026 have been fully considered but they are not persuasive. The applicant did not distinctly and specifically point out supposed errors in the rejection of claim 10 under 35 U.S.C. 103.
III. Claims 8, 12-16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al. (Oral Surgery, Oral Medicine, Oral Pathology and Oral Radiology 2016, 122 (5), e163); Palamara et al. (Antiviral Res. 1995, 27 (3), 237-253); Bede et al. (Inflamm. Res. 2008, 57, 279-286); and Poole and James (Clin. Ther. 2018, 40 (8), 1282-1298); as applied to claims 8, 12-14, 16, and 18-20 above, and in further view of Hammond et al. (J. Hepatol. 2001, 34 (6), 946-954) (to address Claim 15).
The examiner’s response to the applicant’s arguments regarding claims 8, 12-14, 16, 18-20 are of record above.
Applicant's arguments filed March 31st, 2026 have been fully considered but they are not persuasive. The applicant .
IV. Claims 8, 12-14, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al. (Oral Surgery, Oral Medicine, Oral Pathology and Oral Radiology 2016, 122 (5), e163); Palamara et al. (Antiviral Res. 1995, 27 (3), 237-253); Bede et al. (Inflamm. Res. 2008, 57, 279-286); and Poole and James (Clin. Ther. 2018, 40 (8), 1282-1298); as applied to claims 8, 12-14, 16, and 18-20 above, and in further view of Watzinger et al. (Molecular Aspects of Medicine 2006, 27 (2-3), 254-298) (to address Claim 17).
The examiner’s response to the applicant’s arguments regarding claims 8, 12-14, 16, 18-20 are of record above.
Applicant's arguments filed March 31st, 2026 have been fully considered but they are not persuasive. The applicant did not distinctly and specifically point out supposed errors in the rejection of claim 17 under 35 U.S.C. 103.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 Robert F Spaine whose telephone number is (571)272-9099. The examiner can normally be reached 8:00 AM - 4:00 PM United States Eastern Time, Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at (571) 272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/R.F.S./Examiner, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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