DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. The amendment filed October 28, 2025 has been received and entered. 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 Any rejection set forth in a previous Office action that is not specifically set forth below is withdrawn.
3. Claims 1, 2, and 4-7 are pending.
Election/Restrictions
4. In the reply filed on May 30, 2025, applicant elected species i), wherein the betalain pigment composition has a betanin to vulgaxanthin ratio increased by at least 5% higher (w/w), preferably at least 10% higher (w/w), even more preferably at least 15% higher (w/w) as compared to a betalain pigment composition obtained without the use of an ethylene-generating compound, without traverse
5. Claims 1, 2, and 4-7 are examined on the merits solely in regards to the elected species.
Claim Rejections - 35 USC § 112
6. Claims 1, 2, and 4-7 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.
As discussed in the previous Office action, claim 1, at lines 2-3, is indefinite because the phrase “comprising betanin, betalain, and vulgaxanthin” is confusing. It is unclear if the requirement that the composition contain “betalain” indicates that a third betalain pigment in addition to the betanin and vulgaxanthin is required for the composition. Applicant did not specifically address this rejection in the response and the indefinite language still appears in the claims.
Claim Rejections - 35 USC § 101
7. Claims 1, 2, and 4-7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural product without significantly more for the reasons set forth in the previous Office action.
All of applicant’s arguments regarding this ground of rejection have been fully considered but are not persuasive. Applicant argues that the claims as amended as not directed to a naturally occurring product because a red beet plant with a comparatively 15% higher ratio of betanin to vulgaxanthin is not naturally occurring. However, both betanin and vulgaxanthin are naturally occurring compounds. When a claim recites naturally occurring products, 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, the closest occurring natural counterpart for vulgaxanthin and betanin are the compounds themselves. There is no evidence to show that combining these two compounds in amounts that meet the claimed ratios produces a product with a markedly distinct characteristic. Thus, the claims as amended as still considered to be directed to ineligible subject matter.
Claim Rejections - 35 USC § 102
8. Claim(s) 1, 2, and 4-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Czyzowska (Eur. Food Res. Technol. (2006), vol. 223: 110-116, 7 pages) for the reasons set forth in the previous Office action.
All of applicant’s arguments regarding this ground of rejection have been fully considered but are not persuasive. Applicant argues that the reference does not teach the claimed invention because the reference does not teach that the betanin to vulgaxanthin ratio is increased by at least 15%. However, Table 5 in the reference shows that the control beet juice has a betanin concentration of 49.60 and a vulgaxanthin concentration of 36.36. Juice fermented with Lactobacillus paracasei/casei strains 0923 and 0920 have a betanin concentration of 192.58 and 185.81, respectively, and a vulgaxanthin concentration of 17.74 and 18.55, respectively. These are 10.8:1 and 10.1 ratios of betanin to vulgaxanthin, respectively. The content of betanin in the 0923 fermented juice is increased by 26% while the content of vulgaxanthin is decreased by 48%. The content of betanin in the 0920 fermented juice is increased by 26% while the content of vulgaxanthin is decreased by 50%. Thus, these red beet juices, in comparison to the control, showed over an increase in the betanin to vulgaxanthin ratio that meets the limitations of claim 1 and a betanin to vulgaxanthin ratio that meets the limitations of claim 2. Thus, applicant’s arguments are not persuasive.
9. 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.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655