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/Restrictions
Claims 93-110 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 11, 2025.
Claims 89-92 have been examined on the merits.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 89 is rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Tanie et al. (US 20140350094 A1, published on May 22, 2014) (“Tanie” hereunder).
Tanie discloses a solid composition in a granule or pill dosage form comprising (i) citrus fiber, (ii) a blend of bacillus coagulan and (iii) green tea extract to provide catechins. The citrus fiber may be inherently or obviously orange fiber.
Claim 89 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Duminy et al. (FR 3093427 A1, published on September 11, 2020) (“Duminy” hereunder).
Discloses a composition comprising (i) beta-glucan, (ii) lactobacillus rhamnosus; and (iii) catechin from green tea. See Examples 1-4.
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.
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 89 and 91 are rejected under 35 U.S.C. 103 as being unpatentable over Ansell (US 20170326190 A1, published on December 24, 2019, cited in IDS).
Ansell teaches compositions comprising gold kiwi fruit, useful in treating or preventing disorders of the gastrointestinal system, including inflammation, constipation, bowel irregularity, microbiota imbalances, irritable bowel syndrome, and inflammatory bowel disease. See abstract. Ansell teaches that the gold kiwifruit composition is formulated with further digestive aid, including one or more probiotic, prebiotic or synbiotic compositions, with fiber, a digestive enzyme, and polyphenols. See [0063-0066]. The reference teaches that the composition can be co-administered with one or more synbiotics, such as Lactobacilli combined with galactooligosaccharides. See [00213, 0221]. Combining (i) galactooligosaccharides, (ii) Lactobacilli bacteria such as Lactobacillus rhamnosus, and (iii) gold kiwifruit to make a composition for treating gastrointestinal issues as taught and suggested by Ansell would have been prima facie obvious. See present claim 89.
Regarding claim 91, Ansell further teaches that the gold kiwifruit is expected to be active in stimulating the growth of beneficial bacteria such as members of Lactobacillus. See [0205]. The reference teaches that the composition formulated as a combined dosage form with one or more probiotic organisms such as Bacillus coagulans, Lactobacillus paracasei, and Lactobacillus rhamnosus. See [0217]. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logicallyjp from there having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). In this case, since Ansell establishes that the disclosed probiotics including Bacillus coagulans, Lactobacillus paracasei, and Lactobacillus rhamnosus can be combined with the god kiwifruit composition to enhance the efficacy of the digestive aid effects, combining any of the disclosed probiotics and combine with gold kiwifruit to make a composition which promote gastrointestinal health would have been prima facie obvious.
Claim 90 is rejected under 35 U.S.C. 103 as being unpatentable over Ansell as applied to claim 89 and 91 as above, and further in view of Washington (US 20210290655 A1, field on March 20, 2020).
Ansell further teaches that God3 gold kiwifruit powder contains digestion-resistant components and polyphenols which are known to have prebiotic properties. See [00153]. The reference suggests that the combination of the fiber, enzymes, prebiotic carbohydrates, and a high level of polyphenols in the fruit may be responsible for laxation, promoting digestive/gut health and improving microbiota, etc. See [0153-0164]. The reference further teaches that prebiotic agents include galacto-oligosaccharides and starch. See [00212].
Ansell fails to teach all of the polysaccharides of the present claim 90.
Washington teaches a daily nutrition composition comprising a fiber blend which improves bowel movement and weight loss, increases metabolism removes aflatoxins and inflammation, etc. See [00670069]. The reference discloses a fiber blend comprising green banana fiber, maize fiber, oat fiber and corn fiber. The reference particularly teaches that resistant potato starch, functions as a prebiotic which is resistant to the upper gastrointestinal environment and selectively stimulates the growth and activity of beneficial bacteria in the colon. See [0013]. The reference also emphasizes using beta glucan fiber which is indigestible polysaccharides found in nature sources and includes high amount of prebiotic dietary fiber which lower blood glucose and cholesterol. See [0051-0057]. The reference teaches using oat bran which provides beta glucan. The reference further teaches that green banana fiber can be replaced with other soluble fibers including guar gum and locust bean gum. See [0048], [0060-0069].
Given the teachings of Ansell to use prebiotic agents including starch, one of ordinary skill in the art before the effective filing date of the present application would have been obviously motivated to look to prior art such as Washington for more specific teachings on suitable starch that may be incorporated in the composition. Since the latter teaches resistant potato starch is beneficial to gut health, weight loss, etc., and beta glucan from oat bran fiber reduces blood glucose and LDL cholesterol, the skilled artisan would have been motivated to use such beneficial prebiotic polysaccharides in the Ansell composition. Since Ansell specifically teaches prebiotic agents, including starch, the skilled artisan would have had a reasonable expectation of successfully producing a stable composition which provide their functional health benefits.
Furthermore, as indicated above, it is well settled in patent law that combining art-recognized functional equivalents known for the same purpose is prima facie See In re Kerkhoven; MPEP 2166.04. In this case, since Washington further establishes that guar gum and locust bean gum are also useful as prebiotic polysaccharides, combining these with the above polysaccharides for the purpose of making a combination of prebiotic polysaccharides beneficial to gut health would have been prima facie obvious.
Claim 92 is rejected under 35 U.S.C. 103 as being unpatentable over Ansell as applied to claim 89 and 91 as above, and further in view of Ling (US 10537605 B2, published on June 8, 2017) and Hayashi et al. (JP 2013018753 A, published on July 13, 2011) (“Hayashi” hereunder).
As discussed above, Ansell attributes the efficacy of the Gold3 kiwifruit to the combination of the fiber, enzymes, prebiotic carbohydrates and a high level of polyphenols. See [0153-0164]. Ansell further teaches that green kiwifruit has been known to have laxative effects due to dietary fiber and the actinidin enzyme content, while typical gold kiwifruit are known for boosting immunity. See [0013].
Although Ansell fails to also utilize green kiwifruit in the composition, combining art-recognized functional equivalents known for the same purpose is prima facie See In re Kerkhoven; MPEP 2166.04. In this case, since the reference establishes that Gold3 kiwifruit and green kiwifruit are both known to promote gut health, combining the extracts from the two kiwifruits to make another extract composition for the same purposes would have been prima facie obvious.
Ansell fails to teach a turmeric extract and a green tea extract.
Ling teaches a pharmaceutical composition for reducing body and body fat, the composition comprising a turmeric extract 20-55 wt % and a green tea extract 30-75 wt % based on the total weight of the composition. See abstract. The reference teaches that curcumins and catechins are the main components of turmeric extract and green extract, respectively. See col. 3, line 60- col. 4, line 58.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of Ansell and incorporate to the composition the mixture of the turmeric extract and the green tea extract as motivated by Ling. The skilled artisan would have been motivated to do so, as the latter teaches that such combination is effective in reducing body weight and body fat. Since Ansell and Ling are both directed to orally administered plant extract compositions for health benefits, the skilled artisan would have had a reasonable expectation of successfully producing an enhanced dietary supplement useful in controlling body weight as well as improving gut health by combining the teachings of the references.
Ansell and Ling fail to teach lychee fruit extract.
Hayashi teaches that the polyphenols from a lychee fruit extract are useful in treating or preventing irritable bowel syndrome. See translation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of Ansell Ling and incorporate to the composition a lychee fruit extract as motivated by Hayashi. The skilled artisan would have been motivated to do so, as the latter teaches that the polyphenols from the lychee fruit extract is effective in treating or preventing irritable bowel syndrome. Since Ansell, Ling Hayashi are all directed to orally administered plant extract compositions for health benefits, the skilled artisan would have had a reasonable expectation of successfully combining the teachings of the references and producing an enhanced dietary supplement useful in treating/preventing irritable bowel syndrome as well as improving digestive health and managing body weight.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Ranganathan (US 20140205572 A1, published on July 24, 2014, cited in IDS) teaches a dietary supplement comprising at least one Lactobacillus, probiotic strains and lychee (Litchi chinensis) fruit extract is useful in boosting immunity and treating rectal colorectal neoplasia. Gu (US 10881675 B2, filed on October 11, 2017, cited in IDS), teaches a gut health composition comprising xylooligosaccharides and green kiwifruit extract powder and gold kiwifruit extract which comprise standardized amounts of actinidin and phenols.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA JUSTICE whose telephone number is (571)272-8605. The examiner can normally be reached M-F 9:00 AM - 5 PM.
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, BETHANY BARHAM can be reached at 571-272-6175. 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.
/GINA C JUSTICE/Primary Examiner, Art Unit 1617