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 .
Specification - Abstract
The abstract of the disclosure is objected to because it merely discusses background of the invention rather than indicating that which is new in the art such as the nature of the composition/beverage and ingredients thereof. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
Applicant is reminded of the proper content of an abstract of the disclosure.
In chemical patent abstracts for compounds or compositions, the general nature of the compound or composition should be given as well as its use, e.g., “The compounds are of the class of alkyl benzene sulfonyl ureas, useful as oral anti-diabetics.” Exemplification of a species could be illustrative of members of the class. For processes, the type of reaction, reagents and process conditions should be stated, generally illustrated by a single example unless variations are necessary.
Claim Objections
Claim 2 is objected to because of the following informalities: in line 2 carnitine is misspelled. Appropriate correction is required.
Claim 7 is objected to because of the following informalities: it lacks a period at the end of the claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 1 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement.
The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 encompasses any beverage that accomplishes the recited improved cognitive function, and thus the claim includes an “[u]nlimited functional claim limitation[ ] that extend[s] to all means or methods of resolving a problem” and therefore is “not . . . adequately supported by the written description” (MPEP 2173.05(g)).
Specifically, the unlimited functional claim limitation in claim 1 that extends to all means or methods of resolving a problem is “that improves cognitive function by at least 14% and up to 44% including forgetfulness, distractibility, and false triggering.” Any beverage that accomplishes such function is encompassed by claim 1, and since claim 1 does not specify any specific beverage ingredients that accomplish such function, claim 1 extends to all means or methods of accomplishing such function. The instant specification does not reasonably convey to one skilled in the art that the inventor at the time the application was filed had possession of all beverages, regardless of ingredients therein, that accomplish such function. Rather, the instant specification only conveys to one skilled in the art that the inventor at the time the application was filed had possession of the specific disclosed mixtures of ingredients, as beverages, that accomplish such function.
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 1 and 3-6 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.
Claim 1 fails to provide a clear-cut indication of the scope of the subject matter embraced by the claim in that it merely recites functions/results achieved by the invention without reciting any particular structure or materials that accomplish such functions/results other than that it is a beverage. Thus, claim 1 is indefinite. See, e.g., MPEP 2173.05(g) (“when claims merely recite a description of a problem to be solved or a function or result achieved by the invention, the boundaries of the claim scope may be unclear. Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255, 85 USPQ2d 1654, 1663 (Fed. Cir. 2008) (noting that the Supreme Court explained that a vice of functional claiming occurs ‘when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty’) (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938))”).
Claims 3-4 recite “Folate/folic acid”, but it is not clear whether such recitation means “folate and folic acid” or “folate or folic acid”. Thus, the claims are subject to two mutually exclusive meanings/interpretations and are therefore indefinite. For purposes of compact prosecution, such recitation is interpreted herein as meaning “folate or folic acid”. Claims 5-6 are rejected as depending from claims 3-4 without remedying such deficiency.
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(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bauer et al. (Applied Medical Research, Vol. 7, No. 1, 23 June 2020, pages 1-7).
Regarding claim 1, Bauer et al. discloses a nutrient-dense brain-targeted beverage for improving cognition (abstract), which reads on the claimed brain-targeted nutritional therapeutic beverage that improves cognitive function.
Further regarding claim 1, Bauer et al. discloses that subjects consuming the beverage had total cognitive failure improvement at 3 and 6 weeks of 20% and 36%, forgetfulness improvement of 14% and 33%, distractibility improvement of 26% and 35%, and false triggering improvement of 19% and 44% (Table 1), which reads on the claimed improved cognitive function by at least 14% and up to 44% including forgetfulness, distractibility, and false triggering.
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.
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pera (IT LI20070008 A1; published 25 October 2007; citations herein to English machine translation made 05 February 2026).
Regarding claim 2, Pera discloses a composition mixed in a beverage containing one or more antioxidants including acetyl-L-carnitine, alpha-lipoic acid, arginine, coenzyme Q10, and N-acetylcysteine (page 12 Summary of the Invention) wherein the antioxidant nutrients protect against the undesirable effects of alcohol (page 13 Summary of the Invention second to last paragraph) wherein the nutraceutical compounds protect health from damages caused by free radicals and alcohol (title) wherein alcohol damages the brain and cognitive abilities (page 5 paragraphs 4-5) wherein alcohol causes concentration and memory problems (page 2 last paragraph) wherein alcohol causes forgetting by impairing memory (page 8 first full paragraph) wherein the composition provides a nutritional aid (page 33 fourth full paragraph) wherein the N-acetylcysteine may be N-acetyl-L-cysteine (page 40 Formula 23) wherein the composition may also include phenylalanine (page 37 Formula 13) wherein the composition may also include L-tyrosine (page 40 Formula 23) wherein the composition may also include quercetin (page 40 Formula 27, page 41 Formula 32), which reads on the claimed brain-targeted nutritional therapeutic beverage that improves cognitive function comprising a mixture of L-Phenylalanine, L-Tyrosine, L-Arginine, N-Acetyl-L-Cysteine (NAC), Acetyl-L-Carnititine, Quercetin, Alpha Lipoic Acid, Coenzyme Q10 (Ubidecarenone).
Further regarding claim 2, although Pera does not disclose a single exemplary embodiment/formulation containing all claimed ingredients, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to follow the suggestions of Pera as discussed above and to make the beverage composition of Pera comprising phenylalanine, L-tyrosine, arginine, N-acetyl-L-cysteine, acetyl-L-carnitine, quercetin, alpha lipoic acid, and coenzyme Q10, with a reasonable expectation of success.
Further regarding claim 2, although Pera does not explicitly disclose that the phenylalanine therein is L-phenylalanine, or that the arginine therein is L-arginine, only the L enantiomers/isomers thereof are found naturally and thus L-phenylalanine is referred to as phenylalanine and L-arginine is referred to as arginine; or alternatively such stereoisomers are prima facie obvious given their close structural similarity per MPEP 2144.09, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to make the beverage composition of Pera as discussed above wherein the phenylalanine therein is L-phenylalanine and the arginine therein is L-arginine, with a reasonable expectation of success.
Further regarding claim 2, although Pera does not explicitly disclose that the composition improves cognitive function by at least 14% and up to 44% including forgetfulness, distractibility, and false triggering, since the composition of Pera as discussed above is substantially identical to the claimed composition, such claimed property is presumed inherent in the composition of Pera as discussed above per MPEP 2112(V) and 2112.01(I) given that compositions that are physically the same must have the same properties per MPEP 2112.01(II).
Regarding claim 3, Pera discloses that the composition may also include calcium, magnesium, manganese, potassium, vitamin E, zinc, and iodine (page 38 Formula 15) and phosphorus, vitamin C, vitamin D, vitamin K, biotin, chloride, copper, folic acid, molybdenum, niacin, pantothenic acid, riboflavin, selenium, thiamin, vitamin A, and iron (page 39 Formula 17) and chromium (Formula 19 page 39) and sodium (page 41 Formula 45) and vitamin B6 (Formula 32 page 41) and vitamin B12 (Formula 21 page 39) and choline (page 12 Summary of the Invention), which reads on the claimed mixture including Calcium, Magnesium, Manganese, Phosphorus, Potassium, Vitamin C, Vitamin D, Vitamin K, Biotin, Chloride, Chromium, Copper, Folate/folic acid, Molybdenum, Niacin, Pantothenic acid, Riboflavin, Selenium, Sodium, Thiamin, Vitamin A, Vitamin B6, Vitamin B 12, Vitamin E, Zinc, Choline, Iodine, and Iron.
Further regarding claim 3, although Pera does not disclose a single exemplary embodiment/formulation containing all claimed ingredients, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to follow the suggestions of Pera as discussed above and to make the beverage composition of Pera as discussed above further comprising Calcium, Magnesium, Manganese, Phosphorus, Potassium, Vitamin C, Vitamin D, Vitamin K, Biotin, Chloride, Chromium, Copper, folic acid, Molybdenum, Niacin, Pantothenic acid, Riboflavin, Selenium, Sodium, Thiamin, Vitamin A, Vitamin B6, Vitamin B 12, Vitamin E, Zinc, Choline, Iodine, and Iron, with a reasonable expectation of success.
Claim(s) 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pera as applied to claims 2-3 above, and further in view of Coma et al. (US 2013/0116215 A1; published 09 May 2013).
Pera is relied upon as discussed above.
Regarding claim 4, Pera discloses that the composition may also include leucine, isoleucine, and tryptophan (Formula 13 page 37) and L-lysine, L-methionine, and L-cysteine (Formula 23 page 40), which reads on the claimed mixture further containing L-leucine, L-isoleucine, L-tryptophan, L-lysine, L-methionine, and L-cysteine.
Further regarding claim 4, although Pera does not disclose a single exemplary embodiment/formulation containing all claimed ingredients, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to follow the suggestions of Pera as discussed above and to make the beverage composition of Pera as discussed above further comprising leucine, isoleucine, tryptophan, L-lysine, L-methionine, and L-cysteine, with a reasonable expectation of success.
Further regarding claim 4, although Pera does not explicitly disclose that the leucine therein is L-leucine, or that the isoleucine therein is L-isoleucine, or that the tryptophan therein is L-tryptophan, only the L enantiomers/isomers thereof are found naturally and thus L-leucine is referred to as leucine and L-isoleucine is referred to as isoleucine and L-tryptophan is referred to as tryptophan; or alternatively such stereoisomers are prima facie obvious given their close structural similarity per MPEP 2144.09, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to make the beverage composition of Pera as discussed above wherein the leucine therein is L-leucine and the isoleucine therein is L-isoleucine and the tryptophan therein is L-tryptophan, with a reasonable expectation of success.
Further regarding claim 4, Pera does not disclose L-valine, L-histidine, and L-threonine as claimed.
Further regarding claim 4, Coma et al. discloses combination therapies for treating neurological disorders (title) wherein compositions are used for treating and preventing cognitive impairment and memory loss (claims 17-18; paragraph [0105]) wherein the composition comprises a therapeutically-effective amount of compounds including L-threonine, L-histidine, and L-valine (claim 1) wherein compositions may be formulated for oral administration in liquid form (paragraph [0061]).
Further regarding claim 4, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Pera and Coma et al. by adding the L-threonine, L-histidine, and L-valine of Coma et al. to the composition of Pera as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to make a composition for treating or preventing cognitive impairment or memory loss as suggested by Coma et al. given that the compositions of Pera and Coma et al. are both used for treating or preventing cognitive impairment or memory loss and it is prima facie obvious to combine two compositions each of which are 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, per MPEP 2144.06(I).
Regarding claim 5, although Pera does not disclose phosphatidyl serine as claimed, Coma et al. discloses that the composition comprises a therapeutically-effective amount of compounds including phosphatidylserine (claim 1), and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Pera and Coma et al. by adding the phosphatidylserine of Coma et al. to the composition of Pera in view of Coma et al. as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to make a composition for treating or preventing cognitive impairment or memory loss as suggested by Coma et al. given that the compositions of Pera and Coma et al. are both used for treating or preventing cognitive impairment or memory loss and it is prima facie obvious to combine two compositions each of which are 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, per MPEP 2144.06(I).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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, Sue Liu can be reached at (571)272-5539. 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.
/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617