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 .
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.
Claims 57, 58, 61 and 67-75 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jeppesen USPGPub 20160074424.
Regarding claims 57, 58, 61 and 67-69, Jeppesen teaches the use of isosteviol in a composition comprising 15-150 g protein [0060] and 500 mg isosteviol. [0060,0045,0087] This composition anticipates the recited composition comprising isosteviol and at least 30 wt% protein. Jeppesen discloses administering the composition to human athletes that have been subjected to exhaustive exercise as recited in claims 58 and 68. [0092,0093] Page 39 of applicant’s specification states “it can be concluded that adding isosteviol to a food product can increase the amount of muscles and therefore also increase muscle/fat ratio”. Therefore, the method of providing isosteviol disclosed by Jeppesen would necessarily increase the muscle to fat ratio of an animal as recited in claims 57, 61, 67 and 69. As such, Jeppesen anticipates claims 57, 58, 61 and 67-69.
Regarding claim 70, the embodiment of Jeppesen having only protein and isosteviol is interpreted to be a “feed” as recited in claim 70 because it can be fed to a subject.
Regarding claims 71-73, the embodiment of Jeppesen consisting of 15 g protein and 500 mg isosteviol comprises 3wt% isosteviol.
Regarding claims 74 and 75, providing the food comprising isosteviol of Jeppesen to an athlete as disclosed by Jeppesen prevents or alleviates diarrhea since as disclosed in applicant’s specification (pg. 2) “Isosteviol prevents and/or treats diarrhea.
Response to Arguments
Applicant's arguments filed 14 November 2025 have been fully considered but they are not persuasive.
Applicant asserts on page 8 of the remarks that the proportions relied on in the rejection do not constitute an embodiment without any information related to the total amount of the composition. This assertion fails to appreciate that the embodiment relied on is one consisting of only protein and isosteviol. This embodiment is clearly encompassed by the disclosure of Jeppesen and would have been at once envisaged by one or ordinary skill in the art given the citations provided in the rejection. Clearly, a product consisting of 15-150 g and 0.5 g isosteviol has a protein content as recited in the instant claims.
Applicant references embodiments of Jeppesen that comprise carbohydrate on page 8 of the remarks, however, these assertions are not germane as the rejection does not rely on those embodiments. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component) (MPEP 2123)
Applicant’s assertions on pages 8-11 of the remarks regarding obviousness and secondary considerations are not germane to the instantly pending rejections under 35 U.S.C. 102 and are therefore not found persuasive.
Conclusion
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 Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793