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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/12/23 was filed in a timely manner. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
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.
Claim 6, 7, 9, 16, 18 and 20 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 6 recites the broad recitation the maximum viscosity of the solution is from 100 to 50000 mPa s, and the claim also recites in particular 500 to 8000 to mPa s which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 7 contains the trademark/trade name Hyrolite ® 5, 6 and 8. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe polyols respective glycols and, accordingly, the identification/description is indefinite.
Regarding claim 7, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Likewise, claims 16 and 18 provide limitation sin parenthesis which are similar in usage to the phrase “such as” or “for example” or “or the like”, which all render claims indefinite as they do not make it clear what the meets and bounds o the claim are. Are the parenthetical components further examples of the proceeding elements or a species of the elemnts? Clarification is required.
Claim Rejections - 35 USC § 102
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(s) 1-9, 10-13, 15, 17, 19 and 20 is/are rejected under 35 U.S.C. 102a1,2 as being anticipated by Devaux et al (US 2015/0216217 hereafter Devaux).
Devaux teaches a liquid formulation comprising at least one cereal beta-glucan and at least one added inorganic salt, where the cereal is oat and the beta glucan is present from 1-1.5% present from 1-1.5 % [0039, 0040, 0062-065], meeting the limitation of claim 1-3, 10 and 11. The added salt include inorganic salts of mono or divalent metals, where the salts are present up to 1.5% [0062-0064, claims] ,meeting the limitation of claims 4, 5, 12 and 13. The liquid composition has a viscosity between 5 and 1500 mPa*s and a pH from 3 to 4 [0132, claims]. The formulation further comprises an additional multifunctional components such as propylene glycol [0105], meeting the limitations of claims 7. The formulation is formed by a method comprising providing a solution a beta-glucan, adding the solution with at least one salt, followed by adjusting the pH to 3.5 [0148-0150, Example 1], meeting the limitations of claims 8. Alternatively, additional ingredient which include the salts can be added after the heating of the glucan solution [0164-0171], meeting the limitation of claim 9. The formulation is a drink that is used for treating blood glucose levels and cholesterol conditions in humans or animals as a veterinary preparation [0191-0199, claims], meeting the limitation so of claims 15, 17 and 19. The preparation further comprises additional auxiliary components such as antioxidants [0106-0107], meeting the limitations of claim 20. These disclosures render the claims anticipated.
Claim(s) 1-7, 15-20 is/are rejected under 35 U.S.C. 102a1,2 as being anticipated by Osorio et al (US 2019/0374591 hereafter Osorio).
Osorio teaches a liquid formulation comprising at least one cereal beta-glucan and at least one organic or inorganic salt, where the cereal is oat and is present in an amount up to 10%, and the salts include sodium benzoate and potassium sorbate in combination up to 0.5% [abstract, 0043, 0063], meeting the limitation of claims 1-5. The formulation has a viscosity from 10-30,000 cp (mPa*s) and a pH between 3 and 8 [0095-0096], meeting the limitations of claim 6. The formulation further comprises multifunctional compounds like propylene glycol [0087], meeting the limitations of claims 7. The formulation is formulated by a method of making such a cosmetic comprising at least an oat beta glucan and a salt [0097], meeting the limitation of claim 15. The method formulates a skin care formulation that can also treat dermatological keratological disease such as dermatitis, itchy skin and dermatosis [0012-0025, Examples], meeting the limitations of claims 16-19. The formulation further comprises additional auxiliary components such as moisturizer, cooling agents and [0079-0083], meeting the limitation of claims 20. These disclosures render the claims anticipated.
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.
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.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over the disclosures of Devaux et al (US 2015/0216217 hereafter Devaux).
As disclosed above Devaux discloses a formulation comprising an oat beta-glucan and at least an inorganic salt. The reference discloses a method of making a formulation comprising these components, however the reference does not recite a specific method for retarding the gelation of a cereal beta glucan product. The method of claim 21 recites only one step to accomplish this gelation retarding, which is to formulate a composition comprising at least one inorganic or organic salt combined with the cereal beta glucan. Devaux discloses a method of formulating a composition comprising the same components in the same way. The Office does not have the facilities for examining and comparing applicant’s product with the product of the prior art in order to establish that the product of the prior art does not possess the same material structural and functional characteristics of the claimed product. In the absence of evidence to the contrary, the burden is upon the applicant to prove that the claimed products are functionally different than those taught by the prior art and to establish patentable differences. See Ex parte Phillips, 28 U.S.P.Q.2d 1302, 1303 (PTO Bd. Pat. App. & Int. 1993), Ex parte Gray, 10 USPQ2d 1922, 1923 (PTO Bd. Pat. App. & Int.) and In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977).
With these aspects in mind it would have been obvious to follow the disclosures of Devaux in order to produce stable beta-glucan formulations for various purposes. It would have been obvious to follow these disclosures as they would provide an obvious method of production resulting the in same beta-glucan with retarded gelation since the steps are identical. One of ordinary skill in the art would have been motivated to follow these disclosures with an expected result of a stable formulation for treating a variety of topical and systemic physical conditions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICAH PAUL YOUNG whose telephone number is (571)272-0608. The examiner can normally be reached Monday through Friday, 9:00 am to 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICAH PAUL YOUNG/Primary Examiner, Art Unit 1618