DETAILED ACTION
Applicant's response filed on August 4, 2026 to the Non-Final rejection mailed on May 8, 2026 is acknowledged.
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 .
Priority
This Application filed on 05/31/2023 is a 371 of PCT/CA2021/051722 filed on 12/02/2021, which has a provisional 63/121714 filed on 12/04/2020.
Claims 1-3, 8, 10, 12, 14, and 17-19 are herein acted on the merits.
Response to Arguments
Applicant’s arguments over the 35 U.S.C. 103 rejection of claims 1-3, 6, 8, 10, 12, 14, and 17-19 over Hwan Lee et al. (KR 20190096109 - IDS) in view of Miller et al. (CA 2929998 A1) is not persuasive. The rejection is herewith maintained. Applicant argues “ While Lee appears to disclose methylsulfonylmethane and a sugar alcohol, it does not teach a composition comprising inter alia a eutectic solubilizing matrix comprising methylsulfonylmethane and a sugar alcohol, where these two components exist in a specific ration such that the eutectic matrix has a melting point lower than each of the melting point of the methylsulfonylmethane and the melting point of the sugar alcohol, as is required by the subject matter encompassed by the present claims.” “A eutectic matrix is not merely a physical mixture of two ingredients. Rather, it is a distinct material characterized by a specific phase relationship and composition that exhibits physiochemical properties different from those of individual components or an ordinary blend.” “The Office's position appears to assume that because Lee discloses methylsulfonylmethane and a sugar alcohol, they inherently form a eutectic matrix. However, inherency cannot be established by mere possibility or probability.”
In response, the Examiner points out that the ratio taught in the prior art falls within that claimed by Applicant. It is unclear how a composition comprising identical components that is - methylsulfonylmethane and sugar alcohols in the ratio claimed reads away from the claimed invention. The Examiner points out that the Applicant has not claimed a eutectic solubilizing matrix, but has claimed a composition comprising the eutectic solubilizing matrix comprising methylsulfonylmethane and sugar alcohols and particles of a nutraceutical in the eutectic solubilizing matrix. Since the prior art teaches the same mixture of MSM and a sugar alcohol in the same ratio can be dissolved in the same solvent, and drying techniques and then dissolved in a liquid component, it is expected that the combination would have an organized structure and can behave as a eutectic mixture in the composition, as claimed.
Information Disclosure Statement
The information disclosure statement(s) (IDS) filed on 5/21/26 is in compliance with the provisions of S7 CFR 1.97. Accordingly, the IDS is being considered by the Examiner.
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.
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.
Claims 1-3, 8, 10, 12, 14, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Hwan Lee et al. (KR 20190096109 - IDS) in view of Miller et al. (CA 2929998 A1).
Hwan Lee et al. teaches health food compositions having improved absorption profiles, prepared by steps that include coprecipitating a powder comprising methylsulfonylmethane (MSM) and mannitol (a sugar alcohol). The MSM and the mannitol are combined and heated so as to form a 1: 1 adduct. Since the prior art teaches the same mixture of MSM and a sugar alcohol can be dissolved in the same solvent, and drying techniques and then dissolved in a liquid component, it is expected that the combination would have an organized structure and can behave as a eutectic mixture. That is, the matrix has a melting point lower than each of the melting point of the methylsulfonylmethane and the melting point of the sugar alcohol. Hwan Lee et al. teaches the combination with xylitol, as well as nutraceutical components, such as coffee and black currant seed oil. (Both coffee and black currant seed oil contain quercetin and saponins). Other suitable nutraceuticals that may be included are fatty acids, antioxidants, and vitamins. Exemplified is a gummy formulation.
Hwan Lee et al. fails to teach an enteric coating or medium chain triglyceride.
Miller et al. teaches the use of enteric coatings and medium chain triglycerides in dietary supplement formations comprising fatty acids. The reference teaches the medium chain triglycerides as solubilizers and enteric coatings for delayed release.
It would have been obvious to one of ordinary skill in the art at the time of filing to add an enteric coating or medium chain triglyceride to the health food formulation of Hwan Lee et al. The motivation to add an enteric coating or medium chain triglyceride is because Miller et al. teaches medium chain triglycerides act as solubilizers and enteric coatings are used for delayed release. Therefore, a skilled artisan would have had reasonable expectation of successfully achieving similar efficacy and results.
With respect to claim 19, the overlapping method of making is expected to produce a formulation with the properties (i)-(iv) recited.
Conclusion
No claims allowed.
The arguments are not persuasive and the rejection is made FINAL.
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 extension fee 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 LAYLA SOROUSH whose telephone number is (571)272-5008. The examiner can normally be reached on Monday thru Friday; 8:30 AM to 5:00 PM EST.
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, James Henry Alstrum-Acevedo, can be reached on (571)272-5548. 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.
/LAYLA SOROUSH/ Primary Examiner, Art Unit 1622
