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 .
The amendments and responses filed on April 14, 2026 and May 27, 2026, are received.
Claims 5 and 6 are canceled.
Claims 1-4 and 7-12 are pending in this application and are being examined.
Answer to Arguments:
Withdrawn Objection(s) and Rejection(s):
The objection to claims 1-12, is withdrawn due to the amendment to the claims filed on 05/27/2026.
The rejection of claims 1-12 under 35 U.S.C. 102(a)(1) as being anticipated by Safari et al. (Fish & Shellfish Immunology, Vol. 67, 2017, p. 441-448) as evidenced by Wikipedia (Apple cider vinegar according to Wikipedia 3 pages of PDF, retrieved on 10/14/2025), is withdrawn due to the amendment to the claims filed on 05/27/2026.
With respect the provisional rejection of claims 1-4 and 7-12 (previously 1-12) on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 3, 4 and 11-13 of copending Application No. 18/275364 (reference application), no terminal disclaimer is filed and Applicant stated that it will address the double patenting rejection when claims are otherwise allowable. As such the rejection is maintained.
Applicant's amendments to claim 1, necessitated the new ground(s) of rejection presented in this Office action.
Claim Rejection - 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.
Claims 1-4 and 7-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by KR20120021531A (English translation 11 pages of PDF).
Regarding claim 1, KR20120021531A disclose a fermented apple composition having an effect of reducing or inhibiting expression of inflammatory cytokines, wherein the fermented apple composition consists of a fermented product produced by fermentation of an apple concentrate and purified water with yeast and acetic acid bacteria, and the fermented product reduces or inhibits the expression of inflammatory cytokines (see for example, p. 1 1st paragraph, and p. 3 paragraphs 11-14/parts a-d).
Regarding claims 2-4, although KR20120021531A does not explicitly disclose the claimed properties of, reduces or inhibits the inflammation-induced inflammatory cytokine expression by 10% …, the inflammatory cytokine is IL-8, has an anti-inflammatory effect, however because KR20120021531A disclose the same fermented apple composition, therefore the claimed properties not explicitly taught are inherently present.
Regarding claim 7, KR20120021531A disclose a food comprising the fermented apple composition of claim 1 (apple cider vinegar) (See for example, p. 3 paragraph 10).
Regarding claims 8, 9 and 11-12, although KR20120021531A does not explicitly disclose the claimed properties of, preventing or improving enteritis, improving or enhancing intestinal health, however because KR20120021531A disclose the same fermented apple composition, therefore the claimed properties not explicitly taught are inherently present.
Regarding claim 10, a health functional food comprising the fermented apple composition of claim 1 (apple cider vinegar) (See for example, p. 3 paragraph 10).
KR20120021531A therefore anticipate the claimed composition.
Double Patenting Rejection:
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4 and 7-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 3, 4 and 11-13 of copending Application No. 18/275364 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 3, 4 and 11-13 of copending Application No. 18/275364 disclose a fermented apple composition, the fermented apple composition of claim 1, wherein the fermented apple composition is an apple acetic acid-fermented composition, the fermented apple composition of claim 3, wherein the fermented apple composition is an apple yeast-fermented and acetic acid bacteria-fermented composition, a food comprising the fermented apple composition of claim 1, the food of claim 12, wherein the food is for improving or enhancing skin health, and a health functional food comprising the fermented apple composition of claim 1. As such, the fermented apple composition of claims 1, 3, 4 and 11-13 of copending Application No. 18/275364, anticipate or make obvious the claimed fermented apple composition of claims 1-4 and 7-12 of instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion(s):
No claim(s) is allowed at this time.
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 KADE ARIANI whose telephone number is (571)272-6083. The examiner can normally be reached IFP, Monday - Friday, 8:00 AM -4:00 PM EST.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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