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 .
Claims 1-12 are pending in this application and are being examined.
Objection(s):
Claims 1-12 are objected to because of the following informalities:
In claim 1, line 1, replace “[Claim 1]” with –Claim 1.--.
In claim 2, line 1, replace “[Claim 2]” with –Claim 2.--.
In claim 3, line 1, replace “[Claim 3]” with –Claim 3.--.
In claim 4, line 1, replace “[Claim 4]” with –Claim 4.--.
In claim 5, line 1, replace “[Claim 5]” with –Claim 5.--.
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In claim 7, line 1, replace “[Claim 7]” with –Claim 7.--.
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In claim 9, line 1, replace “[Claim 9]” with –Claim 9.--.
In claim 10, line 1, replace “[Claim 10]” with –Claim 10.--.
In claim 11, line 1, replace “[Claim 11]” with –Claim 11.--.
In claim 12, line 1, replace “[Claim 12]” with –Claim 12.--.
Appropriate correction is required.
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 1-12 are rejected 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).
Regarding claim 1, Safari et al. disclose a fermented apple composition having an effect of reducing or inhibiting expression of inflammatory cytokines (apple cider vinegar or ACV) (See for example, p. 442 left-hand column paragraph 2.1., and also Abstract).
Regarding claim 2, Safari et al. disclose the fermented apple composition reduces or inhibits the inflammation-induced inflammatory cytokine expression by 10% or more when inflammation-induced cells are treated therewith, as compared to inflammation-induced cells without treatment with the fermented apple composition (highest MRNA expression levels of immune related genes including IL8 in common carp fed +HACV and +LACV compared to control) (See for example, p. 443 right-hand column paragraph 5.3.1., and p. 444 Figure 1D and related legend showing fold increase of interleukin 8 (IL8) relative expression for ACV added diets).
Regarding claim 3, Safari et al. disclose the inflammatory cytokine is IL-8 (highest MRNA expression levels of immune related genes including IL8 in common carp fed +HACV and +LACV) (See for example, p. 443 right-hand column paragraph 5.3.1.).
Regarding claim 4, Safari et al. disclose the fermented apple composition has an anti-inflammatory effect (highest MRNA expression levels of immune related genes including IL8 in common carp fed +HACV and +LACV) (See for example, p. 443 right-hand column paragraph 5.3.1.).
Regarding claim 5, Safari et al. disclose the fermented apple composition is an apple acetic acid-fermented composition (apple cider vinegar or ACV, fermented product of apples mainly acetic acid) (See for example, p. 441 right-hand column “Introduction” -Continued).
Regarding claim 6, it should be noted that according to Wikipedia, the fermented apple composition of Safari et al. is an apple yeast-fermented and acetic acid bacteria-fermented composition (apple cider vinegar is apple juice fermented by yeast and then by acetic acid forming bacteria, etc.) (see p. 1 1st paragraph of Wikipedia).
Regarding claim 7, Safari et al. disclose the food comprising the fermented apple composition of claim 1 (ACV + dietary formulation = experimental diet, and feed additive) (See for example, p. 442 left-hand column paragraph 2.1., and p. 446 right-hand column paragraph below figure 3 legend).
Regarding claim 10, Safari et al. disclose a health functional food comprising the fermented apple composition of claim 1 (ACV + dietary formulation = experimental diet, and feed additive) (See for example, p. 442 left-hand column paragraph 2.1., and p. 446 right-hand column paragraph below figure 3 legend).
Regarding claims 8, 9, 11 and 12, i.e., the food is for preventing or improving enteritis (claim 8), the food is for improving or enhancing intestinal health (claim 9), the health functional food is for preventing or improving enteritis (claim 11), and the health functional food is for improving or enhancing intestinal health (claim 12). Although, Safari et al. do not explicitly disclose the claimed intended uses or properties of the claimed composition, however claiming of new uses which are inherently present in the prior art do not necessarily makes the claim patentable. Also, because the fermented apple composition disclosed by Safari et al. is the same as the claimed composition the claimed properties not explicitly disclosed are inherently present.
Safari et al. therefore anticipate the claimed fermented apple 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 1-12 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 the claimed fermented apple composition of claims 1-12 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.
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/KADE ARIANI/Primary Examiner, Art Unit 1651