DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. The amendment filed February 13, 2026 has been received and entered. The text of those sections of Title 35, U.S. Code, not included in this action can be found in a prior Office action. Any rejection set forth in a previous Office action that is not specifically set forth below is withdrawn.
3. Claims 1-6 and 10-18 are pending.
Election/Restrictions
4. In the reply filed on October 14, 2025, applicant elected inflammatory bowel disease for the species with traverse. The non-elected species have been cancelled.
5. In the Office action of November 26, 2025, claims 16-18 were withdrawn as being drawn to an invention non-elected by original presentation. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
6. Claims 16-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
7. Claims 1-6 and 10-15 are examined on the merits.
Claim Rejections - 35 USC § 103
8. Claim(s) 1-6 and 10-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tong (CN 104958668 A – English translation), Oh (The American Journal of Chinese Medicine (2015), vol. 43, no. 5, pp. 1-16), Chen (CN 106692856 A – English translation) and Wei (CN 104147369 – English translation) for the reasons set forth in the previous Office action.
All of applicant’s arguments regarding this ground of rejection have been fully considered but are not persuasive. Applicant argues that the references do not render the claimed invention obvious because each of Tong, Chen, and Wei require additional ingredients in their compositions. Applicant argues that it would not be obvious to specifically select the claimed ingredients from the reference compositions. However, applicant’s claims use the broad transitional phrase “comprising” which is open-ended and does not exclude additional, unrecited elements from the composition. Thus, the additional ingredients recited in the reference compositions are not excluded from applicant’s claims. The artisan would be motivated to combine each composition taught in the references which would result in a composition comprising the claimed extracts.
Applicant also argues that Oh does not teach combining Epimedium with additional ingredient such as those claimed by applicant. However, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In addition, applicant argues that the claimed invention is patentable based on the unexpected results shown for the combination of the ingredients shown in the specification. However, as discussed in MPEP section 716.02(d) “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support…”. Thus, while the specification does show improved results for the combination of the three ingredients, these results are not commensurate in scope with the claimed invention. The specification only demonstrates the unexpected results when 100°C water extracts of each ingredient are combined in a 1:1:1 ratio (see pages 18-20 and 22). Applicant’s claims are not limited to these types of extracts or a 1:1:1 ratio of the claimed ingredients. Therefore, applicant’s claim for patentability based on unexpected results is not persuasive because the results are not commensurate in scope with the claimed invention.
9. No claims are allowed.
THIS ACTION IS MADE FINAL. 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 Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655