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 .
DETAILED ACTION
This Office Action is in response to Applicants’ Amendment and Remarks filed on 8/26/2025 in which claim 1 is amended. No claims are newly added or canceled.
Claims 1-3 are pending in the instant application and are examined on the merits herein.
Withdrawn Rejections
Applicant’s amendment, filed on 8/26/2025, with respect to the rejection of claim 1 under 35 U.S.C. 112(b), has been fully considered and is persuasive. Applicant amended the claims to remove “significantly” alleviating the indefiniteness. The rejection is hereby withdrawn.
Applicant’s amendment, filed on 8/26/2025, with respect to the rejection of claims 1-3 under 35 U.S.C. 103(a) as being unpatentable over Van Riet et al. (US 2022/0022515A1), in view of Salli et al. (Sci. Rep., 2019), has been fully considered and is persuasive. The prior art does not teach increasing abundance of Veillonella by 2.5 times. The rejection is hereby withdrawn.
Maintained Rejection
Claim Rejections - 35 USC § 112—Second Paragraph
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.
Claims 2 and 3 are rejected for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
The term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. Preferences, options and examples are properly set forth in the specification, but when included in the claims lead to confusion over the intended scope of the claim. See MPEP § 2173.05(d). For examination purposes, the broadest claim limitation(s) will be considered without taking into account preferences or examples.
Response to Arguments
Applicant provided no response to the indefiniteness rejection of the term “preferably”. The rejection is still deemed proper and is maintained.
Rejections Necessitated by Amendment
The following are new ground(s) or modified rejections necessitated by Applicants' amendment, filed on 8/26/2025, wherein instant independent claims 1 is amended to alter the breadth and scope of the claim, wherein the remaining pending claims depend from said independent claims. Therefore, new grounds of rejection have been made.
New Grounds of Rejection
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 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 of this title, 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 are rejected under 35 U.S.C. 103 as being unpatentable over Van Riet et al. (US 2022/0022515A1, reference of record), in view of Linder et al. (Children, Feb 2023, PTO-892).
Van Riet discloses a method improving a subject's sports performance, and/or non-therapeutically improving a subject's recovery by administering a composition comprising 2’-fucosyllactose, at 0.8-4.0 g/day, exemplified at 2.5 g/day for 60 days. (Claims 16, 20, 21; Example 2)
Van Riet does not teach increasing the abundance of Veillonella.
Linder et al. discloses that 2’-fucosyllactose is effective to significantly increase abundance of Veillonella. (Abstract) Linder further discloses that 2’-FL increased relative abundance of Veillonella versus control by 1-2 log2 (i.e. 2-4 times). (Figure 3)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the 2’-fucosyllactose administered in the method of Van Riet would necessarily increase the abundance of Veillonella by 2.5 times, thereby arriving at the instant invention, because Linder teaches that 2’-fucosyllactose is effective to increase abundance of Veillonella by 2-4 times. With respect to the limitation “2.5 times”, this value lies within the range taught by the prior art. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). (MPEP § 2144.05(I))
Accordingly, the instant claims are prima facie obvious over the teachings of the prior art.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new and/or modified 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.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DALE R MILLER whose telephone number is (571) 272-6146. The examiner can normally be reached on M-F 7:00 AM – 3:30 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scarlett Goon can be reached on (571) 270-5341. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DALE R MILLER/Primary Examiner, Art Unit 1693