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
Election/Restrictions
Claims 1-20 are pending.
Applicant’s election without traverse of species of support of hair and skin health, and magnesium, claims 1-5, and 7, in the reply filed on 11/17/25 is acknowledged.
Claims 6, and 8-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/25.
Claims 1-5 and 7 are examined on the merits.
Claim Rejections –35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, and 7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
First, the claimed invention must be to one of the four statutory categories. 35 U.S.C. 101 defines the four categories of invention that Congress deemed to be the appropriate subject matter of a patent: processes, machines, manufactures and compositions of matter. The latter three categories define "things" or "products" while the first category defines "actions" (i.e., inventions that consist of a series of steps or acts to be performed). See 35 U.S.C. 100(b) ("The term ‘process’ means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."). See MPEP § 2106.03 for detailed information on the four categories.
Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim must not be directed to a judicial exception unless the claim as a whole includes additional limitations amounting to significantly more than the exception. The judicial exceptions (also called "judicially recognized exceptions" or simply "exceptions") are subject matter that the courts have found to be outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas, laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed information on the judicial exceptions.
Claim(s) 1-5, and 7 is/are directed to an enhanced nutritional composition, comprising: a nutritionally acceptable compound or extract having a known or suspected activity selected from the group consisting of support of bone and joint health, support of hair and skin health, support of cellular energy, reduction in inflammation, support of immunity, reduction in stress, support of sleep health, support of heart health, reduction of weight and/or appetite, support of men’s health, support of woman’s health, support of brain and/or mind health, support of mood, support of digestive health, and support of strength and/or fitness; and a plurality of chemically distinct polyphenol-containing plant materials or chemically distinct polyphenols from plant materials, wherein the plant materials have a red color, a green color, an orange-yellow color, and a purple-blue color.
Analysis of the flowchart:
Step 1, is the claim directed to a process, machine, manufacture or composition of matter?
Yes. The claim is directed to a composition of matter.
Step 2A. Prong one: Is the claim directed to a law of nature, a natural phenomenon (product of nature), or an abstract idea?
Yes, the claims are directed to nature based components, polyphenol-containing plant materials because there is no indication that extraction has caused the polyphenols that comprise the claimed compositions to have any characteristics that are different from the naturally occurring polyphenol in plant materials. Magnesium occurs in nature as well.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than the judicial exception?
No. The claim(s) of 1-5, and 7 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Regarding claims 1-3, 5, and 7, since there is no absolute amounts of the active ingredients are claimed as compared to the whole composition, the claimed composition encompasses embodiments where the active ingredients are in such small amounts that none of them impart any characteristic or markedly different characteristic. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
Claim 4 requires certain amount of components being present in the composition. However, there is no indication that the amounts claimed in the compositions result in a markedly different characteristic for the composition as compared to the components that occur in the nature.
Regarding claims 1-5, and 7, a nutritional composition that is taking orally does not result in a markedly different characteristic because the plant materials such as apple, olive, onion, and grape already have the characteristic of being in a form suitable for oral consumption.
Step 2B. If additional elements of the claim provide an inventive concept (Step 2B) (also called "significantly more" than the recited judicial exception).
No, no non-nature based components were recited in the claims.
For the reasons described above, the claimed compositions are not markedly different from their closest naturally occurring counterparts and thus are product of nature judicial exceptions.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not recite any additional elements beyond the claimed compositions themselves. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
Claim Rejections –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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, and 7 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Chun (CN 103099941 A).
Chun teaches a kind of traditional Chinese medicine oral liquid (thus claim 3 is met), wherein it is composed of main prescription. and ganoderma lucidum fruit and vegetable fermentation, the main prescription agent of the components and dosage as follows: spice I parts of 20 parts of radix astragali, 15 parts of rhizoma ligustici wallichii, 6 parts of pinellia ternate, 30 parts of smoked plum, 6 parts of angelica, 20 parts of cornua cervi pantotrichum, 15 parts, long-noded pit viper, 30 parts of tuckahoe, 20 parts of bulbus fritillariae cirrhosae, 30 parts of radix salviae miltiorrhizae, 20 parts of polygala tenuifolia, 20 parts of fructus evodiae, 20 parts of winged euonymus twig, 20 parts of liquorice, 20 parts of herba cistanche, 20 parts of caulis lonicerae, 20 parts of cimicifuga foetida, 15 parts of gypsum, 20 parts of vermilion, 6 parts of chlorite schist, 15 parts of red signal 4 parts, 15 parts of mirabilite, 20 parts of magnesium chloride (thus claim 7 is met), 40 parts of sodium chloride, 10 parts of ruddle, 6 parts of ingredients and dosages of ganoderma lucidum fruit and vegetable fermentation is as follows: grape 50 parts (thus purple-blue colored plant material, thus containing distinct polyphenol, thus claim 2 d is met), hawthorn 50 parts, 50 parts, apple fruit 50 parts (thus red colored plant material, thus containing distinct polyphenol, thus claim 2 a is met), carrot 50 parts (thus orange-yellow colored plant material, thus containing distinct polyphenol, thus claim 2 c is met), olive vegetable 50 parts (thus green colored plant material, thus containing distinct polyphenol, thus claim 2b is met, thus claim 1 is met), rapeseed 50 parts, radish 50 parts, ganoderma lucidum 10 parts, dry glutinous rice flour 20 parts (see claim). Chun teaches it has an efficacy rate of 16 90% for various skin fungal diseases, with 50% of patients being cured within 1-2 months (page 16, last line bridging page 17).
The intended use of the composition was analyzed for patentable weight. It is deemed that the preamble ‘breathes life’ into the claims in that the prior art product must not be precluded for use as support of hair and skin health. It is deemed that the composition disclosed by the cited reference is not precluded for carrying out the intended function of the claims.
Therefore, the reference is deemed to anticipate the instant claim above.
Claims 1-5 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Mini (WO 2008/001183 A1).
Mini teaches this invention relates to the field of traditional Chinese medicine, more
particularly, to an oral herbal formulation for promoting the health of a subject (page 1, lines 12-14) (thus claim 3 is met).
Mini teaches an exemplary embodiment of a formula, which help a subject lose weight. Table 11 comprising 3 carrot (thus orange-yellow color), 2 grape seed (thus purple-blue color), 2 beet root (thus red color), 3 olive leaf (thus green color), 2 tomato (thus red color), 3 grape skins (thus purple-blue color) (thus claims 1 and 2 are met), 3 apple pectin, 3 apple fiber, etc., (See Table 11 from page 48, bridging page 49).
Mini teaches the composition of Table 11 is prepared as a capsule (thus claim 5 is met) containing approximately 700 mg of the composition (page 49, 3rd paragraph from the bottom) (thus claim 4 is met).
Mini teaches Chinese herbs are water extracted by boiling (thus contains the claimed polyphenols), and then freeze dried into a powder (thus claim 5 is met). Other compounds are dried and powdered (thus contains the claimed polyphenols). Liquid compounds are freeze dried into a powder (page 49, last paragraph).
Mini teaches a method of improving the health of a subject (thus including skin and hair), the method comprising providing the composition of claim 4, claim 5, claim 6, claim 7, or claim 8 to a subject (see claim 22).
The intended use of the composition was analyzed for patentable weight. It is deemed that the preamble ‘breathes life’ into the claims in that the prior art product must not be precluded for use as support of hair and skin health. It is deemed that the composition disclosed by the cited reference is not precluded for carrying out the intended function of the claims.
Therefore, the reference is deemed to anticipate the instant claim above.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIUWEN MI whose telephone number is (571)272-5984. The examiner can normally be reached on Monday-Friday 9:00 am to 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Terry McKelvey can be reached on 571-272-0775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655