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 .
Election/Restrictions
Applicant's election with traverse of Group III, claims 26-29, 32, 33, 37 and 39 and the species related to Group III of “alumina” and “silver” in the reply filed on 5/20/26 is acknowledged. The traversal is on the ground(s) that “all the groups share the same core technical feature” and have a common inventive concept to establish the unifying technical relationship among the claims. This is not found persuasive because the special technical feature does not make a contribution over the prior art as outlined on pages 5-8 of the restriction requirement filed 1/20/26.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1, 2, 4-6, 9, 12, 13, 16, 17, 44 and 45 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected groups, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5/20/26.
Claim Status
Claims 3, 7, 8, 10, 11, 14, 15, 18-25, 29-31, 34-36, 38 and 40-43 are cancelled.
Claims 1, 2, 4-6, 9, 12, 13, 16, 17, 26-28, 32, 33, 37, 39, 44 and 45 are pending.
Claims 1, 2, 4-6, 9, 12, 13, 16, 17, 44 and 45 are withdrawn.
Claims 26-29, 32, 33, 37 and 39 are presented for examination on the merits as they read upon the elected subject matter.
Priority
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Information Disclosure Statement
Applicant has not filed an Information Disclosure Statement. Applicant is reminded of their duty to disclose information material to patentability (see 37 CFR § 1.56). § 1.56 Duty to disclose information material to patentability. (a) (in part) A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section.
Claim Rejections - 35 USC § 112
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 37 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 37 recites the limitation: “infused with dehydrated electrically activated water”. This is confusing because the specification does not define what is “dehydrated electrically activated water” and the ordinary meaning of “dehydrated” means to lose water. But removing water from water does not make any sense. It is unclear what the rice powder is infused with. Correction is required. The claim will be examined as it reads on rice powder infused with electrically activated water.
Claim Rejections - 35 USC § 103
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, 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.
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 26-29, 32, 33, 37 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Takashi et al. (JP2018203628; English translation provided by the Examiner) and Chis (US20140120148).
Applicant claims:
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Level of Ordinary Skill in the Art
(MPEP 2141.03)
MPEP 2141.03 (I) states: “The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988). The level of skill is that of a dietary supplement scientist uses conventional knowledge in biochemistry, nutrition, and pharmacology to design safe and effective vitamin, mineral, and herbal products. They understand how bioactive compounds behave on a molecular level, delivery mechanisms and stability testing of the dosage forms.
In addition, the prior art itself reflects an appropriate level (MPEP 2141.03(II)).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claim 26, 37 and 39, Takashi et al. teach food and drink compositions (Claim 2; page 391; last claim page 57) comprising spring water and electrolytic water (Claims 21 and 36, which appears to be the second to last claim on page 57), which reads on the claimed electrically activated carrier, and insoluble particles and antibacterial agents (claim 9, page 39), such as silver (elected species) (Claim 26), rice starch (Claim 10, page 40), which is a powder material, and where the powders/inorganic salts include surface treated materials and inorganic substance such as alumina (elected species) and titanium dioxide (Claims 28 and 35). It is the Examiner’s position that the food and drink compositions of Takashi et al. read on supplementing the diet with the composition and therefore are dietary supplements.
Regarding claim 26, Chis teaches: “The antimicrobial material is comprised of a porous activated ceramic substrate; a titanium dioxide layer covalently bound to the
ceramic substrate; and a silver salt layer covalently bound to the titanium oxide layer.” (Abstract; see also claims 1-10). Thus, Chis teaches structured particles comprising a porous ceramic substrate, titanium dioxide chemically bound to the surface and silver (elected species) metal chemically bound to the titanium dioxide. Chris teaches that the activated ceramic is alumina (elected species), which contains surface hydroxyl groups ([0052-0054]; claim 3). Chis teaches that the material is to be used in the food or beverage industry [0134].
Regarding claims 26, 32 and 33, Chris teaches that the aggregate particles are non-spherical trilobed extruded cylinders ((Table 1, [0143]) and appear to be about 1 micron in size with smaller non-spherical particles evident (Figure 7), which is within the same scale claimed of at least 0.1 microns to about 300 microns, and thus also sized to be bioavailable.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02) and Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
The difference between the instant application and Takashi et al. is that Takashi et al. do not expressly teach the particle size of less than about 0.1 microns or at least 0.1 to about 300 microns of non-spherical alumina ceramic substrate having a porous surface with titanium dioxide chemically bound to a portion of the surface and sliver metal chemically bound to the titanium dioxide or the ceramic substrate. This deficiency in Takashi et al. is cured by the teachings of Chis. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the food/beverage of Takashi et al. with the antimicrobial material of Chis, and produce the instant invention. One of ordinary skill in the art would have been motivated to do this because not only does Takashi et al. teach and suggest a food/beverage composition comprising alumina, silver, titanium dioxide and titanium coated substrates but also adding antibacterial materials. It then simplifies matters to employ the non-spherical antibacterial materials of Chis, which are intended for the food and beverage industry, and which comprise surface coated porous alumina chemically bound titanium dioxide and silver chemically bound to the titanium dioxide or the ceramic substrate, in the food/beverage of Takashi et al. to create a dietary supplement with a reasonable expectation of success. It is merely sieving the particles of Chis to obtain that fraction which is less than about 0.1 microns in size by the ordinary artisan with a reasonable expectation of success.
The difference between the instant application and Takashi et al. as modified by Chis is that Takashi et al. as modified by Chis do not expressly teach wherein the electrically activated carrier comprises activated water having an electrical conductivity of at least 500 μS/cm at 25 °C or that the rice powder is infused with electrically activated water. However, the Examiner can discern no difference between the electrically activated water of Takashi et al. and that which his claimed. It appears to be an inherent property of the electrically activated water. The Examiner's finding is based on the principle that products of identical chemical compositions cannot have mutually exclusive properties. This is a well settled principle in patent law. See In re Papesch, 315 F.2d 381,391 (CCPA 1963) ("From the standpoint of patent law, a compound and all of its properties are inseparable; they are one and the same thing."). Where patentability rests upon a property of the claimed material not disclosed within the art, the USPTO has no reasonable method of determining whether there is, in fact, a patentable difference between the prior art materials and the claimed material. In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Therefore, where the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the USPTO can require an applicant to prove that the prior art products do not necessarily possess the characteristics of his claimed product. Id. Additionally, there is no apparent benefit from the claimed limitation. The artisan making the rice starch powder and electrically active water embodiment of Takashi et al. as modified by Chis naturally infuses the rice starch powder with the electrically active water.
The difference between the instant application and Takashi et al. as modified by Chis is that Takashi et al. as modified by Chis do not expressly teach wherein the dietary supplement in drink form comprising one part by volume of the composition of claim 26 diluted with 30 parts by volume of drinking quality, spring water. However, as noted above Takashi et al. is directed to beverages and also teaches spring water. It is then merely a difference in concentration of the composition of claim 26 by diluting with 30 parts by volume spring water to arrive at the claimed limitation. The ordinary artisan might do so for palatability reasons to make it easier to drink or even to lower the concentration of antibacterial material as required for the desired purpose. Thus, using 30 parts of spring water to dilute the composition is readily optimized by the ordinary artisan in the absence of unexpected results. Especially when Takashi et al. teach using spring water. See MPEP 2144.05 (II)(A): Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
From the combined teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the combined references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERNST V ARNOLD whose telephone number is (571)272-8509. The examiner can normally be reached M-F 7-3:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Y Kwon can be reached at 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERNST V ARNOLD/Primary Examiner, Art Unit 1613
1 The enumeration of claims in the Japanese patent is not apparent/consistent and the Examiner attempted to accurately point to which claims teach the subject matter cited by the Examiner.
Prosecution Insights