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 .
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.
DETAILED ACTION
Claims 1-22 are pending in this application. This application claims priority to provisional application 63/417,864, filed on 10/20/2022.
Election/Restrictions
Applicant’s election of group II, claims 15-22, and subsequent species election of 2-(3,4-dihydroxyphenyl)-chromenylium-3,5,7-triol 3-xylosyl-(sinapoylglucosyl) galactosides Zn (cyanidin 3-xylosyl(sinapoylglucosyl)galactoside, cas 142630-71-5
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, complexed with Zn) among claims 15-17, 19, 21, and 22, in the reply filed on 10/10/2025 is acknowledged. 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 § 818.03(a)).
Claims 1-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group or species, there being no allowable generic or linking claim.
Claims 15-22 will presently be examined to the extent they read on the elected subject matter of record.
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.
This application currently names joint inventors. In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
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(a) 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 15-17 and 19-22 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chouket et al. (WO 2023/052343 A1, filing date of 09/27/2022) in view of Choisy et al. (WO 2018/050504 A1).
Chouket et al. teach a food coloring composition including beverage comprising stabilized phycocyanin (abstract and paragraph 16);
a pigment such as cyanidin 3-xylosyl(glucosyl)galactosides acylated with sinapic acid (the elected species 2-(3,4-dihydroxyphenyl)-chromenylium-3,5,7-triol 3-xylosyl-(sinapoylglucosyl) galactosides without Zn in the instant claims 15-17, 19, 21, and 22) (page 39, line 1-7, the paragraph bridges page 39 and 40, and the paragraph bridges page 40 and 41) with a concentration of 0.1% (page 41, line 19-22); and
acid such as citric acid (the claimed stabilizer the instant claim 15 according to the disclosure in the instant specification 1st paragraph on page 15);
wherein the composition has a pH of 2.4-3.3 (the instant claim 15) (page 10, line 13 and 14 and page 52, line 7-9).
The limitation in the instant claim 20 is a limitation of how the claimed formulation is stored and is not a limitation of the claimed formulation itself.
With respect to the art rejection above, it is noted that the reference does not teach that the composition can be used in the manner instantly claimed, [systemic protection against damaging effects of UV radiation t the skin of an animal]; however, the intended use of the claimed composition does not patentably distinguish the composition, per se, since such undisclosed use is inherent in the reference composition. In order to be limiting, the intended use must create a structural difference between the claimed composition and the prior art composition. In the instant case, the intended use does not create a structural difference, thus the intended use is not limiting.
Chouket et al. do not specify the anthocyanin cyanidin 3-xylosyl(glucosyl) galactosides acylated with sinapic acid being chelated with Zn.
This deficiency is cured by Choisy et al. who teach an anthocyanin being complexed with zinc for stability (abstract, page 2, line 36 through page 7, line 26).
It would have been prima facie obvious before the effective filing date of the claimed invention to a person of ordinary skill in the art to combine the teachings in Chouket et al. and Choisy et al. to chelate the anthocyanin taught by Chouket et al. with Zn for stability. An anthocyanin being complexed with zinc for stability was well known to a person of ordinary skill in the art before the effective filing date of the claimed invention. The motivation for specifying it flows from its having been used in the prior art, and from its being recognized in the prior art as useful for the same purpose.
Claims 15-22 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chouket et al. (WO 2023/052343 A1, filing date of 09/27/2022) in view of Choisy et al. (WO 2018/050504 A1) and Aldritt et al. (US 2006/0039972 A1).
The teachings of Chouket et al. are discussed above and applied in the same manner. Chouket et al. also teach the composition comprising vitamins (page 50, line 35).
Chouket et al. do not specify the vitamins including a riboflavin Na phosphate and C42H65NO16 in the instant claim 18.
This deficiency is cured by Aldritt et al. who teach a composition as a beverage comprising anthocyanins, vitamins including flavin mononucleotide (the claimed riboflavin Na phosphate) and glycyrrhizin (the claimed C42H65NO16, ammonium glycyrrhizate) (paragraph 44 and 63 and claims 8 and 24).
It would have been prima facie obvious before the effective filing date of the claimed invention to a person of ordinary skill in the art to combine the teachings in Chouket et al. and Aldritt et al. to specify the vitamins taught by Chouket et al. including flavin mononucleotide and a beverage further comprising glycyrrhizin. Vitamins in a beverage including flavin mononucleotide and a beverage comprising glycyrrhizin were well known to a person of ordinary skill in the art before the effective filing date of the claimed invention. The motivation for specifying vitamins in a beverage including flavin mononucleotide and a beverage comprising glycyrrhizin flows from both having been used in the prior art, and from both being recognized in the prior art as useful for the same purpose.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG YU whose telephone number is (571)270-1328. The examiner can normally be reached on 9 am - 5:30 pm.
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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached on 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HONG YU/
Primary Examiner, Art Unit 1614
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