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 .
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.
DETAILED ACTION
Status of claims
The amendment filed on 02/02/2026 is acknowledged. Claims 1-14 have been withdrawn and new claim 23 has been added. Claims 15-23 are under examination in the instant office action.
Rejections withdrawn
Applicant’s amendments and arguments filed on 02/02/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
New ground of rejection necessitated by Applicant’s amendment
The new claim 23 necessitate the following new ground of rejection.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim 23 is rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 23 introduces new matter as the claim recites the limitation: “the coordinated metal is present in an amount effective to shift the UV- absorbance by 20 to 50 nm in the UV spectrum”. There is no support in the specification for this limitation. The limitation of “is present in an amount effective” was not described in the specification as filed, and person skilled in the art would not recognize in the applicant’s disclosure a description of the invention as presently claimed. The specification discloses “These copigments are known in the field to bind the 3′,4′-O-dihydroxyl group in the B ring of a flavylium skeleton to form Men+ complexes that shift the equilibrium of the coordinated structures by as much as 20-50 nm in the UV spectrum while further stabilizing them” but does not describe the instantly claimed limitation of effective amount of Men+. There is no guidance in the specification to select “effective amount” of Men+ and from MPEP 2163.06: “Applicant should therefore specifically point out the support for any amendments made to the disclosure.” Applicant has not directed the Examiner to the support in the specification for the amendments. Therefore, it is the Examiner’s position that the disclosure does not reasonably convey that the inventor had possession of the subject matter of the amendment at the time of filing of the instant application.
To expedite the prosecution “the coordinated metal is present in an amount effective to shift the UV- absorbance by 20 to 50 nm in the UV spectrum” is given its broadest reasonable interpretation by the examiner in light of the specification in the 103 rejections as “any amount”, i.e., >0 molar% relative to the flavylium skeleton.
Rejections maintained
The following rejections of the claims are remained for reasons of record and the following. New claim 23 is hereby included in the rejections.
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 19-23 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 → > 0 molar% relative to anthocyanin in the new claim 23.
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) → > 0 molar% relative to anthocyanin.
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 15-23 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.
Response to Applicants’ arguments:
Applicants argue that Chouket et al. teach anthocyanins achieving sufficiently stable by complexing with water-soluble plant-based or animal proteins and peptides characterized and thus there is no reason for person of ordinary skill in the art to modify anthocyanins taught by Chouket et al.
However, this argument is not deemed persuasive.
First, Chouket et al. stabilized phycocyanin being desirable, thus, higher phycocyanin stabilization is not in contradiction with Chouket et al.’s teachings, thus the modification of complexing phycocyanin with Zn for further stabilization will not make Chouket et al.’s teachings inoperable and Chouket et al. do not teach further stabilization will make Chouket et al.’s teachings inoperable.
Second, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Please refer to MPEP 2145.III. Also, MPEP 2143.02:
A rationale to support a conclusion that a claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded nothing more than predictable results to one of ordinary skill in the art.
Applicants argue that Choisy et al. do not teach stabilizing color hue of anthocyanins in acid and after thermal treatment.
However, this argument is not deemed persuasive. This is a 35 USC 103(a) rejection and not a 35 USC 102 rejection and one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references.
Conclusion
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 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.
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.
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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