DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. The amendment filed May 22, 2026 has been received and entered. The text of those sections of Title 35, U.S. Code, not included in this action can be found in a prior Office action. Any rejection set forth in a previous Office action that is not specifically set forth below is withdrawn.
3. Claims 1-15 are pending.
Election/Restrictions
4. In the reply filed on February 12, 2026, applicant elected Group I, claims 1-7, without traverse.
5. Claims 8-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
6. Claims 1-7 are examined on the merits.
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
7. Claims 1-7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, 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 or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The claims have been amended to state that the water used for the extraction of the Saskatoon berry is neutral. However, the specification and claims as originally filed do not discuss the pH or the purity of the water used as the extraction solvent. Thus, there is a lack of literal antecedent basis for this limitation. In addition, the pH of tap water can vary widely, generally a pH between 6.5 and 8.5 (see Christopher, page 1 (“What is the Best Ph Level for Drinking Water?” https://www.raynewater.com/blog/what-is-the-best-ph-level-for-drinking-water/) June 29, 2020). Thus, there is also a lack of inherent basis for the limitation of “neutral water” because the pH of water is not necessarily neutral, and only pure water would inherently be understood to have a neutral pH. Therefore, this new limitation introduces new matter into the disclosure of the application.
Claim Rejections - 35 USC § 103
8. Claim(s) 1-7 are is/are rejected under 35 U.S.C. 103 as being unpatentable over “Saskatoon Berries” (https://web.archive.org/web/20220418160009/https://foodb.ca/reports/saskatoon_berry - internet archived version from April 18, 2022) in view of “Serviceberries” (https://www.uaf.edu/ces/publications/database/food/files/pdfs/FNH-00122-Serviceberries.pdf - January 2022) and Christopher (“What is the Best Ph Level for Drinking Water?” https://www.raynewater.com/blog/what-is-the-best-ph-level-for-drinking-water/) June 29, 2020).
The “Saskatoon Berries” article teaches that Saskatoon berries are a good source of easily absorbed iron and are useful for treating anemia (see page 2). Thus, an artisan of ordinary skill would reasonably expect that Saskatoon berries could be administered to a subject in need (i.e. a subject with anemia) in order to promote the absorption of iron in that subject associated with the intake of the Saskatoon berries. This reasonable expectation of success would have motivated the artisan to administer Saskatoon berries to a subject in need thereof in order to promote the absorption of iron in the subject. The reference does not specifically teach that the Saskatoon berries are extracted with neutral water. However, the reference does teach that the Saskatoon berries can be administered as a juice (see page 1).
The “Serviceberries” (synonymous with Saskatoon berries) article teaches that Saskatoon berry juice is made by extracting the berries with water (see page 1). Thus, it was known in the art at the time of the invention that Saskatoon berry juice is made by extracting the berries with water. Therefore, an artisan of ordinary skill would have reasonably expected that water extraction could be used to create the Saskatoon berry juice taught by the “Saskatoon Berries” article. This reasonable expectation of success would have motivated the artisan to modify the “Saskatoon Berries” article to include extraction of the berries with water.
The references do not specifically teach extracting the berries using a neutral pH water, the ratios of water to berry, or the temperatures claimed by applicant. However, as discussed in MPEP section 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).” Varying the extraction parameters such as temperature and solvent concentration is not considered to be inventive unless the concentrations and temperatures are demonstrated as critical. In this particular case, there is no evidence that the claimed concentrations or temperatures produces an unexpected result. In addition, Christopher teaches that the best pH for drinking water is 7 (see page 2). Therefore, an artisan of ordinary skill would reasonably expect that this pH would be the optimal pH to use when creating the Saskatoon berry water extract taught by the references. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of extraction parameters would have been obvious before the effective filing date of applicant’s claimed invention.
9. No claims are allowed.
Applicant's amendment necessitated the new 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655
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