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, 2, 5, 7, 8, 10-15, 18, 21, 25-27, 30-39, and 42 are pending.
Applicant’s election without traverse of Group II, claims 21, 25-27, 30-39, and 42, in the reply filed on 1/30/26 is acknowledged.
Claims 1, 2, 5, 7, 8, 10-15, and 18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 1/30/26.
Claims 21, 25-27, 30-39, and 42 are examined on the merits.
Claim Objections
Claims 21, 25-27, 30-39, and 42 are objected to because of the following informalities: Claim 21 recites “panthothenic acid” at last line, which is incorrect. The correct spelling should be “pantothenic acid”.
All other cited claims depend directly or indirectly from objected claims and are, therefore, also, objected for the reasons set forth above.
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 21, 25-27, 30-39, and 42 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) 21, 25-27, 30-39, and 42 is/are directed to a composition for mitigating the effects of alcohol consumption, wherein a serving of the composition comprises: ginseng; vitamin C; glutathione; vitamin B1; vitamin B2; vitamin B6; niacin; folate; zinc; turmeric extract; ginger root; magnesium; caffeine; fructose; and panthothenic acid.
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, ginseng; vitamin C; glutathione; vitamin B1; vitamin B2; vitamin B6; niacin; folate; zinc; turmeric extract; ginger root; magnesium; caffeine; fructose; and panthothenic acid each exists in nature, and there is no indication that the combination of the claimed components has any characteristics that are different from the each naturally occurring components.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than the judicial exception?
No. The claim(s) of 21, 25-27, 30-39, and 42 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Regarding claims 21, and 42, 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.
Claims 25-27, and 30-39 require certain amounts 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 claim 41, a composition for oral consumption or administration does not result in a markedly different characteristic because the claimed components already have the characteristic of being in a form suitable for oral consumption. Regarding claim 41, a composition in a blended liquid solution does not result in a markedly different characteristic for the claimed composition because the claimed plant material such as ginseng, ginger, or turmeric already comprises water and thus have that same characteristic.
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 § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained through the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 21, 25-27, 30-39, and 42 are rejected under 35 U.S.C. 103(a) as being unpatentable over Somavat et al (WO 2015/099842 A1), in view of Kwon (KR 2022117742 A).
Somavat et al teach a nutritional composition for fortifying a hot beverage (thus a blended liquid solution for administered orally, thus claim 42 is met), such as coffee or tea (see Abstract). Somavat et al teach the product form of conventional energy drinks makes them an attractive option for combining with alcohol. Use of energy drinks reduces the feeling of inebriation, which can result in prolonged drinking sessions and increased consumption of alcohol (thus the intended use of mitigating the effects of alcohol consumption is met) [00197].
Somavat et al teach a powdered nutritional composition for fortifying a hot beverage, the composition comprising: at least one additive selected from the group consisting of turmeric root extract (thus the claimed component), ginseng (thus the claimed component), ginger (thus the claimed component) etc. (see claim 1). Somavat et al teach the powdered nutritional composition of any one of the preceding claims, wherein a serving size of the composition is from 5 g to 12 g (see claim 90). Somavat et al teach the nutritional composition of claim 100, wherein the at least one B vitamin is selected from the group consisting of thiamine (Bl) (thus the claimed vitamin B1), riboflavin (B2) (thus the claimed vitamin B2), niacin (B3) ((thus the claimed niacin), niacineamide (B3), pantothenic acid (B5) (thus the claimed panthothenic acid), pyridoxine (B6), pyridoxamine (B6), pyridoxal (B6) (thus the claimed vitamin B6), biotin (B7), folic acid (B9) (thus the bioequivalent of claimed folate), folinic acid (B9), etc. (see claim 104). Somavat et al teach the nutritional composition of claim 121, wherein the mineral is selected from the group consisting of magnesium (thus the claimed component), zinc (thus the claimed component), etc. (see claim 122). Somavat et al teach the nutritional composition of claim 119, wherein the non-B vitamin is selected from the group consisting of Vitamin C, etc. (see claim 120). Somavat et al teach the nutritional composition of any one of claims 100-139, wherein the composition
comprises caffeine (thus the claimed component) (see claim 172). Somavat et al teach non-limiting examples of suitable carbohydrates or sources thereof for use in the powdered nutritional composition described herein include fructose (thus the claimed component) etc. [00135].
Somavat et al do not teach the claimed components in one composition or at claimed amount; neither do Somavat et al teach the incorporation of glutathione.
Kwon teaches the present invention relates to a hangover relieving compn. comprising a dry powder, lysate or ext. of yeast for producing glutathione and acetaldehyde dehydrogenase. More specifically, a hangover relieving compn. contains a dry powder, lysate or ext. of Saccharomyces cerevisiae Kwon P-1 KCTC 13925BP, Saccharomyces cerevisiae Kwon P-2 KCTC14122BP and Saccharomyces cerevisiae Kwon P-3 KCTC14123BP yeast producing simultaneous prodn. of glutathione and acetaldehyde dehydrogenase (see Abstract).
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to include the composition of Kwon containing glutathione into the composition of Somavat et al to increase consumption of alcohol since Kwon teaches the present invention relates to a hangover relieving compn. comprising glutathione and acetaldehyde dehydrogenase. Since both of the composition teach consumption of alcohol, one of the ordinary skill in the art would have been motivated to combine the teachings of the references together.
It would also have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention combine the claimed components in one composition so as to achieve additive mitigating the effects of alcohol consumption. Regarding the claimed amount of each component, determining an appropriate amount of the components within the composition is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of the references, it is apparent that one of the ordinary skills in the art would have had a reasonable expectation of success in producing the claimed invention.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
An examination of this application reveals that applicant is unfamiliar with patent prosecution procedure. While an inventor may prosecute the application, lack of skill in this field usually acts as a liability in affording the maximum protection for the invention disclosed. Applicant is advised to secure the services of a registered patent attorney or agent to prosecute the application, since the value of a patent is largely dependent upon skilled preparation and prosecution. The Office cannot aid in selecting an attorney or agent.
A listing of registered patent attorneys and agents is available on the USPTO Internet web site http://www.uspto.gov in the Site Index under “Attorney and Agent Roster.” Applicants may also obtain a list of registered patent attorneys and agents located in their area by writing to the Mail Stop OED, Director of the U. S. Patent and Trademark Office, PO Box 1450, Alexandria, VA 22313-1450.
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.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655