DETAILED ACTION
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 .
Claim Status
The status of the claims upon examination of the present application stands as follows:
Pending claims: 1-20
Withdrawn claims: None
Claims currently under consideration: 1-20
Currently rejected claims 1-20
Allowed claims: None
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 is a method requiring adding a first ingredient to “a beverage solution.” Claim 4 requires “the beverage solution” to have a second ingredient that is fermented—the starting liquid of claim 1 thus has to already contain a fermented liquid before the first ingredient is added. Claim 5 attempts to require the first ingredient to be added prior to fermentation of the second ingredient, but that contradicts the requirements of claims 1 and 4. Claim 5 thus fails to include all the limitations of the claims from which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections-35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 4, 6-8, 10-13, 16, 17 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Howard et al. (US 6,642,277 B1) (hereinafter referred to as “Howard I”).
Regarding claim 1, Howard I teaches a method of producing a beverage containing polyphenol as an ingredient by mixing a dry composition comprising polyphenols with an acceptable liquid (claim 1, col. 28, ll. 35-44; claim 10, col. 29, ll. 3-5).
Regarding claim 2, Howard I teaches all elements of claim 1 as described above. Howard I also teaches the preparation of a polyphenol powder (col 11, ll. 16-30).
Regarding claim 4, Howard I teaches all elements of claim 1 as described above. Howard I also teaches the addition of polyphenol powder to a fermented beverage (i.e., vodka) (col. 18, l. 57- col. 19, l. 2).
Regarding claim 6, Howard I teaches all the elements of claim 1 as described above. Further, Howard I teaches the polyphenols present in powder produced from red wine, along with their corresponding concentrations (col. 12, Table 1). Among the list of polyphenols, Howard I teaches the presence of gallic acid, myricetin, quercetin, and cis/trans resveratrol, all of which are listed in claim 6 of the subject application.
Regarding claim 7, Howard I teaches all the elements of claim 1 as described previously. Howard I also teaches a method of providing a dry powder containing at least 25% w/w polyphenols that maybe administered as a drink by mixing the powder with an acceptable liquid that includes an alcoholic solution (col. 29, ll. 3-10). Further, Howard I teaches a study conducted to evaluate the antioxidant activity of red and white wine, and polyphenol compositions (col. 13, ll. 1-6). Regarding the study, Howard I teaches a list of test substances that include white wine containing polyphenol powder produced from red wine (col. 13, ll. 34, 35).
Regarding claims 8 and 10, Howard I teaches all the elements of claim 7 as described above. Howard I also teaches embodiments of a beverage containing polyphenols at a concentration of 2000 mg/L (col. 18, l. 56-col. 19, l. 2).
Regarding claim 11, Howard I teaches the formulation of a bottled ready-to-drink beverage mix comprising polyphenol and vodka (i.e., a fermented beverage) (col. 18, l. 57- col. 19, l. 2).
Regarding claim 12, Howard I teaches all the elements of claim 11 as described above. Howard I also teaches a mixture produced by adding dry polyphenol powder to deaerated tonic water and vodka to provide an alcoholic beverage (col. 18, l. 57- col. 19, l. 2).
Regarding claim 13, Howard I teaches all the elements of claim 12 as described above. In addition, Howard I teaches a beverage product comprising polyphenol powder produced from red wine (col. 11, ll. 16-31).
Regarding claim 16, Howard I teaches all the elements of claim 11 as described above, Howard I also teaches an embodiment of a beverage product comprising a polyphenol powder and white wine (col. 16, l. 30).
Regarding claims 17 and 20, Howard I teaches the elements of claim 16 as described above. Howard I also teaches the embodiment of a beverage product containing polyphenols at a concentration of 2000 mg/L (col. 18, l. 56-col. 19, l. 2).
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 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 3, 9, 18 and 19 are rejected under 35 U.S.C 103 as being unpatentable over Howard I in view of Howard (US 6,238,673 B1) (hereinafter referred to as “Howard II”).
Regarding claim 3, Howard I teaches all elements of claim 2 as described above.
Howard I does not teach a polyphenol powder comprised of grape skins.
However, Howard II teaches a method of producing a dry polyphenol composition (i.e., powder) rich in flavanol polyphenols from liquid grape extracts derived from various sources including grape skins (claim 2, col. 14, ll. 40-43).
It would have been obvious to one having ordinary skill in the art to use powder comprising grape skins in the product of Howard I. Howard I discusses polyphenol compositions currently available on the market, and further discusses an available composition derived from grape skins that is low in polyphenol content (col. 3, ll. 29-36). Howard I also notes that grape skins from Concord grape variety are high in flavanols (col. 8, ll. 10-13). Since Howard I discloses obtaining polyphenols from extracts of plants, including fruit, (col. 6, ll. 45-56) but does not provide detailed instruction regarding obtaining polyphenol powder from grape skin, a skilled practitioner would be motivated to consult Howard II for more specific instruction regarding such a process. Since Howard II discloses producing dry polyphenols from sources including grape skins, the production of powder comprising grape skins would be obvious to a skilled practitioner.
Howard I and Howard II are both from the same field of endeavor, namely isolating polyphenols from grape sources for use as a supplement to provide health benefits.
Regarding claims 9, Howard I teaches all elements of claim 7 as described above.
Howard I does not specifically teach polyphenol concentrations ranging from 10 mg/L-200 mg/L as taught in the subject claim 9. However, Howard I and Howard II are combinable for the reasons described above.
Howard II teaches the use of a polyphenol powder as a food supplement for its antioxidant activity (col 2, ll. 9-11). Howard I teaches that the dose of polyphenol composition is dependent on the antioxidant activity and can range from 0.01-10 g/day(d) (col. 9, ll. 4-6). Howard I also teaches that the preferred dose of polyphenol powder from red wine ranges from 0.1-4.0 g/d, while 1-2 g/d is the most preferred dose (col. 9, ll. 5-8). Further, Howard I teaches embodiments of beverages comprised of polyphenol powder from red wine with polyphenol concentrations of 3000 mg/L (col. 18, ll. 34-48) and 2000 mg/L (col. 18, l. 56-col. 19, l. 2).
It would have been obvious to one having ordinary skill in the art to produce beverages containing different polyphenol concentrations. Dietary supplements are meant to provide nutrients beyond conventional food consumption to promote good health. Dietary needs and supplementation may vary based on an individual’s diet and other health-related factors. It would have been obvious to one ordinarily skilled in the art to produce polyphenol-containing beverages covering the range of concentrations taught in the subject claims 9 (10-200 mg/L) to address the different dietary needs of those for which the product is intended.
Regarding claims 18 and 19, Howard I teaches all elements of claim 16 as described above.
Howard I does not specifically teach a beverage product with polyphenol concentrations ranging from 10 mg/L-200 mg/L and 200 mg/L-1000 mg/L, as claimed in the subject claims 18 and 19, respectively.
However, the rationale used as the basis for the rejection of claim 9 likewise applies herein such that the range of claims 18 and 19 would have been obvious in view of Howard II.
Claim 5 is rejected under U.S.C 103 as being unpatentable over Howard I in view of Kammerer (Kammerer, D., Reinhold, C., “Evolution of Polyphenols during Vinification and Wine Storage,” Functional Plant Science and Biotechnology, 3(1), 2009, pp. 46-59) and Sun-Waterhouse (Sun-Waterhouse, D., et al., “Drinking yoghurts with berry polyphenols added before and after fermentation,” Food Control, 32, 2003, pp. 450-460).
Regarding claim 5, Howard I teaches all elements of claim 4 as described above.
Howard I does not specifically teach a method of adding polyphenols to a beverage solution prior to fermentation.
However, Kammerer teaches that fermentation techniques influence the polyphenol content of wine (p. 47, col. 2, ¶ 5). In addition, Sun-Waterhouse teaches that adding black currant polyphenol extract to yogurt before fermentation results in the presence of small phenolic molecules (e.g., phenolic acids) and four times the amount total extractable polyphenols compared to polyphenol addition after fermentation (p. 451, col. 1, ¶ 3).
A skilled practitioner would have found it obvious to incorporate the teachings of Kammerer and Sun-Waterhouse to modify the method of Howard I. Regarding fermentation, both Kammerer and Sun-Waterhouse are directed toward evaluating the effects of fermentation conditions on the polyphenol profile of food products. To one ordinarily skilled in the art, it would have been obvious that the addition of a polyphenol ingredient to a beverage solution prior to fermentation could significantly alter the polyphenols present in the final food product. One skilled in the art would have been motivated to make this modification to increase the level of extractable polyphenols in the final beverage product.
Claims 14 and 15 are rejected under U.S.C 103 as being unpatentable over Howard I.
Regarding claim 14, Howard I teaches all the elements of claim 11 as described above.
Howard I does not teach a beverage product produced by adding a polyphenol-containing ingredient to a second ingredient prior to fermentation of the second ingredient.
However, MPEP § 2144.04(IV)(c) states “Selection of any order of mixing ingredients is prima facie obvious.” In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930).
Therefore, it would have been obvious to add the polyphenol ingredient before fermentation of the second ingredient.
Regarding claim 15, Howard I teaches all of the elements of claim 11 as described above.
Howard I does not specifically teach a beverage product comprising a polyphenol powder containing the types of polyphenols listed in claim 15.
However, Howard I teaches a presentation of a beverage containing a polyphenol composition added to water or fruit juice to provide an effective dose of polyphenols (col. 10, ll. 12-20) and teaches a polyphenol composition derived from wine or grape juice (col. 28, ll. 47, 48). Howard also teaches the type and concentration of polyphenols present in red grape juice (col. 12, Table 1). Using the same rationale provided above, with respect to claim 6, it would be obvious that a beverage product containing a polyphenol composition derived from grape juice would contain the same type of polyphenols listed in claim 15.
Conclusion
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/MDS/
Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793