DETAILED ACTION
Status of the Claims
Claims 1-20 are pending in the instant application. Claim 19 has been withdrawn based upon Restriction/Election as discussed below. Claims 1-19 are being examined on the merits in the instant application.
Advisory Notice
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Restriction/Election
Applicant's election without traverse of Group I drawn to compositions of matter in the reply filed on 07/15/2026 is acknowledged.
The requirement is deemed proper and is therefore made FINAL.
Claim 20 has been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected subject matter, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/15/2026.
Priority
The U.S. effective filing date has been determined to be 11/18/2023, the filing date of the instant application.
Information Disclosure Statement
No Information Disclosure Statements have been filed in the instant application. Applicants are reminded of their duty to disclose patents and publications relevant to the patentability of the instant claims. Applicant is reminded of the requirements of 37 CFR 1.56 and Li Second Family Limited Partnership v. Toshiba Corp., 56 USPQ2d 1681 (Fed. Cir. 2000); accord McKesson Information Solutions, Inc. v. Bridge Medical, Inc. 487 F.3d 897, 913. (Fed.Cir.2007).
Claim Objections
Claim 18 is objected to because of the following informalities: the claim recites “potassium sorbet” in the last line of the claim which should be “potassium sorbate”. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3, 4 & 18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 3 recites the limitation "head hair benefit trace metal(s)" in claim 2. There is insufficient antecedent basis for this limitation in the claim. Claim 2 introduces “head hair benefit trace metal elemets and oxides and salts therof,” but does not previously introduce the shorter phrase “head hair benefit trace metal(s).” Appropriate clarification is required.
Claim 3 is further ambiguous as to whether the recited metals (zinc, calcium, selenium) must themselves be present as elemental metals, or whether their oxides or salts are also intended to be covered. The relationship between the recited metals and the broader “trace metal elements and oxides and salts thereof” language of claim 2 is unclear. Appropriate clarification is required.
Claim 4 is rejected as being indefinite because the claim recites “wherein the salts of the head hair benefit trace elements comprise citrate, chloride, sodium, or sulfate salts.” MPEP §2173.05(h)(I) makes clear that “A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members.” Appropriate clarification is required.
Claim 18 is rejected as being indefinite because the claim includes a Table of constituent ingredients. MPEP §2173.05(s) makes clear that: “Where possible, claims are to be complete in themselves. Incorporation by reference to a specific figure or table "is permitted only in exceptional circumstances where there is no practical way to define the invention in words and where it is more concise to incorporate by reference than duplicating a drawing or table into the claim.” In the instant case the constituent ingredients need not be in the form of a Table. Appropriate clarification is required.
Claim Rejections - 35 USC § 102
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 1-3, 5, 7, 9-12, 14, 16 and 19 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by SHOBIN (WO 2020/051094 A1; published March, 2020).
Applicant Claims
Applicant claims a composition for support of head hair health, comprising (i) amla and (ii) one or more head hair benefit ingredient(s) (instant claim 1). And wherein the one or more head hair benefit ingredient(s) comprise one or more selected from the group consisting of: head hair benefit trace metal elements and oxides and salts thereof; and head hair health benefit Vitamins (instant claim 2), the trace metals including zinc, calcium and selenium (claims 3-9, 17-19), the Vitamins including Vitamins A, B, C, D, E and K (claims 10-13, 17 and 18).
Disclosure of the Prior Art
SHOBIN discloses “This disclosure relates to a beverage containing amla, and more specifically, to a fortified beverage containing amla, vitamins, and electrolytes.” (p. 1, [1]). SHOBIN discloses that: “One aspect of the present disclosure is to provide a beverage fortified with amla, electrolytes, and vitamins that may provide health benefits to the consumer.” (p. 3, [17]). SHOBIN teaches “In an embodiment, amla may comprise the general composition detailed in Table 1, based on an exemplary 100 gram sample.” (p. 3, [19], Table 1) including water (instant claim 16), and that: “Amla may be a source of vitamins and minerals. […] Table 2 lists the vitamins and minerals that may be present in an exemplary embodiment of a 100 g sample of amla.” ([20]-[21]), and including Vitamins A, C E, Niacin, B6, Folate, Pantothenic Acid, zinc, selenium, among others (instant claims 1-3, 5, 7, 9, 10-12 & 19). Regarding instant claim 14, one of ordinary skill in the art would have recognized that the fortified alma beverage disclose by SHOBIN would have been in soluble form, and would have been properly packaged for the consumer (MPEP §2144.01)(instant claims 14 & 19).
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 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 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 1-14, 16-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over SHOBIN (WO 2020/051094 A1; published March, 2020) in view of AMYX (WO 2020/231906 A1; published November, 2020).
Applicants Claims
Applicant claims a composition for support of head hair health, comprising (i) amla and (ii) one or more head hair benefit ingredient(s) (instant claim 1). And further claims the salts of the trace metal elements comprise citrate, chloride, sodium, or sulfate salts (instant claim 4). Applicant further claims the amount of zinc (5-40 mg) and the amount of selenium (10-150 μg)(instant claims 6 & 8).
Determination of the scope
and content of the prior art (MPEP 2141.01)
SHOBIN discloses “This disclosure relates to a beverage containing amla, and more specifically, to a fortified beverage containing amla, vitamins, and electrolytes.” (p. 1, [1]). SHOBIN discloses that: “One aspect of the present disclosure is to provide a beverage fortified with amla, electrolytes, and vitamins that may provide health benefits to the consumer.” (p. 3, [17]). SHOBIN teaches “In an embodiment, amla may comprise the general composition detailed in Table 1, based on an exemplary 100 gram sample.” (p. 3, [19], Table 1) including water (instant claim 16), and that: “Amla may be a source of vitamins and minerals. […] Table 2 lists the vitamins and minerals that may be present in an exemplary embodiment of a 100 g sample of amla.” ([20]-[21]), and including Vitamins A, C E, Niacin, B6, Folate, Pantothenic Acid, zinc, selenium, among others (instant claims 1-3, 5, 7, 9, 10-12 & 19). Regarding instant claim 14, one of ordinary skill in the art would have recognized that the fortified alma beverage disclosed by SHOBIN would have been in soluble form, and would have been properly packaged for the consumer (MPEP §2144.01)(instant claims 14 & 19).
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of SHOBIN is that SHOBIN does not disclose: (1) the metal trace element salts (citrate, chloride, sodium or sulfate salts of zinc, calcium or selenium)(instant claim 4); (2) the amount of zinc (5-40 mg) and the amount of selenium (10-150 μg)(instant claims 6 & 8); (3) the inclusion of riboflavin and biotin (instant claim 13); (4) the inclusion of Vitamin D (instant claim 17, “vitamins A-E”).
SHOBIN teaches “Sodium, potassium, and magnesium are positive ion electrolytes and chloride is a negative ion electrolyte, and in combination these electrolytes may supporting electrical impulse conduction and facilitate the absorption of other components of the fortified beverage.” (p. 8, [35]) clearly suggesting including sodium chloride, potassium chloride and/or magnesium chloride (instant claim 4).
SHOBIN teaches that: “Beverages may be fortified with electrolytes, vitamins or other beneficial compounds, to provide additional nutrition or nourishment beyond the beverage itself. These additives may enhance athletic performance, aid in recovery following exercise, promote overall health, or may provide other benefits.” (p.1, [2]).
AMYX teaches sport and nutritional supplement formulations including a beverage formulation (title, abstract, p. 42 [00243], p. 86 [00434], p. 101 [00503]). The compositions including vitamins and minerals, particularly vitamin B complex vitamin D, vitamin K, among others (p. 8, [0053]), and “Selenium: 10 to 250 µg, with a usual range of 20 to 50 µg. Zinc: 2.5 to 100 mg, with a usual range of 10 to 50 mg” (p. 8, [0054])(instant claims 6 & 8, amount of zinc and selenium).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a fortified beverage containing amla, vitamins, and minerals, as suggested by SHOBIN, the Vitamins including Vitamin B complex including Vitamins B1 (thiamin), B2 (riboflavin), niacin (nicotinic acid), B6 (pyridine), B12 (cyanocobalamin), B9 (folic acid/folate), B5 (pantothenic acid), and B7 (biotin), and the minerals zinc and selenium, the zinc being present in the usual range of 10 to 50 mg, and the selenium being present in the usual range of 20 to 50 µg, as suggested by AMYX, to produce a healthy consumer beverage.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over SHOBIN (WO 2020/051094 A1; published March, 2020) in view of AMYX (WO 2020/231906 A1; published November, 2020), as applied to claims 1-14, 16-17, and 19 above, and further in view of INNOCENZI (US 2011/0250318 A1; published October, 2011).
Applicants Claims
Applicant claims the beverage medium containing the solubilized amla and the one or more head hair benefit ingredient(s) is a clear solution (instant claim 15).
Determination of the scope
and content of the prior art (MPEP 2141.01)
SHOBIN discloses and/or teaches a fortified beverage containing amla, vitamins, and electrolytes, as discussed above and incorporated herein by reference.
AMYX teaches sport and nutritional supplement formulations including a beverage formulation, as discussed above and incorporated herein by reference.
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of SHOBIN is that SHOBIN does not disclose: the beverage is a clear solution (instant claim 15).
INNOCENZI nutritional compositions including a beverage (title, [0237], see whole document), and that: “The term "beverage" as used herein refers to a solution ingested in a liquid form. A solution generally is considered as a homogeneous mixture of two or more substances; it is frequently, though not necessarily, a liquid. In a solution, the molecules of the solute (or dissolved substance) are uniformly distributed among those of the solvent.” ([0249]). The examiner notes that a solution can be colored and still form a clear solution (i.e. not a cloudy solution), therefore the beverage of INNOCENZI is implied as a clear solution (instant claim 15)( MPEP §2144.01). INNOCENZI teaches that: “Many consumers rely on the appearance of a product and/or packaging on which to base a decision to purchase or consume a product. General appearance characteristics include color, size and shape, surface texture, clarity, and carbonation.” [emphasis added]([0363]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a fortified beverage containing amla, vitamins, and minerals, as suggested by SHOBIN, the Vitamins including Vitamin B complex including Vitamins B1 (thiamin), B2 (riboflavin), niacin (nicotinic acid), B6 (pyridine), B12 (cyanocobalamin), B9 (folic acid/folate), B5 (pantothenic acid), and B7 (biotin), and the minerals zinc and selenium, the zinc being present in the usual range of 10 to 50 mg, and the selenium being present in the usual range of 20 to 50 µg, as suggested by AMYX, to produce a healthy consumer beverage that is a clear solution, as suggested by INNOCENZI, for consumer acceptance.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over SHOBIN (WO 2020/051094 A1; published March, 2020) in view of AMYX (WO 2020/231906 A1; published November, 2020), as applied to claims 1-14, 16-17, and 19 above, and further in view of JUCKER (US 2022/0061360 A1; published March, 2022).
Applicants Claims
Applicant claims the beverage of claim 17, having the following weight percentage of ingredients, wherein the total percentage of all ingredients in the composition, as recited in claim 18.
Determination of the scope
and content of the prior art (MPEP 2141.01)
SHOBIN discloses and/or teaches a fortified beverage containing amla, vitamins, and electrolytes, as discussed above and incorporated herein by reference.
AMYX teaches sport and nutritional supplement formulations including a beverage formulation, as discussed above and incorporated herein by reference.
Ascertainment of the difference between
the prior art and the claims (MPEP 2141.02)
The difference between the rejected claims and the teachings of SHOBIN is that SHOBIN does not disclose: the inclusion of chromium, iodine, Vitamin D, or a blend of plant extracts comprising ashwagandha, amla, reishi mushroom, lion's mane mushroom, holy basil, turmeric root, raspberry juice concentrate, natural flavors, stevia extract, vegetable glycerine, potassium sorbate, and citric acid (instant claim 18).
AMYX teaches that their “Formulations and methods as described herein may include adaptogens. An adaptogen is a metabolic regulator which increases the ability of an organism to adapt to environmental factors, and prevents damage from such factors. Exemplary adaptogens include, but are not limited to, ashwagandha […] reishi […].” [emphasis added]([00447], [00472]). AMYX teaches the inclusion of potassium sorbate ([00452], [00476]). AMYX teaches the inclusion of flavoring agents including “The fruit juice can be any citrus juice, non-citrus juice, or mixture thereof, which is known for use in dilute juice beverages. The juice can be extracted from, but [not] limited to, […} raspberry […].” [emphasis added]([00462], [00487])(natural flavors, citric acid). AMYX teaches the inclusion of “chromium, chromium chloride, chromium picolinate, and chromium polynicotinate.” [emphasis added](p. 96, line 2). AMYX teaches the inclusion of “Yamabushitake (Hericium erinaceum), known as the Lion's Mane Mushroom, appears to have bioactive polysaccharides (carbohydrates) in addition to some ethanolic soluble molecules. In one or more embodiments, the disclosed compositions comprise embodiments wherein Yamabushitake is present in 50-1000 mg,” [emphasis added]([00327]). AMYX teaches the inclusion of “In one embodiment, the botanical nitrate source is selected from the group consisting of […] holy basil, […] ashwagandha root, […] stevia […] and mixtures thereof.” [emphasis added]([00154], [00336]). AMYX teaches the inclusion of curcumin and/or curcuminoids extracted from turmeric ([00248]-[00289]). AMYX teaches the inclusion of glycerol (syn. glycerine). The examiner notes that while animal glycerine and vegetable glycerine are technically identical, it would have been prima facie obvious to utilize vegetable glycerine for consumer vegetarian/vegan preferences.
JUCKER teaches health functional beverage which improve the well-being of the consumer (title, abstract, see whole document) including minerals and vitamins, and particularly “Suitable vitamins are for example vitamin A (retinals and carotenoids), vitamin B1 (thiamine), vitamin B2 (riboflavin), vitamin B3 (niacin), vitamin B5 (pantothenic acid), vitamin B6 (pyridoxine), vitamin B7 (biotin), vitamin B9 (folic acid or folate), vitamin B12 (cobalamins), vitamin C (ascorbic acid), vitamin D (calciferols), vitamin E (tocopherols and tocotrienols), and vitamin K, (quinones). Suitable minerals are for example calcium, chromium, iodine, copper, phosphorus, iron, iodine, selenium, zinc, manganese, and molybdenum.” ([0117]). And “In an embodiment of the invention, the total amount of the added vitamin and mineral mixture is typically in the range of 0.01 to 0.1 % (w/w).” ([0119]). The examiner notes that the total amount of minerals and vitamins claimed is 0.0396 (0.00022 + 0.00055 + 0.00022 + 0.0066 + 0.00055 + 0.00726 + 0.02200 + 0.00002 + 0.00220 = 0.0396) which is within the range of the amount suggested by JUCKER. Therefore, while the prior art does not teach the specific amounts of each vitamin and mineral as a weight percentage of the whole beverage it would have been prima facie obvious to include known amounts of each of the claimed vitamins and minerals within the range suggested by the prior art and arrive at the claimed amounts of vitamins and minerals, as suggested by JUCKER.
JUCKER further teaches including a sweetener including glycerin (syn. glycerine)([0552]).
Regarding the blend of plant extracts comprising ashwagandha, amla, reishi mushroom, lion's mane mushroom, holy basil, turmeric root, raspberry juice concentrate, natural flavors, stevia extract, vegetable glycerine, potassium sorbate, and citric acid, the combination of cited references suggest alma (SHOBIN) and each of reishi mushroom, lion's mane mushroom, holy basil, turmeric root, raspberry juice concentrate, natural flavors, stevia extract, vegetable glycerine, potassium sorbate, and citric acid (AMYX). It would have been prima facie obvious to select known health-beneficial ingredients in optimized amounts to provide the same in a beverage as suggested by, SHOBIN, AMYX and JUCKER (MPEP §2144.05(II)).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a fortified beverage containing amla, vitamins, and minerals, as suggested by SHOBIN, the Vitamins including Vitamin B complex including Vitamins B1 (thiamin), B2 (riboflavin), niacin (nicotinic acid), B6 (pyridine), B12 (cyanocobalamin), B9 (folic acid/folate), B5 (pantothenic acid), and B7 (biotin), and the minerals zinc and selenium, the zinc being present in the usual range of 10 to 50 mg, and the selenium being present in the usual range of 20 to 50 µg, as suggested by AMYX, and including the vitamins/minerals in a total amount in the range of 0.01 to 0.1 % (w/w), and including a blend of plant extracts comprising ashwagandha, amla, reishi mushroom, lion's mane mushroom, holy basil, turmeric root, raspberry juice concentrate, natural flavors, stevia extract, vegetable glycerine, potassium sorbate, and citric acid, the combination of cited references suggest alma (SHOBIN) and each of reishi mushroom, lion's mane mushroom, holy basil, turmeric root, raspberry juice concentrate, natural flavors, stevia extract, vegetable glycerine, potassium sorbate, and citric acid (AMYX). It would have been prima facie obvious to select known health-beneficial ingredients in optimized amounts to provide the same in a beverage as suggested by, SHOBIN, AMYX and JUCKER (MPEP §2144.05(II)).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 and 20 of copending Application No. 19/212,037 (hereafter ‘037) in view of SHOBIN (WO 2020/051094 A1; published March, 2020); AMYX (WO 2020/231906 A1; published November, 2020); INNOCENZI (US 2011/0250318 A1; published October, 2011) and JUCKER (US 2022/0061360 A1; published March, 2022).
Instant claims are discussed above.
Copending ‘037 claim 1 recites a beverage composition for oral consumption for support of hair health, comprising (i) dairy milk, or non-dairy milk substitute, and (ii) one or more head hair benefit ingredient(s). Copending ‘037 claim 9 recites the beverage composition of claim 1, wherein the one or more head hair benefit ingredients are selected from the group consisting of: (i) trace elements, and/or oxides and/or salts and/or derivatives thereof; (ii) vitamins and derivatives thereof; (iii) proteins; (iv) amino acids; and (v) plant extracts. Copending ‘037 claim 10 recites the beverage composition of claim 9, wherein the trace elements and/or oxides and/or salts thereof comprise zinc, calcium, selenium, selenomethionine, manganese, potassium, sodium, and iron. Copending ‘037 claim 11 recites, the beverage composition of claim 9, wherein the salts and derivatives comprise] magnesium citrate, potassium sorbate, potassium iodine, sodium benzoate, sodium gluconate, zinc citrate and sodium chloride. Copending ‘037 claim 16 recites the beverage of claim 9, wherein the plant extracts comprise extracts of amla, ashwagandha, reishi mushroom, lion's mane mushroom, foti root (Polygonum multiflorum), holy basil (Ocimum tenuiflorum), horsetail (Equisetum arvense), turmeric root, Pygeum africanum, mountain ash (Sorbus aucupario L. Rosaceae) berries, saw palmetto (Serenoa repens) fruit, raspberry juice concentrate, beta-sitosterol, campesterol, stigmasterol, natural flavors, stevia extract, soy, vegetable glycerine, and citric acid.
The difference between the instantly rejected claims and the claims of copending ‘037 is that the claim of copending ‘037 do not expressly claim the amounts of the vitamins and/or minerals and/or plant extract, or the beverage is a clear solution.
SHOBIN discloses and/or teaches a fortified beverage containing amla, vitamins, and electrolytes, as discussed above and incorporated herein by reference.
AMYX teaches sport and nutritional supplement formulations including a beverage formulation, as discussed above and incorporated herein by reference.
INNOCENZI nutritional compositions including a beverage, as discussed above and incorporated herein by reference.
JUCKER teaches health functional beverage which improve the well-being of the consumer, as discussed above and incorporated herein by reference.
It would have been prima facie obvious before the effective filing date of the claimed invention that the instantly rejected claims are an obvious variant of the claims of copending ‘037 because, as with the instantly rejected claims, the copending claims are directed at beverage composition(s) including head hair health benefit ingredients which are substantially coextensive with those now claimed. The skilled artisan would have been motivated to modify the claims of copending ‘037 and produce the instantly rejected claim because it would have been prima facie obvious to include standard recommended amounts of vitamins, minerals and amount of plant extract to provide a consumer acceptable beverage. Furthermore, the skilled artisan would have had a reasonable expectation of success in producing the invention of the instantly rejected claims because it would have required no more than an ordinary level of skill in combining the ingredients as claimed.
This is a provisional obviousness-type double patenting rejection.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The examiner cites CHATTERJEE (WO 2011/151157 A1) as teaching a beverage dispenser including beneficial amounts of fortificants, and including amla (see whole document, particularly p. 17, 1st paragraph; paragraph bridging pp. 19-20; Examples 1 & 2).
Conclusion
Claims 1-19 are pending and have been examined on the merits. Claim 18 is objected to; claims 3, 4 & 18 are rejected under 35 U.S.C. 112(b); claims 1-3, 5, 7, 9-12, 14, 16 and 19 are rejected under 35 U.S.C. 102(a)(1); claims 1-19 are rejected under 35 U.S.C. 103; and claims 1-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of copending Application No. 19/212,037. No claims allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IVAN A GREENE whose telephone number is (571)270-5868. The examiner can normally be reached M-F, 8-5 PM PST.
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, David Blanchard can be reached on (571) 272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/IVAN A GREENE/Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
Prosecution Insights