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 .
Election/Restrictions
Applicant’s election of Group I, claims 1-3 and 5, and epigallocatechin gallate species in the reply filed on November 6, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claim 6 has been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
Claim Rejections - 35 USC § 112
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 1-3 and 5 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “said active ingredients being present in amounts range from 0.03% to 5% by weight”. It is unclear as to if the limitation intends for the total amount of the recited active ingredients to be present from 0.03-5%, or if the limitation intends for each of said active ingredients, if present, to be present individually in the recited amount, or if the claim is requiring each of said ingredients in the recited range, or if the claim has some other meaning. It is noted that the elected species for the active ingredient resulted in an election of epicatechins, and thus, for the purpose of prior art comparison the claim will be considered to require about 0.03-5% epicatechins for prior art comparison.
Claim Rejections - 35 USC § 103
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 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 1-3 and 5 are rejected under 35 U.S.C. 103 as obvious over Wei et al (AU 2020101855).
Wei et al (Wei) teaches a tableting candy comprising: 0.1-5 parts lactic acid and 0.1-10 parts epigallocatechin gallate (claims 1 and 2).
Regarding the at least one active ingredient as liable to cause browning of the product as recited in claim 1, as Wei teaches of the same active ingredient, i.e. epigallocatechin gallate, the ingredient of Wei would be capable of functioning in the same manner as the ingredient as claimed.
Regarding the at least one active ingredient as from 0.03-5% and the lactic acid as from 0.2-0.3% as recited in claim 1, wherein the active ingredient is epigallocatechin gallate from 0.03-5% as recited in claim 5, as discussed above Wei teaches a tableting candy comprising: 0.1-5 parts lactic acid and 0.1-10 parts epigallocatechin gallate. Wei teaches that the candy comprises 62.91-285.1 additional components (sum of the minimum and maximum of other components recited in claims 1 and 2). As Wei teaches that the candy comprises said additional components and does not require and/or disclose any further ingredients, to form the product of Wei with the claimed and disclosed components of Wei, and without any further ingredients would have been a clear and obvious suggestion of the prior art. Thus, the product of Wei encompasses one with about 0.35% (0.1/290.2) to about 13.7% (10/73.01) epigallocatechin gallate and about 0.03% (0.1/295.2) to about 7.35% (5/68.1) lactic acid which encompasses the claimed ranges. Furthermore, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792