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 .
This Office Action is in response to applicant’s submission dated March 18, 2026
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 1-3 are rejected under 35 U.S.C. 101 as evidenced by Wangensteen et al. (Anthocyanins, proanthocyanidins and total phenolics in four cultivars of aronia: Antioxidant and enzyme inhibitory effects, Journal of Functional Foods).
MPEP § 2106 sets forth the Subject Matter Eligibility Test to determine if a claim is directed to patent eligible subject matter. The following analysis is presented within the framework enumerated in MPEP § 2106.
Step 1: Is the claim directed to a statutory category of invention? Applicant’s claims are directed to a composition of matter; thus, the answer to Step 1 is Yes.
Step 2A, Prong 1: Is the claim directed to a judicial exception? In the instant case, Claim 1 is directed to a composition comprising aronia berry juice and up to 4% w/w gum arabic. Claims 2 and 3 are directed to the composition recited in claim 1, comprising between 10-100% and 75-100% w/w aronia berry juice. The recitation of “up to 4% w/w gum arabic” includes 0% in the range, per MPEP 2173.05(c)(II), and therefore includes a composition comprising only aronia berry juice.
The teaching of Wangensteen et al. states that Aronia includes two species of berry bush native to Northeastern North America, with Aronia melancarpa and Aronia arbutifolia being known as black and red chokeberry respectively. [Pg. 747, Col. 1, Par. 2] Therefore, the claims recite products of nature. MPEP § 2106.04(b) states that "When a claim recites a nature-based product limitation, examiners should use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A."
Markedly different characteristics analysis
MPEP § 2106.04(c)(I) states that "if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception...". To perform the markedly different characteristic analysis, MPEP § 2106.04(c)(II) states "The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties…”. Wangensteen et al. teaches all the limitation of claims 1-3, as described above.
In the instant case, there is no modification of the ingredients within the claimed composition. The fact pattern in this application is similar to that found in Funk Brothers Seed Co. V. Kalo Inoculant Co., 333 U.S. 127, 131 (1948) which stated "Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee". In the instant application each naturally occurring claim element has the same effect it always had. The claimed naturally occurring products perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee. As such, the characteristics of the claimed invention are not markedly different from their naturally occurring counterparts.
Therefore, the claims are drawn to mixtures of naturally occurring products. Thus, the answer to Step 2A, Prong One, is Yes.
Step 2A, Prong 2: Do the claims recite additional elements that integrate the judicial exception into a practical application? As discussed in MPEP § 2106.04(d)(2) this evaluation is performed by identifying whether there are additional elements recited in the claim beyond the judicial exception and evaluating these additional elements to determine whether the claim as a whole integrates the exception into a practical application. In the instant case, the only application of the instant invention is as a consumable product, which is taught by the natural product of Wangensteen et al. [Pg. 747, Col. 1, Par. 2] Therefore, there is no practical application claimed. Thus, the answer to Step 2A, Prong Two, is No.
Step 2B: Do the claims recite additional elements that amount to significantly more than the judicial exception? MPEP § 2106.05 states that this evaluation is performed by “Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself”. In the instant case, there are no additional elements, therefore the answer for Step 2B is no. As such, Claims 1-3 are not directed to patent eligible subject matter.
Claims 1-3 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a composition that exists in nature without significantly more. Wangensteen et al. states that Aronia includes two species of berry bush native to Northeastern North America, with Aronia melancarpa and Aronia arbutifolia being known as black and red chokeberry respectively. [Pg. 747, Col. 1, Par. 2] This judicial exception is not integrated into a practical application because the applicant does not alter the aronia berry in a significant way. Therefore, The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the composition recited is known to exist in nature with the recited components.
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 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Janiszewska et al. (Influence of the carrier material on the stability of chokeberry juice microcapsules, International Agrophysics).
With respect to Claim 1, Janiszewska et al. teaches the properties and processing methods of anthocyanins in chokeberry compositions. [Abstract] In a specific embodiment, Janiszewska et al. teaches a composition of aronia berry juice as a control. [Table 2] Due to the recitation of “up to 4% w/w gum arabic”, the range in claim 1 includes 0%. Therefore, the control of aronia berry juice by itself anticipates the invention recited in claim 1.
With respect to Claims 2-3, the control juice taught by Janiszewska et al. is a composition that comprises greater than 75% w/w aronia berry juice.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 6-11, and 14-19 are rejected under 35 U.S.C. 103 as being unpatentable over Mann (US 6,783,781 B2).
With respect to Claim 1, Mann teaches a composition comprising chokeberry (i.e., aronia) concentrate, water, and 5% gum arabic. [Example 2] The amount of gum arabic is greater than the amount recited in the instant claim, but it is the position of the examiner that 0-4% is close to 5%. MPEP 2144.05 I states, “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann to produce a composition comprising aronia berry juice and gum arabic up to 4%, thereby rendering claim 1 obvious.
With respect to Claim 2 and 3, Mann teaches the invention recited in claim 1, as described above. Additionally, Mann teaches chokeberry concentrate at 66% and water at 25%, resulting in a composition with 91% chokeberry juice. [Example 2] Therefore, Mann renders obvious claims 2 and 3.
With respect to Claim 6, Mann teaches a method for creating an aronia berry composition comprising gum arabic [Example 2] comprising the steps of mixing water and chokeberry concentrate to create a chokeberry juice then mixing with the gum composition in a blender. [Col. 5, Ln. 1-6] The amount of gum arabic is greater than the amount recited in the instant claim, but it is the position of the examiner that 0-4% is close to 5%. MPEP 2144.05 I states, “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”.
Mann does not teach reducing the astringency of the composition through the addition of gum arabic, but MPEP 2112.01 states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The method taught by Mann is comprises the same steps and components as claimed, and would consequently possess the same features, including the reduction of astringency.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann in order to devise a method of reducing the stringency of an aronia berry composition through the addition of gum arabic up to 4%, thereby rendering claim 6 obvious.
With respect to Claim 7, 9, and 10, Mann teaches the invention recited in claim 6, as described above. Additionally, Mann teaches a method for creating a composition comprising aronia berry juice at a concentration of about 91% [Example 2] through the combination of chokeberry concentrate with water, and the addition of gum arabic to the composition [Example 2] through blending the aronia berry composition with the gum. [Col. 5, Ln. 5-6] Therefore, Mann renders obvious claims 7, 9, and 10.
With respect to Claim 14, Mann teaches a method for creating an aronia berry composition comprising 5% gum arabic [Example 2] comprising the steps of mixing water and chokeberry concentrate to create a chokeberry juice then mixing with the gum composition in a blender. [Col. 5, Ln. 1-6] The amount of gum arabic is greater than the amount recited in the instant claim, but it is the position of the examiner that 0-4% is close to 5%. MPEP 2144.05 I states, “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Additionally, Mann teaches the gam arabic is used as a stabilizer to stabilize the product. [Col. 3, Ln. 30-35]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann in order to devise a method of stabilizing a composition of aronia berry juice with up to 4% gum arabic, thereby rendering claim 14 obvious.
With respect to Claims 8 and 16, Mann et al. teaches the inventions recited in claims 6 and 14, the claims upon which 8 and 16 are dependent respectively, as described above. Mann does not teach the gum arabic being in liquid or powder form, but, MPEP 2144.05 II B states, “When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp”. Gum arabic would only be available in a finite number of forms, including powder and liquid.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann to produce a composition comprising aronia berry juice and gum arabic, and a method for producing it, wherein the gum arabic is provided in either powder or liquid from, thereby rendering claims 8 and 16 obvious.
With respect to Claims 11 and 19, Mann teaches the inventions recited in claims 9 and 14, the claims upon which 11 and 19 are dependent respectively, as described above. Additionally, Mann teaches a composition comprising 91% aronia berry juice. [Example 2] According to MPEP 2144.05 II, “[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”. The recitation of “the composition comprises 84-86% w/w” is simply the result of routine optimization. One of ordinary skill in the art would have been motivated to determine the optimum amount of aronia berry juice to use in the composition in order to produce the best tasting and most nutritious composition. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann to perform a method of producing a composition comprising aronia berry juice, wherein the aronia berry juice is between 84-86%, thereby rendering claims 11 and 19 obvious.
With respect to Claim 15, 17, and 18, Mann teaches the invention recited in claim 14, as described above. Additionally, Mann teaches a method for creating a composition comprising aronia berry juice at a concentration of about 91% [Example 2] through the combination of chokeberry concentrate with water, and the addition of gum arabic to the composition [Example 2] through blending the aronia berry composition with the gum. [Col. 5, Ln. 5-6] Therefore, Mann renders claims 15, 17, and 18 obvious.
With respect to Claim 20, Mann teaches the invention recited in claim 14, as described above. Additionally, Mann teaches an embodiment with cranberry concentrate and water, wherein the gum arabic is present in an amount of 3.3%. [Example 1] In light of the two examples, one of ordinary skill in the art would have found it obvious to substitute chokeberry concentrate for cranberry concentrate in example 1. Therefore, Mann renders obvious claim 20.
Claims 5, 13, 21, and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Mann (US 6,783,781 B2) as applied to claims 1, 6, and 14 above, and in further view of Wangensteen et al. (Anthocyanins, proanthocyanidins and total phenolics in four cultivars of aronia: Antioxidant and enzyme inhibitory effects, Journal of Functional Foods).
With respect to Claims 5, 13, and 21, Mann teaches the invention recited in claims 1, 6, and 14, as described above, but is silent to the amount of proanthocyanidins.
Wangensteen et al. teaches the nutritional content of chokeberries, specifically anthocyanins, proanthocyanins, and total phenolics. [Title] Wangensteen et al. represents the results of total proanthocyanidin content as g procyanidin B-2 equivalent as between 2.46-4.79 PCB2 g/100g. [Table 2] In order to convert into catechin equivalents mg/mL, as disclosed in the instant specification, [0059] one must account for the difference in the molecular weight between PCB2 and catechin, which is about 1.99, and multiplying by 1.06 g/mL, the density of chokeberry juice, as disclosed in the instant specification. [0059]
Mann and Wangensteen et al. exist within the same field of endeavor in that they teach compositions comprising chokeberry juice. Where Mann teaches a composition comprising chokeberry juice and gum arabic, Wangensteen et al. teaches the properties of chokeberry juice compositions. Additionally, Wangensteen et al. teaches that proanthocyanidins show significant health promoting properties. [Introduction, Par. 1]
Using the conversion described above, Wangensteen et al. teaches the TPAC of a chokeberry composition comprising 2.46 PCB2 g/100g would be about 1.3 CE mg/mL, and a composition with 5% gum arabic would have a ratio of TPAC/gum arabic of about 26. This ratio falls within the range recited in the instant claims, and MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann in view of Wangensteen et al. in order to produce an aronia berry composition comprising gum arabic, wherein the gum arabic to TPAC ratio is at least 22.15:1, thereby rendering the claims 5, 13, and 21 obvious.
With respect to Claim 25, Mann teaches a composition comprising chokeberry (i.e., aronia) concentrate, water, and 5% gum arabic, [Example 2] but is silent to the ratio of TPAC/gum arabic.
Wangensteen et al. teaches the nutritional content of chokeberries, specifically anthocyanins, proanthocyanins, and total phenolics. [Title] Wangensteen et al. represents the results of total proanthocyanidin content as g procyanidin B-2 equivalent as between 2.46-4.79 PCB2 g/100g. [Table 2] In order to convert into catechin equivalents mg/mL, as disclosed in the instant specification, [0059] one must account for the difference in the molecular weight between PCB2 and catechin, which is about 1.99, and multiplying by 1.06 g/mL, the density of chokeberry juice, as disclosed in the instant specification. [0059]
Mann and Wangensteen et al. exist within the same field of endeavor in that they teach compositions comprising chokeberry juice. Where Mann teaches a composition comprising chokeberry juice and gum arabic, Wangensteen et al. teaches the properties of chokeberry juice compositions. Additionally, Wangensteen et al. teaches that proanthocyanidins show significant health promoting properties. [Introduction, Par. 1]
Using the conversion described above, Wangensteen et al. teaches the TPAC of a chokeberry composition comprising 2.46 PCB2 g/100g would be about 1.3 CE mg/mL, and a composition with 5% gum arabic would have a ratio of TPAC/gum arabic of about 26. This ratio falls within the range recited in the instant claims, and MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann in view of Wangensteen et al. in order to produce an aronia berry composition comprising gum arabic, wherein the gum arabic to TPAC ratio is at least 22.15:1, thereby rendering claim 25 obvious.
With respect to Claim 26, Mann in view of Wangensteen et al. teaches the invention recited in claim 25, as described above. Additionally, Mann teaches chokeberry concentrate at 66% and water at 25%, resulting in a composition with 91% chokeberry juice. [Example 2] Therefore, Mann renders obvious claim 26.
Claims 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Mann (US 6,783,781 B2) as applied to claims 14 in view of Janiszewska et al. (Influence of the carrier material on the stability of chokeberry juice microcapsules, International Agrophysics).
With respect to Claims 22-24, Mann teaches the invention recited in claim 14, as described above. Mann does not teach a method for comparing the nutritional qualities of different compositions comprising aronia berry juice and gum arabic.
Janiszewska et al. teaches a method of testing the effect of gum arabic on compositions comprising chokeberry. [Pg. 519, Col. 2., Par. 4] Of those tests performed, Janiszewska et al. teaches a test of physical properties, such as density and porosity, [Table 2] absorption, [Fig. 1] hygroscopicity, [Table 3] anthocyanin content, [Fig. 3] and more. This reads on the limitations of determining the stability of the composition comprising gum arabic and aronia berry by comparison of TPAC and content of at least one nutrient, but does not read on determining stability through comparison of aggregation and flocculation.
Mann and Janiszewska et al. exist within the same field of endeavor in that they teach compositions comprising chokeberry juice. Where Mann teaches a composition comprising chokeberry juice and gum arabic, Janiszewska et al. teaches the properties of chokeberry juice compositions. Additionally, Janiszewska et al. teaches that anthocyanins show significant health promoting properties. [Pg. 517, Col. 2, Par. 1]
Mann teaches a process of adding gum arabic to a chokeberry composition as recited in claim 14. Janiszewska et al. teaches measuring different properties of the composition through comparing those with and without gum arabic. According to MPEP 2112 II states, “There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference”. One of ordinary skill in the art would have found it obvious to test the inherent properties of the composition in order to determine the best composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Mann in view of Janiszewska et al. in order to test the properties of the composition produced by the method according to claim 14, through the comparison of the differences of TPAC, aggregation and flocculation, and the content of at least one nutrient between the composition comprising gum arabic and the composition without gum arabic, thereby rendering claims 22-24 obvious.
Response to Arguments
Applicant's arguments filed March 13, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 1 of the Remarks, lines 25-27, that, “aronia berries suffer from extreme astringency, which produces a dry, choking feeling in a consumer's mouth. In contrast, cranberries have high acid and sharp sourness”. Examiner respectfully disagrees as to the distinction between astringent and sour, as these two flavors are not mutually exclusive properties. Additionally, applicant’s assertion on Page 2, lines 7-8, “[a]pplicant asserts that the astringency characteristics cannot be overcome using these techniques” in reference to dilution with sugar is contrary to common knowledge within the field of endeavor. Finally, applicant’s assertion that “aronia berry juice would be on the shelves of every store if not for the astringency that cannot be solved by sugar and dilution”, on lines 10-12, is lacking evidence, and MPEP 2145 I states, “Arguments presented by applicant cannot take the place of evidence in the record”.
For these reasons, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 2, lines 16-18, that “the ability of gum arabic to reduce the astringency and stabilize the nutrients as shown by proanthocyanidin content (TPAC) in aronia juice products stability were surprising”. MPEP 2145 II, states, “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention”. The latent properties of reduced astringency and stabilized nutrients would have been present in the prior art invention that teaches the instant invention. Examiner reasserts this position with respect to the properties of flocculation and aggregation on Page 3.
For this reason, applicant’s assertions are found to be unpersuasive.
Applicant’s arguments with respect to claims 5, 13, and 21 have been considered but are moot because the new ground of rejection relies on a new reference, Wangensteen et al., not applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant asserts with respect to claim 22-24, on Page 4, lines 16-19 “the allegation in paragraph 30 that one would have found it obvious to test the inherent properties of the composition in order to determine the best composition, Applicants respectfully disagree as the properties being tested were in powdered forms, not in the juice form as claimed”. Considering the recitation in Mann of a liquid embodiment of the invention, examiner has interpreted this assertion to be a criticism of Janiszewska et al. independently. MPEP 2145 IV states, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”.
For this reason, and those enumerated above, applicant’s assertions are found to be unpersuasive and the rejections of claim 1-3, 5-11, 13-19, and 21-26 are maintained.
Conclusion
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.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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