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
Claims 1-11, and 14 are pending and examined on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/30/23 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim(s) 1-11 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Park et al. (CN 102014940 A, translation provided).
Park et al. teaches a method of treating a condition with mint, Asarum sieboldin, and fir [0302]. The medicinal plant extract is processed by boiling or steaming using water or an organic solvent (Claim 1). The composition contains the medicinal plant extract in an amount of 0.001-30 wt% based on the weight of the composition (Claim 7). The ingredients are used together with ingredients that can treat pulmonary tuberculosis, lung abscess, chronic bronchitis [0198]. Heating according to the processing rule of each kinds of herbs, the liquid auxiliary material is placed in a suitable sealed container, then added to the herbal medicine and using water bath heating or steam air steaming with water, until the liquid auxiliary material is completely absorbed by the medicine material of the dry heating [0020], which leads to hydrodistillation. A method of treating bronchitis would require reducing increased epithelial thickness and collagen accumulation in lung tissue, reducing expression or concentration of any one or more of IgA, E, G in lung tissue, reducing expression of inflammatory cytokines in lung tissue because the same composition will have the same mechanism, which can be used for the treatment of bronchitis
However, Park et al. does not teach mint, Asarum sieboldin, and fir in a volume ratio of 4:1 to 3:2 to 4, administration by inhalation or intranasal.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use inhalation or intranasal administration because the composition formulated can be used for treating bronchitis as taught by Park et al. One would have been motivated to make a medicine for administration by nasal or inhalation for the expected benefit of treating bronchitis. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to make a composition comprising mint, Asarum sieboldin, and fir in a volume ratio of 4:1 to 3:2 to 4 for the following reasons. The reference does teach the composition for treating bronchitis. Park et al. teaches the composition contains the medicinal plant extract in an amount of 0.001-30 wt% based on the weight of the composition (Claim 7). Thus, it would have been obvious to make a concentrated composition containing mint, Asarum sieboldin, and fir for use as a treatment for bronchitis. Additionally, the amount of a specific ingredient in a composition that is used for a particular purpose (the composition itself or that particular ingredient) is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, optimization of general conditions is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results, especially within the ranges taught by the reference. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of applicant’s invention.
Conclusion
No claim is allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached on Monday-Friday 9-5:30 PM.
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Catheryne Chen Examiner Art Unit 1655
/TERRY A MCKELVEY/Supervisory Patent Examiner, Art Unit 1655