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 preliminary amendment filed on 5/8/24. Claims 4-6,7,9-10,12-16,18, 20-21 are amended and claims 3,8,11,17,22,25-26 are cancelled. Claims 1-2,4-7,9-10,12-16,18-21,23-24,27 are pending.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 1-2,4-6,12-13,16 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.
In claim 1, the limitation “ the omega 3 to omega 6 fatty acid molar ratio” does not have antecedent basis. It’s unclear what ratio the claim is referring to because the claim has not established that the seeds comprise omega 3 and omega 6 fatty acids.
Claims 2,4-6 have the same problem as claim 1.
Claim 5 is vague and indefinite. The claim recites the ratio of fatty acid of the composition. It’s unclear of the difference between the composition versus the seeds of claim 4 because the composition is made from the seeds.
Claim 6 has the same problem as claim 5. It’s further indefinite because the claim is duplicate of claim 4. It’s unclear the difference between seeds and composition because is composition is obtained from the seeds.
In claim 12, the recitation “ the total weight” does not have antecedent basis.
Claim 13 has the same problem as claim 12.
Claim 16 is vague and indefinite. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 16 recites the broad recitation “ 1% to 6%, 94% to 99%, and the claim also recites “ 3% to 5%, 95% to 97% which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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) 1,10,12,13,14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guil-Guerrero J.L. “ Nutritional composition of Plantago species ( P. major L, P. lanceolate L and P. media L.) in view of Jp 6646356.
For claim 1, Guil-Guerrero discloses the nutrients from leaves of Plantago major L, P. lanceolata L and P. media L. The plants are use as food for nutrition. Table III shows that P. major has 41.27 omega 3 fatty acid and 14.30 omega 6. This gives a ratio of 2.88:1. P. media has a ratio of 2.65:1 and P. lanceolate has 2.37:1 ratio. For claims 12,13, table III shows 40.04% of 18:3 which is alpha linolenic acid ( see page 4 and table III)
Guil-Guerrero does not disclose the composition is from seed and in the form of flour or meal as in claim 1, the species as in claim 10 and the particle size as in claim 14
Jp356 disclose a method for producing a plant powder containing a rare sugar. The powder is obtained from leaves of the plant. The leaves can be finely ground to about 50 micrometers. ( see abstract, pages 3,7)
The limitation “ made from seeds of a plant” is a processing parameter that does not determine the patentability of the product. Claim 1 is directed to a composition containing Plantago with omega3/omega 6 ratio of 2:1. Guil-Guerrero discloses composition comprising Plantago with omega 3/omega6 ratio of 2.88:1. The composition is edible and nourishing. Thus, it would have been obvious to one of ordinary skill in the art to use it as additive in food. It would have been obvious to one of ordinary skill in the art to mill the plant to a powder as taught in Jp356 to make a useable form of the plant such that it can readily be added to intended foods to provide nutrition provided by the plant. It would have been obvious to one of ordinary skill in the art to follow the guideline of Jp356 for the particle size and to adjust depending on the textural feel desired. It would have been obvious to one of ordinary skill in the art to study other known Plantago species to determine its functionality in food functionality.
Claim(s) 2,4-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guil-Guerrero in view of Jp 6646356 as applied to claims 1, 12-14 above, and further in view of applicant’s admission of prior art.
Guil-Guerrero does not disclose the ratios as claimed.
In the background section, applicant discusses the known concept that diet providing high ratio of omega 6 to omega 3 causes health issues such as cancer, cardiovascular diseases, inflammatory and autoimmune diseases. Omega 3 is anti-inflammatory and omega 6 is pro-inflammatory. ( see paragraphs 0005-0010)
Knowing the benefits of omega 3 fatty acid versus omega 6 fatty acid, it would have been obvious to one of ordinary skill in the art to increase the ratio of omega 3 relative to omega 6 to make the composition healthier for adding to food products. One skilled in the art can add additional source of omega 3 or select plant providing higher source of omega 3 relative to omega source. The exact ratio selected depends on the nutrition desired and can be determined through routine experimentation to select the most optimum level. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) .
Claim(s) 15-16,18-21,23,24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guil-Guerrero in view of Jp 6646356 as applied to claims 1, 12-14 above, and further in view of Malby ( WO 2007/137578), Gorton ( 20070280919) and applicant’s admission of prior art.
Guil-Guerrero does not disclose baking composition as in claims 15-16, 18-20, method of making baked product as in claims 21,23-24.
For claims 15-16,18-20 Malby discloses a baking composition comprising gluten free flour and mucilaginous plant selected from the genus Plantago such as P. ovata. Example 2 shows a mix. The calculation based on dried ingredients gives 3.9% psyllium ( Plantago) and 91% gluten free flour. The gluten free flour comprises rice flour, buckwheat flour, maize flour etc. For claims 21,23,24, Malby discloses a method of making a baked product comprising the steps of forming a dough comprising the dried ingredients as set forth in example 2 and baking the dough. ( see page6 and the examples)
In the background section, applicant discusses the known concept that diet providing high ratio of omega 6 to omega 3 causes health issues such as cancer, cardiovascular diseases, inflammatory and autoimmune diseases. Omega 3 is anti-inflammatory and omega 6 is pro-inflammatory. ( see paragraphs 0005-0010)
Gorton teaches using mucilaginous polysaccharides obtained from Plantago species. Gorton discloses that both Plantago ovata and Plantago major contain mucilaginous polysaccharide. ( see paragraph 0041)
Guil-Guerrero discloses using the Plantago species as nutritious ingredient. It would have been obvious to one of ordinary skill in the art to use the Plantago in baked product disclosed in Malby to form nutritious baked product. Malby discloses to use P. ovata as the mucilaginous source. However, as shown in Gorton both P. ovata and P. major contain mucilaginous polysaccharide. It would have been obvious to one of ordinary skill in the art to use the P. major disclosed in Guil-Guerrero as an obvious matter of using an alternative ingredient to obtain the same function of providing a mucilaginous source. One of ordinary skill in the art would have been motivated to use the P major disclosed in Guil-Guerrero to have the additional advantage of obtaining high omega 3/omega 6 ratio which is known to have health benefits as discussed in the background section of the specification. Malby discloses to use a mixture of different gluten free flour. However, it would have been an obvious matter of choice to use a single type of flour or mixture of different types depending on the taste, flavor and texture desired. This parameter would have been an obvious matter of preference. It would have been obvious to use more flour or less depending on the type of baked product and the texture desired. As shown in the examples of Malby, the amount of flour can vary. It would have been within the skill of one in the art to determine the optimum amount through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yanling Wang et al “ Fatty Acid and Phytochemical Compositions of Plantago Seed oils and Their Functionalities in view of applicant’s admission of prior art.
Yanling discloses the potential applications of Plantago seeds to be developed as food additives and functional foods to improve human health. Yanling studies 14 different cultivars of Plantago to analyze fatty acid profiles, tocopherols, carotenoid compositions, anti-inflammatory and antioxidant properties. Table 2 shows PDW has the amount of omega 3 fatty acid in amount of 29.36%.
Yangling does not disclose the ratio and grinding the seeds to product a flour or meal.
In the background section, applicant discusses the known concept that diet providing high ratio of omega 6 to omega 3 causes health issues such as cancer, cardiovascular diseases, inflammatory and autoimmune diseases. Omega 3 is anti-inflammatory and omega 6 is pro-inflammatory. ( see paragraphs 0005-0010)
Knowing the benefits of omega 3 fatty acid versus omega 6 fatty acid, it would have been obvious to one of ordinary skill in the art to test other cultivars to find seeds having high ratio of omega 3 relative to omega 6. The exact ratio selected depends on the nutrition desired and can be determined through routine experimentation to select the most optimum level. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) . It would have been obvious to grind the seeds to flour or meal to facilitate its usage in food products as powder material is easier to mix with other ingredients in food production.
Allowable Subject Matter
Claims 7,9, are allowable over prior art. Guil-Guerrero and Yanling et al do not disclose Plantago species having the sequence identity as in claims 7,9. There is no prior art disclosing the sequence in a sequence search.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIEN THUY TRAN whose telephone number is (571)272-1408. The examiner can normally be reached Monday-Thursday.
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, Emily Le can be reached at 571-272-0903. 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.
February 19, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793