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 .
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 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.
Claims 10-21 are rejected under 35 U.S.C. 103 as being unpatentable over Hsu (US 5,504,055). Hsu discloses a metal amino acid chelate and method for making it, comprising blending a metal salt, an amino acid and an organic hydroxy acid in chelated water. (See the Abstract and col. 1, lines 56-64.) Hsu discloses in col. 2, lines 46-53 that the metal may be iron, magnesium or copper, and in the paragraph bridging columns 2 and 3 that the amino acid may include aspartic acid and glutamic acid. Hsu further discloses in col. 3, lines 4-13 that the pH may be adjusted with sodium hydroxide or ammonium hydroxide. Accordingly the chelate of Hsu would include sodium hydroxide or ammonium hydroxide. Hsu also teaches in col. 2, lines 19-33 that the two amino acids can be combined in a ratio of 1:1, and in col. 2, lines 34-37 that the mole ratio of metal ion to acid is about 1:2. Hsu further discloses in the paragraph bridging columns 2 and 3 that mixtures of a list of preferred amino acids, which list includes glutamic acid and aspartic acid, can be used. The difference between the chelate disclosed by Hsu, and that recited in claims 10-21, is that Hsu does not disclose the specific combination od aspartic acid and glutamic acid in the chelate. It would have been obvious to include aspartic acid and glutamic acid as the amino acids in the chelate of Hsu. One of ordinary skill in the art would have been motivated to do so, since Hsu teaches in the paragraph bridging columns 2 and 3 that mixtures of the amino acids can be used, and that glutamic acid and aspartic acid are preferred amino acids.
Regarding claims 11, 12, 14, 15 and 17-21, it would have been within the level of skill of one of ordinary skill in the art to determine suitable amounts of the various components in the chelate of Hsu.
Response to Arguments
Applicant’s argument, that Hsu names glutamic acid and aspartic acid individually among its preferred amino acids, but Hsu’s process is directed throughout to combining one amino acid with one organic hydroxy acid, is not convincing, since Hsu discloses in the sentence bridging columns 2 and 3 that mixtures of amino acids recited in a list of amino acids. . Applicant’s argument, which includes aspartic acid and glutamic acid, can be used. Applicant’s argument, that Hsu’s proceed is directed throughout to combining one amino acid with one organic hydroxy acid, is not convincing, since applicant’s claims do not exclude the organic hydroxy acid. Applicant’s argument, that the Office Action supplies no reason why the skilled person would replace Hsu’s organic hydroxy acid with a second, specifically selected amino acid, is not convincing, since applicant’s claims do not exclude the organic, hydroxy acid, and suggests mixtures of glutamic and aspartic acid in the sentence bridging columns 2 and 3. Applicant’s argument, that the specification reports that the claimed glutamate-aspartate chelates were in fact obtained at 1;1;1 for each of the recites metals and are stable across the broad pH ranges reported for Chelate B in Table 1, is not convincing, since one would have expected from the sentence bridging columns 2 and 3 of Hsu that glutamate-aspartate chelates could be formed.
Allowable Subject Matter
Claims 1-9 are allowed.
Claims 22-24 are objected to in referring to a rejected claim.
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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAYNE A LANGEL whose telephone number is (571) 272-1353. The examiner can normally be reached Monday through Friday from 8:15 am to 4;15 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at 571-270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WAYNE A LANGEL/Primary Examiner, Art Unit 1736
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