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 response filed after final, September 3, 2026 has been entered. Claims 1, 3-5 and 7-9 remain pending.
The Final Office Action mailed April 3, 2026 contained an error that affected applicant’s ability to reply to the Office action and this error was called to the attention of the Office more than 1 month after the date of the Office action (MPEP 710,06). The period for reply is restarted. The new period for reply is 1- month and will run from the date this action is mailed.
Copies of the following references not previously supplied are enclosed:
-Hou et al. (CN 103751511 A) and Jia (CN 1586327 A).
A corrected copy of the last Office Action is enclosed.
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.
Claims 1, 3-5 and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bulman et al. (“Nutraceuticals as Potential Targets for the Development of a Functional Beverage for Improving Sleep Quality”, Beverages, 7 (2), 33, (2 June 2021), pp. 1-30) in view of Liebchen (“Jamia Tart Cherry Health, a vitamin village that helps you sleep” Nave Blog, August 2020 – IDS filed February 17, 2026), Dachae (“A sleeping bottle to drink when you can’t sleep”, Nave Blog, August 8, 2021- IDS filed February 17, 2026), Lan et al. (CN 1616026), Wan (KR 102258796 – IDS filed January 9, 2024), Ye et al. (CN 111358899-Clarivate Analytics translation), Jia (CN 1586327 -Clarivate Analytics translation), Yin et al. (CN 103750445 – Clarivate Analytics translation), Hou et al. (CN 103751511 – Clarivate Analytics translation) and Bae et al. (KR 888694 – Clarivate Analytics translation).
Regarding claims 1, 3-5 and 7-9, Bulman et al. disclose the development of functional beverages for improving sleep quality (i.e., sleep induction-Abstract, p. 3/Introduction). Bulman et al. disclose functional beverages comprising one or more active compounds including L-tryptophan, 5-HTP, melatonin, L-theanine, L-cysteine, vitamin B12, vitamin B6, vitamin D, vitamin C, magnesium and/or zinc (p. 4-10/Table 1. Selected nutraceutical used in the promotion and improvement of quality of sleep and their outcomes in different populations). Bulman et al. disclose optimal sleep comprises adequate duration, quality and timing (p. 2). Bulman et al. disclose sleep disorders are a factor that affects sleep quality (p. 3/Figure 1).
Bulman et al. is silent with respect to a functional beverage comprising Siberian ginseng trunk, wheat, lotus seed, jujube, jujube seed, gardenia, Poria cocos, red ginseng, Ecklonia cava extract powder, tart cherry juice powder, fish collagen and beet root concentrate powder.
Liebchen teaches a tart cherry powder that helps you sleep. Liebchen teaches the powder and be diluted with water to make a drink (p. 5). Liebchen teaches the composition comprises tart cherry, perilla extract powder, chamomile extract powder, L-tryptophan and fish collagen (p. 2). Liebchen teaches tart cherry is known to comprise melatonin and that melatonin is a good ingredient for insomnia and sleep disorders (p. 3).
Dachae teaches a drink (i.e., sleeping bottle) intended to be consumed 1-2 hours before going to bed for a good night’s sleep (p. 2). Dachae teaches consuming the drink can maintain a healthy sleep rhythm (p. 2). Dachae teaches the active ingredients include perilla extract, tart cherry, L-theanine, barley, wheat, lotus seed, gardenia and red ginseng (p. 3 and 4).
Lan et al. teaches a medicine tea for treating insomnia comprising jujube and lotus seed (Abstract, claim 1).
Wan teaches a beverage for improving sleep disorder and inducing sleep comprising Ecklonia cava fruit, Schisandra chinesis fruit and red lettuce (Abstract).
Ye et al. teach a Chinese medicine composition for treating insomnia comprising wheat and jujube kernel (i.e., seed) (Abstract, Summary of invention, Example 1).
Jia teaches a functional drink comprising Siberian ginseng (Abstract). Jia teaches Siberian ginseng root (i.e., trunk) is helpful to treat insomnia and sleep disorders (i.e., dreamful sleep-Invention content).
Hou teaches a powder for improving sleep comprising tuckahoe extract (i.e., Poria cocos)(Abstract, [0035]).
Yin et al. teach a beverage for treating insomnia comprising beet root and lotus seed (Abstract, [0009], claim 1).
Bulman et al., Liebchen, Dachae, Lan, Wan, Ye et al., Jia, Hou et al. and Yin et al. are combinable because they are concerned with the same field of endeavor, namely compositions used to treat insomnia and improve sleep. Given the combination of references teaches that Siberian ginseng, wheat, lotus seed, jujube, jujube seed, gardenia, Poria cocos, red ginseng, Ecklonia cava, tart cherry, fish collagen, beet root, vitamin C and L-theanine are components known to treat insomnia and improve sleep it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have combined the components to make a functional beverage used to treat insomnia and improve sleep. Absent evidence to the contrary, one of ordinary skill would have combined the components in any ratio with a reasonable expectation that when consumed, the composition would improve sleep.
Bulman et al. is also silent with respect to enzymatically modified stevia.
Bae et al. teach using enzymatically modified stevia as a sweetening agent in beverage compositions (Abstract, Use).
Bulman et al. and Bae et al. are combinable because they are concerned with the same field of endeavor, namely beverage compositions. Given Bae et al. teach enzymatically modified stevia is a sweetening agent known to be used in beverage compositions, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have added enzymatically modified stevia to the functional beverage of modified Bulman et al. to obtain a functional beverage with a sweet taste. One of ordinary skill in the art would have adjusted the amount of added enzymatically modified stevia to obtain the desired level of sweetness in the functional beverage.
Response to Arguments
Applicant's arguments filed after final, September 3, 2026, have been fully considered but they are not persuasive.
Applicant submits the Office’s rejection relies on impermissible hindsight reconstruction. Applicant argues the Office has cite “TEN (10 separate references from entirely different technical contexts” to reconstruct the claimed composition and this alone is strong evidence of impermissible hindsight.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues the Office has failed to establish adequate motivation to combine the ten references.
With respect to the combination of Bulman et al., Liebchen, Dachae, Lan, Wan, Ye et al., Jia, Hou et al. and Yin et al. the motivation to combine has been established. Each of the claimed active ingredients in known to be used in functional foods intended to improve sleep. The fact that some references are not technical documents, e.g., blog posts, is not germane to the rejection. The references all teach about ingredients that are known to be added to “functional foods” used to improve sleep. It is prima face obvious to combine composition each which is taught by the prior art to be useful for the same purpose, in order to form another composition to be used for the same purpose. The idea of combining them flows logically from their having been individually taught in the prior art (MPEP §2144.06).
With respect to the combination of Bulman et al. and Bae et al., while Bae et al. is directed to an enzymatically modified stevia sweetener, the references teaches its use in beverages to provide sweetness. Given Bulman et al. is directed to a type of beverage, since Bae et al. teaches sweetening beverages with an enzymatically modified stevia sweetener, the person of ordinary skill in the art would have been motivated to add the sweetener to the beverage of Bulman et al. to provide a sweet tasting functional beverage.
Applicant argues that Bae et al. teaches away from the claimed combination of ingredients. Applicant submits “Bae specifically disclose that conventional enzymatically modified stevia has an unpleasant bitter aftertaste that make it difficult to us in beverage composition without a special manufacturing process.
First, it is not clear where Bae et al. teach that “conventional” enzymatically modified stevia has an unpleasant bitter aftertaste. In the Clarivate Analytics translation provided in the PTO-892 mailed April 3, 2026, Bae et al. teaches that their manufacturing method improves the sweetness of enzymatically modified sweetness (Advantage). Regardless, Bae et al. teach an enzymatically modified Stevia product that can be sued successfully to sweeten food and drink (i.e., beverages). Claim 1 does not limit the “type” of enzymatically modified stevia.
Applicant submits the claimed composition exhibits unexpected synergistic effects that a person of ordinary skill in the art could not have predicted from the cited references. Applicant submit such unexpected results are supported by the concurrently filed “Declaration of Bo Ryoung Park.”
Note, no declaration was concurrently filed with the Response After Final Action filed September 2026.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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