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 .
Change of Examiner
The examiner assigned to this case has changed since the previous office correspondence. Examiner Toriana Vigil will now be examining this application. Contact information can be found at the end of this document.
Claim Status
Claims 2 and 10 are withdrawn.
Claims 1 and 3 – 9 are examined here-in.
Claim Objections
Claims 1 and 3 – 9 are objected to because of the following informalities:
In claims 1 and 3, “hang” is capitalized, but no other terms (including white and chrysanthemum) are.
Appropriate correction is required.
Election/Restrictions
Applicant's election of Group 1, claims 1 and 3 - 9, in the response dated July 2, 2026, is acknowledged. Because Applicant did not distinctly and specifically point out supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP 818.03(a)).
Claims 2 and 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim.
Claim Interpretation
Claims 1 and 3 – 9, drawn to a composition, recite components by weight and parts. The claims do not specify the total parts in the composition, therefore, at present, parts are interpreted to be per 100.
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 non-obviousness.
Claims 1, 3, and 5 – 9 are rejected under 35 U.S.C. 103 as being unpatentable over Saloum (US 2008/0038367 A1) in view of Karageozian (US 2020/0345805 A1).
Saloum teaches a nutritional supplement composition with a carrier liquid, a flower distillate, and at least one herbal extract component (abstract).
Saloum teaches herbal-extract components work synergistically to improve the health of an individual (paragraph 0009). Saloum teaches the herbal supplement is useful for improving general health or treating and preventing many different diseases (paragraph 0011).
Saloum teaches chrysanthemum is anti-inflammatory, antibacterial, and antipyretic, and is used to treat hypertension, angina, dizziness, dry eye, headache, and cough (paragraph 0048).
Saloum teaches lutein is found in high concentrations in the macula of the eye, and may help diminish the effects of age-related macular degeneration (paragraphs 0046, 0103). Saloum teaches lutein is an antioxidant that protects cells against the damaging effects of free radicals (paragraph 0103).
Saloum teaches cherry juice or wild cherry syrup as a flavoring agent (paragraph 0039).
Saloum teaches ascorbic acid (which is also known as vitamin C) is an antioxidant which eliminates free radicals and supports the immune system (paragraph 0049).
Saloum teaches black currant is a source of proanthocyanidins which increase intracellular vitamin C levels, decrease capillary permeability and fragility, scavenge oxidants and free radicals, and inhibit the production of collagen (paragraph 0071). Saloum teaches oligomeric proanthocyanidin supplementation protects cardiovascular health and skin health (paragraphs 0071 – 0072).
Saloum teaches sucralose as a low calorie sweetener suitable for the formulation (paragraph 0110).
Saloum teaches citric acid is an organic acid suitable for inclusion in the composition that provides a pleasant tart flavor (paragraph 0110).
Saloum teaches flavors may be added to make the formulation more palatable (paragraph 0110).
Saloum teaches the composition may include a thickening agent (paragraph 0015).
Saloum teaches water as a suitable carrier (paragraph 0013, claim 6).
Saloum does not teach sodium hyaluronate and taurine.
Karageozian teaches the missing elements of Saloum.
Karageozian teaches a composition for treating dry eye (abstract).
Karageozian teaches the composition includes a hyaluronan such as sodium hyaluronate and an amino acid such as taurine (paragraphs 0022 – 0025, claim 11).
Karageozian teaches the inclusion of sodium hyaluronate in an amount ranging from 0.125 to 5.0% by weight of the composition (paragraph 0022). Examples 1 – 3, 6, 7, and 12 include sodium hyaluronate (paragraphs 0037 – 0038).
Karageozian teaches taurine is an amino acid that may have efficacy for treating dry eye and should be included in a range of 0.125 to 5.0% by weight of the composition (paragraph 0038, claim 11). Examples 1 – 4 and 12 include taurine (paragraphs 0037 – 0038).
Claims 1, 3, and 5 – 9 are rendered prima facie obvious over the teachings of Saloum and Karageozian as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to modify the composition of Saloum to include sodium hyaluronate and taurine because Karageozian teaches these ingredients are useful for treating dry eye. Therefore, the combination of Saloum and Karageozian’s teachings renders claims 1 and 3 – 9 prima facie obvious according to MPEP 2143(i)(a).
The combination of Saloum’s teachings for a composition which includes lutein, wild cherry, black currant, vitamin C, and chrysanthemum (paragraphs 0039, 0046, 0048 – 0049, 0071 – 0072, 0103) with Karageozian’s teachings that sodium hyaluronate and taurine are ingredients for treating dry eye (paragraphs 0022 – 0025, claim 11) reads on claim 1.
Although Saloum does not teach the claimed amounts of lutein, wild cherry, black currant, vitamin C, and chrysanthemum (paragraphs 0039, 0046, 0048 – 0049, 0071 – 0072, 0103), differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). Further, Saloum does teach that herbal-extract components – which have various amounts of active ingredients - work synergistically to improve the health of an individual (paragraph 0009). Therefore, a person of ordinary skill in the art would recognize the amounts of these ingredients as result-effective variables, with each ingredients having specific results, and be motivated to optimize the relative amount of each ingredient in the composition accordingly. Routine optimization is prima facie obvious according to MPEP 2144.05(ii)(b). Therefore, the amounts of lutein, wild cherry, black currant, vitamin C, and chrysanthemum recited in claim 1 are prima facie obvious.
Karageozian teaches the inclusion of sodium hyaluronate in an amount ranging from 0.125 to 5.0% by weight of the composition (paragraph 0022) and taurine in a range of 0.125 to 5.0% by weight of the composition (paragraph 0038, claim 11), overlapping on the claimed ranges of 0.1 – 2 parts and 0.02 – 1.5 parts are recited in claim 1. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Saloum and Karageozian teach their respective ingredients are healthful to the eyes (Saloum paragraphs 0009, 0011, 0046, 0048, 0071 – 0072, Karageozian paragraphs 0022 – 0025, 0037 – 0038) reading on the intended use limitation of “having effects of protecting eyes and improving eyesight” as recited in the claims.
The combination of Saloum’s teachings for a composition which includes lutein, wild cherry, black currant, vitamin C, chrysanthemum, a thickening agent, and a carrier (paragraphs 0013, 0015, 0039, 0046, 0048 – 0049, 0071 – 0072, 0103) with Karageozian’s teachings that sodium hyaluronate and taurine are ingredients for treating dry eye (paragraphs 0022 – 0025, claim 11) reads on claim 3.
Although Saloum does not teach the claimed amounts of lutein, wild cherry, black currant, vitamin C, chrysanthemum, thickening agent, and carrier (paragraphs 0013, 0015, 0039, 0046, 0048 – 0049, 0071 – 0072, 0103), differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). Further, Saloum does teach that herbal-extract components – which have various amounts of active ingredients - work synergistically to improve the health of an individual (paragraph 0009). Therefore, a person of ordinary skill in the art would recognize the amounts of these ingredients as result-effective variables, with each ingredients having specific results, and be motivated to optimize the relative amount of each ingredient in the composition accordingly. Routine optimization is prima facie obvious according to MPEP 2144.05(ii)(b). Therefore, the amounts of lutein, wild cherry, black currant, vitamin C, chrysanthemum , thickening agent, and carrier recited in claim 3 are prima facie obvious.
Karageozian teaches the inclusion of sodium hyaluronate in an amount ranging from 0.125 to 5.0% by weight of the composition (paragraph 0022) and taurine in a range of 0.125 to 5.0% by weight of the composition (paragraph 0038, claim 11), overlapping on the claimed ranges of 0.1 – 2 parts and 0.02 – 1.5 parts are recited in claim 3. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Saloum teaches sucralose as a low calorie sweetener suitable for the formulation (paragraph 0110). Although Saloum does not teach the claimed amounts of sweetener, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). Further, a person of ordinary skill in the art would recognize that the amount of sweetener is a result-effective variable and be motivated to optimize the relative amount of sweetener in the composition accordingly. Routine optimization is prima facie obvious according to MPEP 2144.05(ii)(b). Therefore, the range of sweetener recited in claim 5 is prima facie obvious. Saloum’s teaching for sucralose as sweetener (paragraph 0110) reads on instant claim 6.
Saloum teaches citric acid is an organic acid suitable for inclusion in the composition that provides a pleasant tart flavor (paragraph 0110). Although Saloum does not teach the claimed amounts of acidity regulator, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). Further, a person of ordinary skill in the art would recognize that the amount of organic acid is a result-effective variable and be motivated to optimize the relative amount of acid in the composition accordingly. Routine optimization is prima facie obvious according to MPEP 2144.05(ii)(b). Therefore, the range of acidity regulator recited in claim 7 is prima facie obvious. Saloum’s teaching for citric acid as a suitable organic acid for inclusion in the composition (paragraph 0110) reads on instant claim 8.
Saloum teaches flavors may be added to make the formulation more palatable (paragraph 0110). Although Saloum does not teach the claimed amounts of flavorant, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). Further, a person of ordinary skill in the art would recognize that the amount of flavorant is a result-effective variable and be motivated to optimize the relative amount of flavorant in the composition accordingly. Routine optimization is prima facie obvious according to MPEP 2144.05(ii)(b). Therefore, the range of flavoring agent recited in claim 9 is prima facie obvious.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Saloum (as cited above) and Karageozian (as cited above), further in view of Leone-Bay (US 2020/0254041 A1).
The combination of Saloum and Karageozian does not teach pectin or xanthan gum.
Leone-Bay teaches the missing element of Saloum and Karageozian.
Leone-Bay teaches nutritional supplement compositions (abstract).
Leone-Bay teaches pectin and xanthan gum are thickening agents suitable for liquid formulations (paragraph 0212).
Claim 4 is rendered prima facie obvious over the teachings of Saloum, Karageozian, and Leone-Bay as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to modify the combination of Saloum and Karageozian to include pectin or xanthan gum because Leone-Bay teaches these ingredients are suitable thickening agents for liquid formulations (paragraph 0212). A person of ordinary skill in the art would expect the inclusion of pectin or xanthan gum in the combination of Saloum and Karageozian to thicken the composition. Therefore, the combination of Saloum, Karageozian, and Leone-Bay’s teachings renders claim 4 prima facie obvious according to MPEP 2143(i)(a).
As discussed above, the combination of Saloum’s teachings for a composition which includes lutein, wild cherry, black currant, vitamin C, chrysanthemum, a thickening agent, and a carrier (paragraphs 0013, 0015, 0039, 0046, 0048 – 0049, 0071 – 0072, 0103) with Karageozian’s teachings that sodium hyaluronate and taurine are ingredients for treating dry eye (paragraphs 0022 – 0025, claim 11) reads on claim 3. Saloum and Karageozian teach their respective ingredients are healthful to the eyes (Saloum paragraphs 0009, 0011, 0046, 0048, 0071 – 0072, Karageozian paragraphs 0022 – 0025, 0037 – 0038) reading on the intended use limitation of “having effects of protecting eyes and improving eyesight” as recited in the claims.
Leone-Bay’s teaching that pectin and xanthan gum are thickening agents suitable for liquid formulations (paragraph 0212) in combination with Saloum and Karageozian’s teachings, reads on instant claim 4. Saloum’s teaching for water as a suitable carrier (paragraph 0013, claim 6) reads on claim 4.
Conclusion
All claims are rejected. No claims are allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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