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
Application Status
Claim(s) 1-15 and 17-20 are pending in this application.
Claim(s) 16 is canceled.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Applicant’s Abstract consist of 21 words, an abstract requires 50 – 150 words in a single paragraph.
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 1-15, and 17-20 are rejected as being indefinite. The term “about” in claim(s) 1-4, 7, 10, 13-14, and 17, is a relative term which renders the claim(s) indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Therefore, in the instant case;
Claim 1, the term “about” renders the quantity of the average molecular weight “of first collagen peptides of 1-4 kDa and a second collagen peptides of 2-5 kDa” indefinite.
Claims 5-6, 8-9, 11-12, 15, and 18-20 depend from claim 1 and therefore inherit this deficiency.
Claim 2, the term “about” renders an amount in percent weight (%) of “first collagen peptides” indefinite.
Claim 3, the term “about” renders an amount in percent weight (%) of “second collagen peptides” indefinite.
Claim 4, the term “about” renders an amount in percent weight (%) of “astaxanthin” indefinite.
Claim 7, the term “about” renders an amount of percent weight (%) of “vitamin A palmitate” indefinite.
Claim 10, the term “about” renders an amount of percent weight (%) of “ascorbic acid” indefinite.
Claim 13, the term “about” renders the quantity of the average molecular weight of “collagen peptides” indefinite.
Claim 14, the term “about” renders the quantity of the average molecular weight “of first collagen peptides of 1-4 kDa and second collagen peptides of 2-5 kDa” indefinite.
Claim 17, the term “about” renders a) first collagen peptides have an average molecular weight of 1kDa to 4 kDa; b) second collagen peptides have an average molecular weight of 2 kDa to 5 kDa.
The claims do not state a specified plus/minus (+/-) or percent error of measurements for the term “about”. This makes one of ordinary skill in the art subject to undue experimentation as to whether they would need to be within 1 kDa, 5 kDa, 10 kDa or higher “of 1-4 kDa and 2-5 kDa” claims 1, 13, 14 and 17. It also makes one of ordinary skill in the art subject to undue experimentation as to whether they would need to be within 1%, 5%, or even 10% of the “percent molecular weight” of claims 2, 3, 4, 7, and 10.
Therefore, the claim(s) 1-15 and 17-20 are rejected as being indefinite. MPEP 2173.05(b) III.
Claim(s) 11-12 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.
The claim(s) 11-12 read on claim 1 that state “wherein the aqueous carrier is” (claim 11); “wherein the aqueous carrier is flavored water” (claim 12); yet claim 1 has no known reference of an “aqueous carrier” therefore the claim(s) 11-12 lack antecedent basis for this limitation in the claim. Antecedent basis requirement means that the term “wherein the aqueous carrier ” clause must be clearly disclosed in the independent claim. Since applicant does not disclose an “aqueous carrier” in claim 1, the term lacks antecedent basis and therefore claim(s) 11-12 render the limitation indefinite and are rejected.
Applicants may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 18 is 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.
Claim 18 recites “improving skin, joint, and/or hair health”. The term “improving” in claim 18 is a relative term which renders the claim indefinite. The term “improving” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Although the term “improving” is a well-known term in patent drafting, it is inherently broad; without the specification limiting the scope of claim 18 by an amount understood in the art, e.g. range, weight (g), size, time, etc., and to what amount (measurably) would provide “skin, joint, and/or hair health” benefits that are considered an “improvement”, the claim is too broad to is considered to be indefinite.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 5-6, 8-9, 11-15, and 17-20 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being clearly anticipated by U.S. 20200077682-A1, published on 3-12-2020 with a priority date 12-15-2015, hereafter regarded as Kamcharov, et al.
In the instant case, applicant’s claims are directed to a powder beverage composition, comprising first and second collagen peptides and astaxanthin; claim 1, 13-14, 17, and 19. Applicant directs claims to an average molecular weight of 1-4 and 2-5 kDa (kilodaltons) for the collagen peptides; claims 1, 13-14, and 17. Applicant also directs claims to further comprising the powdered beverage mix with one or more vitamins, such as vitamin A palmitate, biotin, and ascorbic acid; claims 5-6 and 8-9 and 13-15. The instant case also states that water or flavored water could be the aqueous carrier of the powdered beverage mix; claims 11-12, 18 and 20.
Kamcharov, et al. teaches a beverage mix of collagen peptides with astaxanthin and in certain embodiments that [0123] various other ingredients with beneficial properties may be added to the present invention's beverage containing hydrolyzed collagen. Such ingredients may add value to the present invention's beverage containing hydrolyzed collagen. All these additional healthy ingredients may vary in different combinations as may be individually added to beverages containing hydrolyzed collagen or be combined. Examples for such healthy ingredients are: [0135] Extracts of polyphenols—resveratrol, astaxanthin.; directed at claims 1, 13-14, and 17.
Kamcharov, et al. also teaches [0040] in certain embodiments, absorption of the collagen hydrolysate in the intestinal tract can be modulated depending on the molecular weight of the collagen peptides and the presence of certain additives. The optimal concentration of 10,000 Dalton collagen hydrolysate for intestinal absorption is about 8.4 g/l which does not appreciably increase even if the collagen concentration is increased to 20, 30 or even 40 g/l in the presence or absence of whey protein. In contrast, the absorption of a 2,000 Dalton collagen hydrolysate composition, that does not contain whey protein, is shown to be enhanced by the addition of supplements including vitamins; directed to claims 1, 13-14, and 17.
Kamcharov, et al. teaches that [0109] in certain embodiments, vitamins and minerals with the purpose of enriching their nutritional value may be added to the present invention's beverage. Vitamins include, but are not limited to, Vitamin A, Vitamin C, Biotin (Vitamin B.sub.7); directed to claims 5-6, 8-9, and 13-15.
Kamcharov, et al. teaches that [0039] “In certain embodiments, a beverage is disclosed having water, a concentration range of about 0.001 grams per liter to 8.44 grams per liter of collagen; and at least one additive. In certain embodiments, the additive may comprise a stabilizing preservative. The stabilizing preservative may have chemical substances which dissolve in the beverage and are only parts of its content or have chemically active substances used in the production of the beverage but subsequently dissolve to other ingredients. In certain embodiments, the additive may comprise a packaging gas and/or a colorant. The sweeteners may be in liquid form, hard form, natural sugars, refined sugars, low caloric, and non-refined sugars. In certain embodiments, the additive may comprise a plurality of fruit juices or fruit juice concentrates. In certain embodiments, the additive may comprise a plurality of acidity regulating or E-number additives. In certain embodiments, the beverage may be carbonated or non-carbonated; directed at claims 11-12, and 20.
Finally, Kamcharov, et al. teaches that [0064] In certain embodiments of the present invention, the optimal concentration of hydrolyzed collagen in the drink is completely clear in taste and almost wholly corresponding to the neutral taste of the clean drinking water. Furthermore, the drink is maximal simplified in functionally and that is why it doesn't burden the consumer with additional calories. As a whole, the consumption of the created non-carbonated alcohol-free drink leads to the improvement of the skin structure, the skin density, skin turgor, muscle tone as well as to the improvement of the condition and the flexibility of a subject's joints; directed to claim 18.
For the reasons stated herein, Kamcharov, et al. clearly anticipates applicant’s claims 1, 5-6, 8-9, 11-15, and 17-20 and they are therefore rejected.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 2-4, depending from claim 1 are rejected under 35 U.S.C. 103 as being unpatentable over .
Claim(s) 2-4 are directed to powdered beverage composition of claim 1 where in the percent weights of “first and second collagen peptides” and “astaxanthin” are in ranges of “about 15-30%, 35-55% and 0.5-2.5%”, respectively.
As shown above, the reference of Kamcharov et al. teaches a very similar powdered beverage composition comprising the collagen peptides and astaxanthin.
However, the reference does not teach the specific amounts of first collagen peptides to be from about 15 weight % to about 30 weight % (claim 2) or the second collagen peptides to be present in amount of from about 35 weight % to about 55 weight % and wherein the astaxanthin is present in the composition in an amount from about 0.5 weight % to about 2.5 weight %.
In view of the teachings of Kamcharov et al. it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the instant application to modify the teachings of Kamcharov et al. by manipulating the concentrations of collagen peptides and astaxanthin in view of their unique properties and arrive at the weight % of each of these components by routine optimization. As per MPEP 2144.05(II)(A) 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. Based on the teachings of Kamcharov et al. one of ordinary skill in the art would have recognized the importance of a combination of collagen peptides and astaxanthin and would have been motivated to change their concentrations as part of the beverage. There would have been a reasonable expectation of success since the reference of Kamcharov et al. already provide all the information to make a beverage composition comprising collagen peptides and astaxanthin,
Therefore claims 2-4 would have been prima facie obvious over the reference of Kamcharov, et al.
Therefore, as described above, applicants’ claim(s) 2-4 are unpatentable as a matter of routine optimization in the pertinent art and are rejected.
Conclusion
Claims 1-15 and 17-20 are rejected in this application.
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/JOSEPH RICCI MATTHEWS/Examiner, Art Unit 1656
/MANJUNATH N RAO/Supervisory Patent Examiner, Art Unit 1656
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