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 .
Status of Claims
Claims 1 – 15 are pending.
Clams 1 – 15 are rejected.
Claim Rejections - 35 USC § 112
Claim 14 recites the limitation “VL-FAOD” in the listing of diseases. However, the specification does not provide a definition for the abbreviation. For this reason the claim is indefinite and lacks clarity.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1- 14 are rejected under 35 U.S.C. 103 as being unpatentable over Carnot, LLC (WO2017/147220) in view of Sonner et al. (US 2018/030821).
Rejected clams 1 - 9, cover inter alia, a mixture of at least two different lipids of Formula (III).
Rejected claim 10, covers inter alia, a mixture of at least three different lipids of Formula (III).
Rejected claims 11 - 12, cover inter alia, a pharmaceutical composition comprised of a mixture of at least two different lipids of Formula (III).
Rejected claims 13-14, cover inter alia, a method of treating a human suffering from a disease by administering to the human a dose of a pharmaceutical composition comprised of a mixture of at least two different lipids of Formula (III).
However, Carnot discloses I-2, I-3 and I-4 which are representative of the compound of Formula (III). (pp. 77). The compounds of Carnot have use as pharmaceutical compositions for treating diseases in humans. Some of the diseases are glutaric acidemia type 1, Parkinson’s, Alzheimer’s and others. (pp. 92, [00240] to pp. 93 [00248]) (see entire document).
Further, Sonner discloses a second compound in Table 1 on page 12 which is representative of the compound of Formula (III). The compounds of Sonner can be used in pharmaceutical compositions. (pp. 7, [0116]). The pharmaceutical composition comprised of the compounds of Sonner can be used to treat neurological disease or disorder. (pp. 21, [0209]) (see entire document).
Neither Carnot nor Sonner discloses mixtures of two components or three components.
At the time of the invention it would have been obvious to one of ordinary skill in the art before the effective filing date of the instantly clamed invention to combine the two compounds of Carnot and Sonner, each of which is taught by the prior art to be useful for the same purpose (treating disease in humans), in order to form a third 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). "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). All this would result in the practice of claims 1 - 14 with a reasonable expectation of success.
Claim Rejections - 35 USC § 103
Claim(s) 15 is rejected under 35 U.S.C. 103 as being unpatentable over Tdeltas Ltd. (WO 2013/150153) in view of Birkhahn et al. (US 5,693,850).
The rejected claim covers, inter alia, a food product comprising a mixture of at least two different lipids of general Formula (III).
However, Tdeltas discloses compounds 5 and 6 in Figure 10 falling under Formula (III). Compositions of the compound of Tdeltas can be food product, food supplement, dietary supplement, functional food or a nutraceutical or component thereof. (pp. 9, ln 33 – 36).
Further, Birkhahn disclose compound 2 in Scheme 2 is a single representation of the compound of Formula (III). (col. 7). Compounds of Birkhahn are useful as parenteral nutrients. (abstract, & col. 2, ln 39 – 41).
Neither Tdeltas nor Birkhahn discloses mixtures of two components.
At the time of the invention it would have been obvious to one of ordinary skill in the art before the effective filing date of the instantly clamed invention to combine the two compounds of Tdeltas and Birkhahn, each of which is taught by the prior art to be useful for the same purpose (food product), in order to form a third 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). "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). All this would result in the practice of claim 15 with a reasonable expectation of success.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YATE' K. CUTLIFF whose telephone number is (571)272-9067. The examiner can normally be reached Monday-Friday (8:30 - 5:30).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scarlett Y. Goon can be reached at (571) 270-5241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/YATE' K CUTLIFF/Primary Examiner, Art Unit 1692
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