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 .
The amendment filed 15 April 2026 is acknowledged and has been entered.
Claim 3 has been cancelled.
Claims 1, 2, 4 and 5 are presented for examination on the merits.
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.
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, 2 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Tagagaki (JP2007/99664) {cited by Applicant in IDS filed 2/7/24}.
Tagagaki beneficially discloses a food product that contains a bone resorption inhibitor comprising processed kale, a soybean germ extract, and spirulina. The reference also indicates that bone breakage can be inhibited by using the aforementioned inhibitor, and discloses collagen, hyaluronic acid, acetyl glucosamine, and the like as components that can be added. Inhibiting bone breakage can be said to play a role in preventing osteoporosis and to have an effect for suppressing any reduction in movement functions (see entire document, including e.g., claims 1 and 2 and paragraphs [0053], [0065]).
Claim(s) 1, 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Coxam et al. (US2021/0077574).
Coxam et al. beneficially teach a phycocyanin composition, for use in inhibiting bone resorption in humans or animals. In certain embodiments, said composition is a nutritional composition suitable for oral administration. Advantageously, said nutritional composition aims to prevent bone loss, also called osteopenia, in particular in individuals in whom the occurrence of bone loss may be expected, for example on account of age or else bone loss that is likely to occur owing to other factors, for example such as taking medicinal products.
While the cited references do not explicitly disclose the results of the recited step of administering phycocyanin, such a result is a necessary consequence of said positively recited step of the method and thus does not effectively limit the claimed method (see e.g., Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F. 3d 1373 (Fed. Cir. 2003) (a “clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.”).
Note: Since sprirulina contains phycocyanin, administration of spirulina would intrinsically be administering phycocyanin.
Thus, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the instant Application to administer spirulina to improve mobility and thus effectively treat Locomotive Syndrome as taught by the prior art such as Tagagaki et al. and Coxam et al.
In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court emphasized a flexible approach to the obviousness question, stating that the analysis under 35 U.S.C. § 103 "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418; see also id. at 421 ("A person of ordinary skill is... a person of ordinary creativity, not an automaton.").
The adjustment of particular conventional working conditions (e.g., determining an appropriate daily dose thereof and/or employing one or more commonly-employed excipients or known means of administration, etc.) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
Accordingly, the instant claims, where no unexpected results are observed, would have been obvious to one of ordinary skill having the above cited references before him/her.
Response to Arguments
Applicant’s amendments/arguments, with respect to the 35 USC 112 rejection have been fully considered and are persuasive. The 35 USC 112 rejection of the previous Office action has been withdrawn.
Applicant's amendments/arguments filed with respect to the prior art rejections have been fully considered but they are not persuasive.
Claim 1 has been amended to eliminate the preventing limitation as well as the administering of spirulina. Thus the method is limited to the single affirmative step of “ administrating a composition comprising phycocyanin”.
Claim 1 has further been amended to include the language “ wherein the method suppresses arthralgia”. Firstly, such a result is a necessary consequence of said positively recited step of the method and thus does not effectively limit the claimed method (see e.g., Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F. 3d 1373 (Fed. Cir. 2003) (a “clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.”). Secondly, the attempt to limit the claimed method treating locomotive syndrome with the added language is pointless and redundant since arthralgia is the medical term for joint pain, stiffness, or soreness and is a symptom rather than a specific disease. Thus, the claimed method is already directed to treating locomotive syndrome, which would mean its symptoms are suppressed.
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.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL G FIEBIG whose telephone number is (571)270-5366. The examiner can normally be reached M-F 8-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at 5712720947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUSSELL G FIEBIG/ Examiner, Art Unit 1655
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