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
Election/Restrictions
Claims 1-6, 8, and 11 are pending.
Applicant’s election of claims 1-6, 8, and 11, in the reply filed on 7/20/26 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.03(a)).
Species election is stated on pages 11-12 of the response filed on 7/20/26.
Claims 1-6, 8, and 11 are examined on the merits.
Claim Rejections –35 USC § 112, 2nd
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 3-6 are rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claims 3, 5, and 6 recites the following limitations in the claims, and there are insufficient antecedent basis for these limitations in the claims:
“the extract of fermented blueberries” in claims 3 and 5, at line 2;
Therefore, the metes and bounds of claims are rendered vague and indefinite. The lack of clarity renders the claims very confusing and ambiguous since the resulting claims do not clearly set forth the metes and bounds of the patent protection desired.
All other cited claims depend directly or indirectly from rejected claims and are, therefore, also, rejected under U.S.C. 112, second paragraph for the reasons set forth above.
Claim Rejections –35 USC § 102
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, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 5, and 11 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by CHAN et al (Chan ET AL: "Anti-oxidant and Anti-aging Activities of Fermented Vegetable-Fruit Drink", JOURNAL OF FOOD AND NUTRITION RESEARCH, vol. 9, no. 5, 5 mai 2021 (2021-05-05), pages 240-250).
Chan et al teach fermented foods contain beneficial probiotics, which thus results in products with improved nutritional properties and healthy effects. There is however a need for research on clinical trials to measure the effects of fermented foods in clinical applications and in skincare. The composition of fermented vegetable-fruit drink (FVFD) included the fermented vegetable-fruit juice, apple juice, fructose, high methoxyl pectin, citric acid, apple flavor and water. In this study, the effects of FVFD on the free radical scavenging activities, promotion of skin cell proliferation and collagen synthesis were investigated. A randomized, controlled, double-blind study design was used to assess FVFD and basic drink (50 ml of a FVFD/placebo drink daily for 8 weeks for each subject). Thirty subjects (aged 35 55 years old) were recruited for an 8 week-long clinical trial to confirm the efficacy of FVFD in improving the serum biochemical superoxide dismutase (SOD) and catalase levels, and anti-skin age markers, including improving skin moisture, brightness and elasticity, reducing crow’s feet, skin texture, wrinkles, pores and spots, and increasing amount of skin collagen. The results suggest that fermented vegetable-fruit drink has anti-oxidant activities, promotes collagen synthesis and delays the aging of skin with potential applications in food additives (see Abstract). Chan et al teach beneficial effects of fermented fruit and vegetable beverages on the skin, particularity through their antioxidant properties, dermal cell proliferation, and stimulation of collagen synthesis. This beverage was tested against a placebo in a clinical trial wherein participants consumed a beverage daily for 8 weeks. A beverage containing, among other things, fermented blueberries (see 2.1) was shown to be effective in improving skin hydration, radiance, elasticity, texture, wrinkles, pores, and blemishes (see points 3.5-3.6, Tables 2-3). These properties are considered to correspond to the “aesthetic aspect” of this application. Since Chan et al teach the claimed fermented blueberries, it is necessarily that the claimed fermented blueberries would contain the claimed formula (I), (II), and (III) in claims 3 and 12, and formula (IV) in claim 5.
Therefore, the reference is deemed to anticipate the instant claim above.
Claim Rejections –35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained through the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-3, 5, 8, and 11 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chan et al as applied to claims 1-3, 5, and 11 above.
The teachings of Chan et al are set forth above and applied as before.
The teachings of Chan et al do not specifically teach daily administered orally at least 100 mg of extract of blueberries once daily.
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to vary the amount of the claimed blueberry extract according to aging condition of the subject. Determining an appropriate amount of the daily consumption of blueberry extract is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of the references, it is apparent that one of the ordinary skills in the art would have had a reasonable expectation of success in producing the claimed invention.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
Conclusion
No claim is allowed (claims 4 and 6 are free of art).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIUWEN MI whose telephone number is (571)272-5984. The examiner can normally be reached on Monday-Friday 9:00 am to 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached on 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655
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