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
Claims 1, 2, 4, 6, 8-13, 15, 16, 18-20, 24, 25, 27-29, 31, 38, and 47-54 are pending.
Claims 1, 2, 4, 6, 8-13, 15, 16, 18-20, 24, 25, 27-29, 31, 38, and 47-54 are examined on the merits.
Claim Objections
Claims 8, 15, 19, 24, 25, 27-29, 31, 48, 51, 53, and 54 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim Rejections –35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2, 4, 6, 9-11, 47, and 52 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
First, the claimed invention must be to one of the four statutory categories. 35 U.S.C. 101 defines the four categories of invention that Congress deemed to be the appropriate subject matter of a patent: processes, machines, manufactures and compositions of matter. The latter three categories define "things" or "products" while the first category defines "actions" (i.e., inventions that consist of a series of steps or acts to be performed). See 35 U.S.C. 100(b) ("The term ‘process’ means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."). See MPEP § 2106.03 for detailed information on the four categories.
Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim must not be directed to a judicial exception unless the claim as a whole includes additional limitations amounting to significantly more than the exception. The judicial exceptions (also called "judicially recognized exceptions" or simply "exceptions") are subject matter that the courts have found to be outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas, laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed information on the judicial exceptions.
Claim(s) 1, 2, 4, 6, 9-11, 47, and 52 is/are directed to a composition comprising a bee-derived component and a marine plasma, wherein the marine plasma comprises or consists of seawater.Analysis of the flowchart:
Step 1, is the claim directed to a process, machine, manufacture or composition of matter?
Yes. The claim is directed to a composition of matter.
Step 2A. Prong one: Is the claim directed to a law of nature, a natural phenomenon (product of nature), or an abstract idea?
Yes, the claims are directed to nature based components, bee-derived component zabrus, honeycomb, bee venom, honey, royal jelly, propolis and pollen, and seawater, because both bee-derived component and seawater exist in nature, there is no indication that the combination of both bee-derived component and seawater that comprise the claimed compositions to have any characteristics that are different from the naturally occurring components in both bee-derived component and seawater.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than the judicial exception?
No. The claim(s) of 1, 2, 4, 6, 9, 11, 47, and 52 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Regarding claims 1, 2, 4, 6, 9, 11, 47, and 52, since there is no absolute amounts of the active ingredients are claimed as compared to the whole composition, the claimed composition encompasses embodiments where the active ingredients are in such small amounts that none of them impart any characteristic or markedly different characteristic. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
Claims 10, 47, and 52 require certain amounts of components being present in the composition. However, there is no indication that the amounts claimed in the compositions result in a markedly different characteristic for the composition as compared to the components that occur in the nature.
Regarding claim 11, a composition for oral consumption or administration does not result in a markedly different characteristic because bee product already has the characteristic of being in a form suitable for oral consumption.
Step 2B. If additional elements of the claim provide an inventive concept (Step 2B) (also called "significantly more" than the recited judicial exception).
No, no non-nature based components were recited in the claims.
For the reasons described above, the claimed compositions are not markedly different from their closest naturally occurring counterparts and thus are product of nature judicial exceptions.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not recite any additional elements beyond the claimed compositions themselves. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
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, 2, 6, 9, 11-13, 16, 18, 20, 38, 49, and 50 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Liu (CN 109846751 A).
Liu teaches each 1000 L solution contains the following components: 2-6kg of carboxylated chitosan, 0.1-0.5kg of propolis (thus a bee-derived component, thus claims 1 and 2 are met; thus has reduced amount of sugar, thus claims 6 and 20 are met), 1-3kg of xylitol, 0.1-0.4kg of menthol, 3-6kg of seawater (thus the claimed marine plasma, thus claims 12, 13, and 18 are met, and the balance of deionized water (thus seawater diluted with water, thus claims 9 and 13 are met). Within this content range, it effectively achieves oral health care functions (thus oral administration, thus claim 11 is met, thus transmucosal, thus claim 50 is met), antibacterial (thus a method for treatment or protection against bacterial, thus claims 38 and 49 are met) and anti-inflammatory effects, freshens breath, enhances product competitiveness, and has strong practicality [0020]. Liu teaches seawater is a purely natural extract, sterilized and filtered (thus claim 16 is met) before use, and has anti-inflammatory properties [0019].
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, 2, 6, 9-13, 16, 18, 20, 38, 49, 50, and 52 are rejected under 35 U.S.C. 103(a) as being unpatentable over Liu as applied to claims 1, 2, 6, 9, 11-13, 16, 18, 20, and 38, 49, and 50 above.
The teachings of Liu are set forth above and applied as before.
The teachings of Liu do not specifically teach the claimed amount of seawater or water in claims 10, and 52.
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 seawater and water according to the preference of the customers. Determining an appropriate amount of the components within the composition is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. When salt flavor is preferred, seawater percentage could be increased.
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.
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.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655