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 .
Election/Restrictions
Applicant's election with traverse of group I in the reply filed on 7/16/2026 is acknowledged. The traversal is on the following grounds:
1. That the claims are linked through the common inventive concept of nutritional supplement compositions comprising dietary fiber and zinc carnosine and methods utilizing these compositions.
2. That the office does not identify with particularity why the claimed common subject matter fails to constitute a special technical feature beyond the general statement that Gorsek allegedly discloses zinc carnosine and fructooligosaccharides.
3. That no substantive examination of patentability has yet occurred and no art rejections have been made; therefore, the pending claims remain linked by a common inventive concept and restriction is not required.
This is not found persuasive for the following reasons:
Regarding argument 1, applicant has listed two different inventive groups and said that they are the common inventive concept. That is not how unity of invention works. As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
Regarding argument 2, Gorsek very clearly discloses compositions with zinc carnosine and fructooligosaccharides. The feature that links the two inventive groups is a composition comprising dietary fiber and zinc carnosine. Gorsek discloses this. Nothing further is needed. Applicant’s arguments do not identify with any particularity how this is incorrect.
Regarding argument 3, substantive examination prior to restriction would be silly and is not necessary. The fact that no art rejections have been made has no bearing on whether or not there is unity of invention.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-12 are pending. Claim 9 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 1-8 and 10-12 are currently under examination.
Information Disclosure Statement
The information disclosure statement filed on 6/13/2024 has been considered. A signed copy is enclosed.
Drawings
The description of the drawings is objected to. According to 37 CFR 1.74, When there are drawings, there shall be a brief description of the several views of the drawings and the detailed description of the invention shall refer to the different views by specifying the numbers of the figures, and to the different parts by use of reference letters or numerals (preferably the latter). The examiner should see to it that the figures are correctly described in the brief description of the drawing, that all section lines used are referred to, and that all needed section lines are used. If the drawings show Figures 1A, 1B, and 1C and the brief description of the drawings refers only to Figure 1, the examiner should object to the brief description, and require applicant to provide a brief description of Figures 1A, 1B, and 1C. In the instant case, there is no description of Figures 3A-3F.
Nucleotide and/or Amino Acid Sequence Disclosures
Summary of Requirements for Patent Applications Filed On Or After July 1, 2022, That Have Sequence Disclosures
37 CFR 1.831(a) requires that patent applications which contain disclosures of nucleotide and/or amino acid sequences that fall within the definitions of 37 CFR 1.831(b) must contain a “Sequence Listing XML”, as a separate part of the disclosure, which presents the nucleotide and/or amino acid sequences and associated information using the symbols and format in accordance with the requirements of 37 CFR 1.831-1.835. This “Sequence Listing XML” part of the disclosure may be submitted:
1. In accordance with 37 CFR 1.831(a) using the symbols and format requirements of 37 CFR 1.832 through 1.834 via the USPTO patent electronic filing system (see Section I.1 of the Legal Framework for Patent Electronic System (https://www.uspto.gov/PatentLegalFramework), hereinafter “Legal Framework”) in XML format, together with an incorporation by reference statement of the material in the XML file in a separate paragraph of the specification (an incorporation by reference paragraph) as required by 37 CFR 1.835(a)(2) or 1.835(b)(2) identifying:
a. the name of the XML file
b. the date of creation; and
c. the size of the XML file in bytes; or
2. In accordance with 37 CFR 1.831(a) using the symbols and format requirements of 37 CFR 1.832 through 1.834 on read-only optical disc(s) as permitted by 37 CFR 1.52(e)(1)(ii), labeled according to 37 CFR 1.52(e)(5), with an incorporation by reference statement of the material in the XML format according to 37 CFR 1.52(e)(8) and 37 CFR 1.835(a)(2) or 1.835(b)(2) in a separate paragraph of the specification identifying:
a. the name of the XML file;
b. the date of creation; and
c. the size of the XML file in bytes.
SPECIFIC DEFICIENCIES AND THE REQUIRED RESPONSE TO THIS NOTICE ARE AS FOLLOWS:
Specific deficiency - Sequences appearing in the specification (on at least pages 16-17) are not identified by sequence identifiers (i.e., “SEQ ID NO:X” or the like) in accordance with 37 CFR 1.831(c).
Required response – Applicant must provide:
A substitute specification in compliance with 37 CFR 1.52, 1.121(b)(3), and 1.125 inserting the required sequence identifiers, consisting of:
• A copy of the previously-submitted specification, with deletions shown with strikethrough or brackets and insertions shown with underlining (marked-up version);
• A copy of the amended specification without markings (clean version); and
• A statement that the substitute specification contains no new matter.
Claim Objections
Claims 5-6 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 § 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 2-3, 7, and 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 pre-AIA the applicant regards as the invention.
Claim 2 recites the limitation "the amount of wheat dextrin" in line 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 is rendered indefinite by the recitation of an amount of wheat dextrin per serving. The amount of wheat dextrin per serving is meaningless without some sort of serving size.
Claim 3 is rendered indefinite by the recitation of an amount of zinc carnosine per serving. The amount of zinc carnosine per serving is meaningless without some sort of serving size.
Claim 7 is rendered indefinite by the recitation of an amount of wheat dextrin per serving. The amount of wheat dextrin per serving is meaningless without some sort of serving size.
Claim 12 is indefinite because it is drawn to a product, while also requiring an outcome that could only occur with an administration step that is not part of the product.
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.
Claims 1, 3, 8, and 10-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gorsek (US Patent Application Publication 2009/0004147; IDS filed 6/13/2024).
The instant claims are drawn to compositions comprising dietary fiber and zinc carnosine.
Gorsek discloses nutritional compositions comprising zinc carnosine, fructooligosaccharides, and probiotics (see abstract). Fructooligosaccharides are dietary fibers. The composition can contain 50mg of zinc carnosine (see paragraph 0012). The recitation of a use does not alter what the product is. Since the product disclosed is the same as claimed, it would necessarily have the same functional use and characteristics.
Claims 1, 3-4, 8, and 10-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nutri-Dyn (Dynamic GI Integrity Peach Tea by Nutri-Dyn product page, 10-2019; IDS filed 6/13/2024).
The instant claims are drawn to compositions comprising dietary fiber and zinc carnosine.
Nutri-Dyn discloses a peach tea containing inulin and 62mg of zinc carnosine as well as various minerals and botanicals (see page 3/7). The recitation of a use does not alter what the product is. Since the product disclosed is the same as claimed, it would necessarily have the same functional use and characteristics
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian J Gangle whose telephone number is (571)272-1181. The examiner can normally be reached M-F, 9-6:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anne Gussow can be reached at 571-272-6047. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN GANGLE/Primary Examiner, Art Unit 1645
