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
Status of the Claims
Claims 12-22 have been withdrawn. Claims included in the prosecution are claims 1-11.
Election/Restrictions
Applicant’s election of Group I claims 1-11 without traverse of in the reply filed on May 6, 2026 is acknowledged. Accordingly, claims 12-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention/species, there being no allowable generic or linking claim.
Priority
This application is a 371 of PCT/US22/52811 filed 12/14/2022 and PCT/US22/52811 has the benefit of the PRO of 63290786 filed 12/17/2021.
Information Disclosure Statement
The Information Disclosure Statement(s) (IDS) submitted on May 6, 2026 and June 14, 2024 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, this/these IDS(s) has/have been considered by the Examiner.
Claim Objections
Claim 1 is objected to because of the following informalities: it appears that a term or phrase is missing between the semicolon and “(fraction B)” recited in line 6 of claim 1.
Claims 1 and 2 are objected to because of the following informalities: Applicant is advised that it is best practice to avoid the use of parentheses. Applicant may consider replacing with “wherein”. Appropriate correction is required.
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 1-2, 4-5 and 9-11 and dependent claims thereof 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The step of cleaning, macerating, pressing and mechanical separation of fresh flowers is recited. The claim also excludes exogenous solvent or liquid prior or during said steps in the last line of the claim. A cleaning step would typically require an exogeneous liquid and or solvent to be used in the cleaning step. The omitted steps include: removing the exogenous solvent or liquid.
It is not clear whether the parenthetical phrases, e.g., (cytoplasm/cytosol fraction) and (fraction B) in claim 1, (wild roses) in claim 2, and (fraction A) in the last line of claim 4, are limitations or whether it is merely listing disclosed examples and/or embodiments. Since it is unclear whether this phrase is a limitation, and thus part of the claimed invention, the phrases render the claim indefinite. If stated in the claims, examples and preferences may lead to confusion over the intended scope of a claim. See MPEP § 2173.05(d). For instance, it is not clear whether cytoplasm/cytosol fraction is “supernatant A” or not. For the purposes of this Office action, prior art teaching cytoplasm, cytosol, rose flowers belonging to any species, and fiber will be considered to have met the claim limitation.
It is not clear what is meant by the steps recited, “treatment A,” “treatment B,” and “treatment C” in claim 1. There appears to be insufficient antecedent basis for these “treatments” and it is unclear how the treatments relate to the steps recited in claim 1.
The term “preferably” in claims 2, 5, and 9-11 is a relative term which renders the claim indefinite. The term “preferably” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 11 recites the limitation "destabilization treatment C" in line one of the claim. There is insufficient antecedent basis for this limitation in the claim. It is not clear whether or not this refers to the treatment C of claim 1 or if this is a different treatment C, and if they are different, how these steps relate to each other.
Claim Rejections - 35 USC § 103
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. § 103 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-11 are rejected under 35 U.S.C. § 103 as being unpatentable over Koganov et al. (US 2015/0258012Al, pub. Sep. 17, 2015) in view of Dumas et al. (US2021/0212923A1, pub. July 15, 2021, as cited in the IDS) with evidence from Xu et al. (Optimization and Comparison of Ultrasonic and Microwave Assisted Extraction of Proanthocyanidins from
Fresh Flowers and Essential Oil Residue of Kushui Rose, Food Science 268 2018, Vol. 39, No. 12). Citations from Xu et al. are from the machine translated document provided.
Koganov et al. disclose a method for the preparation of a botanical serum fraction derived from fresh plant biomass, wherein the process comprises harvesting, collection and washing of the fresh plants (i.e., a cleaning step) prior to processing, e.g., grinding, maceration and pressing to obtain a plant cell juice fraction and a fiber-enriched material (press-cake) ([0017], [0022], Fig. 1, elements 2, 4, 6, and 8) to read on the cleaning, macerating, and pressing steps recited in line 2 of claim 1. The plant cell juice is filtered through nylon mesh to yield a filtered plant cell fraction ([0012]) to read on the mechanical separation recited in line 2 of claim 1.
Koganov et al. teach upon separation of the plant cell juice, the plant cell juice is relatively stable colloidal dispersion in which organelles represent the dispersed phase and cytoplasm represents the continuous phase ([0027]) to read on the intracellular colloidal dispersion (ICD) of claim 1. Said filtered plant cell fraction is exposed to electromagnetic waves (Fig. 1, element 14). The electromagnetic field to which the filtered plant cell fraction is subjected is at a frequency from greater than 2.45 GHz to about 7.0 GHz (claims 1, 3) and is applied for a time effective to destabilize the plant cell juice to yield a coagulated cell juice mixture comprising a coagulated membrane fraction (claim 1).
Koganov et al. teach the destabilized cell juice is subjected to centrifugation (Fig. 1, element 16) to read on the mechanical separation limitation recited in claim 1. The centrifugation yields a precipitated membrane fraction (Fig. 1, element 20) and a supernatant which is bioactive cytoplasm/cytosol fraction (Fig. 1, element 30, claim 1) to read on the membrane fraction and the (cytoplasm/cytosol fraction) limitation of claim 1.
Koganov et al. disclose a process for preparing cytoplasm/cytosol fraction derived cosmetic compositions substantially-free from membrane fractions ([0031-0032], claim 16). The cytoplasm/cytosol fraction can be then further processed under conditions effective to separate the cytoplasm/cytosol fraction into its component parts, namely the cytoplasm fraction (Fig. 1, element 36) and a cytosol fraction (Fig. 1, element 38).
Regarding the mechanical separation of the supernatant of supernatant B (i.e., cytosol fraction) to yield the serum fraction and a fraction D (precipitate) limitation, Koganov et al. disclose that the cytosol fraction is refined under conditions effective to yield a cell serum ([0032], Fig. 1, see Serum Fraction). The refinement of the cytosol fraction yields a stable and active serum fraction accomplished by removing from cytosol fraction the major components responsible for the irreversible transformations that lead to generation of unwanted precipitate and deterioration of color and odor ([0036]). This procedure includes: pH adjustment, heat treatment, cooling, vacuum filtration, and stabilization ([0036]) to meet the mechanical separation of supernatant B limitation to yield serum and the precipitate limitations of claim 1.
Regarding the fresh rose flowers limitation of claim 1, Koganov et al. disclose wherein flower tissue is used as the plant biomass source, the flowers are separated from the whole plant prior to extraction of the plant cell juice ([0019]). Flowering whole plants are collected by hand and the flowers are then separated for further processing ([0020]). The flowers (of plants) may be used as sources of plant cell juice for use in the disclosed method ([0033]). The plant cell juice may be obtained from all types of plants in which one suitable plant type is from the Rosaceae plant family (i.e., rose family) as a source of fresh plant biomass ([0033]). Tables 1, 2 and 3 show ≥ 7.0 GHz for the plant family Rosaceae (i.e., rose) ([0039]).
Koganov et al. differs from the claimed invention insofar the serum fraction is derived from multiple unspecified species within the genus Rosa (i.e., Rosa spp.).
However, Dumas et al. disclose a cosmetic composition for topical application to the skin comprising, in a physiologically acceptable medium, at least an effective amount of at least one aqueous extract of rose and of at least one oily extract of rose, and the use thereof in skin care (claim 1). The extracts are rose extracts of the genus Rosa chosen from the different parts of the plant or mixtures thereof, a flower (petal) extract, and in particular an extract of fresh flowers ([0040]). The genus Rosa includes more than 1000 species ([0041]). Advantageously, freshly harvested flowers are used ([0064]). At least one step of using microwaves ([0098], [0103]) is disclosed. The extract of rose is obtained according a process that includes cryo-ground fresh frozen flowers, successive extraction steps using microwaves followed by ultrasound, and a centrifugal filtration step ([0115]).
Koganov et al. disclose Rosaceae and the use of microwave magnetrons ([0029], [0033]). The flower (petal) of Rosa species extraction steps using microwaves is taught by Dumas et al. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have utilized the fresh rose flowers as taught by Dumas et al. with expected results. One of ordinary skill in the art would have had a reasonable expectation of success since the multi-step extraction process of Dumas et al. is inspired by the physicochemical behavior of components in the continuous and dispersed systems under physicochemical actions produced by microwaves ([0094]). This teaching resonates with those of Koganov et al. in which the stable colloidal dispersion is of an organelles dispersed phase and a cytoplasm continuous phase ([0027]). As evidenced by Xu et al., microwave assisted extracting bioactive (i.e., proanthocyanidins) from fresh rose flowers is superior to ultrasonic (page 7, Conclusion).
Regarding claim 2, Koganov et al. teach the plant species Apple of the plant family Rosaceae (Tables 1-3). Dumas et al. teach “Jardin de Granville®” rose is a hybrid variety with the name Rosa L. as species ([0043]). According to a particular and preferred, the aqueous extract of rose and the oil extract of rose are extracts of rose flower, preferably extracts of rose flower of the Jardin de Granville® rose variety (Dumas, [0044]).
Regarding claim 3, Dumas et al. as mentioned above teach petal and makes a clear distinction from it and sepal in paragraph [0039]. Examples are provided in the Materials and Methods section ([0205]). Along with Koganov et al. teaching flower tissue is used as the plant biomass source, the flowers are separated from the whole plant prior to extraction ([0019]), one with ordinary skill in the art would know that inside the flower are the sex organs (i.e., stamen, pistil).
Regarding claim 4, Koganov et al. teach washing using a low-pressure rinse for a short duration to prevent the initiation of the release of the cell juice from biomass, to cause injury, or to remove valuable components. For example, in one embodiment, the washing of the plant biomass was accomplished in less than or equal to 5 minutes with a water pressure of less than or equal to 1 kg/cm2 ([0022]). The excess water is removed from washed biomass in order to keep the dry matter content close to natural level ([0022]). Koganov et al. disclose pressing using a horizontal, continuous screw press ([0025]). MPEP 2144.05(II.)(A.) states that generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.
Regarding claim 6, Koganov et al. disclose the method wherein the frequency of said electromagnetic field is from greater than 2.5 GHz to about 7.0 GHz (claim 6) to read on the between 2.4 and 5.8 GHz limitation.
Regarding claim 7 (i.e., 2.45 GHz), Koganov et al. teach an electromagnetic field at a frequency of greater than 2.45 GHz (claim 1) and a frequency of from greater than 2.45 GHz to about 7.0 GHz (claim 3). MPEP 2144.05 states that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.
Regarding the pH level adjustments in claims 5 and 8-11, in paragraph [0036] of Koganov et al. and by incorporation of reference Koganov et al. teach pH range of between 2.5 and 6.5 (e.g., US7442391B2, claim 33) to read on the claimed pH lower than 4 (instant claim 5), pH 6.0 (instant claim 8), pH 6.5 (instant claim 9) and pH lower than 5 (instant claim 11). Regarding the pH ranging from 8.5 to 9.0 of instant claim 10 and those pH values of instant claims 5 and 8-11, one in the art would have been motivated to use experimentation to determine the optimal pH levels to achieve pH-controlled steps. It would have been obvious to one of ordinary skill in the art to use the teachings of Koganov et al. and Dumas et al. to use optimization and experimentation to determine such steps. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
Conclusion
Claims 1-11 are rejected. Claims 12-22 are withdrawn. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Karen Ketcham whose telephone number is (571)270-5896. The examiner can normally be reached 0830-1630.
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/Karen A Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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