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 .
Application Status
Claim 1-11, 13 and 15-17 are under examination.
Claim 12, 14 and 18-20 are cancelled.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/17/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 9 is 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.
Regarding claim 9, line 2 and line 4, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
Claim(s) 1-11, 13 and 15-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Benyacoub et al. (US 9,629,908 B2).
Regarding claim 1, 2, 3, 4, 5, 6, 8, 9, 10, Benyacoub et al. (Benyacoub) discloses food product (composition/infant formula) (‘908, col. 5, ln. 13-17-29) intended for infants (‘908, col. 6, ln. 9-12; claim 2) comprising a mixture (biotic complex) of secretory immunoglobulin A (sIgA) (‘908, col. 2, ln. 35-38, claim 1) and probiotic bacteria, Lactobacillus and Bifidobacteria (‘908, col. 3, ln. 25-28; 62-67; col. 4, ln. 1-13, claim 12, claim 13). With respect to claim 5, Benyacoub discloses Bifidobacterium longum (‘908, claim 13). With respect to claim 8, Benyacoub’s food product (composition/infant formula) (‘908, col. 5, ln. 13-17-29) intended for the infants (‘908, col. 6, ln. 9-12; claim 2) is considered to provide nutrition, hence meet limitation of nutritional composition.
Regarding claim 11, 15, 16 and 17, Benyacoub discloses a method of administrating the food product (composition/infant formula) (‘908, col. 5, ln. 13-17-29) comprising the mixture (biotic complex) of the secretory immunoglobulin A (sIgA) (‘908, col. 2, ln. 35-38, claim 1) and the probiotic bacteria to human beings, (mammal), infants (‘908, col. 6, ln. 9-12; claim 2). With the recitation of “for the prevention and/or treatment of a viral infection” as recited in claim 11, 15, 16 and 17, on language solely recited in preamble recitations in claim(s). When reading the preamble in the context of the entire claim, the recitation in claim 11, 15, 16 and 17 are not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02. Additionally, it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or substantially identical process, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitation that stem from the claimed structure (product). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spade, 15 USPQ2d 655,1658 (Fed. Cir. 1990).
Regarding claim 13, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Benyacoub discloses a method of administrating the food product (composition/infant formula) (‘908, col. 5, ln. 13-17-29) comprising the mixture (biotic complex) of the secretory immunoglobulin A (sIgA) (‘908, col. 2, ln. 35-38, claim 1) and the probiotic bacteria to human beings, (mammal), infants (‘908, col. 6, ln. 9-12; claim 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ERIK KASHNIKOW can be reached at (571)270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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