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 .
Status of the Application
Claims 1-4 filed on 7/17/2024 are pending in the application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/17/2024 was filed before the first Office action. The submission 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 1 and dependent claims 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 recites “and the remainder” which is undefined. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Further, “natural herbal ingredients” in claim 1 includes a very broad range. A meaningful comparison with prior art is not possible. Appropriate correction is required.
Claim 2 recites a narrower range of herbal ingredients, but does not clearly define the scope of the invention. The term “include” is an open ended transitional term that does not preclude additional herbal ingredients than those listed. A meaningful comparison with the prior art is not possible.
Claim 3 recites “functional amino acid ingredients” but does not clearly define the scope of the invention. The term “include” is an open ended transitional term that does not preclude additional amino acid ingredients than those listed. A meaningful comparison with the prior art is not possible.
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 for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Bachri et al. (Journal of Life Science 2009, Vol 19(2) 219-227, in view of Portman (US6051236A) cited in an IDS, and Kim et al. (Phys Ther Rehabil Sci 2021; 10:175-84 . https://doi.org/10.14474/ptrs.2021.10.2.175)
Regarding claim 1 and 2, Bachri (abstract, Table 1)discloses a sports beverage composition for recovering from and reducing fatigue comprising minerals, sugar, Schisandra chinensis extract, plum extract and molasses. Sugar and molasses are fractions of concentrated sugarcane juice. It would have been obvious to one of ordinary skill in the art to use sugarcane juice in concentrated form or diluted to provide 6% sugar as in the reference in a beverage composition with Schisandra chinensis extract and plum extract, to improve endurance and reduce fatigue during exercise with a reasonable expectation of success.
Bachri does not specifically disclose black raspberry extract , red ginseng, in claims 1 and 2 and branched chain amino acids alanine and proline, as in claim 3. However, the reference discloses that BCAA in beverages are known to reduce muscular fatigue (page 220). Of these alanine, proline valine are purely glucogenic amino acids that work with carbohydrates to provide energy and reduce fatigue. Portman discloses adding valine to beverages. It would have been obvious to one of ordinary skill in the art to add branched chain amino acid to replenish energy stores and support muscle tissue repair with a reasonable expectation of success.
Black raspberry is known to combat oxidative stress and inflammation.
Kim et al. discloses benefits of red ginseng extract in reducing lactic acid that is linked with muscle fatigue and in increasing exercise capacity.(See Abstract, Introduction)
It would have been obvious to one of ordinary skill in the art to combine known ingredients that help in recovering and reducing muscular fatigue based on their known use for the same purpose in the art with a reasonable expectation of success.
Applicant has not shown unexpected effects of such a combination.
Regarding claim 4 the steps in juice extraction and concentration are conventional and do not provide a patentable distinction, absent unexpected effects of the claimed method steps. The claim is a product by process claim and is limited by the product namely concentrated sugarcane juice and not by manipulations of process steps.
Claims 1-4 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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