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
The Amendments filed on 7/28/2026 has been received and entered.
Claims 35-41, 43, 45, and 48-53 are pending. Claims 35, 38, 39, 43, and 48-49 are examined on the merits.
Election/Restrictions
Applicant’s election without traverse of Group I (Claims 35-50), the species dyes, quercetin in the reply filed on 7/28/2026 is acknowledged.
Claims 36-37, 40-41, 45, and 50-53 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group and species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/28/2026.
Information Disclosure Statement
The information disclosure statements (IDSs) submitted on 3/10/2026, 7/31/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Rejections - 35 USC § 101
Claims 35, 38, 39, 43, and 48-49 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. Claim(s) 35, 38, 39, 43, and 48-49 are directed to a composition comprising natural products. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
MPEP § 2106 sets forth the Subject Matter Eligibility Test to determine if a claim is directed to patent eligible subject matter. Step 1 asks if a claim is directed to a statutory category of invention. Applicant’s claims are directed to a product; thus, the answer to Step 1 is Yes.
Step 2A, Prong One, asks if a claim recites to a product of nature. In this case, applicant’s claims dye extract comprising deoxyanthocyanidins, a polymer, quercetin from Sorghum which are derived from a plant. Thus, the claims do recite products of nature. MPEP § 2106.04(b) states that “When a claim recites a nature-based product limitation, examiners should use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A.”
MPEP § 2106.04(c)(I) states that “if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception…”. To perform the markedly different characteristic analysis, MPEP § 2106.04(c)(II) states “The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties…”.
In this case, in claim 35, 38, 39, 40, the homogenized form of the ingredients mixed together would still be a product of nature because as long as there are nature-based molecules found in the composition, the composition contains a mixture of products that are found in nature (the individual natural molecules) and thus must be evaluated as per the described analysis. Mixing together various natural molecules doesn’t change those molecules per se; they are simply mixed together and thus would have the same characteristics as the same molecules prior to being mixed together.
In this case, claim 49, the form of a powder does not make the dye composition have markedly different characteristic. Powder form is found in nature when the Sorghum composition dries and become ground by gravity or animals.
In this case, Claims 38 and 43, further comprising quercetin, is not an additional element that renders the claim markedly different from the natural quercetin found in Sorghum, which are also naturally found.
Therefore, the answer to Step 2A, Prong One, is Yes.
Thus, the analysis must move to Step 2A, Prong Two, which asks if the claim recites additional elements that integrate the judicial exception into a practical application. As discussed in MPEP § 2106.04(d)(2) this evaluation is performed by identifying whether there are additional elements recited in the claim beyond the judicial exception and evaluating these additional elements to determine whether the claim as a whole integrates the exception into a practical application.
The homogenized composition of the different plants and vegetables together are non-natural. However, a composition can be used in many different ways and thus not integrate the judicial exception into a practical application. Thus, the answer to Step 2A, Prong Two, is No.
The analysis must then move to Step 2B which asks if claims recite additional elements that amount to significantly more than the judicial exception. MPEP § 2106.05 states that this evaluation is performed by “Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” The mixing of Sorghum composition are well understood, routine, and conventional method of making a product for dyes (see reference below). Thus, the answer to Step 2B is No. Therefore, the claims are not directed to patent eligible 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.
Claim(s) 35, 38, and 43 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hong et al. (2020, Antioxidants, 9: 1297: 1-20).
Hong et al. teaches sorghum 3-deoxyanthocyanidins, composed mainly of luteolinidin and apigeninidin and are more resistant to the photo-bleaching effects of ascorbic acid than the corresponding 3-oxygenated anthocyanin counterparts, thus supporting the role of 3-deoxyanthocyanidin as a source of natural pigment. In addition, sorghum tannins, composed of oligomers or polymers of mainly catechins (flavan-3-ol or flavan-3,4-diol) (page 2, lines 2-10). Extracts of sorghum contain quercetin and luteolin (Table 2).
Claim(s) 35, 38, 39, 43, 48 and 49 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Herrman et al. (from IDS, 2021, Food Chemistry, 372 (2022) 131233) as evidenced by Hong et al. (2020, Antioxidants, 9: 1297: 1-20).
Herrman et al. teaches a food colorant from dried sorghum leaf extract (2. Material and methods, 2.2 Extract of 3-deoxyanthocyanins) of 3-deoxyanthocyanins comprising apigenidin, luteolinidin, luteolin-7-glycoside (Table 1). Hong et al. teaches sorghum 3-deoxyanthocyanidins, composed mainly of luteolinidin and apigeninidin and are more resistant to the photo-bleaching effects of ascorbic acid than the corresponding 3-oxygenated anthocyanin counterparts, thus supporting the role of 3-deoxyanthocyanidin as a source of natural pigment. Extracts of sorghum contain quercetin and luteolin (Table 2).
Conclusion
No claim is allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached on Monday-Friday 9-5:30 PM.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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