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 .
Information Disclosure Statement
The information disclosure statement (IDS’s) submitted on 10/27/2024 are being considered by the examiner however there are no patent documents and/or non-patent literature to review as the IDS’s are blank. The signed IDS form is attached with the instant office action.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-6 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention without knowing how to “bind the oleocanthal to beta-glucan”, which is critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). The invention’s novelty relies on the binding of oleocanthal to beta-glucan and the claims do not recite the steps necessary to allow this to take place. The invention is to a method of creating this composition and it is not evident as to what the process must be for the binding to take place as currently claimed. The applicant recites wherein “olives are first pitted in the canning stage, and after washing, they are kept in distilled water for 24-48 hours. Then, the bitter water is collected, and the rest of the ingredients enter the canning process. Bitter water is lyophilized after pasteurization, and the resulting powder contains polyphenols, chlorophyll, some water-soluble proteins, etc. This powder has been invented for long-term storage. To extract oleocanthal, the resulting powder is first dissolved in water again and after passing through activated carbon filters, chlorophyll and pigment are removed. After filtering, beta-glucan is added to the resulting solution and enters the two-step extraction as follows” (see instant 0018). However, this process is not claimed, and the specifications are not to be read into the claims which makes the essential matter necessary for the invention.
All other claims depend directly or indirectly from the rejected claims and are, therefore, also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth above.
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 1-6 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, in line 2 recites “…is added to the above-mentioned solution” and there is no antecedent basis for the “above mentioned solution” as there has been no previous mention of any solution. Additionally, there is no antecedent basis for “the supercritical method” as this was not required previously.
Claim 1 also recites “solvent is added to the above-mentioned solution at a ratio of (30:60:10) and (10:60:30)” and it is unclear as to what the final amount of solvent is to be. For example, are the two ratios added together to arrive at 40:120:40 or is it the intent of the applicant to claim either ratio such as “(30:60:10) or (10:60:30)”?
Claims 2 and 4-6 do not appear to require any additional steps for the extraction process and are confusing in that they appear to merely recite qualitative traits for the extract. For instance, claim 2 recites that the solvents used in the extraction process leads to highest quality efficiency, but this does not further limit the claim or describe any other steps. Claim 3 recites that “the invention components include malt, oleocanthal and tocopherol, and also the process of adding the oleocanthal at a ratio of 1-10% in the boiling stage” and this is indefinite for two reasons because when and how are the components incorporated into the extraction process and there is no antecedent basis for a boiling stage as this was not required in any previous step/claim. Claim 4, recites that “the final product has higher stability and the properties listed in the “advantages of the invention” section can be maintained for a long time” and this is not a step that can be taken in the claimed process. It merely describes a quality of the final product produced from the extraction. Claim 5, recites “tocopherol as an antioxidant increases the stability of the oleocanthal” and this also is not a step that can be taken in the claimed process. It merely describes a quality of tocopherol. Also claim 2 does not require tocopherol. Claim 6, recites “any other drinks including wine and whiskey containing oleocanthal and tocopherol are claimed” and this claim is confusing because it depends from a production process (extraction) and the claim does not necessarily end in the process of making a drink of adding anything to a drink and so claiming “other drinks” is confusing and whiskey and wine generally do not contain oleocanthal and tocopherol which also makes the claim confusing. The claims are indefinite for these reasons.
All other claims depend directly or indirectly from the rejected claims and are, therefore, also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth above.
Conclusion
Currently no claims are allowed.
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JACOB A BOECKELMANExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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