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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-6, 9-11, and 14-15) in the reply filed on 8/13/26 is acknowledged.
Claims 7-8, 12-13, 16-17are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/13/26.
Information Disclosure Statement
Receipt is acknowledged of the Information Disclosure Statement filed May 05, 2025. The Examiner has considered the references cited therein to the extent that each is a proper citation. Please see the attached USPTO Form 1449.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-4, 9-10, 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wantanabe et al. (JP 2022145040).
Wantanabe et al. teach with regards to instant claims 1, 9, 14 an ultrafine bubble liquid, comprising water and the ultrafine bubble comprising a non-gaseous solute nitrogen is dissolved within, surrounded by, and/or stabilized by the ultrafine bubbles wherein the ultrafine bubble have a diameter from 300 nm or less (as required by instant claim 4). With regards to instant claims 2, 10 and 15, the recitation of increase cell permeability and availability is the result of the composition. As stated in the MPEP 2112.01"products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
“Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical
processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not."
However, Wantanabe fails to teach the plant is from a cannabinoid, terpene or hops as required by instant claims 5-6. Nonetheless, teaches, the use of the ultrafine-bubbles for plants in general and therefore MPEP 2143 states "when there is motivation to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." Therefore, the skilled artisan would have had reason to try these methods with the reasonable expectation that at least one would be successful in using any plant with a reasonable expectation.
Although the concentration of the non-gaseous solute is not per se taught, nonetheless one of ordinary skill in the art would based the concentration of the is a result-effective variable, i.e., a variable that achieves a recognized result and, therefore, the determination of the optimum or workable dosage range would have been well within the practice of routine experimentation by the skilled artisan, absent factual evidence to the contrary, and, further, absent any evidence demonstrating a patentable difference between the compositions used and the criticality of the amount(s).
Therefore, one of ordinary skill in the art would have been motivated to use the teaching of Wantanabe to result in the instant claimed invention with a reasonable expectation of success that the actives or components in the composition will work to produce the instant claimed invention when practiced.
Claims 5-6 and11 are objected to as being dependent upon a rejected base claim but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The search did not reveal the limitations listed in the above cited claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY V GEMBEH whose telephone number is (571)272-8504. The examiner can normally be reached M-F 9am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615 9/26/26
