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
Claims 53-72 are pending. Claims 53-54 and 56-72 are examined on the merits. Claim 55 is withdrawn.
Election/Restrictions
Applicant’s election without traverse of the species alcohol extract, orally in the reply filed on 7/26/2026 is acknowledged.
Claim 55 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/26/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/26/2026 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.
Claims 53-54 and 56-72 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.
The term “red” in Claim 53 is a relative term which renders the claim indefinite. The term “red” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. How “red” is considered “red” for a rose petal color? Thus, the dependent claims are rejected for the same reason.
In claims 57-60, 63, and 66-70, the term “about” is unclear as to a boundary to determine a numerical value. The amounts are unclear.
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) 53-54 and 57-72 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wei et al. (CN 111466505 A).
Wei et al. teaches a method of reducing the risk of obesity with a beverage comprising rose edible flowers (Abstract) extracted in alcohol (Fig. 1, 3). The rose powder is Yunnan high quality red rose (5). The same extract would inherently have the same chemical activities and components.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 53-72 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 12226443 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because alcohol extraction is not claimed.
U.S. Patent No. 12226443 B2 teaches:
1. A method of reducing body weight, comprising administering to an obese subject an effective amount of a composition comprising a supercritical fluid red rose petal extract, wherein said extract comprises about 3.50 w/w % isoquercetin and about 0.30 w/w % quercetin, and wherein administering said composition reduces body weight in said subject.
2. The method of claim 1, wherein said extract comprises about 66.0 w/w % polyphenols, about 9.5 w/w % flavonoids, and about 2.7 w/w % anthocyanins.
3. The method of claim 1, wherein said extract comprises 66.44±3.09 w/w % polyphenols, 9.47±1.23 w/w % flavonoids, and 2.73±0.38 w/w % anthocyanins.
4. The method of claim 1, wherein said extract comprises about 0.30 w/w % rutin.
5. The method of claim 1, wherein said extract comprises 3.48±0.11 w/w % isoquercetin, 0.25±0.28 w/w % quercetin, 0.33±0.02 w/w % rutin, or combinations thereof.
6. The method of claim 1, wherein said extract comprises at least one phenolic acid.
7. The method claim 1, wherein said extract comprises about 0.30 w/w % ethyl gallate, about 1.90 w/w % ellagic acid, about 0.02 w/w % methyl gallate, about 0.10 w/w % catechin, about 1.40 w/w % gallic acid, about 0.10 w/w % 3,4-dihydroxy benzoic acid, or combinations thereof.
8. The method of claim 1, wherein said extract comprises 0.28±0.04 w/w % ethyl gallate, 1.85±0.33 w/w % ellagic acid, 0.02±0.003 w/w % methyl gallate, 0.11±0.008 w/w % catechin, 1.41±0.04 w/w % gallic acid, 0.09±0.01 w/w % 3,4-dihydroxy benzoic acid, or combinations thereof.
9. The method of claim 1, wherein said extract comprises at least one chlorogenic acid.
10. The method of claim 1, wherein said extract comprises 0.00046±0.0001 w/w % 3-O-caffeoylquinic acid (3-CQA), 0.0114±0.006 w/w % 5-O-Caffeoylquinic acid (5-CQA), 0.0104±0.004 w/w % 4-O-Caffeoylquinic acid (4-CQA), 0.022±0.008 w/w % 3,4 Di-O-caffeoylquinic acid (3,4-DiCQA), 0.388±0.14 w/w % 3,5 Di-O-caffeoylquinic acid (3,5-DiCQA), and 0.0823±0.01 w/w % 4,5 Di-O-caffeoylquinic acid (4,5-DiCQA), or combinations thereof.
11. The method of claim 1, wherein said extract comprises 3.5 w/w % isoquercetin, 1.8-2.0 w/w % ellagic acid, 1.0-1.5 w/w % gallic acid, 0.3-0.35 w/w % rutin, 0.25 w/w % quercetin, 0.1 w/w % catechins, or combinations thereof.
12. The method of claim 1, wherein said composition inhibits pancreatic lipase.
13. The method of claim 1, wherein said composition has an IC50 for pancreatic lipase of about 81.4 μg/Ml.
14. The method of claim 1, wherein said composition inhibits α-glucosidase.
15. The method of claim 1, wherein said composition has an IC50 for α-glucosidase of about 1.33 μg/Ml.
16. The method of claim 1, wherein said composition has an IC50 for nitric oxide scavenging activity of about 213.3 μg/Ml.
17. The method of claim 1, wherein said composition has a radical scavenging activity of about 89% at a concentration of 100 μg/ml as determined by DPPH assay.
18. The method of claim 1, wherein said composition has a superoxide scavenging activity of about 82.8% at 100 μg/ml.
19. The method of claim 1, wherein said supercritical fluid rose petal extract is supercritical fluid Rosa multiflora rose petal extract.
20. The method of claim 1, wherein said subject has a metabolic disorder selected from the group consisting of prediabetes, diabetes, type 1 diabetes, type 2 diabetes, dyslipidemia, hyperglycemia, and combinations thereof.
21. The method of claim 1, wherein said composition is administered orally, buccally, sub-lingually, parenterally, intravenously, intravaginally, rectally, by inhalation, or combinations thereof.
22. The method of claim 1, wherein said composition is in a form selected from the group consisting of a powder, liquid, pill, tablet, pellet, capsule, thin film, solution, spray, syrup, linctus, lozenge, pastille, chewing gum, paste, vapor, suspension, emulsion, ointment, cream, lotion, liniment, gel, drop, topical patch, buccal patch, bead, gummy, gel, sol, injection, and combinations thereof.
23. The method of claim 1, wherein said supercritical fluid is carbon dioxide.
However, extraction with alcohol is not taught.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to use alcohol extraction because alcohol is a known solvent for extraction of flowers for tinctures. One would have been motivated to make extraction with alcohol for the expected benefit of extracting rose petals with alcoholic solvents. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand U Desai can be reached on 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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