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
Election/Restrictions
Claims 1-22 are pending.
Applicant’s election without traverse of Group I, claims 1-15, in the reply filed on 8/7/26 is acknowledged.
Claims 16-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/7/26.
Claims 1-15 are examined on the merits.
Claim Rejections –35 USC § 101 Rejection
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-15 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.
First, the claimed invention must be to one of the four statutory categories. 35 U.S.C. 101 defines the four categories of invention that Congress deemed to be the appropriate subject matter of a patent: processes, machines, manufactures and compositions of matter. The latter three categories define "things" or "products" while the first category defines "actions" (i.e., inventions that consist of a series of steps or acts to be performed). See 35 U.S.C. 100(b) ("The term ‘process’ means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."). See MPEP § 2106.03 for detailed information on the four categories.
Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim must not be directed to a judicial exception unless the claim as a whole includes additional limitations amounting to significantly more than the exception. The judicial exceptions (also called "judicially recognized exceptions" or simply "exceptions") are subject matter that the courts have found to be outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas, laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed information on the judicial exceptions.
Claim(s) 1-15 is/are directed to a composition for preventing and for treating and reducing infections and tissue inflammation caused by bacteria and viruses in humans and animals, the composition comprising effective amounts of the following: vitamin C; vitamin E; a source of zinc; a source of taurine; one or more anti-infectious phytochemicals; one or more anti-inflammatory nutraceutical compounds; and one or more anti-inflammatory phytochemicals.
Analysis of the flowchart:
Step 1, is the claim to a process, machine, manufacture or composition of matter?
Yes. The claim is directed to a composition of matter.
Step 2A. Prong one: Is the claim directed to a law of nature, a natural phenomenon (product of nature), or an abstract idea?
Yes, the claims are directed to nature-based components. Vitamin C (also known as ascorbic acid and ascorbate) is a water-soluble vitamin found in citrus and other fruits and vegetables. Plant materials such as wheat germ oil, sunflower seeds, almond, and hazelnut oil, contain Vitamin E. Animal products such as meat, fish, shellfish, fowl, eggs, and dairy contain zinc. The concentration of zinc in plants varies with the level in the soil. With adequate zinc in the soil, the food plants that contain the most zinc are wheat (germ and bran) and various seeds, including sesame, poppy, alfalfa, celery, and mustard. Zinc (in claims 1 and 6) is also found in beans, nuts, almonds, whole grains, pumpkin seeds, sunflower seeds, and blackcurrant. Taurine is naturally occurring as well, the human body produces it, and it is found in high amounts in animal tissues, the brain, heart, muscles, and daily food sources like meat and seafood. Omega-3 fatty acid, EPA, and DHA exist in fish oil, for example. Alpha-lipoic acid in claim 3 is made in animals normally, and is essential for aerobic metabolism. Sage in claims 3 and 5, and green tea in claims 4 and 5 exist in nature as well. There is no indication that extraction has caused phytochemicals and nutraceuticals that comprise the claimed compositions to have any characteristics that are different from the naturally occurring components in radix bupleuri, Echinacea purpura, sage, pomegranate, uncaria tomentosa, black elderberry, and American elderberry, Boswellia serrata, maritime pine, commiphora myrrha, resveratrol (as in grape), curcumin and piperine (as in curcuma long), green tea, cannabidiol (as in cannabis), fulvic acid (as in peat), etc.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than the judicial exception?
No. The claim(s) of 1-15 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception, as there is no indication that extraction has caused phytochemicals and nutraceuticals that comprise the claimed compositions to have any characteristics that are different from the naturally occurring components in radix bupleuri, Echinacea purpura, sage, pomegranate, uncaria tomentosa, black elderberry, and American elderberry, etc.
Regarding claims 1-15, since there is no absolute amounts of the active ingredients are claimed as compared to the whole composition, the claimed composition encompasses embodiments where the active ingredients are in such small amounts that none of them impart any characteristic or markedly different characteristic. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
Regarding claim 7, the presence of a water in suspension or liquid does not result in a markedly different characteristic for the claimed composition because the claimed plant materials already water, and thus have that same characteristic.
Step 2B. If additional elements of the claim provide an inventive concept (Step 2B) (also called "significantly more" than the recited judicial exception).
No. no non-nature based components were recited in the claims.
For the reasons described above, the claimed compositions are not markedly different from their closest naturally occurring counterparts and thus are product of nature judicial exceptions.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not recite any additional elements beyond the claimed compositions themselves. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, 4, 6, 7, 12, and 14 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Thomson (US 20160158305 A1).
Thomson teaches a formulation comprising Alpha Lipoic Acid 10 (mg) (thus one or more anti-inflammatory nutraceutical compound, thus claims 3 and 12 are met, thus effective amounts) Beta Carotene 5 (mg) Choline 10 (mg) Curcumin 20 (mg) (thus one or more anti-inflammatory phytochemcials, thus claims 4 and 14 are met) Cysteine 30 (mg) Glutamine 100 (mg) Glycine Taurine (thus the claimed material) mixture 100 (mg) Folic Acid 250 (mcg) Camellia sinensis extract 200 (mg) (thus green tea extract, thus one or more anti-inflammatory phytochemcials, thus claims 4 and 14 are met) Inositol 10 (mg) Methylsulfonylmethane 100 (mg) Silibum marianum extract 250 (mg) (thus anti-infectious phytochemcials containing silymarin for example) s-adenosylmethionine 100 (mg) Vitamin C 60 (mg) (thus the claimed material) Vitamin E 30 (IU) (thus the claimed material) Zinc gluconate 5 (mg) (thus claim 6 is met) ([0048] (Table 2).
Thomson teaches a supplement can be in the form of a pill, tablet (thus claim 7 is met), gel cap, a liquid, a spray, a powder, or other ingestible product etc. [0009].
The intended use of the composition was analyzed for patentable weight. It is deemed that the preamble ‘breathes life’ into the claims in that the prior art product must not be precluded for use for preventing and for treating and reducing infections and tissue inflammation caused by bacteria and viruses in humans and animals. It is deemed that the composition disclosed by the cited reference is not precluded for carrying out the intended function of the claims.
Therefore, the reference is deemed to anticipate the instant claim above.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIUWEN MI whose telephone number is (571)272-5984. The examiner can normally be reached on Monday-Friday 8:30 am to 5:00 pm.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655
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