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 .
Claim Rejections - 35 USC § 101
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 1-13 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) 1-13 are directed to a composition comprising pelargonidin-based anthocyanins. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception (i.e. a product of nature) because there is no indication that the acylated anthocyanins are different from the anthocyanins naturally occurring in plants. The claim therefore encompasses acylated anthocyanins that are structurally and functionally identical to naturally occurring acylated anthocyanins. Because there is no difference between the claimed and naturally occurring anthocyanins, the claimed anthocyanins do not have markedly different characteristics from what occurs in nature, and thus is a "product of nature" exception. Where claim 1 further claims the red color hue value, the examiner notes that these are the conditions under which the color is measured, and not a part of the composition itself. These conditions do not change the fact that the claim is to naturally occurring acylated anthocyanin compounds.
Also, these acylated anthocyanins are natural products, so it would be obvious they can be combined at any percentages and they are still natural products.
Sulfur compounds are not mentioned by Honda in any of polyacylated anthocyanins, so they should contain no sulfur compounds.
And the two, acylated anthocyanines, of the formulas (1) and (2), which MPEP 2106, claims to natural products, extracts, or mixtures are ineligible if they do not display structural or functional characteristics significantly different from their natural counterparts. are also the two natural acylated pelargonidin derivatives, so it would be obvious they can be combined at any percentages.
The composition lacks "markedly different characteristics" from what occurs naturally:
Product of Nature Exception: Under MPEP 2106, claims to natural products, extracts, or mixtures are ineligible. Percentage Ranges and Isolation: Simply defining specific percentage ranges, mixing natural ratios, or isolating a natural molecule does not automatically confer patent eligibility under Section 101 unless human modification creates a "marked difference" in properties.
Claims 11-13 are rejected under 35 U.S.C. 101 because a “use” is not one of the four statutory classes of invention
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 11-13 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.
Claims 11-13 are indefinite because they recite: “The use…”, without active, positive process steps. They fail to delimit how the use is actually practiced, making its legal scope unclear and indefinite.
For examining purposes, examiner will remove “The use of” from these claims. Appropriate corrections are required.
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.
Claim(s) 1-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bertoldo de Barros et al. (US 20120164089 A1).
Claims 1 and 3-6,
Bertoldo de Barros et al. teach The concentrating the extract to provide an anthocyanin composition having greater than 55% acid or acylated form of anthocyanin. The extract before concentration should have a pH of less than or equal to 4.5. The extract may be provided free of any acids or salts (e.g., acid salts, which unless otherwise stated are included within the term "acids") other than those extracted or formed from corn kernels. The anthocyanin pigment/dye in the corn kernel may have greater than 70% by weight of anthocyanin as an acid or acylated form of the anthocyanin and the extract is concentrated to provide an anthocyanin composition having greater than 70% acid form of anthocyanin. (0023).
Anthocyanins are plant-based polyphenolic pigments. Anthocyanidin glycosidically linked to carbohydrate moieties and/or acyl groups. Extractions may use solvents such as water, methanol, ethanol, or mixtures thereof, optionally acidified. (0134). Useful compounds may be present in extracts from the inbreds of this invention and their hybrid, such as phenolic acids, hydroxycinnamic acid and derivatives, and/or with acylating acids. (0135). Within the general term, "polyphenols" are compounds including the dihydroxy- or -tri-hydroxy benzoic acids. (0008). which mean anthocyanins can be acylated by phenolic acids (such as benzoic acid, hydroxycinnamic acid derivatives) attached to their sugar groups.
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Hue: Places the color on the CIE (L*C*h*) color wheel right between pure red: 0°; yellow: 90° orange is between 0°-90°, or between 45°-60°, so h* = 10-30 is between red-orange: representing a warm red leaning slightly toward red-range.
Lightness: white (100) than to black (0). L* = 70.0 indicates a high level of perceived brightness.
Bertoldo de Barros et al. teach grain is bright yellow, (0173), which L* is closer to 70; and
grain tends to be a medium to light orange/yellow color, (0171), some red corn (0145); which is between 0-70; .
There was no sulfur in the composition.
Bertoldo de Barros et al. teach the presence of the higher proportions of the acid or acylated forms ( especially diacylated) pelargonidin 3-(malonoyl)(malonoyl)glucoside, 2-6%. 1-4%, 0.8-4$. (0194, claim 16-17).
With regard to claim 2,
Bertoldo de Barros et al. teach peonidin 3-glucoside anthocyanin 1-5%, 3-8%, 1-6%, 1-4% (Table 1B); 1-6%, 2-8% (Table 1C), (0168)
With regard to claims 7-8,
Bertoldo de Barros et al. teach the anthocyanins are pelargonidin (hydroxylated at positions 3, 5, 7, 3'). The hydroxyl groups are usually glycosylated and/or methoxylated ( e.g. malvidin at 3',
5'). (0008). Useful compounds may be present in extracts from the inbreds of this invention and their hybrid, such as phenolic acids, hydroxycinnamic acid and derivatives, and/or with acylating acids. (0135). Within the general term, "polyphenols" are compounds including the dihydroxy- or -tri-hydroxy benzoic acids and the phytoalexins, a typical example of which is resveratrol. pelargonidin 3-(malonoyl) glucoside, 2-6%, (0140, 0168).
With regard to claims 9-10,
Bertoldo de Barros et al. teach Cyanidin in different anthocyanins: The protocol included a first extraction of 40% (dry weight) of whole kernel com using 60% of deionized water at a low shear
mixing action at 60° C; Cyanidin 3-glucoside: 0.3-43.1%. (0214). The anthocyanin content comprises at least 13 % by total weight of anthocyanin of cyanidin 3-glucoside (claim 4, pg. 26). The extraction product of claim 1 wherein the anthocyanin content (Kuromanin is cyanidin-3-glucoside, (SPEC, pg. 8, line 19).
With regard to claims 11-13,
Bertoldo de Barros et al. teach the goal of field crop breeding is to combine various desirable traits in a single variety/hybrid. Such desirable traits include greater yield, fruit size, (0009), fruit pigments, color cosmetics, fruit extract, (0062), which include fruit beverages; food (0015, 0065, 0070, 0128, 0130, 0226).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NGOC-ANH THI NGUYEN whose telephone number is (571)270-0867. The examiner can normally be reached Monday - Friday 8:00 am.
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/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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