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 .
Oath/Declaration
The Declaration under 37 CFR 1.132 filed 07/20/2026 was received and is considered herein.
The office appreciates Dr. Thierry Bogaert’s time, education and experience in this matter.
The Affidavit was considered and found to not be persuasive. Examiner’s response is discussed
in detail below.
Terminal Disclaimer
In light of the terminal disclaimer filed 07/20/2026, rejections under Double Patenting are
withdrawn.
Response to Amendment
In applicant’s reply filed 07/20/2026, the claims were amended. Based on these amendments, the rejections under 35 U.S.C. 102 have been revised below as well as new rejections under 35 U.S.C. 112.
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 1-3 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 as amended recites “each of said at least two polyphenols is present in an amount of at least about 0.01% and up to about 4.0%”. This is not supported by the disclosure as filed. Par. 00100 of applicant’s specification filed 12/06/2025 recites “if more than one sterol is provided in the composition, the total combined amount of the plurality of sterols is aptly between about 0.01% and about 4%”. The specification only supports a combined total amount of sterols up to about 4%, whereas the claim as amended encompasses a total amount of sterols of more than the discloses about 4%. For example, if two sterols are used at an amount of 4%, that would result in 8%, higher than the disclosed range of sterol concentration. Claims 2-3 are similarly rejected as they depend from claim 1.
Claim 2 as amended further recites “further comprises cholesterol in an amount of at least 0.01% and up to about 4.0%”. Similar to the above rejection of claim 1, this additional cholesterol element further increases the total sterol concentration claimed by claim 1 by up to about 4% more. This is not supported by the disclosure.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-3 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cohen (US 2006/0148378 A1), cited in Applicant’s IDS filed 12/06/2025.
Regarding claim 1, Cohen teaches a method for increasing bee performance (support growth and development of honey bees, sustain brood rearing, and maintain hive vigor, Abstract, Par. 0010)
comprising administering to a man-made feed composition comprising at least two phytosterols (lipids include sterols Par. 0033-0034; phytosterols Par. 0039), which imparts a plural amount and encompasses at least two phytosterols.
wherein (a) the at least two phytosterols are selected from the group consisting of 24- methylenecholesterol, campesterol, and beta-sitosterol (beta-sitosterol, stigmasterol, and campesterol Par. 0039)
and (b) each of said at least two phytosterols is present in an amount of at least about 0.01% and up to about 4.0%, by dry weight of the composition (preferred range of cholesterol is 0.05-1%, nutrient compositions determined after removal of water component Par. 0031). Though cholesterol is the only sterol in this breakdown of components, as it is representing total sterol amount, one would reasonably use the amount of cholesterol as a guide for total sterols if a combination is used. And therefore if there are multiple sterols, each would be present in an amount of less than 1%, falling within the claimed amount.
Regarding claim 2, Cohen further teaches the man made composition further comprises cholesterol in an amount of at least 0.01% and up to 4.0% by dry weight of the composition (preferred range of cholesterol is 0.05-1%, nutrient compositions determined after removal of water component Par. 0031). As in the above rejection of claim 1, Cohen teaches an amount of cholesterol which can reasonably be used as a guide for total sterols if a combination is used. And therefore if there are multiple sterols, each would be present in an amount of less than 1%, falling within the claimed amount.
Regarding claim 3, Cohen further teaches the man made feed composition includes at least three phytosterols (beta-sitosterol, stigmasterol, and campesterol Par. 0039)
Response to Arguments
Applicant's Affidavit filed 07/20/2026 has been fully considered but it is not persuasive.
IV. Cohen fails to disclose the claimed sterol combinations
In paragraph 0033, Cohen discloses that the invention includes sterols (plural), then further teaches a list of possible sterol sources in paragraph 0039. As the sterol composition of paragraph 0033 teaches multiple sterols, one would reasonably apply multiple of the options given in paragraph 0039.
V. Cohen fails to disclose the claimed phytosterol concentration range
It is asserted that as Cohen does not explicitly teach amounts of phytosterols, there is no claimed phytosterols in the invention other than those inherent in the soy ingredients. However, Cohen teaches supplying the invention with a source of sterols including phytosterols (Par. 0039). As Cohen teaches a preferred range for cholesterol when it is the only source of sterols (preferred range of cholesterol is 0.05-1%), when supplying phytosterols, one would reasonably use the amount of cholesterol as a guide for total sterols if a combination were used. And therefore, despite Cohen not explicitly disclosing a concentration of phytosterols, it provides for a sterol amount which falls within the claimed range (as seen in the above rejection).
Applicant's arguments filed 07/20/2026 have been fully considered but they are not persuasive.
Applicant argues that Cohen does not teach the use of at least two sterols. In paragraph 0033, Cohen discloses that the invention includes sterols (plural), then further teaches a list of possible sterol sources in paragraph 0039. As the sterol composition of paragraph 0033 teaches multiple sterols, one would reasonably apply multiple of the options given in paragraph 0039.
Applicant argues a single sterol would not result in the claimed benefits. As seen above, Cohen teaches the use of multiple sterols.
Applicant argues Cohen does not disclose the claimed amount of phytosterols. Cohen teaches supplying the invention with a source of sterols including phytosterols (Par. 0039). As Cohen teaches a preferred range for cholesterol when it is the only source of sterols (preferred range of cholesterol is 0.05-1%), when supplying phytosterols, one would reasonably use the amount of cholesterol as a guide for total sterols if a combination were used. And therefore, despite Cohen not explicitly disclosing a concentration of phytosterols, it provides for a sterol amount which falls within the claimed range (as seen in the above rejection).
Applicant argues the phytosterols of Cohen’s soy flour would not contain the claimed amount of phytosterols. As explained above, Cohen teaches the disclosed amount of phytosterols regardless of the soy flour composition.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Tereszkiewicz (US 2010/0104668 A1) discloses a nutritional supplement for bees which comprises fatty acids and sterols (Par. 0006).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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, Erik Kashnikow can be reached at 5712703475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.M.R./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
Prosecution Insights