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 .
Priority
This application, filed 03/04/2026 is a Continuation of 19030516, filed 01/17/2025, now U.S. Patent # 12577210. 19030516 is a Continuation of 17522680, filed 11/09/2021, now U.S. Patent # 12227483. 17522680 is a Divisional of 14621738, filed 02/13/2015, now U.S. Patent # 11166979. 14621738 is a Continuation of 13920066, filed 06/17/2013, now U.S. Patent # 8957100. 13920066 is a Continuation of 13038615, filed 03/02/2011, now U.S. Patent # 8466187. 13038615 is a Continuation in Part of 12336938, filed 12/17/2008, now U.S. Patent # 8034836. 12336938 is a Continuation of 11950273, filed 12/04/2007, now U.S. Patent # 7777074. 11950273 Claims Priority from Provisional Application 60973229, filed 09/18/2007.
Status of Claims
Claims 1-30 are currently pending. A track one status has been granted.
Claims 1-30 were examined. Claim 27 is objected to. Claims 1-26 and 28-30 are rejected.
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 7-26 and 30 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 7-8 depend from claim 1 and recites “solid supplement composition comprises beetroot, ….”, however, claim 1 doesn’t recite the inclusion of beetroot and the other vegetable recited in the claims. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claim 9 depends from claim 1 and recites “solid supplement composition comprises at least one component that is ion-exchange resin-based”, however, claim 1 doesn’t recite this component. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 10 depends from claim 1 and recites “solid supplement composition comprises an antioxidant”, however, claim 1 doesn’t recite this component. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 11 depends from claim 1 and recites “solid supplement composition comprises citric acid”, however, claim 1 doesn’t recite this component. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 12 depends from claim 1 and recites “the solid supplement composition comprises three or more of the following: beetroot, ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 13 depends from claim 1 and recites “the solid supplement composition comprises four or more of the following: beetroot, ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 14 depends from claim 1 and recites “the solid supplement composition comprises five or more of the following: beetroot, ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 15 depends from claim 1 and recites “the solid supplement composition comprises a botanical nitrate source ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claim 16 depends from claim 1 and recites “the solid supplement composition comprises beetroot ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claim is indefinite.
Claims 17-18 depend from claim 1 and recites “the solid supplement composition comprises at least one isolated amino acid compound selected from: aspartic acid ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claims 19-20 depend from claim 1 and recites “the solid supplement composition comprises at least two isolated amino acid compounds selected from: aspartic acid ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claims 21-22 depend from claim 1 and recites “the solid supplement composition comprises at least three isolated amino acid compounds selected from: aspartic acid ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claims 23-24 depend from claim 1 and recites “the solid supplement composition comprises at least four isolated amino acid compounds selected from: aspartic acid ….”, however, claim 1 doesn’t recite these ingredients. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claims 25-26 depend from claim 1 and recite “the solid supplement composition comprises an isolated amino acid compound that is glycine”, however, claim 1 doesn’t recite this limitation. There is insufficient antecedent basis for this limitation, and the claims are indefinite.
Claim 30 depends from claim 1 and recites the composition to comprise “beetroot, spinach, and broccoli, and comprises isolated amino acid compounds that are aspartic acid,…”, however, claim 1 doesn’t recite these limitations. There is insufficient antecedent basis for these limitations, and the claim is indefinite.
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) 1-2, 4, 10-11, 17-26, and 28-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et. al., US 20080108710 A1, publ. 5/8/2008, filed on 11/2/2006.
Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the compositions to further comprise an edible material, e.g., a beverage, fruit, vegetable, meat product, dairy product, bread product, or other solid or liquid edible material (para [0029]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powders (para [0858]).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claims to have arrived at the claimed solid supplement composition comprising at least one isolated non-ester nitrate compound, sodium nitrate; and at least one isolated amino acid compound, beta alanine, wherein the amount of nitrate ion is at least 1 mg., in consideration of Prakash. As discussed above, Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, at least one edible material, and at least one preservative, e.g., antioxidant, with amino acids such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof taught as sweet taste improving ingredients. Prakash further teaches nitrates as antimicrobials, and provides an exemplary composition comprising 100 mg. sodium nitrate, e.g, 50 mg. nitrate ion. Therefore, one of ordinary skill in the art would have arrived at the solid composition of the instant claims, and have had a reasonable expectation of success.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et. al., US 20080108710 A1 as applied to claims 1-2, 4, 10-11, 17-26, and 28-29 above, and further in view of Harris et. al., WO 2007073398 A2, publ. 6/28/2007.
The teachings of Prakash as discussed previously are incorporated herein. However, Prakash doesn’t explicitly teach or suggest the inclusion of an ion-exchange resin.
Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine is desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para).
Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of Prakash, for the sustained release of beta-alanine. Harris teaches sustained release of beta-alanine allows for avoidance of side effects associated with ingestion, and includes ion-exchange resins in such compositions. One of ordinary skill in the art would have been motivated to have included an ion-exchange resin into the composition of Prakash, for the benefits of providing sustained release of beta-alanine.
Claim Rejections-Nonstatutory 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 1-6, 9-11, 17-26, and 28-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of copending application, 19559822 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition is at least 1 mg. (of “about” 1 mg. as recited by the copending claims). The difference between the claims of the instant application and the copending claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); citric acid (claim 11); and additional amino acids selected from aspartic acid, proline, glycine, valine, norvaline, ornithine, and arginine (claim 17), which are not recited by the copending claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the copending claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); citric acid (claim 11); and additional amino acids selected from aspartic acid, proline, glycine, valine, norvaline, ornithine, and arginine into the composition of the copending claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the copending claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the copending claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and copending claims are not patentably distinct.
Claims 1-6, 9-11, 17-26, and 28-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 124-130 of US 8455531 C2 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to solid supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition overlaps, with the amount of nitrate ion recited in the patented claims as at least 30.7 mg. The difference between the claims of the instant application and the patented claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); and citric acid (claim 11), which are not recited by the patented claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the patented claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); and citric acid (claim 11) into the composition of the patented claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the patented claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the patented claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and patented claims are not patentably distinct.
Claims 1-6, 9-11, 17-26, and 28-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 11-12, 14, and 21 of US 10646508 B1 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to solid supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition overlaps. The patented claims recite the amount of inorganic nitrate compound from about 50-10000 mg (see patented claim 14), which would correspond to an amount of nitrate ion from about 25-5000 mg, thereby overlapping with at least 1 mg. recited by the instant claims. Both claims recite gel or powder compositions (see patented claim 11, & instant claims 2-3). The difference between the claims of the instant application and the patented claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); and citric acid (claim 11), which are not recited by the patented claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the patented claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); and citric acid (claim 11) into the composition of the patented claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the patented claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the patented claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and patented claims are not patentably distinct.
Claims 1-6, 9-12, 15-26, and 28-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 11-12, 14, and 21 of US 12577209 B2 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition is at least 1 mg. Both claims recite the inclusion of beetroot, spinach, and rocket (patented claim 18 & instant claim 12). The difference between the claims of the instant application and the patented claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); citric acid (claim 11), and additional amino acids selected from aspartic acid, proline, glycine, valine, norvaline, ornithine, and arginine (claim 17), which are not recited by the patented claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the patented claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); and citric acid (claim 11) into the composition of the patented claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the patented claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the patented claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and patented claims are not patentably distinct.
Claims 1-26 and 28-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-24 of US 8952045 C1 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to solid supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition overlaps, with the amount of nitrate ion recited in the patented claims as at least 30 mg. The difference between the claims of the instant application and the patented claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); and citric acid (claim 11), which are not recited by the patented claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the patented claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); and citric acid (claim 11) into the composition of the patented claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the patented claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the patented claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and patented claims are not patentably distinct.
Claims 1-6, 9-11, 17-26, and 28-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 55-57 of US 8952046 C2 in view of Prakash et. al., US 20080108710 A1; and Harris et. al., WO 2007073398 A2, publ. 6/28/2007. Although the claims are not identical, they are not patentably distinct because both sets of claims are drawn to solid supplement compositions comprising at least one non-ester nitrate compound; beta alanine; wherein the amount of nitrate ion in the composition overlaps, with the amount of nitrate ion recited in the patented claims as at least 30.7 mg. The difference between the claims of the instant application and the patented claims are that the instant claims recite: an ion-exchange resin (claim 9); an antioxidant (claim 10); and citric acid (claim 11), which are not recited by the patented claims. However, it would have been prima facie obvious to have incorporated these components into the composition of the patented claims, in view of Prakash and Harris. Prakash teaches sweetener compositions comprising at least one non-caloric or low-caloric natural and/or synthetic high-potency sweetener, at least one sweet taste improving composition, and at least one preservative (title & abstract; para [0002], [0005]). Prakash teaches the preservative can be selected from antimicrobials, such as nitrates (para [0016]). Prakash teaches the preservative as an antioxidant (para [0026]). Prakash teaches the composition to include sweet taste improving amino acids, such as aspartic acid, arginine, glycine, proline, alanine, valine, ornithine, and norvaline, as well as alpha-, beta-, or gamma-isomers thereof (para [0077], [0772-0774], [0798]). The inclusion of one sweet taste improving organic acid, such as citric acid, in the composition is also taught (para [0801]). Prakash provides an exemplary composition of a cured ham comprising 100 mg. sodium nitrate (para [0864]). Prakash teaches various types of liquid and solid composition forms, including powder (para [0858]). Therefore, it would have been prima facie obvious to have incorporated an antioxidant (claim 10); and citric acid (claim 11) into the composition of the patented claims, as Prakash teaches these ingredients in beta alanine compositions.
Although the patented claims don’t explicitly recite the inclusion of an ion-exchange resin as recited by instant claim 9, this component would have been prima facie obvious in view of Harris. Harris teaches compositions for the sustained release of beta-alanine (title & abstract; p. 1, 1st para). Harris teaches sustained release of beta alanine as desirable to avoid adverse effects associated with ingestion (p. 2, 1st para of Summary), with sustained release mechanisms taught to include ion-exchange resins (p. 14, next to last para). Therefore, it would have been prima facie obvious to have incorporated an ion-exchange resin into the composition of the patented claims, to overcome adverse effects potentially associated with beta alanine ingestion.
For these reasons, the instant and patented claims are not patentably distinct.
Claim Objection
Claim 27 is 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.
Information Disclosure Statements
The IDS filed on 4/27/26 have been considered.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH PIHONAK whose telephone number is (571)270-7710. The examiner can normally be reached Monday-Friday 9:00-5:30 EST.
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, Kortney Klinkel can be reached at 571-270-5239. 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.
SARAH . PIHONAK
Primary Examiner
Art Unit 1627
/SARAH PIHONAK/Primary Examiner, Art Unit 1627
Prosecution Insights