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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on October 21, 2025 has been entered. Claims 1, 3-6, 15-16, 18, 21, 26, 38, 45, and 56-57 are pending. Claims 1, 26 and 56-57 have been amended.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 3-5, 15, 16, 18, 21, 26, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Lauren (Aloe Vera Margaritas, April 24, 2015, pages 1-8, Retrieved from Internet URL: https://web.archive.org/web/20150429015618/https://www.wickedspatula.com/aloe-vera-margaritas/) in view of Kim (US 2013/0122150 A1; May 16, 2013), Livaich (US 2010/0119667 A1; May 13, 2010), Kennon (You Had Me At Aloe…Cocktails; April 26, 2011, Retrieved from Internet URL: https://www.seattlepi.com/lifestyle/blogcritics/article/You-Had-Me-At-Aloe-Cocktails-800871.php), Chang (US 2014/0234488 A1; Aug. 21, 2014), Rowena (Coconut Water Cocktail, Apron And Sneakers, August 28, 2015, Retrieved from Internet URL: https://www.apronandsneakers.com/2015/08/coconut-water-cocktail.html), Moore et al. (US Patent No. 5,443,830; Aug. 22, 1995), and Han (Cocktail Recipe: Borage Fizz, PBS SoCal, May 20, 2014, Retrieved from Internet URL: https://www.pbssocal.org/food-discovery/food/cocktail-recipe-borage-fizz).
Regarding claim 1, Lauren discloses a ready to drink alcoholic beverage comprising a distilled spirit, tequila, and at least one Aloaceae source, aloe vera juice (pages 7-8).
Lauren additionally discloses that the beverage includes a preservative (e.g. lime juice) (pages 7-8).
Lauren further discloses that the beverage includes water and honey as the honey syrup is equal parts honey and warm water (page 8).
Therefore, Lauren discloses a ready to drink beverage comprising a distilled spirit (e.g. tequila), at least one Aloaceae source (e.g. aloe vera juice), a preservative (e.g. malic acid in lime juice), and water.
With respect to the water being alkaline water having a pH of at least 9, Lauren fails to teach that the water is alkaline water, however, alkaline water is well known in the art to be superior to regular water.
Kim teaches an alkaline water having a pH of 9 ([0026]) and further teaches that the alkaline water provides electrolytes and minerals required for daily life, and neutralizes acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health ([0037]).
It would have been obvious to one of ordinary skill in the art to use the alkaline water of Kim as the water component in Lauren in order to provide all the benefits of alkaline water as taught by Kim to a consumer drinking the beverage of Lauren. Using alkaline water in Lauren would yield the predictable benefit of providing electrolytes and minerals required for daily life, and neutralizing acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health based upon the teachings in Kim.
Lauren teaches that the beverage as described above, wherein the beverage includes a preservative, lime juice, but fails to specifically teach that the preservative is sodium citrate, potassium sorbate, sodium benzoate, or any combination thereof.
Lauren further fails to specifically teach that the beverage comprises an artificial sweetener comprising one of the claimed sweeteners and a colorant comprising one of the claimed colorants.
Livaich discloses a ready to drink alcoholic beverage, wherein the beverage comprises a preservative, an artificial sweetener, and a colorant. Livaich teaches that the preservative can be potassium sorbate or sodium benzoate ([0033]) and is added to the composition to provide freshness and to prevent the unwanted growth of bacteria, molds, fungi or yeast ([0033]). Livaich teaches that the artificial sweetener can be L-aspartyl-L-phenylalanine methyl ester, which is aspartame, ([0013]-[0014]) and is added to provide sweetness to the beverage.
Liviach further teaches that the colorant can be a variety of colors, including a yellow color and is added to produce a desired color for the beverage ([0027]-[0029]). It would have been obvious to one of ordinary skill in the art to use curcumin as the colorant as it would provide a natural yellow color.
As Livaich teaches that it is well known the art for alcoholic beverages to comprise the claimed preservative, artificial sweetener, and colorant, it would have been obvious to one of ordinary skill in the art to use such components in the beverage of Lauren in order to provide a desired sweetness and color to the beverage of Lauren while also providing freshness and preventing the unwanted growth of bacteria, molds, fungi or yeast as taught by Liviach.
With respect to the amount of preservative, Liviach teaches that the preservative is in an amount of about 0.01 to about 0.5 wt% ([0033]), thus overlapping the claimed range of 0.001 to about 0.015. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
With respect to the amount of water, Lauren discloses that the beverage includes a physiologically acceptable component comprising water as the honey syrup is equal parts honey and warm water (page 8), but fails to specifically teach that the beverage comprises between 20 and 80% by volume water.
It would have been obvious to vary the amount of water depending on the desired taste and alcohol content of the beverage as a higher amount of water will dilute the beverage, therefore resulting in a beverage having a lower alcohol content and an altered taste. Therefore, it is well within the ordinary skill in the art to vary the amount of water in the beverage to result in a desired taste and alcohol content of the beverage.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Further, From In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function.
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Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267 ;
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Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, there is no new or unexpected function arising from the inclusion of a water in the claimed amount as it continues to function the same by diluting the beverage. One of ordinary skill in the art can easily vary the amount of water through routine experimentation depending on the desired taste of the beverage, wherein a higher amount of water will give a more watered down and less strong taste to the beverage, which is well understood, routine and conventional in the art.
Additionally, Liviach teaches that added water can be in an amount of about 1 to about 60 wt% ([0033]), thus overlapping the claimed range of 20 to about 80. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Lauren teaches a distilled spirit as described above, but fails to specifically teach that the distilled spirit is one of the claimed spirits.
Kennon discloses a variety of different cocktail recipes using aloe vera, wherein the different recipes use different distilled spirits and include whiskey and gin (See Recipes).
As Kennon teaches that it is known in the art to use differently types of distilled spirit with aloe vera, it would have been obvious to one of ordinary skill in the art to use whiskey or gin in the recipe of Lauren depending on the desired taste as well as the desired alcohol preference. This is merely a matter of preference in formulating a known cocktail recipe.
With respect to the beverage further comprising coconut water, honey, ginger and fennel, as stated above, Lauren teaches that honey can be present. Livaich further teaches that the beverage comprises citric acid ([0024]), water ([0015]), cane sugar ([0019]-[0020]), stevia leaf extract (e.g. rebaudiosides) ([0014]), and ginger flavor ([0016]).
The prior art as described above, however, fails to teach coconut water and fennel.
Chang discloses a beverage that can be an alcoholic beverage and further teaches that it can have ginger ([0050]), fennel ([0051], and honey ([0048]) as a flavoring. It would have been obvious to one of ordinary skill in the art to further add ginger and fennel to the beverage of Lauren depending on the desired flavor as Chang teaches that such ingredients add a certain flavor.
With respect to the coconut water, it is well known in the art that coconut water can be used when making cocktails as taught by Rowena. Rowena teaches that coconut water is healthy, contains potassium, is low in calories and is known to hydrate the body well.
Therefore, it would have been obvious to one of ordinary skill in the art to use coconut water in the cocktail of Lauren depending on the desired health benefits and taste. As taught by Rowena, coconut water provides many health benefits and would predictably provide the same benefits to the cocktail of Lauren.
Lauren discloses the beverage as described above, but fails to teach that the beverage comprises between 0.05 mg/ml and 0.5 mg/ml aloe mucilaginous polysaccharides provided by the Aloaceae source.
However, Lauren teaches that the Aloaceae source is aloe vera juice, which is the same as claimed, and therefore the Aloaceae source of Lauren inherently has the claimed amount of aloe mucilaginous polysaccharides.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the Aloaceae source is identical to what is claimed absent a showing otherwise, and therefore would inherently have the claimed amount of aloe mucilaginous polysaccharides.
Additionally, Moore discloses a beverage containing aloe mucilaginous polysaccharides, wherein the mucilaginous polysaccharides provide multiple benefits to the consumer and also reduces the bitter aftertaste with respect to aloe juice (col 3 lines 1-65). Moore further teaches that the mucilaginous polysaccharides are present in the beverage in an amount from 0.001 to 0.5 wt% (col 5 lines 45-55), which is 0.01 to 5 mg/ml, thus overlapping the claimed range of 0.05 to 0.5 mg/ml. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
As Moore discloses that aloe mucilaginous polysaccharides are known to be provided in a beverage and reduce the bitter aftertaste of aloe juice, it would have been obvious to one of ordinary skill in the art to have the margarita of Lauren comprise a similar amount mucilaginous polysaccharides as taught by Moore. Doing so would yield the predictable result of providing benefits to the consumer due to the presence of mucilaginous polysaccharides as taught by Moore (col 3) while also reducing the bitter aftertaste of the aloe juice in Lauren. It further would have been obvious to include mucilaginous polysaccharides in the beverage of Lauren in a similar amount as taught by Moore as Moore discloses that such amount is suitable for reducing the bitter aftertaste of aloe juice while also providing benefits to the consumer.
The combination of the prior art discloses a beverage as described above, but fails to specifically teach the beverage further comprising a herb selected from one of the claimed herbs.
Han discloses a cocktail recipe comprising borage syrup made from borage leaf. Han teaches that borage leaf has a cucumber flavor and is a mood-elevating herb as it comforts the heart and purges melancholy.
As it is well known in the art to use borage leaf in an alcoholic beverage as taught by Han, it would have been obvious to further add it to the beverage as described above depending on the desired flavor and provided effects of the beverage. Adding borage leaf to the beverage of Lauren would provide the provide of Lauren with a cucumber flavor and a mood-elevating effect.
Regarding claims 3-5, Lauren discloses that the Aloaceae source is an Aloe L. source, specifically Aloe vera (pages 7-8).
Regarding claim 15, Lauren further teaches that the beverage comprises a physiologically acceptable component that can be a natural sweetener (e.g. honey) (pages 7-8).
Regarding claim 16, it would have been obvious to one of ordinary skill in the art, based upon the teachings of the combination of the prior art as cited above, to have the drink further comprise any type of water, including sparkling water, if a fizz was desired, flavored water, if a type of flavored water was desired, or any other claimed water depending on the desired properties and taste of the drink. The prior art clearly teaches that flavored water (e.g. honey water) and “added” water can be added to drinks and therefore would have been obvious depending upon the flavor and alcohol strength of the beverage.
Regarding claim 18, the fruit extract is an optional component in claim 15 as the claims never positively recite that the physiologically acceptable component is fruit extract and therefore fruit extract is not required in the beverage. Lauren meets claim 18 by teaching that the physiologically acceptable component can be a natural sweetener (e.g. honey) (page 7), as required by claim 15.
Regarding claim 21, as stated above, Livaich discloses a ready to drink alcoholic beverage and further teaches that the beverage comprises a sweetener that can be cane sugar ([0019]-[0020]) or stevia leaf extract (e.g. rebaudiosides) ([0014]).
It would have been obvious to one of ordinary skill in the art to further add a sweetener as taught by Livaich to the beverage of Lauren depending on the desired flavor and sweetness.
Regarding claim 26, as stated above, Livaich discloses a ready to drink alcoholic beverage. Livaich teaches that the beverage can further comprise flavors, including green tea ([0016]).
As Livaich teaches that it is well known the art for alcoholic beverages to comprise green tea as a flavor component, it would have been obvious to one of ordinary skill in the art to use green tea in the beverage of Lauren in order to provide a desired flavor to the beverage of Lauren.
Regarding claim 38, Lauren discloses that the Aloaceae source is aloe vera juice (pages 7-8).
Claims 6 and 45 are rejected under 35 U.S.C. 103 as being unpatentable over Lauren (Aloe Vera Margaritas, April 24, 2015, pages 1-8, Retrieved from Internet URL: https://web.archive.org/web/20150429015618/https://www.wickedspatula.com/aloe-vera-margaritas/), Kim (US 2013/0122150 A1; May 16, 2013), Livaich (US 2010/0119667 A1; May 13, 2010), Kennon (You Had Me At Aloe…Cocktails; April 26, 2011, Retrieved from Internet URL: https://www.seattlepi.com/lifestyle/blogcritics/article/You-Had-Me-At-Aloe-Cocktails-800871.php), Chang (US 2014/0234488 A1; Aug. 21, 2014) and Rowena (Coconut Water Cocktail, Apron And Sneakers, August 28, 2015, Retrieved from Internet URL: https://www.apronandsneakers.com/2015/08/coconut-water-cocktail.html) and Moore et al. (US Patent No. 5,443,830; Aug. 22, 1995) as applied to claim 1 above, and further in view of Green, Andy (Alcohol by Volume for Popular Whiskeys, Vodka, Gin, and Rum, Feb. 26, 2015, already made of record).
Regarding claims 6 and 45, Lauren in view of Kennon disclose the beverage as described above comprising a distilled spirit and aloe vera, but fails to specifically disclose the proof of the beverage.
Green discloses many different types of alcohols and their proofs. Green further shows that different types of alcohols have proofs between 75 and 100 as required by claim 45, including whiskey having proofs within the claimed range.
It would have been obvious to one of ordinary skill in the art to use a whiskey having a proof within the claimed range as taught by Green depending on the desired taste and alcohol content.
With respect to the proof of the beverage, it is well known I the art that the additional ingredients added to the whiskey will further dilute the whiskey, therefore resulting in a lower alcohol content and a lower proof. Therefore, it would have been obvious to one of ordinary skill in the art to vary the amount of additional ingredients to result in a desired proof of the beverage, which is well understood, routine and conventional in the art.
Claim 56 is rejected under 35 U.S.C. 103 as being unpatentable over Raidt, Dana (Aloe Vera Martini, Dec. 18, 2014, pages 1-24, Retrieved from Internet URL: https://helloglow.co/green-goddess-tips-thinkthin-founder-aloe-vera-martini-recipe/>) in view of Kim (US 2013/0122150 A1; May 16, 2013), Livaich (US 2010/0119667 A1; May 13, 2010), Moore et al. (US Patent No. 5,443,830; Aug. 22, 1995), Chang (US 2014/0234488 A1; Aug. 21, 2014), Rowena (Coconut Water Cocktail, Apron And Sneakers, August 28, 2015, Retrieved from Internet URL: https://www.apronandsneakers.com/2015/08/coconut-water-cocktail.html), and Han (Cocktail Recipe: Borage Fizz, PBS SoCal, May 20, 2014, Retrieved from Internet URL: https://www.pbssocal.org/food-discovery/food/cocktail-recipe-borage-fizz).
Regarding claim 56, Raidt discloses a ready to drink alcoholic beverage comprising a distilled spirit, vodka, and at least one Aloaceae source, aloe vera juice (pages 7-8).
Raidt further teaches that the beverage comprises a physiologically acceptable component, but fails to specifically teach that the physiologically acceptable component is alkaline water having a pH of at least 9.
Liviach teaches that added water can be present in an alcoholic beverage depending on the desired alcohol content in an amount of about 1 to about 60 wt% ([0033]), thus overlapping the claimed range of 20 to about 80. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Kim teaches an alkaline water having a pH of 9 ([0026]) and further teaches that the alkaline water provides electrolytes and minerals required for daily life, and neutralizes acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health ([0037]).
It would have been obvious to one of ordinary skill in the art to use the alkaline water of Kim in a similar amount as disclosed by Liviach in Raidt in order to provide all the benefits of alkaline water as taught by Kim to a consumer drinking the beverage of Raidt. Using alkaline water in Raidt would yield the predictable benefit of providing electrolytes and minerals required for daily life, and neutralizing acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health based upon the teachings in Kim.
Raidt teaches the beverage as described above, but fails to specifically teach that the beverage comprises an inorganic salt comprising one of the claimed inorganic salts and a colorant comprising one of the claimed colorants.
Livaich discloses a ready to drink alcoholic beverage, wherein the beverage comprises an inorganic salt and a colorant. Livaich teaches that the inorganic salt can be sodium bicarbonate and further modifies the pH of the beverage ([0025]). Liviach further teaches that the colorant can be a variety of colors, including a yellow color and is added to produce a desired color for the beverage ([0027]-[0029]). It would have been obvious to one of ordinary skill in the art to use curcumin as the colorant as it would provide a natural yellow color.
As Livaich teaches that it is well known the art for alcoholic beverages to comprise the claimed inorganic salt and colorant, it would have been obvious to one of ordinary skill in the art to use such components in the beverage of Raidt in order to provide a desired color and pH to the beverage of Raidt as taught by Liviach.
Raidt discloses the beverage as described above, but fails to teach that the beverage comprises between 0.05 mg/ml and 0.5 mg/ml aloe mucilaginous polysaccharides.
However, Raid teaches that the Aloaceae source is aloe vera juice, which is the same as claimed, and therefore the Aloaceae source of Raidt inherently has the claimed amount of aloe mucilaginous polysaccharides.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the Aloaceae source is identical to what is claimed absent a showing otherwise, and therefore would inherently have the claimed amount of aloe mucilaginous polysaccharides.
Additionally, Moore discloses a beverage containing aloe mucilaginous polysaccharides, wherein the mucilaginous polysaccharides provide multiple benefits to the consumer and also reduces the bitter aftertaste with respect to aloe juice (col 3 lines 1-65). Moore further teaches that the mucilaginous polysaccharides are present in the beverage in an amount from 0.001 to 0.5 wt% (col 5 lines 45-55), which is 0.01 to 5 mg/ml, thus overlapping the claimed range of 0.05 to 0.5 mg/ml. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
As Moore discloses that aloe mucilaginous polysaccharides are known to be provided in a beverage and reduce the bitter aftertaste of aloe juice, it would have been obvious to one of ordinary skill in the art to have the martini of Raidt comprise mucilaginous polysaccharides as taught by Moore. Doing so would yield the predictable result of providing benefits to the consumer due to the presence of mucilaginous polysaccharides as taught by Moore (col 3) while also reducing the bitter aftertaste of the aloe juice in Raidt. It further would have been obvious to include mucilaginous polysaccharides in the beverage of Raidt in a similar amount as taught by Moore as Moore discloses that such amount is suitable for reducing the bitter aftertaste of aloe juice while also providing benefits to the consumer.
With respect to the beverage further comprising coconut water, honey, ginger and fennel, Livaich further teaches that the beverage comprises citric acid ([0024]), water ([0015]), cane sugar ([0019]-[0020]), stevia leaf extract (e.g. rebaudiosides) ([0014]), and ginger flavor ([0016]).
The prior art as described above, however, fails to teach coconut water, honey and fennel.
Chang discloses a beverage that can be an alcoholic beverage and further teaches that it can have ginger ([0050]), fennel ([0051], and honey ([0048]) as a flavoring. It would have been obvious to one of ordinary skill in the art to further add ginger and fennel to the beverage of Raidt depending on the desired flavor as Chang teaches that such ingredients add a certain flavor.
With respect to the coconut water, it is well known in the art that coconut water can be used when making cocktails as taught by Rowena. Rowena teaches that coconut water is healthy, contains potassium, is low in calories and is known to hydrate the body well.
Therefore, it would have been obvious to one of ordinary skill in the art to use coconut water in the cocktail of Raidt depending on the desired health benefits and taste. As taught by Rowena, coconut water provides many health benefits and would predictably provide the same benefits to the cocktail of Raidt.
The combination of the prior art discloses a beverage as described above, but fails to specifically teach the beverage further comprising a herb selected from one of the claimed herbs.
Han discloses a cocktail recipe comprising borage syrup made from borage leaf. Han teaches that borage leaf has a cucumber flavor and is a mood-elevating herb as it comforts the heart and purges melancholy.
As it is well known in the art to use borage leaf in an alcoholic beverage as taught by Han, it would have been obvious to further add it to the beverage as described above depending on the desired flavor and provided effects of the beverage. Adding borage leaf to the beverage of Lauren would provide the provide of Lauren with a cucumber flavor and a mood-elevating effect.
Claim 57 is rejected under 35 U.S.C. 103 as being unpatentable over Raidt, Dana (Aloe Vera Martini, Dec. 18, 2014, pages 1-24, Retrieved from Internet URL: https://helloglow.co/green-goddess-tips-thinkthin-founder-aloe-vera-martini-recipe/>) in view of Livaich (US 2010/0119667 A1; May 13, 2010), Chang (US 2014/0234488 A1; Aug. 21, 2014), Rowena (Coconut Water Cocktail, Apron And Sneakers, August 28, 2015, Retrieved from Internet URL: https://www.apronandsneakers.com/2015/08/coconut-water-cocktail.html), Kim (US 2013/0122150 A1; May 16, 2013), Moore et al. (US Patent No. 5,443,830; Aug. 22, 1995), and Han (Cocktail Recipe: Borage Fizz, PBS SoCal, May 20, 2014, Retrieved from Internet URL: https://www.pbssocal.org/food-discovery/food/cocktail-recipe-borage-fizz).
Regarding claim 57, Raidt discloses a ready to drink alcoholic beverage comprising a distilled spirit, vodka, and at least one Aloaceae source, aloe vera juice, citric acid (e.g. in lime juice)(pages 7-8).
Raidt, however, fails to specifically teach that the beverage further comprises coconut water, citric acid, cane sugar, stevia leaf extract, honey and ginger.
Livaich discloses a ready to drink alcoholic beverage, wherein the beverage comprises citric acid ([0024]), water ([0015]), cane sugar ([0019]-[0020]), stevia leaf extract (e.g. rebaudiosides) ([0014]), and ginger flavor ([0016]).
The prior art as described above, however, fails to teach coconut water and honey.
Chang discloses a beverage that can be an alcoholic beverage and further teaches that it can have ginger ([0050]) and honey ([0048]) as a flavoring. It would have been obvious to one of ordinary skill in the art to further add ginger and honey to the beverage of Raidt depending on the desired flavor as Chang teaches that such ingredients add a certain flavor.
With respect to the coconut water, it is well known in the art that coconut water can be used when making cocktails as taught by Rowena. Rowena teaches that coconut water is healthy, contains potassium, is low in calories and is known to hydrate the body well.
Therefore, it would have been obvious to one of ordinary skill in the art to use coconut water in the cocktail of Raidt depending on the desired health benefits and taste. As taught by Rowena, coconut water provides many health benefits and would predictably provide the same benefits to the cocktail of Raidt.
With respect to the beverage further comprising alkaline water, Raidt fails to teach that the water is alkaline water, however, alkaline water is well known in the art to be superior to regular water.
Kim teaches an alkaline water having a pH of 9 ([0026]) and further teaches that the alkaline water provides electrolytes and minerals required for daily life, and neutralizes acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health ([0037]).
It would have been obvious to one of ordinary skill in the art to use the alkaline water of Kim as the water component in Raidt in order to provide all the benefits of alkaline water as taught by Kim to a consumer drinking the beverage of Raidt. Using alkaline water in Raidt would yield the predictable benefit of providing electrolytes and minerals required for daily life, and neutralizing acidic wastes in the human body, thus balancing the electrolytes and pH inside the human body and improving human health based upon the teachings in Kim.
Raidt discloses the beverage as described above, but fails to teach that the beverage comprises between 0.05 mg/ml and 0.5 mg/ml aloe mucilaginous polysaccharides.
However, Raid teaches that the Aloaceae source is aloe vera juice, which is the same as claimed, and therefore the Aloaceae source of Raidt inherently has the claimed amount of aloe mucilaginous polysaccharides.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the Aloaceae source is identical to what is claimed absent a showing otherwise, and therefore would inherently have the claimed amount of aloe mucilaginous polysaccharides.
Additionally, Moore discloses a beverage containing aloe mucilaginous polysaccharides, wherein the mucilaginous polysaccharides provide multiple benefits to the consumer and also reduces the bitter aftertaste with respect to aloe juice (col 3 lines 1-65). Moore further teaches that the mucilaginous polysaccharides are present in the beverage in an amount from 0.001 to 0.5 wt% (col 5 lines 45-55), which is 0.01 to 5 mg/ml, thus overlapping the claimed range of 0.05 to 0.5 mg/ml. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
As Moore discloses that aloe mucilaginous polysaccharides are known to be provided in a beverage and reduce the bitter aftertaste of aloe juice, it would have been obvious to one of ordinary skill in the art to have the martini of Raidt comprise mucilaginous polysaccharides as taught by Moore. Doing so would yield the predictable result of providing benefits to the consumer due to the presence of mucilaginous polysaccharides as taught by Moore (col 3) while also reducing the bitter aftertaste of the aloe juice in Raidt. It further would have been obvious to include mucilaginous polysaccharides in the beverage of Raidt in a similar amount as taught by Moore as Moore discloses that such amount is suitable for reducing the bitter aftertaste of aloe juice while also providing benefits to the consumer.
The combination of the prior art discloses a beverage as described above, but fails to specifically teach the beverage further comprising a herb selected from one of the claimed herbs.
Han discloses a cocktail recipe comprising borage syrup made from borage leaf. Han teaches that borage leaf has a cucumber flavor and is a mood-elevating herb as it comforts the heart and purges melancholy.
As it is well known in the art to use borage leaf in an alcoholic beverage as taught by Han, it would have been obvious to further add it to the beverage as described above depending on the desired flavor and provided effects of the beverage. Adding borage leaf to the beverage of Lauren would provide the provide of Lauren with a cucumber flavor and a mood-elevating effect.
Response to Arguments
Applicant’s arguments with respect to the previously recited prior art not teaching the beverage comprising one of the claimed herbs have been fully considered and are persuasive. Therefore, the rejection has been withdrawn.
However, upon further consideration, a new ground(s) of rejection is made in view of Han. Han discloses a cocktail recipe comprising borage syrup made from borage leaf. Han teaches that borage leaf has a cucumber flavor and is a mood-elevating herb as it comforts the heart and purges melancholy.
As it is well known in the art to use borage leaf in an alcoholic beverage as taught by Han, it would have been obvious to further add it to the beverage as described above depending on the desired flavor and provided effects of the beverage. Adding borage leaf to the beverage of Lauren would provide the provide of Lauren with a cucumber flavor and a mood-elevating effect.
Applicant further argues that Moore, when combined with the prior art, would not result in an alkaline beverage and instead obtain a neutral water with precipitated calcium.
This argument is not found persuasive as Moore is merely being relied up to render obvious the addition of aloe mucilaginous polysaccharides to the beverage. The other cited references render obvious the beverage comprising alkaline water. The passage applicant is referring to in Moore talks about the addition of other components to the beverage and not directed towards the aloe mucilaginous polysaccharides. Additionally, the passage applicant refers to is not stating that the water in the beverage has to be acidic. Therefore, as the other prior art references teach the use of alkaline water, it would have been obvious to add the aloe mucilaginous polysaccharides of Moore to the beverages of the prior art for the reasons stated above.
Further, Lauren teaches that the Aloaceae source is aloe vera juice, which is the same as claimed, and therefore the Aloaceae source of Lauren inherently has the claimed amount of aloe mucilaginous polysaccharides.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the Aloaceae source is identical to what is claimed absent a showing otherwise, and therefore would inherently have the claimed amount of aloe mucilaginous polysaccharides.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791