Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Amendment
The prior art rejections have been maintained. See response to arguments.
Claims 1-7, 12-28 are currently pending in this Office Action.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claims 5 and 16 recite the limitation “means for providing at least two audible and/or tactile responses during movement of the cover portion of the lid toward a closed position covering the valve” but does not associate any structure that performs the “providing at least two audible and/or tactile responses”. In accordance to 35 U.S.C. 112, sixth paragraph, the “means” will be limited to the disclosure found in paragraph 46 in its entirety which at least recites “sliding movement” of a rearward portion of the stopper, and “further movement” of the cover towards its closed position, as well as the disclosure of Fig. 19, or equivalents thereof.
Claims 6 and 18 recite the limitation “means for blocking shifting of the valve from the closed position to the open position when the cover portion is in a closed position covering the valve” but does not associate any structure that performs the “blocking shifting of the valve. In accordance to 35 U.S.C. 112, sixth paragraph, the “means” will be limited to the disclosure found in paragraph 43 in its entirety which at least recites “stopper 48 projecting from an interior surface 50 of the lid”, and paragraph 45 in its entirety which at least recites “stopper 148 can be a hollow, cylindrical projection, as illustrated in Figs. 19 and 20” or equivalents thereof.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 1-7, 12, 14-21, 23-27 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Baudin et al. (US 6,089,411) in view of Serrano et al. (US 2005/0242095), Latzke (WO 99/59425) and Saggin (WO 2007144333- cited in IDS filed 4/17/2020).
Regarding Claims 1, 7, 15, 19 and 20, Baudin discloses a container for dispensing multiple doses of a liquid beverage concentrate comprising (food product, Col. 1, Ln. 15-21):
a container body having a closed bottom end (container 3); a top end with a neck (open neck 31) defining an outlet opening (Fig. 1) and a sidewall (container 3) extending between the top and bottom ends to define an interior of the container body accessible through the outlet of the top end (Fig. 1), the sidewall being flexible and resilient (semirigid or flexible reservoir, Col. 1, Ln. 22-25), the sidewall including opposing front and rear walls and a pair of opposing end walls extending therebetween (See Fig. 3), the opposing front and rear walls having a maximum width that is greater than a maximum width of the end walls (see rectangular shaped containers where the relatively wider wall constitutes as opposing front and rear walls, Fig. 3);
a lid (cap 2) attached to the neck of the container body and defining an exit path aligned with the outlet opening of the container body and through which the concentrated liquid can be dispensed (dispensing opening 26);
a valve (slits 5) supported by the lid and disposed in the exit path (opening 26), the valve movable from a closed position, whereby flow of concentrated liquid through the exit path is substantially blocked when the sidewall of the container body is unsqueezed, to an open position (Col. 5, Ln. 28-43), whereby the concentrated liquid from the interior of the container body can be dispensed through the valve in a jet when the front and rear walls of the sidewall of the container body are squeezed (Col. 1, Ln. 47-55). Baudin is silent to the container body having a closed bottom end which acts as a secure base which for the container to rest upright upon a surface, as well as the specific compositions contained within the container.
In this case, Baudin is directed to a dispensing top, and is not specific to any container having a particular bottom end. Serrano is relied on to teach similar containers having a container body, a lid with a hinged cap, configured to dispense through the outlet opening (see Abstract). Serrano discloses a container having a bottom end which acts as a secure base for the container to sit upright upon a surface (see Fig. 1). Therefore, since both Baudin and Serrano are directed to dispensing containers having an opening at the top, it would have been obvious to one of ordinary skill in the art to use conventionally shaped containers to sufficiently rest the container upright based on design choice.
As to the composition of the beverage concentrate, Latzke is relied on to teach a beverage concentrate composition that similarly comprises 70% water (page 6, second paragraph), 20% acid (Page 5 first paragraph), 1-5% of a buffer such as monosodium citrate (a sodium salt of an acid) (page 3, fourth paragraph), about 8.4% flavoring (see Table 1), and a pH of 2-4 (page 7, first paragraph) which overlaps with the claimed pH range of Claim 1, 15, and 20. Latzke discloses ranges of acid and buffer which overlaps with the claimed ratio of 1:1 to 60:1, such as 20% acid and 2% buffer (i.e. 10:1 ratio), that is 1-5% buffer with 20% acid falls within the claimed ratio.
Since Baudin discloses a container for dispensing a fluid foodstuff, and Latzke is directed to a liquid foodstuff, it would have been obvious to one of ordinary skill in the art to utilize the container of Baudin to dispense the beverage concentrate of Latzke for the purpose of providing a beverage concentrate fluid dispenser.
As to the limitation regarding the viscosity of the “low viscosity liquid beverage concentrate” (also required by Claim 20), Latzke discloses a beverage concentrate having varying amounts of water (0 to 70%, see page 6 second paragraph) but is silent to the particular viscosity of the concentrate.
Saggin is relied on to teach a liquid beverage concentrate (page 2 lines 28-32) that forms a beverage when diluted with water. Saggin also teaches that it is conventional to have concentrates with viscosities between 15 to 100 cP (seen as mPa·S) for being pumped using conventional dispenser equipment and to provide easy mixing at cold or ambient temperature (page 7 line 27-page 8 line 14), which overlaps with the viscosity range of Claims 1, 7, 15, 19 and 20.
Therefore, since Saggin is also directed to a liquid beverage concentrate and Latzke teaches different water contents that would affect the viscosity of the beverage, it would have been obvious to one having ordinary skill in the art to modify the viscosity to the overlapping claimed range to facilitate the pumping from conventional dispensers and also the dilution at cold or ambient temperatures.
Regarding Claim 2, Baudin further teaches wherein the lid has a cover portion (protective lid 10) movable for selectively covering the valve (see closed position in Fig 1).
Regarding Claim 3, Baudin further teaches wherein a base portion of the lid has an exterior skirt (body 21) with a smooth transition to the sidewall of the container body below a shoulder (see Fig. 1 where 21a meets the container body).
Regarding Claim 4, Baudin further teaches wherein the cover portion of the lid has an exterior portion with a smooth transition to the exterior skirt of the base portion of the lid when the cover portion of the lid is seated on the base portion of the lid and is covering the valve (see Fig. 1 where 20 and 14 is located showing a smooth transition into the cap body).
Regarding Claim 5, Baudin further teaches wherein the lid is capable of providing at least two audible and/or tactile responses during movement of the cover portion of the lid toward a closed position covering the valve (see where cylindrical skirt 13 engages with tube 28, Col 5, Ln. 57-61); that is, there is a reasonable expectation that the container of Baudin is provides two audible responses: one when the lid is closed and hits tube 28, and one when the skirt 13 is press-fit around tube 28 as shown in Fig. 1.
Regarding Claim 6, Baudin further teaches wherein the cover portion of the lid has means (protuberance 11, Col. 5, Ln. 44-56) for blocking shifting of the valve from the closed position to the open position when the cover portion is in a closed position covering the valve.
Regarding Claims 12 and 21, Latzke further teaches wherein the concentrated liquid further comprises vitamins (page 2, third paragraph).
Regarding Claims 14 and 23, Latzke further teaches wherein the acid of the concentrated liquid comprises citric acid (page 4, last paragraph), and the buffer comprises sodium citrate (page 3, fourth paragraph).
Regarding Claim 16, Baudin further teaches wherein the lid has a cover portion movable for selectively covering the valve (see closed position in Fig 1) and wherein the lid is capable of providing at least two audible and/or tactile responses during movement of the cover portion of the lid toward a closed position covering the valve (see where cylindrical skirt 13 engages with tube 28, Col 5, Ln. 57-61); that is, there is a reasonable expectation that the container of Baudin is provides two audible responses: one when the lid is closed and hits tube 28, and one when the skirt 13 is press-fit around tube 28 as shown in Fig. 1.
Regarding Claim 17, Baudin further teaches wherein the cover portion of the lid has an exterior portion with a smooth transition to the exterior skirt of the base portion of the lid when the cover portion of the lid is seated on the base portion of the lid and is covering the valve (see Fig. 1 where 20 and 14 is located showing a smooth transition into the cap body).
Regarding Claim 18, Baudin further teaches wherein the cover portion of the lid has means (protuberance 11, Col. 5, Ln. 44-56) for blocking shifting of the valve from the closed position to the open position when the cover portion is in a closed position covering the valve.
Regarding Claims 24 and 25, Baudin is silent to wherein the cover portion of the lid is generally domed-shaped. Serrano further teaches wherein the cover portion of the lid is generally dome-shaped. Therefore, since both Baudin and Serrano are directed to similar contains having a lid portion movable between and open and closed position to dispense liquid materials, it would have been obvious to one of ordinary skill in the art to modify the shape of the lid portion to a dome shape based on design choice.
Regarding Claim 26, Baudin further teaches wherein the lid has a cover portion (protective lid 10) movable for selectively covering the valve (see closed position in Fig 1). As similarly applied in Claim 24 and 25, Serrano is relied on to further teach wherein the cover portion of the lid is generally dome-shaped.
Regarding Claim 27, the limitation is directed to an intended use of the claimed product. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Since Baudin is also directed to dispensing viscous fluid, and is directed to a dispensing valve where “dosing of the product by the user can be effected in a soft and precise manner” (Col. 2, Ln. 54-56), the container of Baudin is also capable of dispensing 2 cc in a dose.
Claims 13 and 22 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over the combination applied to claim 1 and 20, further in view of Abraham (US 2005/0106305).
Regarding Claims 13 and 22, Latzke is silent to comprising ethanol or propylene glycol in within the beverage concentrate. Abraham is relied on to teach a beverage concentrate that also comprising citric acid with a buffer (see Example 17, paragraph 299) and additionally teaches wherein the flavoring comprises propylene glycol alginates as an emulsifier (paragraph 138).Therefore, since both Latzke and Abraham are directed to beverage concentrates having an acidic composition, it would have been obvious to one of ordinary skill in the art to further comprise propylene glycol alginates as an emulsifier.
Claim 28 is/are rejected under pre-AlA 35 U.S.C. 103(a) as being unpatentable over the combination applied to claim 1, further in view of Gamay (US 2009/0041911).
Regarding Claim 28, the combination is silent to the particular water activity of the concentrate. However, since the prior art suggest all of the structures of the claim, the water activity of the composition taught by the prior art would have similar water activity properties. In any case, Gamay is relied on to teach an acidic beverage concentrate (see paragraph 50 and abstract), wherein the water activity ranged between 0.75 and 0.9 (paragraph 101).
33. Therefore, it would have been obvious to one of ordinary skill in the art to provide a concentrate having similar water activity to ensure a shelf-stable liquid (see paragraph 20 of Gamay).
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claim 1-7, 12-26 and 28 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14-36 of copending Application No. 17/027938 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claims 1, 15, and 20 are disclosed by copending Claim 14.
Claims 2-7, 12-14, 16, 18 are disclosed by copending Claim 15-23, 26 and 27, respectively.
Claims 21-23 are disclosed by copending claims 21-23.
Claims 24-26 are disclosed by copending claims 37, 38, or 39.
Claim 28 is disclosed by copending claims 40.
Claim 27 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14-36 of copending Application No. 17/027938 (reference application) in view of Baudin et al. (US 6,089,411).
Regarding Claim 27, the limitation is directed to an intended use of the claimed product. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Baudin is also directed to dispensing viscous fluid such as foodstuff (Col. 1, Ln. 17-21), and is directed to a dispensing valve where “dosing of the product by the user can be effected in a soft and precise manner” (Col. 2, Ln. 54-56). The container of Baudin is also capable of dispensing 2 cc in a dose since it is a matter of how the container is squeezed.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments in the remarks filed 20 Mar 2024 has been fully considered but is found not persuasive for the following reasons:
Applicant argues that the Office Action’s reasoning for expecting Latzke’s composition comprising up to 20% acid and 2% buffer would produce a beverage having a pH of 2.4 or lower is flawed. Specifically, Applicant argues that Latzke’s Example 3 discloses a pH of 3 prior to addition of ingredients that would increase the pH and did not relate to any composition that included both acid and buffer ,and that the assumption that a pH of 2 is achievable when using the upper limit of acid is without taking into account the pH raising effect of the monosodium citrate (page 9-10 of the remarks). The argument is found not persuasive because Latzke’s Example 3 is not being relied on in this Office Action because Example 3 does not have the claimed acid content (9.44% wt). However, based on Latzke’s overall teachings, Latzke is construed to have a similar pH to applicant’s claimed invention because Latzke teaches a beverage concentrate comprising 5% to 20% by weight (page 5, first paragraph), 1% to 5% by weight monosodium citrate (page 3, fourth paragraph), 30% to 70% water by weight (page 6, second paragraph), and wherein the acid and buffer are included in a ratio which overlaps with the claimed ratio of 1:1 to 60:1, such as 20% acid and 2% buffer (i.e. 10:1 ratio). Therefore, the beverage concentrate of Latzke is presumed to be similar to the claimed pH level, since each components are within or overlaps with the claimed ranges. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (MPEP 2112.01.II). In response to Applicant’s arguments that the Office Action has considered raising the acid level without taking account the pH raising effects of monosodium citrate, it is noted that Applicant’s claimed invention allows up to 10% buffer, thus making it unclear as to how Applicant can argue that Latzke’s buffer component would render the pH level outside the claimed range while Applicant is able to maintain a pH of 2.4 or lower with double the concentration of the buffer component. It is further noted that Latzke also teaches using sodium citrate (trisodium citrate, page 3 fourth paragraph), which is similarly used by Applicant (paragraph 95), thus further showing that Latzke encompasses an embodiment that has a pH of 2.4 or lower.
Applicant argues that there is no reason to pick two specific amounts among broad ranges (page 10 of the remarks). The argument is not persuasive because Latzke discloses a buffer concentration to be 1% to 20%, and is preferably 1% to 5% (page 3, fourth paragraph). Similarly, Latzke discloses an acid concentration of citric acid that is preferably 5% to 20% (page 5, first paragraph). The preferred range for the buffer component taught by Latzke is fully encompassed by the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Applicant argues that Latzke does not suggest the claimed pH values of the final concentrate, therefore it cannot be concluded that such an advantage would naturally flow from Latzke (page 11 of the remarks). Also, Applicant argues that Latzke is not concerned with the final pH of the liquid tea concentrate. However, the argument is not persuasive because it is construed that since Latzke meets all the structures of the composition required by the claimed beverage concentrate, the composition of Latzke would necessarily have the claimed pH. Therefore, it is not a matter of modifying Latzke to have the claimed pH value; rather, the claimed pH already exist within the teachings of Latzke based on having the claimed acid, water, and buffer.
In view of the responses above, the prior art has been maintained.
As to the Declaration filed 3/20/2024 with respect to Dr. Leslie G. West (Declarant), West submits that concentrates having a large amount of acid and low pH are known to adversely affect the stability of certain ingredients, such as flavorings and artificial sweeteners when stored at room temperature. West therefore expected a similar beverage concentrate would have a pH of above about 3 to provide a stable flavor when stored at room temperature for several months. However, the Declaration is found not persuasive because since Latzke discloses all the structures of the claimed composition such that a composition taught by Latzke that falls within the claimed range would be expected to have a similar pH. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (MPEP 2112.01.II). Also, it is noted that the claims do not recite any “shelf-stability at room temperature”, and therefore the argument is not commensurate with the scope of the claim.
In response to Declarant’s remark regarding highly concentrated products having an increased risk of hydrolysis when presented with large amounts of ethanol or propylene glycol leading to flavor degredation (paragraph 4), it is noted that Latzke’s composition does not require ethanol or propylene glycol, and therefore would not be as susceptible to flavor degredation at low pH and high acid contents.
As to the Declaration filed 3/20/2024 with respect to Dr. Karl Ragnarsson (Declarant), Ragnarsson submits that it was unexpected to achieve a beverage concentrate having low pH and high acid content (15 to 30 percent), which was found using a buffered formulation (paragraph 8). This is achieved by using certain levels of acid and buffer to deliver the desired flavor and tartness upon dilution (paragraph 9). However, the Declaration is found not persuasive because since the pH level is based on the amount of acid and buffer, and Latzke discloses the claimed amount of acid and buffer, then it is construed that Latzke discloses a beverage concentrate having a pH similar to the claimed invention. That is, Latzke discloses a stable composition having a “high” acid content (overlapping values of 15%-20%), and a buffer below the upper limits of the claim (1%-5%), and therefore would produce a concentrate have a pH similar to Applicant. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (MPEP 2112.01.II).
In response to Declarant’s remarks regarding the unexpected results of diluting the shelf-stable concentrates by 120-fold to provide “colorful and flavorful beverages with the desired tartness from the high acid content” (paragraph 7-8), it is noted that the “desired tartness” is construed to be subjective and a matter of preference. Also, the “desired tartness” can also be obtained from a less concentrated beverage concentrate by using a lesser degree of dilution (i.e. not as much as 120 folds). Therefore, the results of achieving “desired tartness” is not seen to be unexpected. As discussed above, since the prior art meets all the structures of the claimed composition, the prior art composition would necessarily have similar results when diluted. In addition, since Latzke also comprises a beverage concentrate comprising acid and buffer, which is then diluted before becoming the final beverage, Declarant’s claimed composition is seen as routine optimization within prior art condition or through routine experimentation. "[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) (see MPEP 2144.05.II). Since Latzke is directed to an acidic beverage concentrate (with acid levels up to 20%), it would have been obvious to one of ordinary skill in the art to select the overlapping range based on flavor preference.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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.
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/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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