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 .
Status of the Claim
Claims 21, 23-33 and 35-40 are pending in this application. Claims 21, 23-32 and 40 are under examination. Claims 33, 35-39 are withdrawn. Any objections or rejections not repeated below have been withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
Claims 21, 23-32 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Zeller et al. (US 20130040036; Cited in IDS dated 10/04/2023) in view of Gamay (US 20130115357).
Regarding claims 21, 23-25, 29-30 and 40, Zeller teaches a low water liquid beverage concentrate, as required by claim 21 (liquid beverage concentrate with low water content; Abstract). Zeller discloses the concentrate has 0.5-40% coffee solids (coffee flavors in the form of powdered flavorings; [0043-0045]). This encompasses the claimed amount of about 5 to about 40 percent coffee solids by weight of the concentrate, as required by claim 21; about 10 to about 40 percent coffee solids, as required by claim 29; and about 10 to about 30 percent coffee solids, as required by claim 30. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
While Zeller isn’t explicit about the amount of total solids within the concentrate, Zeller does teach different amounts of solids being in the concentrate, such that the amount of solids in the concentrate, when combined encompasses the claimed amount of about 15 to about 70 percent total solids. For example, Zeller teaches the concentrate comprises a sweetener that may be in solid form, like sucrose, from about 0.2 to about 60 percent [0026], at least 5 percent acidulant by weight, which can also be in solid form, like citric acid (Abstract, [0006], [0030]) and also comprises the coffee solids from about 0.5 to about 40 percent [0043-0045], and where the non-aqueous liquid content is in the concentrate from about 20 to about 94.5 percent [0027] and water is from about 0 to about 30 percent [0022]. Therefore, a person of ordinary skill would have been able to arrive at the claimed solids content, taking into account the solids content of Zeller is at least about 6 percent up to about 80 percent total solids. Thus, the solids content of Zeller encompasses the claimed amount of about 15 to about 70 percent total solids, as required by claim 21. See MPEP 2144.05(I).
Zeller teaches wherein at least a portion of the total solids is contributed by at least one low water liquid, the at least one low water liquid comprising honey [0026], as required by claim 21, and fructose syrup (high fructose corn syrup, which is a syrup that comprises fructose; [0026]), as required by claims 21 and 40, and further comprises glycerol [0027], as required by claim 40.
Zeller teaches wherein at least a portion of the total solids is contributed by a sweetener in solid form, wherein the sweetener in solid form is a disaccharide (sucrose; [0026]), as required by claim 21; and wherein the sweetener in solid form is included in an amount from about 0.2 to about 60 percent [0026]. This overlaps the claim 21 amount of a solid form sweetener being included in an amount equivalent to an amount of solids as would be contributed by at least one low water liquid when the low water liquid is included in an amount of at least 20 percent by weight of the low water liquid beverage concentrate.
Zeller teaches between about 0 to about 30 percent water by weight of the concentrate [0022]. This overlaps the claimed amount of about 15 to about 40 percent total water, as required by claim 21. See MPEP 2144.05(I).
Zeller teaches the desired pH of the concentrate and/or taste imparted by the acidulant to the diluted final beverage can be adjusted based on the type and amount of acidulant used [0030]. However, Zeller does not teach the pH of the concentrate of about 3.0 to about 6.0, as required by claim 21.
Gamay teaches a low water liquid beverage concentration (a liquid beverage concentrate used to prepare beverages by diluting with water; (Abstract) [0002], [0031-0033], [0084]) that comprises coffee solids (flavoring can be coffee, specifically microground coffee, coffee beans that have been micronized or finely ground [0064], [0079] which is a powdered flavoring and considered solids). Gamay teaches a pH of the beverage concentrate is about 4.5 to about 6.5, which is sufficient to increase the pH of the final product, improving the taste of the final product [0014], [0080]. For example, when added to coffee, the concentrate increases the pH of the coffee, thereby improving the taste of the coffee [0014]. This overlaps the pH of about 3.0 to about 6.0, as required by claim 21; and overlaps the pH of about 4.0 to about 6.0, as required by claim 23. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zeller by incorporating the teachings of Gamay to have the pH within the claimed range because a pH within the claimed range is sufficient to increase the pH of the final product, improving the taste of the final product, as recognized by Gamay [0014], [0080].
Water activity is a property of the composition resulting from the amount of ingredients and water in the concentrate. Modified Zeller does teach the claimed amount of ingredients, specifically the claimed amount of coffee solids, the claimed amount of total solids, the claimed amount of at least one low water liquid, the claimed amount of sweetener in solid form, the claimed amount of water, and the claimed property of pH which results from any added acid. Therefore, while Zeller does not specifically teach the water activity of the concentrate being about 0.65 to about 0.95 as claimed in claim 21, since the water activity is considered a property of the concentrate and modified Zeller is a substantially identical concentrate to the claimed concentrate, it is considered to possess the claimed property of water activity within the claimed range, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
In the alternative, Gamay teaches a liquid beverage concentrate having a water activity of about or below 0.85. Gamay teaches the liquid beverage concentrate is resistant to microbial growth without the need for additional preservatives, enabling storage at ambient temperatures [0024]. Gamay explains utilizing water activity of about 0.85 or below proved to be sufficient to inhibit the proliferation of pathogens, bacteria, mold and yeast [0024]. This overlaps the water activity for claim 21 of about 0.65 to about 0.95. See MPEP 2144.05(I).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zeller in view of Gamay to further incorporate the teachings of Gamay by having the water activity at about 0.85 or below and within the claimed range, because this will make the liquid beverage concentrate resistant to microbial growth without the need for additional preservatives, enabling storage at ambient temperatures, as recognized by Gamay [0024].
Zeller teaches the beverage concentrate, which includes the total water, total solids, and coffee solids included in amounts substantially identical to the claimed amounts, are shelf stable for at least about three months, and at least about six months, when stored in a sealed container at room temperature, i.e., about 20 °C to about 25 °C or about 68-77 °F [0006], [0014]. Zeller also discloses that by virtue of balancing the amount of non-aqueous liquid, water, acidulant, and flavoring in the system, the concentrate contains less dissociated acid and less flavor degradation after three months or six months storage at room temperature [0014]. It is noted that shelf stability includes the stability of all microbiological, chemical, and physical parameters of the concentrate, including pH. Thus, the concentrate of Zeller, is viewed as satisfying the limitations of wherein the total water, total solids, and coffee solids are included in amounts effective to provide a pH of the low water liquid beverage concentrate that changes less than about 1.0 pH unit after three months storage at 70°F in a closed container, as required by claim 21; a concentrate that changes less than about 1.0 pH units after six months storage at 70°C in a closed container, as required by claim 23; a low water liquid beverage concentrate that changes less than about 0.5 pH units after three months storage at 70 °F in a closed container, as required by claim 24; and a low water liquid beverage concentrate that changes less than about 0.5 pH units after six months storage at 70 °F in a closed container, as required by claim 25.
Regarding claim 26, Zeller teaches the concentrate of claim 21, as discussed above. Zeller teaches the concentrate further comprises one or more of glycerol, propylene glycol, 1,3-propanediol, ethanol, triacetin, ethyl acetate, benzyl alcohol, vegetable oil, vitamin oil, and isopropanol [0027].
Regarding claims 27 and 28, Zeller discloses the concentrate of claim 21, as discussed above. Zeller teaches the coffee solids comprises one or more of spray-dried coffee and freeze-dried coffee (coffee flavors in the form of powdered flavorings including spray-dried and freeze-dried coffee flavors; [0043-0044]), as required by claims 27 and 28.
Regarding claim 31, Zeller discloses the concentrate of claim 21, as discussed above. Zeller teaches the concentrate further comprises a high intensity, non-nutritive sweetener, where the sweetener can generally be added in an amount of about 0.2 to about 60 percent, with the lower end of the range generally more appropriate for high intensity sweeteners [0026]. This overlaps the claimed range of up to about 5 percent high intensity, non-nutritive sweetener solids. See MPEP 2144.05(I).
Regarding claim 32, Zeller discloses the concentrate of claim 21, as discussed above. Zeller discloses the viscosity of the concentrate can be in the range of about 1 to about 500 cP, as measured by a Brookfield viscometer spindle 00 at 20°C, or room temperature [0054]. This encompasses the claimed range of about 50 to about 500 cP. See MPEP 2144.05(I).
Response to Arguments
Applicant's arguments filed 06/03/2026 have been fully considered but they are not persuasive.
Applicant argues, on pgs. 8-9 of their remarks, that Zeller fails to disclose or suggest a low water liquid beverage concentrate that has a water activity of about 0.65 to about 0.95 as claimed. Applicant contends that Zeller relies on reducing water activity as a central mechanism for maintaining stability of acidified concentrates and that increasing the water activity to the claimed range would undermine this stability and render Zeller unsatisfactory for its intended purpose. Applicant continues, stating that Zeller relies on maintaining a low water activity of under 0.6 to suppress acid dissociation and achieve stability. Applicant argues that modifying Zeller in view of Gamay to increase the water activity to the claimed range would undermine Zeller’s stability mechanism and render Zeller unsatisfactory for its intended purpose. However, the Office disagrees for the following reasons.
Zeller does not state that low water activity is a central mechanism to suppress acid dissociation and Zeller does not suggest that low water activity is a central mechanism of their invention and if raised would render Zeller unsatisfactory for its intended purpose. Zeller starts their discussion of water activity in paragraph [0056]. Zeller explains that because of low water content and high non-aqueous liquid content, the concentrates have a low water activity. Zeller does not specifically limit the water activity but states that by some approaches, the water activity is less than about 0.6. Zeller then states how the water activity can be measured. Zeller also discusses water activity in [0080], noting that the beverage concentrates provided in their invention have low water activity and do not require thermal treatments or mechanical treatments before or after packaging. Zeller does not state that low water activity is a central mechanism of their invention and does not suggest in any way that if the water activity was raised it would render the concentrate unsatisfactory for its intended purpose.
Additionally, modifying Zeller in view of Gamay to the claimed water activity range does not undermine Zeller’s stability mechanism and does not render Zeller unsatisfactory for its intended purpose. As stated in the rejection above, Gamay teaches the water activity of their concentrate is at about or below 0.85 to make the liquid beverage concentrate resistant to microbial growth without the need for additional preservatives, enabling storage at ambient temperatures [0024]. Gamay explains utilizing water activity of about 0.85 or below proved to be sufficient to inhibit the proliferation of pathogens, bacteria, mold and yeast [0024], which overlaps the claimed water activity. Zeller also discusses how having a low water activity allows the concentrate to be packaged without the need for thermal treatments or mechanical treatments since there is no need to reduce microbial activity before or after packaging [0080]. Thus, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zeller in view of Gamay by having the water activity at about 0.85 or below and within the claimed range, because this will make the liquid beverage concentrate resistant to microbial growth without the need for additional preservatives, enabling storage at ambient temperatures, as recognized by Gamay [0024]. Therefore, the stability of the beverage concentrate of modified Zeller is not seen as being compromised and is still suitable for its intended purpose, since stability is viewed as being maintained if the water activity is at about 0.85 or below and within the claimed range.
Moreover, water activity is a property of the composition resulting from the amount of ingredients and water in the concentrate. Modified Zeller does teach the claimed amount of ingredients, specifically the claimed amount of coffee solids, the claimed amount of total solids, the claimed amount of at least one low water liquid, the claimed amount of sweetener in solid form, the claimed amount of water, and the claimed property of pH which results from any added acid. Therefore, while Zeller does not specifically teach the water activity of the concentrate being about 0.65 to about 0.95, since the water activity is considered a property of the concentrate and modified Zeller is a substantially identical concentrate to the claimed concentrate, it is considered to possess the claimed property of water activity within the claimed range, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
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 nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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