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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/29/2025 has been entered.
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 Claims 33, 35-39 are withdrawn. Any objections or rejections not repeated below have been withdrawn.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]. Thus, it can be envisaged that the solids content of Zeller is at least about 6 percent up to about 80 percent total solids. This 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 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 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.
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. 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].
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 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 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 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 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 09/29/2025 have been fully considered but they are not persuasive.
Applicant’s arguments, on pgs. 7-9 of their remarks, with respect to Gamay and the newly added limitations to claim 21 have been considered but are moot because the new ground of rejection does not rely on any teaching or matter specifically challenged in the argument.
Applicant argues, on pgs. 9-10 of their remarks, that Zeller does not recognize a need for minimizing a pH change associated with the solubilization of acids naturally in coffee solids. Applicant states that Zeller does not describe including coffee solids in their concentrate at the claimed amount. Applicant argues that Zeller does not suggest any efficacy of including sweeteners in combination with water, coffee solids and total solids in amounts that are effective to provide the desired result in a final low water liquid beverage concentrate, namely a pH of the low water liquid beverage concentrate that changes less than about 1.0 pH units after three months storage at 70°F in a closed container. However, the Office disagrees for the following reasons.
While Zeller may not specifically mention the need for minimizing a change in pH associated with the solubilization of acids found naturally in coffee, the above rejection shows that Zeller does recognize the need for minimizing a pH change in the concentrate, which would also include minimizing any changes in pH that result from ingredients used in the concentrate, such as coffee solids. Zeller 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]. Applicant’s specification in paragraph [0023] states that the occurrence of flavor degradation reactions and transformations (often caused by dissociated acids, including acids naturally present in coffee solids) was significantly reduced in the low water liquid beverage concentrates. Applicant states in paragraph [0035] that this reduction in flavor degradation caused by dissociated acids was because of balancing the ingredients in the concentrates and because acids, such as may be extracted from coffee, do not readily dissociate in non-aqueous liquids (NALs), which are present in both Zeller and the claimed concentrate. Thus, both the Applicant and Zeller discuss the improvement of the concentrate because there are less dissociated acids within the concentrate, which would result in the concentrate having minimal changes to pH during storage.
Moreover, 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]. It is noted that shelf stability includes the stability of all microbiological, chemical, and physical parameters of the concentrate, including pH. Therefore, 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.
Regarding the argument that Zeller does not describe including coffee solids in their concentrate at the claimed amount, as shown by the rejection above, Zeller is considered to teach coffee solids in the concentrate within the claimed amount. 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. See MPEP 2144.05(I).
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759