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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 25, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-5, 7-11
Withdrawn claims:
None
Previously canceled claims:
6
Newly canceled claims:
None
Amended claims:
None
New claims:
None
Claims currently under consideration:
1-5, 7-11
Currently rejected claims:
1-5, 7-11
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-5, 7, 8, 10, and 11 are rejected under 35 U.S.C. §103 as being unpatentable over Yong (Yong, Jean W. H., et al. “The Chemical Composition and Biological Properties of Coconut (Cocos nucifera L.) Water. Molecules, Vol. 14, p. 5144-5164, Published December 9, 2009 [accessed online January 22, 2025]) in view of Richter (Richter, Eduardo M., “Determination of Anions, Cations, and Sugars in Coconut Water by Capillary Electrophoresis”, Journal of Brazilian Chemical Society, Vol. 16, No. 6A, p. 1134-1139, published 2005 [accessed online September 15, 2025]).
Claim 1 is a product-by-process claim. MPEP §2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
Claim 1 is directed to a liquid extract from activated carbon of a plant-derived raw material. Although claim 1 includes the process of obtaining a liquid extract from activated carbon of a plant-derived raw material, the process does not limit the composition as claimed. The determination of patentability will therefore be based on the product itself. The structure of claim 1 is a liquid mineral concentrate comprising metal ions, wherein the metal ions comprise potassium ions, chloride ions, calcium ions, magnesium ions, sodium ions, and sulfate ions, and wherein the concentration of the potassium ions is the highest of the metal ions present in the liquid mineral concentrate composition.
Regarding claim 1, Yong teaches coconut water containing minerals (Abstract), where the composition comprises potassium, chloride, calcium, magnesium, and sodium ions, wherein the potassium ions are the highest concentration of all metal ions present (p. 5147, Table 1, Col. 1 and 4).
Yong does not teach wherein the composition comprises sulfate ions.
However, in the same field of endeavor, Richter teaches that sulfate is found at a higher concentration in processed coconut waters (p. 1137, col. 2, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Yong with the use of a sulfate as taught by Richter. One of ordinary skill would have been motivated to make this modification because Richter teaches that sodium bisulfate is added to coconut water as a preservative (p. 1137, col 2, ¶ 2).
Although the cited prior art does not teach that the mineral solution is an extract from activated carbon of a plant-derived raw material, the composition of the prior art would be indistinguishable from a composition obtained by the claimed process. Therefore, the cited prior art teaches all elements of claim 1.
The preamble recitation “a liquid mineral concentrate” is interpreted as the intended use of the claimed invention. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). Because the claim does not specify the extent to which the composition is concentrated, the composition of Yong in view of Richter teaches the claimed invention.
Regarding claims 3 and 4, Yong in view of Richter teaches all elements of claim 1.
Although the cited prior art does not teach that the amount of calcium ions contained in the liquid mineral composition is 2.0% or less of the potassium ion concentration (claim 3) or that the amount of magnesium ions contained in the liquid mineral composition is 1.0% or less of the potassium ion concentration (claim 4), Yong teaches that the ion composition replenished the electrolytes of the human body excreted through sweat (p. 5156, ¶ 4). Therefore, one of ordinary skill in the art would have adjusted the amount of calcium ions (claim 3) and magnesium ions (claim 4) during routine optimization to find the ion concentration that replenished the amount calcium ions and magnesium ions lost during sweat to arrive at the claimed invention. MPEP §2144.05(II) states where 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). The claimed amounts of calcium ions (claim 3) or magnesium ions (claim 4) based on the concentration of potassium ions would thus be obvious.
Regarding claim 5, Yong in view of Richter teaches all elements of claim 1. Yong also teaches potassium in an amount of 312 mg/100g and sodium in an amount of 105 mg/100g (p. 5147, Table 1, Col. 1 and 4), which equates to sodium present in an amount of 33.65% of the amount of potassium ions, which falls within the claimed range of 5 to 45%.
Claims 7 and 8 are product-by-process claims. MPEP §2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
Claims 7 and 8 are directed to a liquid extract from activated carbon of a plant-derived raw material. Although claims 7 and 8 include the process of obtaining a liquid extract from activated carbon of a plant-derived raw material, the process does not limit the composition as claimed. The determination of patentability will therefore be based on the product itself.
Although the cited prior art does not explicitly teach that the liquid mineral concentrate comprises a liquid extract from activated carbon of a plant-derived raw material, the liquid mineral composition of Yong in view of Richter would be indistinguishable from compositions that may be obtained via the claimed process steps. Therefore, Yong in view of Richter anticipates the composition of claims 7 and 8.
Regarding claim 10, Yong in view of Richter teaches teach the composition of claim 1. Yong also teaches that the ion composition is an effective rehydration drink (p. 5156, ¶ 4).
Regarding claim 11, Yong in view of Richter teaches teach all elements of claim 10 as described above. Regarding the recitation “for use in the prevention or improvement of acidification in an organism”, this is the intended use of the composition. See MPEP §2111.02(II). The recitation does not result in a manipulative difference to the composition as claimed. Given that Yong in view of Richter teach all elements of claim 1, the composition of Yong in view of Richter is capable of being used in the prevention or improvement of acidification in an organism.
Claim 2 is rejected under 35 U.S.C. §103 as being unpatentable over Yong (Yong, Jean W. H., et al. “The Chemical Composition and Biological Properties of Coconut (Cocos nucifera L.) Water. Molecules, Vol. 14, p. 5144-5164, Published December 9, 2009 [accessed online January 22, 2025]) in view of Richter (Richter, Eduardo M., “Determination of Anions, Cations, and Sugars in Coconut Water by Capillary Electrophoresis”, Journal of Brazilian Chemical Society, Vol. 16, No. 6A, p. 1134-1139, published 2005 [accessed online September 15, 2025]) as applied to claim 1 above, and further in view of CC (CC, Ibe, et al. “Chemical Composition of Coconut Water”, International Journal of Agriculture and Biosciences, Vol. 2(5), 185-187, published 2013 [accessed online September 15, 2025]).
Regarding claim 2, Yong in view of Richter teaches all elements of claim 1.
The cited prior art does not teach wherein the amount of chloride ions contained in the liquid mineral concentrate composition is 50% or less of the potassium ion concentration.
However, in the same field of endeavor, CC teaches the chemical composition of coconut water having 44.4 Meq/L of potassium and 21.7 Meq/L of chloride ions (p. 186, col. 2, Table 2, rows 2 and 3), which equates to chloride ions in an amount of 48.9% of the potassium ions, which falls within the claimed range of “50% or less”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Yong with the use of chloride ions in the concentration taught by Richter. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Claim 9 is rejected under 35 U.S.C. §103 as being unpatentable over Yong (Yong, Jean W. H., et al. “The Chemical Composition and Biological Properties of Coconut (Cocos nucifera L.) Water. Molecules, Vol. 14, p. 5144-5164, Published December 9, 2009 [accessed online January 22, 2025]) in view of Richter (Richter, Eduardo M., “Determination of Anions, Cations, and Sugars in Coconut Water by Capillary Electrophoresis”, Journal of Brazilian Chemical Society, Vol. 16, No. 6A, p. 1134-1139, published 2005 [accessed online September 15, 2025]) as applied to claim 1 above, and further in view of Alkazone (“Alkazone Liquid Potassium+ | Liquid Supplements Have Faster Absorption Rate | Concentrated | Easiest Way to take Potassium | Tasteless Flavorless | 1.25 Oz, Clear, Pack of 1” sold by VerSure on Amazon, first available December 1, 2017 [accessed online December 7, 2024], https://www.amazon.com/ALKAZONE-Liquid-Potassium-Electrolyte-Supplement/dp/B0766451BN).
Regarding claim 9, Yong in view of Richter teaches all elements of claim 1.
The cited prior art does not teach the composition having a pH of 7.5 to 10.5.
However, in the same field of endeavor, Alkazone teaches a liquid potassium composition with a pH of 9.5 (p.3, first Image), which falls within the claimed range of 7.5 to 10.5.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Yong to have a pH of 9.5 as taught by Alkazone. One of ordinary skill would have been motivated to make this modification the liquid potassium of Alkazone promoted nerve health and muscle function (p. 1, Image).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 3-5, 7-8, 10, and 11 over Yong and Richter; claim 2, Yong, Richter, CC; claim 9 over Yong, Richter, and Alkazone: Applicant’s arguments filed March 25, 2926 have been fully considered but they are not persuasive.
Applicant argued that the claimed liquid mineral concentrate composition is entirely different from the coconut water as evidenced by the Examples of the instant specification (Remarks, p. 3, ¶ 3- p. 4, ¶ 1).
This argument has been considered. However, the Examiner maintains that the cited prior art teaches the claimed invention. As stated above, MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). Because the claim does not specify the extent to which the composition is concentrated, the composition of Yong in view of Richter teaches the claimed invention.
Additionally, claim 1 is a product-by-process claim. As discussed in the rejection of claim 1 above, the composition of Yong in view of Richter would be patentably indistinct from that of the claimed invention. Also, it is noted that the features upon which applicant relies (i.e., the composition of the Examples) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Presently, claim 1 does not recite key details present in the Examples.
Claim 1 merely recites a liquid mineral concentrate composition wherein potassium ions are the highest of the metal ions present in the liquid mineral concentrate as well as the product-by-process limitation of the composition being an extract from activated carbon. Claim 1 does not contain additional limitations from the examples such as the amount of activated carbon and water used, the extraction temperature or time, and the filtration parameters. As such, there is no evidence to support that the composition of claim 1 is distinct from that of the cited prior art.
Furthermore, MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” The Applicant has not provided sufficient evidence to demonstrate that the coconut water of Yong modified by Richter would be distinct from the claimed invention.
Applicant further argued that the rejection was made using hindsight reasoning (Remarks, p. 4, ¶ 2).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The Examiner maintains that the rejections made herein would have been obvious to one of ordinary skill in the art prior to the effect filing date of the claimed invention.
The rejections of claims 1-5 and 7-11 have been maintained herein.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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