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 Application
Receipt of the Response and Amendment after Non-Final Office Action filed 08/05/2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objection to claim 1 has been withdrawn; (2) the 112(b) rejections to the claims have been withdrawn.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-7, 9-11, 13-14
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
8, 12
Amended claims:
1-7, 9-11, 13-14
New claims:
None
Claims currently under consideration:
1-7, 9-11, 13-14
Currently rejected claims:
1-7, 9-11, 13-14
Allowed claims:
None
Claim Objections
Claims 10, 11, 13, and 14 are objected to for the following informalities: claims 10, 11, 13, and 14 all have “The The” at the beginning of the claim, which should be replaced with “The”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claim 13 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 13 depends on claim 12, which has been cancelled. For the purposes of examination, it is presumed that claim 13 depends from claim 1.
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 1-7, 9, 10, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Tomotoshi (JP 2005/334862 A)(IDS Reference filed 10/14/2022) in view of Water Resources (“Chloride, Salinity, and Dissolved Solids”, Water Resources Mission Area, USGS, published March 1, 2019 [accessed online September 15, 2025]) and 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 as indicated at p. 5, l. 2 [accessed online December 7, 2024], https://www.amazon.com/ALKAZONE-Liquid-Potassium-Electrolyte-Supplement/dp/B0766451BN).
Claim 1 is 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.”
Claim 1 is directed to a liquid mineral concentrate composition comprising a liquid extract from activated carbon of a plant raw-material. Although claim 1 includes the process of obtaining a liquid extract from activated carbon of a plant-derived raw material, the determination of patentability will depend upon the product itself. The structure imparted by the process is a liquid mineral concentrate composition comprising metal ions, wherein the metal ions comprise potassium ions, chloride ions, calcium ions, magnesium ions, sodium ions, and sulfate ions, wherein the concentration of the potassium ions is 20 ppm or more, and wherein the mineral water has a pH of 7.5 to 10.5.
Regarding claim 1, Tomotoshi teaches a bamboo charcoal drinking water produced by soaking bamboo charcoal in drinking water ([0003]) wherein the mineral water comprises potassium, sodium, magnesium, and calcium ions ([0011]); where the composition comprises 50 mg/L potassium ([0018]). 50 mg/L equates to 50 ppm, which falls within the claimed range of “20 ppm or more”.
Tomotoshi does not teach the composition comprising chloride ions or sulfate ions, of where the mineral water has a pH of 7.5 to 10.5.
Regarding the composition comprising chloride and sulfate ions, Water Resources teaches that calcium, magnesium, sodium, potassium, sulfate, and chloride ions typically make up the dissolved solids in water (p. 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 Tomotoshi with the inclusion of chloride and sulfate as taught by Water Resources. One would have been motivated to make this modification because Water Resources teaches that these ions are typically in water (p. 2, ¶ 2).
Regarding the pH of the composition, Alkazone teaches a liquid potassium concentrate 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 Tomotoshi to have a pH as taught by Alkazone. 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).
Although the cited prior art does not teach that the composition is derived from activated carbon, the liquid composition of Tomotoshi in view of Water Resources and Alkazone would be indistinguishable from compositions that would be obtained via the claimed process. Therefore, the cited prior art teaches all elements of claim 1.
Regarding claim 2, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a mineral water comprising 50 mg/L potassium ([0018]). 50 mg/L equates to 50 ppm, which falls within the claimed range of “600 ppm or less”.
Regarding claim 3, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a mineral water comprising 50 mg/L potassium ([0018]). 50 mg/L equates to 50 ppm, which falls within the claimed range of “50 ppm to 200 ppm”.
Regarding claim 4, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above.
Tomotoshi does not teach wherein the amount of chloride ions contained in the mineral water is 50% or less of the potassium ion composition.
However, in the same field of endeavor, Water Resources teaches that the guideline for the maximum amount of chloride in drinking water is 250 mg/L (equivalent to 250 ppm; p. 5, ¶ 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 Tomotoshi to comprise 250 ppm or less of chloride ions, which would result in the composition having a chloride ion concentration at 500% or less of the concentration of potassium ions, which encompasses the claimed range of “50% or less”. One of ordinary skill would have been motivated to make this modification because the guideline of 250 mg/L is to maintain taste and odor of water (p. 5, ¶ 5).
Regarding claim 5, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a mineral water comprising 30 mg/L of potassium and 4.6 mg/L of calcium ([0019]), which equates to calcium ions at a concentration of 15.3% of the potassium ion concentration. 15.3% falls within the claimed range of “30% or less”.
Regarding claim 6, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a mineral water comprising 30 mg/L of potassium and 2 mg/L magnesium ([0019]), which equates to magnesium ions at a concentration of 6.7% of the potassium ion concentration. 6.7% falls within the claimed range of “15% or less”.
Regarding claim 7, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a mineral water comprising 30 mg/L of potassium and 13 mg/L sodium ([0019]), which equates to sodium ions at a concentration of 43.3% of the potassium ion concentration. 43.3% falls within the claimed range of “10 to 50%”.
Regarding claim 9, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Although Tomotoshi does not teach the composition having a buffer capacity, this is an inherent property of the composition as claimed. MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present. Because Tomotoshi teaches the composition of claim 1, the composition of Tomotoshi will also have a buffer capacity. Evidence to support that the composition would inherently have a buffer capacity is provided by the instant specification. The instant specification states that the mineral concentrate has an excellent buffer capacity (p. 22, lines 12-13).
Regarding claim 10, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Although Tomotoshi does not teach the buffer capacity of the composition, this is an inherent property of the composition as claimed. MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present. Because Tomotoshi teaches the composition of claim 1, the composition of Tomotoshi will also have a buffer capacity of 1.5 or more. Evidence to support that the composition would inherently have a buffer capacity of 1.5 or more is provided by the instant specification. The instant specification teaches that the mineral-containing aqueous composition according the to invention has a buffer capacity of 1.5 or more (p. 8, lines 12-13).
The recitation “wherein the buffer capacity is defined as…” in lines 2 – 6 of the claim merely states the method of determining the buffer capacity of the claimed invention. Because the buffer capacity is an inherent property of the composition as claimed, performing the claimed method with the composition of Tomotoshi is presumed to result in the claimed buffer capacity. The instant specification teaches that the buffer capacity of 1.5 or more is defined by the method of claim 10 (p. 8, lines 12-23).
Claim 13 is 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.”
Claim 13 is directed to a liquid mineral concentrate composition comprising a liquid extract from activated carbon of a plant raw-material. Although claim 1 includes the process of obtaining a liquid extract from activated carbon of a plant-derived raw material, the determination of patentability will depend upon the product itself. The structure imparted by the process is a liquid mineral concentrate composition is a liquid mineral composition.
Regarding claim 13, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above. Tomotoshi also teaches a bamboo charcoal drinking water produced by soaking bamboo charcoal in drinking water ([0003]). Although Tomotoshi teaches charcoal and not activated carbon, the liquid composition of Tomotoshi in view of Water Resources and Alkazone would be indistinguishable from compositions that would be obtained via the claimed process.
Regarding claim 14, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 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 Tomotoshi anticipates the composition of claim 1, the composition of Tomotoshi is capable of being used in the prevention or improvement of acidification in an organism.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Tomotoshi (JP 2005/334862 A)(IDS Reference filed 10/14/2022) in view of Water Resources (“Chloride, Salinity, and Dissolved Solids”, Water Resources Mission Area, USGS, published March 1, 2019 [accessed online September 15, 2025]) and 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 as indicated at p. 5, l. 2 [accessed online December 7, 2024], https://www.amazon.com/ALKAZONE-Liquid-Potassium-Electrolyte-Supplement/dp/B0766451BN) as applied to claim 1 above, and further in view of Masouleh (Masouleh, Sepideh Daghigi, et al. “Investigating the Changes of Total Organic Carbon Content in Bottled Water Under Environmental Stress Conditions”, American Journal of Environmental Protection, Vol. 7(1), p. 14-18, published March 29, 2018 [accessed online January 17, 2025]).
Regarding claim 11, Tomotoshi in view of Water Resources and Alkazone teaches all elements of claim 1 as described above.
The cited prior art does not teach the total organic carbon of the mineral composition.
However, in the same field of endeavor, Masouleh teaches the TOC level in mineral water over the course of 3 months being 1.6 to 2.33 mg/L (Abstract; p. 15, Table 1), which falls within the claimed range of “3.0 mg/L 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 Tomotoshi with the total organic carbon as taught by Masouleh. One would be motivated to make this modification because, as taught by Masouleh, high levels of organic compounds from storage containers can result in the potential risk of poisonous content for genes, negative effects on the endocrine system, and cancers (p. 14, left-hand column).
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 4-7 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §102 of claims 1-3, 5-7, 9, 10, and 12-14 over Tomotoshi and claims 1, 4, and 8 over Alkazone and 35 U.S.C. §103 of claim 11 over Alkazone and Masouleh: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated by Tomotoshi or Alkazone. However, in response to the amendment of claim 1, new grounds of rejection are made in view of Tomotoshi, Water Resources, and Alkazone.
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.
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 M-Th 7:30a-5:00p, F 8:00a-12:00p.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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