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 .
Priority
The instant application claims domestic priority to PRO 62/986,109 filed 03/06/2020 and is a 371 of PCT/US2021/021231 filed 03/05/2021.
Information Disclosure Statement
The information disclosure statements (IDS) dated 04/10/2024 and 08/08/2025 both comply with provisions of 37 CFR 1.97, 1.98 and MPEP §609. Accordingly, they have been placed in the application file and the information therein has been considered as to the merits.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3, 9, 15, 26, 30, 32, 35, 40, 46-51, 56, 71-72 and 76 are 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.
A) Claims 1, 48, and 49 are presently indefinite. In the present instance, claim 1, 48, and 49 recites a larger range of sodium propionate than the range of total dissolved solids. The metes and bounds of the claims are unclear because the amount of one form of sodium, sodium propionate, may be greater than the total amount of dissolved solids in the composition.
Claims 3, 9, 15, 26, 30, 32, 35, 40, 46-51, 56, 71-72 and 76 depend from claim 1 and are therefore also indefinite.
B) Claims 1 and 46-49 also denote a range of sodium and then a broader range of sodium as sodium propionate. The metes and bounds of the claims are unclear because the amount of one form of sodium, sodium propionate, may be greater than the total amount of sodium in the composition.
Claims 3, 9, 15, 26, 30, 32, 35, 40, 46-51, 56, 71-72 and 76 depend from claim 1 and are therefore also indefinite.
C) Claim1 recites the term “total dissolved solids” some compounds like CaCO3 release CO2 gas, it is unclear if the total dissolved solids is the amount added for dissolution or the amount left in the solution.
Claims 3, 9, 15, 26, 30, 32, 35, 40, 46-51, 56, 71-72 and 76 depend from claim 1 and are therefore also indefinite.
D) Claim 1 recites oxidation reduction potential but does not apply units to the range. It is currently unclear if the range is -150 to 300 Volts or milliVolts or MegaVolts, as such the metes and bounds of the claim are unclear and the claim is indefinite.
Claims 3, 9, 15, 26, 30, 32, 35, 40, 46-51, 56, 71-72 and 76 depend from claim 1 and are therefore also indefinite.
Claim Interpretation
With regards to the amount of sodium, sodium propionate, and total dissolved solids. The Examiner is interpreting that the sodium propionate, as the largest amount and key ingredient in the alkaline water, as the limiting factor. Therefore, for the purposes of providing the closet prior art and compact prosecution until the 112 rejection is resolved a prior art within the range of the claimed sodium propionate will be interpreted to also have the appropriate amount of sodium and total dissolved solids.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 9, 20, 26, 30, 32, 35, 40, 50, 51 and 71 are rejected under 35 U.S.C. 103 as being unpatentable over Weston et al. (US Patent Application Publication 20180134586A1).
Weston et al recites alkaline water with sodium (Weston at claim 14). Weston recites the use of sodium propionate specifically (Weston at claim 2). Weston recites the alkaline water has a pH of between 10 and 12 (Weston at claim 21). Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]).
Weston differs from the instant claims in this rejection insofar as it does not teach the combination of the instantly recited components with sufficient specificity for anticipation. Weston teaches the components of the instant recited composition and uses each component of their established function in the art but does not explicitly combine the components together into a single embodiment or a preferred composition. However, given the disclosure of each component individually, it would have been prima facie obvious to a person having ordinary skill in the art at a time prior to the filing of the present patent application and following the teachings of Weston to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
Regarding instant claim 1, Weston et al recites alkaline water with sodium (Weston at claim 14). Weston recites the use of sodium propionate specifically (Weston at claim 2). Weston recites the alkaline water has a pH of between 10 and 12 (Weston at claim 21). Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 3, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range for sodium of about 250mg/kg to about 500mg/kg. 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).
Regarding instant claim 9, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range for sodium propionate of about 1000mg/kg to about 1800mg/kg. 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).
Regarding instant claim 20, Weston recites the alkaline water has a pH of between 10 and 12 (Weston at claim 21), which overlaps the instantly claimed range of about 11.5 to about 13.5. 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).
Regarding instant claim 26, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 30, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 32, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 35, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 40 Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same alkalinity, oxidation reduction potential, and electrical conductance.
Regarding instant claim 50, the composition of Weston does not require buffers.
Regarding instant claim 51, it would have been obvious to have used a pure product to produce the alkaline water of Weston. See MPEP 2144.04(VII).
Regarding instant claim 71, Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]), which overlaps the instantly claimed range of 1000mg/kg to about 5800mg/kg. 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). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01(I). "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). See MPEP2112.01(II). Therefore, the composition of Weston with the similar or identical amount of sodium propionate would have the same antioxidant ability, hypoallergenic and hypo-osmotic features.
Claim 56 and 76 are rejected under 35 U.S.C. 103 as being unpatentable over Weston et al. (US Patent Application Publication 20180134586A1) in view of Barrie (US Patent Application Publication 20150258010 A1).
The teachings of Weston are discussed above.
The teachings of Weston differ from the instant claims insofar as it does not teach the use of alcohol nor does it teach application to the skin. The teaching of Barrie cures these deficits.
Barrie recites a water-based moisturizing composition (Barrie at claim 1). Barrie teaches the composition is applied to the skin of a person (Barrie [0064]). Barrie teaches that the composition will typically contain about 45 to 80 wt. %, more typically about 50 to 70 wt. %, or even about 55 to 65 wt. % water (Barrie at [0022]). Barrie teaches how to dissolve the shellac into a small amount of ethanol or other low molecular weight liquid water-soluble alcohol and then combine the shellac solution so formed with a similar amount of alkaline water, with stirring. In this context, a low molecular weight liquid water-soluble alcohol will be understood to mean a C1-C6 alcohol containing 1 to 5 hydroxyl groups. C2-C6 polyols containing 2 to 5 hydroxyl groups are preferred. Similarly, a “similar” amount of water means that the weight ratio of the shellac solution to alkaline water is desirably between about 0.75:1 to 2:1, more desirably between about 1:1 to 1.7:1, or even about 1.25:1 to 1.5:1 (Barrie at [0044]). Barrie teaches the use of no more than 5% alcohol like ethanol (Barrie at [0018]).
Barrie differs from the instant invention insofar as it does not teach the use of sodium propionate within the alkaline water. The teachings of Weston cure this deficit.
It would have been prima facie obvious to have used the alkaline water of Weston in the composition of Barrie. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) See MPEP 2144.07 It would have been prima facie obvious to have combined the alkaline water of Weston with the alkaline water in the composition of Barrie. MPEP 2144.06(I).
It would have been prima facie obvious to have optimized the amount of ethanol in the composition to provide the appropriate phase structure to the composition. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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." See MPEP 2144.05(I).
It would have been prima facie obvious to have used the alkaline water of Weston as the alkaline water in the composition applied to the skin as taught in Barrie. See MPEP 2144.07.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1, 3, 9, 20, 26, 30, 32, 35, 40, 50-51, 56, 71 and 76 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 11926541B2 in view of Weston et al. (US Patent Application Publication 20180134586A1) in view of Barrie (US Patent Application Publication 20150258010 A1).
There is not a statutory case of double patenting because the instant application requires a carbonate alkalinity which is not required by the independent claim of the reference patent.
The instant application recites an alkaline water composition having the properties:(a) about 200 mg/kg to about 1500 mg/kg of sodium;(b) about 1000 mg/kg to about 5800 mg/kg of sodium as sodium propionate;(c) total dissolved solids of about 1500 mg/L to about 5500 mg/L;(d) pH of about 10.0 to about 13.5;(e) total alkalinity as CaCO3 of about 1100 mg/L to about 3000 mg/L;(f) carbonate alkalinity as CaCO3 of about 0 mg/L to about 1000 mg/L;(g) bicarbonate alkalinity as CaCO3 of about 1100 mg/L to about 2000 mg/L;(h) oxidation reduction potential of about -150 to about 300; and(i) electrical conductance of about 200 pmhos/cm to about 5800 pmhos/cm.
The reference patent ‘541 recites a process of producing an alkaline water having a pH of between 10.0 and 12.0 and an acidic water having a pH of between 4.0 and 5.0 from an initial stream of water having a total dissolved solid content between 0 ppm and 10 ppm, by electrolysis with at least one cathode and at least one anode, said process comprising the steps: dissolving an alkaline salt of sodium propionate in the initial stream to produce a feed stream including the initial stream containing the cations of sodium and the anions of propionate and a residual of undissolved alkaline salt of sodium propionate, electrolyzing the feed stream to dissociate water into hydrogen ions and hydroxide ions and to produce an alkaline water adjacent to a cathode and acidic water adjacent to an anode, removing the alkaline water, and removing the acidic water, wherein said step of electrolyzing the feed stream further includes a step of applying an electric potential of between 20V and 50V between the cathode and the anode, wherein said process further includes a step of sterilizing the cathode and the anode and an electrolysis machine prior to said step of electrolyzing the feed stream, wherein the alkaline water has an Oxidation-Reduction Potential (ORP) of between −220 mV and −280 mV (‘541 at claim 1). The reference patent ‘541 recites wherein said step of sterilizing the cathode and the anode and the electrolysis machine is further defined as washing the electrolysis machine and the cathode and the anode with an alkaline solution having a pH of at least 11.5 prior to said step of electrolyzing the feed stream (‘541 at claim 3). The reference patent ‘541 recites process of producing alkaline water containing sodium ions, carbonate ions, and bicarbonate ions having a pH of between 10.0 and 12.0, and acidic water having a pH of between 4.0 and 5.0 from an initial stream of water having a total dissolved solid content of between 0 ppm and 10 ppm, by electrolysis using an electrolysis machine having at least one cathode and at least one anode, and at least one filter of porous membrane having a particle size of no more than 1 μm, said process comprising the steps: heating the initial stream to a predetermined temperature of at least 150° F., dissolving an alkaline salt of sodium propionate in the initial stream in a range from 26 ppm to 1321 ppm to produce a feed stream containing the cations of sodium and the anions of propionate and a residual of undissolved alkaline salt of sodium propionate, removing the residual of undissolved alkaline salt from the feed stream by filtering the feed stream through at least one filter of porous membrane having a particle size of no more than 1 μm, sterilizing the feed stream, said step of sterilizing the feed steam being further defined as heating the feed stream to a boiling temperature of at least 212° F. for at least three minutes to sterilize the feed stream and eliminate bacteria, sterilizing a cathode and an anode and an electrolysis machine, said step of sterilizing the cathode and the anode and the electrolysis machine being further defined as washing the electrolysis machine and the cathode and the anode with an alkaline solution having a pH of at least 11.5, directing the feed stream through the electrolysis machine at a predetermined flow rate of three liters per minute, electrolyzing the feed stream to dissociate water into hydrogen ions and hydroxide ions and to produce the alkaline water adjacent to the cathode and acidic water adjacent to the anode, said step of electrolyzing the feed stream further including a step of inserting the cathode and the anode into the feed stream in a spaced relationship, said step of electrolyzing the feed stream further including a step of applying an electric potential between the cathode and the anode, removing the alkaline water, removing the acidic water, isolating the alkaline water from ambient air and the acidic water to prevent the alkaline water from interacting with ambient air and the acidic water after said step of removing the alkaline water, and isolating the acidic water from the ambient air and the alkaline water to prevent the acidic water from interacting with the ambient air and the alkaline water after said step of removing the acidic water, and characterized by, said step of applying the electrical potential being further defined as applying the electrical potential of between 20V and 50V between the cathode and the anode thereby migrating the hydrogen ions toward the anode to produce the acidic water having a pH between 4.0 and 5.0 and migrating the hydroxide ions toward the cathode to produce the alkaline water having a pH between 10.0 and 12.0 and dissociating the anions of propionate into hydrogen gas and carbon dioxide and ethylene and to react the carbon dioxide and the hydrogen gas and the hydroxide ions to produce carbonate ions and bicarbonate ions dissolved in the alkaline water containing sodium ions being present between 10 ppm and 150 ppm and the carbonate ions being present between 31 ppm and 440 ppm and the bicarbonate ions being present between 9 ppm and 70 ppm and zero hydroxide ions to define a total alkalinity between 40 ppm and 510 ppm and a total dissolved solids between 58 ppm and 1000 ppm, wherein the alkaline water has an Oxidation-Reduction Potential (ORP) of between −220 mV and −280 mV (‘541 at claim 6). The reference patent ‘541 recites wherein said step of electrolyzing the feed stream further includes a step of applying an electric potential of between 20V and 35V between the cathode and the anode (‘541 at claim 7).
The reference patent does not specifically teach the amount of sodium propionate in the finished alkaline water. The teachings of Weston and Barrie cure this deficit.
Weston et al recites alkaline water with sodium (Weston at claim 14). Weston recites the use of sodium propionate specifically (Weston at claim 2). Weston recites the alkaline water has a pH of between 10 and 12 (Weston at claim 21). Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]). Barrie recites a water-based moisturizing composition (Barrie at claim 1). Barrie teaches the composition is applied to the skin of a person (Barrie [0064]). Barrie teaches that the composition will typically contain about 45 to 80 wt. %, more typically about 50 to 70 wt. %, or even about 55 to 65 wt. % water (Barrie at [0022]). Barrie teaches how to dissolve the shellac into a small amount of ethanol or other low molecular weight liquid water-soluble alcohol and then combine the shellac solution so formed with a similar amount of alkaline water, with stirring. In this context, a low molecular weight liquid water-soluble alcohol will be understood to mean a C1-C6 alcohol containing 1 to 5 hydroxyl groups. C2-C6 polyols containing 2 to 5 hydroxyl groups are preferred. Similarly, a “similar” amount of water means that the weight ratio of the shellac solution to alkaline water is desirably between about 0.75:1 to 2:1, more desirably between about 1:1 to 1.7:1, or even about 1.25:1 to 1.5:1 (Barrie at [0044]). Barrie teaches the use of no more than 5% alcohol like ethanol (Barrie at [0018]).
Generally, it is prima facie obvious to select a known material (e.g. the sodium propionate of Weston) for incorporation into a composition (that of reference patent ‘541), based on its recognized suitability for its intended use (an alkaline water). See MPEP 2144.07. It would have been prima facie obvious to have used the amount of sodium propionate taught by Weston in the process taught by the reference patent ‘541. See MPEP 2143.
Reference claims and prior art combine to produce a prima facie case of obviousness type non-statutory double patenting.
Claims Free of Prior Art
Claims 15 and 46-49 are free of prior art.
The closest prior is Weston which discloses alkaline water with sodium (Weston at claim 14). Weston recites the use of sodium propionate specifically (Weston at claim 2). Weston recites the alkaline water has a pH of between 10 and 12 (Weston at claim 21). Weston teaches the use of sodium propionate at a range of 26ppm to 1321ppm (Weston at [0017]). Weston does not fairly disclose a dissolved solid amount of greater than 1000ppm nor a sodium propionate amount of greater than 1321ppm. Nor does it fairly suggest or teach the subject matter of claim 15, because claim 15 recites a minimum dissolved solids of 1500mg/L which is substantially higher than the 1321ppm of sodium propionate or 1000ppm of total solids taught by Weston. Weston does not fairly suggest or teach the subject matter of claim 46, because claim 46 recites a minimum dissolved solids of 1650mg/L which is substantially higher than the 1321ppm of sodium propionate or 1000ppm of total solids taught by Weston. Weston does not fairly suggest or teach the subject matter of claim 47, because claim 47 recites a minimum dissolved solids of 1650mg/L which is substantially higher than the 1321ppm of sodium propionate or 1000ppm of total solids taught by Weston. Weston does not fairly suggest or teach the subject matter of claim 48, because claim 48 recites a minimum dissolved solids of 5300mg/L and a minimum sodium propionate of 5600mg/kg which is substantially higher than the 1321ppm of sodium propionate or 1000ppm of total solids taught by Weston. Weston does not fairly suggest or teach the subject matter of claim 49, because claim 49 recites a minimum dissolved solids of 5350mg/L and a minimum sodium propionate of 5685mg/kg which is substantially higher than the 1321ppm of sodium propionate or 1000ppm of total solids taught by Weston.
Technological Background Material/ Relevant Prior Art
Manos et al. (WO2016186852A1) recites an Alkaline water composition comprising; a plurality of sodium ions, a plurality of bicarbonate ions, a plurality of carbonate ions, and characterized by the alkaline water composition defining a total alkalinity of between 40ppm and 510ppm and a total dissolved solids of between 58ppm and 1000ppm and including zero hydroxide ions (Manos at claim 14). Manos recites wherein said sodium ions are present between 10ppm and 150ppm (Manos at claim 17). Manos recites wherein said bicarbonate ions are present between 9ppm and 70ppm (Manos at claim 18). Manos recites wherein said carbonate ions are present between 40ppm and 510ppm (Manos at claim 19). Manos recites wherein said sodium ions are present between 10ppmm and 150ppm. n Alkaline water composition comprising; a plurality of sodium ions being present between lOppm and 150ppm, a plurality of bicarbonate ions being present between 9ppm and 70ppm, a plurality of carbonate ions, and characterized by, said plurality of carbonate ions being present between 31ppm and 440ppm,to define a total alkalinity between 40ppm and 510ppmm and a total dissolved solids between 58ppm and 1000ppm and a pH between 10.0 and 12.0 and a hardness rating between 3.5 and 10 and a Langelier Index between 0.37 and 2.20 and including zero hydroxide ions (Manos at claim 20). Manos teaches that the step of dissolving the alkaline salt in the initial stream is further defined as adding the alkaline salt of a lower alkyl carboxylic acid of sodium propionate to the initial stream. The sodium propionate is added in a range from 26ppm to 1321ppm to produce the feed stream containing the cations of sodium and anions of propionate and the residual of undissolved alkaline salt of sodium propionate. The added sodium propionate allow the alkaline water obtained from the step of applying the potential to have a low pH at the low end of the range and a high pH at the high end of the range. In other words, the amount of sodium propionate added to the initial stream has a direct relationship with the pH of the alkaline water. For example, a low amount of sodium propionate, e.g. 26ppm, added to the initial stream produces the alkaline water having the low pH, e.g. 10.0, and a high amount of sodium, e.g. 1321ppm, added to the initial stream produces the alkaline water having the high pH, e.g. 12.0 (Manos at [0017]).
The relevant prior art is presented for completeness of the record and compact prosecution. In selecting the references to be used in rejecting the claims, the examiner should carefully compare the references with one another and with the applicant’s disclosure to avoid an unnecessary number of rejections over similar references. The examiner is not called upon to cite all references that may be available, but only the "best." (See 37 CFR 1.104(c).) Multiplying references, any one of which is as good as, but no better than, the others, adds to the burden and cost of prosecution and should therefore be avoided. See MPEP 904.03, third paragraph in section. The examiner takes the position that Manos appears to be just as good as Weston. As such, no rejection over Manos has been written in view of the provisions of MPEP 904.03.
Conclusion
No claims are currently allowable.
Correspondence
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/AMANDA MICHELLE PETRITSCH/Examiner, Art Unit 1612
/FREDERICK F KRASS/Supervisory Patent Examiner, Art Unit 1612