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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/09/2026 has been entered.
Application Status
Claim 1-12, 15-17 and 20-22 are under examination.
Claim 13-14 and 18-19 are cancelled.
Claim 1-12, 15-17 and 20-22 are rejected.
Withdrawn Rejections
The 35 U.S.C. 103 rejections over claim(s) 1-12, 15-17 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Black, Jr. et al. (US 5,403,604, IDS filed on 10/27/2022) as evidenced by Title 19 CFR 151.91, Code of Federal Regulations (annual edition) - April 1, 2002 Edition (Ref. U, PTO-892 on 03/06/2025) have been withdrawn.
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.
Claim 1-12, 15-17 and 20-22 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.
Claim 1 recites the term “juice permeate water” is unclear. It is not clear if the term refers to only water as the component in the drink, in other words water is known as calorie-free, non-acidic, sugar-free, non-minerals, non-vitamins, no flavors, no aromas or any other compounds except water molecules. It is not clear if the term “juice permeate” encompass additional components in the water; or if the term, “juice permeate” is considered a source from which the water is obtained, in other words without any other components except water molecules. The claim is indefinite. Claim 2-12, 15-17 and 20-22 are also rejected since the claims are dependent upon rejected claim 1.
Claim 21 and 22, recite the transitional phrase “additionally comprising” is confusing to include cited component(s) whereas the preceding independent claim 1 recites “consisting” which is close-ended to exclude additional components in the aromatic water drink of claim 1, besides the juice permeate water. Hence the claims are indefinite.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-12 and 15-22 are rejected under 35 U.S.C. 103 as being unpatentable over Kambouris (US 9,573,826).
Regarding claim 1, 3, 4, 5, 6, 7, 8, 9, 10 and 12, Kambouris discloses a bottled, palatable potable storable water (drink) (‘826, col. 3, ln. 30-32; col. 10, ln. 5-6) consisting of the water obtained from LSJ (low sugar juice), considered as a juice permeate (‘826, col. 3, ln. 33-44; col. 4, ln. 17-21; col. 9, ln. 44-51). With respect to the recitation of “wherein the aromatic water drink has a Brix degree reduced by at least 50% compared to the fruit juice” in claim 1, and components and percentages as set forth in claim 5, 6, 7, 8, 9, 10 and 11, Kambouris clearly teach removal of sugar from the LSJ (low sugar juice) (‘826, col. 8, ln. 1-3) wherein bottled, palatable potable storable water, is expected to have a zero Brix degree (‘826, col. 7, ln. 58-61) and overlaps the limitation. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). With respect to the limitation of “wherein the aromatic water drink has an absorbance at 280 nm of 2.3 UA or less as measured by a spectrophotometer”, as Kambouris discloses like material, the bottled palatable potable storable water (drink) consisting of the water obtained from LSJ (low sugar juice), considered as a juice permeate, in a like manner as claimed; it would be therefore be expected that Kambouris’ bottled, palatable potable storable water (drink) will have the same characteristics claimed, particularly an absorbance at 280 nm of 2.3 UA or less measured by a spectrophotometer, absence a showing of unexpected results.
With respect to the recitation of claim 3 and 4, the recitations directed to the fruit juice is an adjusted fruit juice as recited in claim 3 and pH adjusted as recited in claim 4, are considered intermediate product of the claimed drink, final product. The patentability of an intermediate may be established by unexpected properties of an end product "when one of ordinary skill in the art would reasonably ascribe to a claimed intermediate the ‘contributing cause’ for such an unexpectedly superior activity or property." In re Magerlein, 602 F.2d 366, 373, 202 USPQ 473, 479 (CCPA 1979). "In order to establish that the claimed intermediate is a ‘contributing cause’ of the unexpectedly superior activity or property of an end product, an applicant must identify the cause of the unexpectedly superior activity or property (compared to the prior art) in the end product and establish a nexus for that cause between the intermediate and the end product." Id. at 479. Kambouris’s bottled palatable potable storable water (drink) consisting of the water is considered to meet the limitation.
Regarding claim 2 and 15-17, are process by product limitation, see MPEP 2113
I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[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). Kambouris discloses the claimed invention as discussed above in claim 1 and encompasses the limitations of claim 2 and 15-17. Furthermore Kambouris teaches size exclusion process including nanofiltration (‘826, col. 14, claim 16).
Regarding claim 12, Kambouris discloses the fruit juice (‘826, col. 2, ln. 29-31) obtained from any fruit (‘826, col. 10, ln. 28-29). Kambouris does not explicitly fruit juice is apple juice. However, apple juice is ready commercially available fruit juice. It would have been obvious to one of ordinary skill in the art to be motivated to use known ready commercially available fruit juice as apple juice as motivated by Kambouris (‘826, col. 10, ln. 28-29) as a matter of fruit juice preference.
Regarding claim 20, Kambouris discloses palatable potable storable water (drink) (‘826, col. 3, ln. 30-32; col. 10, ln. 5-6) with carbonatation (‘826, col. 2, ln. 60) to provide a sparkling water.
Regarding claim 21, Kambouris discloses palatable potable storable water (drink) (‘826, col. 3, ln. 30-32; col. 10, ln. 5-6) with herbal extracts and aromas (‘826, col. 2, ln. 61-63). Kambouris does not disclose the aromatic compound as recited. However, it would have been obvious to one of ordinary skill in the art to be motivated to use known commercially available aromatic compound as recited, as motivated by Kambouris (‘826, col. 2, ln. 61-63) to provide a desired aromatic profile as a matter of preference.
Regarding claim 22, Kambouris discloses palatable potable storable water (drink) (‘826, col. 3, ln. 30-32; col. 10, ln. 5-6) with mineral fortified (‘826, col. 2, ln. 59-60). Kambouris does not disclose the calcium as recited. However, it would have been obvious to one of ordinary skill in the art to be motivated to use known commercially available mineral calcium, as motivated by Kambouris (‘826, col. 2, ln. 59-60) to provide a desired fortified mineral profile as a matter of preference.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-12, 15-17 and 20-22 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
