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 .
Application Status
Amended claim 1-12, 15-17, and 20-22 are under examination.
Claim 1-12, 15-17 and 20-22 are rejected.
Claim 13-14 and 18-19 are cancelled.
Withdrawn Rejection
The objection as set forth in previous office action have been withdrawn in light of Applicant’s amendments.
The 112, second paragraph rejections over claim 1-17 and 20-22 as set forth in previous office action have been withdrawn in light of Applicant’s amendments.
The 35 U.S.C. 102(a)(1) over claim 1, 2, 3, 4, 8, 12-17, 21 and 22 as being anticipated by 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 U, PTO-892 on 03/06/2025) have been withdrawn in light of Applicant’s amendment to “consisting” as the transitional phrase.
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.
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.
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).
Regarding claim 1, 3 and 4, Black, Jr. et al. (Black) discloses a low B/A ratio fruit juice composition (aromatic water drink) (‘604, col. 18, claim 19) comprising a low B/A ratio fruit juice, NF permeate (juice permeate water) (‘604, col. 4, ln. 19-23). With respect to the new transitional phrase “consisting”, while Black’s low B/A ratio fruit juice composition (aromatic water drink) “can be” with addition of sweeteners (‘604, col 4, ln. 33-35), however the term “can” encompass an alternative option not to an addition of sweeteners. Black’s low B/A ratio fruit juice composition (aromatic water drink) comprising the low B/A ratio fruit juice, NF permeate (juice permeate water) (‘604, col. 4, ln. 19-23) without additional ingredients, including sweeteners meets the limitation. Additionally, it would have been obvious to one of ordinary skill in the art to not have additional sweeteners in Black’s low B/A ratio fruit juice composition (aromatic water drink) comprising the low B/A ratio fruit juice, NF permeate (juice permeate water) as Black clearly teach optimize and readily determined by one skilled in the art for a desired sweetness (‘604, col. 5, ln. 2-12).
Black discloses the sweetened low B/A ratio fruit juice composition (drink) is obtained from a fruit juice, orange juice with a Brix of about 12, therein the low B/A ratio fruit juice, NF permeate (juice permeate water) having a Brix of about 6 or less (‘604, col. 4, ln. 56-60), which is in range with the cited range of Brix degree reduced by at least 50% compared to the fruit juice. With respect to claim 3, Black discloses an addition of water to dilute a steam of the low B/A ratio fruit juice, NF permeate (juice permeate water) (‘605, col. 4, ln. 19-23), which is considered as adjusted fruit juice with the addition of the water. With respect to claim 4, Black discloses the low B/A ratio fruit juice composition (aromatic water drink) (‘604, col. 18, claim 19) wherein a deceased of Brix/acid (B/A) (‘604, col. 2, ln. 3-8) encompass an adjusted pH level due to the decrease of acid level.
With respect to the limitation of “…wherein the aromatic water drink has an absorbance at 280 nm of 2.3 UA or less measured by a spectrophotometer…”, as Black discloses like materials, juice with at least 50% Brix or less in a like manner as claimed it would therefore be expected that Black’s sweetened low B/A ratio fruit juice composition (aromatic water drink) will have the same characteristics claimed, particularly has an absorbance at 280 nm of 2.3 UA or less measured by a spectrophotometer, absence a showing of unexpected results.
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).
Black discloses the claimed invention as discussed above in claim 1 and encompasses the limitations of claim 2 and 15-17.
Regarding claim 5, 6 and 7, Black’s low B/A ratio fruit juice, NF permeate (juice permeate water) having the Brix of about 6 or less (‘604, col. 4, ln. 56-60) in other words reduced by Brix degree of 50% or more, which overlaps with the cited range of Brix degree of claim 5, 6 and 7. 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).
Regarding claim 8, Black’s low B/A ratio fruit juice, NF permeate (juice permeate water)with Brix value of sugar content including glucose (‘604, col. 3, ln. 9-13), having the Brix of about 6 or less (‘604, col. 4, ln. 56-60) in other words reduced by Brix degree of 50% or more, which is in range with the cited range of Brix degree of claim 8.
Regarding claim 9, 10 and 11, Black’s low B/A ratio fruit juice, NF permeate (juice permeate water) with Brix value of sugar content including glucose (‘604, col. 3, ln. 9-13), having the Brix of about 6 or less (‘604, col. 4, ln. 56-60) in other words reduced by Brix degree of 50% or more, which overlaps the cited range of claim 9, 10 and 11. 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).
Regarding claim 12, Black discloses the juice including orange, grapefruit, lemon, apple, pineapple (‘604, col. 2, ln. 41-47).
Regarding claim 20, Black discloses the claimed invention as discussed above. Black does not explicitly disclose a sparkling water comprising the sweetened low B/A ratio fruit juice composition (aromatic water drink) (‘604, col. 18, claim 19). However it was well known in the art to add carbonation to a beverage containing water to provide a desired effervescent sparkling water beverage. It would have been obvious to one of ordinary skill in the art to be motivated to add carbonation to Black’s sweetened low B/A ratio fruit juice composition (aromatic water drink) to provide an effervescent sparkling water beverage as a matter of preference.
Regarding claim 21, Black discloses the sweetened low B/A ratio fruit juice composition (drink) is obtained from the fruit juice, orange juice with a Brix of about 12, therein the low B/A ratio fruit juice, NF permeate (juice permeate water) having a Brix of about 6 or less (‘604, col. 4, ln. 56-60), which is in range with the cited range of Brix degree reduced by at least 50% compared to the fruit juice. As Black’s fruit juice, orange juice with the Brix of about 12, therein the low B/A ratio fruit juice, NF permeate (juice permeate water) having the Brix of about 6 or less (‘604, col. 4, ln. 56-60), uses like materials in a like manner as claimed, it would therefore be expected that an aromatic composition will have the same element compound as cited, absence a showing of unexpected results.
Regarding claim 22, Black discloses sweetened low B/A ratio fruit juice composition (aromatic water drink) comprising the low B/A ratio fruit juice, NF permeate (juice permeate water) with recombined UF retentate (‘604, col. 3, ln. 50-56) contains sodium.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but are moot because the new ground of rejection, with respect to Applicant’s amendment to recite new limitation of “consisting”.
In response to Applicant’s remarks, with respect to the new transitional phrase “consisting”, while Black’s low B/A ratio fruit juice composition (aromatic water drink) “can be” with addition of sweeteners (‘604, col 4, ln. 33-35), however the term “can” encompass an alternative option not to an addition of sweeteners. Black’s low B/A ratio fruit juice composition (aromatic water drink) comprising the low B/A ratio fruit juice, NF permeate (juice permeate water) (‘604, col. 4, ln. 19-23) without additional ingredients, including sweeteners meets the limitation. Additionally, it would have been obvious to one of ordinary skill in the art to not have additional sweeteners in Black’s low B/A ratio fruit juice composition (aromatic water drink) comprising the low B/A ratio fruit juice, NF permeate (juice permeate water) as Black clearly teach optimize and readily determined by one skilled in the art for a desired sweetness (‘604, col. 5, ln. 2-12).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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