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 .
Response to Amendment
The amendment filed on 8/11/26 has been entered. Claims 1-7, and 25-37 are pending and are being examined on their merits in this U.S. Patent Application. Claim 1 has been amended to recite “consisting essentially of”, to add the canceled limitations of claim 2 of “humic mineral blend and fulvic mineral blend combined comprising 0.01% to 10.00% by weight of the composition” and “ground coffee beans comprising 90.00%to 99.99%by weight of the composition”, and lastly to add the new limitation of “during the brewing process of”. Claim 2 has been amended to narrow the concentrations of humic and fulvic acids as “comprising 0.01% to 3% by weight of the humic mineral blend and 0.01% to 3% by weight of the fulvic mineral blend”. Claims 25-37 have been newly added. Applicant’s amendments to the Specification has overcome the objection previously set forth in the Office Action mailed on 2/11/26.
Claim Objections
Claims 25-26, and 31-32 are objected to because of the following informalities:
In claims 25-26, and 31-32, “fluvic” should read “fulvic”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2, 27-28, 30 and 33 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claims 2, 28 and 30, the instant specification provides support for a composition comprising a humic mineral blend OR fulvic mineral blend or how much of a combination of a humic mineral blend AND fulvic mineral blend. It does not refer to how much of each of humic and fulvic as part of the blend individually.
Regarding claims 28 and 33, while the instant Specification disclose the composition can comprise 0.01% to 10.00% by weight of the humic mineral blend and/or fulvic mineral blend, there is no specific disclosure of a composition comprising the humic mineral blend in a greater amount by weight than the fulvic mineral blend. For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 ("PPG could have defined the scope of the phrase ‘consisting essentially of’ for purposes of its patent by making clear in its specification what it regarded as constituting a material change in the basic and novel characteristics of the invention.").
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.
Claim(s) 1-7, 29, 31-32, 34-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkie et al. [US 20200015501 A1], hereinafter Wilkie, in view of Brucker et al. [US 20050031761 A1], hereinafter Brucker, and Carrington et al. [US 20200000136 A1], hereinafter Carrington.
Regarding claim 1, Wilkie teaches humic and fulvic mineral extract for creating one or more beverage product for human consumption using said humic and fulvic ingredients [Wilkie, Title, Abstract, 0001]. The invention disclose humic and fulvic ingredients are combined with other additive ingredients (2120, Wilkie, Fig.21) to create a wide range of products including beverages [Wilkie, 0080, 0085, Fig.4, Fig.21].
Wilkie does not explicitly teach combining the humic/fulvic mineral blend with ground coffee beans, brewing the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together, the humic mineral blend and fulvic mineral blend combined comprising 0.01% to 10.00% by weight of the composition, and ground coffee beans comprising 90.00%to 99.99%by weight of the composition (i.e., the mineral/coffee % ratio), and wherein the composition forms a dispersion during the brewing process of the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together, and is thermally enhanced.
Brucker teaches a functionalized coffee composition comprising one or more minerals [Brucker, 0005], and/or with functional additives, wherein functional additives include minerals [Brucker, 0005-0008, 0074]. The functional/mineral additive may be in amounts of about 0.01% to 20% by weight (combined) with ground coffee (therefore, the composition would be 80% to 99.99% by weight coffee since the composition may be comprised of only the functional additives (minerals) at 0.01% to 20% by weight and the rest (i.e., 80% to 99.99%) would be ground coffee) [Brucker, 0012, 0105], which are ranges that overlap with the combined claimed ranges. The mineral-containing coffee composition is suitable for brewing into beverage to provide health benefits to the consumer [Brucker, 0010, 0105], and the minerals and/or functional additives are added to coffee grounds prior to brewing [Brucker, 0010-0011, 0032, 0095, 0097]. The invention provides for the formation of a dispersion (brewed coffee is a dispersion of coffee solids and other components/substances (i.e., volatile aroma components and non-volatile components such as sugars all dispersed in the extracting solvent/solution)) that provides a brewed beverage obtained by extraction comprising the functional additives, (equivalent to inclusion of the humic mineral blend and fulvic mineral blend in a coffee beverage prior to and during a brewing process thereby fortifying the coffee beverage; and wherein the composition forms a dispersion during the brewing process of the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together, and is thermally enhanced) since the functional additives in combination with the coffee grounds are extracted to provide the brewed beverage comprising the functional additives as taught by Brucker [Brucker, 0016].
Further, regarding the limitation of the composition being configured to provide detoxification of mycotoxins and other toxic and biologically detrimental compounds via the inclusion of the humic mineral blend and fulvic mineral blend in a coffee beverage prior to and during a brewing process thereby fortifying the coffee beverage; and wherein the composition forms a dispersion during the brewing process of the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together, and is thermally enhanced, given that the composition comprising humic and fulvic mineral blends and process of preparing said composition comprising a coffee additive ingredient and humic and fulvic minerals based on the disclosure in Wilkie combined with the teachings in Brucker is substantially similar to that in the instant claims, it is the examiner's position that the ground coffee beans with humic/fulvic mineral composition of Wilkie in view of Brucker would inherently have the instantly claimed provision of detoxification of mycotoxins and other toxic and biologically detrimental compounds via the inclusion of the humic mineral blend and/or fulvic mineral blend in a coffee beverage prior to and during a brewing process thereby fortifying the coffee beverage; and wherein the composition forms a dispersion during the brewing process of the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together, and is thermally enhanced. Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) .
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).
Further, regarding the composition consisting essentially of a humic mineral blend and fulvic mineral blend, and ground coffee beans, because Wilkie already teaches beverages with no limitations of the type of beverages containing only the humic and fulvic acid material [Wilkie, 0032], and Brucker teaches the functionalized coffee composition may comprise one or more functional additive(s) where the functional additive is one or more mineral(s) [Brucker, 0005-0008], and the functionalized coffee composition may be comprised of coffee beans and/or coffee grounds (i.e., only coffee material) with the one or more mineral(s) (i.e., only one mineral material) [Brucker, 0097], it would have been obvious to one of ordinary skill in the art to modify Wilkie (i.e., the humic/fulvic acid beverage composition) with the teachings of Brucker (i.e., the only coffee material with the only one mineral material) to prepare a functionalized coffee consisting essentially of coffee and humic/fulvic acid materials, since Wilkie already teach that quantities of additive ingredients and selecting some of the ingredients can be varied to target specific benefits and taste in the products for human consumption [Wilkie, 0080, 0085].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the functional/mineral additive in combined amounts of about 0.01% to 20% by weight, and coffee in amounts of 80% to 99.99% by weight to form a ground coffee beans with mineral blend, brewing the coffee mineral blend, to form a dispersion during the brewing process of the coffee mineral blend, and is thermally enhanced, as taught by Brucker, into the invention of Wilkie, because both Wilkie and Brucker are directed to beverage and/or drink compositions comprising beneficial components such as minerals and coffee material. Further, it would have been obvious to one of ordinary skill in the art to modify the beverage of Wilkie to be the coffee of Brucker by including ground coffee beans in amounts of 80% to 99.99% by weight, and the mineral ingredients in amounts of about 0.01% to 20% by weight as taught by Brucker, into the invention of Wilkie in order to provide a composition consisting essentially of humic and fulvic mineral blend coffee composition comprising ground coffee beans for making a brewed beverage dispersion, as this is merely using or selection of a known material for a known purpose and as such is prima facie obviousness. Doing so would provide compositions for beverages comprising ground coffee beans [Brucker, 0006, 0095] that is suitable for providing beneficial qualities to brewed coffee, caffeinated beverages or drinks as well as health benefits to the consumer [Brucker, 0010], and allows for the ready preparation of a healthy caffeinated beverage or drink which can be used to deliver functional additives to a subject suffering from any number of ailments [Brucker, 0011]. Moreover, it would have been obvious to one of ordinary skill in the art to modify Wilkie with the teachings of Brucker, because the substitution of one known element (i.e. percent by weight amount of humic/fulvic mineral and additional ingredients of Wilkie [Wilkie, 0080, 0085]) for another (i.e. percent by weight amount of functional/mineral additive and ground coffee bean of Brucker [Brucker, 0012, 0105]) would have yielded predictable results to one of ordinary skill in the art. Lastly, it would have been obvious to one of ordinary skill in the art to incorporate 0.01% to 20% by weight of the mineral material (humic/fulvic acids) and 80% to 99.99% by weight of the coffee material as taught by Brucker, into the composition of Wilkie, because Wilkie already teach that quantities of additive ingredients and selecting some of the ingredients can be varied to target specific benefits and taste in the products for human consumption [Wilkie, 0080, 0085], therefore, an ordinarily skilled artisan would have used 0.01% to 20% by weight of the mineral material (humic/fulvic acids) and 80% to 99.99% by weight of the coffee material during the course of normal experimentation and optimization procedures in the composition of Wilkie in view of Brucker, due to factors such as the ratios of the various ingredients, the desired final taste characteristics and/or the desired health benefit to impart to the consumer using the composition of modified Wilkie.
If it could be construed that Wilkie in view of Brucker are not clear or do not explicitly teach the composition is configured to provide detoxification of mycotoxins and other toxic and biologically detrimental compounds via the inclusion of the humic mineral blend and fulvic mineral blend in a coffee beverage prior to and during a brewing process thereby fortifying the coffee beverage.
Carrington teaches supplemental food formulations comprising humic mineral and fulvic mineral blends (humic-fulvic acids with multi-minerals) [Carrington, Abstract, 0013] suitable for combining with coffee [Carrington, 0076, 0216, 0240], and where the compositions are suitable for drinks [Carrington, 0083] and beverages [Carrington, 0086], where humic and fulvic containing compositions are useful for reduction and/or elimination of substances that are toxic to humans [Carrington, 0014], and where the composition is a mixture of selected substances including humic-fulvic acids with multi-minerals that are beneficial to a consumer as supplement, since the components of the mixture or mixed composition are sufficiently similar in chemical and physical properties to be handled together (also equivalent to the claimed the humic mineral blend, the fulvic mineral blend, and the ground coffee beans together that is already taught by Brucker [Brucker, 0016] as explained above) in the manufacturing process [Carrington, 0111, 0108, Table 2].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the composition of Wilkie in view of Brucker and Carrington would also be configured to provide detoxification of mycotoxins and other toxic and biologically detrimental compounds via the inclusion of the humic mineral blend and fulvic mineral blend in a coffee beverage prior to and during the/a brewing process thereby fortifying the coffee beverage. Particularly, since Wilkie, Brucker and Carrington are all directed to beverage and/or drink compositions comprising beneficial components such as minerals and coffee material and/or humic mineral and fulvic mineral blends, and further because Carrington explicitly teaches that the composition would additionally provide for the detoxification of mycotoxins and other toxic and biologically detrimental compounds via the inclusion of the humic mineral blend and fulvic mineral blend in a food that is supplemented with the composition of his invention, (thereby fortifying the coffee beverage) and that humic and fulvic containing compositions are useful for reduction and/or elimination of substances that are toxic to humans, an ordinarily skilled artisan would have been motivated to use and/or recognize the composition being configured to provide detoxification as claimed.
Regarding art recognized suitability for an intended purpose, MPEP 2144.07 states:
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) (Claims to a printing ink comprising a solvent having the vapor pressure characteristics of butyl carbitol so that the ink would not dry at room temperature but would dry quickly upon heating were held invalid over a reference teaching a printing ink made with a different solvent that was nonvolatile at room temperature but highly volatile when heated in view of an article which taught the desired boiling point and vapor pressure characteristics of a solvent for printing inks and a catalog teaching the boiling point and vapor pressure characteristics of butyl carbitol.)
See also In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious); Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988) (Claimed agricultural bagging machine, which differed from a prior art machine only in that the brake means were hydraulically operated rather than mechanically operated, was held to be obvious over the prior art machine in view of references which disclosed hydraulic brakes for performing the same function, albeit in a different environment.).
Moreover, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed order of mixing ingredients (inclusion of the humic mineral blend and fulvic mineral blend in a coffee beverage prior to and during the/a brewing process) in the invention of Wilkie, since Wilkie already disclosed mixing the humic and fulvic mineral blend with additives prior to and during a beverage preparation process, but simply did not mention brewing, which is nonetheless taught by Brucker, and since the claimed order of mixing ingredients would have been used during the course of normal experimentation and optimization procedures due to factors such as the preparation methods of the coffee or brewed beverage, ratios of the various ingredients, the desired final taste characteristics of the final beverage product, and/or the particular health benefit being targeted or of interest to the consumer using the composition of modified Wilkie.
Regarding the order of mixing ingredients, MPEP 2144.04 states:
Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Regarding claim 3, Wilkie teaches the humic/fulvic mineral composition of claim 1, but does not teach the composition is a powdered composition. However, modified Wilkie in view of Brucker teach the humic/fulvic mineral coffee composition discussed above in claim 1, wherein the ground coffee and mineral additive blended composition may be in powdered form [Brucker, 0093, 0095-0096].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed composition in powdered form as taught by Brucker, into the invention of Wilkie, because Brucker teaches that this would provide powdered coffee with powdered functional additives (i.e., minerals) in a substantially homogeneous powdered coffee blend, where the functional additives are mixed right after the coffee beans are ground to take advantage of the ground coffee's natural oils which may act to bind the coffee grounds and powdered additives, and in addition, the oils upon heating assist in the chemical availability of some functional additives assisting the body’s ability to assimilate the functional additive in a way that speeds the desired effect and enhances the net available effect of the active ingredients [Brucker, 0095].
Regarding claim 4, Wilkie teach the humic/fulvic mineral composition for creating one or more beverage product for human consumption using said humic and fulvic ingredients [Wilkie, Title, Abstract, 0001] but does not explicitly recite a beverage made by brewing the composition. However, modified Wilkie in view of Brucker teach the humic/fulvic mineral coffee composition discussed above in claim 1, wherein a beverage is made by brewing the mineral/coffee composition and obtain brewed beverages [Brucker, 0105-0106].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed beverage made by brewing, into the invention of Wilkie, in view of Brucker, since both express interest in delivering functional additives through beverages to a subject. Doing so would provide for simple and convenient preparation methods of functional coffee beverages where a consumer may select the desired functional additive from a menu, the desired type of ground coffee and an employee would prepare the functionalized coffee composition by combining the selected ingredients, the appropriate amount of functional additive and the coffee grounds to provide a substantially homogenous mixture to obtain a functionalized coffee composition [Brucker, 0105].
Regarding claims 5-6, modified Wilkie in view of Brucker teach the beverage made by brewing as discussed in claim 4 rejection above, where said beverages further comprise an additive such as flavoring agents [Wilkie, Abstract-0079, Fig.21 (2120)].
Regarding claim 7, modified Wilkie in view of Brucker teach the beverage made by brewing as discussed in claim 4 rejection above, where the final beverage product is a bottled (equivalent to sealed container) beverage product [Wilkie, 0090].
Regarding claims 25-26, and the combined amounts of humic mineral blend and fulvic mineral blend being 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition, see modified Wilkie above in claim 1, teaching the humic/fulvic coffee composition comprising 0.01% to 20% by weight (which is a range that encompass the claimed ranges) of the mineral material (humic/fulvic acids) and 80% to 99.99% by weight of the coffee material, therefore teaching humic/fulvic coffee composition comprising combined amounts of humic mineral blend and fulvic mineral blend of 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition (i.e., the humic/fulvic coffee composition). The same motivation statement from claim 1 is applied mutatis mutandis to claims 25-26 for the combined amounts of humic mineral blend and fulvic mineral blend being 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition.
Regarding claim 29, see modified Wilkie above in claim 1, teaching each and every limitation of claim 29. The same motivation statement from claim 1 is applied to claim 29.
Regarding claims 31-32, and the combined amounts of humic mineral blend and fulvic mineral blend being 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition, see modified Wilkie above in claim 29, teaching the humic/fulvic coffee composition comprising 0.01% to 20% by weight (which is a range that encompass the claimed ranges) of the mineral material (humic/fulvic acids) and 80% to 99.99% by weight of the coffee material, therefore teaching humic/fulvic coffee composition comprising combined amounts of humic mineral blend and fulvic mineral blend of 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition (i.e., the humic/fulvic coffee composition). The same motivation statement from claim 1 is applied mutatis mutandis to claims 31-32 for the combined amounts of humic mineral blend and fulvic mineral blend being 0.01% to 6.0% and 0.01% to 1.0% by weight of the composition.
Regarding claim 34, see modified Wilkie above in claim 29, teaching each and every limitation of claim 29, and modified Wilkie in view of Brucker teach the humic/fulvic mineral coffee composition discussed above in claim 3, wherein the ground coffee and mineral additive blended composition may be in powdered form [Brucker, 0093, 0095-0096]. The same motivation statement from claim 3 is applied to claim 34.
Regarding claim 35, see modified Wilkie above in claim 29, teaching each and every limitation of claim 29, and modified Wilkie in view of Brucker teach the humic/fulvic mineral coffee composition discussed above in claim 4, wherein a beverage is made by brewing the mineral/coffee composition and obtain brewed beverages [Brucker, 0105-0106]. The same motivation statement from claim 4 is applied to claim 35.
Regarding claims 36-37, see modified Wilkie above in claim 29, teaching each and every limitation of claim 29, and modified Wilkie in view of Brucker teach the beverage made by brewing as discussed in claim 35 rejection above, where said beverages further comprise an additive such as flavoring agents [Wilkie, Abstract-0079, Fig.21 (2120)].
Claim(s) 2, 27, 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkie [US 20200015501 A1], in view of Brucker [US 20050031761 A1], and Carrington [US 20200000136 A1], as applied to claim 1 above, and further in view of Li et al. [CN102511748A], hereinafter Li.
Regarding claim 2, modified Wilkie teaches the humic/fulvic mineral composition of claim 1, wherein the humic/fulvic mineral (functional/mineral additive) may be in combined amounts of about 0.01% to 20% by weight [Brucker, 0012, 0105], but does not explicitly recites the composition comprising 0.01% to 3% by weight of the humic mineral blend and 0.01% to 3% by weight of the fulvic mineral blend (i.e., modified Wilkie does not specifically teaches individual amounts of 0.01% to 3% by weight for each humic and fulvic acids separately).
Li teaches mineral rich compositions suitable for use as additive in foods [Li, Abstract], comprising a selenium source substance such as humic and fulvic acids, and wherein the amount ratio of humic and fulvic acids added to the composition may be 10-100 for humic acid and 10-100 for fulvic acid [Li, 0015-0016, 0020, 0024].
Therefore, because Li teaches using equal parts, ratios or amounts of 10-100 for humic acid and 10-100 for fulvic acid (10-100:10-100 of humic acid to fulvic acid), and modified Wilkie in view of Brucker teaches the humic/fulvic mineral composition comprising humic/fulvic mineral (functional additive) in combined amounts of about 0.01% to 20% by weight in the composition of functional coffee [Brucker, 0012, 0105], which is a range that encompass the claimed range of 0.01% to 3% by weight for humic and fulvic acids, by Li explicitly teaches using the same amounts (ratios) for each individual humic acid and fulvic acid components, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the same amount of 10-100 to 10-100 for each humic and fulvic acids as taught by Li, in the composition of modified Wilkie in view of Brucker, where the humic acid and fulvic acid components are in the composition in amounts of 0.01% to 20% by weight of humic acid and 0.01% to 20% by weight of fulvic acid, which are amounts for each humic acid and fulvic acid that encompass the claimed amounts of 0.01% to 3% by weight of the humic mineral blend and 0.01% to 3% by weight of the fulvic mineral blend. Further, it would have been obvious to one of ordinary skill in the art to have used the same amount of humic acid and fulvic acid (i.e., 0.01% to 20% by weight) individually as taught by Li, because Li teaches that by adding both humic and fulvic acids at the same amounts (ratios) into compositions suitable for food, would allow for the preparation of new accumulated high content of organic selenium from plant material [Li, 0007, 0015-0016, 0020, 0024], which is beneficial for the health of the consumer [Li, Abstract]. Furthermore, because Wilkie already teaches producing humic acid and fulvic acid separately [Wilkie, 0081-0083] and storing the humic acid and fulvic acid into their own separate humic acid and fulvic acid tanks [Wilkie, 0084-0085], one of ordinary skill in the art would recognize the use of the desired amounts of each humic acid and fulvic acid (i.e., equal parts/amounts, higher/lower amounts of each), particularly since Wilkie also teaches that quantities of additive ingredients and selecting some of the ingredients (which would include the humic and fulvic acids) can be varied to target specific benefits and taste in the products for human consumption [Wilkie, 0080, 0085].
Regarding claim 27, and the composition of claim 1, comprising 0.01% to 1% by weight of the humic mineral blend and 0.01% to 1% by weight of the fulvic mineral blend, see modified Wilkie above in claim 1, teaching the humic/fulvic coffee composition comprising 0.01% to 20% by weight of humic mineral blend and fulvic mineral blend combined, which is a range that encompass the claimed range of 0.01% to 1% by weight for humic and fulvic acids, and see modified Wilkie further in view of Li above in claim 2, teaching using the same amounts (ratios) of 10-100 to 10-100 for each individual humic acid and fulvic acid components. The same motivation statement from claim 2 is applied mutatis mutandis to claim 27 for the individual amounts of 0.01% to 1% by weight of the humic mineral blend and 0.01% to 1% by weight of the fulvic mineral blend.
Regarding claim 30, and the composition of claim 29, comprising 0.01% to 3% by weight of the humic mineral blend and 0.01% to 3% by weight of the fulvic mineral blend, see modified Wilkie above in claim 29, teaching each and every limitation of claim 29, and see modified Wilkie further in view of Li above in claim 2. The same motivation statement from claim 2 is applied mutatis mutandis to claim 30 for the individual amounts of 0.01% to 3% by weight of the humic mineral blend and 0.01% to 3% by weight of the fulvic mineral blend.
Claim(s) 28 and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkie [US 20200015501 A1], in view of Brucker [US 20050031761 A1], and Carrington [US 20200000136 A1], as applied to claims 1 and 29 above, and further in view of Wilkie et al. [US20200080037A1], hereinafter Wilkie’037.
Regarding claims 28 and 33, modified Wilkie teaches the composition of claims 1 and 29 above, comprising the humic mineral blend and the fulvic mineral blend, but does not teaches the compositions comprising the humic mineral blend in a greater amount by weight than the fulvic mineral blend.
NOTE: For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 ("PPG could have defined the scope of the phrase ‘consisting essentially of’ for purposes of its patent by making clear in its specification what it regarded as constituting a material change in the basic and novel characteristics of the invention.").
Moreover;
Wilkie’037 teaches humic mineral blend and fulvic mineral blend compositions for beverages [Wilkie’037, Abstract], the compositions comprising the humic mineral blend in a greater amount by weight than the fulvic mineral blend [Wilkie’037, 0065].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the humic mineral blend in a greater amount by weight than the fulvic mineral blend in the humic mineral blend and fulvic mineral blend compositions as taught by Wilkie’037, in the composition of modified Wilkie, because Wilkie’037 teaches that providing various different amounts for each humic mineral blend and fulvic mineral blend individually, would allow for the preparation of different products such as beverages, cosmetics [Wilkie’037, 0065], supplements, pharmaceuticals and food additives [Wilkie’037, 0043].
Response to Arguments
Applicant's arguments filed 8/11/26 have been fully considered but they are not persuasive.
In pages 6-7 of the Remarks, Applicant urges that claim 1 now recites the composition consists essentially of a humic mineral blend and fulvic mineral blend combined comprising 0.01% to 10.00% by weight of the composition, and ground coffee beans comprising 90.00%to 99.99%by weight of the composition, and since Brucker discloses a coffee composition of non-minerals that may also include some minerals but does not mention humic or fulvic minerals, and that the reference(s) does not provides any indication that humic or fulvic minerals can be combined with coffee or brewed, claim 1 should be allowed.
In regard to the transitional phrase of “consisting essentially of”, MPEP 2111.03 III., states: The transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976) (emphasis in original) (Prior art hydraulic fluid required a dispersant which appellants argued was excluded from claims limited to a functional fluid "consisting essentially of" certain components. In finding the claims did not exclude the prior art dispersant, the court noted that appellants’ specification indicated the claimed composition can contain any well-known additive such as a dispersant, and there was no evidence that the presence of a dispersant would materially affect the basic and novel characteristic of the claimed invention. The prior art composition had the same basic and novel characteristic (increased oxidation resistance) as well as additional enhanced detergent and dispersant characteristics.). "A ‘consisting essentially of’ claim occupies a middle ground between closed claims that are written in a ‘consisting of’ format and fully open claims that are drafted in a ‘comprising’ format." PPG Industries v. Guardian Industries, 156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54 (Fed. Cir. 1998). See also Atlas Powder v. E.I. duPont de Nemours & Co., 750 F.2d 1569, 224 USPQ 409 (Fed. Cir. 1984); In re Janakirama-Rao, 317 F.2d 951, 137 USPQ 893 (CCPA 1963); Water Technologies Corp. vs. Calco, Ltd., 850 F.2d 660, 7 USPQ2d 1097 (Fed. Cir. 1988). For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 ("PPG could have defined the scope of the phrase ‘consisting essentially of’ for purposes of its patent by making clear in its specification what it regarded as constituting a material change in the basic and novel characteristics of the invention.").
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
While Wilkie does not teaches that humic or fulvic minerals can be combined with coffee or brewed, and Brucker discloses a coffee composition of non-minerals that may also include some minerals but does not mention humic or fulvic minerals, nonetheless Wilkie does teaches combining humic and fulvic minerals can be combined with water based beverages [Wilkie, 0033], (coffee is a water based beverage since it is brewed/extracted with water), and Brucker teaches coffee beverages and coffee compositions wherein the coffee material is extracted with water [Brucker, 0063], therefore an ordinarily skilled artisan would recognize the combination of the coffee/mineral composition of Brucker with the humic and fulvic minerals combined with water based beverages or water of Wilkie, with reasonable expectation of success.
Applicant’s arguments with respect to claim(s) 2-7 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
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 LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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