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 .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 4-10 are rejected under 35 U.S.C. 103 as being unpatentable over Zuniga et al . (herein referred to as Zuniga, US 5389387 A) in view of Selman (US 8323713 B1) and Hayakawa (WO 2013094587 A1).
With regard to Claim 1, Zuniga teaches a beverage concentrate ([14]). The concentrate containing a base salt. ([41] Zuniga reads such that the concentrate contains calcium carbonate) Zuniga teaches an acid solution comprising citric and malic acids dissolved in water ([99]). Zuniga teaches adding the acid mixture to the calcium slurry ([103]-[104]). Zuniga teaches controlling the addition of the acid mixture to calcium slurry so that the reaction does not become too hot ([104]).
Although Zuniga teaches the concentrate can make carbonated beverages ([118]), the reference is silent to the reaction of the base salt and the acidic phase in each one of the plurality of containers occurs after the container is sealed so as to result in the beverage inside the container being carbonated to a specific amount of carbonation.
Selman teaches an apparatus to make home carbonated aqueous solutions (abstract). Selman teaches the beverage is carbonated after the container is sealed resulting in the beverage inside the container being carbonated to a specific amount of carbonation (Col 2, lines 10-15). Selman teaches carbon dioxide can be generated by the action of a water based acid on a carbonate or bicarbonate salt (Col 2. Lines 23-24, Claim 7).
Selman imparts reasoning for obviousness because the teaching shows that the reaction of a base salt and an acidic phase (such as the acid solution and calcium carbonate slurry taught by Zuniga) was known to successfully produce carbonation for a beverage in a sealed container and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to utilize a base salt and an acidic phase to produce carbonation in a sealed container, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Continuing, Zuniga is silent to the method being performed in individual bottles on a conveyor.
Hayakawa teaches a beverage filling method (page 2, lines 51-52). Hayakawa teaches placing beverage containers on a conveyor (figure 5, and page 4 lines 143-150) The method comprising dispensing a first phase into a beverage container at a first location on the conveyor (Page 2, lines 64-67 and 76-87). Next, a second phase is dispensed into the beverage containers at a second location on the conveyor that is spaced apart from the first location. Hayakawa teaches water can be added in the first or second phase (page 2, lines 76-87). Hayakawa teaches the dispensers can discharge a predetermined amount (page 6, lines 239-243). Hayakawa teaches at a third location on the conveyor that is spaced apart from both the first location and the second location, sealing each one of the plurality of beverage containers individually with a substantially airtight seal at a predetermined amount of time (page 2, lines 76-87 page 5, lines 188-193). Hayakawa teaches with the method described above, it is possible to move quickly to the next production without the time required for CIP (cleaning in place), and the preparation time for switching can be significantly shortened (page 3, lines 103-105).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zuniga to produce the concentrate using the method of Hayakawa because it is possible to move quickly to the next production without the time required for CIP (cleaning in place), and the preparation time for switching can be significantly shortened (page 3, lines 103-105). In addition, it would be beneficial to implement Hayakawa’s method because the calcium slurry taught by Zuniga can become too hot if the addition of the acid solution is not controlled. Hayawaka clearly states the dispenser can be controlled to dispense a predetermined amount. Therefore, it would have been obvious to one with ordinary skill in the art to add the base salt first and then add the acidic phase to control the amount of acidic phase added via a predetermined amount to avoid the mixture becoming too hot.
With regard to Claim 4, Zuniga teaches the base salt is calcium carbonate ([42]).
With regard to Claim 5, Zuniga teaches the acidic aqueous solution comprises citric and malic acids ([16], [99]).
With regard to Claim 6, Zuniga teaches adding vitamins to the acidic phase ([105]).
Because the combination of Zuniga and Hayakawa teach the acidic phase is dispensed into the bottle prior to sealing. It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that the vitamins would be dispensed into the bottle prior to sealing the cap.
With regard to Claim 7, Zuniga teaches the base salt comprises a weight percent of the beverage concentrate in a range from 0.2% to 1.20% solubilized calcium ([44]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
With regard to Claim 8, Zuniga teaches the acidic aqueous phase comprises 0.7% to about 8.25% of the beverage concentrate ([16]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
With regard to Claim 9, Zuniga teaches adding a flavor component ([18], [65], [105]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that flavoring would be added prior to sealing the bottle because after sealing the addition of other elements would not be possible.
With regard to Claim 10, Zuniga teaches adding at least one coloring agent ([89]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that a coloring agent would be added prior to sealing the bottle because after sealing the addition of other elements would not be possible.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Zuniga (US 5389387 Ain view of Selman (US 8323713 B1), Hayakawa (WO 2013094587 A1), and in further view of Pandya (US 6589555 B2).
With regard to Claim 2, Pandya teaches an effervescent composition (Col 2, lines 46-47). The composition contains both basic (first phase) and acidic ingredients. The basic ingredient causes liberation of carbon dioxide when it and the acid component are contacted with water (Col 6, lines 6-9). Pandya teaches the composition can include addition ingredients such as sweeteners and vitamins (Col 6, lines 50-65). Pandya teaches mixing the ingredients under environmental conditions (Col 8, lines 6-14).
Pranya imparts reasoning for obviousness because the reference teaches adding the sweetener with the first phase and acidic phase (Col 8, lines 6-14). Therefore, there is no criticality in the order of which the ingredients are mixed to obtain the desired result. See MPEP 2144.04(IV)(C) 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”. Thus, the selection of any order of mixing the ingredients is prima facie obvious.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Zuniga (US 5389387 Ain view of Selman (US 8323713 B1), Hayakawa (WO 2013094587 A1), and in further view of Ambaye (“Evaluation of Phytochemical, Chemical Composition, Antioxidant and Antimicrobial Screening Parameters of Rhamnus prinoides (Gesho) Available in the Market of Mekelle, Tigray, Ethiopia”)
With regard to Claim 3, Ambaye teaches extracts of Rhamnus prinoides (gesho) contain several phytochemicals may be responsible for the pharmacological and a toxicology action of the plant which has antibacterial activity (Conclusion). Ambaye teaches the chemical composition values confirmed that Rhamnus prinoides leaf powders are an excellent food source, justifying its direct use in human nutrition or development of balanced diets for animal nutrition (Conclusion).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Zuniga and Hayakawa to include gesho extract because it is an excellent food source that exhibits antibacterial activity and therefore, per the applicant’s specification paragraph 25, it can be used as a preservative.
Response to Arguments
Applicant's arguments filed 15 September 2025 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to claim 1 have been considered but are moot because the new ground of rejection. Applicant argues that no combination of Zuniga and Hayakawa would give rise to a method of carbonating a beverage in which "reaction of the base salt and the acidic phase in each one of the plurality of containers occurs after the container is sealed so as to result in the beverage inside the container being carbonated to a specific amount of carbonation," as recited in amended Claim 1.
As a result, Selman was brought into the rejection which teaches the carbonation of a sealed container using water based acid on a carbonate or bicarbonate salt. Zuniga teaches the addition of a water based acid to a calcium carbonate slurry and thus, as described in detail in the rejection above, imparts reasoning for obviousness that one with ordinary skill in the art would do such a thing on the basis of its suitability for a similar intended use.
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.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792