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 .
EXAMINER’S REMARKS
Examiner notes that Claims 23-24 have the status identifier of “(Currently Amended).” It is noted that Claims 23-24 were previously withdrawn as being drawn to a non-elected invention via Election by Original Presentation in the Office Action mailed on July 30, 2025. Claims 23-24 should have had the status identifier of “(Currently Amended – Withdrawn).”
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 6, 2025 has been entered.
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, 5-8, 14-15, 22, and 26 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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “an extract from a mixture of Salvia lavandulifolia, Saliva apiana, and Salvia officinalis and one or more preservatives in lines 5-7). Mazzio et al. US 2010/0209388 discloses Salvia apiana and similar plants inherent to the botanical genus Salvia are types of food preservatives (‘388, Paragraph [0028]). Since Salvia apiana is a type of preservative, it is unclear if “one or more preservatives” refers to a different preservative than Salvia apiana or if “one or more preservatives” encompasses Salvia apiana.
Claim 5 recites the limitation “an extract from a mixture of Salvia lavandulifolia, Saliva apiana, and Salvia officinalis and one or more preservatives in lines 5-6). Mazzio et al. US 2010/0209388 discloses Salvia apiana and similar plants inherent to the botanical genus Salvia are types of food preservatives (‘388, Paragraph [0028]). Since Salvia apiana is a type of preservative, it is unclear if “one or more preservatives” refers to a different preservative than Salvia apiana or if “one or more preservatives” encompasses Salvia apiana.
Claim 14 recites the limitation “a mixture of cut sage strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officianlis” in lines 3-4 as well as the limitation “the one or more preservatives” in line 12. Mazzio et al. US 2010/0209388 discloses Salvia apiana and similar plants inherent to the botanical genus Salvia are types of food preservatives (‘388, Paragraph [0028]). Since Salvia apiana is a type of preservative, it is unclear if “one or more preservatives” refers to a different preservative than Salvia apiana or if “one or more preservatives” encompasses Salvia apiana.
Claim 14 recites the limitation “the one or more preservatives” in line 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 22 recites the limitation “the additive” in line 50. There is insufficient antecedent basis for this limitation in the claim.
Clarification is required.
Claims 6-8, 15, and 26 are rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 5, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over “14 Infused Water Recipes to Keep You Hydrated” <https://web.archive.org/web/20200923162555/https://palm.southbeachdiet.com/infused-water-recipes/> (archived on September 23, 2020) as further evidenced by Baban US 2018/0235270 and Trivedi et al. US 2012/0244085 in view of Mazzio et al. US 2010/0209388 and Ren et al. US 2024/0316135.
Regarding Claim 1, 14 Infused Water Recipes to Keep You Hydrated discloses a beverage consisting of an edible solvent of water, one or two or a few fruits and/or vegetables as desired including lemon, and any herbs desired such as lavender and sage (14 Infused Water Recipes to Keep You Hydrated, Pages 2-5). The embodiment wherein lemon fruit is used in the beverage (14 Infused Water Recipes to Keep You Hydrated, Page 3) reads on the claimed one or more preservatives since Baban provides evidence that it was known in the food and beverage art that lemon juice is a type of natural preservative used in beverages (‘270, Paragraph [0035]).
14 Infused Water Recipes to Keep You Hydrated discloses the beverage being made of any herbs desired such as lavender and sage (14 Infused Water Recipes to Keep You Hydrated, Page 4). Trivedi et al. provides evidence that it was known in the oral composition art (‘085, Paragraph [0015]) that saliva officinalis is known as common sage and S. apiana is known as white sage (‘085, Paragraph [0037]). 14 Infused Water Recipes to Keep You Hydrated discloses an embodiment wherein the herb desired to be used is common sage, i.e. saliva officinalis, and also describes using lavender. However, 14 Infused Water Recipes to Keep You Hydrated is silent regarding the herbs used in the beverage to be Saliva apiana, i.e. white sage and the specific type of lavender used in the beverage to also contain Salvia lavandulifolia.
Mazzio et al. discloses a beverage formulation (‘388, Paragraph [0060]) containing salvia apiana (white sage) herbs (‘388, Paragraphs [0032] and [0047]) wherein the use of salvia apiana (white sage) and similar plants inherent to the botanical genus Salvia is a medicinal agent to treat headaches, pains, indigestion, heart disease, colds, and influenza (‘388, Paragraph [0028]). Ren et al. discloses an orally consumable composition containing a plant extract composition and their use to provide a cognitive benefit (‘135, Paragraph [0002]) wherein the orally consumable composition is a beverage (‘135, Paragraph [0020]) wherein the plant composition is derived from a salvia species of S. offiinalis and/or S. lavandulifolia (‘135, Paragraphs [0047] and [0099]).
14 Infused Water Recipes to Keep You Hydrated discloses the beverage being made of any herbs desired such as lavender and sage (14 Infused Water Recipes to Keep You Hydrated, Page 4). It would have been obvious to one of ordinary skill in the art at the time of the invention to incorporate into the beverage of 14 Infused Water Recipes to Keep You Hydrated that uses any desired herbs such as lavender and sage and specifically incorporate salvia apiana/white sage herbs as taught by Mazzio et al. to impart medicinal properties to the beverage (‘388, Paragraph [0028]) and to also specifically incorporate Salvia lavandulifolia since Ren et al. teaches that lavender of the species Salvia lavandulifolia is a known beverage ingredient. One of ordinary skill in the art would adjust the herbs used in the beverage composition of 14 Infused Water Recipes to Keep You Hydrated based on the particular flavor profile of the infused beverage. Furthermore, the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). The prior art recognizes that all of the claimed ingredients of the mixture of the extract were known ingredients in the food and beverage art suitable for use as beverage ingredients.
Regarding Claim 5, 14 Infused Water Recipes to Keep You Hydrated discloses a beverage consisting of an edible solvent of water, one or two or a few fruits and/or vegetables as desired including lemon, and any herbs desired such as lavender and sage and one or more sweetener (zero calorie sweeteners) (14 Infused Water Recipes to Keep You Hydrated, Pages 2-6). The embodiment wherein lemon fruit is used in the beverage (14 Infused Water Recipes to Keep You Hydrated, Page 3) reads on the claimed one or more preservatives since Baban provides evidence that it was known in the food and beverage art that lemon juice is a type of natural preservative used in beverages (‘270, Paragraph [0035]).
14 Infused Water Recipes to Keep You Hydrated discloses the beverage being made of any herbs desired such as lavender and sage (14 Infused Water Recipes to Keep You Hydrated, Page 4). Trivedi et al. provides evidence that it was known in the oral composition art (‘085, Paragraph [0015]) that saliva officinalis is known as common sage and S. apiana is known as white sage (‘085, Paragraph [0037]). 14 Infused Water Recipes to Keep You Hydrated discloses an embodiment wherein the herb desired to be used is common sage, i.e. saliva officinalis, and also describes using lavender. However, 14 Infused Water Recipes to Keep You Hydrated is silent regarding the herbs used in the beverage to be Saliva apiana, i.e. white sage and the specific type of lavender used in the beverage to also contain Salvia lavandulifolia.
Mazzio et al. discloses a beverage formulation (‘388, Paragraph [0060]) containing salvia apiana (white sage) herbs (‘388, Paragraphs [0032] and [0047]) wherein the use of salvia apiana (white sage) and similar plants inherent to the botanical genus Salvia is a medicinal agent to treat headaches, pains, indigestion, heart disease, colds, and influenza (‘388, Paragraph [0028]). Ren et al. discloses an orally consumable composition containing a plant extract composition and their use to provide a cognitive benefit (‘135, Paragraph [0002]) wherein the orally consumable composition is a beverage (‘135, Paragraph [0020]) wherein the plant composition is derived from a salvia species of S. offiinalis and/or S. lavandulifolia (‘135, Paragraphs [0047] and [0099]).
14 Infused Water Recipes to Keep You Hydrated discloses the beverage being made of any herbs desired such as lavender and sage (14 Infused Water Recipes to Keep You Hydrated, Page 4). It would have been obvious to one of ordinary skill in the art at the time of the invention to incorporate into the beverage of 14 Infused Water Recipes to Keep You Hydrated that uses any desired herbs such as lavender and sage and specifically incorporate salvia apiana/white sage herbs as taught by Mazzio et al. to impart medicinal properties to the beverage (‘388, Paragraph [0028]) and to also specifically incorporate Salvia lavandulifolia since Ren et al. teaches that lavender of the species Salvia lavandulifolia is a known beverage ingredient. One of ordinary skill in the art would adjust the herbs used in the beverage composition of 14 Infused Water Recipes to Keep You Hydrated based on the particular flavor profile of the infused beverage. Furthermore, the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). The prior art recognizes that all of the claimed ingredients of the mixture of the extract were known ingredients in the food and beverage art suitable for use as beverage ingredients.
Regarding Claim 7, 14 Infused Water Recipes to Keep You Hydrated discloses incorporating one or more taste masking agents in the form of raspberry, blueberry, strawberry, grapefruit, and/or lime (14 Infused Water Recipes to Keep You Hydrated, Page 3).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over “14 Infused Water Recipes to Keep You Hydrated” <https://web.archive.org/web/20200923162555/https://palm.southbeachdiet.com/infused-water-recipes/> (archived on September 23, 2020) as further evidenced by Baban US 2018/0235270 and Trivedi et al. US 2012/0244085 in view of Mazzio et al. US 2010/0209388 and Ren et al. US 2024/0316135 as applied to claim 5 above in further view of Baban US 2018/0235270.
Regarding Claim 6, 14 Infused Water Recipes to Keep You Hydrated discloses the beverage containing zero calories sweeteners (14 Infused Water Recipes to Keep You Hydrated, Page 6). Baban discloses a beverage containing a preservative (‘270, Paragraph [0034]) and a sweetener of stevia (‘270, Paragraph [0033]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify beverage of 14 Infused Water Recipes to Keep You Hydrated that incorporates a zero calorie sweetener and incorporate stevia as the zero calorie sweetener into the beverage as taught by Baban since the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Baban discloses that there was known utility in the food and beverage art to utilize stevia as a zero calorie sweetener to sweeten beverages.
Claims 8 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over “14 Infused Water Recipes to Keep You Hydrated” <https://web.archive.org/web/20200923162555/https://palm.southbeachdiet.com/infused-water-recipes/> (archived on September 23, 2020) as further evidenced by Baban US 2018/0235270 and Trivedi et al. US 2012/0244085 in view of Mazzio et al. US 2010/0209388 and Ren et al. US 2024/0316135 as applied to claim 1 or claim 5 above in further view of Levi et al. US 2017/0231996.
Regarding Claims 8 and 26, 14 Infused Water Recipes to Keep You Hydrated discloses lemon fruit is used in the beverage (14 Infused Water Recipes to Keep You Hydrated, Page 3). Baban provides evidence that it was known in the food and beverage art that lemon juice and citric acid are types of natural preservatives used as ingredients in beverages (‘270, Paragraph [0035]). Levi et al. provides evidence that citric acid is present in lemon (‘996, Paragraph [0020]). Therefore, the lemon fruit present in 14 Infused Water Recipes to Keep You Hydrated necessarily contains citric acid preservatives as evidenced by Baban and Levi et al.
Claims 9-10, 12, 14-15, and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over McKinney “How to Brew Herbal Tea” <https://champagne-tastes.com/herbal-tea-a-guide/> (published October 3, 2020) (herein referred to as “McKinney”) as further evidenced by Latson et al. US 2018/0343899 in view of Bawden-Davis “Growing and Brewing Your Own Tea” <https://web.archive.org/web/20170421021549/http://www.gardentech.com/blog/gardening-and-healthy-living/growing-and-brewing-your-own-tea> (archived on April 21, 2017) (herein referred to as “Bawden-Davis”) as further evidenced by Trivedi et al. US 2012/0244085 in further view of Mazzio et al. US 2010/0209388 and Ren et al. US 2024/0316135.
Regarding Claim 9, McKinney discloses a beverage (herbal tea/tisane) (McKinney, Page 4) made from a process of adding boiling edible solvent in the form of boiling water and a mixture of an herbal blend (McKinney, Page 8) containing herbs and fruit (McKinney, Page 17). The mixture of herbal blend is steeped in the edible solvent of boiling water to product an extract (McKinney, Page 8) and also discloses adding one or more sweeteners (McKinney, Pages 15-16). McKinney also discloses adding fruit such as cranberry tea (McKinney, Page 17). Latson et al. provides evidence that it was known in the food and beverage art that cranberries are natural preservatives (‘899, Paragraph [0012]). McKinney also discloses adding the boiling edible solvent of water and the herbal strains to a container (infuser teapot) (McKinney, Page 16).
McKinney discloses you can mix your own herbal blends (McKinney, Page 10). However, McKinney is silent regarding the herbal blend being made from a mixture of cut sage strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officianlis.
Bawden-Davis discloses a tisane/herbal tea made from herbs tended to in a garden and are calorie free when no sweeteners are added wherein herbal teas consist of herbs steeped in hot water to release flavor (Bawden-Davis, Page 2) wherein tea herbs are regularly trimmed back which pruning allows the herbs to grow wherein just about any herb can be used to make tea (Bawden-Davis, Pages 2-3) such as lavender which has a distinct floral taste to tea and contains oils having a soothing effect on insomnia (Bawden-Davis, Page 4) or sage (Bawden-Davis, Page 5) wherein herbs are harvested by cutting leaves, flowers, and seeds for tea wherein 2-3 tablespoons of fresh herbs or 1-2 tablespoons of dried herbs are used for every cup of tea and herbs, flowers, and seeds have boiling water poured over them which mixture is steeped for at least five minutes until the tea tastes like the herbs and the herbs removed from the tea and honey, sugar, or a sugar substitute is added wherein tea can be made from one herb or a blend of several herbs for a more stimulating taste sensation wherein a variety of herb combinations are used until you find your own favorite blend (Bawden-Davis, Page 5). Trivedi et al. provides evidence that it was known in the oral composition art (‘085, Paragraph [0015]) that saliva officinalis is known as common sage and S. apiana is known as white sage (‘085, Paragraph [0037]). Bawden-Davis discloses an embodiment wherein the herb desired to be used is sage, i.e. saliva officinalis (Bawden-Davis, Page 5), and also describes an embodiment using lavender Bawden-Davis, Page 4). Mazzio et al. discloses a beverage formulation (‘388, Paragraph [0060]) containing salvia apiana (white sage) herbs (‘388, Paragraphs [0032] and [0047]) wherein the use of salvia apiana (white sage) and similar plants inherent to the botanical genus Salvia is a medicinal agent to treat headaches, pains, indigestion, heart disease, colds, and influenza (‘388, Paragraph [0028]). Ren et al. discloses an orally consumable composition containing a plant extract composition and their use to provide a cognitive benefit (‘135, Paragraph [0002]) wherein the orally consumable composition is a beverage (‘135, Paragraph [0020]) wherein the plant composition is derived from a salvia species of S. offiinalis and/or S. lavandulifolia (‘135, Paragraphs [0047] and [0099]).
McKinney and Bawden-Davis are both directed towards the same field of endeavor of herbal tea/tisane beverages. McKinney and Bawden-Davis both also disclose using any mixture of herbal blends as desired. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the tisane/herbal tea beverage of McKinney and specifically incorporate salvia apiana/white sage herbs as taught by Mazzio et al. to impart medicinal properties to the beverage (‘388, Paragraph [0028]) and to also specifically incorporate Salvia lavandulifolia since Ren et al. teaches that lavender of the species Salvia lavandulifolia is a known beverage ingredient. One of ordinary skill in the art would adjust the herbs used in the beverage composition of 14 Infused Water Recipes to Keep You Hydrated based on the particular flavor profile of the infused beverage. Furthermore, the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). The prior art recognizes that all of the claimed ingredients of the mixture of the extract were known ingredients in the food and beverage art suitable for use as beverage ingredients. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of McKinney and use cut strains of the Salvia genus of herbs since Bawden-Davis teaches that tea herbs are regularly trimmed back which pruning allows the herbs to grow (Bawden-Davis, Pages 2-3).
Further regarding Claim 9, the limitations “A beverage produced according to a process consisting of adding boiling edible solvent and a mixture of cut sage strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officinalis to a container, steeping the mixture of cut sage strains in the edible solvent to product a first sage extract, and adding one or more preservative to the first sage extract and one or more of the following to the first sage extract, one or more sweetener, one or more taste masking agent, one or more antioxidant, one or more pH modifier, an additive, or a combination thereof” are product by process limitations. Even 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 view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). The claimed beverage product irrespective of the method of production is a beverage containing a mixture of sages strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officianlis mixed within an edible solvent of water and one or more preservatives and one or more of the following of one or more sweetener, one or more taste masking agent, one or more antioxidant, one or more pH modifier, an additive, or a combination thereof. The process steps recite a specific order of mixing the ingredients together. However, the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.). Furthermore, McKinney discloses adding boiling edible solvent in the form of boiling water to the herbs (McKinney, Page 16).
Regarding Claim 10, the limitations “wherein at least one of the mixture of cut sage strains are about 1 mm to about 10 mm, steeping is performed for about 5 minutes to about 30 minutes or a combination thereof” are product by process limitations and as such are rejected for the same reasons regarding product by process limitations enumerated in the rejections of Claim 9 provided above. Nevertheless, McKinney explicitly discloses steeping being performed for about 5 minutes (McKinney, Page 8), which falls within the claimed steeping time of about 5 minutes to about 30 minutes. Where the claimed steeping time ranges encompasses steeping time ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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). Furthermore, differences in the steeping time will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such steeping time is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 12, McKinney discloses there being 8 ounces of water (McKinney, Pages 15-16), which falls within the claimed amount of edible solvent of about 6 ounces to about 10 ounces. Where the claimed amount of edible solvent ranges encompasses the amount of edible solvent ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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). Furthermore, differences in the amount of edible solvent will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such steeping time is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of edible solvent relative to the amount of sage strains based upon the desired strength of the beverage to be made.
Regarding Claim 14, the limitations “A beverage produced according to a process consisting of adding boiling edible solvent and a mixture of cut sage strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officinalis to a container, steeping the mixture of cut sage strains in the edible solvent to produce a first sage extract, adding one or more preservative to the first sage extract and one or more of the following to the first sage extract, one or more sweetener, one or more taste masking agent, one or more antioxidant, one or more pH modifier, an additive, or a combination thereof” are product by process limitations. Even 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 view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). The claimed beverage product irrespective of the method of production is a beverage containing a mixture of sages strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officianlis mixed within an edible solvent of water and one or more preservatives and one or more of the following of one or more sweetener, one or more taste masking agent, one or more antioxidant, one or more pH modifier, an additive, or a combination thereof. The process steps recite a specific order of mixing the ingredients together. However, the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.).
Further regarding Claim 14, McKinney discloses a beverage (herbal tea/tisane) (McKinney, Page 4) made from a process of adding boiling edible solvent in the form of boiling water and a mixture of an herbal blend (McKinney, Page 8) containing herbs and fruit (McKinney, Page 17). The mixture of herbal blend is steeped in the edible solvent of boiling water to product an extract (McKinney, Page 8) and also discloses adding one or more sweeteners (McKinney, Pages 15-16). McKinney also discloses adding fruit such as cranberry tea (McKinney, Page 17). Latson et al. provides evidence that it was known in the food and beverage art that cranberries are natural preservatives (‘899, Paragraph [0012]). McKinney also discloses adding the boiling edible solvent of water and the herbal strains to a container (infuser teapot) (McKinney, Page 16).
McKinney discloses you can mix your own herbal blends (McKinney, Page 10). However, McKinney is silent regarding the herbal blend being made from a mixture of cut sage strains consisting of Salvia lavandulifolia, Saliva apiana, and Salvia officianlis.
Bawden-Davis discloses a tisane/herbal tea made from herbs tended to in a garden and are calorie free when no sweeteners are added wherein herbal teas consist of herbs steeped in hot water to release flavor (Bawden-Davis, Page 2) wherein tea herbs are regularly trimmed back which pruning allows the herbs to grow wherein just about any herb can be used to make tea (Bawden-Davis, Pages 2-3) such as lavender which has a distinct floral taste to tea and contains oils having a soothing effect on insomnia (Bawden-Davis, Page 4) or sage (Bawden-Davis, Page 5) wherein herbs are harvested by cutting leaves, flowers, and seeds for tea wherein 2-3 tablespoons of fresh herbs or 1-2 tablespoons of dried herbs are used for every cup of tea and herbs, flowers, and seeds have boiling water poured over them which mixture is steeped for at least five minutes until the tea tastes like the herbs and the herbs removed from the tea and honey, sugar, or a sugar substitute is added wherein tea can be made from one herb or a blend of several herbs for a more stimulating taste sensation wherein a variety of herb combinations are used until you find your own favorite blend (Bawden-Davis, Page 5). Trivedi et al. provides evidence that it was known in the oral composition art (‘085, Paragraph [0015]) that saliva officinalis is known as common sage and S. apiana is known as white sage (‘085, Paragraph [0037]). Bawden-Davis discloses an embodiment wherein the herb desired to be used is sage, i.e. saliva officinalis (Bawden-Davis, Page 5), and also describes an embodiment using lavender Bawden-Davis, Page 4). Mazzio et al. discloses a beverage formulation (‘388, Paragraph [0060]) containing salvia apiana (white sage) herbs (‘388, Paragraphs [0032] and [0047]) wherein the use of salvia apiana (white sage) and similar plants inherent to the botanical genus Salvia is a medicinal agent to treat headaches, pains, indigestion, heart disease, colds, and influenza (‘388, Paragraph [0028]). Ren et al. discloses an orally consumable composition containing a plant extract composition and their use to provide a cognitive benefit (‘135, Paragraph [0002]) wherein the orally consumable composition is a beverage (‘135, Paragraph [0020]) wherein the plant composition is derived from a salvia species of S. offiinalis and/or S. lavandulifolia (‘135, Paragraphs [0047] and [0099]).
McKinney and Bawden-Davis are both directed towards the same field of endeavor of herbal tea/tisane beverages. McKinney and Bawden-Davis both also disclose using any mixture of herbal blends as desired. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the tisane/herbal tea beverage of McKinney and specifically incorporate salvia apiana/white sage herbs as taught by Mazzio et al. to impart medicinal properties to the beverage (‘388, Paragraph [0028]) and to also specifically incorporate Salvia lavandulifolia since Ren et al. teaches that lavender of the species Salvia lavandulifolia is a known beverage ingredient. One of ordinary skill in the art would adjust the herbs used in the beverage composition of 14 Infused Water Recipes to Keep You Hydrated based on the particular flavor profile of the infused beverage. Furthermore, the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). The prior art recognizes that all of the claimed ingredients of the mixture of the extract were known ingredients in the food and beverage art suitable for use as beverage ingredients. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of McKinney and use cut strains of the Salvia genus of herbs since Bawden-Davis teaches that tea herbs are regularly trimmed back which pruning allows the herbs to grow (Bawden-Davis, Pages 2-3).
Regarding Claim 15, McKinney discloses the one or more preservatives (fruit) being added to the sage extract (McKinney, Page 17). Furthermore, the limitations regarding the order in which the one or more preservatives are being added to the combined sage extract are product by product limitations and as such are rejected for the same reasons regarding product by process limitations enumerated in the rejections of Claim 14 above. The process steps recite a specific order of mixing the ingredients together. However, the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.).
Regarding Claim 17, McKinney discloses the container being a sealable container (infuser teapot) (McKinney, Page 16).
Regarding Claim 18, McKinney discloses the one or more sweetener being added to the first sage extract (McKinney, Pages 15-16).
Claims 19-20 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over McKinney “How to Brew Herbal Tea” <https://champagne-tastes.com/herbal-tea-a-guide/> (published October 3, 2020) (herein referred to as “McKinney”) as further evidenced by Latson et al. US 2018/0343899 in view of Bawden-Davis “Growing and Brewing Your Own Tea” <https://web.archive.org/web/20170421021549/http://www.gardentech.com/blog/gardening-and-healthy-living/growing-and-brewing-your-own-tea> (archived on April 21, 2017) (herein referred to as “Bawden-Davis”) as further evidenced by Trivedi et al. US 2012/0244085 in further view of Mazzio et al. US 2010/0209388 and Ren et al. US 2024/0316135 as applied to claim 9 or claim 18 above in further view of Baban US 2018/0235270.
Regarding Claims 19 and 22, McKinney discloses adding a sweetener of choice (McKinney, Pages 15-16). However, McKinney is silent regarding the sweetener to be a stevia leaf extract.
Baban discloses a beverage containing a preservative (‘270, Paragraph [0034]) and a sweetener of stevia (‘270, Paragraph [0033]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of modified McKinney that incorporates a sweetener of choice and incorporate stevia as the sweetener of choice into the beverage as taught by Baban since the selection of a known material based on its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Baban discloses that there was known utility in the food and beverage art to utilize stevia as a zero calorie sweetener to sweeten beverages.
Regarding Claim 20, McKinney is silent regarding the stevia leaf extract being added in an amount of about 0.1 to about 0.2 ounces per 8 ounces of the first sage extract. However, differences in the amount of stevia added to the sage extract will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of stevia added to the sage extract is critical. Where 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 in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of stevia added based upon the desired sweetness level of the beverage.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Marisa “How to Make Sage Lemonade” <https://marisahome.com/2020/05/01/sage-lemonade/> (published May 1, 2020) discloses a method of making sage lemonade comprising lemon juice, steeped sage, sugar, and water (Marisa, Pages 5-6) and optionally vodka, bourbon, or champagne (Marisa, Page 10).
Thrillist “Sage Water” <https://www.thrillist.com/recipe/sage-water-recipe> (published October 12, 2017) discloses a method of making sage water comprising the steps of boiling water, adding sage leaves, stirring, and steeping for about 10-15 minutes, adding honey, stirring, and cooling (Thrillist, Page 1).
Wright. The First Mess. “Citrus Sage Tonic” <https://thefirstmess.com/2017/05/03/citrus-sage-tonic-recipe/> (published March 5, 2017) discloses a citrus sage tonic comprising sage leaves, agave nectar, grapefruits, lime, lemon, salt, and ice cubes (Wright, Page 14) and a lot of herbs like rosemary, basil, cilantro, or thyme (Wright, Page 15).
Battaglia “Lavender Lemonade Recipe” < https://mindfulmocktail.com/lavender-lemonade/> (published June 20, 2020) discloses a lavender lemonade recipe comprising boiling water, sparkling water, dried lavender, sweetener, and lemon juice (Battaglia, Pages 4-5) wherein the sweetener is stevia, monk fruit, or honey (Battaglia, Pages 5-6).
Julie “Rosemary Lavender Lemonade” <https://www.bunsenburnerbakery.com/rosemary-lavender-lemonade/> (published July 17, 2017) discloses a rosemary lavender lemonade comprising water, sugar, lemons, rosemary or sage or thyme, and lavender (Julie, Page 5) and optionally lemon and optionally alcohol (Julie, Page 9).
Johnson “Refreshing Homemade Lavender Soda Recipe” <https://helloglow.co/refreshing-diy-lavender-soda/> (published April 9, 2021) discloses a lavender soda comprising lemon juice, lavender simple syrup comprising evaporated can juice and dried lavender, and sparkling mineral water (Johnson, Pages 9-10) wherein lemon or lime is added to enhanced the lavender flavor and to add acidity to balance out the syrup (Johnson, Page 7) wherein drinking lavender laced concoctions is a great way to relieve stress and keep the body relaxed (Johnson, Page 3).
NDTV Food Desk “Can Drinking Lemon Water Help Manage Diabetes? Here’s The Answer” <https://www.ndtv.com/food/can-drinking-lemon-water-help-manage-diabetes-heres-the-answer-1951189> (published November 21, 2018) discloses lemon water consisting of water and lemons wherein drinking lemon water prevents spiked blood sugar levels and is low in carbohydrates and calories, keeps you hydrated, and manages diabetes wherein lemon water is a low calorie alternative to sugary and aerated beverages (NDTV, Pages 2-3).
“Sage and Lemon Tea Recipe” <https://web.archive.org/web/20210420031941/https://adventureyogi.com/blog/sage-and-lemon-tea-recipe/> (archived April 20, 2021) discloses a sage and lemon tea comprising fresh sage leaves, lemon slice, lemon juice, cold water and optionally a sweetener such as honey wherein the tea is made by boiling the water, removing from heat, adding the sage leaves, steeping for 3-5 minutes, straining into a cup, squeezing in lemon juice, adding a fresh lemon slice and optionally the sweetener such as agave nectar or honey wherein sage is also known as common sage or garden sage and is a perennial herb native to the Mediterranean region and has healing properties and possess health benefits including managing diabetes, keeping skin healthy, improving digestion, is rich in antioxidants, helps grow and develop bones, boosts cognitive development and the immune system, and helps to reduce inflammation and improves overall health (Sage and Lemon Tea Recipe, Pages 1-2).
Kati “Lavender Lemon Water Recipe” <https://craftingmyhome.com/lavender-lemon-water-recipe/> (published July 1, 2016) discloses a flavored water combination (Kati, Page 3) comprising a lavender lemon water recipe comprising lemon, lavender buds, and cold water (Kati, Pages 16-17) wherein lavender has a rustic taste (Kati, Page 5).
Rosen “Soothing Sage Tea Recipe” < https://paromi.com/blogs/recipes/soothing-sage-tea-recipe-paromi-tea> (published April 13, 2021) discloses a soothing sage tea comprising chamomile lavender tea, water, sage leaves, lemon juice, and honey wherein the sage leaves are steeped (Rosen, Page 1).
Martine “Herb Infused Fruity and Floral Lemonades” <https://petitworldcitizen.com/2015/08/21/herb-infused-fruity-and-floral-lemonades/> (published August 21, 2015) discloses a lemonade comprising an herb infused simple syrup wherein the lemonade comprises can sugar, water, choice of fresh herb such as sage and lavender, lemon juice, water, and optionally lemon slices (Martine, Pages 7-8).
Beth “Fruit Infused Herbal Tea” <https://amealinmind.com/fruit-infused-herbal-tea/> (published July 15, 2019) discloses a fruit infused herbal tea comprising filtered water, fruits, mint leaves, and tea disposed in a tea bag wherein boiling water is poured over the teabags then chilled (Beth, Page 9).
Sponagle “Your Herbal Tea Isn’t Really Tea” <https://www.thekitchn.com/whats-the-difference-between-tea-and-tisane-231011> (published May 9, 2016) discloses herbal teas, also known as tisanes, are not teas, i.e. do not come from the Camelia Sinensis plant, but are infusions made from leaves, bark, roots, berries, seeds, and spices (Sponagle, Page 3) wherein herbal infusions are caffeine free wherein tisanes are made using boiling water to steep the herbal infusion or tisane (Sponagle, Page 4).
Quittner “Tisanes: Easy Teas You Can Grow, with 7 Tips from Emily Erb of Leaves & Flowers” <https://www.gardenista.com/posts/tisanes-easy-teas-can-grow-7-tips-emily-erb/> (published March 1, 2018) discloses tisanes are a catch all term for tea like brews from sources other than Camellia sinesis including herbs and edible flowers (Quittner, Page 2) wherein a broad swarth of botanicals found in home gardens can be used for tisanes such as lavender and culinary herbs such as sage (Quittner, Page 9) wherein home gardeners should experiment with different combinations of herbs and flowers that you grow to see what you like (Quittner, Page 8).
Giles “3 Iced Tisanes to Make at Home with Fresh Herbs” <https://www.seriouseats.com/fresh-herb-tisanes-iced-teas-to-make-at-home> (published September 12, 2020) discloses a tisane is made by infusing fresh herbs in hot water wherein tisanes are consumed for their medicinal benefits and flavorful herbs and allows one to use up any extra herbs you have on hand wherein tisanes are often served hot but can be made iced for warm weather sipping (Giles, Page 1) wherein a particular tisane includes lavender (Giles, Page 3).
Victoria “Tisanes: Fragrant Caffeine-Free Teas” <https://boisdejasmin.com/2013/09/tisanes-fragrant-caffeine-free-teas.html> (published September 26, 2013) discloses tisanes usually refers to a non-caffeinated beverage made by steeping flowers, herbs, or spices in water (Victoria, Page 2) wherein infusions have health benefits in that sage is rich in antioxidants (Victoria, Page 3).
Masterclass “How to Make Tisane: 5 Types of Herbal Tisanes” <https://www.masterclass.com/articles/how-to-make-tisane> (published June 7, 2021) discloses a tisane is an infusion of fragrant herbs, fruit, bark, flowers, or spices that is steeped or simmered in hot water wherein tisanes are a popular alternative to traditional tea that is usually caffeine free (Masterclass, Page 2) wherein fruit tisanes are naturally sweetener, caffeine free blends of fruit, spices, and herbs wherein most fruits can be used as ingredients in a fruit tisane including fruit pieces and fruit leaves and adding lemon citrus rinds add a level of brightness and acidity without addition of juice wherein fruit pieces and herbs are combined to make a homemade tisane infusion and flower tisanes like lavender are commonly used ingredients in flower tisanes (Masterclass, Page 3).
Webber “Crazy for Cranberries Juice” <https://web.archive.org/web/20170510075820/https://www.rebootwithjoe.com/crazy-for-cranberries-juice/> (archived on May 10, 2017) discloses cranberries are good for the heart and are known to help lower bad cholesterol levels and also contain citric acid and other nutrients that can aid in preventing kidney stones and other kidney and bladder problems and are high in antioxidants that will help your body fight off free radicals which contribute to the aging process (Webber, Pages 1-2).
Steiman “Make Your Own Herbal Tea” <https://www.yahoo.com/lifestyle/how-to-make-diy-herbal-tea-anytime-you-want-it-112228484559.html?guccounter=1> (published March 2, 2015) discloses a method of making herbal tea from ingredients you already have in your kitchen wherein any fresh herb, strips of citrus zest, or whole spices are placed into a mug and boiled water is poured and steeped for a few minutes and hone is added is desired wherein a simple tisane is made from a couple strips of lemon zest and you can experiment to make combinations wherein herb/citrus combos work well (Steiman, Pages 1-2).
“Spicy Fridays with Lynn Quire: Pantry Tea with Lavender, Sage, Thyme, and More” <https://loufoodcoop.com/2021/02/12/spicy-fridays-with-lynn-quire-pantry-tea-with-lavender-sage-thyme-and-more/> (published February 12, 2021) discloses a method of making a tea comprising tea blend for making tea wherein the tea comprises 2-3 whole sage leaves, thyme, oregano, and lavender flowers comprising the steps of boiling 8-12 ounces of water wherein the less water the stronger the tea, placing the herbs in a reusable tea bag or tea strainer, steeping the tea for 5-15 minutes wherein the longer you leave the herbs in the water the more stuff that is pulled from the herbs, and adding honey or another sweetener of choice once steeped wherein sage (salvia officinalis) helps soothe digestions, sore throats, and has antiseptic qualities (Spicy Fridays, Pages 1-3).
Zorach “Adding Citric Acid to Teas or Herbal Blends” <https://teacology.wordpress.com/2012/12/07/adding-citric-acid-to-teas-or-herbal-blends/> (published December 7, 2012) discloses herbal tea blends comprising adding citric acid to teas wherein citric acid is a common organic acid that is the main acid that imparts the characteristic sour flavor to citrus fruits like lemon and lime and is a common and safe food additive used to impart a sour flavor to food and drink which citric acid can be isolated from citrus fruits and plays an essential role in all aerobic (oxygen respiring) organisms through the citric acid cycle known as the Krebs cycle (Zorach, Pages 1-2).
Nunes et al. US 2020/0002889 discloses salvia apiana is commonly referred to as white sage (‘889, Paragraph [0083]).
Young et al. US 2013/0344215 discloses a beverage comprising a blend of wholesome and rare ingredients (‘215, Paragraph [0001]) comprising an essential oil of white sage (‘215, Paragraphs [0066]-[0067]).
Trivedi et al. US 2012/0244087 discloses an oral composition comprising at least three extracts (‘087, Paragraph [0021]) comprising lavender, salvia officinalis (common sage) and S. apiana (white sage) wherein extracts from S. officinalis have antibiotic, antifungal, and astringent effects and also an extract derived from the lemon balm plant (‘087, Paragraph [0055]).
Baban US 2020/0329730 discloses lemon juice, lime juice, and/or citric acid are types of natural preservatives suitable for use in a beverage (‘730, Paragraph [0054]).
Liu US 2019/0373939 discloses lemon juice and citric acid are types of natural or synthetic preservatives added to maintain the pH of a food (‘939, Paragraph [0144]).
Lundin US 2019/0159505 disclose lemon is a natural ingredient used in a natural preservative blend to preserve food and provide flavor (‘505, Paragraph [0162]).
Corrin US 2005/0112246 discloses a food product comprising a preservative such as citric acid (i.e. lemon juice) (‘246, Paragraph [0035]).
Ehrman et al. US 2004/0185145 discloses typical natural preservatives in food products are citric acid or lemon juice and conventional artificial preservatives in food products are potassium sorbates, sodium benzoate, and other appropriate preservatives that retard or prevent spoilage of the fruit substance (‘145, Paragraph [0018]).
Nordahl US 5,308,630 discloses lemon juice is used as a natural preservative.
Danforth US 4,167,587 discloses a beverage comprising sodium benzoate as a preservative.
Nijsse et al. US 2020/0323233 discloses lemon juice is a source of citric acid (‘233, Paragraph [0057]).
Reynaud et al. US 2019/0216112 discloses cranberry juice is a natural preservative (‘112, Paragraph [0104]).
Lahteenmaki US 2006/0134299 discloses sage is a type of natural herbal preservative (‘299, Paragraph [0037]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792