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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed April 30, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-7
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
8-20
Amended claims:
None
New claims:
None
Claims currently under consideration:
1-7
Currently rejected claims:
1-7
Allowed claims:
None
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, 2, 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Sinnott (US 4,585,135 A) in view of Farr (US 2006/0201331 A1)(IDS Reference filed 11/29/2022).
Regarding claim 1, Sinnott teaches a screw closure for a bottle (i.e., a container where the opening is sealable with a twist cap) to provide a seal for carbonated beverages giving an internal pressure in excess of external pressure (i.e., pressurized effervescent liquid beverage; col. 1, lines 9-15; Fig. 1, external threading 6).
Sinnott does not teach the base liquid being effervesced with at least one sparingly soluble gas.
However, in the same field of endeavor, Farr teaches an effervescent beverage with a sparingly soluble gas (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Sinnott with the use of a sparingly soluble gas as taught by Farr. One of ordinary skill would have been motivated to make this modification because Farr teaches that the effervescent liquid has a smooth and silky texture when a sparingly soluble gas is used (Abstract).
Regarding claims 2 and 4, Sinnott teaches that the pressure in the bottle is increased to 689 kPa (col. 6, lines 65-66), which falls within the claimed ranges of “less than approximately 690 kPa” (claim 2) and “between approximately 552 to 690 kPa” (claim 4).
Regarding claim 5, Sinnott teaches that the screw closure has an internally threaded skirt (col. 2, lines 20-4).
Regarding claim 6, Sinnott teaches that the beverage is carbonated (i.e., effervesced with carbon dioxide; col. 1, lines 14-15)
Sinnott does not teach wherein the base liquid is effervesced with a mixture of carbon dioxide and the at least one sparingly soluble gas.
However, in the same field of endeavor, Farr teaches using carbon dioxide and oxygen (i.e., a sparingly soluble gas; [0027]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Sinnott with the use of a sparingly soluble gas as taught by Farr. One of ordinary skill would have been motivated to make this modification because Farr teaches that the effervescent liquid has a smooth and silky texture when a sparingly soluble gas is used (Abstract).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Sinnott (US 4,585,135 A) in view of Farr (US 2006/0201331 A1)(IDS Reference filed 11/29/2022) and applied to claim 1 above, and further evidenced by Valve (“Handbook of Valves and Actuators”, Valve Manual International, p. 1-8, published 2007 [accessed online October 20, 2025]).
Regarding claim 3, Sinnott teaches that the internal pressure is in excess of external atmospheric pressure (col. 1, lines 15-16) and that the venting pressure of the cap was in excess of 1379 kPa (col. 8, lines 30-31). Therefore, it logically follows that the pressure within the bottle falls between 101.325 kPa (atmospheric pressure) and 1379 kPa, which encompasses the claimed ranges of “between approximately 344 to 552 kPa”. Evidence to support that atmospheric pressure is 101.325 kPa is provided by Valves. Valves teaches that atmospheric pressure is nominally 101.325 kPa (p. 7, ¶ Atmospheric Pressure).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Sinnott (US 4,585,135 A) in view of Farr (US 2006/0201331 A1) (IDS Reference filed 11/29/2022) and applied to claim 1 above, and further in view of Agro (Agro, Charlsie and Cowley, Jenny, “Marketplace tested Perrier, LaCroix, Bubly sparkling waters to see which is most acidic”, CBC, published November 14, 2021 [accessed online October 20, 2025]).
Regarding claim 7, Sinnott teaches that the beverage is carbonated (i.e., effervesced with carbon dioxide; col. 1, lines 14-15)
Sinnott does not teach wherein the base liquid is effervesced with a mixture of carbon dioxide and the at least one sparingly soluble gas and has a pH of approximately 4.0 or great.
Regarding the base liquid being effervesced with a mixture of carbon dioxide and at least one sparingly soluble gas, Farr teaches using carbon dioxide and oxygen (i.e., a sparingly soluble gas; [0027]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Sinnott with the use of a sparingly soluble gas as taught by Farr. One of ordinary skill would have been motivated to make this modification because Farr teaches that the effervescent liquid has a smooth and silky texture when a sparingly soluble gas is used (Abstract).
Regarding the pH of the beverage, Agro teaches the acidity of sparkling waters (i.e., effervescent beverages) where some of the beverages have a pH of 4.06 or greater (p. 3, Table, lines 5-14), which falls in the claimed range of “approximately 4.0 of greater”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the product of Sinnott to have a pH greater than 4 as taught by Agro. One would be motivated to make this modification because Agro teaches that pH levels below 4 can start to wear down the enamel on teeth (p. 3, ¶ 2).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 2, and 4-6 over Sinnott and Farr: Applicant’s arguments filed April 30, 2026 have been fully considered but they are not persuasive. Furthermore, the declaration under 37 CFR §1.132 filed April 30, 2026 (hereinafter “Declaration”) is insufficient to overcome the rejection of the claims based upon Sinnott and Farr as set forth in the office action.
MPEP §716.01(c)(III) states “In assessing the probative value of an expert opinion, the examiner must consider:
The nature of the matter sought to be established,
The strength of any opposing evidence,
The interest of the expert in the outcome of the case, and
The presence or absence of factual support for the expert’s opinion.”
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986).
The Declaration seeks to establish that the combination of Sinnott and Farr would not be enabled to reproduce the product of claim 1 (Remarks, p. 4, ¶ 4; Disclosure, p. 1, ¶ 4- p. 2, ¶ 2).
Regarding the strength of the opposing evidence, Applicant performed experiments evaluating whether nitrous oxide can fully replace carbon dioxide as the sole gas used to create sustained effervescence in a bottled beverage. The beverage was conditioned with nitrous oxide at 40[Symbol font/0xB0]F and pressures of 15, 30, and 45 psi. The Applicant obtained the following results:
At 15 psi, the product is packageable but not sparkling;
At 30 psi, the bubble performance improves but packaging becomes unreliable with an approximately 33% failure rate; and
At 45 psi, bubble performance approaches the target, but packaging fails 100% (Declaration, p. 3-5).
At present, the data provided is insufficient to demonstrate a showing of unexpected results. Claim 1 recites that the beverage product is pressurized, but does not specify a pressure that falls within the ranges tested by the applicant. Additionally, claim 1 does not recite a degree to which the base liquid is effervesced with the sparingly soluble gas. The results of the experiment at 15 psi state “barely any visible bubbles” and “drink essentially flat”. Because the data provided does not demonstrate a complete lack of effervescence and the claim does not recite a minimal gas concentration, the data is not commensurate in scope with the claimed invention. Furthermore, it is well known in the art that the temperature of the beverage impacts the solubility of gases. Claim 1 presently does not recite a processing temperature, whereas the experiments were performed only at 40[Symbol font/0xB0]F.
MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
Thus, the strength of the opposing evidence is not sufficient to overcome the rejection of the claims over Sinnott and Farr.
Regarding the interest of the expert in the outcome of the case, the Declaration is submitted by the sole inventor Todd Carmichael, who is considered an interested party in the outcome of the case. An affidavit of an applicant as to the advantages of their claimed invention, while less persuasive than that of a disinterested person, cannot be disregarded for this reason alone. Ex parte Keyes, 214 USPQ 579 (Bd. App. 1982); In re McKenna, 203 F.2d 717, 97 USPQ 348 (CCPA 1953).
Regarding the presence or absence of factual support for the expert’s opinion, it has been found that the statement of lack of enablement for the combination of references is unsupported by the provided evidence. Although the Declaration provides experimental data regarding performance of the combined references, the disclosure fails to remedy the lack of showing of unexpected results. As discussed above, the data provided by the Declaration is not commensurate in scope with the claimed invention.
Applicant argued that the difficulty of the performed experiments is not resolved by the teachings of Sinnott and Farr (Remarks, p. 5, ¶ 2).
This argument has been considered. However, as discussed above, the data provided by the Declaration is insufficient to demonstrate a lack of unexpected results because the data is not commensurate in scope with the claimed invention. Thus, the combination of Sinnott and Farr renders the invention of claim 1 obvious.
Claim Rejections – 35 U.S.C. §103 of claim 3 over Sinnott, Farr, and Valve; claim 7 over Sinnott, Farr, and Agro: Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 1-7 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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 Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 8:00a-4:00p, F 8:00a-1:00p ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
Prosecution Insights