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 .
Election/Restrictions
Applicant's election with traverse of Group I (Claims 1 and 4-6) in the reply filed on 12 January 2026 is acknowledged. The traversal is on the ground(s) that Claim 15 should be examined with Group I because claim 15 is expressly directed to “a process for preparing a beverage including the composition of claim 1” and therefore necessarily incorporates the limitations of claim 1. This is not found persuasive because claim 15 is drawn to a process while Group I is drawn to a composition and therefore they are independent. In addition, the examiner notes that the restriction requirement was based off of lack of unity and not off of US practice. As applicant does not specifically point out any deficiencies with the lack of unity requirement the requirement is maintained.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Fang (CN 107897589 A) in view of Victor et al. (herein referred to as Victor, US 20180333355 A1) Singha et al. (herein referred to as Singha, “Free Radical Scavenging Properties of Skin and Pulp Extracts of Different Grape Cultivars In Vitro and Attenuation of H2O2-Induced Oxidative Stress in Liver Tissue Ex Vivo”), and Smith et al. (herein referred to as smith, US 20190183958 A1)
With regard to Claim 1, Fang teaches a juice energy drink and preparation method ([0002]). Fang teaches the product contains 0.1-1 parts of green tea and 0.1-0.3 parts of green tea powder. One with ordinary skill in the art would recognize green tea and green tea powder are derived from Camellia Sinensis leaves. The product contains 0.08-0.12 parts of grape skin red powder. The product contains 10-40 parts of blueberry concentrated juice (flavoring agent), 10-55 parts of apple concentrated juice (herbs and fruit), 0.01-0.02 parts of sucralose (sweetener), and 0.2-0.3 parts of potassium sorbate (preservative) ([0008]). With regard to the composition ranges, see MPEP 2144.05(II)(A) "[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
However, Fang is silent to the composition comprising spices.
Victor teaches an enhanced green tea based product for oral use (abstract). Victor teaches the composition comprises cinnamon as a natural flavorant ([0019]). Wherein the flavorant is present in an amount of 0.5wt % to 50wt % ([0172]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976);
Therefore it would have been obvious to one with ordinary skill in the art to modify Fang to include cinnamon in the amount taught by Victor to impart the composition with flavor and more specifically the desired cinnamon flavor.
Fang is silent to the moisture content of the Camellia Sinesis leaves.
Victor teaches the tea leaves can be moistened by water, oil or other means external to the leaf and/or have an internal water content in a range of from 1 wt % up to 75 wt % ([0103]). One with ordinary skill in the art would recognize that “internal water content” is the same as moisture content. See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); Victor teaches the compositions mouthfeel is directly related to the water content and water activity ([0167]). Victor teaches the water of the tea composition can be the naturally occurring moisture of the constituents of the tea composition. In another embodiment, the water can be a concentration of water which is retained in dried or desiccated constituents of the tea composition ([0038]).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Fang to include tea leaves with a moisture content in a range of from 1 wt % up to 75 wt % as taught by Victor to achieve a desired mouthfeel of the composition.
Fang teaches the product contains 0.08-0.12 parts of grape skin red powder, which one with ordinary skill in the art would recognize is vitis skins, but is silent to the vitis skin being from the group consisting of concord, flame seedless, Dominga, Red Globe, Crimson, Black Muscat, Centennial, Thompson seedless, Autumn Royal, Tempranillo, Glenora, Marquis, Koshu, or Kyoho.
Singha evaluated the phytochemical contents, scavenging activities and protective role against H2O2-induced oxidative stress in of four grape (Vitis vinifera) cultivars extracts, namely Flame seedless (black), Kishmish chorni (black with reddish brown), Red globe (red) and Thompson seedless mutant (green) (abstract). Singha teaches grapes are one of the most popular, widely cultivated, and consumed fruits in the world and are rich in phytochemicals, such as sugars, organic acids, mineral salts, vitamins and enzymes. These phytochemicals are responsible for nutraceutical and health benefits (Introduction, page 306). Singha teaches but among the grape skin of different cultivars, Flame seedless (black) cultivar showed highest concentration of protein, ascorbic acid, polyphenols and flavonoid (Results, page 307).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Fang to use Flame seedless grape skin as taught by Singha because of the high concentration of protein, ascorbic acid, polyphenols and flavonoids which are responsible for nutraceutical and health benefits.
Lastly, the combination of Fang and Singha are silent to the moisture content in the vitis skin.
Smith teaches powder grape extracts having elevated phenolic content (abstract). Smith teaches the extracts can be made from grape seeds, grape skins, or a combination thereof (abstract). Smith teaches the methods of manufacturing described include steps to preserve the phenolic compound content of the extracts (both powder and liquid) and minimize insoluble content ([0086]). Smith teaches the resultant powder extract may have a residual moisture content of about 3.0-3.4% ([0129]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976);
It would have been obvious to modify the combination of Fang and Singha to utilize the vitis skin powder taught by Smith because the powder advantageously preserves the phenolic content of the vitis skin and minimizes insoluble content.
In addition, Smith imparts reasoning for obviousness because the teaching shows that the claimed moisture content of the vitis skins was known to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select the claimed moisture content of the vitis skins because it would have been obvious to one with ordinary 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.
With regard to Claims 4, Fang is silent to wherein the dried Camellia Sinesis leaves comprised a blend of black tea and white tea.
Victor teaches the tea composition can have material from any one or more of Camellia sinensis (e.g. including tea, green tea, white tea, yellow tea, oolong, black tea), material from Camellia sinensis var. sinensis and material from Camellia sinensis var. assamica. ([0073]). Victor teaches the tea composition can have 5 wt % to 95 wt % of a plant material harvested from one or more of Camellia sinensis, yerba mate, and peppermint; ([0078]).
Victor shows that white and black tea can be utilized interchangeably and in conjunction with green tea for the same application. See MPEP 2144.06 discusses combining or substituting equivalents known for the same purpose. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.
Therefore, 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 composition taught by Fang to substitute black and white tea as taught by Victor for green tea because they are known to be equivalents when making tea compositions.
With regard to Claims 5 and 6, Fang is silent to wherein the dried Camellia Sinesis leaves comprised a blend of black tea, white tea, and/or green tea. The examiner would like to note that Fang teaches utilizing green tea but in amount lower than taught in the instant claims. However, Fang teaches The above description is only a specific embodiment of the present invention, but the scope of protection of the present invention is not limited thereto. Any changes or substitutions that can be easily conceived by any technician familiar with the technology in this field within the technical scope disclosed in the present invention should be covered by the scope of protection of the present invention (Fang, [0071])
Victor teaches the tea composition can have material from any one or more of Camellia sinensis (e.g. including tea, green tea, white tea, yellow tea, oolong, black tea), material from Camellia sinensis var. sinensis and material from Camellia sinensis var. assamica. ([0073]). Victor teaches the tea composition can have 5 wt % to 95 wt % of a plant material harvested from one or more of Camellia sinensis, yerba mate, and peppermint; ([0078]). Victor teaches the health benefits of the green tea compositions can include, but are not limited to, weight loss, diabetes, heart disease, esophageal cancer, cholesterol, Alzheimer's, Parkinson's, tooth decay, blood pressure, depression, skin care, malodorous breath, provides antioxidants, caffeine, increased metabolism, prevent arthritis, minimize allergies, quitting smoking, pleasure in tasting, pleasure in ingesting, pleasure in chewing, pleasure in sucking on, as well as many others ([0008]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Fang to include the combinations of green tea, white tea, and black tea in the amount taught by Victor to impart health benefits such as weight loss, diabetes, heart disease, esophageal cancer, cholesterol, Alzheimer's, Parkinson's, tooth decay, blood pressure, depression, skin care, malodorous breath, provides antioxidants, caffeine, increased metabolism, prevent arthritis, minimize allergies, quitting smoking, pleasure in tasting, pleasure in ingesting, pleasure in chewing, pleasure in sucking on, as well as many others. In addition, the examiner would like to note that Fang teaches utilizing green tea but in amount lower than taught in the instant claims. However, Fang teaches the above description is only a preferred embodiment of the present invention, but the scope of protection of the present invention is not limited thereto. Any changes or substitutions that can be easily conceived by any technician familiar with the technology in this field within the technical scope disclosed in the present invention should be covered by the scope of protection of the present invention (Fang, [0071]). Therefore, it would have been obvious to one with ordinary skill in the art to increase the amount of green tea taught by Fang to impart the health benefits as described above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792