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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/21/2026 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 1-11 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, claim 1 recites “a preponderant quantity, altogether greater than 90%, water and extracts of one or more sweetening plants”. It is unclear what is meant by “a preponderant quantity”, and “a preponderant quantity” appears to be a relative term. Additionally, it is noted that a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation a preponderant quantity, and the claim also recites “altogether greater than 90%” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 1, claim 1 recites “in a smaller quantity a juice of one or more fruit that give acidity”. It is unclear what “a smaller quantity” is a smaller quantity than, since the claim does not specify. Additionally, it is unclear if the claim is requiring the juice to give acidity to the basic syrup or if the claim is merely reciting a property of the fruit.
Regarding claim 1, claim 1 recites “and little quantities, not exceeding 0.3% of preservative substances”. It is unclear if the claim is requiring the basic syrup to comprise multiple preservative substances, where each of the preservative substances is present in an amount not exceed 0.3% or if the claim is requiring the basic syrup to comprise multiple preservative substances where the total amount of the multiple preservative substances does not exceed 0.3%. Additionally, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation “little quantities”, and the claim also recites “not exceeding 0.3%” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Additionally, it is noted that “little quantities” is a relative term. The examiner recommends that applicant delete the terms “preponderant quantity” and “smaller quantity” and just rely on the “greater than 90%” and since section i) is greater than 90% section ii) would necessarily have to be present in a smaller quaintly.
Regarding claim 1, claim 1 recites “the concentration of said extracts of one or more sweetening plants in water is at least 63 brix”. It is unclear if the “water” is referring to the water in 4 since the claim does not recite “the concentration of said extracts of one or more sweetening plants in the water is at least 63 brix”.
Regarding claim 1, claim 1 recites “said extracts of one or more sweetening plants are selected so as to obtain a viscosity lower than 450 cP of the basic syrup, when added to it”. It is unclear what “it” is referring to.
Regarding claim 3, claim 3 recites “wherein agave juice is included in said extracts of one or more sweetening plants”. It is unclear if the claim is further limiting the extracts of one or more sweetening plants to be agave juice, or if the claim is requiring agave juice in combination with the extracts of one or more sweetening plants.
Regarding claim 4, claim 4 recites “wherein cane sugar is also included in said extracts of one or more sweetening plants”. It is unclear if the claim is further limiting the extracts of one or more sweetening plants to be cane sugar, or if the claim is requiring cane sugar in combination with the extracts of one or more sweetening plants.
Regarding claim 6, claim 6 recites “such element” in line 4, it is unclear if this is referring to “an element” in line 2, since the claim does not recite “the element”.
Regarding claim 6, claim 6 recites “such element is well immersed in a fluid contained”. It is unclear if the claim is requiring additional fluid other than the basic syrup to be present in the bottle.
Regarding claim 7, claim 7 recites “wherein said aromatic essences are subjected to a double dilution, a first one when they are diluted into the basic syrup, a second one when the flavored syrup, containing the aromatic essences, is diluted into said beverage to be prepared”. It is noted that claim 7 recites “at least one aromatic essence” in line 5. Therefore, it is unclear if by reciting “said aromatic essences” this limitation is requiring more than one aromatic essence of the at least one aromatic essence to be present, because the language is inconsistent.
Regarding claim 8, claim 8 recites “wherein said aromatic essence is a concentrated substance that condense all aromatic potential that can be obtained from a natural substance reduced into a condensed liquid”. It is unclear what is encompassed by this limitation.
Regarding claim 11, claim 11 recites “The basic syrup according to claim 7”. It is noted that claim 7 is directed to “A method for using said basic syrup according to claim 1”, while claim 1 is directed to “A basic syrup”. It is unclear if claim 11 is meant to further limit claim 7 or claim 1.
Regarding claim 11, claim 11 recites “the obtaining”. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 11, claim 11 recites “locations such as bars or kiosks”, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 11, claim 11 recites “when not equipped with a kitchen that complies with certain requirements of standards, have authorizations just for food and drink dispensing.” It is unclear what certain requirements of standards is referring to.
Claims 2, 5, 9-10 are rejected by virtue of their dependence on a rejected base claim.
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.
Claims 1-5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over The Flaming Pot Holder in view of Simple Garden Syrups in view of Huang CN 110050868 (Translation) in view of Hanna Instruments in view of Hersh US 2010/0233327.
Regarding claims 1, 3, 4, The Flaming Pot Holder discloses a basic syrup suitable for making flavored syrups, comprising in a preponderant quantity altogether greater than 90%, water and an extract of a sweetening plant (agave simple syrup) (Pg. 2)
Claims 1 and 4 differs from The Flaming Pot Holder in the recitation that the syrup comprises an additional extract of one or more sweetening plants (cane sugar).
Simple Gardens discloses that simple syrup is commonly made from cane sugar (Pg. 1-2). It would have been obvious to one of ordinary skill in the art to modify the basic syrup (agave simple syrup) of The Flaming Pot Holder to comprise an additional extract of one or more sweetening plants (cane sugar) based on desired taste of the syrup. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A). “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....” (MPEP 2144.06.I)
Claim 1 differs from Modified Flaming Pot Holder in the recitation that the syrup comprises a smaller quantity of juice of one or more fruits that give acidity and little quantities not exceeding 0.3% of preservative substances.
Huang discloses providing a syrup with 0.05-5% of a juice of a fruit that give acidity (fruit juice lemon concentrated juice) (Translation Pg. 3, lines 1-2, 22). Huang discloses providing a preservative in an amount of 0.01-0.1% (Translation Pg. 3, lines 1-2, 22). It would have been obvious to one of ordinary skill in the art to modify Modified Flaming Pot Holder such that the syrup comprises a smaller quantity of juice of one or more fruits that give acidity and little quantities not exceeding 0.3% of preservative substances as taught by Huang in order to add additional flavor and suitably preserve the basic syrup of Flaming Pot Holder.
Claim 1 differs from Modified Flaming Pot Holder in the recitation that the concentration of the extracts of one or more sweetening plants in water is at least 63 brix.
Hanna Instruments discloses that simple syrup commonly has a brix of 63% (Pg. 3), therefore it would have been obvious to one of ordinary skill in the art to modify Modified Flaming Pot Holder that the concentration of the extracts of one or more sweetening plants in water is at least 63 brix.
Claim 1 differs from Modified Flaming Pot Holder in the recitation that the concentration of the extracts of one or more sweetening plants are selected so as to obtain a viscosity lower than 450 cP.
Hersh discloses that suitable viscosities for syrup compositions include 81-1000cP ([0045]). Overlapping the claimed range (MPEP 2144.05). It would have been obvious to one of ordinary skill in the art to modify Modified Flaming Pot Holder such that the concentration of the extracts of one or more sweetening plants are selected so as to obtain a viscosity lower than 450 cP as suggested by Hersh in order to provide the basic syrup with a desirable viscosity.
Regarding claims 2-4, the limitations for claims 2-4 have been addressed above in the rejection for claim 1.
Regarding claim 5, Modified Flaming Pot Holder discloses the syrup supplied in a package for its delivery which comprises a bottle obviously equipped with a reclosable cap obviously suitable to hermetically reclose said bottle and said bottle is designed to act as a shaker, being its capacity larger than the quantity of basic syrup contained, so as said contained basic syrup is capable of being shaken without being poured into another shaking tool (Pg. 4, 2nd bottle picture).
Regarding claim 7, Modified Flaming Pot Holder discloses that simple syrups can be used as a base and that flavors such as natural extracts can be added to create a flavored syrup (Hanna Instruments Pg. 2-3). Modified Flaming Pot Holder discloses that flavored syrups can be added to beverages for flavoring the beverage (Hannah Pg. 2-3). Therefore, it would have been obvious to one ordinary skill in the art to use the basic syrup of Modified Flaming Pot Holder in a method including diluting at least one aromatic essence (natural extract), extracted by natural ingredients, in said basic syrup, thus obtaining a flavored syrup and diluting said flavored syrup in other ingredients for the preparation of a beverage. The aromatic essences are obviously subjected to dilution, a first one when they are diluted into the basic syrup and a second one when the flavored syrup is diluted in the beverage to be prepared.
Regarding claim 11, Modified Flaming Pot Holder obviously discloses wherein obtaining said flavored syrup has been carried out in a location. Regarding the particular location being a bar, since beverages are commonly prepared at bars, it would have been obvious to one of ordinary skill in the modify the method to include obtaining the flavored syrup at a bar.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over The Flaming Pot Holder in view of Simple Garden Syrups in view of Huang CN 110050868 (Translation) in view of Hanna Instruments in view of Hersh US 2010/0233327 in view of Kirsh US 2020/0377269.
Regarding claim 6, claim 6 differs from Modified Flaming Pot Holder in the recitation that the reclosable cap integrates an element which extends deeply towards the inside of the bottle so that, when sad cap closes said bottle, such an element is immersed in the fluid contained.
Kirsh discloses a reclosable cap for a bottle integrates an element which extends deeply towards the inside of the bottle so that, when sad cap closes said bottle, such an element is immersed in the fluid contained (Fig. 5). It would have been obvious to one of ordinary skill in the art to modify Modified Flaming Pot Holder such that the reclosable cap integrates an element which extends deeply towards the inside of the bottle so that, when sad cap closes said bottle, such an element is immersed in the fluid contained as taught by Kirsh in order to allow greater control for the dispensing of the syrup. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over The Flaming Pot Holder in view of Simple Garden Syrups in view of Huang CN 110050868 (Translation) in view of Hanna Instruments in view of Hersh US 2010/0233327 in view of Mishima JP 2006347623 (Translation) in view of in view of McCrory US 4,916672.
Regarding claim 8, Modified Flaming Pot Holder obviously discloses the diluting of the at least one aromatic essence in the basic syrup is made homogenous by mixing. Claim 8 differs from Modified Flaming Pot Holder in the recitation that the method includes mixing by shaking inside a suitably shaped container. Regarding the use of the particular type of extract once it was known to flavor basic syrup with extract, the particular extract one of ordinary skill in the art would choose to employ is seen to be an obvious matter of choice, and taste preference.
Mishima discloses that mixing can be carried out by shaking a container (Pg. 2, line 21). It would have been obvious to one of ordinary skill in the art to modify the method Modified Flaming Pot Holder to includes mixing by shaking inside a suitably shaped container. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness and Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results supports a conclusion of obviousness.
McCrory discloses that the shaker that uses a sealable jar lid thus recognizing that a shaker container should be sealable, and can be resealable and thus it would additionally be obvious to modify the prior art method to include utilizing a shaker as claimed.
Regarding claim 9, Modified Flaming Pot Holder discloses the syrup supplied in a package for its delivery which comprises a bottle obviously equipped with a reclosable cap obviously suitable to hermetically reclose said bottle and said bottle is designed to act as a shaker, being its capacity larger than the quantity of basic syrup contained, so as said contained basic syrup is capable of being shaken without being poured into another shaking tool (Pg. 4, 2nd bottle picture). Modified Flaming Pot Holder discloses adding flavoring components to the bottle the syrup is kept in (The Flaming Pot Holder, Pg. 4-5), and Mishima teaches mixing by shaking in a container, therefore, based on the prior art as whole which teaches shaking in containers and that flavoring ingredients can be placed in the container the syrup is stored in, it would have been obvious to one of ordinary skill in the art to modify the method of Modified Flaming Pot Holder such that the mixing by shaking of said flavored syrup takes place inside said bottle in which the basic syrup is packaged for delivery
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over The Flaming Pot Holder in view of Simple Garden Syrups in view of Huang CN 110050868 (Translation) in view of Hanna Instruments in view of Hersh US 2010/0233327 in view of Kirsh US 2020/0377269 in view of McCrory US 4,916,672.
Regarding claim 10, claim 10 differs from Modified prior art references in the recitation that the product includes the shaker as claimed.
McCrory discloses a shaker which reads on the limitations of claim 10, and it would have been obvious to one of ordinary skill in the art to modify the prior art product to include the shaker taught by McCrory, it has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A)
Response to Arguments
Applicant's arguments filed 10/01/2025 have been fully considered but have not been found persuasive.
In response to Applicants arguments on pgs. 4-7 of the remarks, while Applicants remarks are appreciated, Applicant has not presented any specific arguments against the teachings of the references in the 103 rejection and therefore the rejection is maintained. Additionally, as discussed in the rejection above Modified Flaming Pot Holder discloses that simple syrups can be used as a base and that flavors such as natural extracts can be added to create a flavored syrup (Hanna Instruments Pg. 2-3). Modified Flaming Pot Holder discloses that flavored syrups can be added to beverages for flavoring the beverage (Hannah Pg. 2-3). Therefore, it would have been obvious to one ordinary skill in the art to use the basic syrup of Modified Flaming Pot Holder in a method including diluting at least one aromatic essence (natural extract), extracted by natural ingredients, in said basic syrup, thus obtaining a flavored syrup and diluting said flavored syrup in other ingredients for the preparation of a beverage. The aromatic essences are obviously subjected to dilution, a first one when they are diluted into the basic syrup and a second one when the flavored syrup is diluted in the beverage to be prepared.
The examiner further notes that if applicant is attempting to assert that applicants invention meets a long felt but unmet need/failure of others, then applicants attention is directed to MPEP section 716.04 which sets forth the requirements for establishing long felt but unmet need. If applicant is attempting to establish an unexpected result, their attention is directed to MPEP 716.02.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. RU 2649605 discloses obtaining flavored syrups at a bar (Translation [0004]). US 2007/0148307 discloses a flavored juice syrup may be prepared for packaging and consumption in personal or foodservice/restaurant applications.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ERIK KASHNIKOW can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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