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 .
DETAILED ACTION
Claim 8 was added.
Claims 1-8 are pending in the current application.
Claims 1-4, 7 and 8 are withdrawn from consideration (see discussion, below).
Claims 5 and 6 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 5 and 6 in the reply filed on February 17th 2026 is acknowledged.
Claims 1-4, 7 and 8 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on February 17th 2026.
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 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.
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 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Kudo et al., (JP 2014064488 A).
Regarding claim 5: Kudo discloses a carbonated beverage where 50ppm-1500ppm of glycerol are blended in order to improve, or maintain the good flavor of the beverage (see Kudo abstract; 5th paragraph from the bottom of page 2; 8th paragraph from the bottom of page 3). Since the glycerol content in claim 5 overlaps the glycerol content in Kudo, a prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As to the purpose of the claimed method to suppress foaming of the carbonated beverage: Kudo discloses the purpose of the glycerol is to maintain the good flavor of the beverage, but fails to disclose the suppression of foaming; However, given the fact Kudo discloses of adding the glycerol at similar amount to the claimed method, it is examiner’s position the foaming suppression imparted by the presence of glycerol to the carbonated beverage, would flow naturally from the addition of glycerol to the carbonated beverage to maintain the good flavor, as suggested in the prior art (i.e., Kudo et al.). As set forth in MPEP §2145, the fact that applicant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding claim 6: Kudo discloses a carbonated beverage where 50ppm-1500ppm of glycerol are blended in order to improve, or maintain the good flavor of the beverage (see Kudo abstract; 5th paragraph from the bottom on page 2; 8th paragraph from the bottom of page 3). Moreover, Kudo discloses blending 1ppm-30ppm of bitter substance (i.e., flavoring) into the carbonated beverage (see Kudo bottom paragraph on page 2 to the top paragraph on page 3). While Kudo fails to disclose combining the glycerol and the bitter substance and blending the mixture of the glycerol and bitter substance into the carbonated beverage, adding a mixture of the additives rather than each additive on its own would have been obvious to a skilled artisan as means to save time.
As to the relative contents of the glycerol in the flavoring mixture: Given the fact Kudo discloses blending carbonated beverage with 50ppm-1500ppm glycerol and 1pp-30ppm bitter flavor, a combination of the glycerol and bitter flavor overlaps the claimed glycerol in the flavoring mixture, and thus prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (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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/ASSAF ZILBERING/Examiner, Art Unit 1792
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