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 .
The claim set filed February 6, 2024 is acknowledged. Claims 1-15 are pending in the application. Claims 8-15 are withdrawn from consideration (see below).
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-7, in the reply filed on June 9, 2026 is acknowledged. The traversal is on the ground(s) that it would not present an undue burden for the Examiner to examine all of the claims together and the Examiner has acknowledged on the record that they fall into the same international classification group.
However, this is not found persuasive. Although the inventions of Group I and Group II fall into the same international classification group, there would be a serious search and examination burden if restriction were not required because different search strategies and search queries would need to be employed. For example, the search strategies for the invention of Group II would include hydrolyzed bovine collagen which is completely different from the search strategies for the invention of Group I which would include hydrolyzed fish collagen. Applicant is reminded that restriction for examination purposes is proper because there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The inventions have acquired a separate status in the art in view of their different classification;
The inventions have acquired a separate status in the art due to their recognized divergent subject matter; and/or
The inventions require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries).
Thus, the requirement is still deemed proper and is therefore made FINAL.
Claims 8-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim.
Claim Objections
Claims 1 and 5-7 are objected to because of the following informalities:
In claim 1 at line 4, it is suggested to delete the extra space after “90.33” and before “%”.
In claim 5 at line 20, it is recommended to replace “but” after “beverage” and before “subsequently” with “that”.
In claim 5 at the end of line 20, it is suggested to replace “other ingredients” after “dissolve” with “to separate components”.
In claim 6 at line 23, it is recommended to remove the colon “:” after “of” and before “a sugar”.
In claim 7 at the end of line 26, it is suggested to remove the colon “:” after “comprises”.
Appropriate correction is required.
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 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. US 20110151059 (hereinafter “Xu”) in view of Hiyama et al. JP 2008194010 (hereinafter “Hiyama”, refer to the corresponding machine translation).
With respect to claim 1, Xu relates to a clear and colored beverage (paragraphs [0013] and [0038]).
Regarding the recitation of about 90.33% w/w purified water; about 0.40 w/w hydrolyzed fish collagen; and at least one additive in claim 1, Xu teaches the beverage comprises from about 80 to about 99.9% by weight of purified water, hydrolyzed collagen, and additional ingredients (paragraphs [0002], [0013], [0015], [0033], [0037]-[0038], and [0058]), and the quantity of purified water in Xu encompasses the presently claimed range. 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).
However, Xu does not expressly disclose the hydrolyzed collagen is hydrolyzed fish collagen in an amount of about 0.40% w/w of the beverage.
Hiyama relates to a beverage comprising water, hydrolyzed collagen, and other ingredients. The collagen is derived from fish, and the beverage comprises 0.1 to 50% of hydrolyzed collagen (paragraphs [0001], [0005], [0009], [0012], [0016], and [0018]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Hiyama, to select hydrolyzed fish collagen as the hydrolyzed collagen in the beverage of Xu based in its suitability for its intended purpose with the expectation of successfully preparing a functional beverage product. One of ordinary skill in the art would have been motivated to do so because Xu and Hiyama similarly teach beverages comprising hydrolyzed collagen, Hiyama teaches the hydrolyzed collagen has excellent nutritional functionality (paragraph [0011]), Xu is not limited to the particular hydrolyzed collagen used and teaches the hydrolyzed collagen may be obtained from any suitable source (paragraph [0017]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range of hydrolyzed fish collagen, including the instantly claimed range, from the range disclosed in the prior art. One of ordinary skill in the art would have been motivated to do so because Xu and Hiyama similarly teach beverages comprising hydrolyzed collagen, Hiyama teaches the beverage comprises 0.1 to 50% of hydrolyzed collagen (paragraph [0018]) and encompasses the presently claimed range, and Xu teaches the beverage formulation composition can vary depending upon its desired nutritional characteristics (paragraphs [0003], [0014], [0015]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
With respect to claim 2, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding the recitation of wherein the hydrolyzed fish collagen is comprised of collagen peptides in claim 2, Xu as modified by Hiyama teaches this limitation since Xu teaches the hydrolyzed collagen comprises peptides (paragraphs [0017]-[0018]) and Hiyama, which is relied upon for the teaching of the hydrolyzed fish collagen as addressed above in claim 1, teaches the hydrolyzed fish collagen is a collagen peptide-containing composition (paragraphs [0001], [0009], [0012], [0016], and [0018]).
With respect to claim 3, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding the recitation of wherein the purified water is selected from the group consisting of tap water, spring or mineral water, iceberg and glacier water in claim 3, modified Xu teaches this limitation since Xu teaches the purified water is mineral water (paragraph [0037]).
With respect to claim 4, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding the recitation of wherein the at least one additive is a stabilizing preservative, and the stabilizing preservative further comprises chemical substances which dissolve in the beverage in claim 4, modified Xu teaches this limitation since Xu teaches the beverage further comprises a preservative such as a chemical preservative that dissolves in the beverage (paragraphs [0035], [0037], and [0051]).
With respect to claim 5, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding wherein the at least one additive is a stabilizing preservative, and the stabilizing preservative further comprises chemically active substances used in the production of the beverage that subsequently dissolve to separate components in claim 5, modified Xu teaches this limitation since Xu teaches the beverage further comprises a preservative such as benzoic acid salts (benzoates), sorbic acid salts (sorbates), citric acid salts (citrates) and/or dimethyl decarbonate which are understood in the art to comprise chemically active substances that separate to other components in water, and the preservative is added to the beverage at any time during production (paragraphs [0035], [0037], and [0051]-[0052]).
With respect to claim 6, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding the recitation of wherein the at least one additive is selected from the group consisting of a sugar, an aroma, an extract, and acid, a concentrate, and a coloring in claim 6, modified Xu teaches this limitation since Xu teaches the beverage comprises additional ingredients such as a sugar, an extract, an acid, and/or coloring (paragraphs [0013], [0015], [0020], [0031], [0033], [0035], [0038], [0042], [0044], [0046], [0049], [0050], and [0054]-[0058]).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. US 20110151059 (hereinafter “Xu”) in view of Hiyama et al. JP 2008194010 (hereinafter “Hiyama”, refer to the corresponding machine translation) as applied to claim 1 above, and in further view of Hargreaves et al. EP 2305046 (hereinafter “Hargreaves”).
With respect to claim 7, modified Xu is relied upon for the teaching of the beverage as addressed above in claim 1.
Regarding the recitation of wherein the at least one additive comprises 3.00% w/w crystalline fructose, 5.50% w/w brown sugar, 0.15% w/w strawberry aroma, 0.05% w/w citrus aroma, 0.15% w/w dry natural green tea extract, 0.14% w/w citric acid, 0.05% w/w sodium citrate, 0.20% w/w strawberry concentrate, and 0.03% w/w chlorophyllin coloring in claim 7, Xu teaches the beverage may comprise about 1% to about 4% of crystalline fructose, about 0.1% to about 20% of brown sugar, dry natural tea extract, 0.1% to 0.55% citric acid, about 0.005% to about 0.06% sodium citrate, berry concentrate, and coloring (paragraphs [0015], [0020], [0031], [0033], [0038], [0044]-[0046], [0054]-[0056], and [0058]). 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).
However, Xu does not expressly disclose the drink comprises 0.15% w/w strawberry aroma and 0.05% w/w citrus aroma. Additionally, Xu does not expressly disclose the dry natural green tea extract is 0.15% w/w dry natural green tea extract, the coloring is 0.03% w/w chlorophyllin coloring, or the berry concentrate is 0.20% w/w strawberry concentrate.
Hargreaves relates to a beverage comprising hydrolyzed collagen, purified water, and other additives. The beverage may also comprise flavorings such as strawberry aromatics, citrus aromatics, and green tea extract. Additionally, the beverage may include about 0.1 wt% to about 95 wt% of strawberry concentrate and about 0.01 to about 6 wt% of chlorophyllin coloring (paragraphs [0015], [0030], [0037]-[0039], [0042], [0079], [0081], [0082], [0120], [0121], [0123], [0126], [0150], [0155], [0156], [0159], and [0175]-[0176]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Hargreaves, to select green tea extract, strawberry concentrate, and chlorophyllin coloring as the dry natural tea extract, berry concentrate, and coloring, respectively, as well to select strawberry aromatics and citrus aromatics in the beverage of Xu based in their suitability for their intended purpose with the expectation of successfully preparing an organoleptically desirable beverage product. One of ordinary skill in the art would have been motivated to do so because Xu and Hargreaves similarly teach beverages comprising hydrolyzed collagen, purified water, tea extracts, berry concentrates, coloring agents, and other additives, Xu teaches providing beverage formulations comprising flavorings and colorants with desirable taste profiles and organoleptic factors (paragraphs [0003], [0014], [0015], [0045], and [0058]), which are a matter of choice and do not provide patentable features over the prior art, and said combination would amount to the use of known elements for their intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges of strawberry concentrate and chlorophyllin coloring, including the instantly claimed ranges, from the ranges disclosed in the prior art. One of ordinary skill in the art would have been motivated to do so because Xu and Hargreaves similarly teach beverages comprising hydrolyzed collagen, purified water, tea extracts, berry concentrates, coloring agents, and other additives, Hargreaves teaches the beverage may comprise about 0.1 wt% to about 95 wt% of strawberry concentrate and about 0.01 to about 6 wt% of chlorophyllin coloring (paragraphs [0120], [0121], [0123], [0126], [0150], [0155], [0156], and [0159]) and encompasses the presently claimed range, and Xu teaches the beverage formulation composition can vary depending upon its desired taste profile and organoleptic factors (paragraphs [0014], [0015], [0045], and [0058]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Further, while Xu as modified by Hargreaves does not expressly disclose the claimed quantities of strawberry aroma, citrus aroma, and green tea extract, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the amounts of these components through routine experimentation with the expectation of successfully preparing an organoleptically desirable beverage product. One of ordinary skill in the art would have been motivated to do so because Xu teaches the beverage formulation composition can vary depending upon its desired taste profile, nutritional characteristics, and organoleptic factors (paragraphs [0014], [0015], [0045], and [0058]), which are a matter of choice and do not provide patentable features over the prior art, and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[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) (MPEP 2144.05 II).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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