DETAILED ACTION
EXAMINER’S REMARKS
Examiner notes the supplemental amendment filed February 24, 2026 is compliant and has been entered herein. Examiner notes that the previously submitted claim amendment filed January 20, 2026 was non-compliant and was not previously entered.
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 .
Claim Objections
Claim 2 is objected to because of the following informalities:
Claim 2 recites the limitation “A method of preparing an aqueous base soft drink cannabis flavored concentrate comprising the steps of” in lines 1-2. It appears the claim should recite “A method of preparing an aqueous base soft drink cannabis flavored concentrate, the method comprising the steps of” in order to directly refer to the term that the transitional phrase “comprising” modifies.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 2 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 2 recites the limitation “adding a quantity of water after the mixing step to create a greater than 4 strength concentrate forming a second mixture” in lines 7-8. There is not adequate written description support at the time of filing for a second mixture to be formed. This limitation constitutes new matter.
Claim 2 recites the limitation “filtering the carbonated concentrate through a 0.2 micron filter using a sterile grade membrane filter to capture last surviving microorganisms after the carbonating step and just prior to packaging” in lines 10-12. There was not adequate written description support at the time of filing for a filtering step or for the filtering step to use a filter having a pore size of 0.2 microns or using a sterile grade membrane filter. This limitation constitutes new matter.
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.
Claim 2 is 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 pre-AIA the applicant regards as the invention.
Claim 2 recites the limitation “adding a quantity of water after the mixing step to create a greater than 4 strength concentrate” in lines 7-8. It is unclear what is meant by the phrase “a greater than 4 strength concentrate.” It is unknown what constitutes a single strength concentrate and what constitutes a “4 strength concentrate” relative to a single strength concentrate.
Claim 2 recites the limitation “filtering the carbonated concentrate through a 0.2 micron filter using a sterile grade membrane filter to capture last surviving microorganisms after the carbonating step and just prior to packaging” in lines 10-12. The term “just prior” is a relative term which renders the claim indefinite. The term “just prior” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what time duration “just” prior encompasses. For purposes of examination Examiner interprets the claim to require the filtering step to occur at any point before the packaging step.
Clarification is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Van Doren Jr. US 4,010,285 in view of Lucas et al. US 2021/0393519 and Kamarei US 2020/0077678.
Regarding Claim 2, Van Doren Jr. discloses a method of preparing an aqueous base soft drink flavored concentrate (‘285, Column 1, lines 16-19 and 57-62). The method comprises the steps of mixing a quantity of concentrated flavoring, a natural or artificial color or artificial flavoring of sodium chloride, sodium gluconate, glucona delta lactone, caffeine, citric acid, and sodium citrate (‘285, Column 4, lines 64-68) (‘285, Column 5, lines 1-11), and an artificial sweetener (‘285, Column 2, lines 39-42). A quantity of water is added after the mixing step to create a greater than 4 strength concentrate forming a second mixture (‘285, Column 2, lines 39-46) (‘285, Column 4, lines 23-37). The second mixture is carbonated to form a carbonated concentrate (‘285, Column 3, lines 32-42). The aqueous base soft drink flavored concentrate is then packaged (‘285, Column 2, lines 32-38). The carbonated soft drink flavored concentrate (‘285m, Column 3, lines 32-42) comprises the natural or artificial color or artificial flavor and flavoring constituents of sodium chloride, sodium gluconate, glucona delta lactone, caffeine, citric acid, and sodium citrate, sodium benzoate (‘285, Column 4, lines 64-68) (‘285, Column 5, lines 1-11), and the artificial sweetener (‘285, Column 2, lines 39-42). The carbon dioxide is in the range of greater than 1 and up to seven volumes of carbon dioxide per volume of concentrate (‘285, Column 4, lines 23-33) and the quantity of concentrated flavoring (‘285, Column 3, lines 64-67).
Van Doren Jr. is silent regarding the aqueous base soft drink flavored concentrate containing cannabis flavoring and filtering the carbonated concentrate through a 0.2 micron filter using a sterile grade membrane filter to capture last surviving microorganisms after the carbonating step and just prior to packaging.
Lucas et al. discloses a cannabinoid syrup infused into a concentrate (‘519, Paragraph [0109]) wherein the cannabinoid syrup can be infused into flavored carbonated beverages (‘519, Paragraph [0107]) wherein the cannabinoid syrup comprises a natural or artificial flavoring (‘519, Paragraph [0097]) wherein the artificial sugar substitute is saccharin (‘519, Paragraphs [0081]-[0082]) and the concentrate is sterilized by a filtering step (‘519, Paragraphs [0044], [0048]-[0049], and [0126]).
Both Van Doren Jr. and Lucas et al. are directed towards the same field of endeavor of flavored concentrate formulations containing saccharin as an artificial sweetener. Van Doren Jr. teaches that a wide variety of drink concentrate formulations may be prepared (‘285, Column 4, lines 42-47). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the flavored concentrate formulations of Van Doren Jr. and incorporate a cannabis flavor into the flavoring concentrate as taught by Lucas et al. based upon the desired flavor for a particular consumer.
Further regarding Claim 2, Lucas et al. discloses the concentrate being sterilized by a filtering step (‘519, Paragraphs [0044], [0048]-[0049], and [0126]). However, Van Doren Jr. modified with Lucas et al. is silent regarding the filtering step occurring by using a 0.2 micron filter using a sterile grade membrane filter to capture last surviving microorganisms after the carbonating step and just prior to packaging.
Kamarei discloses a carbonated soft drink (‘678, Paragraph [0001]) made using a filtering step through a 0.2 micro filter just prior to packaging using a sterile grade membrane filter to capture last surviving microorganisms (‘678, Paragraphs [0107]-[0111]), which reads on the claimed filter size used in the filtering step.
Both modified Van Doren Jr. and Kamarei are directed towards the same field of endeavor of carbonated soft drinks. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the carbonated soft drink of modified Van Doren Jr. et al. and conduct the filtering step using a 0.2 micro filter just prior to packaging using a sterile grade membrane filter to capture last surviving microorganisms as taught by Kamarei (‘678, Paragraphs [0107]-[0111]) since where the claimed pore size of the filter used in the filtering step of processing a carbonated soft drink overlaps pore sizes of filter ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). One of ordinary skill in the art would adjust the pore size of the filter used in the filtering step of modified Van Doren Jr. et al. based upon the desired degree of removal of undesired microorganisms. Kamarei teaches using filters having a variety of pore sizes based upon the size of microorganisms desired to be removed (‘678, Paragraphs [0108]-[0111]) wherein the claimed 0.2 micron filter size is explicitly used to capture the last surviving microorganisms (‘678, Paragraph [0111]).
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that new Claim Objections and new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejection of new Claim 2 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Examiner notes that applicant’s comments on Page 4 of the Remarks does not specifically and distinctly point out the supposed errors of the previous obviousness rejection to Van Doren Jr. modified with Lucas et al. It is noted that the newly present Claim 2 is rejected over Van Doren et al. modified with Lucas et al. and Kamarei.
Conclusion
The prior art made of record and cited on a prior Office Action and not relied upon is considered pertinent to applicant's disclosure.
Alsayar et al. US 2022/0000158 discloses a cannabinoid containing product for human consumption having an improved taste profile (‘158, Paragraph [0002]) made from a filtered crude cannabis extract to remove waxy ballast wherein the filer is a 0.2 micron filter to take out any remaining plant material as well as any bacteria present (‘158, Paragraph [0053]).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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, 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.
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.
/ERICSON M LACHICA/Examiner, Art Unit 1792