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 .
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2003/0211204 (Fields).
Fields discloses beverage concentrates/syrups. Example 11 is a syrup comprising, in percents by weight, water (63.77%), HFCS (a sweetener) (34.6%), gluconic acid (0.58%), citric acid (0.21%), calcium hydroxide (0.18%), phosphoric acid (0.54%), and sodium benzoate (0.09%). Thus, the total acidulant (gluconic, citric, phosphoric) is 1.33wt% of the total composition, and phosphoric acid is 0.54wt% of the total composition, water is 63.77wt% and flavoring (HFCS) is 34.6wt%.
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 (i.e., changing from AIA to pre-AIA ) 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, 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 3 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over US 2003/0211204 (Fields).
Fields discloses an embodiment (Example 4) where the lactic acid is present in an amount of 0.5wt% and phosphoric acid in an amount of 0.25wt%. The amounts of phosphoric acid and lactic acid fall within the ranges of claims 1 and 3. However, the total amount of acid is 0.75wt%. Claim 1 requires the acidulant to be “about 1% to about 20% by weight of the additive” which allows for amounts above and below by use of the term “about”. The instant specification does not provide a specific definition of “about” and 0.75wt% is considered to be “about” 1 wt%. Additionally, 0.75wt% is considered to be so close to “about 1wt%” so as to not provide a patentable distinction therefrom. See MPEP 2144.05 which states in part “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties."). Here, there is no indication that 0.75wt% and “about 1wt%” would have different properties such that a patentable distinction would be present.
Claims 1, 4-11, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0075430 (Ragnarsson) in view of US 2014/0271593 (Bromley) and US 2013/0189399 (Ragnarsson II).
Regarding claims 1 and 7-11, Ragnarsson teaches liquid beverage concentrates with exemplary ranges of 20-70wt% water, 5-30 wt% citric acid, 1-40wt% flavor, 0-20 wt% sucralose (sweetener), 0-5wt% buffer (K-citrate) and malic acid 0-30wt% (Table 15). Ragnarsson provides an example of liquid beverage concentrate (additive) comprising 67.07wt% water, 11.8 wt% citric acid, 3.0 wt% malic acid, 8.2 wt% flavoring, 4.9wt% sucralose and 0.4 wt% monopotassium phosphate (Table 16). The density is 1.09 which is near the density of water and indicates a low viscosity. The pH is 1.88. Each of the values above fall within the ranges claimed. Regarding the monopotassium phosphate, claim 22 is limited to “about” 0.5 wt% to about 10wt%. The exemplary 0.4wt% is considered “about” 0.5wt%. Moreover, Table 17 includes amounts that also fall within the claimed ranges and has a monopotassium phosphate of 2wt%.
Ragnarsson states that the acids used to establish the pH can be any combination of food-grade acid such as malic acid, adipic acid, citric acid, fumaric acid, tartaric acid, phosphoric acid, lactic acid, or any other food grade organic or inorganic acid [0012, 0083]. While the examples primarily use citric and malic acids, Ragnarsson nevertheless clearly discloses the use of other acids and combinations thereof.
Ragnarsson does not give express examples where phosphoric acid is used in the claimed amount of about 0.1-2 wt%. Bromley teaches concentrated formulations [0013] and teaches the use of phosphoric acid and/or citric acid as a pH adjuster to adjust taste [0136] and the pH to about 2-4, which is commensurate with the pH of Ragnarsson. Bromley teaches that the pH adjuster is present in an amount of less than 5wt% and as low as 0.1wt%, preferably 1 wt% [0514-516]. As Ragnarsson teaches that the acids may be selected from phosphoric acid and citric acid (and combinations), it would have been obvious to use phosphoric acid to adjust the pH of the concentrate of Ragnarsson in view of the express teachings of Bromley of the use of phosphoric acid at amounts as low as 0.1wt% of the liquid concentrate. One of ordinary skill would have found it obvious to use lower amounts of a stronger acid, such as phosphoric acid, with a reasonable expectation of successfully adjusting the pH to the desired levels. This is further supported by Ragnarsson II which teaches that a larger quantity of lactic acid would be needed in the concentrate to reduce the pH in the final beverage than a stronger acid, such as phosphoric acid [0022].
Regarding claim 4, the limitation “has a viscosity and/or a specific gravity selected to facilitate rapid mixing of the beverage…”, the material of Ragnarsson as modified by Ragnarsson II is considered to meet this limitation inasmuch as there are no parameters that quantify the limitation “facilitate mixing”. In other words, there are no limitations place on the extent to which such a facilitation of mixing is to occur. The material of Ragnarsson as modified above has the claimed pH and has a low viscosity [0009 discloses less than 500 cP, preferably 1-25 cP] and thus is expected to provide at least some facilitation of mixing under the claimed circumstances.
Regarding claims 5, 6, 16, Ragnarsson teaches the concentrated liquid discussed above but does not expressly disclose the kinematic viscosity or specific gravity. However, the examples of Ragnarsson include all of the materials of the claimed additive (concentrate) including the pH and a density commensurate with that of the instantly disclosed concentrates (see instant paragraph [0032] which states the additive may have a density between 0.85-1.3 g/cm3). The instant specification also recognizes that a lower viscosity is desirable and Ragnarsson teaches viscosity of the liquid concentrate can be less than about 500 cP (0.5 Pa s) and preferably in the range of 1-25 cP (0.001Pa s -0.025 Pa s) [0009]. Such a low viscosity is considered to meet the claimed kinematic viscosity which is the dynamic viscosity divided by the density of the material. Here, given the low density (examples of 1.09 and 1.16 above) and the low viscosity, one of ordinary skill would reasonably expect the material of Ragnarsson to have or overlap with the claimed kinematic viscosity. Moreover, one of ordinary skill would have been motivated to modify the viscosity to provide the desired dispensing flow of the material as disclosed by Ragnarsson [0009]. Still further, as modified with Ragnarsson II above, the use of phosphoric acid is commensurate with the amounts of claim 1, thus there is a reasonable expectation that that the low viscosity material with the same acid and other materials would possess the same properties.
Claims 2, 3, and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0075430 (Ragnarsson) in view of US 2014/0271593 (Bromley) and US 2013/0189399 (Ragnarsson II), as applied to claim 1 above, and further in view of US 2022/0007687 (Gamay) and US 2003/0211204 (Fields).
Regarding claims 2, 3, and 12-15, each of these references teach that a combination of acids may be used to adjust the pH and taste of the concentrate and each reference teaches citric, lactic and phosphoric acid. Ragnarsson states that the acids used to establish the pH can be any combination of food-grade acid such as malic acid, adipic acid, citric acid, fumaric acid, tartaric acid, phosphoric acid, lactic acid, or any other food grade organic or inorganic acid [0012, 0083]. Acid selection can be a function of the desired concentrate pH and desired taste of the diluted ready-to-drink product. Specific examples are given with citric and malic, however, based upon the express teaching that lactic and phosphoric may be used as well as combinations of the acids, it would have been obvious to use lactic acid in a commensurate amount with a reasonably expectation of successfully adjusting the pH to the desired levels.
Further, Ragnarsson II and Bromley recognize lower amounts of phosphoric acid and Ragnarsson II expressly recognizes that less phosphoric acid may be needed to adjust the pH as it is a stronger acid. These teachings indicate that one of ordinary skill in the art would be informed as to how to balance taste and strength of the acids to adjust the amounts used to provide the low pH as well as the desired tastes. Absent a showing of some unexpected results, the specific amounts of citric, lactic and phosphoric acid in combination are considered obvious optimizations that are within the level of ordinary skill as explained above. Thus, one of ordinary skill is reasonably would find it obvious to optimize amounts of the respective acids based upon the level of ordinary skill.
Still further, Gamay further addresses the level of ordinary skill with regard to the taste of acids and combinations of lactic, phosphoric and citric acids. Gamay discloses additives/concentrates with about 8.0% to about 70.0% acid (or acid blend), about 1.0% to about 12.0% buffer, about 1.0% to about 30.0% flavoring, and about 30% to about 80% water to produce a flavored beverage concentrate having a pH of about 1.0 to about 3.5 and, in further embodiments, a pH of about 0.7 to about 2.6 [0070]. Gamay discloses with regard to the acid blend that selection of the acidulant used in various embodiments of the beverage concentrates described herein can provide substantially improved flavor and decreased aftertaste, even when the concentrate is added to water at greater than typical amounts of concentrate. In one aspect, the acid comprises at least 100 percent of lactic acid. In other aspects, citric acid, malic acid, or phosphoric acid singularly or in combination could be added to an acid blend at about 10% to about 55% by weight with lactic acid constituting the remainder of the acid blend [0041]. Thus, Gamay discloses that the acid is present in the additive at 8-70wt%, and the acid blend may comprise 45-90wt% lactic acid and a mixture of 10-55wt% of citric, malic and/or phosphoric acid. These disclosed amounts overlap with the claimed range of 6-15wt% acid and the amounts of citric acid and lactic acid (0.1-10wt%). Moreover, Gamay discloses that citric and phosphoric acids are well known and commonly incorporated in beverage concentrates and used to establish the pH by using any combination of acids [0044, 0045] which is consistent with the disclosure of Bromley. Gamay teaches liquid flavored concentrates and explains that each organic acid has a very different influence on taste when used as an acidulant. For instance, the flavor profiles of acetic and citric acid are sharp, whereas lactic acid has a mild acidic taste as well as a long-lasting flavor profile [0047]. Furthermore, lactic acid has a milder taste than citric or malic. When lactic acid is used, the pH of the concentrate is usually slightly higher than citric or malic acid at the same acid addition level and provides less tart or astringent taste allowing for a much higher incorporation rate of up to about 70% of concentrate composition because lactic acid does not require water for solubilization. Gamay also discloses that lactic acid may be used in combination with “low levels” of one more acids such as phosphoric, citric, and/or malic acid and when coupled with concentrated flavorings, coloring agents and sweeteners, a surprisingly low dosing concentrate with high flavor impact is produced [0056]. Thus, one of ordinary skill would have found it obvious to balance the citric and lactic acids based upon their known effects on taste and balance with the addition of phosphoric acid for pH adjustment.
Regarding the relative amounts of each acid, Fields discloses beverage concentrates that may include a mixture of lactic acid, phosphoric acid and citric acid as well as gluconic acid and that ratios of gluconic, lactic, phosphoric and citric in the acid component can vary depending on the taste profile desired and the limitations on the cost of product manufactured [0088, 0089]. The specific ratios for lactic, phosphoric and citric disclosed by Fields are: lactic to phosphoric 60:40-90:10 (1.5-9); and lactic to citric 30:70-80:20 (0.43-4) [0092-0094]. Taken with Gamay, one of ordinary skill would have found it obvious to provide relative amounts of phosphoric, citric and lactic acid in the ratios suggested by Fields. For example, an acid blend of 1wt% phosphoric acid, 5.5wt% lactic acid and 4.5wt% citric acid would provide 11wt% total acid. In this acid blend, the ratio of lactic to phosphoric is 5.5 and lactic to citric is 1.2. Finally, the amount of lactic in the blend is 50% and is consistent with the suggested amount of lactic acid in the acid blend (45-90% as noted above). Thus, the substituted amount of citric and phosphoric is 50%. Thus, one of ordinary skill would have been appraised by Gamay to provide lactic acid blended with phosphoric and citric acid in the amounts cited by Gamay and to further provide the relative amounts of lactic, phosphoric and citric acids in ratios as suggested by Fields.
Absent a showing of unexpected results, the specific amounts of citric, lactic and phosphoric acid in combination are considered obvious optimizations that are within the level of ordinary skill as explained above.
As discussed above, Ragnarsson, Bromley and Ragnarsson II allude to the balance of taste and lowering pH using acids such as citric, phosphoric and lactic.
Claims 17-23, 25, and 29-30 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0075430 (Ragnarsson) in view of US 2014/0271593 (Bromley) and US 2013/0189399 (Ragnarsson II), as applied to claim 1 above, and further in view of US 2022/0007687 (Gamay) and US 2003/0211204 (Fields).
These references are each discussed above with regard to claims 1, 4-11, and 16. Claim 17 is narrow in a similar manner as to claims 12-15 which are also addressed above. As such, the statements above are equally applicable to claims 17-23, 25 and 29-30 and the statements are repeated herein.
Ragnarsson teaches liquid beverage concentrates with ranges of 20-70wt% water, 5-30 wt% citric acid, 1-40wt% flavor, 0-20 wt% sucralose (sweetener), 0-5wt% buffer (K-citrate) and malic acid 0-30wt% (Table 15). Ragnarsson provides an example of liquid beverage concentrate (additive) comprising 67.07wt% water, 11.8 wt% citric acid, 3.0 wt% malic acid, 8.2 wt% flavoring, 4.9wt% sucralose and 0.4 wt% monopotassium phosphate (Table 16). The density is 1.09 which is near the density of water and indicates a low viscosity. The pH is 1.88. Each of the values above fall within the ranges claimed. Regarding the monopotassium phosphate, claim 22 is limited to “about” 0.5 wt% to about 10wt%. The exemplary 0.4wt% is considered “about” 0.5wt%. Moreover, Table 17 includes amounts that also fall within the claimed ranges and has a monopotassium phosphate of 2wt%.
Ragnarsson states that the acids used to establish the pH can be any combination of food-grade acid such as malic acid, adipic acid, citric acid, fumaric acid, tartaric acid, phosphoric acid, lactic acid, or any other food grade organic or inorganic acid [0012, 0083]. While the examples primarily use citric and malic acids, Ragnarsson nevertheless clearly discloses the use of other acids and combinations thereof.
Ragnarsson does not give express examples where phosphoric acid is used in the claimed amount of about 0.1-2 wt%. Bromley teaches concentrated formulations [0013] and teaches the use of phosphoric acid and/or citric acid as a pH adjuster to adjust taste [0136] and the pH to about 2-4, which is commensurate with the pH of Ragnarsson. Bromley teaches that the pH adjuster is present in an amount of less than 5wt% and as low as 0.1wt%, preferably 1 wt% [0514-516]. As Ragnarsson teaches that the acids may be selected from phosphoric acid and citric acid (and combinations), it would have been obvious to use phosphoric acid to adjust the pH of the concentrate of Ragnarsson in view of the express teachings of Bromley of the use of phosphoric acid at amounts as low as 0.1wt% of the liquid concentrate. One of ordinary skill would have found it obvious to use lower amounts of a stronger acid, such as phosphoric acid, with a reasonable expectation of successfully adjusting the pH to the desired levels. This is further supported by Ragnarsson II which teaches that a larger quantity of lactic acid would be needed in the concentrate to reduce the pH in the final beverage than a stronger acid, such as phosphoric acid [0022].
Regarding the limitations regarding, specific gravity and facilitation of mixing, the material of Ragnarsson as modified by Ragnarsson II is considered to meet this limitation inasmuch as there are no parameters that quantify the limitation “facilitate mixing”. In other words, there are no limitations place on the extent to which such a facilitation of mixing is to occur. The material of Ragnarsson as modified above has the claimed pH and has a low viscosity [0009 discloses less than 500 cP, preferably 1-25 cP] and thus is expected to provide at least some facilitation of mixing under the claimed circumstances.
Regarding viscosity, Ragnarsson teaches the concentrated liquid discussed above but does not expressly disclose the kinematic viscosity or specific gravity. However, the examples of Ragnarsson include all of the materials of the claimed additive (concentrate) including the pH and a density commensurate with that of the instantly disclosed concentrates (see instant paragraph [0032] which states the additive may have a density between 0.85-1.3 g/cm3). The instant specification also recognizes that a lower viscosity is desirable and Ragnarsson teaches viscosity of the liquid concentrate can be less than about 500 cP (0.5 Pa s) and preferably in the range of 1-25 cP (0.001Pa s -0.025 Pa s) [0009]. Such a low viscosity is considered to meet the claimed kinematic viscosity which is the dynamic viscosity divided by the density of the material. Here, given the low density (examples of 1.09 and 1.16 above) and the low viscosity, one of ordinary skill would reasonably expect the material of Ragnarsson to have or overlap with the claimed kinematic viscosity. Moreover, one of ordinary skill would have been motivated to modify the viscosity to provide the desired dispensing flow of the material as disclosed by Ragnarsson [0009]. Still further, as modified with Ragnarsson II above, the use of phosphoric acid is commensurate with the amounts of claim 1, thus there is a reasonable expectation that that the low viscosity material with the same acid and other materials would possess the same properties.
Each of these references teach that a combination of acids may be used to adjust the pH and taste of the concentrate and each reference teaches citric, lactic and phosphoric acid. Ragnarsson states that the acids used to establish the pH can be any combination of food-grade acid such as malic acid, adipic acid, citric acid, fumaric acid, tartaric acid, phosphoric acid, lactic acid, or any other food grade organic or inorganic acid [0012, 0083]. Acid selection can be a function of the desired concentrate pH and desired taste of the diluted ready-to-drink product. Specific examples are given with citric and malic, however, based upon the express teaching that lactic and phosphoric may be used as well as combinations of the acids, it would have been obvious to use lactic acid in a commensurate amount with a reasonably expectation of successfully adjusting the pH to the desired levels.
Further, Ragnarsson II and Bromley recognize lower amounts of phosphoric acid and Ragnarsson II expressly recognizes that less phosphoric acid may be needed to adjust the pH as it is a stronger acid. These teachings indicate that one of ordinary skill in the art would be informed as to how to balance taste and strength of the acids to adjust the amounts used to provide the low pH as well as the desired tastes. Absent a showing of some unexpected results, the specific amounts of citric, lactic and phosphoric acid in combination are considered obvious optimizations that are within the level of ordinary skill as explained above. Thus, one of ordinary skill is reasonably would find it obvious to optimize amounts of the respective acids based upon the level of ordinary skill.
Still further, Gamay further addresses the level of ordinary skill with regard to the taste of acids and combinations of lactic, phosphoric and citric acids. Gamay discloses additives/concentrates with about 8.0% to about 70.0% acid (or acid blend), about 1.0% to about 12.0% buffer, about 1.0% to about 30.0% flavoring, and about 30% to about 80% water to produce a flavored beverage concentrate having a pH of about 1.0 to about 3.5 and, in further embodiments, a pH of about 0.7 to about 2.6 [0070]. Gamay discloses with regard to the acid blend that selection of the acidulant used in various embodiments of the beverage concentrates described herein can provide substantially improved flavor and decreased aftertaste, even when the concentrate is added to water at greater than typical amounts of concentrate. In one aspect, the acid comprises at least 100 percent of lactic acid. In other aspects, citric acid, malic acid, or phosphoric acid singularly or in combination could be added to an acid blend at about 10% to about 55% by weight with lactic acid constituting the remainder of the acid blend [0041]. Thus, Gamay discloses that the acid is present in the additive at 8-70wt%, and the acid blend may comprise 45-90wt% lactic acid and a mixture of 10-55wt% of citric, malic and/or phosphoric acid. These disclosed amounts overlap with the claimed range of 6-15wt% acid and the amounts of citric acid and lactic acid (0.1-10wt%). Moreover, Gamay discloses that citric and phosphoric acids are well known and commonly incorporated in beverage concentrates and used to establish the pH by using any combination of acids [0044, 0045] which is consistent with the disclosure of Bromley. Gamay teaches liquid flavored concentrates and explains that each organic acid has a very different influence on taste when used as an acidulant. For instance, the flavor profiles of acetic and citric acid are sharp, whereas lactic acid has a mild acidic taste as well as a long-lasting flavor profile [0047]. Furthermore, lactic acid has a milder taste than citric or malic. When lactic acid is used, the pH of the concentrate is usually slightly higher than citric or malic acid at the same acid addition level and provides less tart or astringent taste allowing for a much higher incorporation rate of up to about 70% of concentrate composition because lactic acid does not require water for solubilization. Gamay also discloses that lactic acid may be used in combination with “low levels” of one more acids such as phosphoric, citric, and/or malic acid and when coupled with concentrated flavorings, coloring agents and sweeteners, a surprisingly low dosing concentrate with high flavor impact is produced [0056]. Thus, one of ordinary skill would have found it obvious to balance the citric and lactic acids based upon their known effects on taste and balance with the addition of phosphoric acid for pH adjustment.
Regarding the relative amounts of each acid, Fields discloses beverage concentrates that may include a mixture of lactic acid, phosphoric acid and citric acid as well as gluconic acid and that ratios of gluconic, lactic, phosphoric and citric in the acid component can vary depending on the taste profile desired and the limitations on the cost of product manufactured [0088, 0089]. The specific ratios for lactic, phosphoric and citric disclosed by Fields are: lactic to phosphoric 60:40-90:10 (1.5-9); and lactic to citric 30:70-80:20 (0.43-4) [0092-0094]. Taken with Gamay, one of ordinary skill would have found it obvious to provide relative amounts of phosphoric, citric and lactic acid in the ratios suggested by Fields. For example, an acid blend of 1wt% phosphoric acid, 5.5wt% lactic acid and 4.5wt% citric acid would provide 11wt% total acid. In this acid blend, the ratio of lactic to phosphoric is 5.5 and lactic to citric is 1.2. Finally, the amount of lactic in the blend is 50% and is consistent with the suggested amount of lactic acid in the acid blend (45-90% as noted above). Thus, the substituted amount of citric and phosphoric is 50%. Thus, one of ordinary skill would have been appraised by Gamay to provide lactic acid blended with phosphoric and citric acid in the amounts cited by Gamay and to further provide the relative amounts of lactic, phosphoric and citric acids in ratios as suggested by Fields.
Absent a showing of unexpected results, the specific amounts of citric, lactic and phosphoric acid in combination are considered obvious optimizations that are within the level of ordinary skill as explained above.
As discussed above, Ragnarsson, Bromley and Ragnarsson II allude to the balance of taste and lowering pH using acids such as citric, phosphoric and lactic.
Regarding claim 25, the intent of the selection of the amount of the phosphoric acid is not seen to limit the amount selected. The amount of phosphoric acid is limited in claim 17, and the intent of selection of said amount in order to reduce viscosity is seen to be met by the provided range.
Claims 1-23, 25, 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0007687 (Gamay) in view of US 2003/0211204 (Fields).
Regarding claims 1-3, 11, 19 and 28, Gamay discloses beverage additives/concentrates with about 8.0% to about 70.0% acid (or acid blend), about 1.0% to about 12.0% buffer, about 1.0% to about 30.0% flavoring, and about 30% to about 80% water to produce a flavored beverage concentrate having a pH of about 1.0 to about 3.5 and, in further embodiments, a pH of about 0.7 to about 2.6 [0070]. Gamay discloses with regard to the acid blend that selection of the acidulant used in various embodiments of the beverage concentrates described herein can provide substantially improved flavor and decreased aftertaste, even when the concentrate is added to water at greater than typical amounts of concentrate. In one aspect, the acid comprises at least 100 percent of lactic acid. In other aspects, citric acid, malic acid, or phosphoric acid singularly or in combination could be added to an acid blend at about 10% to about 55% by weight with lactic acid constituting the remainder of the acid blend [0041]. Thus, Gamay discloses that the acid is present in the additive at 8-70wt%, and the acid blend may comprise 45-90wt% lactic acid and a mixture of 10-55wt% of citric, malic and/or phosphoric acid. These disclosed amounts overlap with the claimed range of 6-15wt% acid and the amounts of citric acid and lactic acid (0.1-10wt%). Moreover, Gamay discloses that citric and phosphoric acids are well known and commonly incorporated in beverage concentrates and used to establish the pH by using any combination of acids [0044, 0045] which is consistent with the disclosure of Bromley. Gamay teaches liquid flavored concentrates and explains that each organic acid has a very different influence on taste when used as an acidulant. For instance, the flavor profiles of acetic and citric acid are sharp, whereas lactic acid has a mild acidic taste as well as a long-lasting flavor profile [0047]. Furthermore, lactic acid has a milder taste than citric or malic. When lactic acid is used, the pH of the concentrate is usually slightly higher than citric or malic acid at the same acid addition level and provides less tart or astringent taste allowing for a much higher incorporation rate of up to about 70% of concentrate composition because lactic acid does not require water for solubilization. Gamay also discloses that lactic acid may be used in combination with “low levels” of one more acids such as phosphoric, citric, and/or malic acid and when coupled with concentrated flavorings, coloring agents and sweeteners, a surprisingly low dosing concentrate with high flavor impact is produced [0056]. Thus, one of ordinary skill would have found it obvious to balance the citric and lactic acids based upon their known effects on taste and balance with the addition of phosphoric acid for pH adjustment.
Regarding the specific amounts of each acid and claims 2, 3, 12-15, 17, and 29-30, Fields discloses beverage concentrates that may include a mixture of lactic acid, phosphoric acid and citric acid as well as gluconic acid and that ratios of gluconic, lactic, phosphoric and citric in the acid component can vary depending on the taste profile desired and the limitations on the cost of product manufactured [0088, 0089]. The specific ratios for lactic, phosphoric and citric disclosed by Fields are: lactic to phosphoric 60:40-90:10 (1.5-9); and lactic to citric 30:70-80:20 (0.43-4) [0092-0094]. Taken with Gamay, one of ordinary skill would have found it obvious to provide relative amounts of phosphoric, citric and lactic acid in the ratios suggested by Fields. For example, an acid blend of 1wt% phosphoric acid, 5.5wt% lactic acid and 4.5wt% citric acid would provide 11wt% total acid. In this acid blend, the ratio of lactic to phosphoric is 5.5 and lactic to citric is 1.2. Finally, the amount of lactic in the blend is 50% and is consistent with the suggested amount of lactic acid in the acid blend (45-90% as noted above). Thus, the substituted amount of citric and phosphoric is 50%. Thus, one of ordinary skill would have been appraised by Gamay to provide lactic acid blended with phosphoric and citric acid in the amounts cited by Gamay and to further provide the relative amounts of lactic, phosphoric and citric acids in ratios as suggested by Fields.
Absent a showing of unexpected results, the specific amounts of citric, lactic and phosphoric acid in combination are considered obvious optimizations that are within the level of ordinary skill as explained above.
Regarding the claim limitations directed to specific gravity, viscosity, facilitating rapid mixing, and facilitating mixing (claims 4-6, 16, 17-19), Gamay discloses that another interesting discovery is regarding the flowability of the concentrate as viscosity of the concentrate is not a concern since lactic acid is a liquid which enhances dispersibility in water and flowability during processing protocols [0051]. Gamay further discloses that the composition may be used with vending and dispensing machines to add flavor to beverages [0057] and that the concentrate can be used with thermoformed packages, squeeze bottles with silicone valves or dispensing caps, droppers, pumps, dispensing machines known in the art [0065]. Thus, the inclusion of lactic acid improves flowability and the concentrate of Gamay is successfully used in dispensing apparatus. One of ordinary skill would have found it obvious to provide the necessary specific gravity (akin to water) and viscosity (as explained by Gamay) to the concentrate. Moreover, since Gamay expressly discloses flowability and viscosity such that the concentrate may be used in a variety of apparatus, including delivery systems, it appears reasonable to conclude that the concentrate of Gamay is capable of the same usage and has the same viscosity and/or specific gravity necessary for use in a delivery system, thus would meet the broad specific gravity and viscosity limitations as claimed.
Regarding claims 7, 8, 20 and 21, Gamay discloses that in some embodiments, the concentrate includes a sweetener. Useful sweeteners may include, for example, honey, agave syrup, sugar, erythritol, sucralose, aspartame, stevia, saccharine, monatin, luo han guo (monk fruit), neotame, sucrose, Rebaudioside A (often referred to as “Reb A”), fructose, cyclamates such as sodium cyclamate), acesulfame potassium or any other nutritive or non-nutritive sweetener and combinations thereof. In some embodiments, an artificial sweetener is present in the flavored concentrate composition in an amount of about 0.3% to about 5.0% by weight of the concentrate [0064].
Regarding claims 9, 10, 22 and 23, Gamay discloses that the salt buffer is sodium citrate present in an amount of about 4.0% to about 22.0% by weight of the composition and also discloses the salt buffer is potassium citrate present in an amount of about 0.2% to about 5.0% by weight of the composition, and that the buffer may be potassium phosphate (monopotassium phosphate) [0054]. These ranges overlap the claimed range of 0.5-10wt% and provides a prima facie case for obviousness.
Regarding claim 25, the intent of the selection of the amount of the phosphoric acid is not seen to limit the amount selected. The amount of phosphoric acid is limited in claim 17, and the intent of selection of said amount in order to reduce viscosity is seen to be met by the provided range.
Response to Arguments
Applicant’s amendment to claim 17 has overcome the 102 rejection of claims 17, 20-23, 26 and 28. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Gamay in view of Fields. Applicant’s arguments regarding claim 1 and its dependents are not persuasive as explained below.
Regarding Bromley, applicant states that Ragnarsson only uses acidulants in proportions above 5wt% and that Bromley discloses active ingredients or surfactants that do not perform well at higher acidulant proportions. However, both Ragnarsson and Bromley does disclose that the pH can be established by using food grade acids including phosphoric acid and Bromley further discloses that as a pH adjuster, the acid may be added in amounts of 0.1-5wt%. Thus, for the purposes of adjusting pH, Bromley is relied upon to disclose what is known to the ordinary artisan. Regarding the argument that Bromley discloses only up to 5wt% acid whereas Ragnarsson discloses higher amounts, Bromley also discloses antioxidants such as citric acid may be included in amounts of 0.1-3wt% in addition to the pH adjuster [0540-0541]. Moreover, with regard to the acid content comparison, Ragnarsson relies upon the acid content for taste as well as pH, thus the inclusion of higher amounts of acid may be predicated upon taste as opposed to only pH. Further, table 15 is limited to an example of cold filled beverage concentrate and is not seen to limit the entirety of the disclosure of Ragnarsson. Ragnarsson states that acid is provided in an amount predetermined to achieve a pH of no more than about 3 and is also a function of desired taste [0012-0013].
Applicant submitted an affidavit (01/29/2026) which states that using phosphoric acid allowed for less acidulant by weight of the additive would be needed to achieve a desired tart flavor profile. Note that Ragnarsson II teaches that a larger quantity of lactic acid would be needed in the concentrate to reduce the pH in the final beverage than a stronger acid, such as phosphoric acid [0022]. Thus, recognizing that phosphoric acid is a stronger acid and that less is needed to have an effect.
The affidavit notes that taste testing was performed and the additive formulations that were tested included citric acid and lactic acid within the ranges of the instant application and that tasters concluded that the additive with 0.1-2wt% phosphoric acid tasted better and more tart when compared to conventional additive formulations with a higher proportion of acidulant by weight and that this was surprising.
However, no actual data appears to have been provided. The statements above are conclusions based upon data, but the data itself has not been provided. There is no information provided about the comparison additive and its contents, and no data provided regarding the results. Only a broad statement is given that the tasters concluded that the inventive test formulations were better.
Also, the affidavit indicates that the tested inventive example included lactic acid and citric acid in addition to the phosphoric acid. However, instant claim 1 and several of its dependents are not commensurate in scope with an acidulant blend. The affidavit also states that the amounts of citric acid and lactic acid were “within the ranges disclosed in the instant application”. The instant application includes broad ranges and there is no data provided as to what amounts were actually used. There is no indication that the amount of phosphoric acid claimed and the alleged unexpected results associated would apply to any beverage additive within the confines of the broadest scope of the claims (i.e. claim 1 and dependents). The statements are limited to an acid blend and are not directed to any acid or phosphoric acid used alone.
In sum, the information provided in the affidavit lacks any data in support of the statements made, thus, a complete analysis of alleged unexpected results cannot be performed, and the statements made in the affidavit are not commensurate in scope with the instant claims.
Conclusion
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/Primary Examiner, Art Unit 1793