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 Status
Claims 25 and 26 are new. Claims 1-26 are pending and under examination.
Priority
This application is a national stage entry of PCT/EP2022/065271 filed on 6/3/2022, which claims priority from Belgium application BE2021/5448 filed 6/4/2021.
Information Disclosure Statements
The information disclosure statement filed on 12/04/2023 has been considered by the examiner.
Objections and Rejections Withdrawn
The objection over claim 6 is withdrawn per applicant’s amendment to correct the language.
The objection over claim 22 is withdrawn per applicant’s amendment to correct the language.
The rejections under USC 112(b) over claim 10 is withdrawn per applicant’s amendment to remove the preferably and such as phrase.
The rejection under USC 112(b) over claims 14-17 is withdrawn per applicant’s amendment regarding “is adjusted” and “is added” in claims 14-15 to make them active steps for the method claim.
The rejection under USC 112(b) over claim 16 is withdrawn per applicant’s amendment regarding “dissolved” and “added” to provide a claim with active steps.
The rejection under USC 112(b) over claim 17 is withdrawn per applicant’s amendment to correct the issue of lack of antecedent basis.
The rejection under USC 112(b) over claim 21 is withdrawn for applicant amending the claim into a composition.
The rejection under USC 112(b) over claim 23 is withdrawn per applicant’s amendment to correct the issue of lack of antecedent basis.
The rejection under USC 112(b) over claim 24 is withdrawn per applicant’s amendment to correct the issue regarding scars with pain or not.
As these rejections are withdrawn, applicant’s arguments toward the rejections are moot.
Maintained Rejections – Modified to include new claims
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-13 and 18-26 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature. These claims are to a composition with potassium, magnesium, lithium, manganese, and copper mineral salts, silicates and antioxidants that may be naturally occurring in ocean/seawater brine. Although the claims present molar ratios of lithium, magnesium and potassium, concentrations of such elements would be variable within ocean/sea brines under various conditions or in different environments. Claims 18-24 are to intended uses of the composition, but do not impart structural or composition features to the composition. Thus, these claims may also read on ocean/sea water brine which is in a liquid form that could be applied topically since a liquid. Sea Urchin Embryology (Mineral Makeup of Seawater, downloaded November 2025, https://depts.washington.edu/embryology/index.php?id=mineral) teaches that seawater has chloride, sodium, potassium, silicon, magnesium, lithium, copper, and manganese (table). Liu et al (Annual Reviews, 2023, volume 48, pages 371-394) teaches brine that has cations of K, Mg, and Li with salts like Li2CO3, MgCl2, and KCl (introduction and table 1). Liu teaches other major cations of brine being silicon and copper (section 2.2.2 of Liu). The pH of pure water is known as 7 while the ocean, sea or brine is a majority water.
Response to Applicant’s Arguments over the Rejection under USC 101
Applicant argues that the compositions of the claims are not naturally occurring because of the precise molar ratios of lithium, magnesium and potassium of claim 1. Applicant utilizes the cited Urchin embryology reference to indicate it does not show the same ratio. The examiner disagrees. As seawater and brine conditions including salt concentrations may change based on the environment and the elements are present together, one reference alone cannot discount that these ratios do not occur naturally. Note the examiner stated “Although the claims present molar ratios of lithium, magnesium and potassium, concentrations of such elements would be variable within ocean/sea brines under various conditions or in different environments.” Furthermore, the claim still encompasses natural salts and although they are in molar ratios, they remain natural salts whether in or out of water. Applicant argues that the defined ratios provide for inflammatory action, but considering these items are all present in seawater or brine, such activities could result in those natural combinations. Additionally, the molar ratio presented in claim 1 only provides for a proportion of one item to the other based on their molarities, but does not actually dictate a concentration (e.g. does not mean 1 M of lithium is in the composition, but only that it exists in a ratio based on molarities of lithium to magnesium to potassium). Since the efficacy for treating inflammation would also require an effective concentration of the items, the composition in claim 1 does not necessarily provide this effect. If applicant has observed a unique effect of the combination when the items are in certain effective concentrations as well as in the given molar ratio, as they argue regarding table 1 of the specification, then applicant should consider amending the claim to be more in scope with these concentrations of each item along with the molar ratio(s). As of now the salts and ions in addition to items like water, natural silicates and antioxidants in the claims are natural products that occur together in natural sources of water, these natural supplies of water can be capable of the same effects. Applicant may also consider putting the composition into a form with markedly different characteristics from nature. Applicant may consider adding certain additional ingredients or dosage forms that change the structure or compositions from the items as they exist naturally (e.g. addition of items that act on the composition of items such as emulsifiers (to emulsify the composition) or preservatives (component to preserve it for prolonged use); or forms that are formulated like gels or creams for medicinal or veterinary use).
Therefore, the rejection under USC 101 is maintained due to the breadth of applicant’s claims that encompass formulation of natural products with the ratio of lithium, magnesium and potassium that extend to various concentrations (very low to high) as long as the claimed ratio is met. This covers compositions where they would not necessarily have the activities that applicant seems to argue as significantly more.
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 1-5, 7-13 and 18-26 are rejected under 35 U.S.C. 103 as being unpatentable over KR20200109179A (in applicant’s IDS with noted machine translation).
If the prior art teaches a composition with multiple ionic contributors, it will be considered plur-ionic (having plural ions).
KR ‘179 teaches “The mineral water is potassium 0.10 to 0.50 mg/L (2.56 uM to 12.8 uM), sodium 30.0 to 40.0 mg/L, calcium 1.50 to 3.50 mg/L, magnesium 0.01 to 0.05 mg/L (0.411 uM to 2.06 uM), silicon oxide 30 to 60 mg/L, lithium 0.05 to 0.10 mg /L (7.2 uM to 14.4 uM), strontium 0.01~0.05 mg/L, iron 0.01~0.05 mg/L, manganese 0.01~0.05 mg/L, copper 0.01~0.05 mg/L, lead 0.001~0.01 mg/L, zinc 0.01~0.05 mg/L , Aluminum 0.01 ~ 0.05 mg / L, fluorine 0.10 ~ 2.00 mg / L, chlorine ion 5.00 ~ 7.00 mg / L and sulfate ion 0.10 ~ 6.00 mg / L” (claims of KR ‘179 and example 1, table 1). KR ‘179 teaches 1 L of mineral water (English translation of KR ‘179). Example 1 provides for ingredients including KCl, MgSO4, LiCl, Na2SiO3, MnCl2, and CuCl2. KR ‘179 teaches a stabilizer as an ingredient for a pharmaceutical composition (English translation of KR ‘179). KR ‘179 teaches other ingredients like preservative or emulsifying agent (English translation of KR ‘179). KR ‘179 provides ingredients like gelatin, cellulose, gum and starch. KR ‘179 teaches treatment of diabetes (abstract). The molar ratio of Lithium to magnesium to potassium of 7.2-14.4 : 0.411-2.06 : 2.56-12.8 which 1:0.057-0.286:0.356-1.78 (Lithium:magnesium:potassium). This presents overlapping ratio ranges for the molar ratios presented in applicant’s claims (see MPEP 2144.05 – obviousness of overlapping ranges). KR ‘179 provides for maximum concentration without cytotoxicity (example 1). This allows one to consider increasing concentrations when producing new compositions.
One of ordinary skill in the art before the time of filing would have adjusted concentrations of minerals in the formulation of KR ‘179 to produce higher concentration compositions while maintaining no cytotoxicity (example 1 of ‘179). Therefore, there is a reasonable expectation of success in producing compositions having such elements of applicant’s claims and expecting it to be useful as a mineral water product with health benefits in treating metabolic diseases (see abstract of KR ‘179).
Claims 6, 14, and 17 in addition to Claims 1-5, 7-13 and 18-26 are rejected under 35 U.S.C. 103 as being unpatentable over KR20200109179A and Abramowitz US 20020158018.
KR ‘179 teaches the claims as discussed above.
KR ‘179 does not teach a pH, although it is a mineral water product. KR ‘179 does not teach adjusting pH before adding the concentrated minerals or that the concentrated solution of at least one of the minerals is concentrated 100 to 1000 times relative to the final concentration of the composition.
Abramowitz teaches producing improved alkaline water with the resulting water being electrolyzed (abstract). Abramowitz teaches that alkaline water is water with a pH over 7 (paragraph 2). Abramowitz teaches adjusting the pH of water by adding acid, then injecting a concentrated mineral mixture that is adjusted to bring the mineral concentration to the desired level (paragraphs 19-20). Abramowitz teaches added minerals including magnesium, potassium and others (paragraph 20). Abramowitz teaches adding other elements including vitamins like vitamin C (paragraph 21).
One of ordinary skill in the art before the time of filing would have utilized pH values above 7 while also making the formulations by first adjusting the pH of the water and then adding concentrated mineral mixtures by the teachings of Abramowitz when making mineral water compositions of KR ‘179 to obtain improved alkaline water products with minerals and other components (see paragraph 1 of Abramowitz).
Claim 15 in addition to Claims 1-14 and 17-26 is rejected under 35 U.S.C. 103 as being unpatentable over KR20200109179A, Abramowitz US 20020158018 and Smith US20120128792A1.
KR ‘179 and Abramowitz teaches the claims as discussed above.
KR’179 and Abramowitz does not teach heating the water up to at least 50 degrees C for adding the mineral salts.
Smith teaches a trace element solution (abstract). Smith teaches heating a water where water is heated to 70 degrees C (claims 16 and 17 of Smith and paragraph 46). Smith teaches heating water in a plastic container to a temperature of 70 degrees C so that the process can proceed at 60 degrees C (paragraph 69). The pH is taught to be a pH between 6 to 8 (claim 22 of Smith).
One of ordinary skill in the art before the time of filing would have heated the water to above 50 degrees C in the process of making an elemental/mineral composition with the combined teachings of KR ‘179, Abramowitz and Smith as Smith provides for heating water up to 70 degrees C so that the process will occur at 60 degrees C in making an element containing solution. There was a reasonable expectation of success in combining the references to achieve the claimed process and obtaining an element/mineral aqueous composition for use on or in the body.
Claim 16 in addition to Claims 1-14 and 17-26 is rejected under 35 U.S.C. 103 as being unpatentable over KR20200109179A, Abramowitz US 20020158018 and Park WO2011008028A2.
KR ‘179 and Abramowitz teach the claims as discussed above.
KR ‘179 and Abramowitz do not provide for adding a separate silicate salt composition before adjusting the pH.
Park teaches making a functional water product by adding silicate to the water (abstract). Park teaches the silicate is sodium silicate (claims of Park). Park teaches that sodium silicate is added to water to increase zeta potential of the water and to lower surface tension (English translation of Park). Example 2 of Park provides for adding 0.2 ml of sodium silicate (15%) to water in table 1. Park provides that lower surface tension more easily dissolves and removes waste and toxic substances (abstract).
One of ordinary skill in the art before the time of filing would have included sodium silicate to water before pH adjustment as it increases zeta potential of water and decreases surface tension of the composition as this would aid in removing waste and toxic substances. Park provides the sodium silicate can be added as a separate composition to the water before other adjustments. Therefore, there was a reasonable expectation of success in adding a silicate like sodium silicate to the water to lower surface tension and achieve better dissolving and removal of waste and toxic substances from the body.
Response to Applicant’s Arguments over the Rejections under USC 103
Applicant argues that KR ‘179 seeks to produce a synthetic version of natural spring water and that requires particular amounts of each mineral. Thus, applicant is arguing there would be no motivation to adjust amounts. As was indicated in the former rejection over KR ‘179 “The molar ratio of Lithium to magnesium to potassium of 7.2-14.4 : 0.411-2.06 : 2.56-12.8 which 1:0.057-0.286:0.356-1.78”. This is based on concentration ranges of these items presented in KR ‘179. Thus, one of ordinary skill in the art before the time of filing would have worked within such concentration ranges of ions/minerals in the prior art to produce compositions having such molar ratios of applicant’s claims with a reasonable expectation of success (see MPEP 2144.05).
Applicant argues that KR ‘179 cannot provide the synergy of applicant’s formulation. Applicant has not shown that there are non or less effective ratios of all three items when in ratios outside the claimed range. The three formulations provided by applicant in the specification share the same molar ratios of 1:0.22:1.63, but different mmol/kg amounts of ingredients. Again, if one of these combination with the molar ratio while also including particular amounts/amount ranges provides results applicant finds surprising, then applicant might consider importing the concentrations into the claims that along with the ratio provide such results and providing how a criticality of the value/ranges in amounts and ratios is achieved for the data applicant provides.
Applicant argues that KR ‘179 does not describe a selective combination of particular ions as in applicant’s claims. The applicant’s claims use “comprising” as the transition phrase, and thus, are open to all the elements of the prior art. Since KR ‘179 teaches a composition comprising lithium, magnesium and potassium salts, it reads on the claims.
Applicant argues that compositions of KR ‘179 are not shown to cause the effects that applicant has found in their testing. Although applicant shows information regarding ratios in table 1, the claims are not full in scope with this data as they also require concentrations of each together shown to be effective. It is not provided that any concentrations of the items of lower or higher amounts that happen to meet the ratio (proportion) limitation will be capable of effectiveness. Concentrations applicant provided with effectiveness were 1.73 mmol/kg, 5.76 mmol/kg, or 10.37 mmol/kg of Li; 0.38 mmol/kg Mg, 1.26 mmol/kg Mg and 2.27 mmol/kg Mg; and 2.81 mmol/kg K, 9.38 mmol/kg K and 16.88 mmol/kg K. A reasonable concentration range may be used as applicant has support for taking into account compositions of the specification having such molar ratios of the claims. Thus, applicant should consider amending the claim to be in scope with what applicant has found such unexpected results for (MPEP 716.02(d)).
Applicant notes that KR ‘179 encompasses other concentrations of the components. The cited prior art expressly provides a finite number of identified, predictable options for achieving the claimed objective. Where the prior art discloses a limited number of know alternatives, selection of one of those alternatives amounts to routine optimization within the level of one of ordinary skill in the art (see MPEP 2143; MPEP 2144.05 (II) – Obvious to try when a finite number of identified, predictable solutions are found in the prior art). A person of ordinary skill in the art would have been motivated to pursue these known options with a reasonable expectation of success particular when each of the alternatives is taught as suitable for the same purposes (see MPEP 2143 and MPEP 2144.06). The claimed selection, therefore, represents no more than the predictable use of prior art elements according to their established functions, and does not confer patentable distinction (see MPEP 2143; KSR Int’l Co v Teleflex Inc).
Applicant points to examples of KR ‘179 and how they are different in molar ratio, however, all the teachings of the prior art must be considered including non-preferred and alternative embodiments (see MPEP 2123). KR ‘179 provides for ranges of amounts of lithium, magnesium and potassium that would allow such ratios of applicant’s claims.
Applicant argues that KR ‘179 provides that figure 4d indicates Group A minerals do not exhibit a measurable effect on weight loss, and thus, no motivation to use the three items of the claims that are in Group A. It remains that the taught mineral water in the reference has the three items and KR ‘179 provides for their use as well as concentration ranges for them.
Applicant argues that KR ‘179 contains items like calcium that would be seen to negate the effects of magnesium or other elements. Applicant’s claims use “comprising” as a transition phrase and are open to such elements. Applicant’s claims do not exclude such items.
Applicant argues KR ‘179 not having data regarding claimed ratios as well as data providing in applicant’s specification table 1. Applicant provides that table 4 of the specification justifies the limits of the ratios. Although the claim accounts for the ratios, it does not account for the concentrations relating to the ratios that are shown to provide the results. This was discussed earlier in these arguments regarding having the claims be commensurate in scope with the unexpected results.
Applicant argues that there would be no incentive to test all the combinations possible from the prior art in order to find applicant’s claimed composition with a reasonable expectation of success. The examiner disagrees as KR ‘179 provides for a combination that has lithium, magnesium and potassium along with other minerals. KR ‘179 also teaches concentrations of those agents that would produce an overlapping ratio range. Therefore, through optimizing the concentrations of the magnesium, lithium and potassium in the given formulation by teachings of KR ‘179 there is a reasonable expectation of success in achieving a formulation with claimed ratios using the concentration ranges taught by KR ‘179. Thus, KR ‘179’s teaches would allow one of ordinary skill in the art to produce compositions encompassed by applicant’s claims. As provided above, applicant’s claims are not fully commensurate in scope with the findings that provided the results argued as unexpected. The molar ratio alone is not enough as it would extend to ineffective concentrations.
Applicant argues the rejection under USC 103 over KR ‘179 and Abramowitz that pH in claim 6 is not arbitrary, and thus, cannot be motivated. Abramowitz teaches alkaline water products with such minerals that would have pH values over 7, which overlaps with applicant’s claimed pH. KR’179 teaches mineral water compositions. Therefore, there is a reasonable expectation of success in achieving mineral water compositions with such pH values by the combined teachings of the prior art.
Applicant argues that teachings toward a drinkable composition would not relate to applicant’s topical formulation. However, the claims do not provide for a composition with a formulation that only encompasses compositions only for topical application. Claims 21-24 are toward the intended uses of the composition, but do not define structural or composition features that would differentiate them from mineral waters.
Applicant argues that calcium would be present in Abramowitz and this would produce a composition that would not be of the applicant’s invention. The claims still use comprising as the transition phrase, which leaves the claim open, and thus, are open to calcium and other components of the prior art.
Applicant argues that Abramowitz does not teach claim 15, however, it is the combination of KR ‘179, Abramowitz and Smith that teach the limitation of claim 15. Smith teaches trace element solutions and “heating a water where water is heated to 70 degrees C (claims 16 and 17 of Smith and paragraph 46). Smith teaches heating water in a plastic container to a temperature of 70 degrees C so that the process can proceed at 60 degrees C (paragraph 69). The pH is taught to be a pH between 6 to 8 (claim 22 of Smith)”. Thus, the prior art teaches using such a heating step with temperature over 50 degrees C in preparing water with minerals/trace elements. In regards to Smith teaching chelating agents, applicant’s claims use “comprising” as a transition phrase, and thus, the claims are open to other elements of the prior art.
Applicant argues silicates. In regards to composition claims, KR’179 already teaches Na2SiO3 (sodium silicate) for formulations. However, Park is used for the dissolving of a silicon salt in an aqueous solution in preparation of the composition. Abramowitz is included in the rejection over claim 16 to address the adjustment of pH. Note that Park teaches “that sodium silicate is added to water to increase zeta potential of the water and to lower surface tension”. Therefore, the prior art reasonably teaches adding a silicate salt and adjusting pH when formulation such water compositions.
Applicant argues that the motivation to add Park is based on a drinking water formulation while applicant’s claimed invention is meant for topical compositions. The prior art is analogous art in terms of preparation of aqueous solutions. The applicant’s claims are to compositions and a method of making a composition, and not toward a method of treating that involves topical application to a subject.
For these reasons, the rejections under USC 103 are maintained.
Non-Statutory Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 7-13 and 18-26 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-3, 5, 7, 9-11, 17 and 18 of copending Application No. 18/871,069 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because each claim set provides for compositions of mineral salts of lithium, magnesium and potassium in shared molar ratios. ‘069 differs in that it also offers the option of organic salts.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 5 and 6 in addition to Claims 1-4, 7-13 and 18-26 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-3, 5, 7, 9-11, 17 and 18 of copending Application No. 18/871,069 (reference application) in view of Abramowitz US 20020158018. Although the claims at issue are not identical, they are not patentably distinct from each other because each claim set provides for compositions of mineral salts of lithium, magnesium and potassium in shared molar ratios. ‘069 differs in that it also offers the option of organic salts.
‘069 does not teach the pH or at least 50% of water in its formulations.
Abramowitz teaches producing improved alkaline water with the resulting water being electrolyzed (abstract). Abramowitz teaches that alkaline water is water with a pH over 7 (paragraph 2). Abramowitz teaches adjusting the pH of water by adding acid, then injecting a concentrated mineral mixture that is adjusted to bring the mineral concentration to the desired level (paragraphs 19-20). Abramowitz teaches added minerals including magnesium, potassium and others (paragraph 20). Abramowitz teaches adding other elements including vitamins like vitamin C (paragraph 21).
One of ordinary skill in the art before the time of filing would have utilized pH values above 7 while also making the formulations by first adjusting the pH of the water and then adding concentrated mineral mixtures by the teachings of Abramowitz when making mineral water compositions of ‘069 to obtain improved alkaline water products with minerals and other components (see paragraph 1 of Abramowitz). The compositions of Abramowitz are primarily water and water would be seen as an acceptable for a carrier for mineral compositions. Both the claims of ‘069 and Abramowitz are to compositions with minerals for administration to a user.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Applicant’s Arguments over the Rejections under Non-statutory Double Patenting
Applicant argues that the claims of the copending application are amended to be a method of oral or parenteral treatment or prevention of inflammation. However, the applicant’s claims in this application are a composition and the method claims of the copending application provide each of the limitations (lithium, magnesium and potassium salts with same molar ratio) of the composition although in method form. Thus, the claims of copending ‘069 provide for the limitations of the composition which obviates applicant’s composition claims. ‘069 in combination with Abramowitz further obviate the amount of water and pH of claims 5-6 as adjusting the total amount of water and the pH are seen as conventions/obvious modifications in the prior art. Therefore, this rejection is maintained.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 MARK V STEVENS whose telephone number is (571)270-7080. The examiner can normally be reached M-F 9:00 am to 6:00 pm EST.
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/MARK V STEVENS/Primary Examiner, Art Unit 1613
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