Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Receipt of Remarks/Amendments filed on 05/12/2026 is acknowledged. Claims 7-10 and 12 have been amended. Claims 1-13 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Modified Rejection As Necessitated by the Amendment Filed 05/12/2026
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, 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 1-7 and 12-13 are rejected under 35 U.S.C. 103(a) as being unpatentable over Given, P. (Of record), in view of Ji, G. (Of record).
Given discloses a method for producing a stable beverage preserved with sorbic acid, said method comprising simultaneously diluting a beverage syrup essentially devoid of sorbic acid compound with water and introducing sorbic acid compound into the diluted syrup or the water at a rate that precludes sorbic acid precipitation to form the stable beverage (Abstract; Claim 1).
Regarding Claims 1-4, Given expressly teaches dissolving potassium sorbate in water to form a solution (Examples 1 and 2). Given also teaches that although beverages are preserved essentially with sorbic acid, inclusion of other preservatives are welcome, including sodium hexametaphosphate (SHMP) [0022]. Given teaches other suitable sweeteners for its invention inter alia rebaudioside A and rebaudioside D [0027]. As such the carrier feature in Claims 2-4 are also rendered obvious.
Given does not expressly teach the claimed spray drying feature in Claim 1, but recognizes addition of powder to a beverage solution [0032].
Ji teaches that potassium sorbate has strong germicidal action that extends the shelf time of food while keeping the flavor (p. 2, background, 2nd paragraph). Ji discloses the preparation of potassium sorbate powder by mixing water, sorbic acid, and potassium carbonate, and spray drying the obtained potassium sorbate solution to obtain a powder (Abstract). Hence, one with ordinary skill in the art would have applied the known technique of spray drying to obtain a powder, according to the technique of Ji, comprising sorbate and carrier to add to the syrup of Given. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claim 5, Given relates the typical manufacturing conditions for beverages includes a solution pH of between about 2.5 and about 4 at about 20° C, which renders obvious the claimed pH [0023]-[0024]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding Claims 6-7, Given teaches acids which are suitable for use to include phosphoric acid, citric acid, ascorbic acid etc. [0029].
Regarding Claim 12, Given in view of Ji rendered the preparation of sorbate-carrier powder (vide supra). Given expressly teaches sweetened lemon-lime flavored syrup diluted to make a beverage, and a cola-flavored beverage made with cola-flavored syrup sweetened with high-fructose corn syrup, rendering the sweeteners and flavorants obvious (Examples 1 and 2).
Regarding Claim 13, Given teaches the sweetened lemon-lime flavored syrup to have a sorbate concentration of 1200 ppm, and the cola-flavored syrup to have sorbate concentration of 900 ppm (Examples 1 and 2).
Claims 8-11 are rejected under 35 U.S.C. 103(a) as being unpatentable over Given and in view of Ji, as applied to Claim 1 above, and in further view of Montezinos, D. (Of record).
Regarding Claims 8-10, as mentioned supra, Given teaches SHMP and additional preservatives [0022]. Given discloses that other preservatives are used sparingly; sorbic acid is introduced at a concentration typically below 200 ppm to essentially preclude precipitation in the syrup, and supplemented with other preservative at a concentration that would achieve preservative-effective concentration in the resultant beverage [0022]. However, Given does not expressly teach the claimed ratio SHMP with sorbate.
Montezinos is in the same field and teaches stable flavor emulsions and/or cloud emulsions for beverages comprising from about 0.005 to about 0.015% xanthan gum, from about 100 ppm to about 1000 ppm of a preservative selected from sorbic acid, benzoic acid, alkali metal salts thereof and mixtures thereof, from about 300 ppm to about 3000 ppm of a food grade water soluble polyphosphate, and from about 60 to about 99% by weight of added water (Abstract; Col. 1, lines 11-16). Montezinos discloses potassium sorbate as the most preferred preservative (Col. 7, lines 4-11).
Regarding Claims 8-9, Montezinos gives examples of cloud emulsion and beverage prepared by dissolving sorbate salt in water, adding a thickener/stabilizer such as polysaccharides xanthan, CMC, and SHMP (Col. 6, lines 10-55; Examples 1-2). Montezinos teaches these thickeners at varying ratios with the sorbate; for example, Montezinos exemplifies a thickener premix comprising xanthan gum, CMC, and water at 0.1:0.5:200, and another premix of ascorbic acid to SHMP to water of 0.3:1:587.2, and the 2 premixes combined at 200.6:588.5 and added to the beverage concentrate comprising 0.05% potassium sorbate (Examples I and II). By Examiner’s calculation, the ratio of xanthan gum, CMC and SHMP to the potassium sorbate in the solution is 0.01%:0.05%:0.03%:0.05%. Therefore the ratio of the total carrier to sorbate is 0.09:0.05, or 1.8:1, which is within the claimed ranges.
Regarding Claim 10, Montezinos teaches a juice beverage comprising inter alia from about 0.005 to about 0.01% xanthan gum, and from about 200 ppm to about 1000 ppm of a preservative selected from the group consisting of sorbic acid, benzoic acid, alkali metal salts or mixtures thereof (Claim 16). The amount of preservative in percentage is 0.02-0.1%. The ratio of xanthan gum to sorbate encompass 1:1. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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.
Regarding Claim 11, Given and Ji have rendered obvious the powder comprising sorbate and carrier. Montezinos’ example Examples I-II gives a carrier to sorbate ratio of 1.8:1. As such, applying the amounts/ratio taught by Montezinos in preparing the sorbate-carrier powder according to Given and Ji would result in about 36% sorbate, which is within the claimed range.
Response to Remarks:
The crux of Applicant’s argument is that Given is allegedly silent on stabilizing carriers, and that there is no reason for a skilled artisan to improve the sorbic acid’s solubility. Applicant also argues that Ji discloses a method for spray-drying potassium sorbate and not a carrier-sorbate solution.
The Examiner has considered the argument but found it unpersuasive. First, as discussed in the rejection supra and contrary to Applicant’s allegation, Given teaches SHMP and rebaudioside, which are stabilizing carriers as evidenced by instant Claim 4.
Regarding the argument that Ji discloses a method for spray-drying potassium sorbate and not a carrier-sorbate solution, Applicant is reminded that Ji is a secondary reference modifying primary reference Given. Given teaches the carrier-sorbate solution, and Ji is relied on for the spray-drying step. Ji teaches compositions comprising sorbate solution that extends the shelf time of food while keeping the flavor, and teaches the method of spray drying obtain a sorbate-containing powder. Hence, one with ordinary skill in the art would have applied the known technique of spray drying taught by Ji in the method of Given, i.e. to obtain a sorbate with SMHP or rebaudioside composition in powder form to add to the syrup.
Conclusion
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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