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 .
This office action is in response to the application filed on April 10, 2024. The earliest effective filing date of the application is April 17, 2023.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d), filed on April 17, 2023.
Status of Application
The claims have been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 6
Withdrawn claims: None
Claims currently under examination: 1 – 6
Claim Objections
Claim 1 is objected to because of the following informalities:
- Claim 1 recites “satisfying the following conditions (a) to (c)” in line 1, which is interpreted to be an unconventional recitation of a transitional phrase. For the purpose of examination, the broadest reasonable interpretation of “satisfying the following conditions (a) to (c)” is “comprising”. To avoid misinterpretation of the breadth of the claim, replace “satisfying the following conditions (a) to (c)” with “comprising” or the intended conventional transitional phrase.
- Claim 1 recites “having a water activity of 0.94 or more” which should be “a water activity of 0.94 or more”.
- Claim 1 recites “comprising a functional component” which should be “a functional component”.
- Claim 1 recites “(c) being filled in an aerosol type spraying container” which should be rewritten as “wherein the beverage is filled in an aerosol type spraying container.”
As a whole, the claim rewritten would appear as:
A beverage comprising:
(a) a water activity of 0.94 or more; and
(b) a functional component;
wherein the beverage is filled in an aerosol type spraying container.
The composition of claim 1 is interpreted in light of the above rewritten claim.
- Claim 2 recites “The beverage according to claim 1, comprising, as the functional component,” which should be rewritten as “The beverage according to claim 1 wherein the functional component is”. To avoid misinterpretation.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 3 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 3 recites “wherein an amount is sprayed” which is a method step, which renders the claim indefinite. Claim 3 is directed to a composition. It is unclear whether the claim is meant to impart a feature onto the composition, or if it is meant to claim a method, or something else. For the purpose of examination, claim 3 is interpreted to claim “the beverage according to claim 1, wherein the aerosol type spraying container is capable of spraying 0.3 mL or more per use.”
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, 3, and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by O’Connor et al. (US 20070286933 A1).
Regarding claim 1, the preamble of the claims recites “A beverage” which is interpreted to indicate the composition is an edible liquid.
O’Connor teaches an aerosol food product comprising pancake mix and water in a pressurized spray can ([0005]; Example 6, [0063]; [0068]). O’Connor teaches the water activity of the aerosol food product is 0.96 ([0068]). O’Connor teaches the pancake batter comprises iron (i.e., a functional component – Table 1, Iron). O’Connor treats the aerosol food product as if it is a liquid, and measures its viscosity and liquid separation characteristics, therefore the aerosol food product is a liquid (Example 17).
Regarding claim 3, O’Connor teaches the serving size of the pancake batter is 100g ([0021]). While O’Connor does not explicitly disclose the volumetric serving of the aerosol food product (i.e., pancake batter), one of ordinary skill in the art would understand that 100g of pancake batter is inherently of a greater volume than 0.3 mL.
Regarding claim 6, the instant specification states the flavoring as used herein means a substance that can impart fragrance or taste to the target beverage ([0025]). Therefore, pancake mix is considered a flavoring.
Claim Rejections - 35 USC § 102/103
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 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.
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, 3, 5, and 6 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 Li (CN 109718330 A – WIPO Machine Translation) in view of Makdesi et al. (Performance of Selective Media for Enumerating Zygosaccharomyces bailii in Acidic Foods and Beverages. Journal of Food Protection. Vol 59. Iss 6. Pp. 652 – 656. (1996)).
Regarding claim 1, Li teaches a refreshing auxiliary withdrawal-type inhalation (i.e., aerosol) beverage, characterized in that: 5-40% of ginseng extract, 2-30% of jujube seed extract, 3-30% of almond extract, 3-30% of s extract, 3-30% of cattle root extract, 1-10% of taurine, 1-30% of tangerine peel extract, 1-30% of residue extract, the appropriate amount of flavoring excipient, and the balance of water (p. 2, paragraph 1). Li teaches the refreshing-type auxiliary smoking aerosol inhalation drink comprises vitamins B1, B2, C and trace elements K, Zn, Mn, Fe, Rb, Sr, Se, etc (i.e., functional components – p. 3, paragraph 4).
While Li is silent with respect to the water activity of the refreshing-type auxiliary smoking aerosol inhalation drink, as evidenced by Makdesi, carbonated beverages and wine inherently have a water activity of 0.99 as shown in the table below (p. 653, Table1):
PNG
media_image1.png
272
430
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Greyscale
Given carbonated beverages and wine have a water activity of 0.99, absent evidence to the contrary, the refreshing-type auxiliary smoking aerosol inhalation drink also inherently has a water activity of 0.99.
Alternatively, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected a water activity of 0.99, as taught by Makdesi, in the composition of Li because Makdesi shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed water activity when making the refreshing-type auxiliary smoking aerosol inhalation drink of Li, because it would be obvious to one of ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Regarding claim 3, Li teaches the refreshing auxiliary withdrawal-type inhalation (i.e., aerosol) beverage may be administered in a dosage of 20 mL at a time (p. 6, Example 5).
Regarding claim 5, the refreshing-type auxiliary smoking aerosol inhalation drink of Li does not require monosaccharides or disaccharides.
Regarding claim 6, Li teaches the refreshing-type auxiliary smoking aerosol inhalation drink comprises flavoring (Claim 1).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 109718330 A – WIPO Machine Translation) in view of Makdesi et al. (Performance of Selective Media for Enumerating Zygosaccharomyces bailii in Acidic Foods and Beverages. Journal of Food Protection. Vol 59. Iss 6. Pp. 652 – 656. (1996)), as applied to claim 1 above, and further in view of MNT (A complete guide to B vitamins. Medical News Today. (2020). Retrieved from Wayback Machine Archive - https://web.archive.org/web/20201121164400/https://www.medicalnewstoday.com/articles/325292).
Claim 2 recites “The beverage according to claim 1, comprising, as the functional component,” which is interpreted to mean “The beverage according to claim 1 wherein the functional component is”.
Li does not teach the refreshing-type auxiliary smoking aerosol inhalation drink comprises 0.01 g/L of vitamin B1.
MNT teaches the daily recommended dose of thiamin (vitamin B1) is 12 – 14 mg/ day (p. 3, Table, Thiamin (B-1). MNT teaches thiamin deficiency (i.e., too little thiamin) can result in weight loss, little or no appetite, memory problems or confusion, heart problems, tingling and numbness in the hands and feet, loss of muscle mass, and/or poor reflexes (p. 4, paragraph 2).
Li and MNT are combinable because they are concerned with the same field of endeavor, namely, vitamin B1. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included at least 0.01 g/L of vitamin B1 in the refreshing auxiliary withdrawal-type inhalation (i.e., aerosol) beverage of Li, as taught by MNT, because supplementing vitamin B1 helps prevent the undesirable effects of vitamin B1 deficiency.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN 109718330 A – WIPO Machine Translation) in view of Makdesi et al. (Performance of Selective Media for Enumerating Zygosaccharomyces bailii in Acidic Foods and Beverages. Journal of Food Protection. Vol 59. Iss 6. Pp. 652 – 656. (1996)), as applied to claim 1 above, and further in view of BOV Solutions (How the Bag-On-Valve Works. BOVsolutions. (2020). Retrieved from: https://bovsolutions.com/products/how-the-bag-on-valve-works/).
Li does not disclose the type of aerosol spraying container.
BOV Solutions teaches The Bag-On-Valve (B.O.V.) is a barrier packaging technology for liquid or viscous products (p. 1, paragraph 1). BOV Solutions teaches B.O.V. packaging completely separates the product from the eco-friendly air or nitrogen propellant (p. 1, paragraph 1). BOV teaches this separation keeps the product pure (p. 1, paragraph 1). BOV Solutions teaches B.O.V. packaging is 100% recyclable and offers both convenience and reliability for the consumer (p. 1, paragraph 1). BOV Solutions teaches B.O.V. packaging is suitable for both liquid and some viscous product types, including beverages (p. 2, bullet 10; p. 3, Food, bullet 8).
Li and BOV Solutions are combinable because they are concerned with the same field of endeavor, namely, aerosol beverages. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected BOV packaging for the refreshing auxiliary withdrawal-type inhalation (i.e., aerosol) beverage of Li, as taught by BOV Solutions, because BOV packaging keeps the beverage product pure, is 100% recyclable, and is suitable for liquid products, including beverages.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LARK JULIA MORENO whose telephone number is (571)272-2337. The examiner can normally be reached 6:30 - 4:30 M - F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793