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 .
Response to Amendment
Those objections and rejections that have not been repeated in this Office Action have been withdrawn.
Claims 1-4, 6-15, 17, 18 and 20-23 are currently pending and rejected.
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.
Claims 21-23 are 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 21 recites, “wherein the sealed vial is removably connected in the attachment area of at least one of the pair of side gussets.” This limitation is not clear as to how the sealed vial can be connected to more than one of the pair of side gussets. That is, because the claim recites, “connected in the attachment area of at least one of the pair of side gussets, the claim also encompasses the sealed vial being connected to both of the pair of side gussets.
Claim 22 recites, “wherein the sealed vial is removably connected to a side panel of the at least one of the pair of side gussets.” Claim 23 recites, “wherein the sealed vial is completely contained within the at least one of the pair of side gussets.” These limitations are also indefinite for the same reasons as discussed above with respect to claim 21. That is, it is not clear as to how the sealed vial can be adhered to and completely contained within more than one of the pair of side gussets.
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.
Claims 1, 4, 6-7, 12, 13, 15 and 18 and are rejected under 35 U.S.C. 103 as being unpatentable over Murray (US 20160052705) and in view of Woolf (US 20090206084) and Tarnava (US 20190166885) and in further view of Marcelloni (IT 201900002859) and in further view of Igarashi (US 20170280748) and Ruppman (US 20220046960).
Regarding Marcelloni, US 20220117845 has been relied on as the English equivalent translation.
Regarding claims 1 and 12, Murray discloses a method of preparing hydrogen water for consumption, comprising: providing a sealed pouch (i.e. container) containing hydrogen-infused water (see for example figure 7, where the sealed pouch would have been provided; see the abstract - where hydrogenated water is a hydrogen-infused water; see page 3, claim 11, “infused with a gas”). It would have been obvious to one having ordinary skill in the art to have opened the sealed pouch for accessing the hydrogen-infused water.
Claims 1 and 12 differ from Murray in specifically reciting, “providing a sealed vial with a predetermined amount of magnesium;” “opening the sealed vial” and “adding the predetermined amount of magnesium to the hydrogen-infused water inside the pouch to increase a hydrogen content of the hydrogen-infused water.” (claim 1); and “opening the sealed vial,” “pouring the magnesium from the opened vial into the opened container and mixing the hydrogen-infused water with the magnesium to generate hydrogen and increase a hydrogen content of the hydrogen-infused water.” (claim 12)
Woolf (US 20090206084) teaches that it has been conventional to provide a sealed “vial” of a gas producing agent (see figure 17, item 2 and paragraph 23, “carbonating agent”) for the purpose of being able to increase or achieve the desired degree of carbonation to a beverage (see paragraph 212). This is pertinent because Woolf is teaching at paragraph 212 that the beverage that already has a gas dissolved therein can be supplemented with a gas producing agent to provide the desired degree of carbonation, which is useful when the liquid tends to lose its initial carbonation after opening and subsequent closing. Woolf can be construed as teaching a sealed vial, as discussed above, which is opened in order to add and mix the gas generating agent with the beverage for supplementing or replenishing the dissolved gas.
While Woolf does not specifically discuss adding a gas generating agent that can increase a hydrogen content, Tarnava (US 20190166885) also teaches that it has been known for the hydrogen concentration in a container to decrease over time (see paragraph 2) and is further teaching and suggesting gas generating compositions that can solve the above problem by maximizing the dissolved hydrogen concentration in the water within the container (paragraph 2-3).
Tarnava teaches providing tablets or powders (see paragraph 4 and 22: “tablet”; see paragraph 34: “in the form of a powder”) stored in water-resistant packaging (see paragraph 32: “compositions of the invention will be typically stored in water-resistant packaging….” and paragraph 43) and which can include magnesium (see at least, paragraph 32, 35) for the purpose of enriching water with hydrogen (see the abstract and at least, paragraph 40-43). Tarnava is teaching opening the water-resistant packaging and adding the contents to water that is in an open container (see at least, paragraph 11, 12, 15 and 43). At paragraph 32, Tarnava further teaches providing multiple tablets, such that additional tablets can be added to water to achieve the desired hydrogen concentration. At paragraph 40, Tarnava is teaching adding the composition to water that already has dissolved gas therein, such as carbonated water.
In view of Woolf the prior art teaches and suggests that it has been desirable to include compositions that can replenish or tailor the particular degree of gas dissolved in a beverage. In view of Tarnava the prior art teaches compositions that can be useful for maximizing the hydrogen concentration in a hydrogen infused water, since the hydrogen concentration has been known to decrease over time such as during storage and since Woolf also teaches beverages losing carbonation when opening and closing the beverage container and where a user can further customize the degree of carbonation. Tarnava also teaches that a known expedient for increasing the hydrogen concentration of water is to open a sealed container comprising a predetermined amount of magnesium and add the predetermined amount of magnesium to the water to increase a hydrogen concentration of the water.
To therefore modify Murray and to also provide a sealed container comprising a predetermined amount of magnesium would have been obvious to one having ordinary skill in the art for the purpose of being able to replenish the concentration of hydrogen in Murray’s sealed pouch that could have been lost over time such as when opening and re-closing Murray’s sealed pouch or being lost during storage as well as for customizing the degree of hydrogen concentration for consumption.
Regarding the limitation, “a sealed vial” since the claim does not specify the particulars of the vial, Tarnava’s teachings of using a waterproof container (see paragraph 32) could be construed as encompassing the magnesium being within a sealed vial. Additionally, Woolf teaches that vials can be used for delivering an additive such as a gas releasing agent into the base liquid (see figure 17, item 2; paragraph 91: “vial”; paragraph 810).
If it could have been construed that the prior art did not specifically teach a sealed “vial”, then it is noted that Marcelloni teaches a sealed vial (see figure 7, item 1 and 6; see also paragraph 50, 53 and 63) containing a dose of an additive that is to be combined with liquid, such as a carbonated or non-carbonated water, within the base container (see figure 7, item 34 and paragraph 72, 77, 80).
To therefore modify the combination and use a vial to seal Tarnava’s magnesium would have been obvious to one having ordinary skill in the art, based on a substitution of one type of sealed package containing an additive to be mixed with a base beverage, with another, used for the same purpose.
Claims 1 and 12 also now recite that the provided sealed container containing hydrogen-infused water has a hydrogen content of at least 1.5ppm and therefore differs from the above combination in this regard. Regarding claims 3 and 14, the claim differ from the combination as applied to claims 1 and 12 in specifically reciting that, “the hydrogen content of the hydrogen-infused water in the sealed pouch before the opening of the sealed pouch is has a hydrogen content of 1.5 ppm to 5 ppm” (claim 3) and “wherein the hydrogen content of the hydrogen-infused water in the sealed container has a hydrogen content of 1.5 ppm to 5 ppm before the opening of the sealed container.” (claim 14).
Igarashi teaches sealed containers (see figure 1) that can comprise hydrogen infused water, with a hydrogen concentration of 1.6ppm (see paragraph 81 and 82). Ruppman further teaches that it has been conventional for a produced hydrogen-infused water to comprise 1.5-5 ppm of hydrogen for health benefits (see the abstract and paragraph 42).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified Murray and to have provided the hydrogen infused water with a hydrogen concentration of such as 1.6ppm or 1.5ppm-5ppm before the opening of the sealed pouch and container, because the prior art teaches that when producing hydrogenated water, that concentrations of 1.6 or 1.5-5ppm are conventional concentrations that can provide the desired health benefits from hydrogen in water.
Regarding claims 4 and 18, Tarnava teaches that the magnesium amount can be 80mg (see paragraph 24). While claims 4 and 18 recite that the amount of magnesium and the magnesium being in tablet or powder form are recited in the alternative, Tarnava also teaches that the predetermined amount of magnesium can be in tablet or powder form (see the abstract, “tablet”; see paragraph 34, “powder form”).
Regarding claims 6-7 and 13, Tarnava teaches that the package containing the magnesium can contain an acid such as tartaric or malic acid (see paragraph 27) and where the amount of the acid can be 30mg (see paragraph 9 and 26) and where the magnesium can be used at 300mg (see paragraph 24), therefore suggesting that the acid can be used at “10%” of the magnesium content.
Regarding claim 15, Murray teaches the container is a flexible pouch with a fitment (figure 3, item 230) sealed by a cap (figure 3, item 206) (see also paragraph 20).
Claim 15 differs from Murray in specifically reciting that the sealed vial is provided removably connected to the sealed container. Tarnava teaches that the sealed container comprising magnesium can be provided as part of a kit to dissolve hydrogen into a beverage (see paragraph 11 and 15, “kit”) but also does not specifically teach the sealed container as removably connected to the base container.
Marcelloni teaches in figure 7, that the sealed vial comprising the additive is removably connected to the sealed container comprising a beverage (see figure 7, item 1 and 48; and figure 7, item 34; see paragraph 93-94 which disclose the recess 48 houses the container 1).
To therefore modify the combination and to removably connect the sealed vial to Murray’s sealed container would have been obvious to one having ordinary skill in the art as a matter of convenience so as to allow a consumer to add the magnesium to Murray’s hydrogen infused water to further tailor or replenish the degree of hydrogen concentration within Murray’s beverage.
Claims 2 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 and 12 above which relies on Murray (US 20160052705) as the primary reference, and in further view of Satoh (US 20130112600).
Regarding claim 2, the claim differs from the combination as applied to claim 1 above in specifically reciting, shaking the pouch after adding the predetermined amount of magnesium to the hydrogen-infused water, whereby additional hydrogen is generated from a reaction in the pouch to increase the hydrogen content of the hydrogen-infused water.
Satoh teaches that it has been desirable in the art of producing hydrogen water for consumption to increase the hydrogen concentration in the hydrogen containing fluid (see paragraph 51). By teaching that the hydrogen concentration is being increased, Satoh is also teaching and suggesting that the hydrogen generating system is useful for providing additional hydrogen in water that would already have contained hydrogen.
Satoh further teaches that it has been advantageous to shake the container to increase the hydrogen concentration prior to consuming (see paragraph 49-50). To therefore modify the combination and to shake Murray’s pouch after adding the predetermined amount of magnesium to the hydrogen infused water as taught by Woolf and Tarnava, would have been obvious to one having ordinary skill in the art for increasing the hydrogen concentration in the water prior to consuming.
Regarding claim 20, in view of Satoh, the combination teaches shaking the opened container for a defined duration (see for example paragraph 58, disclosing times such as 1-8 minutes).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Murray (US 20160052705) as the primary reference, and in further view of Armstrong (US 1342148).
Claim 8 differs from the combination as applied to claim 1 in specifically reciting “providing a second sealed vial containing malic acid and/or tartaric acid, opening the second sealed vial; and adding the malic acid and/or the tartaric acid from the second vial to the hydrogen infused water inside the pouch.”
It is noted however, that Woolf teaches multiple sealed additive chambers (see at least, paragraph 431). Woolf therefore suggests providing multiple sealed containers that comprise a gas generating material for the purpose of replenishing the carbonation, as already suggested at paragraph 212. In view of this, it would therefore have been obvious to one having ordinary skill in the art to have provided a second sealed vial containing Tarnava’s magnesium together with malic and/or tartaric acid and to have opened the second sealed vial and added the malic and/or tartaric acid to the Murray’s hydrogen infused water, for the purpose of being able to replenish the hydrogen concentration such as after second and subsequent iterations of opening and consuming Murray’s hydrogen infused water.
It is further noted however, that Armstrong teaches that it has also been conventional to provide compositions that provide aeration to water, where a package of tartaric acid can be separately packaged from the metal component and that both packages can then be opened and combined with water to produce an aerated drink (see page 1, lines 70-80).
Since Tarnava also teaches that the composition to produce hydrogen can be in powdered form, it would have been obvious to one having ordinary skill in the art to have provided Tarnava’s composition as a first sealed vial of the metal component and a second sealed vial of the acid, because Armstrong teaches that the separation of these components has been an equivalent form of providing a gas producing composition as has packaging these components together and because such a modification would have been a substitution of one conventional form of providing the gas producing composition for another.
Claims 9-10 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Murray (US 20160052705) as the primary reference, and in further view of Kazakevitch (US 20160113865) and Boyd (US 7862841).
Regarding claim 9, Murray teaches a sealed pouch includes a cap (see figure 5, item 406), which would obviously have to be removed to open the sealed pouch. It would further have been obvious to one having ordinary skill in the art that Murray’s cap covers a spout that is part of the fitment 210.
If it could have been construed that Murray was not clear on the removing of the cap from a spout of the pouch, then it is noted that Kazakevitch teaches inserting a tablet that can generate hydrogen gas into a bottle (see paragraph 10) and then sealing the bottle to retain the generated hydrogen (see page 3, claim 18). This is further supported by Boyd who teaches removing a cap from a spout of a beverage container (see figure 15, item 18 and 20) and then inserting an additive from a vial into the container (see figure 16 and 17).
To therefore modify Murray and to remove a cap from a spout of the pouch would have been obvious to one having ordinary skill in the art for the purpose of being able to add Tarnava’s hydrogen generating composition into Murray’s beverage to further supplement the hydrogen concentration.
Regarding claims 10 and 17, Murray further teaches a frangible seal (see figure 8, item 710) that seals the spout from the hydrogen infused water in an un-broken state (see paragraph 7) and therefore extends between an opening to the fitment and the hydrogen infused water. Since the combination teaches using the spout for adding an additional hydrogen generating composition, it would have been obvious to one having ordinary skill in the art to have ruptured the frangible seal in order to supplement the hydrogen concentration as suggested by Woolf and Tarnava.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Murray (US 20160052705) as the primary reference, and in further view of Satoh (US 20130112600) and in further view of Robbins (US 20220272987) and Miller (US 20200236983)
Regarding claim 11, in view of Tarnava, the combination teaches that the predetermined amount of magnesium in the sealed vial can contain 80mg of magnesium (paragraph 24).
Regarding the limitation of, ”wherein after shaking the pouch the hydrogen content of the hydrogen infused water is 4ppm,” Satoh further teaches that after shaking that the water have a dissolved hydrogen concentration that is higher than or equal to the degree of solubility at ordinary temperatures and pressures, such as 4ppm (see paragraph 42). Satoh further teaches that the hydrogen concentration can increase by shaking (see paragraph 51) or can be 1.6ppm or higher (see paragraph 62-63), thus teaching and encompassing the claimed concentration of 4ppm. Therefore, it would have been obvious to one having ordinary skill in the art to shake the container after adding the magnesium and malic acid into the hydrogen infused water for the purpose of increasing the concentration of hydrogen in the water to amounts such as 4ppm.
Regarding the sealed vial further containing 8mg of malic acid such that the adding further comprises adding the malic acid together with the predetermined amount of magnesium to the hydrogen-infused water, the claim differs from the combination applied to claim 1 in this regard.
However, Robbins acids such as malic acid (see paragraph 123) as well as combinations of acids (paragraph 123) as part of a composition that can effervesce (see the abstract) and which composition can include magnesium (see paragraph 29). Robbins teaches that the acid component can be present at 1%-98.99% and the nutrient such as magnesium can be present at 0.01-98% (see paragraph 36).
Miller (US 20200236983) teaches beverages (paragraph 3-4) into which hydrogen can be dissolved (paragraph 23), providing magnesium (paragraph 23) which can be used at 10wt% (see paragraph 23) together with an acid such as malic acid, that can be used at 0.1wt% (or 10 percent the amount of magnesium)(see paragraph 26). Miller teaches that either the magnesium alone or together with one or more acids can release hydrogen gas into the beverage to provide added health benefits (see paragraph 15). Miller teaches that acids such as malic acid can also help to generate hydrogen in an aqueous environment or further enhance the ability to increase the rate or amount of molecular hydrogen entering a cell of the body (see paragraph 26). Miller also teaches combinations of acids (see page 15, Table A).
Tarnava teaches using 80mg of magnesium, Miller teaches and suggests using 10% the amount of acid compared to the mineral, or 8mg.
Therefore it would have been obvious to one having ordinary skill in the art to have modified the combination and accordingly have included and added 8mg of malic acid to the hydrogen-infused water in combination with magnesium as a matter of routine experimentation based on the amount of hydrogen gas that was desired to be produced in combination with amounts of other acids also being used for similarly reacting with magnesium to produce the desired amount of hydrogen gas.
Claims 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1, which relies on Murray (US 20160052705) as the primary reference, and in further view of Murray (US 20090028470 referred to as “Murray470) and in further view of Nowzari (US 20120175274), Kuge (US 20220141666), Huffer (US 20180044091) and Patelli (US 5758473).
Regarding claim 21, the claim differs from the combination as applied to claim 1 in specifically reciting that “wherein the sealed pouch includes a pair of side gussets defining an attachment area, and wherein the sealed vial is removably connected in the attachment area of at least one of the pair of side gussets.”
Claim 22 differs from the combination as applied to claim 1 in specifically reciting that, “the sealed vial is removably connected to a side panel of the at least one of the pair of side gussets by an adhesive.”
Regarding the pouch including a pair of side gussets, Murray470 teaches a pouch that can contain a beverage that has a gas dissolved therein (see the abstract and figure 4a) and where the pouch has a pair of side gussets (see figure 4a, item 70), capable of defining an attachment area.
Murray470 teaches that the gussets can enhance the strength and rigidity of the pouch during filling and processing and that a side gusset is advantageous since it allows the walls of the pouch to expand as the internal pressure within the pouch increases (see paragraph 56).
To therefore modify the combination and to include a pair of side gussets to Murray’s pouch, as taught by Murray479 would have been obvious to one having ordinary skill in the art, for the same purpose of enhancing the strength and rigidity of the pouch during filling and processing and to allow the walls of the pouch to expand as internal pressure within the pouch increases.
Regarding the sealed vial being removably connected in the attachment area of at least one of the pair of side gussets, it is initially noted that Woolf already teaches attaching an additive container (see figure 17, item 2; Figure 20) to a beverage container (see paragraph 35, 180 and 809) and which beverage container can be a pouch (see paragraph 74, 83 and 84).
Furthermore, Nowzari (US 20120175274) teaches a beverage container comprising a sidewall region (see at least figure 8, item 62 for instance) into which can be secured a vial (figure 4, item 54 and paragraph 46: “secondary compartment 12 for containing and storing one or more secondary products 14”; see paragraph 48 disclosing that the secondary compartment can hold a miniature beverage bottle; see paragraph 53 disclosing that the miniature beverage bottles can provide flavoring). Nowzari also teaches using an adhesive to attach the additive container to the sidewall (see figure 14a and paragraph 90-92).
To therefore modify the combination, which already teaches an additive vial containing magnesium for hydrogenating a liquid, and to attach and adhere the additive vial containing magnesium to the sidewall of the sealed pouch containing the hydrogen infused water, as taught by Nowzari, would have been obvious to one having ordinary skill in the art, as a matter of convenience so as to be able to provide the additive as part of a kit together with the hydrogen infused water so as to be able to selectively control the hydrogen concentration.
Further regarding specifically attaching the vial to an attachment area of at least one of the pair of side gussets and to a side panel of the at least one pair of side gussets by an adhesive:
Kuge (US 20220141666) teaches sealed pouches (see figure 16, item 15) containing drinkable liquids (see at least paragraph 46, “liquid”) and which pouch comprises a pair of side gussets (see figure 16, item 3, 17) and where it has been conventional to attach an article to an attachment area that is part of one of the side gussets (see figure 16, item 16) and which article is to be used in combination with the liquid contents of the pouch. Kuge teaches that attaching the article to the side gusset allows for the article to be provided at a position inside a plane formed by the connecting the ends of the side to protect and prevent the article from falling (paragraph 12). As shown in figure 16, the article is attached to a side panel of the side gusset and which attaching can be via adhesive (see paragraph 46, “bonding such as hot melt”).
Huffer (US 20180044091) teaches that it has been conventional to attach an article associated with the contents of the pouch within a side gusset of a pair of side gussets of the pouch (see paragraph 23 and paragraph 29, which discloses that the item can be completely closed within the pocket and that the specific item is not limited to a scoop).
Patelli (US 5758473) also teaches a pouch containing a beverage (see the figures and column 2, lines 50-53) and which pouch comprises a pair of side gussets (see at least, figure 1, item 4) and which side gusset comprises an article attached thereto and which article to be used with the contents of the pouch (see for example figure 21a, item 17).
Since the prior art already teaches attaching a vial to a pouch, to therefore modify the combination and to position the vial such that the vial is removably connected in an attachment area of one of the pair of gussets and on a side panel of said gusset by adhesive, would have been obvious to one having ordinary skill in the art because Kuge teaches that such a location for attaching an article with the drink pouch can be advantageous for protecting the article and preventing the article from falling and because Huffer teaches that an attachment area of a side gusset is but one of any location where an article associated with the pouch can be affixed.
Further regarding claim 23, in view of Kuge, Huffer and Patelli, the prior art teaches that the vial would have been completely contained within the at least one of the pair of side gussets, for the purpose of protecting the vial.
Response to Arguments
On pages 8-9 of the response, Applicant urge that none of Murray (US 20160052705), Woolf (UW 20090206084), Tarnava (US 20190166885) and Marcelloni (IT 201900002859) teach or suggest providing a sealed pouch containing hydrogen infused water having a hydrogen content of at least 1.5ppm and adding and mixing the predetermined amount of magnesium from an opened vial into the opened container comprising the hydrogen-infused water to increase a hydrogen content of the hydrogen infused water.
Regarding the limitation that the hydrogen infused water has a hydrogen content of at least 1.5ppm, it is noted that Murray is not limiting as to the initial concentration of hydrogen in the hydrogen infused water, and Igarashi and Ruppman further teach and suggest that a conventional concentration of hydrogen in a sealed pouch containing hydrogen infused can be 1.5ppm such that it would have been obvious to one having ordinary skill in the art to look to the prior art to similarly package known concentrations of hydrogen in sealed pouches. Regarding pouring and mixing magnesium from the opened vial into the opened container, it is acknowledged that Murray and Woolf do not specifically discuss adding magnesium. However, obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Woolf teaches that it has been desirable to provide a sealed additive vial that can supplement or replenish the concentration of dissolved gas within the beverage container. While Woolf does not specifically discuss adding magnesium, Tarnava teaches that a known expedient for providing a concentration infused hydrogen to a beverage is to open a package containing magnesium tablets or powder (see paragraph 32 – “water resistant packaging”; see paragraph 32 and 34 disclosing tablets and powders) and to add the magnesium additive tablets and powders to an open container comprising water to enrich the water (see paragraph 43). Tarnava also teaches that it would have been obvious to one having ordinary skill in the art that hydrogen concentrations in containers decrease over time (see paragraph 2). Since Woolf already teaches providing a vial to replenish or supplement the dissolved gas concentration in a beverage and since Tarnava teaches packages containing tablets and powders for achieving a desired hydrogen concentration in water, it would have been obvious to one having ordinary skill in the art to use the teachings of Woolf’s and Tarnava to package and subsequently dispense magnesium tablets or powder from an opened vial to replenish or supplement the hydrogen concentration after opening Murray’s pouch.
Further on page 9 of the response, Applicant urges that Woolf is directed to gas dissolved in the beverage whereas the claimed subject matter relates to water containing an infusion of hydrogen. Applicant urges that Woolf further does not teach or suggest adding magnesium to hydrogen infused water to increase hydrogen content and that the chemistry and solubility characteristics of hydrogen differ significantly from carbon dioxide such that one of ordinary skill in the art would not look to Woolf’s teachings about carbonation for guidance on increasing hydrogen concentration in already hydrogen infused water.
These arguments have been considered but are not persuasive. It is respectfully noted that Woolf’s teachings are seen to be applicable because in view of Woolf and Tarnava it would have been obvious to one having ordinary skill in the art that packaged beverages can lose carbonation over time and that it has been known for beverages to lose hydrogen concentration over time; and that it has been desired to add ingredients to a beverage comprising a gas concentration for further customizing the degree of gas concentration within the beverage (see Woolf). Since Tarnava teaches sealed packaging comprising doses of magnesium for providing a hydrogen concentration to water for consumption, it would have been obvious to one having ordinary skill in the art to similarly open Tarnava’s packaging and dispense the magnesium into Murray’s open pouch for the similar purpose of supplementing and/or replenishing the hydrogen concentration.
On page 10 of the response, Applicant urges that Tarnava does not teach adding magnesium to water that already contains hydrogen at a concentration of at least 1.5ppm.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this instance, Tarnava has not been relied on to specifically teach using the magnesium tablets/powder to water already comprising dissolved hydrogen but rather has been relied on to teach that it been conventional to package magnesium tablets as an additive and which package can be selectively opened and dispensed into water for providing a degree of hydrogen concentration to water. Since the art already teaches that it has been desirable to provide an additive package to supplement gas concentrations in a beverage (Woolf) and since the art also teaches that it has been known for hydrogen concentrations to reduce over time in a beverage, it would have been obvious to one having ordinary skill in the art to provide Murray’s package with a sealed package comprising magnesium as taught by Tarnava for the same purpose of replenishing or supplement lost concentrations of hydrogen within Murray’s beverage. It is also noted that Tarnava also teaches adding the magnesium to a beverage that already has a concentration of gas (see paragraph 40, “carbonated water”).
Further on page 10 of the response Applicant urges that Marcelloni does not teach or suggest a sealed vial containing magnesium nor does Marcelloni teach adding any substance to hydrogen-infused water to increase its hydrogen content.
These urgings are not sufficient to overcome the rejection because Marcelloni has only been relied on to teach known forms of packaging for additives, which packaging is opened and subsequently combined with water within a larger sealed container. Therefore, it would have been obvious to one having ordinary skill in the art to have used a sealed vial to package the magnesium tablets, based on a substitution of one type of sealed package containing an additive to be mixed with a base beverage, with another, used for the same purpose.
On page 10 of the response, Applicant urges that the claimed method does not involve replenishing lost hydrogen but involves providing hydrogen infused water that already has a hydrogen content of at least 1.5ppm and then adding magnesium to further increase that hydrogen content beyond that which can be achieved at the time of filling. Applicant further urges that Tarnava’s stated purpose is to produce hydrogen-rich water from plain water to address the problem that ready-to-drink hydrogen water loses its hydrogen concentration over time and one of ordinary skill in the art seeking to address the problem identified in Tarnava would simply add Tarnava’s magnesium composition to plain water and not to water that already contains 1.5ppm or more of hydrogen.
These arguments have been considered but are not sufficient to overcome the rejection because the claim does not specifically recite that the adding of the predetermined amount of magnesium is to the hydrogen infused water having the claimed hydrogen content of at least 1.5ppm and that the adding increases the hydrogen content to greater than 1.5ppm. Nonetheless, it is further noted that Woolf also teaches supplementing the beverage that already has a gas concentration therein with additional gas via the additive container (see paragraph 212). Therefore, it would have been obvious to one having ordinary skill in the art to have similarly used Woolf’s concept of supplementing the beverage with an additive for carbonation for supplementing the beverage with an additive for achieving a desired hydrogen concentration. Therefore, it is respectfully noted that the combination does not rely on hindsight but rather relies specifically on the teachings and suggestions provided by the prior art for modification of Murray. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant’s arguments on pages 11-12 recited to new claims 21-23 are moot in view of the new grounds of rejection necessitated by the amendment to the claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
JP 2020117251 discloses a sealed pouch with an attachment area on a side gusset.
US 2654527, US 20100177986, US 6629609 all disclose attachment areas on a side gusset of a pouch.
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 VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
Prosecution Insights