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 Arguments
Applicant’s arguments filed on 10/15/2025, with respect to the objection to claim 18 and with respect to the 35 U.S.C. 112 (b) rejections of claims 1, 8 and 15, have been fully considered and are persuasive. The 35 U.S.C. 112 (b) rejection has been withdrawn.
Applicant's arguments filed 10/15/2025 regarding the Obviousness Double Patenting rejections have been fully considered but they are not persuasive. The claims have not been amended, no Terminal Disclaimers have been filed, nor have any arguments been presented concerning details of the rationale of the rejections. The respective Obviousness Double Patenting rejections have therefor been maintained.
Double Patenting Rejection
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.\
Claims 1-7 and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 and 14 of U.S. Patent No. 12,227,434.
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims and claims of patent ‘743, taken in combination, considering independent and dependent claims, commonly recite identical ingredients of a black colored beverage, differing only in the preamble of all the claims with the instant claims reciting “A method for manufacturing a black colored beverage”, wherein the preamble of all of the claims of ‘434 recite the beverage itself. The claims are otherwise compared as in the following side-by-side comparison of instant claim limitations and limitations of the claims of patent ‘743 as follows:
1. A method for manufacturing a black colored beverage, comprising:
purifying water safe for human consumption;
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and the fulvic acid within the water to imbue the purified water with a black color;
mixing in the purified water with the suspended humic acid and fulvic acid at least one natural fruit flavoring; and
mixing a carbonation ingredient in the mixture of the at least one natural fruit flavoring and the suspended humic acid and the fulvic acid with the purified water.
The instant claim 1 and ‘743, claim 1 are otherwise identical throughout, other than for the respective claim preambles and recitations of “mixing” for each clause of the instant claims vs. “mixed” for each clause of claim 1 of ‘743.
2. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one vitamin additive in the purified water (‘743, claim 2).
3. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one mineral additive in the purified water (‘743, claim 4).
4. The method for manufacturing a black colored beverage of claim 1, further comprising mixing a soda ash solution additive in the purified water to adjust a pH level (‘743, claim 5).
5. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one of an herbal flavoring, a tea flavoring or a coffee flavoring in the purified water (‘743, claim 3).
6. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one vitamin in the purified water, wherein the at least one vitamin includes at least one of vitamin A, vitamin B complex, vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E, or vitamin K (‘743, claim 6).
7. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one additive in the purified water, wherein the at least one additive is at least one of a dietary supplement, ginseng, caffeine, an antioxidant, or an aloe extract ingredient (‘743, claim 7).
15. A method for manufacturing a black colored beverage, comprising:
purifying water safe for human consumption, wherein the purified water is purified with reverse osmosis;
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and the fulvic acid within the water to imbue the purified water with a black color;
mixing in the purified water with the suspended humic acid and fulvic acid at least one natural fruit flavoring;
mixing at least one at least one nutritional additive in the purified water, wherein the at least one nutritional additive comprises at least one of a group of at least a vitamin, a dietary supplement, a mineral, or a pH adjusting solution to add nutritional value; and
mixing a carbonation ingredient in the mixture of the at least one natural fruit flavoring and the suspended humic acid and the fulvic acid with the purified water (‘743, claim 8 is identical throughout, other than for the respective claim preambles and recitations of “mixing” for each clause of the instant claims vs. “mixed” for each clause of claim 8 of ‘743).
16. The method for manufacturing a black colored beverage of claim 15, wherein the purified water has a total dissolved salt concentration <200 ppm (‘743, claim 9).
17. The method for manufacturing a black colored beverage of claim 15, further comprising mixing a soda ash solution into the purified water (‘743, claim 10).
18. The method for manufacturing a black colored beverage of claim 15, further comprising mixing at least one of an herbal flavoring, a tea flavoring, or a coffee flavoring (‘743, claim 11).
19. The method for manufacturing a black colored beverage of claim 15, further comprising mixing at least one of vitamin A, vitamin B complex, vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E, or vitamin K into the purified water (‘743, claim 12).
20. The method for manufacturing a black colored beverage of claim 15, further comprising mixing caffeine in the purified water (‘743, claim 14).
The instant method claims directed to methods of manufacturing a black colored beverage are deemed obvious over the beverage article, in itself, as recited in the claims of ‘743, since the beverage of diverse mixed ingredients would necessarily be produced or “manufactured” by method steps of mixing of the individual ingredients.
Claims 1-8 and 11-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-27 and 34-39 of copending Application No. 18/394,841 (‘841) in view of the English translation of patent publication CN 104257843 (843).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the following instant claims taken in combination and claims of application ‘841, taken in combination, substantially recite in common, ingredients of a black-colored beverage or corresponding method of producing such beverage as in the following side-by-side comparison of instant claim limitations and limitations of application ‘841.
1. A method for manufacturing a black colored beverage (‘841, claim 21 preamble), comprising:
purifying water so as to be safe for human consumption (‘841, claim 21 “purified water…”);
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and the fulvic acid within the water to imbue the purified water with a black color (‘841, claim 21 “humic acid and fulvic acid…”);
mixing in the purified water with the suspended humic acid and fulvic acid at least one natural fruit flavoring (‘841, claim 23); and
mixing a carbonation ingredient in the mixture of the at least one natural fruit flavoring and the suspended humic acid and the fulvic acid with the purified water (‘841, claim 35).
Otherwise the instant claims differ from the claims of ‘841 differ only by recitations of “mixing” for each clause of the instant claims vs. mere recitations of the individual beverage ingredients for each clause of claim 21 of ‘841.
In addition, instant claim 1 and claims dependent therefrom differ from the claims of ‘841 by way of the claims of ‘841 requiring an alcoholic beverage ingredient being mixed in the mixture of at least one natural fruit flavoring, humic and fulvic acid, and purified water.
However, ‘843 teaches production of an alcoholic beverage, specifically wine [0005, 0007, 0013], thus containing an alcoholic beverage ingredient, which contains filtered and otherwise purified water [0008, 0011], in combination with humic and fulvic acid of a selected quantity [0009, 0023, 0027]. This form of beverage is inferred as tasting better to induce more people to drink it daily according to ‘843 [0005].
Thus, it would have been obvious to one of ordinary skill in the art of creating beverages, to have modified the beverage as described in the claims of ‘714, so as to include an alcoholic beverage ingredient, as taught by ‘843, in order to increase consumption of the beverage, since it’s better taste would induce more people to drink it daily.
2. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one vitamin additive in the purified water (‘841, claim 22).
3. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one mineral additive in the purified water (‘841, claim 39).
4. The method for manufacturing a black colored beverage of claim 1, further comprising mixing a soda ash solution additive in the purified water to adjust a pH level (‘841, claim 24).
5. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one of an herbal flavoring, a tea flavoring or a coffee flavoring in the purified water (‘841, claim 25).
6. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one vitamin in the purified water, wherein the at least one vitamin includes at least one of vitamin A, vitamin B complex, vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E, or vitamin K (‘841, claim 26).
7. The method for manufacturing a black colored beverage of claim 1, further comprising mixing at least one additive in the purified water, wherein the at least one additive is at least one of a dietary supplement, ginseng, caffeine, an antioxidant, or an aloe extract ingredient (‘841, claim 27).
8. A method for manufacturing a black colored beverage (‘841, claim 34 preamble “a black colored beverage), comprising:
purifying water so as to be safe for human consumption (‘841, claim 34, “purified water safe…”);
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and the fulvic acid within the water to imbue the purified water with a black color (‘841, claim 34 regarding “humic acid and fulvic acid suspended within the purified water…to imbue the purified water with a black color”);
mixing in the purified water with the suspended humic acid and fulvic acid at least one natural fruit flavoring (‘841, claim 34, “at least one natural fruit flavoring mixed…”);
mixing at least one vitamin additive in the purified water (‘841, claim 34, 2nd clause);
mixing at least one mineral additive in the purified water (‘841, claim 34, 2nd clause); and
mixing a carbonation ingredient in the mixture of the at least one natural fruit flavoring and the suspended humic acid and the fulvic acid with the purified water (‘841, claim 35).
10. The method for manufacturing a black colored beverage of claim 8, further comprising mixing at least one nutritional additive and a soda ash solution into the purified water (‘841, claim 36).
11. The method for manufacturing a black colored beverage of claim 8, further comprising mixing at least one of a group consisting of an herbal flavoring, a tea flavoring, or a coffee flavoring to add taste to the beverage into the purified water (‘841, claim 37).
12. The method for manufacturing a black colored beverage of claim 8, further comprising mixing at least one nutritional additive in the purified water, wherein the at least one nutritional additive comprises at least one of vitamin A, vitamin B complex, vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E, or vitamin K to add nutritional value to the beverage (‘841, claim 38).
13. The method for manufacturing a black colored beverage of claim 8, further comprising mixing at least one nutritional additive in the purified water wherein the at least one nutritional additive comprises at least one trace element, or an electrolyte (‘841, claim 39).
14. The method for manufacturing a black colored beverage of claim 8, further comprising mixing caffeine in the purified water (‘841, claim 27).
The instant method claims directed to methods of manufacturing a black colored beverage are deemed obvious over the beverage article, in itself, as recited in the claims of ‘841, since the beverage of diverse mixed ingredients would necessarily be produced or “manufactured” by method steps of mixing of the individual ingredients.
In addition, instant claim 8 and claims dependent therefrom differ from the claims of ‘841 by way of the claims of ‘841 requiring an alcoholic beverage ingredient being mixed in the mixture of at least one natural fruit flavoring, humic and fulvic acid, and purified water.
However, ‘843 teaches production of an alcoholic beverage, specifically wine [0005, 0007, 0013], thus containing an alcoholic beverage ingredient, which contains filtered and otherwise purified water [0008, 0011], in combination with humic and fulvic acid of a selected quantity [0009, 0023, 0027]. This form of beverage is inferred as tasting better to induce more people to drink it daily according to ‘843 [0005].
Thus, it would have been obvious to one of ordinary skill in the art of creating beverages, to have modified the beverage as described in the claims of ‘714, so as to include an alcoholic beverage ingredient, as taught by ‘843, in order to increase consumption of the beverage, since it’s better taste would induce more people to drink it daily.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 8 of U.S. Patent No. 10,421,670 (‘670) in view of George et al PGPUBS Document US 2018/0193403 (George). Individual paragraph numbers of the Translation and also of the Description of the PGPUBS Document are identified with “[ ]” symbols.
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims taken in combination and claims of patent ‘670, taken in combination, considering independent and dependent claims, commonly recite methods of making or “manufacturing” mixed ingredients of a black colored beverage producing as in the following side-by-side comparison of instant claim limitations and limitations of patent ‘670:
1. A method for manufacturing a black colored beverage (‘670, claim 1, preamble and “creating a bottled black colored beverage” clause), comprising:
purifying water so as to be safe for human consumption (‘670, “purifying water and mixing the purified water” clause);
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and the fulvic acid within the water to imbue the purified water with a black color (‘670, “purifying water and mixing…” clause);
mixing in the purified water with the suspended humic acid and fulvic acid at least one natural fruit flavoring (suggested by ‘670, claim 8 “adding flavorings”) ; and
mixing a carbonation ingredient in the mixture of the at least one natural fruit flavoring and the suspended humic acid and the fulvic acid with the purified water (‘670, claim 8 re “adding carbonation”).
Instant claim 1 differs from claims 1 and 8 of patent ‘670 by explicit recitation of mixing of at least one natural fruit flavoring. However, George teaches to produce nutritional drinks or beverages [0002-0003 and 0007], which contain humic and fulvic acids [0032-0037], and also containing natural fruit extracts or flavorings such as from pear, strawberry or plum extract [0186-0189, 0191-0192]. George teaches that such fruits and their flavorings have various health benefits and produce a desirable taste to the drinks or beverages.
It would have been obvious to one of ordinary skill in the art of manufacturing beverages to have modified the method described in the claims of ‘670, by including one or more fruit flavorings for their various health benefits and produce a desirable taste to the drinks or beverages.
This is a provisional nonstatutory double patenting rejection.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the rejections under Obviousness Double Patenting set forth in this Office action.
Independent claim 1, and thus claims dependent therefrom remain distinguished and non-obvious over all of the prior art in view of the combination of limitations of:
A method for manufacturing a black colored beverage, comprising:
purifying water safe for human consumption;
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and fulvic acid within the water to imbue the purified water with a black color;
together with recitation of mixing at least one natural fruit flavoring and a carbonation ingredient into the mixture.
The prior art lacks a teaching of a beverage having suspended humic and fulvic acid in a specific form and amount sufficient to imbue the purified water, and thus, the produced beverage with a black color. The closest prior art is represented by the English Translation of patent publication CN 104257843A (Publication ‘843 or ‘843), George et al PGPUBS Document US 2018/0193403 (George), and Petralia PGPUBS Document US 2012/0213756 (Petralia).
Publication ‘843 teaches away from such form and amount of humic and fulvic acid in [0027] teaching that brown and black forms of humic acid have less purity and less activity than do other forms of humic acid, such as yellow humic acid, and teaches production of a “white wine”, thus does not advocate a dark or black beverage [0045-0049].
Petralia teaches a central focus or objective of providing a nutraceutical beverage having high degree of clarity, odor, taste and mouthfeel in [0007], thus teaching away from a dark beverage, such as a black beverage.
George is silent regarding color or appearance of the produced beverage, however teaches addition of other ingredients in a color-less or clarified form [0076, 0140 and 0182], thus also teaches away from a dark-colored or black beverage.
Similarly independent claims 8 and 15 would distinguish and be non-obvious over all of the prior art in view of recitations of:
A method of manufacturing a black colored beverage, comprising:
purifying water so as to be safe for human consumption;
mixing humic acid and fulvic acid into the purified water in a predetermined concentration to sufficiently suspend the humic acid and fulvic acid within the water to imbue the purified water with a black color;
together with recitation of mixing at least one natural fruit flavoring, vitamin additive, mineral additive and carbonation ingredient, respectfully, into the mixture.
Again, the prior art lacks a teaching of a beverage having suspended humic and fulvic acid in a specific form and amount to imbue the purified water, and thus, the produced beverage with a black color. The closest prior art is represented by the English Translation of patent publication CN 104257843A (Publication ‘843 or ‘843), George et al PGPUBS Document US 2018/0193403 (George), and Petralia PGPUBS Document US 2012/0213756 (Petralia).
Publication ‘843 teaches away from such form and amount of humic and fulvic acid in [0027] teaching that brown and black forms of humic acid have less purity and less activity than do other forms of humic acid, such as yellow humic acid, and teaches production of a “white wine”, thus does not advocate a dark or black beverage [0045-0049].
Petralia teaches a central focus or objective of providing a nutraceutical beverage having high degree of clarity, odor, taste and mouthfeel in [0007], thus teaching away from a dark beverage, such as a black beverage.
George is silent regarding color or appearance of the produced beverage, however teaches addition of other ingredients in a color-less or clarified form [0076, 0140 and 0182], thus again teaches away from a dark-colored or black beverage.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US PGPUBS Publication 2016/0095877 (Martin) additionally concerns a beverage comprising humic or fulvic acid and various other additives.
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 Primary Examiner Joseph Drodge at his direct government telephone number of 571-272-1140. The examiner can normally be reached on Monday-Friday from approximately 8:00 AM to 1:00PM and 2:30 PM to 5:30 PM.
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JWD
10/28/2025
/JOSEPH W DRODGE/Primary Examiner, Art Unit 1773